Exhibit 10.17


 


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


	
   

  



 


 


AMENDED AND RESTATED CREDIT AGREEMENT


 


dated as of December 22, 2009


 


among


 


CSSW, LLC,


as Borrower,


 


CSSW Holdings, LLC,


as CSSW Parent,


 


the Lenders from time to time party hereto,


 


Wells Fargo Bank, National Association,


as the Administrative Agent,


 


and


 


Wells Fargo Bank, National Association,


as the Collateral Agent


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 1 DEFINITIONS AND RULES OF INTERPRETATION

  	
  7

  
	
  Section 1.1

  	
  Definitions

  	
  7

  
	
  Section 1.2

  	
  Accounting Terms

  	
  50

  
	
  Section 1.3

  	
  Interpretation, Etc.

  	
  50

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2 THE CREDITS

  	
  51

  
	
  Section 2.1

  	
  The Term Loans

  	
  51

  
	
  Section 2.2

  	
  Procedure for Borrowing

  	
  52

  
	
  Section 2.3

  	
  Evidence of Obligations
  and Notes

  	
  52

  
	
  Section 2.4

  	
  Mandatory Principal and
  Interest Payments on Term Loans

  	
  53

  
	
  Section 2.5

  	
  Default Rate

  	
  54

  
	
  Section 2.6

  	
  Sharing of Payments

  	
  54

  
	
  Section 2.7

  	
  Removal or Replacement of
  a Lender

  	
  55

  
	
  Section 2.8

  	
  Capital Adequacy

  	
  55

  
	
  Section 2.9

  	
  Pro Rata Borrowings;
  Availability

  	
  56

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3 CONDITIONS TO TERM LOANS

  	
  56

  
	
  Section 3.1

  	
  Conditions to the Term
  Loans and Initial Closing Date

  	
  56

  
	
  Section 3.2

  	
  Conditions to Subsequent
  Closing Date

  	
  60

  
	
  Section 3.3

  	
  Conditions to Stetson II
  Effective Date

  	
  64

  
	
  Section 3.4

  	
  Conditions to Stetson II
  Funding Date

  	
  67

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4 PAYMENT, PREPAYMENT AND TAXES

  	
  70

  
	
  Section 4.1

  	
  Mandatory Prepayment

  	
  70

  
	
  Section 4.2

  	
  Voluntary Prepayments

  	
  72

  
	
  Section 4.3

  	
  Payment and Interest
  Cutoff

  	
  72

  
	
  Section 4.4

  	
  Method, Timing and
  Application of Payments

  	
  72

  
	
  Section 4.5

  	
  Taxes

  	
  73

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF THE
  BORROWER

  	
  76

  
	
  Section 5.1

  	
  Existence

  	
  77

  
	
  Section 5.2

  	
  Power; Authorization;
  Enforceable Obligations

  	
  77

  
	
  Section 5.3

  	
  No Legal Bar

  	
  78

  
	
  Section 5.4

  	
  Principal Place of
  Business; Location of Records

  	
  78

  
	
  Section 5.5

  	
  Subsidiaries

  	
  78

  
	
  Section 5.6

  	
  Payment of Taxes

  	
  78

  
	
  Section 5.7

  	
  Financial Statements and
  Condition

  	
  79

  
	
  Section 5.8

  	
  Accuracy of Information,
  Etc.

  	
  79

  
	
  Section 5.9

  	
  Construction of the
  Stetson II Project

  	
  80

  
	
  Section 5.10

  	
  Title

  	
  80

  
	
  Section 5.11

  	
  Litigation

  	
  80

  
	
  Section 5.12

  	
  Margin Stock

  	
  80

  



 


i

















 


	
  Section 5.13

  	
  Employee Benefits

  	
  81

  
	
  Section 5.14

  	
  Environmental Matters

  	
  81

  
	
  Section 5.15

  	
  Investment Company Act of 1940

  	
  82

  
	
  Section 5.16

  	
  Solvency

  	
  82

  
	
  Section 5.17

  	
  Compliance with Requirement of Laws and Permits

  	
  82

  
	
  Section 5.18

  	
  Labor Matters

  	
  82

  
	
  Section 5.19

  	
  Permits, Licenses and Approvals

  	
  82

  
	
  Section 5.20

  	
  Security Documents

  	
  83

  
	
  Section 5.21

  	
  Regulatory Matters

  	
  83

  
	
  Section 5.22

  	
  Events of Loss or Eminent Domain

  	
  84

  
	
  Section 5.23

  	
  Material Project Documents

  	
  84

  
	
  Section 5.24

  	
  No Default Under Material Project Documents

  	
  84

  
	
  Section 5.25

  	
  No Default

  	
  85

  
	
  Section 5.26

  	
  Special Purpose Entity Status

  	
  85

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6
  [RESERVED]

  	
  85

  
	
   

  	
   

  
	
  ARTICLE 7
  REPORTS AND INFORMATION

  	
  85

  
	
  Section 7.1

  	
  Quarterly Financial Statements and Reports

  	
  85

  
	
  Section 7.2

  	
  Annual Financial Statements

  	
  86

  
	
  Section 7.3

  	
  Accountant’s Letters

  	
  86

  
	
  Section 7.4

  	
  Officer’s Certificates

  	
  86

  
	
  Section 7.5

  	
  Annual Budget

  	
  86

  
	
  Section 7.6

  	
  Notice of Defaults

  	
  87

  
	
  Section 7.7

  	
  Reports to Other Creditors

  	
  87

  
	
  Section 7.8

  	
  Miscellaneous

  	
  87

  
	
  Section 7.9

  	
  Other Notices

  	
  87

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8
  FINANCIAL COVENANT

  	
  89

  
	
   

  	
   

  
	
  ARTICLE 9
  AFFIRMATIVE COVENANTS

  	
  89

  
	
  Section 9.1

  	
  Existence and Business

  	
  89

  
	
  Section 9.2

  	
  Name and Location

  	
  90

  
	
  Section 9.3

  	
  Compliance with Laws

  	
  90

  
	
  Section 9.4

  	
  Taxes and Other Obligations

  	
  90

  
	
  Section 9.5

  	
  Maintenance of Properties

  	
  90

  
	
  Section 9.6

  	
  Insurance

  	
  91

  
	
  Section 9.7

  	
  Records and Accounts

  	
  91

  
	
  Section 9.8

  	
  Inspection

  	
  91

  
	
  Section 9.9

  	
  [Reserved]

  	
  91

  
	
  Section 9.10

  	
  Separateness Covenants

  	
  91

  
	
  Section 9.11

  	
  Security Documents

  	
  91

  
	
  Section 9.12

  	
  Project Documents

  	
  92

  
	
  Section 9.13

  	
  [Reserved.]

  	
  92

  
	
  Section 9.14

  	
  Hedging Requirements

  	
  92

  
	
  Section 9.15

  	
  Clipper Bankruptcy

  	
  93

  
	
  Section 9.16

  	
  Further Assurances

  	
  93

  



 


ii

















 


	
  Section 9.17

  	
  Mandatory Prepayment of Reserves

  	
  93

  
	
  Section 9.18

  	
  Use of Proceeds

  	
  94

  
	
  Section 9.19

  	
  FERC Approval

  	
  94

  
	
  Section 9.20

  	
  Accuracy of Budgets

  	
  94

  
	
  Section 9.21

  	
  Market-Based Rate Authority

  	
  94

  
	
  Section 9.22

  	
  Additional Collateral

  	
  94

  
	
  Section 9.23

  	
  [Reserved.]

  	
  95

  
	
  Section 9.24

  	
  Independent Director

  	
  95

  
	
  Section 9.25

  	
  Cohocton Holding Company

  	
  95

  
	
  Section 9.26

  	
  Stetson II Project

  	
  96

  
	
  Section 9.27

  	
  Post Stetson Prepayment Obligation to Sell

  	
  96

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  10 NEGATIVE COVENANTS

  	
  97

  
	
  Section 10.1

  	
  Restrictions on Indebtedness; Paying Premiums

  	
  97

  
	
  Section 10.2

  	
  Restriction on Liens

  	
  97

  
	
  Section 10.3

  	
  Investments

  	
  97

  
	
  Section 10.4

  	
  Dispositions of Assets

  	
  97

  
	
  Section 10.5

  	
  Reserved

  	
  98

  
	
  Section 10.6

  	
  Mergers, Consolidation, Etc.

  	
  98

  
	
  Section 10.7

  	
  Distributions

  	
  98

  
	
  Section 10.8

  	
  Sale and Leaseback

  	
  99

  
	
  Section 10.9

  	
  Transactions with Affiliates

  	
  99

  
	
  Section 10.10

  	
  Organizational Documents

  	
  99

  
	
  Section 10.11 

  	
  Amendment of Material Project Documents; Material Additional Project
  Documents; Stetson II Construction Period

  	
  100

  
	
  Section 10.12

  	
  Amendment of Major Project Indebtedness

  	
  101

  
	
  Section 10.13

  	
  Subsidiaries

  	
  101

  
	
  Section 10.14

  	
  Replacement of Operator

  	
  101

  
	
  Section 10.15

  	
  Abandonment of Project

  	
  102

  
	
  Section 10.16

  	
  Special Purpose Entity Status

  	
  102

  
	
  Section 10.17

  	
  Hedging Agreements

  	
  102

  
	
  Section 10.18

  	
  Administrative Services Agreement

  	
  102

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  11 EVENTS OF DEFAULT AND REMEDIES

  	
  103

  
	
  Section 11.1

  	
  Events of Default

  	
  103

  
	
  Section 11.2

  	
  Steel Winds Project and Stetson II Project Event of Default

  	
  108

  
	
  Section 11.3

  	
  Acceleration

  	
  109

  
	
  Section 11.4

  	
  Other Remedies

  	
  109

  
	
  Section 11.5

  	
  Distribution of Proceeds

  	
  110

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  12 THE AGENTS

  	
  110

  
	
  Section 12.1

  	
  Appointment and Authorization

  	
  110

  
	
  Section 12.2

  	
  Delegation of Duties

  	
  111

  
	
  Section 12.3

  	
  Liability of the Agents

  	
  111

  
	
  Section 12.4

  	
  Reliance by the Agents

  	
  112

  
	
  Section 12.5

  	
  Notice of Default

  	
  112

  
	
  Section 12.6

  	
  Credit Decision

  	
  113

  



 


iii

















 


	
  Section 12.7

  	
  Indemnification of Agents

  	
  113

  
	
  Section 12.8

  	
  Agents in Individual
  Capacities

  	
  114

  
	
  Section 12.9

  	
  Successor Agents

  	
  114

  
	
  Section 12.10

  	
  Registry

  	
  115

  
	
  Section 12.11

  	
  Force Majeure

  	
  115

  
	
  Section 12.12

  	
  Reliance by Administrative
  Agent

  	
  116

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  13 MISCELLANEOUS

  	
  116

  
	
  Section 13.1

  	
  Costs and Expenses

  	
  116

  
	
  Section 13.2

  	
  Indemnity

  	
  117

  
	
  Section 13.3

  	
  Notices

  	
  120

  
	
  Section 13.4

  	
  Benefit of Agreement

  	
  120

  
	
  Section 13.5

  	
  No Waiver; Remedies Cumulative

  	
  121

  
	
  Section 13.6

  	
  No Third Party Beneficiaries

  	
  121

  
	
  Section 13.7

  	
  Reinstatement

  	
  121

  
	
  Section 13.8

  	
  Accredited Investor

  	
  121

  
	
  Section 13.9

  	
  Counterparts

  	
  121

  
	
  Section 13.10

  	
  Amendment or Waiver

  	
  122

  
	
  Section 13.11

  	
  Assignments, Participations, etc.

  	
  122

  
	
  Section 13.12

  	
  Survival

  	
  125

  
	
  Section 13.13

  	
  WAIVER OF JURY TRIAL

  	
  125

  
	
  Section 13.14

  	
  Right of Set-off

  	
  125

  
	
  Section 13.15

  	
  Severability

  	
  125

  
	
  Section 13.16

  	
  Domicile of Loans

  	
  125

  
	
  Section 13.17

  	
  Limitation of Recourse

  	
  125

  
	
  Section 13.18

  	
  Governing Law; Submission to Jurisdiction

  	
  126

  
	
  Section 13.19

  	
  Complete Agreement

  	
  126

  
	
  Section 13.20

  	
  Confidentiality

  	
  126

  
	
  Section 13.21

  	
  Termination and Release of Liens

  	
  128

  
	
  Section 13.22

  	
  USA Patriot Act

  	
  128

  
	
  Section 13.23

  	
  Acknowledgements

  	
  128

  



 


iv

















 


LIST OF EXHIBITS AND SCHEDULES


 


	
  Exhibits

  	
   

  
	
   

  	
   

  
	
  Exhibit A

  	
  Form of Guarantee and
  Security Agreement

  
	
  Exhibit B

  	
  Form of Term Note

  
	
  Exhibit C

  	
  Form of Notice of
  Borrowing

  
	
  Exhibit D 

  	
  Form of Legal Opinion
  of CSSW Parent’s, Borrower’s and Steel Winds Project Company’s In-House
  Counsel

  
	
  Exhibit E

  	
  Form of Legal Opinion
  of Goodwin Procter LLP

  
	
  Exhibit F

  	
  Form of Assignment
  and Acceptance Agreement

  
	
  Exhibit G

  	
  Initial Closing Date
  Organizational Structure

  
	
  Exhibit H

  	
  Form of Undertaking
  Agreement

  
	
  Exhibit I

  	
  Form of Intercreditor
  Agreement

  
	
  Exhibit J

  	
  Form of Compliance
  Certificate

  
	
  Exhibit K

  	
  Stetson II Effective Date
  Organizational Structure

  
	
   

  	
   

  
	
  Schedules

  	
   

  
	
   

  	
   

  
	
  Schedule 1

  	
  Steel Winds Reorganization

  
	
  Schedule 1.1

  	
  Commitments

  
	
  Schedule 2

  	
  Stetson Transmission Line
  Reorganization

  
	
  Schedule 3

  	
  Stetson Reorganization

  
	
  Schedule 3.1(d) 

  	
  List of Material Project
  Documents for Cohocton Project and Stetson I Project

  
	
  Schedule 3.1(e) 

  	
  List of Major Project
  Indebtedness Documents for Cohocton Project and Stetson I Project

  
	
  Schedule 3.2(d)

  	
  List of Steel Winds
  Material Project Documents for Steel Winds Project

  
	
  Schedule 3.3(f)

  	
  List of Material Project
  Documents for Stetson II Project

  
	
  Schedule 5.2

  	
  Consents, Authorizations,
  Filings and Notices

  
	
  Schedule 5.4

  	
  Locations of Principal
  Place of Business

  
	
  Schedule 5.5

  	
  Subsidiaries

  
	
  Schedule 5.6

  	
  Taxes

  
	
  Schedule 5.7

  	
  Material Events

  
	
  Schedule 5.13

  	
  Employee Benefits

  
	
  Schedule 5.19

  	
  Permits, Licenses and
  Approvals

  
	
  Schedule 5.20

  	
  Financing Statements

  
	
  Schedule 5.21(b)

  	
  Regulatory Matters

  
	
  Schedule 10.1

  	
  Indebtedness

  
	
  Schedule 10.2

  	
  Liens

  
	
  Schedule 10.3

  	
  Investments

  
	
  Schedule 11.2(b)

  	
  Amendments to Original
  Credit Agreement

  



 


v

















 


AMENDED AND RESTATED CREDIT AGREEMENT


 


This AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of December 22,
2009, by and among (i) CSSW, LLC, a Delaware limited liability company, as
borrower (the “Borrower”), (ii) CSSW Holdings, LLC, a Delaware
limited liability company (the “CSSW Parent”), (iii) the Lenders
from time to time party hereto, (iv) Wells Fargo Bank, National
Association, as the administrative agent for the Lenders from time to time
party hereto (in such capacity, together with its successors in such capacity,
the “Administrative Agent”), and (v) Wells Fargo Bank, National
Association, as the collateral agent for the Secured Parties (in such capacity,
together with its successors in such capacity, the “Collateral Agent”).


 


This Amended and Restated Credit Agreement amends and restates in its
entirety the Credit Agreement, dated as of July 17, 2009, by and among the
Borrower, CSSW Parent, the Lenders from time to time party thereto, the
Administrative Agent and the Collateral Agent, as amended by that certain First
Amendment, Consent and Waiver (the “First Amendment, Consent and Waiver”),
dated as of September 16, 2009, among the Borrower, CSSW Parent and the
Initial Lenders (as so amended, the “Original Credit Agreement”).


 


Recitals


 


WHEREAS, the Initial Lenders have made the Initial Term Loans and the
Subsequent Term Loans to the Borrower on the terms and subject to the
conditions set forth in the Original Credit Agreement;


 


WHEREAS, pursuant to the terms and conditions in the First Amendment,
Consent and Waiver, the Borrower has formed the New Cohocton Holding Company,
as a direct Subsidiary of the Borrower and the Borrower owns directly 100% of
the Equity Interests of the New Cohocton Holding Company. After giving effect
to the reorganization contemplated by Section 9.25 in accordance
with the First Amendment, Consent and Waiver, the New Cohocton Holding Company
now owns 100% of the Equity Interests in the Cohocton Holding Company which
owns 100% of the Equity Interests in the Cohocton Project Companies;


 


WHEREAS, the Borrower, CSSW Parent and the Initial Lenders have agreed
that on the Stetson II Effective Date, the Borrower will form the Stetson
Intermediate Holding Company, as a direct Subsidiary of the Borrower and the
Borrower will own directly 100% of the Equity Interests of the Stetson
Intermediate Holding Company. After giving effect to the Stetson Reorganization
on the Stetson II Effective Date, the Stetson Intermediate Holding Company will
own 100% of the Equity Interests in the Stetson Holding Company which will own
100% of the Equity Interests in the Stetson I Project Company and the Stetson
II Project Company;


 


WHEREAS, in connection with the Stetson Reorganization, the Borrower
has requested that the Initial Lenders make certain additional term loans to
the Borrower and make certain other amendments related thereto; and


 


WHEREAS, the Initial Lenders have agreed to make such additional term
loans to the Borrower and such amendments on the terms and subject to the
conditions as set forth herein.


 














 


NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do hereby
agree as follows:


 


ARTICLE 1


 


DEFINITIONS AND RULES OF
INTERPRETATION


 


Section 1.1             Definitions.
In addition to the terms defined elsewhere in this Agreement, unless otherwise
specifically provided herein, the following terms, when used herein (including
in the preamble and recitals hereto) with initial capitalization, shall have
the following meanings for all purposes when used in this Agreement:


 


“Additional Project Document” shall mean any
Project Document entered into by or assigned to the Borrower or any of the
Borrower’s Subsidiaries with any other Person (including any Project Document
entered into in substitution for or in replacement of any Project Document that
has been terminated in accordance with its terms or otherwise) (a) with
respect to the Cohocton Project, the Stetson I Project and the Steel Winds
Project, subsequent to the Initial Closing Date and (b) with respect to
the Stetson II Project, subsequent to the Stetson II Effective Date.


 


“Administrative Agent” shall have the meaning
set forth for such term in the preamble hereto, and shall include any successor
administrative agent appointed pursuant to Section 12.9 hereof.


 


“Affiliate” shall mean, with respect to any
Person, (a) any other Person that is directly or indirectly controlled by,
under common control with or controls such Person or (b) any other Person
owning beneficially or controlling ten percent or more of the Voting Stock of
such Person. As used herein, the term “control” shall mean possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of a Person, whether through the ownership of partnership
interests or voting securities, by contract or otherwise.


 


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


 


“Agreement” shall mean this Amended and
Restated Credit Agreement.


 


“Agreement Change” shall have the meaning set
forth in Section 10.11(a) hereof.


 


“Amendment Measurement Date” shall mean the
effective date of an amendment, supplement or modification to the terms of the
Major Project Indebtedness in the manner described in Section 10.12.


 


“Assignee” shall have the meaning set forth
in Section 13.11 hereof.


 


“Assignment and Acceptance Agreement” shall
have the meaning set forth in Section 13.11 hereof.


 


7

















 


“Attorney Costs” shall mean all documented
and reasonable fees and disbursements of any law firm or other external
counsel.


 


“Authorized Officer” shall mean, (a) with
respect to any Person that is a corporation or a limited liability company, any
individual holding the position of chief executive officer, president or vice
president (or the equivalent thereof), chief financial officer, treasurer,
assistant treasurer, secretary or assistant secretary, (b) with respect to
any Person that is a partnership, any individual holding the position of chief
executive officer, president or vice president (or the equivalent thereof),
chief financial officer, treasurer, assistant treasurer, secretary or assistant
secretary of the general partner or managing partner of such Person and (c) with
respect to any other Person, the designated officers of such Person, in each
case whose name appears on a certificate of incumbency of such Person delivered
in accordance with this Agreement, as such certificate may be amended from time
to time.


 


“Bankruptcy Code” shall mean the United
States Federal Bankruptcy Code of 1978, as amended from time to time, and any
successor statute.


 


“Base Case Projections Model” shall mean,
with respect to each Project, a projection of operating results for such
Project over a period ending no sooner than twenty-five (25) years beyond the
commercial operation date of such Project, based on the Borrower’s good faith
estimates and assumptions, as of such commercial operation date, as to revenue
(using the P-50 annual energy estimate provided by AWS Truewind LLC) and
operating expenses over the forecast period.


 


“Borrower” shall have the meaning set forth
for such term in the preamble hereto.


 


“Borrower Credit Party” shall mean the
Borrower, CSSW Parent and each other grantor or obligor under the Security
Documents.


 


“Borrower Net Revenues” shall mean, for any
period, without duplication, the aggregate amount of (a) all Project
Revenues received during such period and (b) all other interest and other
income received by the Borrower and its Subsidiaries in cash during such period
less the aggregate amount of (i) all O&M Costs paid in cash
during such period, (ii) all payments of principal, interest, fees and
other amounts on account of Permitted Indebtedness actually made in cash from
Project Revenues during such period in accordance with the agreements governing
such Permitted Indebtedness (without duplication of any amounts deposited and
held in any Debt Service Account), (iii) all cash payments of taxes made
by the Borrower and its Subsidiaries during such period (without duplication of
any amounts deposited and held in any Tax Distribution Reserve), and (iv) with
respect to the Steel Winds Project, the cash portion of distributions of PTC
Benefits to tax equity investors pursuant to the terms of Qualified Tax Equity
Financings of the Steel Winds Project.


 


“Borrower Tax Distributions” shall have the
meaning set forth in Section 10.7(b) hereof.


 


“Business” shall have the meaning set forth
in Section 5.14(a) hereof.


 


8

















 


“Business Day” shall mean any day that is
neither a Saturday or Sunday nor a legal holiday or a day on which commercial
banks and the Federal Reserve Bank are authorized or required to be closed in
New York City, Minneapolis, Minnesota or in Toronto, Ontario, Canada.


 


“Calculation Period” shall mean, as of an
Interest Payment Date, the period from and including the Initial Closing Date
to but excluding the first Interest Payment Date, and thereafter, the period
from and including the prior Interest Payment Date to but excluding the next
Interest Payment Date.


 


“Call Premium” shall mean an amount equal to
the product of (a) the amount of outstanding principal of the Terms Loans
being prepaid in accordance with Section 4.1 or Section 4.2,
as applicable, and (b) the applicable premium as set forth below:


 


	
  Period of Prepayment

  	
   

  	
  Call
  Premium

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  During the period commencing on the Initial Closing Date and ending
  on the second anniversary of the Initial Closing Date

  	
   

  	
  20

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  During the period commencing after the second anniversary of the
  Initial Closing Date and ending on the third anniversary of the Initial
  Closing Date

  	
   

  	
  15

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  During the period commencing after the third anniversary of the
  Initial Closing Date and ending on the fourth anniversary of the Initial
  Closing Date

  	
   

  	
  10

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Thereafter

  	
   

  	
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“Capital Adequacy Regulation” shall mean any
guideline, request or directive of any central bank or other Governmental
Authority, or any other Requirement of Law, whether or not having the force of
law, in each case regarding capital adequacy of any bank or of any corporation
controlling a bank.


 


“Capital Expenditure” shall mean, for any
period, with respect to any Person, the aggregate expenditures or Indebtedness
incurred by such Person and its Consolidated Subsidiaries for the purchase or
lease (pursuant to a capital lease) of fixed or capital assets or additions to
equipment (including replacements, capitalized repairs and improvements) that
are required to be capitalized under GAAP on the consolidated balance sheet of
such Person and its Consolidated Subsidiaries.


 


“Cash Equivalents” shall mean Investments
held by the Borrower and its Subsidiaries as set forth in clauses (a) through
(f) of the definition of “Permitted Investments”.


 


9

















 


“Cash-Funded Reserve Amounts” shall mean,
with respect to a Calculation Period, the Reserve Amounts for a Project that
have been funded with Borrower Net Revenues received during the applicable
Calculation Period.


 


“Cash Interest” shall have the meaning set
forth in Section 2.4(a) hereof.


 


“Change of Control” shall mean an event or
any series of events by which (a) the Parent ceases to have the power,
directly or indirectly, to vote or direct the voting of membership interests
carrying the voting rights to elect the majority of the board of managers or
directors of CSSW Parent, (b) the Parent ceases to own of record and
beneficially, directly or indirectly, at least 51% of each class of Equity
Interests of the CSSW Parent, (c) CSSW Parent ceases to own and control of
record and beneficially, directly, 100% of each class of outstanding Equity
Interests of the Borrower, (d) the Borrower ceases to own and control, of
record and beneficially, directly, 100% of each class of outstanding Equity
Interests of (i) the Stetson Intermediate Holding Company, (ii) New
York Wind III and (iii) the New Cohocton Holding Company, (e) the
Borrower ceases to own and control, of record and beneficially, directly or
indirectly, 100% of each class of outstanding Equity Interests of the Cohocton
Holding Company and each of the Cohocton Project Companies, (f) the
Borrower ceases to own and control, of record and beneficially, directly or
indirectly, 100% of each class of outstanding Equity Interests in the Stetson
Holding Company, the Stetson I Project Company and the Stetson II Project
Company, (g) the Borrower ceases to own and control of record and
beneficially, directly or indirectly, 100% of each class of outstanding Equity
Interests in the Steel Winds Holding Company and the Steel Winds Project
Company or (h) New York Wind III ceases to own and control of record and
beneficially, directly, 100% of each class of outstanding Equity Interests in
the Steel Winds Holding Company and, subject only to the rights of Steel Winds
LLC, a Delaware limited liability company, to receive “Company Interests” as
set forth in and as defined in the Steel Winds Project Company LLC Agreement as
in effect on the date hereof, the Steel Winds Holding Company ceases to own and
control, of record and beneficially, directly, 100% of each class of
outstanding Equity Interests of the Steel Winds Project Company; provided,
however, that if any of the events described in clauses (g) and (h) above
should occur as a result of a Qualified Tax Equity Financing, such event shall
not constitute a “Change of Control” hereunder.


 


“Claim” shall have the meaning set forth in
the definition of “Environmental Claim.”


 


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


 


“Closing Date” shall mean, as to the Initial
Term Loans, the Initial Closing Date, as to the Subsequent Term Loans, the
Subsequent Closing Date, and as to the Stetson II Term Loans, the Stetson II
Funding Date.


 


“Code” shall mean the Internal Revenue Code
of 1986, as amended from time to time, and regulations promulgated and rulings
issued thereunder. Section references to


 


10

















 


the Code are as in effect at the date hereof and any subsequent
provisions of the Code, amendatory thereof, supplemental thereto or substituted
therefor.


 


“Cohocton Companies” shall mean (a) the
New Cohocton Holding Company, (b) the Cohocton Holding Company and (c) the
Cohocton Project Companies; provided that any Subsidiaries of the
foregoing Persons described in clauses (a), (b) and (c) created or
formed after the Initial Closing Date shall for all purposes of the Loan
Documents be considered Cohocton Companies.


 


“Cohocton Debt-Funded Reserve Amounts” shall
mean the Reserve Amounts (other than Reserve Amounts permitted to be funded
solely with Project Revenues and/or Equity Contributions) for the Cohocton
Project that have been funded with Indebtedness of the Cohocton Project.


 


“Cohocton Holding Company” shall mean New
York Wind, LLC, a Delaware limited liability company.


 


“Cohocton Host Community Agreement” shall
mean, collectively, that certain Host Community Agreement, dated as of August 10,
2007, by and between Canandaigua Power Partners, LLC and the Town of Cohocton,
and that certain Host Community Agreement, dated as of August 10, 2007, by
and between Canandaigua Power Partners II, LLC and the Town of Cohocton, each
as amended from time to time.


 


“Cohocton Major Indebtedness Prepayment Trigger”
shall mean, as applicable, the Initial Cohocton Major Indebtedness Prepayment
Trigger or the Second Cohocton Major Indebtedness Prepayment Trigger.


 


“Cohocton Mini-Perm Financing” shall mean the
transactions contemplated in and Indebtedness incurred pursuant to, the
Financing Agreement, dated as of March 30, 2009, among the Cohocton
Holding Company, HSHN, as arranger, administrative agent and security agent,
Norddeutsche Landesbank Girozentrale, as arranger and the lenders parties
thereto, as amended by that certain Government Grant and Amendment, dated as of
November 12, 2009.


 


“Cohocton Permitted Indebtedness” shall mean
the following Indebtedness incurred by the Cohocton Companies in the aggregate
with respect to the Cohocton Project:


 


1.             Major
Project Indebtedness (which includes, as of the Initial Closing Date, the
Cohocton Mini-Perm Financing) the aggregate principal amount of which, at any
time, does not exceed:


 


(a)           Until
December 31, 2010, $95,500,000 plus the Cohocton Debt-Funded Reserve
Amounts that are outstanding during any period subject to compliance with Section 9.17,
adjusted as follows (such amount, the “Initial Cohocton Major Indebtedness
Prepayment Trigger”):


 


11

















 


(i)            Upon
the receipt by any Cohocton Company of Net Cash Proceeds of any ITC Grant in
respect of the Cohocton Project, the Initial Cohocton Major Indebtedness
Prepayment Trigger shall be reduced by the amount of such Net Cash Proceeds, on
a dollar for dollar basis, in an amount of reduction not to exceed $14,500,000;
and


 


(ii)           With
respect to any Refinancing Indebtedness, to the extent that the Yield on such
Refinancing Indebtedness as of the applicable Yield Measurement Date exceeds
the Yield Cap, the Initial Cohocton Major Indebtedness Prepayment Trigger shall
be reduced in increments of $3,333,333 for each full 50 basis points by which
such Yield exceeds the Yield Cap.


 


(b)           On
and after January 1, 2011, $81,000,000 plus the Cohocton Debt-Funded
Reserve Amounts that are outstanding during any period subject to compliance
with Section 9.17, adjusted as follows (such amount, the “Second
Cohocton Major Indebtedness Prepayment Trigger”):


 


(i)            The
Second Cohocton Major Indebtedness Prepayment Trigger shall be reduced from
time to time by any payments, repayments, prepayments and/or redemptions of
principal made from time to time on and after January 1, 2011 in respect
of such Major Project Indebtedness; provided, however, that
payments, repayments, prepayments and/or redemptions of principal resulting
from the incurrence of any Refinancing Indebtedness shall not cause any such
reductions; and


 


(ii)           With
respect to any Refinancing Indebtedness, to the extent that the Yield on such
Refinancing Indebtedness as of the applicable Yield Measurement Date exceeds
the Yield Cap, the Second Cohocton Major Indebtedness Prepayment Trigger shall
be reduced in increments of $3,333,333 for each full 50 basis points by which
such Yield exceeds the Yield Cap.


 


2.             Excess
Cohocton Permitted Project Indebtedness so long as the mandatory prepayment
applicable thereto has been made pursuant to Section 4.1(b);


 


3.                                       LC
Indebtedness;


 


4.             Other
Permitted Indebtedness; and


 


5.             the
Obligations.


 


“Cohocton Project” shall mean the 125 MW wind
powered electrical generating facility owned by the Cohocton Project Companies
located in Steuben County, New York.


 


12

















 


“Cohocton Project Companies” shall mean, as
applicable, Canandaigua Power Partners, LLC, a Delaware limited liability
company, and Canandaigua Power Partners II, LLC, a Delaware limited liability
company.


 


“Cohocton Reserve Line” shall mean the sum of
(a) at the Borrower’s option, either (i) twelve months of interest
reserves that are required to be, and actually are, held in reserve accounts
(excluding Debt Service Accounts) pursuant to the applicable Major Project
Indebtedness Documents or (ii) if repayment for such Major Project
Indebtedness is on an amortization schedule of not less than 10 years, six
months of principal, interest and other debt service reserves that are required
to be, and actually are, held in reserve accounts (excluding Debt Service
Accounts) pursuant to applicable Major Project Indebtedness Documents, (b) an
amount funded solely with Project Revenues and/or Equity Contributions not to
exceed $3,200,000 in respect of punch list reserves that is required to be, and
is currently, held pursuant to the Cohocton Mini-Perm Financing as in existence
on the Initial Closing Date, (c) an amount not to exceed $4,000,000 in the
aggregate for any other non-debt service related reserves that are required to
be, and actually are, held pursuant to applicable Major Project Indebtedness
Documents, and (d) amounts funded solely with Project Revenues and/or
Equity Contributions that are required to be, and actually are, held in a Debt
Service Account.


 


“Collateral” shall mean all Property that in
accordance with the Security Documents is intended to be subject to any Lien in
favor of the Collateral Agent and/or the Secured Parties.


 


“Collateral Agent” shall have the meaning set
forth for such term in the preamble hereto, and shall include any successor
collateral agent appointed pursuant to Section 12.9 hereof.


 


“Committed Capacity” shall mean the aggregate
amount of capacity (measured in MWhs) for which a firm purchase obligation
exists under a Permitted Power Document.


 


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


 


“Compliance Certificate” shall mean a
certificate duly executed by a Financial Officer of the Borrower substantially
in the form of Exhibit J.


 


13

















 


“Consolidated Subsidiary” shall mean each
Subsidiary of a Person (whether now existing or hereafter created) the
financial statements of which shall be (or should have been) consolidated with
the financial statements of such Person in accordance with GAAP and with
appropriate deductions for minority interests in Subsidiaries, as required by
GAAP. Unless otherwise indicated, each reference to the term “Consolidated
Subsidiary” shall mean a Subsidiary consolidated into the Borrower and shall
exclude, except with respect to the Historical Financial Statements,
Prattsburgh.


 


“Contingent Obligations” shall mean, as to
any Person, any agreement, obligation, undertaking or arrangement by which such
Person assures, guarantees, endorses, contingently agrees to purchase or
provides funds for the payment of, or otherwise becomes or is contingently
liable upon, or incurs any obligation of, any Indebtedness, leases, dividends
or other obligations (“primary obligations”) of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, including, without
limitation, any obligation of such Person, whether or not contingent, (a) to
purchase any such primary obligation or any property constituting direct or
indirect security therefor, (b) to advance or supply funds (i) for
the purchase or payment of any such primary obligation or (ii) to maintain
working capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor, including, without
limitation, any so-called “keepwell” or “makewell” agreement, (c) to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation, (d) otherwise to assure,
indemnify or to hold harmless the owner of such primary obligation against loss
in respect thereof, (e) with respect to any letter of credit of such
Person or as to which that Person is otherwise liable for reimbursement of
drawings, or (f) with respect to any hedging agreement; provided, however,
that “Contingent Obligation” shall not include endorsements of instruments for
deposit or collection in the Ordinary Course of Business. The amount of any
Contingent Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Contingent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person in good faith.


 


“Contractual Obligation” shall mean, as to
any Person, any provision of any security issued by such Person or of any
material agreement, instrument or other undertaking to which such Person is a
party or by which it or any of its material property is bound.


 


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


 


“Debt-Funded Reserve Amounts” shall mean,
collectively, the Cohocton Debt-Funded Reserve Amount, the Steel Winds
Debt-Funded Reserve Amount and the Stetson Debt-Funded Reserve Amount.


 


“Debt Service Account” shall mean an account
into which amounts are required to be deposited for payment of, and are
deposited in amounts not to exceed, the next


 


14

















 


scheduled payment of principal and interest pursuant to applicable
Major Project Indebtedness Documents.


 


“Debtor Relief Law” shall mean the Bankruptcy
Code and all other Requirements of Law relating to liquidation,
conservatorship, bankruptcy, assignment for the benefit of creditors,
moratorium, rearrangement, receivership, insolvency, reorganization, windingup,
composition or readjustment of debts or similar debtor relief laws of the
United States or other applicable jurisdictions from time to time in effect and
affecting the rights of creditors generally.


 


“Default” shall mean an Event of Default or
an event or condition that with the passage of time or giving of notice, or
both, would become an Event of Default.


 


“Default Rate” shall mean the Interest Rate
in effect from time to time plus four percent (4%) per annum.


 


“Distributable ITC Amount” shall mean (a) with
respect to the Cohocton Project, an amount (if positive) equal to (i) the
aggregate Net Cash Proceeds of all ITC Grants received with respect to the
Cohocton Project, less (ii) the greater of the amount of such ITC Grant
that is required to be applied toward payment of Major Project Indebtedness of
the Cohocton Project and $14,500,000, less (iii) the amount of previous
distributions of Distributable ITC Amounts with respect to the Cohocton
Project, (b) with respect to the Stetson I Project, an amount (if
positive) equal to the (i) aggregate Net Cash Proceeds of all ITC Grants
received with respect to the Stetson I Project, less (ii) the greater of
the amount of such ITC Grant that is required to be applied toward payment of
Major Project Indebtedness of the Stetson I Project and $18,000,000, less (iii) the
amount of previous distributions of Distributable ITC Amounts with respect to
the Stetson I Project and (c) with respect to the Stetson II Project, an
amount (if positive) equal to (i) the aggregate Net Cash Proceeds of all
ITC Grants received with respect to the Stetson II Project, less (ii) the
greater of the amount of such ITC Grant that is required to be applied toward
payment of Major Project Indebtedness of the Stetson II Project and
$19,000,000, less (iii) the amount of previous distributions of
Distributable ITC Amounts with respect to the Stetson II Project.


 


“Distribution” shall mean as to any Person, (a) the
declaration or payment of any dividend on or in respect of any shares of any
class of capital stock (or other Equity Interests) of such Person, other than
dividends payable solely in shares of common stock (or other common Equity
Interests) of such Person, (b) the purchase, redemption, defeasance or
other acquisition or retirement of any shares of any class of capital stock (or
other Equity Interests) of such Person, either directly or indirectly, whether
in cash or Property or in any shares of such Person, (c) any other
distribution on or in respect of any shares of any class of capital stock (or
other Equity Interests) of such Person, either directly or indirectly, whether
in cash or Property or in any shares of such Person, and (d) any payment
on account of, any setting apart or allocating any sum for the payment of, any
dividend or distribution, or for the purchase, redemption, defeasance,
retirement or other acquisition of, any shares of capital stock (or other
Equity Interests) of such Person, either directly or indirectly, whether in
cash or Property or in any shares of such Person;


 


15

















 


provided that any distribution of PTC Benefits to a tax
equity investor pursuant to the terms of a Qualified Tax Equity Financing with
respect to the Steel Winds Project permitted hereunder shall not be considered
a “Distribution” hereunder.


 


“Distribution Reserve Account” shall mean an
account into which amounts are required by the terms of Major Project
Indebtedness to be held prior to distribution to the upstream equity owners but
after application to all prior provisions of the account waterfall under the
terms of such Major Project Indebtedness.


 


“Dollar” or “$” shall mean United
States dollars.


 


“Eligible Assignees” shall mean any Person
that is (a) a commercial bank, insurance company, investment or mutual
fund or other Person that is an “accredited investor” (as defined in Regulation
D of the Securities Act of 1933, as amended) and (b) not in the business
of developing, owning, constructing or operating wind farms in the United
States, or manufacturing or constructing wind turbines in the United States, or
any Affiliate of such a Person, except that a financial services Affiliate
shall qualify as an Eligible Assignee under this clause (b) if such
financial services Affiliate has not, and does not at the time of any
assignment to such financial services Affiliate, engage in or control any
business described in the foregoing provision of this clause (b).


 


“Eligible Reinvestment” shall mean with
respect to an Event of Loss, a reinvestment to replace, repair, restore or
rebuild the Property subject to such Event of Loss.


 


“Enforcement Action” shall mean any action or
proceeding against (a) CSSW Parent, (b) the Borrower, (c) from
the Subsequent Closing Date, to the extent grantors under the Security
Documents, until the Steel Winds Project Collateral is released pursuant to the
Security Documents, the Steel Winds Holding Company and the Steel Winds Project
Company or, (d) all or any part of the Collateral, in each case under the
foregoing clauses (a) through (d), taken for the purpose of (i) enforcing
the rights of any Secured Party under or in respect of the Collateral or the
Security Documents, including, without limitation, the initiation of any action
in any court or before any administrative agency or governmental tribunal to
enforce such rights, and any action to exercise any rights provided in this
Agreement or the Security Documents and (ii) adjudicating or seeking a
judgment on a claim.


 


“Environmental Claim” shall mean any and all
obligations, liabilities, losses, administrative, regulatory or judicial
actions, suits, demands, decrees, claims, Liens, judgments, warning notices,
notices of noncompliance or violation, investigations, inquiries, requests for
information, 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, attorneys’ or
consultants’ fees, arising under or relating in any way to any Environmental
Law or any Permit or Governmental Approval required by or issued under any such
Environmental Law (hereafter as used in this definition, “Claims”),
including (a) any and all Claims by Governmental Authorities for
enforcement, cleanup, removal, response, remedial or other


 


16














 


actions or damages arising under or pursuant to any applicable
Environmental Law, and (b) any and all Claims by any third party seeking
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from or relating to hazardous substances or arising
from alleged injury or threat of injury to health, safety or the environment
(including natural resources, plants, animals and their habitats).


 


“Environmental Law” shall mean any
Requirement of Law or regulation pertaining to the protection of the
environment (including natural resources, plants, animals and their habitats),
or public health, or to the storage, handling, use or generation of hazardous
substances in or at the workplace, or to worker health or safety, whether now
existing or hereafter enacted.


 


“EPC Contract” shall mean that certain
Stetson II Wind Power Project Construction Contract, dated as of September 30,
2009, between Stetson Wind II, LLC, and Reed & Reed, Inc., as
modified by that certain Limited Notice to Proceed, dated as of September 30,
2009, and as further modified by that certain Second Limited Notice to Proceed
and Amendment to Contract, dated as of November 24, 2009.


 


“Equity Contribution” shall mean funds
contributed to the Borrower (through CSSW Parent) by CSSW Parent’s direct or
indirect equity holders.


 


“Equity Documents” shall mean the
Subscription Agreement, dated as of the Initial Closing Date, by and between
the Parent, PIP3PX FirstWind LLC Ltd. and PIP3GV FirstWind LLC Ltd., and the
Fifth Amended and Restated Limited Liability Agreement of the Parent.


 


“Equity Interests” shall mean, with respect
to any Person, all of the shares, interests, membership interests,
participations, or other equivalents (however designated) of such Person’s
capital stock, including all classes of common or preferred capital stock, or
partnership, limited liability company or other equity, ownership or profit
interests at any time outstanding, including, without limitation, the right to
share in profits and losses, the right to receive distributions of cash and
other property, and the right to receive allocations of items of income, gain,
loss, deduction and credit and similar items from such Person, whether or not
such interests include voting or similar rights entitling the holder thereof to
exercise control over such Person, all of the warrants, options or other rights
for the purchase or acquisition from such Person of shares of capital stock of
(or other interests in) such Person, all of the securities convertible into or
exchangeable for shares of capital stock of (or other interests in) such Person
or warrants, rights or options for the purchase or acquisition from such Person
of such shares (or such other interests) (but excluding any debt security that
is convertible into or exchangeable for such shares), and all of the other
ownership or profit interests in such Person (including partnership, member or
trust interests therein), whether voting or nonvoting, and whether or not such
shares, warrants, options, rights or other interests are outstanding on any
date of determination.


 


“ERISA” shall mean the Employee Retirement
Income Security Act of 1974, as amended from time to time.


 


17

















 


“ERISA Affiliate” shall mean any trade or
business (whether or not incorporated) that, together with any of CSSW Parent,
the Borrower or the Borrower’s Subsidiaries, is treated as a single employer
under Section 414 of the Code.


 


“ERISA Event” shall mean: (a) any
Reportable Event, (b) the existence with respect to any Plan of a
non-exempt Prohibited Transaction that results in liability to the CSSW Parent,
the Borrower, or any of the Borrower’s Subsidiaries, (c) any failure by
any Pension Plan to satisfy the minimum funding standards (within the meaning
of Section 412 of the Code or Section 302 of ERISA) applicable to
such Pension Plan, whether or not waived, (d) the filing pursuant to Section 412
of the Code or Section 303 of ERISA of an application for a waiver of the
minimum funding standard with respect to any Pension Plan, the failure to make
by its due date a required installment under Section 412(m) of the
Code with respect to any Pension Plan or the failure by any of CSSW Parent, the
Borrower or the Borrower’s Subsidiaries or any of its ERISA Affiliates to make
any required contribution to a Multiemployer Plan, (e) the incurrence by
any of CSSW Parent, the Borrower or the Borrower’s Subsidiaries or any of its
ERISA Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Pension Plan, including but not limited to the imposition of
any lien in favor of the PBGC or any Pension Plan, (f) a determination
that any Pension Plan is, or is expected to be, in “at risk” status (within the
meaning of Title IV of ERISA), (g) the receipt by any of CSSW Parent, the
Borrower or the Borrower’s Subsidiaries or any of its ERISA Affiliates from the
PBGC or a plan administrator of any notice relating to an intention to
terminate any Pension Plan or to appoint a trustee to administer any Pension
Plan under Section 4042 of ERISA, (h) the incurrence by any of CSSW
Parent, the Borrower or the Borrower’s Subsidiaries or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Pension Plan or Multiemployer Plan, or (i) the receipt
by any of CSSW Parent, the Borrower or the Borrower’s Subsidiaries or any of
its ERISA Affiliates of any notice, or the receipt by any Multiemployer Plan
from CSSW Parent, the Borrower or the Borrower’s Subsidiaries or any ERISA
Affiliate of any notice, concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent, in
reorganization or in endangered or critical status, within the meaning of Section 432
of the Code or Section 305 or Title IV of ERISA.


 


“Event of Abandonment” shall have the meaning
set forth in Section 10.15 hereof.


 


“Event of Default” shall have the meaning set
forth in Section 11.1 hereof.


 


“Event of Eminent Domain” shall mean (a) any
condemnation, nationalization, seizure or expropriation by a Governmental
Authority of all or a material portion of any Project or the Property or the
assets of CSSW Parent, the Borrower or of the Borrower’s Subsidiaries, (b) any
assumption by a Governmental Authority of control of any Project or a material
portion of the Property, assets or business operations of CSSW Parent, the
Borrower or any of the Borrower’s Subsidiaries, (c) any taking of any
action by a Governmental Authority for the dissolution or disestablishment of
CSSW Parent, the Borrower or any of the Borrower’s Subsidiaries or (d) any
taking of any action by a


 


18

















 


Governmental Authority that would prevent CSSW Parent, the Borrower or
any of the Borrower’s Subsidiaries from carrying on a material portion of its
business or operations.


 


“Event of Loss” shall mean any fire,
explosion, accident, drought, storm, hail, earthquake, embargo, act of God or
of the public enemy, other loss, damage, casualty or destruction event (whether
or not covered by insurance) or an Event of Eminent Domain.


 


“Excess Cash” shall mean, with respect to the
Borrower and its Subsidiaries, an amount, without duplication, equal to
Borrower Net Revenues received during the applicable Calculation Period less,
to the extent funded with Borrower Net Revenues received during the applicable
Calculation Period, subject to compliance with Section 9.17, the
Cash-Funded Reserve Amounts and cash amounts paid in respect of Borrower Tax
Distributions (without duplication of any Tax Distribution Reserves) during the
applicable Calculation Period.


 


“Excess Cohocton Permitted Project Indebtedness”
shall mean the aggregate amount of Major Project Indebtedness of the Cohocton Companies
that exceeds the then applicable Cohocton Major Indebtedness Prepayment
Trigger.


 


“Excess Permitted Project Indebtedness” shall
mean, collectively, Excess Cohocton Permitted Project Indebtedness and Excess
Stetson Permitted Project Indebtedness.


 


“Excess Reserves” shall mean, with respect to
each Calculation Period, the amount by which the aggregate Reserve Amounts
exceed the Reserve Cap.


 


“Excess Stetson Permitted Project Indebtedness”
shall mean the aggregate amount of Major Project Indebtedness of the Stetson
Companies that exceeds the then applicable Stetson Major Indebtedness
Prepayment Trigger.


 


“Excluded Taxes” shall mean (a) income,
profits, franchise, or similar Taxes imposed on (or measured by) any Lender’s
net income, net profits or capital imposed on such Lender as a result of a
present, former or future connection between such Lender and the jurisdiction
of the taxing authority imposing such tax or any political subdivision or
taxing authority thereof or therein (other than a connection between such
Lender and the jurisdiction of the taxing authority arising solely as a result
of its execution and the delivery of any Loan Document or its exercise of its
rights or performance of its obligations thereunder), (b) any branch
profits Taxes imposed by the United States or any similar Tax imposed by any
other jurisdiction in which the Borrower is incorporated or formed, (c) any
withholding Tax that is imposed on amounts payable to a Lender at the time the
Lender (including an assignee of a Lender) becomes a party to this Agreement
(or designates a new lending office) or is attributable to a Lender’s (or its
assignee’s) failure to comply with Section 4.5(f) hereof,
except to the extent that (i) the Lender (or its assignor, if any) was
entitled, at the time of designation of a new lending office (or assignment),
to receive additional amounts from the Borrower with respect to such
withholding Tax pursuant to Section 4.5(a) or (ii) the
assignment, acquisition, designation of a new lending office or the appointment
of a successor Agent occurs as a result of the


 


19

















 


Borrower’s request pursuant to Section 4.5(h), and (d) Taxes
imposed as a result of the Administrative Agent’s or such Lender’s gross
negligence or willful misconduct (it being understood and agreed, for the
avoidance of doubt, that any withholding tax imposed on a Lender (or assignee
of a Lender) as a result of a change in law occurring after the time such
Lender (or assignee of a Lender) became a party to this Agreement (or
designates a new lending office) shall not be an Excluded Tax).


 


“Exempt Wholesale Generator” shall mean an
“exempt wholesale generator” under PUHCA 2005.


 


“FERC” shall have the meaning set forth in Section 5.21(a) hereof.


 


“Financial Officer” shall mean the chief
financial officer, treasurer or assistant treasurer of any Person.


 


“First Amendment, Consent and Waiver” shall
have the meaning set forth in the preamble hereof.


 


“Fiscal Quarter” shall mean during each
Fiscal Year each quarter ending on March 31, June 30, September 30
or December 31.


 


“Fiscal Year” shall mean the fiscal year of
the Borrower and its Consolidated Subsidiaries ending on December 31 of
each calendar year.


 


“Foreign Benefit Arrangement” shall mean any
employee benefit arrangement mandated by non-US law that is maintained or
contributed to by any of CSSW Parent, the Borrower or the Borrower’s
Subsidiaries or any of their respective Affiliates or ERISA Affiliates.


 


“Foreign Lender” shall have the meaning set
forth in Section 4.5(f)(i) hereof.


 


“Foreign Plan” shall mean each employee
benefit plan (within the meaning of Section 3(3) of ERISA, whether or
not subject to ERISA) that is not subject to U.S. law and is maintained or
contributed to by any of CSSW Parent, the Borrower or the Borrower’s
Subsidiaries or any of their respective Affiliates or ERISA Affiliates.


 


“FPA” shall have the meaning set forth in Section 5.21(a) hereof.


 


“generally accepted accounting principles” or
“GAAP” shall mean accounting principles generally accepted in the United
States of America as defined by controlling pronouncements of the Financial
Accounting Standards Board, as from time to time in effect.


 


“Good Faith Contest” shall mean the contest
of an item if (a) the item is diligently being contested in good faith
and, when applicable, by appropriate proceedings timely instituted, (b) adequate
reserves are established in accordance with GAAP with respect to the contested
item (if and to the extent GAAP requires the establishment of such reserves) or
secured by a bond, and (c) the failure to pay or comply with the contested


 


20

















 


item during the period of such contest would not reasonably be expected
to result in a Material Adverse Effect.


 


“Governmental Approval” shall mean any
authorization, consent, approval, license, ruling, Permit, tariff, rate,
certification, exemption, variance, claim, Judgment, publication, notice,
declarations, or regulation or registration with, of, by or to any Governmental
Authority.


 


“Governmental Authority” shall mean any
nation or government, any state, local or other political subdivision thereof,
any agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative functions of or pertaining to government, any securities
exchange and any self-regulatory organization.


 


“Guarantee and Security Agreement” shall have
the meaning set forth in the definition of “Security Documents”.


 


“Hazardous Substances” shall mean any
gasoline or petroleum (including crude oil or any fraction thereof) or
petroleum products, polychlorinated biphenyls, urea-formaldehyde insulation,
asbestos, toxic molds, pollutants, contaminants, radioactivity and any other
substance that is regulated pursuant to or could give rise to liability under
any Environmental Law.


 


“Hedging Agreement” shall mean any agreement
with respect to any interest rate swap, cap, collar, forward, future or derivative
transaction or option or similar agreement involving, or settled by reference
to, one or more rates, currencies, commodities, equity or debt instruments or
securities, or economic, financial or pricing indices or measures of economic,
financial or pricing risk or value or any similar transaction or any
combination of these transactions; provided that no phantom stock or
similar plan providing for payments only on account of services provided by
current or former directors, officers, employees or consultants of CSSW Parent,
the Borrower or the Borrower’s Subsidiaries shall be a Hedging Agreement.


 


“Historical Financial Statements” shall mean,
(a) as of the Initial Closing Date, (i) the audited financial
statements of New York Wind II and its Consolidated Subsidiaries for the 2008
Fiscal Year, consisting of balance sheets and the related consolidated
statements of income, members’ equity and cash flows for such Fiscal Year, (ii) the
unaudited financial statements of each of the Cohocton Holding Company and the
Stetson I Project Company for the 2008 Fiscal Year, consisting of balance
sheets and the related statements of income, members’ equity and cash flows for
such Fiscal Year and (iii) the unaudited financial statements of New York
Wind II and its Consolidated Subsidiaries, the Cohocton Holding Company and the
Stetson I Project Company for the Fiscal Quarter ended March 31, 2009,
each consisting of a balance sheet and the related statements of income,
members’ equity and cash flows for the three month period ending on such date, (b) as
of the Subsequent Closing Date, the unaudited financial statements of the Steel
Winds Project Company for the 2007 and 2008 Fiscal Years and the Fiscal Quarter
ended March 31, 2009 and each other Fiscal Quarter of the Steel Winds
Project


 


21

















 


Company for the 2009 Fiscal Year ending at least 60 days prior to the
Subsequent Closing Date, consisting of balance sheets and the related
statements of income, members’ equity and cash flows for such Fiscal Years and
such Fiscal Quarter and (c) as of the Stetson II Effective Date, the
unaudited financial statements of the Stetson Holding Company, Stetson I
Project Company and Stetson II Project Company for the 2008 and 2009 Fiscal
Years and each other Fiscal Quarter for the 2010 Fiscal Year ending at least 60
days prior to the Stetson II Effective Date consisting of balance sheets and
the related statements of income, members’ equity and cash flows for such
Fiscal Years and such Fiscal Quarters, in the case of all such financial
statements delivered under clauses (a), (b) and (c), certified by a
Financial Officer of the Person delivering such Financial Statements that they
fairly present, in all material respects, the financial condition of such
Person and, if applicable, its Consolidated Subsidiaries as at the dates
indicated and the results of their operations and their cash flows for the
periods indicated, subject, in the case of unaudited financial statements, to
changes resulting from audit and normal year end adjustments and the absence of
footnotes.


 


“Holdings Lien Indebtedness” shall have the
meaning set forth in the Intercreditor Agreement.


 


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


 


“HSHN Parent/Turbine Facilities” shall mean,
collectively, (a) that certain Second Amended and Restated Guaranty, dated
as of July 17, 2009, by Parent in favor of HSHN, (b) that certain
Fourth Amended and Restated Promissory Note, dated as of July 17, 2009,
between First Wind Acquisition, LLC and HSHN, (c) that certain Second
Amended and Restated Promissory Note, dated as of July 17, 2009, between
First Wind Acquisition IV, LLC and HSHN, and (d) that certain Letter of
Credit and Reimbursement Agreement, dated as of July 17, 2009, between
Parent and HSHN (each as amended, supplemented, amended and restated or
otherwise modified from time to time).


 


“HSHN Stetson I Amendments” shall mean,
collectively, (a) the Financing Agreement, dated as of the Initial Closing
Date, by and among the Stetson I Project Company, HSHN, and the lenders party
thereto and the Collateral Documents (as defined therein), and (b) the
Termination and Release, dated as of the Initial Closing Date, by and among
HSHN, the Stetson I Project Company and First Wind Acquisition, LLC.


 


“Indebtedness” of any Person shall mean,
without duplication: (a) all indebtedness for borrowed money, (b) all
earn-out and other obligations issued, undertaken or assumed as the deferred
purchase price of Property or services (other than unsecured trade payables
incurred in the Ordinary Course of Business and so long as such trade payables
are payable within 90 days after the date the respective Property is delivered
or services rendered and are not overdue), (c) the face amount of all
letters of credit (and, without duplication, all drafts drawn and reimbursement
obligations with respect thereto), acceptances, surety bonds and other similar
instruments issued for the account of such Person, (d) all obligations
evidenced by notes, bonds, debentures or similar instruments, (e) all
indebtedness created or arising under any conditional sale or other title
retention agreement, or incurred as financing, in either case with respect to


 


22

















 


Property
acquired by such Person, (f) all capital lease obligations, (g) the
principal balance outstanding under any synthetic lease, off-balance sheet loan
or similar off balance sheet financing products, (h) the liquidation value
of all redeemable preferred Equity Interests, (i) all obligations under
Hedging Agreements, (j) all Contingent Obligations in respect of
indebtedness or obligations of others of the kinds referred to in clauses (a) through
(i) above; and (k) all obligations of the kind referred to in clauses
(a) through (j) above secured by (or for which the holder of such
obligation has an existing right, contingent or otherwise, to be secured by)
any Lien upon Property owned by such Person, even though such Person has not
assumed or become liable for the payment of such obligation. The Indebtedness
of any Person shall include the Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent such
Person is liable therefor as a result of such Person’s ownership interest in or
other relationship with such entity, except to the extent that the terms of
such Indebtedness expressly provide that such Person is not liable therefor.


 


“Indemnified Claim” shall have the meaning set forth in Section 13.2(c) hereof.


 


“Indemnified Liabilities” shall have the meaning set forth in Section 13.2(a) hereof.


 


“Indemnified Matters” shall have the meaning set forth in Section 13.2(b) hereof.


 


“Indemnified Person” shall have the meaning set forth in Section 13.2(a) hereof.


 


“Independent Engineer” shall mean Garrad Hassan Americas, Inc.
or such other nationally recognized independent engineer reasonably acceptable
to the Initial Lenders.


 


“Initial Closing Date” shall mean the date on which all
conditions precedent set forth in Section 3.1 have been satisfied
or waived in writing by the Initial Lenders.


 


“Initial Cohocton Major Indebtedness Prepayment Trigger” shall
have the meaning set forth in the definition of “Cohocton Permitted
Indebtedness”.


 


“Initial Lenders” shall mean, collectively, PIP3PX FirstWind
Debt Ltd. and PIP3GV FirstWind Debt Ltd.


 


“Initial Power Hedging Documents” shall mean the following
Hedging Agreements: (a) on and after the Initial Closing Date, (i) the
ISDA Master Agreement, dated as of June 11, 2008, by and between the Stetson
Holding Company and Constellation Energy Commodities Group, Inc., as
amended by the Schedule to the 1992 ISDA Master Agreement and the Confirmation,
dated as of June 11, 2008, (ii) the ISDA Master Agreement, dated as
of August 21, 2007, by and between the Cohocton Holding Company and Credit
Suisse Energy LLC, as amended by that certain First Amendment to ISDA Master
Agreement, dated as of August 20, 2008, as further amended by that certain
Second Amendment to ISDA Master Agreement, dated as of December 11, 2008,
and as further amended by that certain Third Amendment to ISDA Master
Agreement, dated as of March 27, 2009, as amended by the Schedule to the
1992 ISDA Master Agreement and the Confirmation, dated as of August 21,
2007, (b) on and after the Subsequent


 


23

















 


Closing
Date, “Initial Power Hedging Documents” shall also include the Commodity Swap
Confirmation, dated as of September 20, 2006, by and between the Steel
Winds Project Company and Morgan Stanley Capital Group, Inc., and (c) on
and after the Stetson II Effective Date, “Initial Power Hedging Documents”
shall also include the Power Purchase Agreement, dated as of September 29,
2009, by and between the Stetson II Project Company and President and Fellows
of Harvard College.


 


“Initial Stetson Major Indebtedness Prepayment Trigger” shall
have the meaning set forth in the definition of “Stetson Permitted
Indebtedness”.


 


“Initial Term Loan” shall have the meaning set forth in Section 2.1(a)(i)(A) hereof.


 


“Initial Term Loan Commitment” shall mean, as to any Initial
Lender, the aggregate amount set forth opposite such Initial Lender’s name for
the Initial Closing Date in Schedule 1.1. The aggregate Initial Term
Loan Commitment of all Initial Lenders as of the Initial Closing Date is
$100,000,000.


 


“Initial U.S. Taxes” shall have the meaning set forth in Section 4.5(i) hereof.


 


“Intercreditor Agreement” shall mean the Intercreditor
Agreement, dated as of the Initial Closing Date, by and among the Collateral
Agent and HSHN, as collateral agent for the holders of the Holdings Lien
Indebtedness, and acknowledged by the Borrower, CSSW Parent and certain other
Affiliates of the Borrower which shall be substantially in the form of Exhibit I
attached hereto.


 


“Interest Election” shall have the meaning set forth in Section 2.4(a) hereof.


 


“Interest Payment Date” shall mean (a) the last Business
Day of each June and December prior to the Maturity Date, and (b) the
Maturity Date; provided that the initial Interest Payment Date shall occur in December 2009.


 


“Interest Rate” shall mean (a) with respect to Cash
Interest, 12.0% per annum and (b) with respect to PIK Interest, 14.0% per
annum.


 


“Investment” shall have the meaning set forth in Section 10.3
hereof.


 


“ITC Grant” shall mean a cash grant issued in respect of
investment tax credits pursuant to The American Recovery and Reinvestment Act
of 2009, as amended from time to time.


 


“Judgment” shall mean the final, non-appealable judgment,
decree, award, order, writ or injunction of, or issued by, any Governmental
Authority, on consent or otherwise.


 


“LC Conversion Indebtedness” shall mean Indebtedness consisting
of reimbursement obligations with respect to letters of credit of the Borrower
or its Subsidiaries that are converted into or otherwise paid with the proceeds
of revolving or


 


24

















 


term
Indebtedness or that otherwise remain due and unreimbursed after the due date
thereof.


 


“LC Indebtedness” shall mean Indebtedness consisting of the
available amount of letters of credit with respect to the Initial Power Hedging
Documents, any Replacement IPH Document or any other Permitted Power Document
for the sale of power, capacity and/or renewable energy credits, (a) prior
to the Subsequent Closing Date, in an aggregate amount of up to $30,000,000
with respect to the Cohocton Project (including the Cohocton Companies) and the
Stetson I Project (including the Stetson Companies), (b) on and after the
Subsequent Closing Date until the Stetson II Effective Date, in an aggregate
amount of up to $40,000,000 with respect to the Cohocton Project (including the
Cohocton Companies), the Stetson I Project (including the Stetson Companies)
and the Steel Winds Project (including the Steel Winds Companies) and (c) on
and after the Stetson II Effective Date, in an aggregate amount of up to
$45,000,000 with respect to the Cohocton Project (including the Cohocton
Companies), the Stetson I Project and Stetson II Project (including the Stetson
Companies) and the Steel Winds Project (including the Steel Winds Companies).


 


“Lehman Tax Equity Buyback” shall mean the repurchase of all of
the Class B membership interests held by Lehman First Wind Holdings, LLC,
a Delaware limited liability company, in New York Wind II, and the termination,
satisfaction and release of all rights of Lehman First Wind Holdings, LLC,
under the Lehman Tax Equity Financing Documents.


 


“Lehman Tax Equity Financing” shall mean any financing pursuant
to the Lehman Tax Equity Financing Documents.


 


“Lehman Tax Equity Financing Documents” shall mean (a) that
certain Agreement for Purchase of Membership Interests in UPC New York Wind 2,
LLC, dated as of January 31, 2008, between Lehman First Wind Holdings, LLC
and New York Wind III (the “Purchase Agreement”), and the Amended and
Restated Limited Liability Agreement of New York Wind II, dated as of August 18,
2008, (b) that certain Guarantee, dated as of August 18, 2008, in
favor of New York Wind III, pursuant to which Lehman Brothers Holdings Inc.
guaranteed payment by Lehman First Wind Holdings LLC of all obligations of
Lehman First Wind Holdings LLC owed to New York Wind III under the terms of the
Purchase Agreement and (c) that certain Guarantee, dated as of August 18,
2008, in favor of Lehman First Wind Holdings LLC, pursuant to which First Wind
Holdings, LLC guaranteed payment by New York Wind III of obligations of New
York Wind III owed to Lehman First Wind Holdings LLC under the terms of the
Purchase Agreement.


 


“Lenders” shall mean the Initial Lenders and any other Person
who becomes a Successor Lender hereunder in accordance with the terms of Section 13.11
hereof, and their respective successors.


 


“Lien” shall mean, with respect to any Property of any Person,
any mortgage, pledge, security interest, encumbrance, deposit arrangement,
hypothecation, lien


 


25

















 


(statutory
or otherwise), charge or other security interest or any preference, proxy or
other security agreement or preferential arrangement of any kind or nature
whatsoever (including any agreement to give any of the foregoing, any
conditional sale or other title retention agreement or any lease in the nature
thereof), or any other arrangement pursuant to which title to the property is retained
by or vested in some other Person for security purposes.


 


“Loan Documents” shall mean this Agreement, the Term Notes, the
Security Documents, the Undertaking Agreement, the Intercreditor Agreement, the
First Amendment, Consent and Waiver and any other present or future agreement
from time to time entered into among CSSW Parent, the Borrower, the
Administrative Agent, the Collateral Agent and/or the Lenders in connection
with the above-described documents (excluding for the avoidance of doubt, the Holdings
Loan Documents (as defined in the Intercreditor Agreement)).


 


“Loss Proceeds” shall mean (a) all amounts and proceeds
(including instruments), condemnation awards or other compensation awards,
damages and other payments or relief (including compensation payable in
connection with a Taking) and received by CSSW Parent, the Borrower or any of
the Borrower’s Subsidiaries in respect of any Event of Loss and (b) all
amounts and proceeds (including instruments) received by CSSW Parent, the
Borrower or the Borrower’s Subsidiaries in respect of any insurance policy
maintained by CSSW Parent, the Borrower or the Borrower’s Subsidiaries, except
for any proceeds from any business interruption insurance policies maintained
by CSSW Parent, the Borrower or the Borrower’s Subsidiaries.


 


“Losses” shall have the meaning set forth in Section 13.2(b) hereof.


 


“Major Project Indebtedness” shall mean Indebtedness the
proceeds of which are used to finance, or refinance, replace, refund, extend or
are offered in exchange for any Indebtedness that had been previously incurred
to finance, the development, turbine or other asset acquisition or construction
costs for or operation of a Project, including (a) the Cohocton Mini-Perm
Financing, (b) from the Initial Closing Date until the Stetson II
Effective Date, the Stetson I Existing Financing, (c) on and after the
Stetson II Effective Date, the Stetson Portfolio Financing and (d) any
Permitted Project Indebtedness in respect thereof, other than (x) LC
Indebtedness and (y) Other Permitted Indebtedness.


 


“Major Project Indebtedness Approval” shall mean the receipt by
the Borrower or one of its Subsidiaries of the waiver, consent, approval and/or
agreement, as applicable, of the agent and/or lenders required to permit the
matter in question under the terms of the applicable Major Project Indebtedness
Documents.


 


“Major Project Indebtedness Documents” shall mean any and all
documents, agreements, instruments and letters evidencing, or providing
security for, Major Project Indebtedness permitted hereunder.


 


26














 


“Majority Lenders” shall mean, at any time, the Lenders holding
more than 50% of the aggregate outstanding principal amount of the Term Loans
(including any PIK Interest added to the principal amount of Term Loans).


 


“Margin Stock” shall mean, margin stock within the meaning of
Regulation U and Regulation X.


 


“Material Additional Project Document” shall mean any Additional
Project Document (excluding, for the avoidance of doubt, any Project Document
set forth on Schedule 3.1(d), Schedule 3.2(d) or Schedule
3.3(f) and replacements thereof, which are “Material Project
Documents”) (a) entered into by the Borrower or any of its Subsidiaries
after (i) with respect to the Cohocton Project or the Stetson I Project,
the Initial Closing Date, (ii) with respect to the Steel Winds Project,
the Subsequent Closing Date and (iii) with respect to the Stetson II
Project, the Stetson II Effective Date and (b) that is (i) a Material
Power Document or (ii) if not covered by the foregoing clause (i), (A) the
absence of which Additional Project Document could reasonably be expected to
result in a Material Adverse Effect or (B) that contains terms which could
reasonably be expected to result in a twenty percent (20%) or larger reduction
in Borrower Net Revenues calculated in the aggregate for all Material
Additional Project Documents in any Fiscal Year (including, in any case, any
such agreement that replaces an existing Material Additional Project Document
in accordance with Section 11.1(j)).


 


“Material Adverse Effect” shall mean a material and adverse
effect on (a) the business, Property, operations, assets or condition
(financial or otherwise) of the Borrower and its Subsidiaries, taken as a whole
or (b) the ability of CSSW Parent or the Borrower to perform its
obligations under the Loan Documents, (c) the legality, validity or
enforceability of any material provision of any of the Loan Documents or (d) the
ability of the Agents or the Lenders to enforce the rights and remedies of the
Secured Parties under the Loan Documents.


 


“Material Power Document” shall mean any Permitted Power
Document with (a) a minimum committed transaction term of two (2) years
(excluding the term of any master agreements or other agreements under which no
sale or hedging commitment exists) and (b) covering ten percent (10%) or
more of the aggregate capacity (measured in MWhs) with respect to either the
Cohocton Project or the Stetson I Project or twenty percent (20%) or more of
the aggregate capacity (measured in MWhs) with respect to the Stetson II Project,
individually; provided that none of the following shall be considered a
Material Power Document under this Agreement: (i) any power transmission
agreement or (ii) any renewable energy credit or other environmental
attributes sale or purchase agreement.


 


“Material Project Documents” shall mean the following
agreements: (a) on and after the Initial Closing Date, each of the
agreements listed on Schedule 3.1(d) and any Replacement IPH
Document and any replacement of any of the other agreements set forth on such
Schedule in accordance with Section 11.1(j), (b) on and after
the Subsequent Closing Date, in addition to the agreements set forth in clause
(a), each of the agreements listed on Schedule 3.2(d) and any
Replacement IPH Document and any


 


27

















 


replacement
of any of the other agreements set forth on such Schedule in accordance with Section 11.1(j),
(c) on and after the Stetson II Effective Date, in addition to the
agreements set forth in clauses (a) and (b), each of the agreements listed
on Schedule 3.3(f) and any Replacement IPH Document and any
replacement of any of the other agreements set forth on such Schedule in
accordance with Section 11.1(j) and (d) any Material
Additional Project Document (and any replacement of the foregoing).


 


“Maturity Date” shall mean January 17, 2018.


 


“Moody’s” shall mean Moody’s Investors Services, Inc.


 


“Multiemployer Plan” shall mean any ERISA Plan that is a
multiemployer plan (as defined in Section 4001(a)(3) of ERISA).


 


“Net Cash Proceeds” shall mean:


 


(a)           with respect to the
issuance or incurrence of any Indebtedness or any Qualified Tax Equity
Financing, the aggregate cash proceeds actually received by CSSW Parent, the
Borrower, or any of the Borrower’s Subsidiaries pursuant to such Indebtedness
or Qualified Tax Equity Financing, net of (i) the transaction costs
actually incurred in connection with the incurrence or issuance of such
Indebtedness or Qualified Tax Equity Financing (including any sales or
underwriter’s commission, investment banker’s commission or fees, attorneys’
fees and expenses and other customary fees and expenses), and (ii) to the
extent actually funded with the proceeds of such incurrence or issuance of
Indebtedness or Qualified Tax Equity Financing, subject to compliance with Section 9.17,
the Debt-Funded Reserve Amounts; and


 


(b)           with respect to any
ITC Grant, the aggregate cash proceeds actually received by the Borrower or its
Subsidiaries pursuant to such ITC Grant, net of the costs relating to the
application, pursuit and collection of such ITC Grant (including any attorneys’
fees and expenses actually incurred in connection therewith).


 


“Net Remaining Loss Proceeds” shall mean an amount equal to: (a) any
Loss Proceeds minus (b) (i) reasonable and documented expenses
incurred by CSSW Parent, the Borrower or any of the Borrower’s Subsidiaries in
connection with the adjustment, settlement or litigation of any claims of CSSW
Parent, the Borrower or such Subsidiary in respect thereof and (ii) any
reasonable and documented expenses incurred or expected to be incurred in
connection with any sale or transfer of property being conducted pursuant to an
Event of Eminent Domain, including income or transfer taxes payable as a result
of any gain recognized in connection therewith.


 


“New Cohocton Holding Company” shall mean CSSW Cohocton
Holdings, LLC, a Delaware limited liability company.


 


“New York Wind II” shall mean New York Wind II, LLC, a Delaware
limited liability company.


 


28

















 


“New York Wind III” shall mean New York Wind III, LLC, a
Delaware limited liability company.


 


“Nominee Agreement” shall mean the Nominee Agreement, dated as
of August 18, 2008, among the Cohocton Project Companies, Prattsburgh, the
Cohocton Holding Company, and New York Wind III, and acknowledged by New York
Wind II and Lehman First Wind Holdings, LLC, a Delaware limited liability
company, as in effect on the Initial Closing Date.


 


“Non Consenting Lender” shall have the meaning set forth in Section 2.7
hereof.


 


“Non-Excluded Taxes” shall mean Taxes other than Excluded Taxes
and Other Taxes.


 


“Non-Financing O&M Reserve” shall have the meaning set forth
in the definition of “Reserve Amounts”.


 


“Non hedged Term” shall have the meaning set forth in Section 9.14
hereof.


 


“Notice of Borrowing” shall have the meaning set forth in Section 2.2
hereof.


 


“Notice Office” shall have the meaning set forth in
Section 13.3 hereof.


 


“O&M Costs” shall mean, collectively, without duplication,
whether paid directly or indirectly by or on behalf of the Borrower and its
Subsidiaries (a) costs of administering the Projects, (b) costs of
operating and maintaining the Projects paid or payable by any Subsidiary of the
Borrower, (c) direct operating and maintenance costs of the Projects and
any Capital Expenditures made in connection with required maintenance of the
Projects or required by Requirements of Law or Governmental Approvals with
respect to the Projects or required by the terms of any Major Project Indebtedness
Documents or Commodity Hedge/Power Sales Agreement with respect to the
Projects, in each case paid or payable by any Subsidiary of the Borrower, (d) insurance
premiums paid or payable in respect of the insurance maintained or to be
maintained in respect of the Projects by any Subsidiary, (e) property,
sales, value-added, excise, franchise and other similar taxes paid or payable
by CSSW Parent, the Borrower or any Subsidiary of the Borrower (other than
taxes imposed on or measured by income), (f) costs and fees paid or
payable by any Subsidiary of the Borrower in connection with obtaining and
maintaining in effect the Governmental Approvals required in connection with
the Projects, (g) administrative, legal, accounting and other professional
fees and fees and expenses incurred in the Ordinary Course of Business in
connection with the Projects and CSSW Parent, the Borrower and the Subsidiaries
of the Borrower paid or payable by any of the foregoing and (h) costs of
operating and maintaining common facilities payable by any Subsidiary of the
Borrower; provided that O&M Costs shall exclude any payments of
principal, interest or other amounts on account of Indebtedness.


 


“Obligations” shall mean, collectively, (a) all present and
future loans, advances, debts, obligations, Indebtedness and liabilities of
CSSW Parent, the Borrower or any other Borrower Credit Party to the Lenders at
any time of every kind, nature and


 


29

















 


description
however arising, owed to any Secured Party of every kind and description under
the Loan Documents (whether or not evidenced by any note or instrument and
whether or not for the payment of money), whether direct or indirect, joint
and/or several, absolute or contingent, matured or unmatured, now existing or
hereafter arising, contractual or tortious, liquidated or unliquidated,
including, without limitation, all interest (including PIK Interest), fees,
charges, expenses, reimbursements, indemnities and/or amounts paid or advanced
by the Secured Parties to, on behalf of, or for the benefit of, any such Person
pursuant to the Loan Documents, obligations of performance as well as
obligations of payment, and all interest, fees and other amounts that accrue
after the commencement of any proceeding under any Debtor Relief Law by or
against any such Person or its property, whether or not post-filing interest,
fees or other amounts are allowed in such proceeding, (b) any and all sums
advanced by any Secured Party in order to preserve the Collateral or to
preserve the Liens as provided in the Security Documents; and (c) in the
event of any Enforcement Action, the reasonable and properly documented
expenses of retaking, holding, preparing for sale or lease, selling or
otherwise disposing of or realizing on the Collateral, or of any exercise by
the Collateral Agent and/or the Secured Parties of their rights under the
Security Documents, together with reasonable attorneys’ fees and court costs.


 


“OID” shall have the meaning set forth in the definition of “Yield”.


 


“Operator” shall mean First Wind O&M, LLC, a Delaware
limited liability company, or any other Operator appointed in accordance with Section 10.14
hereof.


 


“Ordinary Course of Business” shall mean, in respect of any
Person, the ordinary course operation of such Person’s business undertaken in
good faith and not for purposes of evading any provision of any Loan Document
or material Requirement of Law.


 


“Organizational Documents” shall mean (a) for any
corporation, the certificate or articles of incorporation, the bylaws, any
certificate of designation or other instrument relating to the rights of
preferred shareholders or stockholders of such corporation, any shareholder
rights agreement and all applicable resolutions of the board of directors (or any
committee thereof) of such corporation, (b) for any partnership, the
partnership agreement and, if applicable, the certificate of limited
partnership, and (c) for any limited liability company, the operating
agreement and articles or certificate of formation or organization and all
applicable resolutions of any managing member of such limited liability
company.


 


“Original Credit Agreement” shall have the meaning set forth in
the preamble hereof.


 


“Originating Lender” shall have the meaning set forth in Section 13.11(d) hereof.


 


“Other Permitted Indebtedness” with respect to a Person, shall
mean:


 


(a)           in addition to
Permitted Project Indebtedness, Indebtedness entered into in the Ordinary
Course of Business, including guarantees, working capital facilities, capital
leases, purchase money obligations, and other Indebtedness that


 


30

















 


does
not constitute LC Indebtedness, the aggregate outstanding principal amount of
which at any time does not exceed $8,000,000; provided that
notwithstanding the foregoing, (i) the first $2,000,000 in LC Conversion
Indebtedness shall be permitted under this clause (a) and shall not be
counted towards the foregoing $8,000,000 limitation, (ii) the amount of LC
Conversion Indebtedness that exceeds $2,000,000 shall be permitted under this
clause (a) but any such excess that is outstanding more than sixty (60)
days since its incurrence shall be counted towards the foregoing $8,000,000
limitation, (iii) any excess LC Conversion Indebtedness above such
$8,000,000 limitation shall be deemed Major Project Indebtedness subject to the
Cohocton Major Indebtedness Prepayment Trigger or the Stetson Major Project
Indebtedness Prepayment Trigger or Indebtedness of Steel Winds under clause (1) of
the definition of Steel Winds Permitted Debt, as applicable and (iv) prior
to the Subsequent Closing Date, New York Wind III shall be permitted to be an
obligor or guarantor under the Steel Winds Letters of Credit and the aggregate
stated amount of such Steel Winds Letters of Credit shall be counted towards
the $8,000,000 limitation set forth in clause (i);


 


(b)           Indebtedness set
forth on Schedule 10.1 and any Refinancing Indebtedness in respect
thereto (without increasing the principal amount thereof);


 


(c)           Indebtedness which
may be deemed to exist pursuant to any performance, surety, statutory, appeal
or similar obligations incurred in the Ordinary Course of Business;


 


(d)           Indebtedness in
respect of netting services, overdraft protections and similar services, in
each case in connection with deposit accounts;


 


(e)           Hedging Agreements
entered into in accordance with Section 10.17 and Sections 9.14,
10.11 or 11.1(j) hereof;


 


(f)            Guaranties by (i) any
Cohocton Company of any Indebtedness of any other Cohocton Company, (ii) any
Stetson Company of any Indebtedness of any other Stetson Company or guaranties
by a Subsidiary of the Stetson Intermediate Holding Company of Indebtedness of
the Stetson Intermediate Holding Company, the Stetson Holding Company or any
other of its Subsidiaries and (iii) any Steel Winds Company of any
Indebtedness of any other Steel Winds Company, in each case in respect of any
other Permitted Indebtedness; provided that if the Indebtedness that is
being guaranteed is unsecured and/or subordinated to the Obligations, the
guaranty shall also be unsecured and/or subordinated to the Obligations on
terms reasonably satisfactory to the Administrative Agent;


 


(g)           intercompany
Indebtedness owing by (i) any Subsidiary of the Borrower to the Borrower
(to the extent permitted by Section 10.3), (ii) any Cohocton
Company to any other Cohocton Company, (iii) any Stetson Company to any
other Stetson Company and (iv) any Steel Winds Company to any other Steel
Winds Company; provided that such Indebtedness shall be unsecured (it
being understood that this proviso does not restrict the ability to pledge the
right


 


31

















 


to
receive payments under such Indebtedness to the lenders under any Stetson
Permitted Project Indebtedness) and (if such Subsidiary of the Borrower is a
Borrower Credit Party) subordinated in right of payment to the Obligations on
terms reasonably satisfactory to the Administrative Agent; and


 


(h)           Indebtedness
incurred in connection with the Holdings Lien Indebtedness and secured by a
second-priority Lien upon Property of the Obligors (as defined in the
Intercreditor Agreement); provided that none of CSSW Parent, the
Borrower or any of the Borrower’s Subsidiaries have assumed or become liable
for such Indebtedness and that the exposure of the Borrower and its
Subsidiaries thereunder is limited to the grant by the Borrower and its
Subsidiaries of second-priority Liens in connection therewith as contemplated
by the Intercreditor Agreement and subject to the terms of the Intercreditor
Agreement.


 


“Other Taxes” shall have the meaning set forth in Section 4.5(c) hereof.


 


“Overflow Reserve” shall have the meaning set forth in the
definition of “Reserve Amounts”.


 


“Parent” shall mean First Wind Holdings, LLC, a Delaware limited
liability company.


 


“Participant” shall have the meaning set forth in Section 13.11(d) hereof.


 


“Participation Register” shall have the meaning set forth in Section 13.11(g) hereof.


 


“Payment Office” shall mean the office of the Administrative
Agent or the Collateral Agent, as applicable, designated in writing from time
to time as such to each of the other parties hereto.


 


“PBGC” shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, and any successor thereto.


 


“Pension Plan” shall mean any Plan (other than a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the
Code or Section 302 of ERISA and in respect of which any of CSSW Parent,
the Borrower or the Borrower’s Subsidiaries or any ERISA Affiliate is (or, if
such Plan were terminated, would under Section 4069 of ERISA be deemed to
be) an “employer” as defined in Section 3(5) of ERISA.


 


“Permit” shall mean any approval, consent, waiver, exemption,
variance, franchise, order, permit, authorization, right, registration, filing,
or license of, with or from a Governmental Authority.


 


“Permitted Disposition” shall have the meaning set forth in Section 10.4
hereof.


 


32

















 


“Permitted Distributions” shall have the meaning set forth in Section 10.7  hereof.


 


“Permitted Indebtedness” shall mean, collectively, Cohocton
Permitted Indebtedness, Stetson Permitted Indebtedness and Steel Winds
Permitted Indebtedness, and, in the case of CSSW Parent and the Borrower, the
Obligations.


 


“Permitted Investments” shall mean any of the following:


 


(a)           direct obligations
of, or obligations the principal of and interest on which are unconditionally
guaranteed by, the United States of America (or by any agency thereof to the
extent such obligations are backed by the full faith and credit of the United
States of America), in each case maturing within one year from the date of
acquisition thereof;


 


(b)           investments in
commercial paper rated (on the date of acquisition thereof) A1+ or better and
P1+ or better by S&P and Moody’s, respectively, maturing within ninety (90)
days after the date of acquisition thereof;


 


(c)           investments in
certificates of deposit, banker’s acceptances and time deposits maturing within
ninety (90) days from the date of acquisition thereof issued or guaranteed by
or placed with any Lender or any domestic office of any commercial bank
organized under the laws of the United States of America or any state thereof
that has a combined capital and surplus and undivided profits of not less than
$500,000,000  and whose outstanding
senior long-term  unsecured  indebtedness is rated (on the date of
acquisition thereof) A or better and A2 or better by S&P and Moody’s,
respectively;


 


(d)           investments in money
market funds rated “AA” or better by S&P and “Aa” or better by Moody’s;


 


(e)           collateralized
repurchase agreements with a term of not more than thirty (30) days after the
acquisition thereof for securities described in clause (a) above and entered
into with a financial institution satisfying the criteria described in clause (c) above;


 


(f)            securities with
maturities of one year or less from the date of acquisition issued or fully
guaranteed by any state, commonwealth or territory of the United States of
America, or any political subdivision or taxing authority thereof, and rated at
least A by S&P and A2 by Moody’s;


 


(g)           Investments
outstanding on the Initial Closing Date and identified in Schedule 10.3;


 


(h)           Contingent
Obligations constituting Permitted Indebtedness and identified in Schedule
10.3;


 


(i)            indemnities made in
the Loan Documents or in any Major Project Indebtedness Documents;


 


33

















 


(j)            Investments by CSSW
Parent in the Borrower and Investments by the Borrower (i) in wholly-owned
domestic Subsidiaries in existence on the Stetson II Effective Date and in
Persons that, following such Investments, are wholly-owned domestic
Subsidiaries of the Borrower; provided that, other than for the purpose
of paying any O&M Costs, the source of such Investments is solely from the
proceeds of capital contributed to the Borrower by the Parent and not Excess
Cash or other amounts held or otherwise distributed to the Borrower by its
Subsidiaries; and provided, further, that any such Investments,
other than for those made for the purpose of paying O&M Costs, shall be
made in the form of loans by the Borrower and documented in the form of an
intercompany note which shall be pledged as Collateral to secure the Obligations,
(ii) that are contemplated by the Stetson Transmission Line Reorganization
and (iii) in Prattsburgh in connection with the Unwind of Prattsburgh; provided
that the source of such Investments is solely from the proceeds of capital
contributed to the Borrower (through CSSW Parent) by the Parent and not Excess
Cash or other amounts held or otherwise distributed to the Borrower by its
Subsidiaries;


 


(k)           Investments
consisting of Hedging Agreements permitted to be incurred pursuant to Section 10.1;


 


(l)            advances, loans or
extensions of credit by CSSW Parent, the Borrower or any of the Borrower’s
Subsidiaries to officers, directors, employees and agents of CSSW Parent, the
Borrower or any of the Borrower’s Subsidiaries (i) in the Ordinary Course
of Business for travel, entertainment or relocation expenses not to exceed the
aggregate amount existing on the date hereof or otherwise not to exceed
$300,000  in the aggregate at any one
time outstanding and (ii) relating to indemnification or reimbursement of
such officers, directors, employees and agents in respect of liabilities
relating to their service in such capacities;


 


(m)          Investments received
in connection with the bankruptcy or reorganization of suppliers and customers
and in settlement of delinquent obligations of, and other disputes with,
customers and supplier arising in the Ordinary Course of Business;


 


(n)           accounts, chattel
paper and notes receivable arising from the sale or lease of goods or the
performance of services in the Ordinary Course of Business;


 


(o)           Capital Expenditures
using Loss Proceeds as permitted by this Agreement or that constitute O&M
Costs;


 


(p)           acquisitions of
assets in the Ordinary Course of Business reasonably required in connection
with the operation of the Projects;


 


(q)           deposits in the
Ordinary Course of Business to secure the performance of operating leases and
payment of utility contracts;


 


34

















 


(r)            other Investments
not permitted under the foregoing clauses (a) through (q) in an
aggregate amount at any time outstanding not to exceed $500,000;


 


(s)           Investments that
were Cash Equivalents when made;


 


(t)            Without limitation
of the foregoing clauses (a) through (s), Investments by the obligor with
respect to Major Project Indebtedness that are explicitly permitted or required
by the terms of such Major Project Indebtedness, in an aggregate amount at any
time outstanding not to exceed $500,000; and


 


(u)           any other
Investments approved by the Majority Lenders.


 


“Permitted Liens” shall mean any of the following: (a) any
Liens created pursuant to (i) the Loan Documents, (ii) Hedging
Agreements (other than Commodity Hedge/Power Sales Agreements) permitted
pursuant to Section 10.1 hereof in respect of interest rate
exposure related to Major Project Indebtedness, and (iii) the terms of any
Permitted Project Indebtedness; (b) Liens imposed by law for taxes that
are not yet due or that are the subject to a Good Faith Contest or for which
security for such Lien has otherwise been provided in accordance with GAAP; (c) carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens
imposed by Requirements of Law, arising in the Ordinary Course of Business and
securing obligations that are not overdue by more than ninety (90) days (or
such longer period that is permitted by the terms thereof) and that in the
aggregate could not reasonably be expected to have a Material Adverse Effect or
that are the subject of a Good Faith Contest or for which security for such
Liens has otherwise been provided in accordance with GAAP or in the form of a
bond; (d) pledges and deposits made in the Ordinary Course of Business in
compliance with workers’ compensation, unemployment insurance and other social
security laws or regulations; (e) cash deposits (including letters of
credit) to secure the performance of bids, trade contracts (other than for
borrowed money), leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each case in the Ordinary
Course of Business; (f) Liens arising solely by virtue of any statutory or
common law provision relating to banker’s liens, rights of set-off or similar
rights and remedies as to deposit accounts or other funds maintained with a
creditor depository institution; (g) easements, rights-of-way,
restrictions, defects or other exceptions to title or other similar
encumbrances incurred in the Ordinary Course of Business and that are not
incurred to secure Indebtedness and that do not and could not reasonably be
expected to have a Material Adverse Effect; (h) any Liens, easements,
zoning restrictions, rights-of-way or similar encumbrances on real property
comprising the route for transmission; (i) Liens arising out of Judgments
or awards that do not otherwise constitute an Event of Default; (j) purported
Liens evidenced by the filing of precautionary UCC financing statements
relating to operating leases of personal property entered into in the Ordinary
Course of Business or permitted by this Agreement; (k) Liens created
pursuant to PILOT Agreements and the Cohocton Host Community Agreement; (l) Liens
created on customary terms and in the Ordinary Course of Business under the
terms of any Permitted Power Document that secure obligations thereunder; (m) Liens
set forth on Schedule 10.2; and (n) Liens on the Collateral
securing the


 


35

















 


Holdings
Lien Indebtedness that are subordinated in accordance with the terms of the
Intercreditor Agreement.


 


“Permitted Power Counterparty” shall mean, with respect to a
Permitted Power Document or Replacement IPH Document, the counterparty under
such Permitted Power Document or Replacement IPH Document whose credit rating
in respect of its long-term senior unsecured (and non-credit enhanced)
Indebtedness is at least BBB- from S&P and Baa3 from Moody’s or if such
counterparty is not so rated, but its obligations under the applicable
Permitted Power Document or Replacement IPH Document are irrevocably and
unconditionally guaranteed by another Person, such guarantor’s senior unsecured
(and non-credit enhanced) Indebtedness shall be so rated (it is understood that
each counterparty to an Initial Power Hedging Document existing on the Initial
Closing Date, the Subsequent Closing Date and the Stetson II Effective Date,
shall, for purposes of such agreement only, be deemed to be a Permitted Power
Counterparty).


 


“Permitted Power Document” shall mean any Commodity Hedge/Power
Sales Agreement (whether financial or physical) entered into by any Subsidiary
of the Borrower after the Initial Closing Date where (i) such Commodity
Hedge/Power Sales Agreement is entered into in the Ordinary Course of Business
and is not for speculative purposes and (ii) if such Commodity Hedge/Power
Sales Agreement is also a Hedging Agreement, (A) the purpose of which is
to protect such Subsidiary against fluctuations in energy or power prices
and/or capacities and (B) which is structured such that the counterparty’s
credit exposure and actual or projected mark-to-market exposure to such
Subsidiary is positively correlated with energy and power prices and/or
capacities.


 


“Permitted Project Indebtedness” shall mean the Indebtedness
permitted pursuant to (a) clauses (1), (2) and (3) of the
definitions of Cohocton Permitted Indebtedness and Stetson Permitted
Indebtedness and (b) clauses (1) and (2) of the definition of
Steel Winds Permitted Indebtedness.


 


“Person” shall mean an individual, corporation, partnership,
limited liability company, joint venture, association, estate, joint stock
company, trust, organization, business or other enterprises or organization, or
a government or agency, instrumentality or political subdivision thereof.


 


“PIK Interest” shall have the meaning set forth in Section 2.4(a) hereof.


 


“PILOT Agreements” shall mean the Payment In-Lieu-of-Tax
Agreements, dated as of February 1, 2008, by and between Steuben County
Industrial Development Agency and each of the Cohocton Project Companies.


 


“Plan” shall mean any employee pension benefit plan (as defined in
Section 3(2) of ERISA) in respect of which any of CSSW Parent, the
Borrower or the Borrower’s Subsidiaries or any ERISA Affiliate is (or, if such
Plan were terminated, would under Section 4069 of ERISA be deemed to be)
an “employer” as defined in Section 3(5) of ERISA.


 


36














 


“Prattsburgh” shall mean Windfarm Prattsburgh, L.L.C., a
Delaware limited liability company.


 


“Premium Cap” shall mean, as applicable, (a) an amount of
prepayment or redemption premium or other prepayment penalties of four percent
(4%) or (b) a default interest rate of two percent (2%) above the
applicable interest rate thereunder in the absence of a default.


 


“Pro Forma Financial Statements” shall mean the pro forma
unaudited balance sheet and income statement of the Borrower and its
Consolidated Subsidiaries (excluding Prattsburgh) delivered in connection with
each Closing Date as of, and for, the most recent Fiscal Quarter ended, at
least 60 days prior to each such Closing Date.


 


“Prohibited Transaction” shall have the meaning assigned to such
term in Section 406 of ERISA and Section 4975(f)(3) of the Code.


 


“Project Companies” shall mean, collectively, (a) the
Cohocton Project Companies, (b) the Stetson I Project Company, (c) after
the Subsequent Closing Date, the Steel Winds Project Company and (d) after
the Stetson II Effective Date, the Stetson II Project Company.


 


“Project Document” shall mean any contract, agreement or
document relating to the ownership, development, construction, testing,
operation, maintenance, repair, insurance, management, administration or use of
any of the Projects, or the business of the Subsidiaries of the Borrower
entered into by any such Subsidiary of the Borrower with any other Person, but
excluding the Loan Documents, the Organizational Documents and any agreement in
respect of Indebtedness; provided that before the Subsequent Closing
Date, no contract, agreement or document with respect to the Steel Winds
Project shall be considered a Project Document hereunder; provided, further
that before the Stetson II Effective Date, no contract, agreement or document
with respect to the Stetson II Project shall be considered a Project Document
hereunder.


 


“Project Document Claim” shall mean any claim in respect of the
Project Documents, including any warranty or liquidated damage claim.


 


“Project Lender” shall mean any lender under the Major Project
Indebtedness Documents or any other holder of any Major Project Indebtedness.


 


“Project O&M Agreement” shall mean, collectively, (a) that
certain Project O&M Agreement, dated as of December 30, 2008, by and
between First Wind O&M, LLC and the Cohocton Project Companies, as amended
by Amendment No. 1 to Project O&M Agreement, dated as of March 19,
2009, (b) that certain Project O&M Agreement, dated as of November 17,
2008, by and between First Wind O&M, LLC and the Stetson I Project Company,
(c) after the Subsequent Closing Date, that certain Project O&M
Agreement, dated as of September 1, 2006, by and between First Wind
O&M, LLC, as successor-in-interest to UPC New York Wind O&M, LLC, and
Steel Winds Project, LLC and (d) after the Stetson II Effective Date, that
certain Project O&M Agreement, dated as


 


37

















 


of
the Stetson II Effective Date, by and between the Stetson II Project Company
and First Wind O&M, LLC.


 


“Project Participants” shall mean any party (other than CSSW
Parent, the Borrower, the Subsidiaries of the Borrower and the Secured Parties)
to a Project Document.


 


“Project Revenues” shall mean, for any period, without
duplication, the aggregate of all cash revenues received by the Borrower and
its Subsidiaries during such period, including revenues comprised of (a) payments
made to such Persons pursuant to the Initial Power Hedging Documents, any
Replacement IPH Documents, any Permitted Power Documents or otherwise in
connection with the sale of energy, capacity, ancillary services and
environmental attributes (including renewable energy credits) from the
Projects, (b) all proceeds received by the Borrower and its Subsidiaries
in respect of Project Document Claims, (c) the proceeds of any business
interruption insurance received by the Borrower and its Subsidiaries and (d) all
interest and other income received by the Borrower and its Subsidiaries; provided
that Project Revenues shall exclude, to the extent included, Loss Proceeds and
Net Cash Proceeds from issuances and incurrences of Indebtedness or any
Qualified Tax Equity Financing and Net Cash Proceeds of any ITC Grant or
proceeds of any Equity Contribution.


 


“Projects” shall mean, collectively, (a) the Cohocton
Project, (b) the Stetson I Project, (c) after the Subsequent Closing
Date, the Steel Winds Project and (d) after the Stetson II Effective Date,
the Stetson II Project.


 


“Property” shall mean any property of any kind whatsoever,
whether real, personal or mixed and whether tangible or intangible, and any
right or interest therein.


 


“Prudent Utility Practice” with respect to a Project shall have
the meaning set forth in the related Project O&M Agreement as such Project
O&M Agreement is in effect on the date hereof.


 


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


 


“PUHCA 2005” shall have the meaning set forth in Section 5.21(a) hereof.


 


“QF” shall have the meaning set forth in Section 5.21(a) hereof.


 


“Qualified Tax Equity Financing” shall mean a sale of the right
to claim PTC Benefits for cash up front.


 


“Refinancing Indebtedness” shall mean, with respect to any
Indebtedness (the “Refinanced Indebtedness”), any Indebtedness issued in
exchange for, or the net proceeds of which are used to extend, refinance,
replace or refund (collectively to “Refinance” or a “Refinancing”
or “Refinanced”), such Refinanced Indebtedness (or previous refinancing
thereof constituting Refinancing Indebtedness); provided that (A) all
Net Cash Proceeds


 


38

















 


of
Excess Permitted Project Indebtedness shall be applied to the prepayment of the
Term Loans as required by Section 4.1(b), and (B) the terms
and conditions of any such Refinancing Indebtedness do not require any
mandatory premiums or penalties in excess of the Premium Cap.


 


“Register” shall have the meaning set forth in Section 12.10
hereof.


 


“Regulation U” shall mean Regulation U of the Board of Governors
of the Federal Reserve system (or any successor).


 


“Regulation X” shall mean Regulation X of the Board of Governors
of the Federal Reserve system (or any successor).


 


“Reinvestment Decision Date” shall mean, with respect to the
Borrower’s or one of its Subsidiary’s receipt of any Loss Proceeds, the date
that is twenty (20) days after receipt of such Loss Proceeds.


 


“Reinvestment Deferred Amount” shall mean, with respect to any Reinvestment
Event, the aggregate Net Remaining Loss Proceeds that are not applied to prepay
the Term Loans as a result of the delivery of a Reinvestment Notice.


 


“Reinvestment Event” shall mean any event in respect of which
the Borrower has received Loss Proceeds and has delivered a Reinvestment
Notice.


 


“Reinvestment Notice” shall mean a written notice executed by an
Authorized Officer stating that no Event of Default has occurred and is
continuing and that the Borrower (directly or indirectly through a Subsidiary)
intends and expects to use all or a specified portion of the Loss Proceeds to
make an Eligible Reinvestment.


 


“Reinvestment Prepayment Amount” shall mean, with respect to any
Reinvestment Event, the Reinvestment Deferred Amount relating thereto less any
amount expended prior to the relevant Reinvestment Prepayment Date to make an
Eligible Reinvestment or to prepay Major Project Indebtedness.


 


“Reinvestment Prepayment Date” shall mean, with respect to any
Reinvestment Event, the earlier of (a) the later of (x) the date
occurring twelve (12) months after such Reinvestment Decision Date and (y) the
period, if any, provided in the applicable Major Project Indebtedness Documents
for the reinvestment of Loss Proceeds and (b) the date on which the Borrower
shall have determined not to, or shall have otherwise ceased to, make Eligible
Reinvestments with all or any portion of the relevant Reinvestment Deferred
Amount.


 


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


 


“Replacement IPH Document” shall have the meaning set forth in Section 11.1(j) hereof.


 


39

















 


“Reportable Event” shall mean any “reportable event,” as defined
in Section 4043(c) of ERISA or the regulations issued thereunder,
other than those events as to which the 30-day notice period referred to in Section 4043(c) of
ERISA has been waived, with respect to a Pension Plan.


 


“Requirement of Law” shall mean, as to any Person, (a) any
law (including common law), statute, treaty, rule, ordinance, Judgment, Permit,
concession, grant, franchise, license or other restriction or regulation or
determination of an arbitrator or a court or other Governmental Authority, and (b) any
directive, requirement or any decision or determination by any Governmental
Authority, in each case applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject and whether
nor or hereafter in effect.


 


“Reserve Amounts” shall mean, with respect to a Calculation
Period: (a) the amounts required to be, and actually maintained in, any
Debt Service Account (funded solely with Project Revenues and/or Equity
Contributions and without duplication of payments made with Borrower Net
Revenues), debt service reserve account(s), operations and maintenance reserve
account(s), punch list reserve account(s) and any other reserve account(s) pursuant
to Major Project Indebtedness Documents, (b) to the extent (i) no
Major Project Indebtedness or Qualified Tax Equity Financing is outstanding
with respect to a Project or (ii) the maintenance of an operation and
maintenance reserve is not required for a Project under the terms of Major
Project Indebtedness or Qualified Tax Equity Financings, a cash reserve for
O&M Costs for such Project (the “Non-Financing O&M Reserve”), (c) a
reserve funded solely with Project Revenues and/or Equity Contributions for Borrower
Tax Distributions and without duplication of payments of Borrower Tax
Distributions made with Borrower Net Revenues, payable during the next
succeeding Calculation Period (the “Tax Distribution Reserve”), and (d) amounts
and funded solely with Project Revenues and/or Equity Contributions being
retained for the reasonably expected future cash needs of the Borrower and its
Subsidiaries for the next succeeding six (6) months following the end of
such Calculation Period (including cash reserves for settlement of capacity,
energy or renewable energy credit sales but excluding the amounts held in any
Distribution Reserve Account) and cash amounts delivered to third parties to
satisfy collateral requirements of the Borrower and its Subsidiaries under
Permitted Power Documents (the aggregate amount under this clause (d) shall
be referred to as the “Overflow Reserve”). For the avoidance of doubt,
Reserve Amounts to be funded solely with Project Revenues and/or Equity
Contributions shall not be permitted to be Debt-Funded Reserve Amounts.


 


“Reserve Cap” shall mean, with respect to a Calculation Period,
the sum of the following amounts:


 


(a)           with
respect to Reserve Amounts described in clause (a) of the definition
thereof, the Cohocton Reserve Line, Steel Winds Reserve Line and Stetson
Reserve Line;


 


(b)           the Non-Financing
O&M Reserve so long as the aggregate amount of such reserve does not exceed
the budgeted O&M Costs for the next succeeding


 


40

















 


three (3) months following the end of such Calculation Period
pursuant to the then-applicable annual budget delivered pursuant to Article 7
hereof (including any budget amendments deemed by the Borrower to be necessary
in the exercise of its reasonable business judgment);


 


(c)           the
Tax Distribution Reserve; and


 


(d)           the
Overflow Reserve so long as the aggregate amount of such reserve (funded solely
with Project Revenues and/or Equity Contributions) does not exceed (i) prior
to the Subsequent Closing Date, $6,500,000 and (ii) on and after the
Subsequent Closing Date, $7,000,000.


 


“Reserve Line” shall mean any of the Cohocton Reserve Line, the
Stetson Reserve Line or the Steel Winds Reserve Line, as applicable.


 


“Returns” shall have the meaning set forth in Section 5.6
hereof.


 


“Second Cohocton Major Indebtedness Prepayment Trigger” shall
have the meaning set forth in the definition of “Cohocton Permitted
Indebtedness”.


 


“Second Lien Security Agreement” shall mean the Second Lien
Guaranty and Security Agreement, dated as of the Initial Closing Date, by and
among the Borrower, CSSW Parent, and HSHN, as collateral agent for the holders
of Holdings Lien Indebtedness.


 


“Second Stetson Major Indebtedness Prepayment Trigger” shall
have the meaning set forth in the definition of “Stetson Permitted
Indebtedness”.


 


“Section 2.8 Lender” shall have the meaning set forth in Section 2.7
hereof.


 


“Secured Parties” shall mean, collectively, the Agents, the
Lenders, the Indemnified Persons and any successors, endorsees, transferees and
assignees of the foregoing.


 


“Security Documents” shall mean the First Lien Guarantee and
Security Agreement, dated as of the Initial Closing Date (the “Guarantee and
Security Agreement”) substantially in the form of Exhibit A, by
CSSW Parent and the Borrower and, on or after the Subsequent Closing Date, to
the extent grantors thereunder in accordance with the terms hereof and thereof,
the Steel Winds Holding Company and the Steel Winds Project Company in favor of
the Collateral Agent, any other security documents hereafter delivered to the
Collateral Agent granting a Lien on any Property of CSSW Parent, the Borrower
or the Steel Winds Companies to secure the Obligations, control agreements and
all UCC financing statements and other filings, recordings and registrations required
to be filed or made in respect of any such Security Document.


 


“Solvent” shall mean, when used with respect to any Person,
that, as of any date of determination, (a) the amount of the “present fair
saleable value” of the assets of such Person will, as of such date, exceed the
amount of all “liabilities of such Person,


 


41

















 


contingent
or otherwise”, as of such date, as such quoted terms are determined in
accordance with applicable federal and state laws governing determinations of
the insolvency of debtors, (b) the present fair saleable value of the
assets of such Person will, as of such date, be greater than the amount that
will be required to pay the liability of such Person on its debts as such debts
become absolute and matured, (c) such Person will not have, as of such
date, an unreasonably small amount of capital with which to conduct its
business, and (d) such Person will be able to pay its debts as they
mature. For purposes of this definition: (i) “debt” means liability on a
“claim” and (ii) “claim” means any (x) right to payment, whether or
not such a right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured
or unsecured or (y) right to an equitable remedy for breach of performance
if such breach gives rise to a right to payment, whether or not such right to
an equitable remedy is reduced to judgment, fixed, contingent, matured or
unmatured, disputed, undisputed, secured or unsecured. In calculating the
amount of liabilities outstanding at any time, it is intended that any
contingent liabilities will be included at the amount which, in light of all
the facts and circumstances existing at such time, would reasonably be expected
to become an actual or matured liability.


 


“S&P” shall mean Standard & Poor’s Rating Services,
a division of The McGraw-Hill Companies, Inc.


 


“Standstill Period” shall have the meaning set forth in Section 11.1(b) hereof.


 


“Steel Winds Companies” shall mean the Steel Winds Holding
Company and the Steel Winds Project Company.


 


“Steel Winds Debt-Funded Reserve Amounts” shall mean the Reserve
Amounts (other than Reserve Amounts that are permitted to be funded solely with
Project Revenues and/or Equity Contributions) for the Steel Winds Project that
have been funded with Indebtedness of the Steel Winds Project.


 


“Steel Winds Holding Company” shall mean New York Wind II.


 


“Steel Winds Letters of Credit” shall mean (i) that certain
irrevocable Letter of Credit No. SB 000052 issued by HSHN as of April 17,
2007 with First Wind Acquisition (p/k/a UPC Wind Acquisition, LLC), as the
Applicant, Morgan Stanley Capital Group Inc. as the Beneficiary and Niagara
Wind Power, LLC, as the Seller, as amended, modified and supplement from time
to time, in the amount of $3,000,000 and (ii) that certain irrevocable
Letter of Credit No. SB 000119 issued by HSHN as of August 13, 2008
with First Wind Acquisition as the Applicant, Constellation Energy Commodities
Group, Inc., as the Beneficiary and Niagara Wind Power, LLC, as amended,
modified and supplement from time to time, in the amount of $500,000.


 


“Steel Winds Permitted Indebtedness” shall mean the following
Indebtedness incurred by the Steel Winds Companies with respect to the Steel
Winds Project:


 


1.             An unlimited amount
of Indebtedness (including the Steel Winds Debt-Funded Reserve Amounts that are
outstanding during any period, subject to


 


42

















 


 


compliance
with Section 9.17 but exclusive of Indebtedness described in
clauses (2) and (3) of this definition) so long as any mandatory
prepayment applicable thereto has been made pursuant to Section 4.1(a) (“Steel
Winds Permitted Project Indebtedness”);


 


2.             LC
Indebtedness;


 


3.             Other
Permitted Indebtedness; and


 


4.             the
Obligations.


 


“Steel Winds Permitted Project Indebtedness” shall have the
meaning set forth in the definition of “Steel Winds Permitted Indebtedness”.


 


“Steel Winds Project” shall mean the 20 MW wind powered electrical
generating facility owned by the Steel Winds Project Company located in
Lackawanna, New York.


 


“Steel Winds Project Company” shall mean Niagara Wind Power,
LLC, a Delaware limited liability company.


 


“Steel Winds Project Company LLC Agreement” shall mean the
Niagara Wind Power, LLC limited liability company agreement, dated September 1,
2006, as in effect on the Subsequent Closing Date.


 


“Steel Winds Reorganization” shall have the meaning set forth on
Schedule 1 hereto.


 


“Steel Winds Reserve Line” shall mean the sum of (a) at the
Borrower’s option, either (i) twelve months of interest reserves that are
required to be, and actually are, held in reserve accounts (excluding Debt
Service Accounts) pursuant to the applicable Major Project Indebtedness Documents
or (ii) if repayment for such Major Project Indebtedness is on an
amortization schedule of not less than 10 years, six months of principal,
interest and other reserves that are required to be, and actually are, held in
reserve accounts (excluding Debt Service Accounts) pursuant to applicable Major
Project Indebtedness Documents, (b) an amount not to exceed $1,500,000 in
the aggregate for any other non-debt service related reserves that are required
to be, and actually are, held pursuant to applicable Major Project Indebtedness
Documents, and (c) amounts funded solely with Project Revenues and/or
Equity Contributions that are required to be, and actually are, held in a Debt
Service Account.


 


“Stetson Companies” shall mean (a) prior to the Stetson II
Effective Date, the Stetson Holding Company and the Stetson I Project Company
and (b) on and after the Stetson II Effective Date, the Stetson
Intermediate Holding Company, the Stetson Holding Company, the Stetson I
Project Company and the Stetson II Project Company; provided that any
Subsidiaries of the Stetson Holding Company and the Stetson I Project Company
created or formed after the Initial Closing Date and of the Stetson
Intermediate Holding Company and the Stetson II Project Company created or
formed after the


 


43

















 


Stetson
II Effective Date shall for all purposes of the Loan Documents be considered
Stetson Companies.


 


“Stetson Debt-Funded Reserve Amounts” shall mean the Reserve
Amounts (other than Reserve Amounts that are permitted to be funded solely with
Project Revenues and/or Equity Contributions) for the Stetson I Project and the
Stetson II Project that have been funded with Indebtedness of the Stetson I
Project and the Stetson II Project, respectively.


 


“Stetson Holding Company” shall mean Stetson Holdings, LLC, a
Delaware limited liability company.


 


“Stetson Prepayment” shall have the meaning assigned in Section 4.1(f).


 


“Stetson I Existing Financing” shall mean Indebtedness incurred
by the Stetson I Project Company as reflected in the HSHN Stetson I Amendments.


 


“Stetson I Project” shall mean the 57 MW wind powered electrical
generating facility owned by the Stetson I Project Company located in
Washington County, Maine.


 


“Stetson I Project Company” shall mean Evergreen Wind Power V,
LLC, a Delaware limited liability company.


 


“Stetson II COD” shall mean the date on which each of the
following has occurred: (a) the Placed in Service Date (as defined in the
Stetson Portfolio Financing Agreement as in effect on the date hereof), (b) “Commercial
Operation Date” under that certain Power Purchase Agreement, dated as of September 29,
2009, by and between the Stetson II Project Company and President and Fellows
of Harvard College, and (c) “Commercial Operation” under that certain
Standard Large Generator Interconnection Agreement, dated August 14, 2009
and effective October 1, 2009, by and between the Stetson II Project
Company, Evergreen Gen Lead, LLC, ISO New England, Inc. and Bangor
Hydro-Electric Company.


 


“Stetson II Construction Budget” shall have the meaning assigned
to “Construction Budget and Schedule” in the Stetson Portfolio Financing
Agreement as in effect on the date hereof.


 


“Stetson II Construction Period” shall mean the period beginning
on the Stetson II Effective Date and ending on the Stetson II Funding Date.


 


“Stetson II Effective Date” shall mean the date on which all
conditions precedent set forth in Section 3.3 have been satisfied
or waived in writing by the Initial Lenders.


 


“Stetson II Funding Date” shall mean the date on which all
conditions precedent set forth in Section 3.4 have been satisfied
or waived in writing by the Initial Lenders.


 


“Stetson II Outside Completion Date” shall mean December 31,
2010.


 


44

















 


“Stetson II Project” shall mean the 25.5 MW wind powered
electrical generating facility to be constructed and owned by the Stetson II
Project Company located in Washington County, Maine.


 


“Stetson II Project Company” shall mean Stetson Wind II, LLC, a
Delaware limited liability company.


 


“Stetson II Project Document” shall mean any Project Document
entered into with respect to the Stetson II Project.


 


“Stetson II Term Loan” shall have the meaning set forth in Section 2.1(a)(i)(C) hereof.


 


“Stetson II Term Loan Commitment” shall mean, as to any Initial
Lender, the applicable amount set forth opposite such Initial Lender’s name for
the Stetson II Funding Date in Schedule 1.1. The aggregate Stetson II
Term Loan Commitment of all Initial Lenders is $15,000,000.


 


“Stetson II Term Loan Commitment Expiration Date” shall mean September 30,
2010 or if earlier, the date on which an Event of Default under the second
proviso to Section 11.1(b) occurs.


 


“Stetson II Turbine Supply Agreement” shall mean that certain
Contract for the Sale of Power Generation Equipment and Related Services, dated
June 27, 2006, as amended by that UPC Notice No. 2007-GE-J3XU5-01,
dated June 29, 2007, as amended by that External Change Order (ECO) No. 2,
dated November 20, 2007, as amended by Amendment No. 1 to the
Contract for the Sale of Power Generation Equipment and Related Services, dated
November 27, 2007, as amended by External Change Order (ECO) No. 3,
dated May 12, 2008, as amended by External Change Order (ECO) No. 4,
dated September 17, 2008, as amended by Amendment No. 2 to the
Contract for the Sale of Power Generation Equipment and Related Services, dated
February 20, 2009, as amended by External Change Order (ECO) No. 5,
dated June 1, 2009, as assigned to the Stetson II Project Company,
pursuant to that certain Assignment and Assumption Agreement, dated as of the
date hereof.


 


“Stetson Intermediate Holding Company” shall mean CSSW Stetson
Holdings, LLC, a Delaware limited liability company.


 


“Stetson Major Indebtedness Prepayment Trigger” shall mean, as
applicable, the Initial Stetson Major Indebtedness Prepayment Trigger or the
Second Stetson Major Indebtedness Prepayment Trigger.


 


“Stetson Permitted Indebtedness” shall mean the following
Indebtedness incurred by the Stetson Companies with respect to the Stetson I
Project and/or the Stetson II Project:


 


1.             Major Project
Indebtedness (which includes, as of the Initial Closing Date until the Stetson
II Effective Date, the Stetson I Existing Financing and as of the Stetson


 


45

















 


II
Effective Date, the Stetson Portfolio Financing) the aggregate principal amount
of which does not exceed:


 


(a)           Until December 31,
2010, $91,000,000 plus subject to compliance with Section 9.17, the
Stetson Debt-Funded Reserve Amounts that are outstanding during any period,
adjusted as follows (such amount, the “Initial Stetson Major Indebtedness
Prepayment Trigger”):


 


(i)            Upon the receipt by
any Stetson Company of Net Cash Proceeds of any ITC Grant in respect of the
Stetson I Project or the Stetson II Project, the Initial Stetson Major
Indebtedness Prepayment Trigger shall be reduced by the amount of such Net Cash
Proceeds, on a dollar for dollar basis, in an amount of reduction not to exceed
in the aggregate $19,000,000; and


 


(ii)           With respect to any
Refinancing Indebtedness, to the extent that the Yield on such Refinancing
Indebtedness as of the applicable Yield Measurement Date exceeds the Yield Cap,
the Initial Stetson Major Indebtedness Prepayment Trigger shall be reduced in
increments of $1,666,667 for each full 50 basis points by which such Yield
exceeds the Yield Cap.


 


(b)           On and after January 1,
2011, $72,000,000 plus, subject to compliance with Section 9.17,
the Stetson Debt-Funded Reserve Amounts that are outstanding during any period,
adjusted as follows (such amount, the “Second Stetson Major Indebtedness
Prepayment Trigger”):


 


(i)            The Second Stetson
Major Indebtedness Prepayment Trigger shall be reduced from time to time by any
payments, repayments, prepayments and/or redemptions of principal made from
time to time on and after January 1, 2011 in respect of such Major Project
Indebtedness; provided, however, that payments, repayments,
prepayments and/or redemptions of principal resulting from the incurrence of
any Refinancing Indebtedness shall not cause any such reductions; and


 


(ii)           With respect to any
Refinancing Indebtedness, to the extent that the Yield on such Refinancing
Indebtedness as of the applicable Yield Measurement Date exceeds the Yield Cap,
the Second Stetson Major Indebtedness Prepayment Trigger shall be reduced in
increments of $1,666,667 for each full 50 basis points by which such Yield
exceeds the Yield Cap.


 


2.             Excess Stetson
Permitted Project Indebtedness so long as the mandatory prepayment applicable
thereto has been made pursuant to Section 4.1(b);


 


3.             LC Indebtedness;


 


4.             Other Permitted
Indebtedness; and


 


46














 


5.             the Obligations.


 


“Stetson Portfolio Financing” shall mean the transactions
contemplated in, collectively, (a) the Stetson Portfolio Financing
Agreement (including the Indebtedness incurred pursuant thereto) and the
Collateral Documents (as defined therein) and (b) the Termination and
Release Agreement and Amendment, dated as of the Stetson II Effective Date by
and among HSHN, the Stetson II Project Company, First Wind Maine Holdings, LLC
and First Wind Acquisition, LLC.


 


“Stetson Portfolio Financing Agreement” shall mean that certain
Financing Agreement, dated as of the Stetson II Effective Date, by and among
the Stetson Holding Company, BNP Paribas, as Joint Lead Arranger, Joint
Bookrunner, Administrative Agent for the Lenders and Security Agent for the
Secured Parties and Issuing Bank, HSHN, as Joint Lead Arranger, Joint
Bookrunner, Co-Syndication Agent, and the Lenders from time to time party
thereto.


 


“Stetson Reorganization” shall have the meaning set forth on Schedule
3 hereto.


 


“Stetson Reserve Line” shall mean the sum of (a) at the
Borrower’s option, either (i) twelve months of interest reserves that are
required to be, and actually are, held in reserve accounts (excluding Debt
Service Accounts) pursuant to the applicable Major Project Indebtedness
Documents or (ii) if repayment for such Major Project Indebtedness is on
an amortization schedule of not less than 9.5 years, six months of principal,
interest and other reserves that are required to be, and actually are, held in
reserve accounts (excluding Debt Service Accounts) pursuant to applicable Major
Project Indebtedness Documents, (b) an amount not to exceed $4,500,000 in
the aggregate for any other non-debt service related reserves that are required
to be, and actually are, held pursuant to applicable Major Project Indebtedness
Documents and (c) amounts funded solely with Project Revenues and/or
Equity Contributions that are required to be, and actually are, held in a Debt
Service Account.


 


“Stetson Transfer Conditions” shall have the meaning set forth
on Schedule 2 hereto.


 


“Stetson Transmission Line Reorganization” shall mean the
transfer or assignment of the transmission line and related rights and Property
for the Stetson I Project, as described on Schedule 2 hereto.


 


“Subsequent Closing Date” shall mean the date on which all
conditions precedent set forth in Section 3.2 have been satisfied
or waived in writing by the Initial Lenders.


 


“Subsequent Term Loan” shall have the meaning set forth in Section 2.1(a)(i)(B) hereof.


 


“Subsequent Term Loan Commitment” shall mean, as to any Initial
Lender, the applicable amount set forth opposite such Initial Lender’s name for
the Subsequent Closing Date in Schedule 1.1. The aggregate Subsequent
Term Loan Commitment of all Initial Lenders is $15,000,000.


 


47

















 


“Subsequent Term Loan Commitment Expiration Date” shall mean the
date which is six months after the Initial Closing Date, or if such date is not
a Business Day, the next succeeding Business Day.


 


“Subsidiary” shall mean, for any Person, any corporation,
partnership or other entity of which at least a majority of the securities or
other ownership interests having by the terms thereof ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions of such corporation, partnership or other entity (irrespective of
whether or not at the time securities or other ownership interests of any other
class or classes of such corporation, partnership or other entity shall have or
might have voting power by reason of the happening of any contingency) is at
the time directly or indirectly owned or controlled by such Person or one or
more Subsidiaries of such Person or by such Person and one or more Subsidiaries
of such Person. Unless otherwise qualified, all references to a “Subsidiary” or
to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries
of the Borrower. It is understood that, notwithstanding the foregoing, for
purposes of this Agreement and the other Loan Documents, (a) Prattsburgh
shall not be considered a Subsidiary of the Borrower or of any of its other
Subsidiaries, (b) until the Subsequent Closing Date, the Steel Winds
Project Company shall not be considered a Subsidiary of the Borrower or of any
of its other Subsidiaries and (c) until the Stetson II Effective Date, the
Stetson Intermediate Holding Company and the Stetson II Project Company shall
not be considered a Subsidiary of the Borrower or any of its other
Subsidiaries.


 


“Successor Lender” shall have the meaning set forth in Section 13.11
hereof.


 


“Taking” shall mean any circumstances or event, or circumstances
or events, in consequence of which the Project or portion thereof shall be
condemned, nationalized, seized, compulsorily acquired or otherwise
expropriated by any Governmental Authority under power of eminent domain or
otherwise. The term “Taken” shall have correlative meaning.


 


“Tax Distribution Reserve” shall have the meaning set forth in
the definition of “Reserve Amounts”.


 


“Tax Equity Standstill Period” shall have the meaning set forth
in Section 11.1(o) hereof.


 


“Taxes” shall have the meaning set forth in Section 4.5(a) hereof.


 


“Terminated Lender” shall have the meaning set forth in Section 2.7
hereof.


 


“Term Loans” shall mean, collectively, the Initial Term Loans,
the Subsequent Term Loans and the Stetson II Term Loans, together with any PIK
Interest added to the outstanding principal amount of such Term Loans on any
Interest Payment Date pursuant to Section 2.4 hereof.


 


“Term Note” shall have the meaning set forth in Section 2.3(b) hereof.


 


48

















 


“Total Loss” shall mean, in relation to the Cohocton Project,
the Stetson I Project or the Stetson II Project, any of the following,
including as a result of a Taking, (a) the complete destruction of such
Project, (b) the destruction of such Project such that there remains no
substantial remnant thereof which a prudent owner desiring to restore such
Project to its original condition would utilize as the basis of such
restoration, (c) the destruction of such Project irretrievably beyond
repair or (d) the destruction of such Project such that the insured may
claim the whole amount of any insurance policy covering such Project upon
abandoning such Project to the insurance underwriters therefor.


 


“Transaction Documents” shall mean, collectively the Loan
Documents and the Project Documents.


 


“Undertaking Agreement” shall mean an agreement of the Parent
substantially in the form of Exhibit H.


 


“Uniform Commercial Code” or “UCC” shall mean the Uniform
Commercial Code, as in effect from time to time in any applicable jurisdiction.


 


“United States” and “U.S.” shall each mean the United
States of America.


 


“Unwind” shall mean the continuing management of Prattsburgh’s
rights, assets, obligations or liabilities for the purpose of selling,
transferring or otherwise disposing of such rights and assets and/or the
winding down of its business, which management may include (a) paying and
discharging its taxes and other obligations as they become due, (b) maintaining
or preserving its assets, Properties, licenses and Governmental Approvals, (c) performing,
preserving, protecting and defending its rights and obligations whether under
any agreements to which it is a party or otherwise existing or (d) taking
any actions reasonably related thereto.


 


“USA PATRIOT Act” shall mean the United States Public Law
107-56, Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism (USA PATRIOT Act) of 2001, as
amended, and the related regulations promulgated thereunder from time to time
in effect.


 


“Voting Stock” shall mean, with respect to any Person, Equity
Interest the holders of which are ordinarily, in the absence of contingencies,
entitled to vote for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been suspended by
the happening of a contingency.


 


“Withdrawal Liability” shall mean liability to a Multiemployer
Plan as a result of a complete or partial withdrawal from such Multiemployer
Plan, as such terms are defined in Title IV of ERISA.


 


“Yield” shall mean the per annum interest rate applicable to any
Major Project Indebtedness on the Yield Measurement Date or the Amendment
Measurement Date, as applicable, with such interest rate being calculated by
including in the determination thereof (a) any original issue discount (“OID”)
(inclusive of fees, other than in the case of


 


49

















 


the
Refinancing Indebtedness incurred in connection with the repayment of the
Cohocton Mini-Perm Financing, the Stetson I Existing Financing and/or the
Stetson Portfolio Financing) payable by the person incurring such indebtedness
(with OID (and such fees, if applicable) being equated to interest based on
four-year average life to maturity) and (b) to the extent that the
interest rate applicable to such Major Project Indebtedness is determined by
reference to a floating rate, the floating component shall be calculated by
reference to the 3-month LIBOR Rate as set forth on the Reuters Screen LIBOR01 page as
of 11:00 a.m. (London time) two (2) Business Days prior to the Yield
Measurement Date or the Amendment Measurement Date, as applicable, plus the
interest rate margin applicable under the terms of such Major Project
Indebtedness.


 


“Yield
Cap” will be defined as Yield in excess of 9%.


 


“Yield Measurement Date” shall mean, with respect to any Major
Project Indebtedness, the date of initial incurrence with respect to the
applicable Major Project Indebtedness Documents (including the closing date
with respect to any extension of maturity with respect to such Major Project
Indebtedness), and shall explicitly exclude the date of any conversion of loans
under the terms of such Major Project Indebtedness (such as a conversion from
base rate to LIBOR) or any later borrowing of loans under the terms of Major
Project Indebtedness (such as a drawing made under a revolving loan or a letter
of credit facility), if such borrowing is subject to a different rate than that
applied at the transaction closing date.


 


Section 1.2             Accounting Terms. All
accounting terms used and not defined in this Agreement shall be construed in
accordance with GAAP consistently applied and all computations and
determinations as to financial matters, and all financial data required to be
delivered hereunder, shall be made or prepared in accordance with such
principles. With respect to the determination of compliance with any financial
covenants contained herein, the relevant period for determination shall be the
most recent quarterly or annual period, as applicable, for which the Borrower
has submitted the financial statements required hereunder, which period shall
then supersede any prior period.


 


Section 1.3             Interpretation, Etc. Any of
the terms defined herein may, unless the context otherwise requires, be used in
the singular or the plural depending on the reference. References herein to any
Section, Appendix, Schedule or Exhibit shall be to a Section, an Appendix,
a Schedule or Exhibit, as the case may be, hereof unless otherwise specifically
provided. Any reference to a document shall be deemed to include all exhibits,
annexes, appendices and schedules thereto. The use herein of the word “include”
or “including”, when following any general statement, term or matter shall not
be construed to limit such statement, term or matter to the specific items or
matters set forth immediately following such word or to similar items or matters,
whether or not non-limiting language (such as “without limitation” or “but not
limited to” or words of similar import) is used with reference thereto, but
rather shall be deemed to refer to all other items or matters that fall within
the broadest possible scope of such general statement, term or matter. The
terms “asset” and “property” shall be construed to have the same meaning and
effect and refer to any and all tangible and intangible assets and properties,
including cash, Equity Interests, securities, revenues, accounts, leasehold
interests and contract rights. The words “hereof”, herein” and “hereunder”, and
words of similar import,


 


50

















 


when used in any Loan
Document shall refer to such Loan Document as a whole and not to any particular
provision of any Loan Document. The terms lease and license shall include any
sublease and sub-license, as applicable. In the computation of a period of time
from a specified date to a later date, the word “from” means “from and
including” and the words “to” and “until” each mean “to but excluding”. In
addition, (a) references herein to agreements and other contractual
instruments shall be deemed to include all subsequent amendments,
modifications, supplements, changes and waivers to such instruments, but only
to the extent that such amendments, modifications, supplements, changes and
waivers are permitted or not prohibited by the terms of this Agreement or the
affected agreement or contractual instruments, (b) references herein to
Requirements of Law or Governmental Approvals are to be construed as including
all statutory provisions consolidating, amending or replacing the Requirement
of Law or Governmental Approval to which reference is made and all regulations
promulgated pursuant to such Requirements of Law, (c) references herein to
Persons include their respective permitted successors and permitted assigns
and, in the case of any Governmental Authority, any Person succeeding to any of
its functions and capacities and (d) references to days shall refer to
calendar days, unless Business Days are specified; references to weeks, months
or years shall be to calendar weeks, months or years, respectively.


 


ARTICLE 2


 


THE CREDITS


 


Section 2.1             The Term Loans.


 


(a)           (i)            Subject
to and upon the terms and conditions set forth herein, (A) the Initial
Lenders agree to make loans (each, an “Initial Term Loan” and,
collectively, the “Initial Term Loans”), to the Borrower on the Initial
Closing Date in an amount equal to the Initial Term Loan Commitment, (B) on
or prior to the Subsequent Term Loan Commitment Expiration Date, the Initial
Lenders agree to make loans (each, a “Subsequent Term Loan” and,
collectively, the “Subsequent Term Loans”) to the Borrower on the
Subsequent Closing Date in an aggregate principal amount equal to the
Subsequent Term Loan Commitment and (C) on or prior to the Stetson II Term
Loan Commitment Expiration Date, the Initial Lenders agree to make loans (each,
a “Stetson II Term Loan” and, collectively, the “Stetson II Term
Loans”) to the Borrower on the Stetson II Funding Date in an aggregate
principal amount equal to the Stetson II Term Loan Commitment. Each of the
Borrower, CSSW Parent, the Initial Lenders and the Administrative Agent
acknowledge that the Initial Term Loans and the Subsequent Term Loans have been
made and that the Borrower has borrowed the full amount of the Initial Term
Loan Commitment and the Subsequent Term Loan Commitment. If the Stetson II
Funding Date has not occurred on or prior to the Stetson II Term Loan
Commitment Expiration Date, the Stetson II Term Loan Commitment shall terminate
in full on the Stetson II Term Loan Commitment Expiration Date. Any portion of
the Stetson II Term Loan Commitment not borrowed on the Stetson II Funding Date
shall automatically terminate on the Stetson II Funding Date.


 


(ii)               The Initial Term Loans were
funded by each Initial Lender to the Borrower on the Initial Closing Date at a
17.40143093% discount; accordingly, the amount of Initial Term Loans funded by
each Initial Lender to the Borrower on the Initial Closing Date


 


51

















 


was
in an amount equal to 82.59856907%  of
the stated principal amount of such Initial Term Loans.


 


(b)       The Term Loans are
available only on the terms and conditions specified hereunder and once repaid,
in whole or in part, at maturity or by prepayment, may not be reborrowed in
whole or in part.


 


(c)       The Term Loans,
including all PIK Interest, shall mature on the Maturity Date and shall be repaid
in full by the Borrower by wire transfer of immediately available funds in
Dollars for the account of the Lenders at the Payment Office of the
Administrative Agent.


 


Section 2.2             Procedure for Borrowing. The
Borrower shall give the Administrative Agent at least three (3) Business
Days’ prior written notice at the Notice Office of each Closing Date, which
notice (a “Notice of Borrowing”) shall be irrevocable and shall be given
by the Borrower substantially in the form of Exhibit C hereto,
appropriately completed to specify (a) the aggregate principal amount of
the Term Loans to be made on such date and (b) the applicable Closing
Date. Notwithstanding the foregoing, with respect to the initial borrowing of
the Term Loan to occur on the Initial Closing Date, the Borrower shall be
required to deliver a Notice of Borrowing on the Initial Closing Date. The
Administrative Agent shall promptly forward to the Initial Lenders the Notice
of Borrowing. Subject to the terms and conditions hereof, not later than 1:00
p.m. (New York City time) on the applicable Closing Date, the Initial Lenders
will make available the aggregate amount of Term Loans requested to be made on
the applicable Closing Date in Dollars and in immediately available funds
either, as agreed by the Borrower and the Initial Lenders, at the Payment
Office of the Administrative Agent or pursuant to a funds flow memorandum
confirmed by the Borrower and the Initial Lenders. If applicable, the
Administrative Agent shall credit the account of Borrower on the books of such
Payment Office with the aggregate of the amounts made available to the
Administrative Agent by the Initial Lenders in immediately available funds.


 


Section 2.3             Evidence of Obligations and
Notes.


 


(a)           Each Lender will maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender as a result of the Term Loans of
such Lender, including the amounts of principal, interest (including PIK
Interest) and other amounts payable and paid to such Lender from time to time
under this Agreement. The entries made by each Lender pursuant to the foregoing
sentence shall constitute prima facie evidence
of the existence and amounts of the Term Loans and other Obligations therein
recorded; provided, however, that the failure of such Lender to
maintain such account or accounts, or any error therein, shall not in any
manner affect the obligations of the Borrower to repay or pay the Term Loans,
accrued interest thereon (including PIK Interest) and the other Obligations of
the Borrower to such Lender hereunder in accordance with the terms of this
Agreement. Each Lender will advise the Borrower of the outstanding indebtedness
hereunder to such Lender upon written request therefor.


 


(b)           At the request of each Lender, the
Borrower’s obligation to pay the principal of, and interest on, the Term Loans
shall be evidenced by a promissory note duly


 


52

















 


executed and delivered by
the Borrower substantially in the form of Exhibit B hereto with
blanks appropriately completed in conformity herewith (each, a “Term Note”
and collectively, the “Term Notes”).


 


(c)           The Term Notes issued to each Lender
shall (i) be payable to the order of such Lender, (ii) be dated the
applicable Closing Date, (iii) be in a stated maximum principal amount
equal to the Term Loans of such Lender plus any PIK Interest, (iv) mature
on the Maturity Date, (v) bear interest as provided in this Agreement and (vi) be
entitled to the benefits of this Agreement and the other Loan Documents.


 


(d)           Each Lender will note on its internal
records the amount of each Term Loan made by it and each payment in respect
thereof and will prior to any transfer of the Term Note endorse on the reverse
side thereof the outstanding principal amount of Term Loans (including PIK
Interest) evidenced thereby. Failure to make such notation shall not affect the
Borrower’s obligations in respect of such Term Loans.


 


Section 2.4                 Mandatory Principal and
Interest Payments on Term Loans.


 


(a)           The Borrower may, at its option (an “Interest
Election”), elect to pay interest on the Loans on each Interest Payment
Date (i) entirely in cash (“Cash Interest”), (ii) by
increasing the outstanding principal amount of the Term Loans on the relevant
Interest Payment Date by the amount of interest accrued from the effective date
of any such Interest Election until the day immediately prior to the applicable
Interest Payment Date (“PIK Interest”) or (iii) 50% as Cash
Interest and 50% as PIK Interest. Unless the context otherwise requires, for
all purposes hereof, references to “principal amount” of the Term Loans
includes any interest so capitalized, including pursuant to Section 2.5,  and added to the principal amount of the Term
Loans from the date on which such interest has been so added.


 


(b)           The Borrower must make an Interest
Election by delivering an Interest Election notice to the Administrative Agent
no later than ten (10) Business Days prior to the effective date of any
Interest Election, which notice shall specify (x) whether such Interest
Election is made under clause (i), (ii) or (iii) of the immediately
preceding paragraph and (y) the effective date of such Interest Election,
which effective date must be the next Interest Payment Date. An Interest
Election shall remain in effect until the earlier of (i) the day
immediately prior to the next Interest Payment Date following the effective
date of such Interest Election and (ii) the Maturity Date. The
Administrative Agent shall promptly deliver the Interest Election notice with
their allocable interest amount to each Lender. In the absence of such an
election, interest on the Term Loans shall be payable 100% as PIK Interest.


 


(c)           Subject to Section 2.5,
each Term Loan shall bear interest (computed on the basis of the actual number
of days elapsed over a year of 365 (or 366 days, if applicable) at a rate per
annum that shall be equal to the Interest Rate.


 


(d)           Cash Interest accrued on each Term
Loan shall be payable on the Interest Payment Dates applicable to such Term
Loan, except as otherwise provided in this Agreement. PIK Interest accrued on
each Term Loan shall be payable by increasing the outstanding principal amount
of the Term Loans by the amount of PIK Interest on the Interest


 


53

















 


Payment
Date applicable to such Term Loan for such period and in such amounts as
required by the relevant Interest Election(s). Any interest so added to the
principal amount of the Term Loans, including pursuant to Section 2.5,
shall bear interest as provided in this Section 2.4 from the date
on which such interest has been so added. The obligation of the Borrower to pay
PIK Interest shall be automatically evidenced by this Agreement or, if
applicable, any Term Notes issued pursuant to this Agreement.


 


(e)       All accrued and unpaid
interest shall be paid in cash at maturity (whether by acceleration or
otherwise), after such maturity on demand and upon any repayment or prepayment
thereof (on the amount prepaid).


 


(f)        In addition to interest
payments required to be made hereunder, and subject to the rights of
acceleration hereunder, the full unpaid principal balance of the Term Loans
shall be payable in full on the Maturity Date.


 


(g)       The Initial Term Loans
shall be issued with OID. Lenders may obtain the issue price, the amount of
OID, issue date and yield to maturity with respect to the Initial Term Loans by
submitting a written request to the Borrower at its Notice Office.
Notwithstanding anything herein to the contrary, if on any Interest Payment
Date (not taking into account any available extensions) on or after June 30,
2015 or on any earlier date as required by Code Sections 163(e)(5) and 163(i),
the aggregate amount of accrued and unpaid original issue discount (as defined
in Section 1273(a)(1) of the Internal Revenue Code) on the Term Loans would,
but for this Section 2.4(g), exceed an amount equal to the product of
the issue price of the Term Loans multiplied by the yield to maturity (as
defined in Treasury Regulations Section 1.1272-1(b)(i)) of the Term Loans
as determined by the Borrower, the Borrower shall prepay at each such
applicable Interest Payment Date, without premium or penalty, the minimum
amount of principal plus accrued interest on the Term Loans necessary to
prevent any of the accrued and unpaid interest and original issue discount on
the Term Loans from being disallowed or deferred as a deduction under Section 163(e)(5) of
the Code to the Borrower (or any member of the Borrower, as applicable). No
partial prepayment of the Term Loans pursuant to any other provision of this
Agreement or the other Loan Documents shall alter the obligation of the
Borrower to make prepayments provided for in this Section 2.4(g).


 


Section 2.5             Default Rate. Upon the
occurrence and during the continuation of an Event of Default and during any
Standstill Period and during the Tax Equity Standstill Period (but only with
respect to the Subsequent Term Loans), interest shall accrue on the Term Loans
and all other outstanding amounts hereunder or under the Loan Documents (after
as well as before judgment, as and to the extent permitted by law) at a rate
per annum equal to the Default Rate and such interest shall be payable in cash
and upon demand; provided that, during the Standstill Period, the
Borrower may elect, by written notice to the Administrative Agent, to pay such
default interest as PIK Interest on each date that any demand for payment is
made.


 


Section 2.6             Sharing of Payments. Except
to the extent that this Agreement, any other Loan Document or any Judgment
expressly provides for payments to be allocated to a particular Lender, if any
Lender shall obtain any payment (whether voluntary, involuntary, through the
exercise of any right of set off, or otherwise, but excluding through any
assignment pursuant to


 


54

















 


Section 13.11 hereof) on
account of the Term Loans made by it in excess of its ratable share (according
to the then outstanding principal amount of the Term Loans) of payments on
account of the Term Loans obtained by all the Lenders, such Lender shall
purchase from the other Lenders such participations in the Term Loans held by
such other Lenders as shall cause such purchasing Lender to share such payment
ratably according to the then outstanding principal amount of the Term Loans
with each of such other Lenders; provided, however, that if all
or any portion of such payment is thereafter recovered from such purchasing
Lender, the purchase shall be rescinded and the purchase price restored to the
extent of such recovery, with interest at an interest rate per annum equal to
the Interest Rate. The Borrower agrees that any Lender so purchasing a
participation in the Term Loans from another Lender pursuant to this Section 2.6
may, to the fullest extent permitted by law, exercise all its rights of payment
with respect to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation.


 


Section 2.7             Removal or Replacement of a Lender.
In the event that: (a) any Lender shall make a demand for any payment
under Section 2.8 (each, a “Section 2.8 Lender”) or (b) in
connection with any proposed amendment, modification, termination, waiver or
consent with respect to any of the provisions hereof or any other Loan Document
that requires the consent of all of the Lenders or each of the Lenders affected
thereby, the consent of Majority Lenders shall have been obtained, but the
consent of one or more of such other Lenders (each, a “Non Consenting Lender”)
whose consent is required shall not have been obtained; then, with respect to
each such Section 2.8 Lender or Non Consenting Lender, the Borrower may,
by giving written notice of termination to Administrative Agent and any such Section 2.8
Lender or Non Consenting Lender (the “Terminated Lender”) of its
election to do so, elect to cause such Terminated Lender (and such Terminated
Lender hereby irrevocably agrees) to assign its outstanding Term Loans in full
to one or more Successor Lenders in accordance with the provisions of Article 13
and Borrower shall pay the fees, if any, payable thereunder in connection with
any such assignment; provided that (1) on the date of such
assignment, the Successor Lender shall pay to the Terminated Lender an amount
equal to the sum of (A) an amount equal to the principal of, and all
accrued interest on, all outstanding Term Loans of the Terminated Lender and (B) an
amount equal to all other amounts owing to such Terminated Lender under this
Agreement or any other Loan Documents, (2) on the date of such assignment,
the Borrower shall pay any amounts payable to such Terminated Lender as if it
were a prepayment pursuant to Sections 4.1 or 4.2, as applicable,
and (3) in the event such Terminated Lender is a Non Consenting Lender,
each Successor Lender shall consent, at the time of such assignment, to each
matter in respect of which such Terminated Lender was a Non Consenting Lender.
Upon the prepayment of all amounts owing to any Terminated Lender, if any, such
Terminated Lender shall no longer constitute a “Lender” for purposes hereof; provided,
any rights of such Terminated Lender that, pursuant to the terms hereof and the
other Loan Documents expressly survive any assignment, shall survive as to such
Terminated Lender.


 


Section 2.8             Capital Adequacy.


 


(a)           If any Lender shall have determined
that the adoption of, or any change in, any Capital Adequacy Regulation or in
the interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any


 


55

















 


Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender’s or such corporation’s capital as a
consequence of its obligations hereunder to a level below that which such
Lender or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender’s or such corporation’s
policies with respect to capital adequacy) by an amount deemed by such Lender
to be material, then from time to time, after submission by such Lender to the
Borrower (with a copy to the Administrative Agent) of a written request
therefor, the Borrower shall pay to such Lender such additional amount or
amounts as will compensate such Lender or such corporation for such reduction.


 


(b)       A certificate as to any
additional amounts payable pursuant to this Section 2.8 submitted
by any Lender to the Borrower (with a copy to the Administrative Agent) shall
be conclusive in the absence of manifest error. Notwithstanding anything to the
contrary in this Section 2.8, the Borrower shall not be required to
compensate a Lender pursuant to this Section 2.8  for any amounts incurred more than nine
months prior to the date that such Lender notifies the Borrower of such
Lender’s intention to claim compensation therefor; provided that, if the
circumstances giving rise to such claim have a retroactive effect, then such
nine-month  period shall be extended to
include the period of such retroactive effect. The obligations of the Borrower
pursuant to this Section 2.8 shall survive the termination of this
Agreement and the payment of the Term Loans and all other amounts payable
hereunder.


 


Section 2.9             Pro Rata Borrowings;
Availability. The Term Loans shall be incurred ratably among the Initial
Lenders based upon the amount of their respective Initial Term Loan
Commitments, Subsequent Term Loan Commitments and Stetson II Term Loan
Commitments, respectively. It is agreed that no Initial Lender shall be
responsible for any default by any other Initial Lender of its obligation to
make a Term Loan hereunder and that each Initial Lender shall be obligated to
make the Term Loans provided to be made by it hereunder regardless of the
failure of any other Initial Lender to make a Term Loan hereunder.


 


ARTICLE 3


 


CONDITIONS TO TERM LOANS


 


Section 3.1             Conditions to the Term Loans and
Initial Closing Date. The Initial Lenders’ obligation to make the Initial
Term Loan on the Initial Closing Date shall be subject to the satisfaction or
waiver of the conditions precedent set forth below:


 


(a)       CSSW Parent and the
Borrower shall have delivered the following to the Administrative Agent, the
Collateral Agent and the Initial Lenders on or prior to the Initial Closing
Date, each in form and substance satisfactory to the Initial Lenders:


 


(i)            The Term Note, the
Notice of Borrowing and each of the other Loan Documents, duly executed by CSSW
Parent and the Borrower, as applicable.


 


(ii)           The Equity
Documents, duly executed by each required signatory thereto, other than PIP3PX
FirstWind LLC Ltd. and PIP3GV FirstWind LLC Ltd.


 


56














 


(iii)                               A copy of the
Organizational Documents of each of CSSW Parent, the Borrower and each of the
Cohocton Companies and Stetson Companies as in effect on the Initial Closing
Date, certified by the Secretary of State or other appropriate public official
of the state of its incorporation or organization, and a certificate as to the
good standing of CSSW Parent, the Borrower and each of the Cohocton Companies
and Stetson Companies from the appropriate public official of the jurisdiction
of its incorporation, organization or formation, dated as of a date no earlier
than 15 days prior to the Initial Closing Date.


 


(iv)                              A certificate
of an Authorized Officer of each of CSSW Parent and the Borrower, dated the
Initial Closing Date, certifying (A) that attached thereto is a true and
complete copy of the Organizational Documents of CSSW Parent, the Borrower and
each of the Cohocton Companies and Stetson Companies as in effect on the
Initial Closing Date and at all times from the date on which the resolutions
referred to in clause (B) below were adopted, to and including the date of
such certificate, (B) that attached thereto is a true and complete copy of
resolutions duly adopted by the board of directors (or other equivalent body)
or evidence of all partnership, corporate or limited liability company or
membership action, as the case may be, authorizing the execution, delivery and
performance by CSSW Parent and the Borrower of the Loan Documents to which such
Person is or is intended to be party, and that such resolutions have not been
modified, rescinded or amended and are in full force and effect, and (C) the
name, incumbency and specimen signature of each Authorized Officer of CSSW
Parent and the Borrower executing the Loan Documents and each other document to
be delivered by CSSW Parent or the Borrower from time to time in connection
therewith (and the Secured Parties may conclusively rely on such certificate
until the Administrative Agent receives a replacement certificate in the form
described in this clause (C) from such Person).


 


(v)                                 A certificate
of another Authorized Officer of each of CSSW Parent and the Borrower as to the
name, incumbency and specimen signature of the Authorized Officer of such
Person that signed the certificate referred to in clause (iv)(C) above.


 


(vi)                              Legal opinions
of in-house counsel to CSSW Parent, the Borrower and each of the Cohocton
Companies and Stetson Companies and Goodwin Procter LLP, special counsel to
CSSW Parent, the Borrower and each of the Cohocton Companies and Stetson Companies,
in substantially the form of Exhibits D and E, respectively,
dated as of the Initial Closing Date.


 


(vii)                           A listing of
each policy of insurance held by CSSW Parent, the Borrower and each of the
Subsidiaries, which list sets forth the insurance required with respect to the
Cohocton Project and the Stetson I Project pursuant to Section 9.6;  together with a certification from an
Authorized Officer of the Borrower that such insurance policies comprise all
insurance required to be maintained (or caused to be maintained) in respect of
the Cohocton Project and the Stetson I Project pursuant to Section 9.6
hereof, that each has been obtained and is in full force and effect on the
Initial Closing Date and


 


57

















 


such
insurance policies comply in all respects with the requirements of Section 9.6
hereof.


 


(viii)                        Results of a
recent Lien search with respect to CSSW Parent, the Borrower and each of the
Cohocton Companies and Stetson Companies, and such search shall reveal no Liens
on any of the assets of CSSW Parent or the Borrower and no Liens other than
Permitted Liens, on any of the assets of the Cohocton Companies and Stetson
Companies.


 


(ix)                                All documents
required to be filed, registered, notarized or recorded in order to create and
perfect the security interests with respect to the CSSW Parent and the Borrower
as first priority Liens, which documents shall have either (x) been
executed and delivered to the Collateral Agent for filing or recording in form
and substance satisfactory to the Initial Lenders, or (y) been properly
filed, registered, notarized or recorded in each office in each jurisdiction in
which such filings, registrations, notarizations and recordings are required,
and any other action required in the reasonable judgment of the Collateral
Agent or the Initial Lenders to perfect such security interests as such first
priority Liens shall have been effected and the Collateral Agent shall have
received (with respect to any filings described in clause (y) above)
acknowledgment copies or other evidence reasonably satisfactory to it that all
necessary filing, notarization, recording and other fees and all Taxes and
expenses related to such filings, notarizations, registrations and recordings
have been paid in full.


 


(x)                                   Certificates
representing the Equity Interests, if any, required to be pledged pursuant to
the Security Documents, together with undated powers for each such certificate
executed in blank by an Authorized Officer of the pledgor thereof.


 


(xi)                                The Base Case
Projections Model, operating plan for 2009 and the operating budget for 2009
for each of the Cohocton Project and Stetson I Project, in the form approved by
the Initial Lenders.


 


(xii)                             With respect to
the Cohocton Project and Stetson I Project, the Historical Financial
Statements, together with a certificate of a Financial Officer of the Borrower
that such financial statements fairly present in all material respects the
financial condition of such Persons as at the dates indicated, 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 which management
of the Borrower believes are reasonable.


 


(xiii)                          With respect to
the Cohocton Project and the Stetson I Project, the Pro Forma Financial
Statements, together with a certificate of a Financial Officer of the Borrower
that such Pro Forma Financial Statements have been prepared based upon
historical financial information that was prepared in accordance with GAAP and
fairly present in all material respects the pro forma financial condition of
the Borrower and its Consolidated Subsidiaries as at the dates or for such
periods indicated on the basis of the assumptions set forth therein.


 


58

















 


(xiv)                         An officer’s
certificate of an Authorized Officer of the Borrower certifying that (x) each
of the representations and warranties set forth in Article 5, and otherwise
in the Loan Documents are true and correct in all material respects as of the
Initial Closing Date (other than those qualified by a reference to materiality
or Material Adverse Effect, which representations and warranties will be true
and correct in all respects, and other than any representations or warranties
with respect to the Steel Winds Companies or the Steel Winds Project) and (y) no
Default or Event of Default hereunder shall have occurred and be continuing.


 


(b)                     All
Governmental Approvals and consents, approvals and filings required to be obtained
or made with any Governmental Authority or any other Person in order for each
party thereto to execute, deliver and perform the Transaction Documents to
which it is a party and the HSHN Stetson I Amendments have been obtained or
made and are in full force and effect as of the Initial Closing Date.


 


(c)                      No action or
proceeding has been instituted or threatened in writing by any Governmental
Authority or any other Person (i) against CSSW Parent, the Borrower or any
of the Borrower’s Subsidiaries which seeks to impair, restrain, prohibit or
invalidate the transactions contemplated by any of the Transaction Documents
with respect to the Cohocton Project or the Stetson I Project or (ii) regarding
the effectiveness or validity of any Governmental Approvals, in any material
respect, with respect to the Cohocton Project or the Stetson I Project.


 


(d)                     The Borrower
shall have made available to the Administrative Agent and the Initial Lenders
electronically or otherwise copies of all Material Project Documents (and Schedule
3.1(d)  sets forth all Material Project Documents as certified by an
Authorized Officer) with respect to the Cohocton Project and Stetson I Project.


 


(e)                      The Borrower
shall have made available to the Administrative Agent and the Initial Lenders
electronically or otherwise copies of all Major Project Indebtedness Documents
(including the Lehman Tax Equity Financing documents) and other documents
governing any outstanding Indebtedness (and Schedule 3.1(e)  sets
forth all such documents as certified by an Authorized Officer of the Borrower)
with respect to the Cohocton Project and Stetson I Project and all copies of
documents governing the Holdings Lien Indebtedness.


 


(f)                        (A) None
of CSSW Parent, the Borrower, any of the Cohocton Companies or any other
Stetson Companies shall be in default in the performance, observance or
fulfillment of any obligations, covenants or conditions contained in any of the
Material Project Documents or any Major Project Indebtedness Documents with
respect to the Cohocton Project or the Stetson I Project, as applicable, and to
CSSW Parent’s, the Borrower’s, any Cohocton Companies’ and Stetson Company’s
knowledge, no Project Participant is in default in the performance, observance
or fulfillment of any obligations, covenants or conditions contained in any
Material Project Document with respect to the Cohocton Project or the Stetson I
Project, as applicable, in each case, except to the extent that such default
could not reasonably be expected to have a Material Adverse Effect, (B) each
such Material Project Document with respect to the Cohocton Project and the
Stetson I Project shall be in full force and effect, (C) the copy of each
such Material Project Document with respect to the Cohocton


 


59

















 


Project
and the Stetson I Project delivered to the Initial Lenders pursuant to Section 3.1(d) 
shall be true, correct and complete, and the copy of each document set forth on
Schedule 3.1(e)  with respect to the Cohocton Project and the Stetson
I Project delivered pursuant to Section 3.1(e)  shall be true,
correct and complete, (D) except as delivered to the Initial Lenders
pursuant to Section 3.1(d)  and Section 3.1(e),  there shall be no agreements, side letters or
other documents to which the Parent or any of its Subsidiaries is a party,
which have the effect of modifying or supplementing in any material respect any
of the respective rights or obligations of the parties under any such of the
Material Project Documents or under any document set forth on Schedule
3.1(e)  with respect to the Cohocton Project or the Stetson I Project,
as applicable and (E) the Administrative Agent and the Initial Lenders
shall have received a certificate of an Authorized Officer of the Borrower
certifying that each of the conditions set forth in clauses (A), (B), (C) and
(D) of this Section 3.1(f)  have been satisfied.


 


(g)                     The HSHN
Stetson I Amendments and the Second Lien Security Agreement shall have been
entered into in a form and substance reasonably satisfactory to the Initial
Lenders and shall be in full force and effect and the Borrower shall have
provided full and complete executed copies of such agreements.


 


(h)                     The Agents and
the Initial Lenders shall have received all fees and expense reimbursements due
and payable on the Initial Closing Date by the Borrower.


 


(i)                         No Material
Adverse Effect shall have occurred since March 31, 2009, except as set
forth on Schedule 5.7 hereto.


 


(j)                         The
organizational structure, as of the Initial Closing Date, of CSSW Parent and
the Borrower shall be as described on Exhibit G.


 


Section 3.2                                      Conditions to
Subsequent Closing Date. The Initial Lenders’ obligation to make the
Subsequent Term Loan on the Subsequent Closing Date pursuant to this Agreement
shall be subject to the satisfaction or waiver of all of the conditions
precedent set forth below, which relate solely to the Steel Winds Companies and
the Steel Winds Project, no later than the Subsequent Term Loan Commitment
Expiration Date:


 


(a)                      The Borrower
shall have delivered the following to the Administrative Agent, the Collateral
Agent and the Initial Lenders on or prior to the Subsequent Closing Date, each
in form and substance satisfactory to the Initial Lenders:


 


(i)                                     The Notice of
Borrowing duly executed by the Borrower and, if required pursuant to Section 9.22,
an Assumption Agreement to the Security Agreement duly executed by the Steel
Winds Project Company and the Steel Winds Holding Company.


 


(ii)                                  A copy of the
Organizational Documents of each of the Steel Winds Companies as in effect on
the Subsequent Closing Date, certified by the Secretary of State or other
appropriate public official of the state of its incorporation or organization,
and a certificate as to the good standing of each of the Steel Winds Companies
from the appropriate public official of the jurisdiction of its incorporation,


 


60

















 


organization
or formation, dated as of a date no earlier than fifteen (15) days prior to the
Subsequent Closing Date.


 


(iii)                               A certificate
of an Authorized Officer of each of the Steel Winds Companies dated the
Subsequent Closing Date, certifying (A) that attached thereto is a true
and complete copy of the Organizational Documents of each of the Steel Winds
Companies as in effect on the Subsequent Closing Date and at all times from the
date on which the resolutions referred to in clause (B) below were
adopted, to and including the date of such certificate, (B) that attached
thereto is a true and complete copy of resolutions duly adopted by the board of
directors (or other equivalent body) or evidence of all partnership, corporate
or limited liability company or membership action, as the case may be,
authorizing the execution, delivery and performance by each of the Steel Winds
Companies of the Loan Documents to which such Person is or is intended to be a
party, and that such resolutions have not been modified, rescinded or amended
and are in full force and effect, and (C) the name, incumbency and
specimen signature of each authorized officer of each Steel Winds Company
executing the Loan Documents and each other document to be delivered by each
such Steel Winds Company from time to time in connection therewith (and the
Secured Parties may conclusively rely on such certificate until the
Administrative Agent receives a replacement certificate in the form described
in this clause (C) from such Person).


 


(iv)                              Legal opinions
of in-house counsel to the Steel Winds Companies, and Goodwin Procter LLP,
special counsel to the Steel Winds Companies, in substantially the form of Exhibits
D and E, respectively, and a legal opinion of Nixon Peabody LLP,
special New York regulatory counsel to the Steel Winds Companies, with respect
to the Lehman Tax Equity Buyback, in the form previously provided to the
Initial Lenders, dated as of the Subsequent Closing Date.


 


(v)                                 A listing of
each policy of insurance held by CSSW Parent, the Borrower and each of the
Subsidiaries, which list sets forth the insurance required with respect to the
Steel Winds Project pursuant to Section 9.6; together with a
certification from an Authorized Officer of the Borrower that such insurance
policies comprise all insurance required to be maintained (or caused to be
maintained) in respect of the Steel Winds Project pursuant to Section 9.6
hereof, that each has been obtained and is in full force and effect on the
Subsequent Closing Date and such insurance policies comply in all respects with
the requirements of Section 9.6.


 


(vi)                              Results of a
recent Lien search with respect to the Steel Winds Companies, and such search
shall reveal no Liens on any of the assets of the Steel Winds Companies.


 


(vii)                           If required
pursuant to Section 9.22, all documents required to be filed,
registered, notarized or recorded in order to create and perfect the security
interests with respect to the Steel Winds Holding Company and the Steel Winds
Project Company as first priority Liens, which documents shall have either (x) been
executed and delivered to the Collateral Agent for filing or recording in form
and substance satisfactory to the Initial Lenders, or (y) been properly
filed, registered, notarized or recorded in each office


 


61

















 


in
each jurisdiction in which such filings, registrations, notarizations and recordings
are required, and any other action required in the reasonable judgment of the
Collateral Agent or the Initial Lenders to perfect such security interests as
such first priority Liens shall have been effected and the Collateral Agent
shall have received (with respect to any filings described in clause (y) above)
acknowledgment copies or other evidence reasonably satisfactory to it that all
necessary filing, notarization, recording and other fees and all Taxes and
expenses related to such filings, notarizations, registrations and recordings
have been paid in full.


 


(viii)                        Certificates
representing the Equity Interests, if any, required to be pledged pursuant to
the Security Documents, together with undated powers for each such certificate
executed in blank by an Authorized Officer of the pledgor thereof.


 


(ix)                                The Base Case
Projections Model, operating plan for the Fiscal Year in which the Subsequent
Closing Date occurs and the operating budget for such Fiscal Year for the Steel
Winds Project, in the form approved by the Initial Lenders.


 


(x)                                   With respect to
the Steel Winds Project, the Historical Financial Statements, together with a
certificate of a Financial Officer of the Borrower that such financial
statements fairly present in all material respects the financial condition of
such Persons as at the dates indicated, 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.


 


(xi)                                With respect to
the Steel Winds Project, the Pro Forma Financial Statements, together with a
certificate of a Financial Officer of the Borrower that such Pro Forma
Financial Statements have been prepared based upon historical financial
information that was prepared in accordance with GAAP and fairly present in all
material respects the pro forma financial condition of the Borrower and its
Consolidated Subsidiaries as at the dates or for such periods indicated on the
basis of the assumptions set forth therein which management of the Borrower
believes are reasonable.


 


(xii)                             An officer’s
certificate of an Authorized Officer of the Borrower certifying that (x) each
of the representations and warranties set forth in Article 5, and otherwise
in the Loan Documents are true and correct in all material respects as of the
Subsequent Closing Date (other than those qualified by a reference to
materiality or Material Adverse Effect, which representations and warranties
will be true and correct in all respects) and (y) no Default or Event of
Default hereunder shall have occurred and be continuing.


 


(b)                     All
Governmental Approvals and consents, approvals and filings required to be
obtained or made with any Governmental Authority or any other Person in
connection with the Steel Winds Reorganization, the Lehman Tax Equity Buyback
and in order for each party thereto to execute, deliver and perform the
Transaction Documents to which it is a party have been obtained or made and are
in full force and effect as of the Subsequent Closing Date.


 


62

















 


(c)                      No action or
proceeding has been instituted or threatened in writing by any Governmental
Authority or any other Person (i) against CSSW Parent, the Borrower or any
of the Borrower’s Subsidiaries which seeks to impair, restrain, prohibit or
invalidate the transactions contemplated by any of the Transaction Documents
with respect to the Steel Winds Project or (ii) regarding the
effectiveness or validity of any Governmental Approvals with respect to the
Steel Winds Project.


 


(d)                     The Borrower
shall have made available electronically or otherwise copies of all Material
Project Documents listed on Schedule 3.2(d) with respect to the
Steel Winds Project.


 


(e)                      There shall be
no Indebtedness outstanding in respect of the Steel Winds Companies and the
Steel Winds Project, other than the Steel Winds Letters of Credit.


 


(f)                        (A) None
of CSSW Parent, the Borrower or any Steel Winds Company shall be in default in
the performance, observance or fulfillment of any obligations, covenants or
conditions contained in any of the Material Project Documents with respect to
the Steel Winds Project, and to CSSW Parent’s, the Borrower’s and any Steel
Winds Company’s knowledge, no Project Participant shall be in default in the
performance, observance or fulfillment of any obligations, covenants or
conditions under any Material Project Document with respect to the Steel Winds
Project, in each case, except to the extent that such default could not
reasonably be expected to have a Material Adverse Effect, (B) each such
Material Project Document with respect to the Steel Winds Project shall be in
full force and effect, (C) the copy of each such Material Project Document
with respect to the Steel Winds Project delivered to the Initial Lenders
pursuant to Section 3.2(d) shall be true, correct and
complete, (D) except as delivered to the Initial Lenders pursuant to Section 3.2(d),
there shall be no agreements, side letters or other documents to which the
Parent or any of its Subsidiaries is a party which have the effect of modifying
or supplementing in any material respect any of the respective rights or
obligations of the parties under any such of the Material Project Documents
with respect to the Steel Winds Project and (E) the Administrative Agent
and the Initial Lenders shall have received a certificate of an Authorized
Officer of the Borrower certifying that each of the conditions set forth in
clauses (A), (B), (C) and (D) of this Section 3.2(f) have
been satisfied.


 


(g)                     The Initial
Lenders shall have received all expense reimbursements due and payable on the
Subsequent Closing Date by the Borrower.


 


(h)                     No Material
Adverse Effect shall have occurred since March 31, 2009, except as set
forth on Schedule 5.7 hereto.


 


(i)                         The Steel Winds
Reorganization shall have occurred or shall occur concurrently with the
Subsequent Closing Date as described on Schedule 1 hereto.


 


(j)                         The Lehman Tax
Equity Buyback shall have occurred or shall occur concurrently with the
Subsequent Closing Date in a manner reasonably satisfactory to the Initial
Lenders.


 


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(k)                      The Initial
Closing Date shall have occurred or shall occur concurrently with the
Subsequent Closing Date.


 


Section 3.3                                      Conditions to
Stetson II Effective Date. The obligations of the Initial Lenders to
enter into the commitment to make the Stetson II Term Loans and the
effectiveness of the Stetson II Effective Date pursuant to this Agreement shall
be subject to the satisfaction or waiver of all of the conditions precedent set
forth below, which, except as otherwise provided herein, relate solely to CSSW
Parent, the Borrower, the Stetson Intermediate Holding Company, the Stetson
Holding Company, the Stetson I Project Company, the Stetson I Project, the
Stetson II Project Company and the Stetson II Project:


 


(a)                      The Stetson
Reorganization shall have occurred or shall occur concurrently with the Stetson
II Effective Date as described on Schedule 3 hereto.


 


(b)                     The Stetson
Portfolio Financing shall have been entered into in a form and substance
reasonably satisfactory to the Initial Lenders and shall be in full force and
effect, the Stetson I Existing Financing shall have been terminated and paid
off in full, and the Borrower shall have provided full and complete executed copies
of such agreements.


 


(c)                      The Borrower
shall have delivered the following to the Administrative Agent, the Collateral
Agent and the Initial Lenders on or prior to the Stetson II Effective Date,
each in form and substance satisfactory to the Initial Lenders:


 


(i)                                     A copy of the Organizational
Documents of the each of CSSW Parent, the Borrower, Stetson Intermediate
Holding Company, the Stetson Holding Company, the Stetson I Project Company and
the Stetson II Project Company as in effect on the Stetson II Effective Date,
certified by the Secretary of State or other appropriate public official of the
state of its incorporation or organization, and a certificate as to the good
standing of each of CSSW Parent, the Borrower Stetson Intermediate Holding
Company, the Stetson Holding Company, the Stetson I Project Company and the
Stetson II Project Company from the appropriate public official of the
jurisdiction of its incorporation, organization or formation, dated as of a
date no earlier than fifteen (15) days prior to the Stetson II Effective Date.


 


(ii)                                  A certificate of an
Authorized Officer of each of CSSW Parent and the Borrower dated the Stetson II
Effective Date, certifying (A) that attached thereto is a true and
complete copy of the Organizational Documents of each of CSSW Parent, the
Borrower, Stetson Intermediate Holding Company, the Stetson Holding Company,
the Stetson I Project Company and the Stetson II Project Company as in effect
on the Stetson II Effective Date and at all times from the date on which the
resolutions referred to in clause (B) below were adopted, to and including
the date of such certificate, (B) that attached thereto is a true and
complete copy of resolutions duly adopted by the board of directors (or other
equivalent body) or evidence of all partnership, corporate or limited liability
company or membership action, as the case may be, authorizing the execution,
delivery and performance by CSSW Parent and the Borrower of the Loan Documents
to which such Person is or is intended to be a party, and that such resolutions
have not been modified, rescinded or amended and are in full force and effect,
and (C) the name,


 


64

















 


incumbency and specimen signature of each authorized officer of CSSW
Parent and the Borrower executing the Loan Documents and each other document to
be delivered by the CSSW Parent or the Borrower, as applicable, from time to
time in connection therewith (and the Secured Parties may conclusively rely on
such certificate until the Administrative Agent receives a replacement
certificate in the form described in this clause (C) from such Person).


 


(iii)                               Legal opinions of in-house
counsel to the Stetson Intermediate Holding Company and the Stetson II Project
Company, and Goodwin Procter LLP, special counsel to CSSW Parent, the Borrower,
the Stetson Intermediate Holding Company, the Stetson Holding Company, the
Stetson I Project Company and the Stetson II Project Company, in substantially
the form of Exhibits D and E, respectively, dated as of the
Stetson II Effective Date.


 


(iv)                              A listing of each policy of
insurance held by CSSW Parent, the Borrower and each of the Subsidiaries, which
list sets forth the insurance required with respect to the Stetson II Project
pursuant to Section 9.6; together with a certification from an
Authorized Officer of the Borrower that such insurance policies comprise all
insurance required to be maintained (or caused to be maintained) in respect of
the Stetson II Project pursuant to Section 9.6 hereof, that each
has been obtained and is in full force and effect on the Stetson II Effective
Date and such insurance policies comply in all respects with the requirements
of Section 9.6.


 


(v)                                 Results of a recent Lien
search with respect to the Stetson Intermediate Holding Company and the Stetson
II Project Company, and such search shall reveal no Liens on any of the assets
of such companies other than Permitted Liens.


 


(vi)                              Certificates representing
the Equity Interests, if any, required to be pledged pursuant to the Security
Documents, together with undated powers for each such certificate executed in
blank by an Authorized Officer of the pledgor thereof.


 


(vii)                           The Base Case Projections
Model and operating plan for the Fiscal Year in which the Stetson II Effective
Date occurs and the operating budget, as applicable, for such Fiscal Year for
the Stetson I Project and the Stetson II Project, in the form approved by the
Initial Lenders.


 


(viii)                        With respect to the Stetson
I Project and the Stetson II Project, the Historical Financial Statements,
together with a certificate of a Financial Officer of the Borrower that such
financial statements fairly present in all material respects the financial
condition of such Persons as at the dates indicated, 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.


 


(ix)                                With respect to the Stetson
I Project and the Stetson II Project, the Pro Forma Financial Statements,
together with a certificate of a Financial Officer of the Borrower that such
Pro Forma Financial Statements have been prepared based upon historical
financial information that was prepared in accordance with GAAP and fairly


 


65














 


present in all material respects the pro forma financial condition of
the Borrower and its Consolidated Subsidiaries as at the dates or for such
periods indicated on the basis of the assumptions set forth therein which
management of the Borrower believes are reasonable.


 


(x)            An officer’s
certificate of an Authorized Officer of the Borrower certifying that (x) each
of the representations and warranties set forth in Article 5, and otherwise
in the Loan Documents are true and correct in all material respects as of the
Stetson II Effective Date (other than those qualified by a reference to
materiality or Material Adverse Effect, which representations and warranties
will be true and correct in all respects) and (y) no Default or Event of
Default hereunder shall have occurred and be continuing and as to matters set
forth in clauses (d), (e) and (m) below.


 


(xi)           Amendment No. 1
to Intercreditor Agreement, duly executed by the Collateral Agent, HSHN and the
Holdings Lenders (as defined in the Intercreditor Agreement).


 


(xii)          Amendment No. 2
to the Guarantee and Security Agreement, duly executed by the Borrower, CSSW
Parent, the Collateral Agent and the Initial Lenders.


 


(d)       All
Governmental Approvals and consents, approvals and filings required to be
obtained or made with any Governmental Authority or any other Person in
connection with the Stetson Reorganization and the Stetson Portfolio Financing
and in order for each party thereto to execute, deliver and perform the
Transaction Documents to which it is a party have been obtained or made and are
in full force and effect as of the Stetson II Effective Date.


 


(e)       No action or
proceeding has been instituted or threatened in writing by any Governmental
Authority or any other Person (i) against CSSW Parent, the Borrower or any
of the Borrower’s Subsidiaries which seeks to impair, restrain, prohibit or
invalidate the transactions contemplated by any of the Transaction Documents
with respect to the Stetson I Project or the Stetson II Project or (ii) regarding
the effectiveness or validity of any Governmental Approvals with respect to the
Stetson I Project or the Stetson II Project.


 


(f)        The Borrower
shall have made available electronically or otherwise copies of all Material
Project Documents listed on Schedule 3.3(f) with respect to the
Stetson II Project and any other reports, notices, certificates or other
information required to be delivered pursuant to Section 7.7.


 


(g)       (i) None
of CSSW Parent, the Borrower or any Stetson Company shall be in default in the
performance, observance or fulfillment of any obligations, covenants or
conditions contained in any of the Material Project Documents with respect to
the Stetson I Project or Stetson II Project, and to CSSW Parent’s, the
Borrower’s and any Stetson Company’s knowledge, no Project Participant shall be
in default in the performance, observance or fulfillment of any obligations,
covenants or conditions under any Material Project Document with respect to the
Stetson I Project or Stetson II Project, in each case, except to the extent
that such default could not reasonably be expected to have a Material Adverse
Effect, (ii) each such Material Project Document with respect to the
Stetson I Project


 


66

















 


and the Stetson II Project shall be in full force and effect, (iii) the
copy of each such Material Project Document with respect to the Stetson I
Project and the Stetson II Project delivered to the Initial Lenders pursuant to
Section 3.3(f) shall be true, correct and complete, (iv) except
as delivered to the Initial Lenders pursuant to Section 3.3(f),  there shall be no agreements, side letters or
other documents to which the Parent or any of its Subsidiaries is a party which
have the effect of modifying or supplementing in any material respect any of
the respective rights or obligations of the parties under any such of the
Material Project Documents with respect to the Stetson I Project and the
Stetson II Project and (v) the Administrative Agent and the Initial
Lenders shall have received a certificate of an Authorized Officer of the
Borrower certifying that each of the conditions set forth in clauses (i), (ii),
(iii) and (iv) of this Section 3.3(g) have been
satisfied.


 


(h)       Except as set
forth in Schedule 5.7 hereto, no Material Adverse Effect shall have
occurred since (i) with respect to CSSW Parent, the Borrower, the Cohocton
Companies, the Stetson Holding Company, the Stetson I Project Company, the
Steel Winds Companies, the Cohocton Project, Stetson I Project and Steel Winds
Project, March 31, 2009 and (ii) with respect to the Stetson
Intermediate Holding Company, the Stetson II Project Company and the Stetson II
Project, September 30, 2009.


 


(i)        The Initial
Lenders shall have received a copy of the Stetson II Construction Budget.


 


(j)        The Initial
Lenders shall have received a copy of each of the reports, certificates or
other evidence delivered pursuant to Sections 5.1(g), 5.1(h), 5.1(m), 5.1(n),
5.1(o), 5.1(q), 5.1(r), 5.1(s), 5.1(w) and 5.1(mm) of the Stetson
Portfolio Financing Agreement, in each case, together with any attachments.


 


(k)       The Initial
Lenders shall have received (addressed to them) the same Independent Engineer’s
Closing Certificate and Report (as defined in the Stetson Portfolio Financing
Agreement) being delivered pursuant to Section 5.1(p) of the Stetson
Portfolio Financing Agreement, the same Annual Operating Plan (as defined in
the Stetson Portfolio Financing Agreement) being delivered pursuant to Section 5.1(u)
of the Stetson Portfolio Financing Agreement, and the same certificate
regarding Applicable Permits (as defined in the Stetson Portfolio Financing
Agreement) being delivered pursuant to Section 5.1(x) of the Stetson
Portfolio Financing Agreement, in each case, together with any attachments.


 


(l)        The organizational
structure, as of the Stetson II Effective Date, of CSSW Parent, the Borrower
and its Subsidiaries shall be as described on Exhibit K.


 


(m)      A certificate
of the Borrower signed by an Authorized Officer certifying that the
representations and warranties set forth in Sections 6.16(a) and (b), 6.22,
6.23, 6.24, 6.37, 6.38 and 6.39 of the Stetson Portfolio Financing Agreement
are true and correct in all material respects as of the Stetson II Effective
Date.


 


Section 3.4             Conditions to Stetson II
Funding Date. The Initial Lenders’ obligation to make the
Stetson II Term Loans on the Stetson II Funding Date pursuant to this Agreement
shall be subject to the satisfaction or waiver of all of the conditions
precedent set forth below, which


 


67

















 


except
as otherwise provided herein, relate solely to CSSW Parent, the Borrower, the
Stetson Intermediate Holding Company, the Stetson Holding Company, the Stetson
I Project Company, the Stetson I Project, the Stetson II Project Company and
the Stetson II Project, no later than the Stetson II Term Loan Commitment
Expiration Date. The Borrower shall have delivered the following to the
Administrative Agent, the Collateral Agent and the Initial Lenders on or prior
to the Stetson II Funding Date, each in form and substance satisfactory to the
Initial Lenders:


 


(a)       The Notice of
Borrowing duly executed by the Borrower.


 


(b)       An officer’s
certificate of an Authorized Officer of the Borrower certifying that (w) each
of the representations and warranties set forth in Article 5, and
otherwise in the Loan Documents are true and correct in all material respects
as of the Stetson II Funding Date (other than those qualified by a reference to
materiality or Material Adverse Effect, which representations and warranties
will be true and correct in all respects), (x) no Default or Event of
Default hereunder shall have occurred and be continuing, (y) no default or
event of default under the Stetson Portfolio Financing shall have occurred
during the Stetson II Construction Period and be continuing and (z) no
Event of Loss with respect to the Stetson II Project shall have occurred and as
to matters set forth in clauses (j) and (n) below.


 


(c)       The Borrower
shall have made available electronically or otherwise copies of all Material
Project Documents listed on Schedule 3.3(f) (as may be revised on the
Stetson II Funding Date) with respect to the Stetson II Project and any other
reports, notices, certificates or other information required to be delivered
pursuant to Section 7.7.


 


(d)       The Initial
Lenders shall have received all expense reimbursements due and payable on the
Stetson II Funding Date by the Borrower and fees and expenses of the
Administrative Agent and those of its counsel.


 


(e)       Except as set
forth in Schedule 5.7 hereto, no Material Adverse Effect shall have
occurred since (i) with respect to CSSW Parent, the Borrower, the Cohocton
Companies, the Stetson Holding Company, the Stetson I Project Company, the
Steel Winds Companies, the Cohocton Project, Stetson I Project and Steel Winds
Project, March 31, 2009 and (ii) with respect to the Stetson
Intermediate Holding Company, the Stetson II Project Company and the Stetson II
Project, September 30, 2009.


 


(f)        (i) The
Stetson II COD shall have occurred or shall occur concurrently with the Stetson
II Funding Date and all other work on the Stetson II Project shall have been
completed and paid for (other than with respect to punch list items) and no
mechanics’ liens or similar liens shall have been filed with respect to the
Stetson II Project and (ii) all interconnection facilities and other
facilities necessary for the operation of the Stetson II Project in accordance
with Prudent Utility Practices shall be completed and all utilities, real
estate rights and other rights necessary for the operation of the Stetson II
Project shall be in place, in each case as certified by an Authorized Officer
of the Borrower and confirmed by the Independent Engineer (which confirmation
may be provided as separate documentation).


 


(g)       The Initial
Lenders shall have received a copy of the duly executed and delivered Turbine
Mechanical Completion Certificate, together with any attachments, which


 


68

















 


shall be substantially in the form provided in the EPC Contract,
provided that any material changes from the form of such certificate shall be
in form and substance reasonably satisfactory to the Initial Lenders.


 


(h)       The Initial
Lenders shall have received a copy of the duly executed and delivered
Infrastructure Completion Certificate, together with any attachments, which
shall be substantially in the form provided in the EPC Contract, provided that
any material changes from the form of such certificate shall be in form and
substance reasonably satisfactory to the Initial Lenders.


 


(i)        If the Annual
Operating Plan has been updated after the Stetson II Effective Date, the
Initial Lenders shall have received any such updates to the Annual Operating
Plan.


 


(j)        No action or
proceeding has been instituted or threatened in writing by any Governmental
Authority or any other Person (i) against CSSW Parent, the Borrower or any
of the Borrower’s Subsidiaries which seeks to impair, restrain, prohibit or
invalidate the transactions contemplated by any of the Transaction Documents
with respect to the Stetson I Project or the Stetson II Project or (ii) regarding
the effectiveness or validity of any Governmental Approvals with respect to the
Stetson I Project or the Stetson II Project.


 


(k)       A certificate
from an Authorized Officer of the Borrower which certifies that the list of
each policy of insurance held by CSSW Parent, the Borrower and each of the
Subsidiaries, which list sets forth the insurance required with respect to the
Stetson II Project pursuant to Section 9.6 delivered to the Initial
Lenders as of the Stetson II Effective Date is in full force and effect on the
Stetson II Funding Date.


 


(l)        The Initial
Lenders shall have received the same certificate regarding Applicable Permits
(as defined in the Stetson Portfolio Financing Agreement) being delivered
pursuant to Section 5.1(x) of the Stetson Portfolio Financing
Agreement, dated as of the Stetson II Funding Date.


 


(m)      (i) None
of CSSW Parent, the Borrower or any Stetson Company shall be in default in the
performance, observance or fulfillment of any obligations, covenants or
conditions contained in any of the Material Project Documents with respect to
the Stetson I Project or Stetson II Project, and to CSSW Parent’s, the
Borrower’s and any Stetson Company’s knowledge, no Project Participant shall be
in default in the performance, observance or fulfillment of any obligations,
covenants or conditions under any Material Project Document with respect to the
Stetson I Project or Stetson II Project, in each case, except to the extent
that such default could not reasonably be expected to have a Material Adverse
Effect, (ii) each such Material Project Document with respect to the
Stetson I Project and the Stetson II Project shall be in full force and effect,
(iii) the copy of each such Material Project Document with respect to the
Stetson I Project and the Stetson II Project delivered to the Initial Lenders
pursuant to Section 3.3(f) shall be true, correct and
complete, (iv) except as delivered to the Initial Lenders pursuant to Section 3.3(f),
there shall be no agreements, side letters or other documents to which the
Parent or any of its Subsidiaries is a party which have the effect of modifying
or supplementing in any material respect any of the respective rights or


 


69

















 


obligations of the parties under any such of the Material Project
Documents with respect to the Stetson I Project and the Stetson II Project and (v) the
Administrative Agent and the Initial Lenders shall have received a certificate
of an Authorized Officer of the Borrower certifying that each of the conditions
set forth in clauses (i), (ii), (iii) and (iv) of this Section 3.4(k)
have been satisfied.


 


(n)       A certificate
of the Borrower signed by an Authorized Officer certifying that the
representations and warranties set forth in Sections 6.16(a) and (b),
6.22, 6.23, 6.24, 6.37, 6.38 and 6.39 of the Stetson Portfolio Financing
Agreement are true and correct in all material respects as of the Stetson II
Funding Date.


 


ARTICLE 4


 


PAYMENT, PREPAYMENT AND TAXES


 


Section 4.1             Mandatory Prepayment. The Borrower
shall make mandatory prepayments on the Term Loans as and when required below
without penalty or premium (except as set forth below) of each of the following
amounts:


 


(a)       Within three (3) Business
Days after the Borrower’s or any Subsidiary’s receipt thereof, 100% of the Net
Cash Proceeds received by the Borrower or one of its Subsidiaries from (i) any
funding (regardless of the Project or Person) prior to the Subsequent Closing
Date through the Lehman Tax Equity Financing or (ii) on and after the
Subsequent Closing Date, any Steel Winds Permitted Project Indebtedness or
Qualified Tax Equity Financing with respect to the Steel Winds Project (including
by either of the Steel Winds Companies) (the Borrower agreeing to cause such
Subsidiaries to distribute such Net Cash Proceeds under either clause (i) or
(ii) to it for the purpose of allowing it to make the foregoing mandatory
prepayment), subject to the following:


 


(I)           (A)             prior to the
Subsequent Closing Date, with respect to the receipt of Net Cash Proceeds from
a funding through the Lehman Tax Equity Financing, the mandatory prepayment
being made shall be applied to the aggregate principal amount of Term Loans
then being prepaid plus accrued interest thereon plus an amount equal to
the Call Premium applicable to the aggregate principal amount of Term Loans
then being prepaid, and


 


(B)              on and after
the Subsequent Closing Date, with respect to the receipt of Net Cash Proceeds
in an aggregate amount greater than $15,000,000, the mandatory prepayment being
made shall be applied to the aggregate principal amount of Term Loans then
being prepaid plus accrued interest thereon plus an amount equal to the
Call Premium applicable to the amount of aggregate principal amount of Term
Loans in excess of $15,000,000, and


 


(II)            in all other cases not
covered by the foregoing clause (I), the mandatory prepayment being made shall
be applied to the aggregate


 


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principal amount of Term Loans then being prepaid plus accrued interest
thereon with no Call Premium being applicable thereto.


 


(b)       Within three (3) Business
Days after the Borrower’s or any Subsidiary’s receipt thereof, 100% of the Net
Cash Proceeds received by the Borrower or one of its Subsidiaries from the
issuance or incurrence of any Excess Permitted Project Indebtedness (the
Borrower agreeing to cause such Subsidiaries to distribute such Net Cash Proceeds
to it for the purpose of allowing it to make the foregoing mandatory
prepayment), subject to the following: (i) with respect to the receipt of
Net Cash Proceeds in an aggregate amount greater than $10,000,000, the
mandatory prepayment being made shall be applied to the aggregate principal
amount of Term Loans then being prepaid plus accrued interest thereon plus an
amount equal to the Call Premium applicable to the amount of aggregate
principal amount of Term Loans in excess of $10,000,000 then being prepaid and (ii) otherwise,
the mandatory prepayment being made shall be applied to the aggregate principal
amount of Term Loans then being prepaid plus accrued interest thereon with no
Call Premium being applicable thereto.


 


(c)       Unless a
Reinvestment Notice shall have been delivered to the Administrative Agent (who
shall promptly forward such notice to the Lenders and seek direction) on or
before the Reinvestment Decision Date in respect thereof and the Borrower has
made an Eligible Reinvestment, then on the Reinvestment Decision Date, 100% of
the Net Remaining Loss Proceeds shall be applied on such date (the Borrower
agreeing to cause its Subsidiaries to distribute such Net Remaining Loss
Proceeds to it for the purpose of allowing it to make the foregoing mandatory
prepayment) (x) to reduce Major Project Indebtedness or (y) towards
the prepayment of the Term Loans; provided that, notwithstanding the
foregoing, (i) the aggregate Net Remaining Loss Proceeds that may be
excluded from the foregoing requirement pursuant to a Reinvestment Notice shall
not exceed $2,500,000 in any Fiscal Year of the Borrower, and (ii) on each
Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment
Amount (the Borrower agreeing to cause its Subsidiaries to distribute such
Reinvestment Prepayment Amount to it for the purpose of allowing it to make the
foregoing mandatory prepayment) with respect to the relevant Reinvestment Event
shall be applied toward the prepayment of the Term Loans.


 


(d)       No later than
thirty (30) days after the end of each Fiscal Year, 100% of Excess Cash during
such Fiscal Year (the Borrower agreeing to cause its Subsidiaries to distribute
all Excess Cash to it for the purpose of allowing it to make the foregoing
mandatory prepayment).


 


(e)       If the Lehman
Tax Equity Buyback has not been reconsummated pursuant to Section 11.1(o),
promptly following the expiration of the Tax Equity Standstill Period, a
principal amount equal to $15,000,000, plus accrued interest (including
any PIK interest applicable thereto).


 


(f)        If (i) Stetson
II COD has not occurred on or before the Stetson II Outside Completion Date or (ii)
subsequent to a cure effected in accordance with Section 10.1(n) of
the Stetson Portfolio Financing Agreement, the Stetson II Project Company or
Stetson II Project shall not have been fully released and discharged (other
than inchoate obligations thereunder that could not give rise to defaults under
the Stetson Portfolio Financing


 


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Agreement) from the Stetson Portfolio Financing Agreement or any
Refinancing thereof and any related loan documents, including with respect to
obligations relating to collateral, as of the Stetson II Outside Completion
Date, then no later than seven (7) days after the Stetson II
Outside Completion Date, an amount of $50,000,000 (unless the Initial Lenders
shall have notified the Borrower specifying a lesser amount within 5 days after
the Stetson II Outside Completion Date, in which case such payment shall be
made in such lesser amount), plus accrued and unpaid interest on such
principal amount then being prepaid (including any PIK interest applicable
thereto) plus an amount equal to the Call Premium in respect of such
principal amount then being prepaid (the “Stetson Prepayment”).


 


Section 4.2             Voluntary Prepayments. The Borrower
may, at any time and from time to time, prepay all or a portion of the
outstanding principal amount of the Term Loans in minimum amounts of not less
than $1,000,000 plus accrued and unpaid interest to such date plus
an amount equal to the Call Premium in respect of such principal amount then
being prepaid. Amounts prepaid may not be re-borrowed.


 


Section 4.3             Payment and Interest Cutoff. Irrevocable
notice of any voluntary prepayment pursuant to Section 4.2 shall be
given to the Administrative Agent not later than 1:00 p.m. (New York City time)
at least two Business Days prior to the date of prepayment and shall specify
the date of such prepayment and the aggregate principal amount of the Term
Loans to be prepaid on such date. Upon receipt of any such notice, the
Administrative Agent shall promptly forward such notice to each Lender thereof.
Notice of prepayment having been given in compliance with this Section 4.3,
the amount specified to be prepaid shall become due and payable on the date
specified for prepayment together with accrued and unpaid interest to such date
on the amount prepaid.


 


Section 4.4             Method, Timing and
Application of Payments.


 


(a)       Each payment
(including each prepayment) by the Borrower on account of principal of and
interest and other amounts on the Term Loans shall be made pro rata according to
the respective outstanding principal amounts of the Term Loans then held by the
Lenders.


 


(b)       All payments
(including prepayments) to be made by the Borrower hereunder, whether on
account of principal, interest, premiums or otherwise, shall be made without
setoff or counterclaim and shall be made prior to 1:00 p.m., New York City
time, on the due date thereof to the Administrative Agent for the account of
the Lenders at the Payment Office of the Administrative Agent in Dollars and in
immediately available funds. The Administrative Agent shall distribute such
payments to each relevant Lender promptly upon receipt in like funds as
received unless funds are received after 1:00 p.m., New York City time, then
the relevant payments or distributions shall be made on the subsequent Business
Day. If any payment hereunder becomes due and payable on a day, other than a
Business Day, such payment shall be extended to the next succeeding Business
Day. In the case of any extension of any payment of principal pursuant to the
preceding sentence, interest thereon shall be payable at the then applicable
rate during such extension.


 


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(c)       All payments
shall be applied first to the payment of all fees, expenses, premiums
and other amounts due to the Administrative Agent, the Collateral Agent and
then to the Lenders (excluding principal and interest), then to accrued and
unpaid interest, and the balance on account of outstanding principal; provided,
however, that after an Event of Default, payments will be applied to the
obligations of the Borrower to the Administrative Agent, the Collateral Agent
and the Lenders as provided in Section 11.5 or, except for the
obligations due to the Agents, otherwise as the Majority Lenders determine in
their sole discretion.


 


Section 4.5             Taxes.


 


(a)       All payments by
the Borrower of principal of, and interest on, the Term Loans and all other
amounts payable hereunder shall be made free and clear of and without deduction
for any present or future income, excise, stamp or franchise taxes and other
taxes, fees, duties, withholdings or other charges of any nature whatsoever
imposed by any taxing authority (“Taxes”) except as otherwise required
by law. In the event that any withholding or deduction from any payment to be
made by the Borrower hereunder is required in respect of any Taxes pursuant to
any applicable law, rule or regulation, then the Borrower will:


 


(i)            pay directly to
the relevant authority the full amount required to be so withheld or deducted;


 


(ii)           promptly
forward to each affected Lender an official receipt or other documentation
reasonably satisfactory to such affected Lender evidencing such payment to such
authority; and


 


(iii)          pay to each
affected Lender only such additional amount or amounts of Non-Excluded Taxes as
is necessary to ensure that the net amount actually received by each affected
Lender (after taking into account any Non-Excluded Taxes imposed on amounts
payable under this Section 4.5(a)) will equal the full amount each
affected Lender would have received had no such withholding or deduction for
Non-Excluded Taxes been required.


 


Moreover,
if any Non-Excluded Taxes are directly asserted against any Lender with respect
to any payment received by such affected Lender hereunder, each affected Lender
may pay such Taxes and the Borrower will promptly pay such additional amount
(including any penalties, interest or expenses) as is necessary in order that
the net amount received by each affected Lender after the payment of any
Non-Excluded Taxes shall equal the amount each affected Lender would have
received had not such Non-Excluded Taxes been asserted.


 


(b)       If the Borrower
fails to pay any Taxes when due to the appropriate taxing authority or fails to
remit to each affected Lender the required receipts or other required
documentary evidence, the Borrower shall indemnify each affected Lender for any
incremental taxes, interest or penalties that may become payable by each
affected Lender as a result of any such failure.


 


(c)       In addition,
the Borrower agrees to pay any present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies that arise from
any payment made or from the execution, delivery or registration of, or
otherwise with


 


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respect to, this Agreement, the Term Notes, or the other Loan Documents
(hereinafter referred to as “Other Taxes”).


 


(d)       The Borrower
shall indemnify each Lender and the Administrative Agent for the full amount of
Non-Excluded Taxes or Other Taxes (including, without limitation, any
Non-Excluded Taxes or Other Taxes imposed by any Governmental Authority on
amounts payable under this Section 4.5) paid by such Lender or the
Administrative Agent (as the case may be) and any liability (including interest
and expenses) arising therefrom or with respect thereto, whether or not such
Non-Excluded Taxes or Other Taxes were correctly or legally asserted. Each
payment required to be made by the Borrower in respect of this indemnification
shall be made to the Administrative Agent for the benefit of any party claiming
such indemnification within thirty (30) days from the date the Borrower
receives written demand therefor detailing the calculation of such amounts from
the Administrative Agent on behalf of itself as Agent or any such Lender. The
agreements in this subsection shall survive the termination of this Agreement
and the payment of the Term Notes and all other amounts payable hereunder.


 


(e)       The Borrower
will pay prior to delinquency Taxes and Other Taxes required to be paid by the
Borrower in respect of any payment under this Agreement. Upon request, the Borrower
will furnish to the Administrative Agent for its own account or for the account
of the affected Lender, as the case may be, the original or a certified copy of
a receipt or other documentation reasonable satisfactory to such affected
Lender evidencing payment of such Taxes or Other Taxes.


 


(f)        Prior to
becoming an Administrative Agent or Lender under this Agreement (including in
connection with an assignment), on or prior to the date on which any form or
certificate expires or becomes obsolete, after the occurrence of any event
requiring a change in the most recent form or certificate previously delivered
and within fifteen (15) days after a reasonable written request of the Borrower
or the Administrative Agent from time to time and to the extent such Administrative
Agent or Lender is legally entitled thereto:


 


(i)            each such
Person or Lender that is not in each case a “United States person” (as such
term is defined in Section 7701(a)(30) of the Code) for U.S. federal
income tax purposes (a “Foreign Lender”) shall provide to the Borrower
and the Administrative Agent (or, in the case of a Participant, to the Lender
from which the related participation shall have been purchased) a properly
completed and executed IRS Form W-8BEN, Form W-8ECI or Form W-8IMY
or other applicable form, certificate or document prescribed by the Internal
Revenue Service (including all required attachments), certifying as to such
Foreign Lender’s entitlement to an exemption from, or reduction in, United
States withholding tax with respect to interest payments to be made to such
Foreign Lender under this Agreement and under the Term Loans. Any Foreign
Lender that is claiming an exemption from U.S. withholding tax under Section 871(h) or
881(c) of the Code shall provide in addition to the applicable IRS Form W-8
(or, in the case of a Participant, to the Lender from which the related
participation shall have been purchased), a properly executed certificate
representing that such Foreign Lender is not a “bank” for purposes of Section 881(c) of
the Code, does not hold a ten percent (10%) interest in the capital or profits
of the Borrower within the meaning of Section


 


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871(h)(3)(B) of the Code, and is not a controlled foreign
corporation related to the Borrower within the meaning of Section 864(d)(4) of
the Code. No Foreign Lender shall be entitled to additional payments under Section 4.5(a) or
to indemnification under Section 4.5(d) for any Non-Excluded
Taxes or Other Taxes to the extent such Non-Excluded Taxes or Other Taxes would
not have been imposed had the Foreign Lender complied with this Section 4.5(f)(i).
Each Foreign Lender shall promptly notify the Borrower at any time it
determines that it is no longer in a position to provide any previously
delivered certificate to the Borrower (or any other form of certification
adopted by the U.S. Governmental Authorities for such purposes); and


 


(ii)           each such
Person or Lender that is a “United States person” (as such term is defined in Section 7701(a)(30)
of the Code) for U.S. federal income tax purposes shall provide to Borrower and
the Administrative Agent (or, in the case of a Participant, to the Lender from
which the related participation shall have been purchased), a properly
completed and executed IRS Form W-9, certifying as to such Lender’s
entitlement to an exemption from U.S. backup withholding tax, or any successor
form. Each such Lender shall promptly notify the Borrower at any time it
determines that it is no longer in a position to provide any previously
delivered certificate to the Borrower (or any other form of certification
adopted by the U.S. Governmental Authorities for such purposes).


 


(g)       If the Borrower
determines in good faith that a reasonable basis exists for contesting a Non-Excluded
Tax or Other Tax, the relevant Lender (or assignee), or the Administrative
Agent, as applicable, shall cooperate with the Borrower in challenging such Tax
at the Borrower’s expense if requested by the Borrower. If any Lender (or
assignee) determines in its sole discretion that it has received a refund in
respect of any Non-Excluded Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with respect to which the Borrower has paid
additional amounts pursuant to this Section 4.5, it shall within
thirty (30) days from the date of such receipt pay over such refund to the
Borrower (but only to the extent of indemnity payments made, or additional
amounts paid, by the Borrower under this Section 4.5 with respect
to the Non-Excluded Taxes or Other Taxes giving rise to such refund), net of
all out-of-pocket expenses of such Lender (or assignee) or the Administrative
Agent and without interest (other than interest paid by the relevant
Governmental Authority with respect to such refund); provided, however,
that the Borrower, upon the request of such Lender (or assignee) or the
Administrative Agent, agrees to repay the amount paid over to the Borrower
(plus penalties interest or other charges) to such Lender (or assignee) or the
Administrative Agent in the event such Lender (or assignee) or the
Administrative Agent is required to repay such refund to such Governmental
Authority. Neither the Lender nor the Administrative Agent shall be obliged to
disclose any information regarding its tax affairs or computations to the
Borrower in connection with this paragraph (g) or any other provision of
this Section 4.5.


 


(h)       If the
Administrative Agent or any Lender requests, or the Borrower is required to
make, any indemnification or payment with respect to Non-Excluded Taxes
(excluding Other Taxes) under this Section 4.5, then the relevant
Lender shall use reasonable efforts to designate a different lending office or
to assign its rights and obligations under the Loan Documents to another of its
branches or such other Person as Borrower may reasonably


 


75














 


request if (i) such designation or assignment could reasonably be
expected to reduce or eliminate amounts payable pursuant to this Section 4.5,
and (ii) in the reasonable judgment of such Lender such designation or
assignment would not subject it to any material unreimbursed cost or expense
and would not otherwise be materially disadvantageous to it. Borrower agrees to
pay all reasonable costs and expenses incurred by such Lender in connection
with such designation or assignment.


 


(i)        To the extent that the Lenders have complied with Section 4.5(f),
the parties agree and acknowledge that as of the date hereof no withholding or
deduction for any U.S. Taxes is required by applicable law, rule or
regulation (“Initial U.S. Taxes”), and, as of the date hereof, the
Borrower will not withhold on any payments made to the Lenders under this
Agreement unless required to do so by a Governmental Authority pursuant to a
final determination. If, as a result of a final determination, the Borrower is
or was required to withhold or deduct any Initial U.S. Taxes on amounts payable
to a Lender (or assignee) under this Agreement, then such Lender (or assignee)
shall indemnify the Borrower in full for the entire amount that was required to
be withheld or deducted (including interest and penalties); provided that
nothing in this sentence shall limit or change the Borrower’s obligations under
this Section 4.5 with respect to all Taxes and Other Taxes other
than with respect to Initial U.S. Taxes.


 


(j)        The agreements and obligations of the Borrower in
respect of this Section 4.5 shall survive the payment of the Term
Loans, the Term Notes and all other Obligations.


 


ARTICLE 5


 


REPRESENTATIONS AND WARRANTIES


OF THE BORROWER


 


In order to induce the Administrative Agent, the Collateral Agent and
the Initial Lenders to enter into this Agreement and to induce the Initial
Lenders to make the Term Loans on each Closing Date, the Borrower hereby makes
the following representations and warranties, on each such Closing Date; provided,
however, that, except as otherwise specified, (a) on and as of the
Initial Closing Date, references in this Article 5 to any
Subsidiary or Subsidiaries of the Borrower, to the Project Companies and to the
Projects shall be deemed to refer to each of the Borrower’s Subsidiaries (other
than with respect to (i) the Steel Winds Companies and the Steel Winds
Project and (ii) the Stetson Intermediate Holding Company and the Stetson
II Project), (b) on and as of the Subsequent Closing Date, references in
this Article 5 to any Subsidiary or Subsidiaries of the Borrower,
to the Project Companies and to the Projects shall be deemed to refer only to (i) each
of the Borrower’s Subsidiaries (other than with respect to the Stetson
Intermediate Holding Company and the Stetson II Project), (ii) each of the
Project Companies and Projects in clause (a) and (iii) the Steel
Winds Companies and the Steel Winds Project, respectively and (c) on and
as of the Stetson II Effective Date, references in this Article 5
to any Subsidiary or Subsidiaries of the Borrower, to the Project Companies and
to the Projects shall be deemed to refer to each of the Borrower’s
Subsidiaries, to each of the Project Companies and to each of the Projects as
applicable; provided, further, that the notwithstanding the foregoing,
the


 


76

















 


reference
in Section 5.15 to the Borrower’s Subsidiaries shall be deemed to
refer to each of the Subsidiaries of the Borrower as of each Closing Date.


 


Section 5.1             Existence. CSSW Parent,
the Borrower and each of its Subsidiaries (a) is duly formed, validly
existing and in good standing under the laws of the jurisdiction of its
organization, (b) has the power and authority, and the legal right, to
own, lease and operate its Property and to conduct the business in which it is
currently engaged in the manner it is now being conducted and (c) is duly
qualified as a foreign limited liability company or other organization and in
good standing under the laws of each jurisdiction where its ownership, lease or
operation of Property or the conduct of its business as now being conducted
requires such qualification, except to the extent that its failure to be so
qualified could not reasonably be expected to have a Material Adverse Effect.


 


Section 5.2             Power;
Authorization; Enforceable Obligations. Each of CSSW Parent, the
Borrower and the Steel Winds Companies has the power and authority and the
legal right to make, deliver and perform its obligations under the Loan
Documents to which it is a party and, in the case of the Borrower, to borrow
the Term Loans hereunder. Each of the Borrower’s Subsidiaries has the power and
authority and the legal right to make, deliver and perform its obligations
under the Project Documents to which it is a party. Each of CSSW Parent, the
Borrower and the Steel Winds Companies has taken all necessary organizational
action to authorize the execution, delivery and performance of the Loan
Documents to which it is a party and, in the case of the Borrower, to authorize
the borrowings of the Term Loans on the terms and conditions of this Agreement.
Each of the Borrower’s Subsidiaries has taken all necessary organizational
action to authorize the execution, delivery and performance of each of the
Project Documents to which it is a party. No consent or authorization of,
filing with, notice to or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the borrowings of
the Term Loans hereunder or with the execution, delivery, performance, validity
or enforceability of this Agreement, any of the Loan Documents or any of the
Project Documents except (i) consents, authorizations, filings and notices
described in Schedule 5.2, which consents, authorizations, filings and
notices have been obtained or made and are in full force and effect and (ii) the
filings referred to in Section 5.21 and in the Guarantee and
Security Agreement. Each Loan Document has been duly executed and delivered on
behalf of CSSW Parent, the Borrower and the Steel Winds Companies (to the
extent it is a party thereto). Each Project Document to which any Subsidiary of
the Borrower is party has been duly executed and delivered by such Subsidiary.
This Agreement constitutes, and each other Loan Document upon execution will
constitute, a legal, valid and binding obligation of each of CSSW Parent, the
Borrower and the Steel Winds Companies (to the extent it is a party thereto),
enforceable against each such Person in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors’ rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law). Each Project
Document to which any Subsidiary of the Borrower is party constitutes a legal,
valid and binding obligation of such Subsidiary, enforceable against such
Person in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors’ rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law).


 


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Section 5.3             No Legal Bar. The
execution, delivery and performance of this Agreement and the other Loan
Documents, the borrowings hereunder and the use of the proceeds thereof will
not violate any Requirement of Law, conflict with or cause a breach of any
provision of the Organizational Documents of CSSW Parent, the Borrower or any
of the Borrower’s Subsidiaries, conflict with, cause a breach of, constitute a
default under, cause the acceleration of, create in any party the right to accelerate,
terminate, modify or cancel or require the authorization, consent, waiver or
approval under, any Contractual Obligation of CSSW Parent, the Borrower or any
of the Borrower’s Subsidiaries, except for any such events (other than
conflicts or breaches of Organizational Documents) that could not reasonably be
expected to have a Material Adverse Effect, and will not result in, or require,
the creation or imposition of any Lien on any of their respective Properties or
revenues pursuant to any Requirement of Law or any such Contractual Obligation
(other than the Liens created by the Security Documents).


 


Section 5.4             Principal Place
of Business; Location of Records. The principal place of
business of each of CSSW Parent, the Borrower and its Subsidiaries is at the
location set forth on Schedule 5.4 (as the same may be updated on the
Subsequent Closing Date and the Stetson II Funding Date), and no such Person
has had any other principal place of business during the last six months except
as set forth on Schedule 5.4. All of the books and records or true and complete
copies thereof relating to the accounts and contracts of CSSW Parent, the
Borrower and its Subsidiaries are and will be kept at such location.


 


Section 5.5             Subsidiaries. The Borrower
is the only Subsidiary of CSSW Parent. The Borrower does not have any
Subsidiaries except for those listed in Schedule 5.5 (as the same may be
updated on the Subsequent Closing Date, the Stetson II Effective Date or
supplemented pursuant to Section 10.13). All of the issued and
outstanding Equity Interests of the Borrower and each Subsidiary listed on Schedule
5.5 (as the same may be updated on the Subsequent Closing Date, the Stetson
II Effective Date or supplemented pursuant to Section 10.13) are
owned of record and beneficially as described in Schedule 5.5 (as the
same may be updated on the Subsequent Closing Date, the Stetson II Effective
Date or supplement pursuant to Section 10.13). Schedule 5.5
(as the same may be updated on the Subsequent Closing Date, the Stetson II
Effective Date or supplemented pursuant to Section 10.13) sets
forth the name and jurisdiction of organization of the Borrower and each
Subsidiary and the ownership of the Equity Interests of the Borrower and each
such Subsidiary. The Equity Interests of each of CSSW Parent, the Borrower and
the Borrower’s Subsidiaries have been duly authorized and validly issued and
are fully paid. There is no existing option, warrant, call, right, commitment
or other agreement to which CSSW Parent, the Borrower or any of the Borrower’s
Subsidiaries is a party requiring, and there is no membership interest or other
Equity Interests of CSSW Parent, the Borrower or any of the Borrower’s
Subsidiaries outstanding that upon conversion or exchange would require, the
issuance by CSSW Parent, the Borrower or any of the Borrower’s Subsidiaries of
any additional membership interests or other Equity Interests of CSSW Parent,
the Borrower or any of the Borrower’s Subsidiaries or other securities
convertible into, exchangeable for or evidencing the right to subscribe for or
purchase, a membership interest or other Equity Interests of CSSW Parent, the
Borrower or the Borrower’s Subsidiaries.


 


Section 5.6             Payment of
Taxes. Each of CSSW Parent, the Borrower and the Borrower’s Subsidiaries has
timely filed or caused to be timely filed with the appropriate taxing authority
all returns, statements, forms and reports for taxes and all other material tax
and


 


78

















 


informational
returns (the “Returns”) that are required to be filed by it with respect
to its income or operations. Each of CSSW Parent, the Borrower and the Borrower’s
Subsidiaries has timely paid all taxes due pursuant to such Returns and all
other material taxes, fees or other charges imposed on or with respect to its
income or operations, except for such taxes, if any, subject to a Good Faith
Contest. No tax lien has been filed with respect to any such tax, fee or other
charges. Other than as set forth on Schedule 5.6, there is no action,
suit, proceeding, investigation, audit, or claim now pending or, to the
knowledge of CSSW Parent, the Borrower and any of the Borrower’s Subsidiaries,
threatened (either in writing or other official communication) by any authority
regarding any taxes relating to CSSW Parent, the Borrower or any of the
Borrower’s Subsidiaries. Neither CSSW Parent, the Borrower or any of the
Borrower’s Subsidiaries has entered into an agreement or waiver or been
requested to enter into an agreement or waiver extending any statute of
limitations relating to the payment or collection of taxes of CSSW Parent, the
Borrower or any of the Borrower’s Subsidiaries, or are aware of any
circumstances that would cause the taxable years or other taxable periods of
CSSW Parent, the Borrower and any of the Borrower’s Subsidiaries not to be
subject to the normally applicable statute of limitations.


 


Section 5.7             Financial
Statements and Condition.


 


(a)       The Historical Financial Statements have been
prepared in accordance with GAAP consistently applied throughout the periods
involved (except, in the case of unaudited financial statements, for normal
year-end adjustments and for the absence of footnotes) and present fairly and
accurately in all material respects the financial condition of the applicable
Person. The Pro Forma Financial Statements of the Borrower and its Consolidated
Subsidiaries have been properly completed on the basis of the assumptions set
forth therein and have been prepared based upon historical information that was
prepared in accordance with GAAP.


 


(b)       Since March 31, 2009, there has been no event,
development or occurrence that has had or could reasonably be expected to have
a Material Adverse Effect, except as set forth on Schedule 5.7.


 


Section 5.8             Accuracy of
Information, Etc. No statement or information contained in this
Agreement, any other Loan Document or any other document, certificate or
statement furnished by or on behalf of CSSW Parent or the Borrower to any Agent
or the Lenders or any of them for use in connection with the transactions
contemplated by this Agreement, taken as a whole, contained, as of the date
delivered, any untrue statement of a material fact or omitted to state a
material fact necessary to make the statements contained herein or therein not
misleading; provided that the foregoing representation is only made to
the Borrower’s knowledge with respect to certifications, representations or
statements made by parties other than CSSW Parent, the Borrower or any of their
respective Affiliates. The projections and pro
forma financial information contained in the materials referenced
above and the Base Case Projections Model being delivered on the applicable
Closing Date are based upon good faith estimates and assumptions believed by
management of CSSW Parent and the Borrower to be reasonable at the time made;
it being recognized by the Lenders that such projections and pro forma financial information as they
relate to future events are not to be viewed as factual and that actual results
during the period or periods covered by such financial information may differ
from the projected


 


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results
set forth therein by a material amount. Notwithstanding any provision of this
Agreement or any other Loan Document to the contrary, any assumptions,
projections, calculations and/or expectations with respect to the receipt of
any ITC Grant by CSSW Parent, the Borrower or any of the Borrower’s
Subsidiaries are purely speculative and no Default or Event of Default under this
Agreement or any other Loan Document shall arise or result from any such
information being included in any Base Case Projections Model or otherwise
being provided to the Administrative Agent, the Collateral Agent and/or the
Lenders.  As of the Stetson II Effective
Date, to the Borrower’s knowledge, the Stetson II Construction Budget and
Annual Operating Plan (as defined in the Stetson Portfolio Financing Agreement)
for the Stetson II Project (a) are based on reasonable assumptions, (b) are
made in good faith and (c) are consistent with the provisions of the
Stetson II Project Documents.


 


Section 5.9             Construction of
the Stetson II Project. To the knowledge of the Borrower (a) all
work performed to date on the Stetson II Project has been performed in a good
and workmanlike manner in accordance with the Material Project Documents for
the Stetson II Project and all applicable Requirements of Law, in each case, in
all material respects and (b) the Stetson II Project is expected to
operate upon final completion in accordance with the Material Project Documents
and all applicable Requirements of Law, in each case, in all material respects.


 


Section 5.10           Title. Each of CSSW
Parent, the Borrower and the Borrower’s Subsidiaries has good and sufficient
title to, or valid leasehold interests in, all of its assets, real and
personal, subject in the case of Subsidiaries of the Borrower to no Liens,
except for Permitted Liens and in the case of CSSW Parent and the Borrower, no
Liens other than the Liens of the Security Documents. Each Project Company
owns, leases or has rights under easements, rights-of-way or similar
instruments in real property sufficient to enable it to conduct its operations,
including providing adequate ingress and egress to the Projects, except as could
not reasonably be expected to have a Material Adverse Effect. Insofar as the
Borrower has knowledge, no Subsidiary has been informed in writing by any owner(s) of
any real property that any Subsidiary is in material breach of its obligations
with respect to such Property, which breaches could reasonably be expected to
have a Material Adverse Effect.


 


Section 5.11           Litigation. There is no
litigation, at law or in equity, or any action, suit, proceeding, hearing or
investigation of, in or before any federal, state, provincial or municipal
board or other Governmental Authority or arbitrator pending that CSSW Parent,
the Borrower or any of the Borrower’s Subsidiaries is subject to or, to the
knowledge of CSSW Parent, the Borrower or any of the Borrower’s Subsidiaries,
threatened in writing against CSSW Parent, the Borrower or any of the Borrower’s
Subsidiaries, that individually or in the aggregate has had or could reasonably
be expected to have a Material Adverse Effect, and no Judgment has been issued
against CSSW Parent, the Borrower or any of its Subsidiaries that has had or
could reasonably be expected to have a Material Adverse Effect.


 


Section 5.12           Margin Stock.


 


(a)       The Borrower is not engaged principally, or as one
of its important activities, in the business of extending credit for the
purpose, whether immediate, incidental or ultimate, of buying or carrying
Margin Stock and no part of the proceeds of the Term Loans will be used to
purchase or carry any Margin Stock.


 


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(b)       Neither the making of the Term Loans nor the use of
the proceeds thereof will violate or be inconsistent with the provisions of
Regulation U or Regulation X.


 


Section 5.13           Employee
Benefits. Except as set forth in Schedule 5.13, none
of CSSW Parent, the Borrower or any of the Borrower’s Subsidiaries has, or at
any point in the past has had, any employees, or maintained, sponsored,
administered or participated in any Plan or any Foreign Plan or Foreign Benefit
Arrangement. Except as could not reasonably be expected to have a Material
Adverse Effect: (a) no ERISA Event has occurred or could reasonably be
expected to occur, (b) each of CSSW Parent, the Borrower and any of the
Borrower’s Subsidiaries and each of their respective ERISA Affiliates is in
compliance with (x) the provisions of ERISA, and all other Requirements of
Law and published interpretations that are applicable to any Plan, Foreign
Benefit Arrangement or Foreign Plan, and (y) the terms of such plan or
arrangement, in each case, relating to any Plan, Foreign Plan and Foreign
Benefit Arrangement and (c) all employer and employee contributions
required by applicable Requirement of Law or by the terms of any Plan, Foreign
Benefit Arrangement or Foreign Plan have been made, or, if applicable, accrued
in accordance with normal accounting practices.


 


Section 5.14           Environmental
Matters. Except as could not reasonably be expected to, individually or in the
aggregate, have a Material Adverse Effect:


 


(a)       Neither CSSW Parent, the Borrower nor any of the
Borrower’s Subsidiaries has received or has knowledge of any notice of violation,
alleged violation, non-compliance, liability or potential liability regarding
compliance with Environmental Laws with regard to any of the Projects or the business
operated by such Person (the “Business”), nor does CSSW Parent, the
Borrower or the Borrower’s Subsidiaries have knowledge or reason to believe
that any such notice will be received or is being threatened;


 


(b)       Neither CSSW Parent, Borrower nor any of the
Borrower’s Subsidiaries nor any of their respective Properties or operations
are subject to any outstanding order, consent decree or settlement agreement
with any Person relating to any Environmental Law or any Environmental Claim;


 


(c)       CSSW Parent, the Borrower and its Subsidiaries: (i) are
in compliance with, and have been in compliance with, all applicable
Environmental Laws, (ii) holds, is in compliance with, and have been in
compliance with, all Permits (each of which is in full force and effect)
required by or issued under such Environmental Law for its Business and any
intended operations and (iii) reasonably believes that any modifications
to such Permits, or any additional Permits, that may be required of them will
be timely obtained;


 


(d)       There are no Hazardous Substances present at, on,
under, in, or about any real property currently or formerly owned, leased or
operated by CSSW Parent, the Borrower or any of the Borrower’s Subsidiaries, or
at any other location (including any location to which Hazardous Substances
have been sent for treatment, storage or disposal), which could reasonably be
expected to (i) give rise to an Environmental Claim against CSSW Parent,
the Borrower or any of the Borrower’s Subsidiaries, (ii) interfere with
the Business, or (iii) impair the fair saleable value of any of the
Collateral;


 


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(e)       There are no pending or, to the knowledge of CSSW
Parent, the Borrower or any of the Borrower’s Subsidiaries, threatened Environmental
Claims to which the Borrower or any of the Borrower’s Subsidiaries, or to the
knowledge of CSSW Parent, the Borrower or any of the Borrower’s Subsidiaries,
will be named; and


 


(f)        Neither CSSW Parent, the Borrower or any of the
Borrower’s Subsidiaries has assumed or retained, by contract or, to the
knowledge of CSSW Parent, the Borrower or any of the Borrower’s Subsidiaries,
by operation of law, any liabilities, fixed or contingent, known or unknown,
under any Environmental Law or with respect to any Hazardous Substances.


 


Section 5.15           Investment
Company Act of 1940. None of CSSW Parent, the Borrower or any of the
Borrower’s Subsidiaries is an “investment company,” or an “affiliated person”
of, or “promoter” or “principal underwriter” for, an “investment company,” as
such terms are defined in the Investment Company Act of 1940, as amended.


 


Section 5.16           Solvency. Immediately
upon giving effect to (a) the Term Loans being made on the date this
representation and warranty is being made, (b) the disbursement and
application of the proceeds of such Term Loans and (c) the payment and
accrual of all transaction costs in connection with the foregoing, the Borrower
is and will be Solvent on the applicable Closing Date.


 


Section 5.17           Compliance with
Requirement of Laws and Permits. Each of CSSW Parent, the
Borrower and each of its Subsidiaries is in compliance with all Requirements of
Law and there are no current violations of any Requirements of Law affecting
any of the Projects, in either case that could reasonably be expected to have a
Material Adverse Effect, and neither CSSW Parent, the Borrower nor any of its
Subsidiaries, to the knowledge of CSSW Parent or the Borrower, has received any
notice of any actual or claimed violations of any Requirements of Law or any
Governmental Approval affecting or relating to the development, use, occupancy
or condition of any Project or the construction and operation of the Stetson II
Project, in each case, which violation could be reasonably expected to have a
Material Adverse Effect.


 


Section 5.18           Labor Matters. Except as,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect, (a) there are no strikes, slowdowns, work
stoppages, lockouts or other labor disputes against CSSW Parent, the Borrower
or any of its Subsidiaries pending or, to the knowledge of CSSW Parent, the
Borrower or any of its Subsidiaries, threatened (either in writing or otherwise
in an overt manner), (b) hours worked by and payment made to employees of
CSSW Parent, the Borrower and each of the Borrower’s Subsidiaries have not been
in violation of the Fair Labor Standards Act or any other applicable
Requirement of Law dealing with such matters and (c) all payments due from
CSSW Parent, the Borrower or any of the Borrower’s Subsidiaries on account of
employee health and welfare benefits have been paid or accrued as a liability
on the books of the relevant entity.


 


Section 5.19           Permits,
Licenses and Approvals. Each of CSSW Parent, the Borrower and the
Borrower’s Subsidiaries has taken all necessary action to obtain and maintain
all Governmental Approvals that are necessary to conduct its business, except
to the extent that any failure to do so could not be reasonably expected to
have a Material Adverse Effect. Except as


 


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set forth on Schedule
5.19, each of the Borrower’s Subsidiaries has in full force and effect all
necessary Governmental Approvals required to conduct its operations and for the
construction of the Stetson II Project, other than Governmental Approvals which
are non-discretionary ministerial permits obtainable in the ordinary course of
business or whose absence could not reasonably be expected to have a Material
Adverse Effect.  Each Governmental Approval
and Permit listed in Schedule 5.19 which has not yet been obtained is of
a type that is reasonably expected to be granted upon application and each such
Governmental Approval or Permit is timely obtainable without material cost,
difficulty or delay and will be obtained prior to becoming a necessary
Governmental Approval.


 


Section 5.20           Security Documents. The Security
Documents are effective to create in favor of the Collateral Agent, for the
benefit of the Secured Parties, a legal, valid and enforceable security
interest in the Collateral described therein and proceeds thereof. In the case
of the pledged shares described in the Security Documents, when certificates
representing such pledged shares that are represented by certificates (together
with undated transfer powers), if any, are delivered to the Collateral Agent,
and in the case of the other Collateral described in the Security Documents,
when financing statements and other filings specified on Schedule 5.20
in appropriate form are filed in the offices specified on Schedule 5.20,
the Security Documents shall constitute a fully perfected lien on, and security
interest in, all rights, titles and interests of CSSW Parent, the Borrower and
the Steel Winds Companies in such Collateral and the proceeds thereof, as
security for the Obligations, in each case prior and superior in right to any
other Person (except for, in the case of Liens on the Steel Winds Companies,
Permitted Liens).


 


Section 5.21           Regulatory Matters.


 


(a)       None of CSSW Parent, the
Borrower or the Borrower’s Subsidiaries (other than the Project Companies) is
subject to regulation under the Federal Power Act (“FPA”) or any other
Federal energy regulatory law as a “public utility” (or similar term) except
each of CSSW Parent, the Borrower and each of the Borrower’s Subsidiaries
(other than the Project Companies) are subject to regulation under Section 203
of the FPA as a “holding company”. Each of CSSW Parent, the Borrower and the
Borrower’s Subsidiaries is entitled to an exemption from, or not subject to,
regulation under the Public Utility Holding Company Act of 2005, as amended,
and the Federal Energy Regulatory Commission’s implementing regulations (“PUHCA
2005”). Each Project Company has been determined by the Federal Energy
Regulatory Commission (“FERC”) to be an Exempt Wholesale Generator or,
in the case of the Steel Winds Project Company, is a qualifying facility under
the Public Utility Regulatory Policies Act of 1978, as amended (a “QF”).


 


(b)       Except as set forth on Schedule
5.21(b), each of the Project Companies (i) is subject to regulation
under the FPA as a “public utility,” and (ii) is authorized by an order
issued by FERC to make sales of energy, capacity and ancillary services at
market-based rates pursuant to Section 205 of the FPA or, in the case of
the Steel Winds Project Company, is exempt from Section 205 and Section 206
of the FPA pursuant to 18 C.F.R. § 292.601(c)(1), and each currently has, both
market-based rate authority and blanket authorization to issue securities and
assume liabilities pursuant to Section 204 of the FPA, as well as other
waivers of regulations and blanket authorizations as are customarily granted by
FERC to entities with market-based rate authority, or, in the case of the Steel
Winds Project Company, is a QF


 


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exempt
from Section 204 and other sections of the FPA pursuant to 18 C.F.R. §
292.601(c), and such orders and other waivers and blanket authorizations are in
full force and effect, are final and all applicable periods for the filing of
any request for rehearing or application for judicial review of any such order
or such waivers and authorizations expired without any such request or
application being filed. Except as set forth on Schedule 5.21(b), none
of CSSW Parent, the Borrower or the Borrower’s Subsidiaries is subject to
regulation as an electric utility or electric company (or similar term) or a
public utility or public utility holding company (or similar term) under any
applicable state Requirement of Law or otherwise subject to other state
Requirements of Law or regulations respecting the rates charged by, or the
financial or organizational regulation of, electric utilities, public utilities
or their affiliates. None of the market-based rate authorizations or other
waivers and blanket authorizations granted to any Project Company is the
subject of any pending or, to the knowledge of CSSW Parent, the Borrower or any
of the Borrower’s Subsidiaries, threatened judicial or administrative
proceeding.


 


(c)       None of the Secured Parties
nor any of their respective affiliates (as defined in PUHCA 2005) will, solely
as a result of the execution and delivery of the Loan Documents and the
performance of their obligations thereunder, the ownership and operation of the
Projects by CSSW Parent, the Borrower and its Subsidiaries and the sale or
transmission of energy therefrom, be subject to regulation under PUHCA 2005,
the FPA or as an electric utility or electric company (or similar term) or a
public utility or public utility holding company (or similar term) under any
applicable state Requirement of Law or otherwise subject to other state
Requirements of Law respecting the rates charged by, or the financial or
organizational regulation of, electric utilities, public utilities or their
affiliates.


 


(d)       No consent, approval,
authorization or other order of, or make a filing with, FERC, the New York
State Public Service Commission or any other state or federal Governmental
Authority is required to be obtained to execute, deliver and perform the Loan
Documents.


 


Section 5.22           Events of Loss or Eminent
Domain. Neither the business nor the Properties (including the Projects) of
CSSW Parent, the Borrower or any of its Subsidiaries have suffered any Event of
Loss or Event of Eminent Domain.


 


Section 5.23           Material Project Documents. The Borrower
has delivered to the Administrative Agent and the Initial Lenders complete and
correct copies of the Material Project Documents relating to (a) with
respect to the Initial Closing Date, the Cohocton Project and the Stetson I
Project, (b) with respect to the Subsequent Closing Date, the Steel Winds
Project and (c) with respect to the Stetson II Effective Date, the Stetson
II Project, in each case including any amendments, supplements or modifications
with respect to any of the foregoing as of the applicable Closing Date.


 


Section 5.24           No Default Under Material
Project Documents. None of CSSW Parent, the Borrower or any of the
Borrower’s Subsidiaries is in default in the performance, observance or
fulfillment of any obligations, covenants or conditions contained in any of the
Material Project Documents and, to CSSW Parent’s, the Borrower’s and the
Borrower’s Subsidiaries’ knowledge, no Project Participant is in default in the
performance observance or fulfillment of any


 


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obligations, covenants or
conditions contained in such Material Project Documents, in each case to the
extent that such default could reasonably be expected to have a Material
Adverse Effect.


 


Section 5.25           No Default. No Default or
Event of Default has occurred and is continuing.


 


Section 5.26           Special Purpose Entity
Status. CSSW Parent has not engaged in any business unrelated to the
acquisition or ownership of, directly, the Equity Interests in the Borrower.
The Borrower has not engaged in any business unrelated to the acquisition and
ownership of, directly, the Equity Interests in (i) prior to the Stetson
Reorganization, (A) the Stetson Holding Company, (B) New York Wind III
and (B) the New Cohocton Holding Company and (ii) on and after the
Stetson Reorganization, (A) the Stetson Intermediate Holding Company, (B) New
York Wind III and (B) the New Cohocton Holding Company. New York Wind III
has not engaged in any business unrelated to the acquisition and ownership of,
directly, the Equity Interests in the Steel Winds Holding Company. The Steel
Winds Holding Company has not engaged in any business unrelated to the
acquisition and ownership of, directly, the Equity Interests in the Steel Winds
Project Company, the Cohocton Holding Company and Prattsburgh. The Stetson
Intermediate Holding Company has not engaged in any business unrelated to the
acquisition and ownership of, directly, the Equity Interests in the Stetson
Holding Company. The Stetson Holding Company has not engaged in any business
unrelated to the acquisition and ownership of, directly, the Equity Interests
in the Stetson I Project Company and the Stetson II Project Company. The New
Cohocton Holding Company has not engaged in any business unrelated to the
acquisition and ownership of, directly, the Equity Interests in the Cohocton
Holding Company. The Cohocton Holding Company has not engaged in any business
unrelated to the acquisition and ownership of, directly, the Equity Interests
in the Cohocton Project Companies. None of the Borrower’s other Subsidiaries
have engaged in any business other than the development, construction,
ownership, operation and maintenance of the Projects.


 


ARTICLE 6


 


[RESERVED]


 


ARTICLE 7


 


REPORTS AND INFORMATION


 


Section 7.1             Quarterly Financial
Statements and Reports. The Borrower shall furnish to the
Administrative Agent (for delivery to each Lender) as soon as available, and in
any event within sixty (60) days after the end of each of the first three
quarters of each Fiscal Year of the Borrower, consolidated balance sheets of
the Borrower and its Consolidated Subsidiaries as of the end of such quarter
and consolidated statements of income, equity and cash flows of the Borrower
and its Consolidated Subsidiaries for such quarter and for the period
commencing at the end of the previous Fiscal Year and ending with the end of
such quarter, setting forth in each case in comparative form the corresponding
figures for the corresponding period of the preceding Fiscal Year, all in
reasonable detail.


 


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Section 7.2             Annual Financial Statements. The Borrower
shall furnish to the Administrative Agent (for delivery to each Lender) as soon
as available, and in any event within one hundred twenty (120) days after the
end of each Fiscal Year of the Borrower, consolidated balance sheets of the
Borrower and its Consolidated Subsidiaries as of the end of such Fiscal Year
and consolidated statements of income, equity and cash flows of the Borrower
and its Consolidated Subsidiaries for such Fiscal Year, setting forth in
comparative form the corresponding figures for the previous Fiscal Year, and
accompanied by an unqualified opinion thereon from a firm of independent
certified public accountants of recognized national standing (which firm shall
be the auditor of the Parent or approved by the Majority Lenders) which opinion
shall state that such financial statements fairly present in all material
respects the financial condition and results of operations of the Borrower and
its Consolidated Subsidiaries as at the end of, and for, such Fiscal Year in
accordance with GAAP.


 


Section 7.3             Accountant’s Letters. The Borrower
shall furnish to the Administrative Agent (for delivery to each Lender) each
audit response letter, accountant’s management letter and other written report,
as applicable, submitted to the Borrower or one of its Subsidiaries by its
independent public accountants in connection with an annual or interim audit of
the books of the Borrower or any of its Subsidiaries promptly following the
Borrower’s or such Subsidiary’s receipt thereof.


 


Section 7.4             Officer’s Certificates. The quarterly
and annual financial statements delivered pursuant to this Article 7
shall be accompanied by a Compliance Certificate signed by a Financial Officer
of the Borrower, which certificate shall (i) set forth in reasonable
detail the information and calculations necessary for determining compliance
with Article 8 and other provisions of this Agreement referred to
therein as of the last day of the applicable Fiscal Quarter or Fiscal Year of
the Borrower, as the case may be, (ii) certifying that such Financial
Officer has made or caused to be made a review of the transactions and
financial condition of the applicable Person during the relevant fiscal period
and that such financial statements fairly present in all material respects the
financial condition and results of operations of the Borrower and its
Consolidated Subsidiaries in accordance with GAAP, consistently applied, as at
the end of, and for, such periods (subject, in the case of unaudited financial
statements, to normal year-end audit adjustments and absence of footnotes) and (iii) certifying
that no Default or Event of Default exists or is continuing or, if any such
event or condition existed or exists, the nature thereof and the corrective
actions that the Borrower or the applicable Subsidiary has taken or proposes to
take with respect thereto.


 


Section 7.5             Annual Budget. As soon as
available, but in any event not less than forty-five (45) days before the end
of each Fiscal Year, the Borrower shall furnish to the Administrative Agent
(for delivery to each Lender) a copy of its proposed draft annual budget with
respect to each Project for the following Fiscal Year, the form of which shall
be in detail reasonably acceptable to the Administrative Agent (for delivery to
each Lender); provided that neither the Administrative Agent nor any
Lender shall have any approval rights with respect to any such budget. Before
the end of the Fiscal Year, the Borrower shall deliver to the Administrative
Agent a final annual budget with respect to each Project for the following
Fiscal Year, promptly after adopting the same, or making any material amendment
or modification of such annual budget.


 


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Section 7.6             Notice of Defaults. As soon as
reasonably practicable, and in any event within three (3) Business Days
after any Authorized Officer of CSSW Parent, the Borrower or any Subsidiary
obtains knowledge thereof (i) any Default or Event of Default or (ii) any
default with respect to any provision of any of the Project Documents that
could reasonably be expected to have a Material Adverse Effect, a written
notice of such event describing the same in detail reasonably satisfactory to
the Administrative Agent (for delivery to each Lender), together with such
notice, a description of what action that CSSW Parent, the Borrower or such
Subsidiary has taken and/or proposes to take with respect thereto.


 


Section 7.7             Reports to Other Creditors. Promptly
after delivering the same to the Project Lenders or any other holders of debt
securities or other Indebtedness, the Borrower shall furnish to the
Administrative Agent (for delivery to each Lender), with respect to each
Subsidiary, copies of any written monthly operating reports, monthly or
periodic construction progress reports, engineering reports, insurance reports,
environmental reports and compliance certificates, furnished to such Project
Lenders or holders of the Subsidiaries of the Borrower pursuant to the terms of
any Contractual Obligation and not otherwise required to be furnished to the
Administrative Agent pursuant to any other provision of this Agreement,
including any written operating reports, construction reports and other written
operating, construction and financial information furnished to such Persons
(but not, in any case, any ordinary course communications or ministerial
notices). The Borrower shall also deliver, promptly after execution and
delivery thereof, copies of all Material Additional Project Documents, any
Replacement IPH Documents, any other replacement of a Material Project Document
and any documentation, agreements, instruments and letters governing any
Permitted Indebtedness and any amendments, supplements, waivers, or consents to
any thereto.


 


Section 7.8             Miscellaneous. The Borrower
shall provide the Administrative Agent (for delivery to each Lender) with such
other information as the Administrative Agent or the Lenders through the
Administrative Agent may from time to time reasonably request respecting the
business, Properties, financial condition or operations of CSSW Parent, the
Borrower, the Borrower’s Subsidiaries, each of the Projects and the Project
Documents.


 


Section 7.9             Other Notices.


 


(a)       The Borrower shall promptly,
but in any event no later than five (5) Business Days after any Authorized
Officer of CSSW Parent, the Borrower or any of its Subsidiaries obtains
knowledge thereof or no later than five (5) Business Days after CSSW
Parent, the Borrower or any Subsidiary of the Borrower delivers or receives any
notice, give to the Administrative Agent (for delivery to the Lenders) notice
of:


 


(i)            any litigation or
proceeding affecting CSSW Parent, the Borrower or one of the Borrower’s
Subsidiaries or a Project, which could reasonably be expected to have a
Material Adverse Effect;


 


(ii)           any event of
default or event of termination or acceleration under any Permitted
Indebtedness (including copies of any notices of default delivered by the
holders of such Indebtedness to CSSW Parent, the Borrower or any of its
Subsidiaries


 


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and
copies of any notices of default delivered by CSSW Parent, the Borrower and its
Subsidiaries under Major Project Indebtedness);


 


(iii)          (A) any
fact, circumstance, condition, occurrence at, on, under or from any of the
Projects (including any instance in which any bird, bat or other mammal, animal
or plant protected under any Requirement of Law is killed, injured or otherwise
affected) that results in a violation of any Environmental Law applicable to
any of the Projects in any respect or that has resulted or may result in
personal injury or Property damage or an Environmental Claim or otherwise or (B) any
pending or threatened (either in writing or otherwise in an overt manner)
Environmental Claim against CSSW Parent, the Borrower or any of the Borrower’s
Subsidiaries, that, in either of cases (A) or (B), could reasonably be
expected to have a Material Adverse Effect;


 


(iv)          any Event of
Loss to any Property of CSSW Parent, the Borrower or any Subsidiary of the
Borrower, whether or not insured, through fire, theft, other hazard or Event of
Loss, in excess of $5,000,000 for any single event or $20,000,000 in the
aggregate in any calendar year;


 


(v)           any receipt by
the Borrower or one of its Subsidiaries of notice that (A) any event
constituting force majeure or any claim by any Project
Participant party thereto alleging that a force majeure event
under any of the Material Project Documents has occurred or (B) any event
constituting force majeure or any claim by any Project
Participant party thereto alleging that a force majeure which
affects any obligations under any of the other Project Documents has occurred,
in either of cases (A) or (B), that has had or could reasonably be
expected to have a Material Adverse Effect;


 


(vi)          the
termination, rescission or discharge (other than in accordance with its terms)
of any material provision of any Material Project Document;


 


(vii)         the occurrence
of any ERISA Event, or the failure with respect to any Foreign Plan or Foreign
Benefit Arrangement to comply with Requirements of Law, or the terms of such
plan or arrangement, that, alone or together with any other ERISA Events or
such failures that have occurred, could reasonably be expected to have a
Material Adverse Effect;


 


(viii)        any other
event, circumstance, development or condition that could reasonably be expected
to have a Material Adverse Effect; and


 


(ix)           notice of the
exercise of the cure provided for in Section 10.1(n)  of the Stetson
Portfolio Financing Agreement, together with evidence of such exercise
reasonably satisfactory to the Initial Lenders.


 


(b)       A copy of each material
amendment, waiver, consent, notice, demand or other written communication in
respect of any rights or obligations of CSSW Parent, the Borrower or any
Subsidiary of the Borrower given or received by CSSW Parent, the Borrower or
any Subsidiary of the Borrower (i) pursuant to or relating to any of the
Material Project Documents (including all written requests for amendments or
waivers) or pursuant to or relating to any necessary Governmental Approval, or (ii) to
or from any Governmental


 


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Authority
relating in any way to any of the Projects, in each case in clause (i) or (ii) above,
which notice, demand or correspondence is received or initiated other than in
the Ordinary Course of Business and could reasonably be expected to result in a
Material Adverse Effect; including, for avoidance of doubt, (A) any pending
or threatened (in writing or otherwise in an overt manner) application or
proceeding by or before any Governmental Authority for the purpose of revoking,
terminating, withdrawing, suspending, modifying or withholding any materially
necessary Governmental Approval, (B) any written request by a Project
Participant for an arbitration proceeding under any Material Project Document,
and (C) any Taking.


 


ARTICLE 8


 


FINANCIAL COVENANT


 


Until
all of the Obligations (other than inchoate Obligations) shall have been paid
in full and the Lenders shall have no commitments hereunder, the Borrower
hereby covenants and agrees that, as of each date set forth below, the
aggregate outstanding principal amount of the Term Loans, including any PIK
Interest added to the principal amount of outstanding Term Loans, plus the
aggregate outstanding principal amount of all Major Project Indebtedness of all
Subsidiaries of the Borrower shall not exceed the maximum amount set forth
below opposite the corresponding date on which such amount shall be measured:


 


	
   

  	
  as of December 31, 2012

  	
   

  	
  $

  	
  293,300,000

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  as of December 31, 2014

  	
   

  	
  $

  	
  270,700,000

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  as of December 31, 2016

  	
   

  	
  $

  	
  248,200,000

  	
   

  	
   

  	
   

  



 


; provided that each
of such maximum amounts on each of the corresponding dates shall be reduced in
an amount equal to the sum of the amount by which the Cohocton Major
Indebtedness Prepayment Trigger is reduced pursuant to clause 1(a)(ii) or
1(b)(ii), as applicable, of the definition of “Cohocton Permitted Indebtedness”
and the amount by which the Stetson Major Indebtedness Prepayment Trigger is
reduced pursuant to clause 1(a)(ii) or (1)(b)(ii), as applicable, of the
definition of “Stetson Permitted Indebtedness”.


 


ARTICLE 9


 


AFFIRMATIVE COVENANTS


 


On
and after the date hereof, until all of the Obligations (other than inchoate
Obligations) shall have been paid in full and the Lenders shall have no
commitments hereunder, the CSSW Parent and the Borrower each covenants as
follows:


 


Section 9.1             Existence and Business. Each of CSSW
Parent and the Borrower shall, and shall cause each of the Borrower’s
Subsidiaries to (a)(i) preserve, renew and keep in full force and effect
its organizational existence and good standing, and (ii) maintain all
rights, privileges and franchises necessary for the maintenance of its
existence and the normal conduct of its business, (b) comply in all
material respects with all Organizational Documents applicable


 


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to it and (c) obtain,
renew, preserve and maintain in full force and effect and comply with all its
necessary licenses and Governmental Approvals, except, with respect to clause (c) above,
to the extent that failure to do so or to comply therewith, as applicable,
would not reasonably be expected to have a Material Adverse Effect.


 


Section 9.2             Name and Location. Each of CSSW
Parent and the Borrower shall, and shall cause each of the Borrower’s
Subsidiaries to, maintain its name, its jurisdiction of organization, its “location”
(as defined in Section 9-307 of the UCC), its organizational type and its
Federal Employee Identification Number unless the Borrower shall have given the
Collateral Agent 30 days’ prior written notice prior to any such change (or 10
days’ prior written notice of a change in name) and all actions reasonably
requested by the Collateral Agent to preserve and perfect the Liens of the
Security Documents with respect to the Collateral shall have been taken.


 


Section 9.3             Compliance with Laws. Each of CSSW
Parent and the Borrower shall, and shall cause each of the Borrower’s
Subsidiaries and shall take all commercially reasonable steps to cause each of
its tenants, contractors and invitees to, conduct its business in compliance
with all applicable Requirements of Law, including all necessary Governmental
Approvals and Environmental Laws, except where any failure to comply could not
individually or in the aggregate reasonably be expected to have a Material
Adverse Effect, and except that CSSW Parent, the Borrower or the applicable
Subsidiary may, at its expense, contest by appropriate proceedings conducted in
good faith the validity or application of any such Requirement of Law or
Governmental Approval, so long as (a) none of the Secured Parties, CSSW
Parent, the Borrower or the Subsidiaries of the Borrower would be subject to
any criminal or other liability for failure to comply therewith and (b) such
contest does not involve any material risk of the sale, forfeiture or loss of
any of the Collateral or the Projects.


 


Section 9.4             Taxes and Other Obligations. Each of CSSW
Parent and the Borrower shall, and shall cause each of the Borrower’s
Subsidiaries to duly pay and discharge, or cause to be paid and discharged,
before the same shall become overdue, (a) all material taxes, assessments
and other governmental charges, imposed upon it and its Properties, sales and
activities, or upon the income or profits therefrom, as well as the claims for
labor, materials, or supplies which, if unpaid, might by Requirement of Law
result in a Lien upon any of its properties and (b) all material utility
and other governmental charges incurred in the ownership, operation,
maintenance, use, occupancy and upkeep of its business; provided, however,
that each of CSSW Parent, the Borrower and any of the Subsidiaries of the
Borrower may engage in a Good Faith Contest with respect to any such tax,
assessment, charge, levy, claim or obligation and, in such event, may permit
the tax, assessment, charge, levy, claim or obligation to remain unpaid during
any period, including appeals, and (c) in conformance with customary trade
terms (but not later than one hundred twenty (120) days from the due date in
the case of trade debt), all lease obligations, trade debt and all other
Indebtedness incident to its operations. The Borrower and its Subsidiaries
shall cause all material applicable Returns to be filed.


 


Section 9.5             Maintenance of Properties. Each of CSSW
Parent and the Borrower shall, and shall cause each Subsidiary of the Borrower
to, maintain, keep and preserve all of its Properties, including the Projects,
in good repair and working order in all material respects, ordinary wear and
tear excepted. Each of CSSW Parent and the Borrower shall, and shall cause


 


90

















 


each of the Borrower’s
Subsidiaries to, operate and maintain the Projects in accordance with Prudent
Utility Practice.


 


Section 9.6             Insurance. Each of CSSW
Parent and the Borrower shall, and shall cause each of its Subsidiaries to,
maintain with financially sound and reputable insurers insurance against such
hazards and risks and liability to persons and property to the extent and in a
manner required by the terms of Major Project Indebtedness Documents or, if no
such requirements exist, as is customary for companies in similar businesses
similarly situated and in any event in accordance with Prudent Industry
Practice. On reasonable request of the Administrative Agent from time to time,
the Borrower will render to the Administrative Agent a statement in reasonable
detail as to all insurance coverage required by this Section 9.6.


 


Section 9.7             Records and Accounts. Each of CSSW
Parent and the Borrower shall, and shall cause each of the Borrower’s
Subsidiaries to (a) maintain reasonably adequate management information
and cost control systems and (b) maintain a system of accounting in
accordance with GAAP. In the event that any such Person replaces its existing
auditors for any reason, such Person shall appoint and maintain as auditors
another firm of independent public accountants, which firm shall be nationally
recognized.


 


Section 9.8             Inspection. At any
reasonable time and from time to time upon reasonable notice from the
Administrative Agent or the Lenders, as applicable, each of CSSW Parent and the
Borrower shall, and shall cause each of its Subsidiaries to, permit the
Administrative Agent and the Initial Lenders on behalf of the other Lenders to
examine and make copies of and abstracts from the records and books of account
of, and visit the Properties (including the Projects) of, such Person and to
discuss the affairs, finances and accounts of such Person with any of their (or
the Operators’) officers or directors and with their independent accountants; provided
that so long as no Event of Default is then continuing, the Borrower shall not
be required to reimburse the Administrative Agent and the Initial Lenders for
more than one visit in any twelve consecutive month period. The Administrative
Agent, Initial Lenders and the other Lenders shall be bound by the
confidentiality provisions set forth in Section 13.20 hereof with
respect to information obtained in connection with any inspection conducted
pursuant to this Section 9.8.


 


Section 9.9             [Reserved].


 


Section 9.10           Separateness Covenants. Each of
CSSW Parent and Borrower shall comply with the separateness covenants set forth
in its respective Organizational Documents.


 


Section 9.11           Security Documents. Each of CSSW
Parent and the Borrower shall take, and shall cause the Steel Winds Companies
to take, all actions necessary or reasonably requested by the Administrative
Agent or Collateral Agent to maintain each Security Document in full force and
effect and enforceable in accordance with its terms and to maintain and
preserve the Liens created by the Security Documents and the perfection and
priority thereof, including (i) making filings and recordings, (ii) making
payments of fees and other charges, (iii) issuing and, if necessary,
filing or recording supplemental documentation, including continuation
statements, (iv) discharging all claims or other Liens adversely affecting
the rights of any Secured Party in any Collateral, (v) publishing or
otherwise delivering notice to third parties and (vi) taking all


 


91

















 


other actions either necessary
or otherwise reasonably requested by the Administrative Agent or Collateral
Agent to ensure that all Collateral (including any after-acquired property of
CSSW Parent, the Borrower and the Steel Winds Companies intended to be covered
by any Security Document) is subject to a valid and enforceable perfected
first-priority (except for, in the case of the Liens on the Steel Winds
Project, Permitted Liens) Lien in favor of the Collateral Agent for the benefit
of the Secured Parties. In furtherance of the foregoing, (A) each of CSSW
Parent and the Borrower shall, and shall cause each of the Steel Winds
Companies to, ensure that all Property acquired by it intended to be covered by
a Security Document shall become subject to the Lien of the Security Documents
having the priority contemplated thereby promptly upon the acquisition thereof
and (B) each of CSSW Parent and the Borrower shall not open or maintain
any bank or securities account without first taking all such actions as may be
necessary or otherwise reasonably requested by the Administrative Agent or the
Collateral Agent to ensure that such bank account is subject to a valid and
enforceable perfected first priority Lien in favor of the Collateral Agent for
the benefit of the Secured Parties and the “control” (as defined in Section 9-104,
9-105, 9-106 or 9-107 of the UCC) of the Collateral Agent.


 


Section 9.12           Project Documents. Without
limiting the amendment, modification, waiver and consent rights of CSSW Parent,
the Borrower and the Borrower’s Subsidiaries permitted by Section 10.11,
each of CSSW Parent and the Borrower shall, and shall cause each of the
Borrower’s Subsidiaries to (i) preserve, protect and defend its rights
under each and every Project Document, including (where necessary or
appropriate) prosecution of suits to enforce any material right of the Borrower
(or Subsidiary, as applicable) thereunder and enforcement of any claims with
respect thereto and (ii) perform and observe all of its covenants and
agreements contained in the Project Documents, except in the case of clause (i) and
(ii) above, to the extent that failure to do so would not reasonably be
expected to have a Material Adverse Effect.


 


Section 9.13           [Reserved.]


 


Section 9.14           Hedging Requirements.


 


(a)       Subject to the provisions of
clause (c) and Sections 10.11 and 11.1(j), each of CSSW
Parent and the Borrower shall, and shall cause each of its Subsidiaries to,
maintain in full force and effect the Initial Power Hedging Documents and/or,
if applicable, any Replacement IPH Document entered in to in accordance with Section 11.1(j);
provided that, in the event that any Replacement IPH Document has a term
that is less than the remaining term of the Initial Power Hedging Documents or
the Replacement IPH Document that such agreement has replaced as permitted by Section 11.1(j) (such
shortfall in term, the “Non-hedged Term”), then on or prior to the
expiration or termination of such Replacement IPH Document, each of CSSW Parent
and the Borrower shall, and shall cause each of its Subsidiaries to, enter into
one or more additional Replacement IPH Documents until expiration of the
Non-Hedged Term that in the aggregate will cover the Non-hedged Term for, in
each case, the longest term it can obtain on commercially reasonable terms
using up to the amount of collateral support that was required to be provided
under the Initial Power Hedging Documents that was originally replaced with
such Replacement IPH Documents.


 


(b)       Within sixty (60) days after
the incurrence of any Permitted Project Indebtedness (including the Stetson
Portfolio Financing), each of CSSW Parent and the


 


92

















 


Borrower
shall, and shall cause one of its Subsidiaries to, enter into Hedging
Agreements as may be necessary to ensure that at least fifty percent (50%) of
the aggregate principal amount of all Permitted Project Indebtedness of the
Borrower and its Subsidiaries either (i) is subject to interest rate
protection or (ii) bears a fixed rate of interest.


 


(c)       Within ninety (90) days
after the Stetson II COD, each of CSSW Parent and the Borrower shall, and shall
cause one of its Subsidiaries, to enter into Commodity Hedge/Power Sales
Agreement(s) with respect to the Stetson II Project that cover(s) in
the aggregate not less than twenty (20) GWh per year for a minimum term of five
(5) years.


 


Section 9.15           Clipper Bankruptcy. Upon the
occurrence of a bankruptcy, insolvency or similar event under Debtor Relief
Laws with respect to Clipper, each of CSSW Parent and the Borrower shall, and
shall cause each of the Borrower’s Subsidiaries to, diligently pursue its
respective rights to obtain on behalf of CSSW Parent, the Borrower and the
Borrower’s Subsidiaries ***** related to Clipper turbines owned by the Project
Companies.


 


Section 9.16           Further Assurances. Each of CSSW
Parent and the Borrower shall, and shall cause each Subsidiary of the Borrower
to, execute and deliver to the Agents all such documents and instruments and do
all such other acts and things as may be necessary or reasonably required by
the Agents to exercise and enforce their rights under the Loan Documents and to
record and file and re-record and re-file all such documents and instruments,
at such time or times, in such manner and at such place or places, all as may
be necessary or reasonably required by the Agents to preserve and protect the
position of the Agents under the Loan Documents and the validity,
enforceability, perfection and priority of the Liens on the Collateral.


 


Section 9.17           Mandatory Prepayment of
Reserves.


 


(a)       If as of any Interest
Payment Date there exists Excess Reserves for the Calculation Period ending on
such Interest Payment Date (calculated by the Borrower on such Interest Payment
Date), then each of CSSW Parent and the Borrower shall cause one or more Subsidiaries
to pay an amount, in the aggregate, equal to such Excess Reserve (less
the dollar amount of prepayments previously and actually made under this Section 9.17(a) using
the cash proceeds of Equity Contributions and made as an offset to such Excess
Reserves) either, at their option, toward the prepayment of Major Project
Indebtedness or toward the prepayment of the Obligations.


 


(b)       Independent of the
requirements of Section 9.17(a), if any cash amounts of a
Subsidiary of the Borrower are held in a Distribution Reserve Account under the
terms of Major Project Indebtedness of such Subsidiary or are otherwise trapped
from being distributed by such Subsidiary for a period of twelve (12) months or
more, then each of CSSW Parent and the Borrower shall deliver to the
Administrative Agent (who shall promptly forward such notice to the Lenders and
seek direction) a written notice thereof and reasonably detailed information
regarding the failure to satisfy the applicable distribution conditions (the “Distribution
Reserve Prepayment Notice”). Within ten (10) days after receipt of the
Distribution Reserve Prepayment Notice, the Administrative Agent may elect, at
the direction of the Majority Lenders, by delivery of a written notice to the
Borrower, to waive the further


 


93

















 


requirements
of this Section 9.17(b)  with respect to the amounts covered
by such Distribution Reserve Prepayment Notice. If the Administrative Agent
does not timely provide the waiver described in the previous sentence, the
Borrower shall cause such Subsidiary to apply such cash amounts toward the
prepayment of such Major Project Indebtedness in lieu of distribution to the
Borrower when and so long as such prepayment is permitted under, and no default
will exist under, the terms of such Major Project Indebtedness as a result
thereof (including no requirement to replenish the amounts being withdrawn from
the Distribution Reserve Account or that are otherwise trapped) and no
prepayment premium will be required under the terms of such Major Project
Indebtedness in connection with any such prepayment that cannot be fully paid
using the cash amounts in the Distribution Reserve Account or that are
otherwise trapped.


 


Section 9.18           Use of Proceeds. The proceeds
of the Term Loans will be used (i) in connection with the Initial Closing
Date, for general corporate purposes, (ii) in connection with the
Subsequent Closing Date, to effect the Lehman Tax Equity Buyback and, if any
remaining proceeds, for general corporate purposes, (iii) in connection
with the Stetson II Funding Date, to pay construction costs for the Stetson II
Project and if any remaining proceeds, for general corporate purposes and (iv) to
pay transaction expenses incurred in connection with the transactions
contemplated by the Loan Documents and the Equity Documents.


 


Section 9.19           FERC Approval. Upon the
occurrence and continuation of an Event of Default, if the Administrative Agent
has accelerated the Obligations of the Borrower pursuant to Section 11.3
hereof, each of CSSW Parent and the Borrower will, and will cause each of the
Borrower’s Subsidiaries to, cooperate with the Lenders as may be reasonably
necessary for the Collateral Agent to obtain any approvals or authorizations
from the FERC as may be required for the Collateral Agent, at the written
direction of the Majority Lenders, to foreclose on the Collateral.


 


Section 9.20           Accuracy of Budgets. The budgets
to be furnished to the Lenders by or on behalf of the Borrower after the
Initial Closing Date will be based upon good faith estimates and assumptions
believed by management of CSSW Parent, the Borrower and the applicable
Subsidiaries to be reasonable at the time made.


 


Section 9.21           Market-Based Rate Authority. Each of CSSW
and the Borrower shall, and shall cause each of its Subsidiaries to, take or
cause to be taken all necessary or appropriate actions so that each Subsidiary
(if such Subsidiary directly owns or leases a Project or is otherwise a “public
utility” under the FPA) will be authorized by FERC to sell wholesale electric
power at market-based rates with all waivers of regulations and blanket
authorizations (including under Section 204 of the FPA) as are customarily
granted by FERC to entities authorized to sell wholesale electric power at
market-based rates, in each case to the extent such authorization is required
for such Subsidiary to sell wholesale electric power at market-based rates in
accordance with all Requirements of Law.


 


Section 9.22           Additional Collateral. Each of CSSW
Parent and the Borrower shall, and shall cause each of its Subsidiaries to, (a) promptly
(i) execute and deliver to the Administrative Agent and the Collateral
Agent such amendments to the Guarantee and Collateral Agreement as the
Administrative Agent or the Collateral Agent deems necessary or advisable to
grant to the Collateral Agent, for the benefit of the Lenders, a perfected
first priority security interest in the


 


94

















 


Equity Interests of the
Steel Winds Companies and the Stetson Intermediate Holding Company, (ii) if
certificated, deliver to the Collateral Agent the certificates representing
such Equity Interests, together with undated stock powers, in blank, executed
and delivered by a duly Authorized Officer of the Borrower and the Steel Winds
Holding Company (iii) cause the Steel Winds Companies (A) to become a
party to the Guarantee and Security Agreement, (B) to take such actions
necessary or advisable to grant to the Collateral Agent for the benefit of the Lenders
a perfected first priority security interest in the Collateral described in the
Guarantee and Security Agreement with respect to the Steel Winds Companies,
including the filing of Uniform Commercial Code financing statements in such
jurisdictions as may be required by the Guarantee and Security Agreement or by
law or as may be requested by the Collateral Agent and (C) to deliver to
the Collateral Agent a certificate of an Authorized Officer of each Steel Winds
Company, substantially in the form of the certificate provided pursuant to Section 3.2(a)(iii),
with appropriate insertions and attachments, (iv) if requested by the
Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative
Agent and (v) deliver to the Collateral Agent each deposit account control
agreement required to be delivered pursuant to the Guarantee and Collateral
Agreement, in form and substance reasonably acceptable to the Collateral Agent;
provided that the parties hereto acknowledge and agree that if any LC
Indebtedness or LC Conversion Indebtedness of the Steel Winds Project Company
with respect to the Steel Winds Project is in existence as of the Subsequent
Closing Date, then the Steel Winds Companies shall be required to become a
party to the Guarantee and Security Agreement and satisfy the other
requirements of this Section 9.22, upon the termination, expiration
and discharge of such LC Indebtedness or LC Conversion Indebtedness, as the
case may be.


 


Section 9.23           [Reserved.].


 


Section 9.24           Independent Director. The Borrower
shall appoint an initial independent director or member (or equivalent thereof)
to the board of directors or other equivalent governing body of the Borrower
whose consent shall be required for any bankruptcy or insolvency filing by the
Borrower. At the Majority Lenders’ request, the Borrower shall remove the
initial independent director or any successor and appoint a successor
independent director satisfactory to the Majority Lenders.


 


Section 9.25           Cohocton Holding Company. Promptly
following the Subsequent Closing Date, but in no event later than sixty (60)
days following the Subsequent Closing Date (a) pursuant to documentation
(including the Organizational Documents of the New Cohocton Holding Company)
reasonably satisfactory to the Majority Lenders, the Borrower will form the New
Cohocton Holding Company, a direct Subsidiary of the Borrower in which the
Borrower will own directly 100% of the Equity Interests and cause such
Subsidiary to own directly 100% of the Equity Interests in the Cohocton Holding
Company, which will continue to own, directly, 100% of the Equity Interests in
the Cohocton Project Companies; (b) the Borrower shall pledge all of its
Equity Interests in the New Cohocton Holding Company to the Collateral Agent
for the benefit of the Secured Parties pursuant to the Security Agreement and
shall have taken all actions for the creation and perfection of a first
priority Lien thereon as necessary or reasonably requested by the Collateral
Agent or any Lender or otherwise required hereunder, including under Section 9.11
hereof, and under the Security Documents and (c) the Borrower shall have


 


95














 


delivered a certificate of
an Authorized Officer certifying that in connection with the formation of the
New Cohocton Holding Company and the transfer of such Equity Interests to the
New Cohocton Holding Company described above (i) no Governmental Approvals
or notices to or consents, approvals or filings of or with any Governmental
Authority are required to be obtained or made and (ii) no notices to or
consents, approvals of or filings with any other Person are required to be
obtained or made other than (w) consent under the HSHN Parent/Turbine
Facilities, (x) consent by the lenders under the Cohocton Mini-Perm
Financing, (y) consent under that certain ISDA Master Agreement, dated as
of August 21, 2007, by and between the Cohocton Holding Company and Credit
Suisse Energy LLC, as amended by that certain First Amendment to ISDA Master
Agreement, dated as of August 20, 2008, as further amended by that certain
Second Amendment to ISDA Master Agreement, dated as of December 11, 2008,
and as further amended by that certain Third Amendment to ISDA Master
Agreement, dated as of March 27, 2009, as amended by the Schedule to the
1992 ISDA Master Agreement and the Confirmation, dated as of August 21,
2007 and (z) other non-material notices, consents, approvals or filings,
each of which have been obtained or made and are in full force and effect, and
attaching thereto copies of any such notices, consents, approvals and filings.


 


Section 9.26                                Stetson II
Project. The Borrower shall construct, or cause the Stetson II Project to be
constructed in accordance with the the Stetson II Turbine Supply Agreement, the
EPC Contract, the Stetson II Construction Budget and Prudent Utility Practices.


 


Section 9.27                                Post Stetson
Prepayment Obligation to Sell. Notwithstanding anything
to the contrary in this Agreement, this Section 9.27 provides the
sole remedy available to the Administrative Agent and Initial Lenders if at any
time after payment of the Stetson Prepayment an Event of Default under Section 11.1(b) occurs
as a result of Indebtedness of the Stetson Companies (but without limiting the
rights or remedies of the Administrative Agent or the Lenders with respect to
any other Defaults or Events of Default that may exist at any time). After the
occurrence and during the continuance of an Event of Default described in the
prior sentence, the Administrative Agent may deliver a written instruction (the
“Stetson Sale Instruction”) to the Borrower to commence the sale of the
Equity Interests held by the Borrower in the Stetson Intermediate Holding
Company to a third party. During the 180 day period (or such longer period as
permitted by the Majority Lenders in writing) after the Borrower’s receipt of
the Stetson Sale Instruction (the “Stetson Sale Period”), the Borrower
shall commence and diligently pursue the sale of such Equity Interests, using
commercially reasonable efforts to maximize the value received for such Equity
Interests upon sale. The Administrative Agent shall cooperate with the
Borrower’s reasonable requests in connection with the conduct and consummation
of such sale. No such sale shall occur without the prior approval of the
Majority Lenders. Any failure to comply with this covenant will constitute an
immediate Event of Default and terminate the Stetson Sale Period. The Borrower
shall deliver to the Administrative Agent 100% of the cash proceeds and any
other consideration received in connection with such sale immediately after
receipt thereof (or if requested shall direct the buyer to make any payment or
delivery directly to the Administrative Agent), to be applied toward the
prepayment of the Term Loans in accordance with Section 4.4. During
the Stetson Sale Period, such Event of Default shall not be considered an Event
of Default hereunder and interest on the Term Loans shall not accrue at the
Default Rate. If the aforementioned sale has not been consummated before the
expiration of the Stetson Sale Period, such Event of Default shall be deemed an
Event of Default


 


96

















 


hereunder and the
Administrative Agent and Lenders shall be entitled to exercise any and all
remedies available under this Agreement and the other Loan Documents, at law or
in equity.


 


ARTICLE 10


 


NEGATIVE COVENANTS


 


On
and after the date hereof, until all of the Obligations (other than inchoate
Obligations) shall have been paid in full and the Lenders shall have no
commitments hereunder, each of CSSW Parent and the Borrower covenants that
neither CSSW Parent, the Borrower nor any of the Borrower’s Subsidiaries will:


 


Section 10.1                                Restrictions on
Indebtedness; Paying Premiums. (a) Create, incur,
suffer or permit to exist, or assume or guarantee, either directly or
indirectly, or otherwise become or remain liable with respect to, any
Indebtedness other than Permitted Indebtedness or (b) pay any prepayment
or redemption premium or other prepayment penalty in an amount that exceeds the
Premium Cap.


 


Section 10.2                                Restriction on
Liens. Create, incur, assume or suffer to be created, assumed, incurred or
to exist any Lien upon any of its property, whether now owned or hereafter
acquired, except Permitted Liens; provided that, with respect to CSSW
Parent and the Borrower, the only Liens permitted are the Liens created
pursuant to the Security Documents and Permitted Liens described in clauses
(b), (f) and (i) of the definition thereof.


 


Section 10.3                                Investments. Make any
advance, loan, extension of credit (by way of Contingent Obligation or
otherwise) or capital contribution to, or purchase any Equity Interests, bonds,
notes, debentures or other debt securities of, or any acquisition of assets
constituting a business unit of, or make any other investment in, any other
Person (all of the foregoing, “Investments”), except Permitted
Investments; provided that, with respect to CSSW Parent and the
Borrower, the only Investments permitted are Cash Equivalents and Permitted
Investments described in clauses (i), (j), (l), (m), (s) and (t) of
the definition thereof.


 


Section 10.4                                Dispositions of
Assets. Sell, lease, assign, transfer, convey or otherwise dispose of any of
its Property (including any sale/leaseback or Qualified Tax Equity Financings
but excluding sales of power, capacity or renewable energy credits under the
Project Documents existing on the applicable Closing Date or Additional Project
Documents that are permitted by Sections 10.11 and 10.17), whether
now owned or hereafter acquired, except (each, a “Permitted Disposition”):


 


(a)                      The disposition
of obsolete or worn out Property or other Property no longer useful in the business
of CSSW Parent, the Borrower and the Borrower’s Subsidiaries, in each case in
the Ordinary Course of Business;


 


(b)                     The sale or
transfer (i) by any Subsidiary of any Property (including Equity
Interests) to the Borrower, (ii) by any Cohocton Company of Property
(including Equity Interests) to any direct or indirect parent thereof, but not
above the Borrower, (iii) by any Stetson Company of any Property
(including Equity Interests) to any direct or indirect parent thereof, but not
above the Borrower or (iv) by any Steel Winds Company of any Property


 


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(other
than Equity Interests) to any direct or indirect parent thereof, but not above
the Borrower;


 


(c)                      Permitted
Distributions;


 


(d)                     Non-exclusive licenses
of intellectual property in the Ordinary Course of Business;


 


(e)                      Other
dispositions in an aggregate amount not to exceed $1,500,000 in the aggregate
per Fiscal Year;


 


(f)                        Any sale of
Equity Interests of either the Steel Winds Holding Company or the Steel Winds
Project Company made in connection with a Qualified Tax Equity Financing with
respect to the Steel Winds Project;


 


(g)                     The Steel Winds
Reorganization;


 


(h)                     The Stetson
Transmission Line Reorganization, subject to the satisfaction or waiver by the
Majority Lenders of the Stetson Transfer Conditions;


 


(i)                         The disposition
of assets affected by an Event of Loss;


 


(j)                         Sales of Cash
Equivalents; or 


 


(k)                      The Stetson
Reorganization.


 


Section 10.5                                Reserved.


 


Section 10.6                                Mergers,
Consolidation, Etc. Except as expressly permitted under the Loan
Documents, enter into any merger or consolidation with or acquire (other than
as permitted by Section 10.3) all or substantially all of the
assets of any Person, or the business, Property or fixed assets of, or Equity
Interests of, any Person constituting any division or line of business or other
business unit of any Person, or sell, assign, lease, transfer, convey or
otherwise dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to any Person, or liquidate, wind-up or dissolve its organizational
existence (or suffer any liquidation or dissolution), except in connection with
a Permitted Disposition.


 


Section 10.7                                Distributions. With respect
to CSSW Parent and the Borrower only, make any Distribution, other than the
following (collectively, “Permitted Distributions”):


 


(a)                      with respect to
each of the Cohocton Project, the Stetson I Project and the Stetson II Project,
upon and after the receipt of an ITC Grant with respect to such Projects, up to
the applicable Distributable ITC Amount;


 


(b)                     for so long as
the CSSW Parent or the Borrower is either a disregarded entity or a partnership
for tax purposes under the Code, Distributions with respect to such entity’s
Equity Interests to permit the direct and indirect holders of such Equity
Interests to pay


 


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U.S.
federal, state and local income taxes actually due and owing by them at the
time of the Distribution that are solely attributable to their direct or
indirect distributive share of the CSSW Parent’s or the Borrower’s taxable
income (such Distributions made pursuant to this Section 10.7(b), “Borrower
Tax Distributions”);


 


(c)                      so long as such
amounts do not constitute Excess Permitted Project Indebtedness, an amount
equal to the Net Cash Proceeds received by the Borrower or any of its
Subsidiaries from the proceeds of any Refinancing Indebtedness that exceeds the
amount of Major Project Indebtedness being refinanced; and


 


(d)                     Distribution of
the net cash proceeds of the Term Loans so long as the Borrower has complied
with Section 9.18 (including the payment of transaction expenses).


 


Section 10.8                                Sale and
Leaseback. Enter into any arrangement with any Person
providing for the leasing by CSSW Parent, the Borrower or any Subsidiary of the
Borrower of real or personal property that has been sold or transferred by CSSW
Parent, the Borrower or any Subsidiary of the Borrower to such Person or to
another Person to whom funds have been or are to be advanced by such Person on
the security of such Property or rental obligations of CSSW Parent, the
Borrower or the Borrower’s Subsidiaries.


 


Section 10.9                                Transactions
with Affiliates. Enter into any transaction or agreement, including
any purchase, sale, lease or exchange of property, the rendering of any service
or the payment of any management, advisory or similar fees, with any Affiliate
of CSSW Parent, the Borrower or the Borrower’s Subsidiaries, unless such
transaction is (a) otherwise permitted under this Agreement, (b) in
the Ordinary Course of Business of CSSW Parent, the Borrower and the Borrower’s
Subsidiaries, and (c) upon fair and reasonable terms no less favorable to
CSSW Parent, the Borrower or such Subsidiary (on the whole) than would be
obtained in a comparable arm’s length transaction with a Person that is not an
Affiliate; provided, however, that the foregoing restriction
shall not apply to (i) the execution and performance of the Loan Documents
and the transactions contemplated thereby, (ii) any transactions with the
directors, employees or equity holders of the Borrower or any of the
Subsidiaries for customary compensation (including bonus payments made to
employees), (iii) any operations and maintenance agreements,
administrative services agreements and any other affiliate agreements
identified on Schedule 3.1(d), Schedule 3.2(d) or Schedule
3.3(f), as such agreements may be amended, restated, modified or replaced
from time to time, but only to the extent such amendments, restatements,
modifications or replacements are not adverse to the Lenders in any material
respect and (iv) Permitted Distributions.


 


Section 10.10                          Organizational
Documents. Amend, modify or change its Organizational
Documents (including the Steel Winds Project Company LLC Agreement) in a manner
that is materially adverse to the rights of the Lenders (it being understood
that, any amendment, modification or other change to the separateness covenants
therein shall be materially adverse to such rights) or take any action that
would impair the value of or rights of the Lenders under such Organizational
Documents.


 


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Section 10.11                          Amendment of
Material Project Documents; Material Additional Project Documents; Stetson II
Construction Period.


 


(a)                      Amend, modify,
waive or enter into any change order, or consent to the amendment, modification
of or waiver of, or entering into any change order to, any of the Material
Project Documents to which CSSW Parent, the Borrower or any of the Borrower’s
Subsidiaries is a party or waive or consent to a waiver of, any material
provision thereof (each, an “Agreement Change”) unless:


 


(i)                                     one of the
following conditions is met:


 


(A)                              such Agreement Change is of
a ministerial nature;


 


(B)                                such Agreement Change could
not reasonably be expected to have a Material Adverse Effect and the Borrower
shall have delivered to the Administrative Agent and the Lenders a certificate
to that effect;


 


(C)                                such Agreement Change is
approved by the Majority Lenders (such approval not to be unreasonably
withheld, delayed or conditioned);


 


(D)                               such Agreement Change is an
obligation of CSSW Parent, the Borrower or such Subsidiary pursuant to the
terms of this Agreement or any other Loan Document or is expressly permitted
thereby; or


 


(E)                                 the terms of such Agreement
Change, individually or together with a series of directly related Agreement
Changes, increases regular, bonus and similar payments to be made by the CSSW
Parent, the Borrower or such Subsidiary thereunder by an amount in excess of
$5,000,000 (or during the Stetson II Construction Period with respect to
Agreement Changes under the EPC Contract, $10,000,000 in the aggregate for all
such Agreement Changes) over the term of applicable Major Project Document, (it
being acknowledged and agreed that this clause (E) shall not create any
presumption that Agreement Changes above such $5,000,000 threshold (or
$10,000,000, as applicable) are material or constitute a Material Adverse
Effect for any purpose under this Agreement);


 


provided that, in
addition to the above conditions, no amendment, modification or waiver to any
of the Initial Power Hedging Documents or any Replacement IPH Document shall be
permitted which will result in a reduction of the Committed Capacity from sales
of energy, ancillary services, capacity or other related products or services
from any Project pursuant to such agreement, or shorten the term of any such
agreement.


 


(b)                     Except as set
forth in clause (c) below, enter into any Material Additional Project
Document.


 


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(c)                      Enter into any
Material Additional Project Document which is a Material Power Document (but
excluding any Replacement IPH Document, the terms of which are governed by Section 11.1(j))
unless, (i) if such Material Power Document is a Commodity Hedge/Power
Sales Agreement then it shall be a Permitted Power Document and the Borrower
shall so certify, (ii) the counterparty is a Permitted Power Counterparty
and (iii) the Borrower certifies that its entry into such Material Power
Document could not reasonably be expected to have a Material Adverse Effect.


 


Section 10.12                          Amendment of
Major Project Indebtedness. Cause, consent to, or
permit any amendment, modification, waiver or other change to, any of the terms
of any Major Project Indebtedness Document that would (a) increase the
Yield as measured on the Amendment Measurement Date and the amount of fees
(including any fees or similar amounts paid in connection with any amendment,
waiver, extension or roll-over of such Major Project Indebtedness) (such fees
to be equated to interest based on a four-year average life to maturity) by
more than three percent (3%) in the aggregate for all increases in respect of
such Major Project Indebtedness provided in the related Major Project
Indebtedness Documents, (b) add any mandatory premiums or penalties in
excess of the Premium Cap or (c) without the prior written consent of the
Initial Lenders (i) amend, modify, waive or change (x) any terms of Section 10.1(n) of
the Stetson Portfolio Financing Agreement or (y) during the Stetson II
Construction Period, any other terms of the Stetson Portfolio Financing
Agreement and any related loan documents in a manner that is adverse in any
material respect to the rights or remedies of the Initial Lenders or (ii) during
the Stetson II Construction Period, enter into any Refinancing of the Stetson
Portfolio Financing (other than, for the avoidance of doubt, in connection with
the exercise of cure rights contemplated by Section 11.2(b) hereof).


 


Section 10.13                          Subsidiaries. (a) With
respect to CSSW Parent, form, create or acquire any Subsidiary (it being
understood that the Borrower shall be the only direct Subsidiary of CSSW
Parent), (b) with respect to the Borrower, form, create or acquire any
Subsidiary (it being understood that the only direct Subsidiaries of the
Borrower shall be (i) New York Wind III, (ii) the New Cohocton
Holding Company and (iii) the Stetson Intermediate Holding Company), (c) with
respect to any Project Company, form, create or acquire any Subsidiary, except
as permitted in connection with the Stetson Transmission Line Reorganization, (d) with
respect to New York Wind III and the Steel Winds Holding Company, form, create
or acquire any Subsidiary (it being understood that, after the formation of the
New Cohocton Holding Company pursuant to Section 9.25, the Steel
Winds Holding Company shall be the only direct Subsidiary of New York Wind III
and the Steel Winds Project Company shall be the only direct Subsidiary of the
Steel Winds Holding Company) and (e) with respect to any other Subsidiary
of the Borrower, form, create or acquire any Subsidiary that is not a wholly
owned domestic Subsidiary reasonably necessary in connection with the business
or financings of such Subsidiaries and the Projects. Prior to the formation,
creation, or acquisition of any Subsidiary (other than in connection with the
Stetson Transmission Line Reorganization or the Stetson Reorganization), the
Borrower will provide at least fifteen (15) days’ prior notice of such
formation, creation or acquisition to the Administrative Agent and the Initial
Lenders, together with an updated Schedule 5.5 reflecting such
information and copies of all Organizational Documents executed in connection
therewith.


 


Section 10.14                          Replacement of
Operator. Unless required to do so under the terms of Major
Project Indebtedness Document or pursuant to an exercise of remedies by a
lender


 


101

















 


thereunder, replace the
Operator of any Project, other than with a replacement operator of such Project
that has recognized knowledge and expertise in providing management, operations
and maintenance services to wind energy generation projects in North America
similar to such Project and that has been approved in writing by the Majority
Lenders, which approval shall not be unreasonably withheld.


 


Section 10.15                          Abandonment of
Project. Willfully and voluntarily abandon, suspend or cease the operation and
maintenance activities at any Project for a continuous period of more than
sixty (60) days (an “Event of Abandonment”); provided, however,
that any such suspension or cessation that arises from an Event of Loss, a
Requirement of Law, an event of force majeure, curtailment or failure to be
dispatched, or other bona fide business reasons shall not constitute an Event
of Abandonment, in each case, so long as the relevant Subsidiary is taking
commercially reasonable actions to overcome or mitigate the effects of the
cause of the suspension or cessation so that maintenance and/or operations, as
the case may be, can be resumed.


 


Section 10.16                          Special Purpose
Entity Status. With respect to CSSW Parent, engage in any
business unrelated to the acquisition and ownership, directly, of the Equity
Interests in the Borrower and entering into and performing obligations under
the Loan Documents. With respect to the Borrower, engage in any business
unrelated to the acquisition and ownership, directly, of the Equity Interests
in (i) the Stetson Intermediate Holding Company, (ii) New York Wind
III and (iii) the New Cohocton Holding Company, and the entry into and
performance of obligations under the Loan Documents. With respect to New York
Wind III, engage in any business unrelated to the acquisition and ownership,
directly, of the Equity Interests in the Steel Winds Holding Company and the
entry into and performance of obligations under the Loan Documents. With
respect to the Steel Winds Holding Company, engage in any business unrelated to
the acquisition and ownership, directly, of the Equity Interests in the Steel
Winds Project Company and the entry into and performance of obligations under
the Loan Documents. With respect to the Stetson Intermediate Holding Company,
engage in any business unrelated to the acquisition and ownership, directly, of
the Equity Interests in the Stetson Holding Company and the entry into and
performance of obligations under the Loan Documents. With respect to any other
Subsidiary of the Borrower, other than a Project Company, engage in any
business unrelated to the ownership, operation and maintenance of the Project
Companies. With respect to Prattsburgh, engage in any business unrelated to the
Unwind of its Properties and business. With respect to any Project Company,
engage in any business unrelated to the ownership, operation and maintenance of
the Projects.


 


Section 10.17                          Hedging
Agreements. Enter into or become a party to (a) any
Commodity Hedge/Power Sales Agreement other than the Initial Power Hedging
Documents, any Replacement IPH Document or any other Permitted Power Document
or (b) any other Hedging Agreement other than Hedging Agreements in the
Ordinary Course of Business or entered into in accordance with Section 9.14(b)
and not for speculative purposes.


 


Section 10.18                          Administrative
Services Agreement With respect to the Stetson Companies, enter into
or become a party to any administrative services agreement where the aggregate
annual reimbursement limits for the Stetson I Project and Stetson II Project
exceed the maximum aggregate amount set forth below opposite the corresponding
date on which such amount shall be measured.


 


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  During the period
  commencing on the Stetson II Effective date and ending on December 31,
  2010 

  	
   

  	
  $600,000.

  
	
   

  	
   

  	
   

  
	
  During the period
  commencing on January 1, 2011 and ending on December 31, 2012

  	
   

  	
  (a) $400,000 if the
  Stetson I Project Company and Stetson II Project Company have not distributed
  to Borrower at least $6,000,000 per year for the trailing twelve (12) months;
  or

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (b) $800,000 if the
  Stetson I Project Company and Stetson II Project Company have distributed to
  Borrower at least $6,000,000 per year for the trailing twelve (12) months. 

  
	
   

  	
   

  	
   

  
	
  Thereafter

  	
   

  	
  (a) $400,000 if the
  Stetson I Project Company and Stetson II Project Company have not distributed
  to Borrower at least $8,000,000 per year for the trailing twelve (12) months;
  or 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (b) $800,000 if the
  Stetson I Project Company and Stetson II Project Company have distributed to
  Borrower at least $8,000,000 per year for the trailing twelve (12) months. 

  



 


ARTICLE 11


 


EVENTS OF DEFAULT AND REMEDIES


 


Section 11.1                                Events of
Default. The occurrence of any of the following events shall constitute an “Event
of Default” hereunder:


 


(a)                      The Borrower
shall fail to pay (i) when due all or any portion of any principal payment
required under the Loan Documents; or (ii) within three (3) Business
Days after the same shall become due and payable, any interest accrued payable
under the Loan Documents; or (iii) within five (5) Business Days
after the same shall become due and payable, any other amount payable under the
Loan Documents; or


 


(b)                     CSSW Parent,
the Borrower or any Subsidiary of the Borrower shall default (i) in the
payment of any principal or unpaid reimbursement obligations on any of its
Indebtedness (other than the Term Loans, but including any Contingent
Obligation in respect of Indebtedness) on the scheduled or original due date or
(ii) in making any payment of any interest or other amount on any such
Indebtedness (other than the Term Loans, but including any Contingent
Obligation in respect of Indebtedness) beyond the grace period, if any,
provided in the instrument or agreement under which such Indebtedness was
created; provided


 


103

















 


that
any default, event or condition described in clause (i) or (ii) of
this paragraph (b) shall not at any time constitute an Event of Default
(A) unless, at such time, one or more defaults, events or conditions of
the type described in clauses (i) or (ii) of this paragraph
(b) shall have occurred and be continuing with respect to Indebtedness the
outstanding principal amount of which exceeds in the aggregate $20,000,000, and
(B) so long as the entire outstanding principal amount of such
Indebtedness has not become due (with no further cure periods for payment
thereof) or has not been accelerated prior to its stated maturity or a payment
of principal is not made at maturity, such default, event or condition is not
cured, remedied or waived within 180 days after the date on which the holder or
beneficiary of such Indebtedness (or a trustee or agent on behalf of such
holder or beneficiary) is permitted to cause such Indebtedness to become due
prior to its stated maturity (the “Standstill Period”); provided,
further, that notwithstanding the above, during the Stetson II
Construction Period, the occurrence of an “Event of Default” (under and as
defined in the Stetson Portfolio Financing Agreement and any Refinancing
thereof) relating to or in any way arising from the Stetson II Project Company
or Stetson II Project shall constitute an Event of Default under this
Agreement; or


 


(c)                      Any
representation, warranty or certification made or deemed made by any Person in
any Loan Document or contained in any notice or other certificate, agreement,
document, financial statement or other statement delivered pursuant hereto or
thereto, shall prove to have been incorrect in any material respect as of the
date made or deemed made; provided that if such misstatement is capable
of being remedied and has not caused a Material Adverse Effect, the Borrower
may correct such misstatement by delivering a correction notice of such
misstatement to the Administrative Agent in form and substance satisfactory to
the Majority Lenders within 30 days after obtaining actual knowledge of such
misstatement; or


 


(d)                     CSSW Parent,
the Borrower or any Subsidiary of the Borrower shall fail to:


 


(i)                                     perform,
observe or comply with, any covenant, obligation or agreement (A) set
forth in Section 9.1(a) (Existence and Business) with respect
to the Borrower, Section 7.6 (Notice of Defaults), Section 9.17(a) (Mandatory
Prepayment of Reserves) or Article 10 (Negative Covenants) (other
than Sections 10.7 and 10.9) of this Agreement at any time or
(B) set forth in Section 7.1 (Quarterly Financial Statements
and Reports), Section 7.2 (Annual Financial Statements), Section 9.10
(Separateness Covenants), Section 9.14 (Hedging Requirements), Section 9.17(b) (Mandatory
Prepayment of Reserves), Section 9.18 (Use of Proceeds), Section 9.25
(Cohocton Holding Company), Section 9.26 (Stetson II Project), Section 10.7
(Distributions) or Section 10.9 (Transactions with Affiliates),
within five (5) Business Days after the earlier of (x) receipt by
such Person of written notice from the Administrative Agent or any Lender of
such failure and (y) the time at which an Authorized Officer of such
Person became aware of such failure;


 


(ii)                                  perform,
observe or comply with, any covenant, obligation or agreement set forth in this
Agreement or in any other Loan Document (other than any such failure described
in the immediately preceding clause (i)), and such failure described in this
clause (ii) shall not be cured within thirty (30) days after the earlier
of (x) receipt by such Person of written notice from the Administrative
Agent or any Lender of such


 


104

















 


failure
and (y) the time at which an Authorized Officer of such Person became
aware of such failure; or


 


(e)                      (i) Any
Loan Document is revoked or invalidated or otherwise shall cease to be in full
force and effect (other than in accordance with its terms), or (ii) any of
CSSW Parent, the Borrower or any Subsidiary of the Borrower or any of their
respective Affiliates shall, in a litigation proceeding, contest the validity
or enforceability of any Loan Document or deny that it has any liability or
obligation thereunder; or


 


(f)                        Any Judgment
(or Judgments) is rendered against CSSW Parent, the Borrower or any of the
Borrower’s Subsidiaries in an aggregate amount in excess of $20,000,000 for
CSSW Parent, the Borrower and its Subsidiaries and such Judgments are
(i) not fully covered by third party insurance and (ii) not satisfied
by CSSW Parent, the Borrower or such Subsidiary, as applicable, within thirty
(30) days from the entry thereof; or


 


(g)                     (i) CSSW
Parent, the Borrower or any Subsidiary of the Borrower shall commence any case,
proceeding or other action (A) under any Debtor Relief Law, seeking to
have an order for relief entered with respect to it, or seeking to adjudicate
it as bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding up, liquidation, dissolution, composition or other relief
with respect to it or its debts, or (B) seeking appointment of a receiver,
trustee, custodian, conservator or other similar official for it or for all or
any substantial part of its assets; or (ii) there shall be commenced
against CSSW Parent, the Borrower or any Subsidiary of the Borrower, any case,
proceeding or other action of a nature referred to in clause (i) above
that (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed or undischarged for
a period of sixty (60) days; or (iii) there shall be commenced against
CSSW Parent, the Borrower or any Subsidiary of the Borrower, any case,
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial part of
its assets that results in the entry of an order for any such relief that shall
not have been vacated, discharged, stayed or bonded pending appeal within sixty
(60) days from the entry thereof; or (iv) CSSW Parent, the Borrower or any
Subsidiary of the Borrower shall take any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the acts set
forth in clause (i), (ii), or (iii) above; or (v) CSSW Parent, the
Borrower or any Subsidiary of the Borrower shall generally not, or shall be
unable to, or shall admit in writing its inability to, pay its debts as they
become due; or (vi) CSSW Parent, the Borrower or any Subsidiary of the
Borrower shall make a general assignment for the benefit of its creditors; or


 


(h)                     A Change of
Control shall occur; or


 


(i)                         The Nominee
Agreement shall terminate or cease to be in full force and effect to provide
beneficial ownership and control of the Equity Interests in and assets and
operations of the Cohocton Holding Company and the Cohocton Project Companies
in New York Wind III, or is amended in any manner adverse to the Lenders, other
than as a result of the Lehman Tax Equity Buyback and the Steel Winds
Reorganization, or the Borrower shall cease to own and control all rights and
privileges to direct the ownership and activities of the Cohocton Holding
Company and Cohocton Project Companies; or


 


105






 










 


(j)                         (a) Any
Material Project Document (x) ceases to be valid and binding and in full
force and effect before its scheduled termination in accordance with the terms
thereof (including by virtue of a termination prior to its normal expiration),
or (y) is replaced by CSSW Parent, the Borrower or any Subsidiary of the
Borrower or assigned by any Project Participant thereto, (b) an event of
default under, notice of termination of or similar right to terminate, a
Material Project Document shall have occurred and be continuing due to a breach
by the Borrower, one of its Subsidiaries or a Project Participant thereunder or
(c) a bankruptcy, insolvency or similar event under any Debtor Relief Law
shall have occurred with respect to any Project Participant party to a Material
Project Document unless such Project Participant is continuing to perform all
of its material obligations thereunder and such bankruptcy, insolvency or
similar event under any Debtor Relief Law has not resulted in a Material
Adverse Effect; provided that none of the foregoing in clauses (a),
(b) or (c) shall constitute an Event of Default:


 


(i)                                     if such
Material Project Document is not an Initial Power Hedging Document or any
previous Replacement IPH Document, (A) such event referred to above has not
had, and could not reasonably be expected to result in, a Material Adverse
Effect or (B) within 180 days(or within 90 days with respect to the EPC
Contract during the Stetson II Construction Period) after the occurrence of
such event referred to above, such event has been cured or the Borrower or the
applicable Subsidiary shall have entered into a replacement arrangement that
either (I) has received any required Major Project Indebtedness Approval
or (II)(1) is with a comparable counterparty or as otherwise approved by
the Majority Lenders (not to be unreasonably withheld, delayed or conditioned)
and (2) is on substantially similar terms as the replaced Material Project
Document, or


 


(ii)                                  if such
Material Project Document is an Initial Power Hedging Document or any previous
Replacement IPH Document, within 180 days after the occurrence of such event
referred to above, such event has been cured or the applicable Subsidiary has
entered into one or more replacement Commodity Hedge/Power Sales Agreements
covering the Committed Capacity of the agreement being replaced (each, a “Replacement
IPH Document”) that (A) has received Major Project Indebtedness
Approval to the extent applicable and required, (B) is with a counterparty
that is a Permitted Power Counterparty, (C) is a Permitted Power Document,
(D) has a term at least equal to the remaining term of the agreement being
replaced unless a Permitted Power Document with such remaining term would
require the Borrower and its Subsidiaries to post collateral support that
exceeds the amount of collateral support required under the terms of the
agreement being replaced (in which case the applicable Subsidiary shall enter
into a Replacement IPH Document with the longest term it can obtain on
commercially reasonable terms using the amount of collateral support that it
was required to provide under the agreement being replaced) and (E) the
Borrower shall have certified that entry into such Replacement IPH Document
could not reasonably be expected to result in a Material Adverse Effect; or


 


(k)                      (i) the
occurrence of any ERISA Event, or the failure with respect to any Foreign Plan
or Foreign Benefit Arrangement to comply with applicable laws, regulations and
interpretations, or the terms of such plan, shall have occurred, (ii) a
trustee shall be appointed


 


106

















 


by
a United States District Court to administer any Pension Plan, (iii) the
PBGC shall institute proceedings to terminate any Pension Plan, or (iv) a
complete or partial withdrawal by any of CSSW Parent, the Borrower and any of
the Borrower’s Subsidiaries or any of their respective ERISA Affiliates from
any Multiemployer Plan shall have occurred, or any Multiemployer Plan shall
enter reorganization status, become insolvent, or terminate (or notify CSSW
Parent, the Borrower or any Subsidiary of its intent to terminate) under
Section 4041A of ERISA, and in each case in clauses (i) through
(iv) above, such event or condition, together with all other such events
or conditions, described in this Section 11.1(k), individually or
in the aggregate, could reasonably be expected to have a Material Adverse
Effect; or


 


(l)                         (i) Any of
the Security Documents shall, except pursuant to the terms thereof, be
terminated or shall cease to be in full force and effect (or the Borrower shall
wrongfully so assert) or (ii) any of the Secured Parties shall cease to
have a first priority, perfected Lien on any Collateral; or


 


(m)                   Any
Governmental Approval shall be revoked, terminated, withdrawn, suspended,
modified or withheld or shall cease to be in full force and effect or any
proceeding is commenced to revoke, terminate, withdraw, suspend, modify or
withhold such Governmental Approval, unless, in any such case, such failure,
revocation, termination, withdrawal, suspension, modification, withholding or
failure to be in full force and effect would not reasonably be expected to have
a Material Adverse Effect; or


 


(n)                     A Total Loss
shall have occurred; or


 


(o)                     The Lehman Tax
Equity Buyback shall be deemed, found to be, declared or made unenforceable or
void or shall otherwise not be effective or be unwound for any reason (an “Unwind
Event”) and the parties to the Lehman Tax Equity Buyback are unable to
reconsummate the transaction prior to the earliest of (i) 180 days after
such Unwind Event occurs, (ii) any direct assertion in writing by Lehman
First Wind Holdings, LLC that it is entitled to own and control directly or
indirectly any Equity Interests in or rights or privileges to direct the ownership
or activities of the Cohocton Holding Company and the Cohocton Project
Companies or otherwise have any rights, claims or interests in any assets,
property or revenues of the Cohocton Project, the Cohocton Holding Company or
the Cohocton Project Companies and (iii) a Governmental Authority
determining that the reconsummation of the transaction is prohibited by a
Requirement of Law or otherwise not approving the reconsummation of the Lehman
Tax Equity Buyback (such period, the “Tax Equity Standstill Period”); or


 


(p)                     The
construction of the Stetson II Project shall have been willfully and
voluntarily abandoned for a period in excess of 45 consecutive days; provided,
however, that any suspension or cessation that arises from an Event of
Loss, a Requirement of Law, an event of force majeure or other bona fide
business reasons shall not constitute an abandonment, in each case, so long as
the Stetson II Project Company is taking commercially reasonable actions to
overcome or mitigate the effects of the cause of such suspension or cessation
so that construction can be resumed.


 


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Section 11.2                                Steel Winds
Project and Stetson II Project Event of Default.


 


(a)                                  Notwithstanding
any provision to the contrary in this Agreement, if an Event of Default
hereunder arises from a circumstance or occurrence solely with respect to the
Steel Winds Project, the Steel Winds Holding Company or the Steel Winds Project
Company (and not with respect to the Cohocton Project, the Stetson I Project or
the Cohocton Companies and the Stetson Companies), so long as such circumstance
or occurrence would have no material adverse impact on CSSW Parent, the
Borrower and the Borrower’s Subsidiaries and their assets, taken as a whole,
and would not result in any material liability to CSSW Parent, the Borrower or
the Borrower’s Subsidiaries (other than to the assets of the Steel Winds
Project, the Steel Winds Holding Company or the Steel Winds Project Company),
then automatically, without further action, upon the partial repayment of the
Term Loans, in a principal amount equal to $15,000,000, plus accrued interest
(including any PIK Interest applicable thereto) less 15/115 of payments
and prepayments of principal on the Term Loans made after the Subsequent Closing
Date, then such Event of Default shall be deemed cured and shall no longer
constitute an Event of Default hereunder. Subsequent to such repayment, solely
for purposes of giving rise to an Event of Default under the Loan Documents the
Borrower shall not be bound by any covenants contained in this Agreement as
relates solely to the Steel Winds Holding Company or the Steel Winds Project
Company and any determination of a Default or Event of Default hereunder shall
exclude all circumstances or occurrences with respect to the Steel Winds
Project or the other assets of the Steel Winds Holding Company or the Steel
Winds Project Company, so long as such circumstance or occurrence would have no
material adverse impact on CSSW Parent, the Borrower and the Borrower’s
Subsidiaries and their assets, taken as a whole, and would not result in any
material liability to CSSW Parent, the Borrower or the Borrower’s Subsidiaries
(other than to the assets of the Steel Winds Project and Steel Winds Holding
Company or the Steel Winds Project Company).


 


(b)                                 In the event
that (x) an Event of Default under the second proviso of Section 11.1(b) has
been cured by CSSW Parent, the Borrower or a Stetson Company pursuant to
Section 10.1(n) of the Stetson Portfolio Financing Agreement or
(y) during the period commencing on July 31, 2010 and ending on the
Stetson II COD, the security interests held by the lenders under the Stetson
Portfolio Financing in the Stetson II Project and the Equity Interests in the
Stetson II Project Company have been terminated and released and the Stetson II
Project Company has been fully released from all obligations under the Stetson
Portfolio Financing or any Refinancing thereof, including with respect to
obligations relating to collateral, and has been removed from all
representations, warranties, covenants and events of default thereunder (and
the Borrower shall have delivered to the Administrative Agent notice and
reasonably satisfactory evidence of the foregoing), the Borrower, the
Administrative Agent and the Initial Lenders hereby agree that the changes to
the indebtedness baskets, reserve lines, restricted payments, financial
covenant levels, required hedging, administrative services agreements and other
similar changes shall be restored to those levels and terms set forth in the
Original Credit Agreement and that they will promptly enter into an amendment
to this Agreement to reflect such changes. In addition, subsequent to such cure
under the second proviso of Section 11.1(b) before the Stetson
II Funding Date, solely for the purpose of giving rise to an Event of Default
under the Loan Documents and only to the extent the Stetson II Project Company
and Stetson II Project are and remain fully released and discharged, including
with respect to obligations relating to collateral, the Borrower shall not be
bound by any covenants contained in this Agreement as relates solely to the
Stetson II Project Company and any determination of a Default or Event of
Default hereunder shall exclude any circumstance or


 


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occurrence with respect to
the Stetson II Project or any other assets of the Stetson II Project Company,
so long as such circumstance or occurrence should have no material adverse
impact on CSSW Parent, the Borrower and the Borrower’s Subsidiaries and their
assets, taken as a whole, and would not result in any material lien or material
liability of CSSW Parent, the Borrower or the Borrower’s Subsidiaries.


 


Section 11.3                                Acceleration.


 


(a)                      If an Event of
Default specified in paragraph (g) of Section 11.1 shall occur
with respect to the Borrower, Term Loans (with accrued interest thereon) and
all other amounts owing under the Loan Documents shall immediately become due
and payable.


 


(b)                     Subject to Section 9.27,
if any Event of Default (other than the Event of Default referred to in Section 11.3(a))
shall occur, then the Administrative Agent (acting at the written direction of
the Majority Lenders) may by notice to the Borrower declare the Term Loans, all
accrued and unpaid interest thereon and all other amounts owing to the Lenders
under the Loan Documents to be due and payable, whereupon the same shall become
immediately due and payable.


 


(c)                      Except as
expressly provided above in this Section 11.3, presentment, demand,
protest and all other notices and other formalities of any kind are hereby
expressly waived by the Borrower.


 


Section 11.4                                Other Remedies. Subject to Section 9.27,
upon the occurrence and during the continuation of an Event of Default:


 


(a)                      The Collateral
Agent may, with the written consent of the Majority Lenders, and shall, at the
written direction of the Majority Lenders, exercise any or all rights and
remedies at law or in equity (in any combination or order that the Majority
Lenders may elect), including without limitation or prejudice to the Collateral
Agent’s other rights and remedies that are available under any of the Loan
Documents.


 


(b)                     CSSW Parent and
the Borrower hereby appoint the Collateral Agent (acting on the instruction of
the Majority Lenders) as the attorney-in-fact of CSSW Parent and the Borrower,
with full power of substitution, and in the name of CSSW Parent and the
Borrower, if the Collateral Agent, at the direction of the Majority Lenders, or
the Majority Lenders elect to do so at any time after the Term Loans have been
declared immediately due and payable pursuant to this Article 11,
to: (i) advance and incur such expenses as the Majority Lenders deem
reasonably necessary, (ii) endorse the name of CSSW Parent or the Borrower
on any checks or drafts, representing proceeds of any insurance policies, or
other checks or instruments payable to CSSW Parent or the Borrower,
(iii) take every action with respect to the Loan Documents which CSSW
Parent or the Borrower may take under law or in equity and (iv) prosecute
or defend any action or proceedings incident to the foregoing. The
power-of-attorney granted hereby is a power coupled with an interest and is
irrevocable. The Collateral Agent shall have no obligation to undertake any of the
foregoing actions, and, if it takes any


 


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such
action it shall have no liability to CSSW Parent or the Borrower to continue
the same or for the sufficiency or adequacy thereof.


 


(c)                      Any funds of
any Lender or the Collateral Agent (including the proceeds of any Term Loans)
used for any purpose referred to in this Section 11.4, whether or
not in excess of the relevant Term Loans, shall (i) be governed hereby,
(ii) constitute a part of the Obligations secured by the Security
Documents, (iii) bear interest at the Default Rate, and (iv) be
payable upon demand by such Lender or the Collateral Agent, as applicable.


 


Section 11.5                                Distribution of
Proceeds. Notwithstanding anything to the contrary contained
herein or in the other Loan Documents, in the event that following the
occurrence or during the continuance of any Event of Default, the Agents or any
Lender receives any monies on account of the Obligations from the Borrower or
otherwise, such monies shall be distributed for application as follows:


 


(a)                      First, to the
payment of or the reimbursement of, the Agents for or in respect of all costs,
fees, expenses, disbursements and losses that shall have been incurred or
sustained by the Agents in connection with the collection of such monies by the
Agents, or in connection with the exercise, protection or enforcement by the
Agents of all or any of the rights, remedies, powers and privileges of the
Agents or the Lenders under this Agreement or any other Loan Document;


 


(b)                     Second, to the
payment of all interest, including interest on overdue amounts, and late
charges, then due and payable with respect to the Term Loans, allocated among
the Lenders pro rata in accordance with their respective
outstanding principal amount of Term Loans;


 


(c)                      Third, to the
payment of the outstanding principal balance of the Term Loans (including any
applicable Call Premium and PIK Interest), allocated among the Lenders pro rata
in accordance with their respective outstanding principal amount of Term Loans;


 


(d)                     Fourth, to any other
outstanding Obligations, allocated among the Lenders pro rata
in accordance with their respective outstanding principal amount of Term Loans;
and


 


(e)                      Fifth, the excess,
if any, after all Obligations have been indefeasibly paid in full in cash,
shall be returned to the Borrower or to such other Persons as are lawfully
entitled thereto or as a court of competent jurisdiction may direct.


 


ARTICLE 12


 


THE AGENTS


 


Section 12.1                                Appointment and
Authorization.


 


(a)                      Each Lender
hereby irrevocably appoints, designates and authorizes the Administrative Agent
as the agent of such Lender under this Agreement and the other Loan Documents,
and each such Lender irrevocably authorizes the Administrative Agent, in such


 


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capacity
to take such action on its behalf under the provisions of this Agreement and
each other Loan Document to which it is a party and to exercise such powers and
perform such duties as are expressly delegated to the Administrative Agent by
the terms of this Agreement or any such other Loan Document, together with such
powers as are reasonably incidental thereto.


 


(b)                     Each Lender
hereby irrevocably appoints, designates and authorizes the Collateral Agent as
the agent of such Lender under this Agreement and the other Loan Documents, and
each such Lender irrevocably authorizes the Collateral Agent, in such capacity
to take such action on its behalf under the provisions of this Agreement and
each other Loan Document to which it is a party and to exercise such powers and
perform such duties as are expressly delegated to the Collateral Agent by the
terms of this Agreement or any such other Loan Document, together with such
powers as are reasonably incidental thereto.


 


(c)                      Each of the
Lenders authorizes, respectively, each Agent to execute, deliver and perform
each of the Loan Documents to which such Agent is or is intended to be a party
and each Lender agrees to be bound by all of the agreements of such Agent
contained in the Loan Documents.


 


(d)                     Notwithstanding
any provision to the contrary contained elsewhere in this Agreement or in any
other Loan Document, none of the Agents shall have any duties or
responsibilities to the Lenders except those expressly set forth herein and in
the other Loan Documents, nor shall any of the Agents have or be deemed to have
any fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against any
of the Agents. Without limiting the generality of the foregoing sentence, the
use of the terms “Administrative Agent,” and “Collateral Agent,” in this
Agreement with reference to the Administrative Agent and the Collateral Agent
is not intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any applicable Requirement of Law.
Instead, such terms are used merely as a matter of market custom, and are
intended to create or reflect only a relationship between independent
contracting parties.


 


Section 12.2                                Delegation of
Duties. Each of the Agents may execute any of its duties under this Agreement
or any other Loan Document by or through agents, employees or attorneys-in-fact
and shall be entitled to advice of counsel concerning all matters pertaining to
such duties. None of the Agents shall be responsible to the Lenders for the
gross negligence or misconduct of any agent or attorney-in-fact that it selects
with reasonable care.


 


Section 12.3                                Liability of
the Agents. None of the Agents or any of their respective
officers, directors, employees, agents, advisors, attorneys-in-fact or
Affiliates shall (a) be liable to the Lenders for any action taken or omitted
to be taken by any of them under or in connection with this Agreement or any
other Loan Document or the transactions contemplated hereby (except for its own
fraud, gross negligence or willful misconduct), or (b) be responsible in
any manner to any of the Secured Parties or any other Person for any recital,
statement, representation or warranty made by CSSW Parent, the Borrower or any
Affiliate of the Borrower, or any officer thereof, contained in this Agreement
or in any other Loan Document, or in any certificate, report, statement or
other document referred to or provided for in, or received by any Agent under
or in connection with, this Agreement or any other Loan Document, or for


 


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the value of or title to any
Collateral, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document, or for any failure of
the Borrower or any other party to any Loan Document to perform its obligations
hereunder or thereunder. None of the Agents or any of their respective
officers, directors, employees, agents, advisors, attorneys-in-fact or
Affiliates shall be under any obligation to any Secured Party to ascertain or
to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or any other Loan Document, or
to inspect the Properties, books or records of CSSW Parent, the Borrower or any
Affiliate of the Borrower.


 


Section 12.4                                Reliance by the
Agents. Each of the Agents shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone
message, statement or other document or conversation in good faith believed by
it to be genuine and correct and to have been signed, sent or made by the
proper Person or Persons, and upon advice and statements of legal counsel
(including counsel to CSSW Parent and the Borrower), independent accountants
and other experts selected by any such Agent. Each of the Agents shall be fully
justified in failing or refusing to take any action under this Agreement or any
other Loan Document (a) if such action would, in the opinion of such Agent
(upon consultation with counsel), be contrary to applicable Requirements of Law
or the terms of any Loan Document, (b) if such action is not specifically
provided for in the Loan Documents to which such Agent is a party, and it shall
not have received such advice or concurrence of the Majority Lenders as it
deems appropriate, or (c) unless, if it so requests, such Agent 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 action. Each of the Agents shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement
or any other Loan Document in accordance with a request or consent of the
Majority Lenders and such request and any action taken or failure to act
pursuant thereto shall be binding upon all of the Secured Parties.


 


Section 12.5                                Notice of
Default.


 


(a)                      The
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default, except with respect to defaults
in the payment of principal, interest and fees required to be paid to the
Administrative Agent for the account of the Lenders, unless the Administrative
Agent shall have received written notice from a Lender or the Borrower
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a “Notice of Default.” If the Administrative Agent
receives any such notice of the occurrence of a Default or an Event of Default,
it shall give notice thereof to the Lenders. The Administrative Agent shall
take such action with respect to such Default or Event of Default as may be
requested by the Majority Lenders in accordance with this Article 12;
provided, however, that unless and until the Administrative Agent
has received any such request, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable or in
the best interest of the Lenders.


 


(b)                     The Collateral
Agent shall not be deemed to have knowledge or notice of the occurrence of any
Default or Event of Default unless the Collateral Agent shall have received
written notice from the Administrative Agent, a Lender, or the Borrower
referring to


 


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this
Agreement, describing such Default or Event of Default and stating that such
notice is a “Notice of Default”. If the Collateral Agent receives any such
notice of the occurrence of a Default or an Event of Default, it shall give
notice thereof to the Administrative Agent and the Lenders. The Collateral
Agent shall take such action with respect to such Default or Event of Default,
and such action on behalf of the Secured Parties under any other Loan Document
as may be requested by the Majority Lenders; provided, however,
that unless and until the Collateral Agent has received any such request, the
Collateral Agent may (but shall not be obligated to) take such action, or refrain
from taking such action, with respect to such Default or Event of Default or
other Loan Document as it shall deem advisable or in the best interest of the
Lenders.


 


Section 12.6                                Credit Decision. Each Lender
acknowledges that none of the Agents or any of their respective officers,
directors, employees, agents, advisors, attorneys-in-fact or Affiliates has
made any representation or warranty to it, and that no act by any of the Agents
hereafter taken, including any review of the Projects or of the affairs of CSSW
Parent, the Borrower and its Subsidiaries shall be deemed to constitute any
representation or warranty by any Agent or any of their respective officers,
directors, employees, agents, advisors, attorneys-in-fact or Affiliates to any
Lender. Each Lender represents to the Agents that it has, independently and
without reliance upon any Agent or any of their respective officers, directors,
employees, agents, advisors, attorneys-in-fact or Affiliates and based on such
documents and information as it has deemed appropriate, made its own appraisal
of and investigation into the business, prospects, operations, Property,
financial and other condition and creditworthiness of CSSW Parent, the
Borrower, its Subsidiaries, the Projects, the value of and title to any
Collateral, and all applicable bank regulatory Requirements of Law relating to
the transactions contemplated hereby, and made its own decision to enter into
this Agreement and to extend credit to the Borrower hereunder. Each Lender also
represents that it will, independently and without reliance upon any Agent or
any of their respective officers, directors, employees, agents, advisors,
attorneys-in-fact or Affiliates and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action under this
and the other Loan Documents, and to make such investigations as it deems
necessary to inform itself as to the business, prospects, operations, Property,
financial and other condition and creditworthiness of CSSW Parent, the
Borrower, its Subsidiaries and the Projects. Except for notices, reports and
other documents expressly required pursuant to any Loan Document to be
furnished to the Lenders by the Agents, the Agents shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, Property, financial and other
condition or creditworthiness of the Projects, of CSSW Parent, of the Borrower
or its Subsidiaries, which may come into the possession of any Agent or any of
their respective officers, directors, employees, agents, advisors,
attorneys-in-fact or Affiliates.


 


Section 12.7                                Indemnification
of Agents.


 


(a)                      Whether or not
the transactions contemplated hereby are consummated, the Lenders shall
indemnify upon demand each Agent or any of their respective officers,
directors, employees, agents, advisors, attorneys-in-fact or Affiliates (to the
extent not reimbursed by or on behalf of the Borrower and without limiting the
obligation of the Borrower to do so), pro
rata in accordance with the aggregate principal amount of the Term


 


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Loans
held by such Lender from and against any and all Indemnified Liabilities; provided,
however, that no Lender shall be liable for the payment to any Agent or
any of their respective officers, directors, employees, agents, advisors,
attorneys-in-fact or Affiliates of any portion of such Indemnified Liabilities
resulting solely from such Person’s fraud, gross negligence or willful
misconduct.


 


(b)                     The
undertakings of the Lenders in this Section 12.7 shall survive the
payment of all Obligations hereunder and the resignation or replacement of any Agent.


 


(c)                      To the extent
permitted by applicable Requirement of Law, no party shall assert, and each
party hereby waives, any claim against any Agent or any of their respective
officers, directors, employees, agents, advisors, attorneys-in-fact or Affiliates,
on any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection
with, or as a result of, this agreement, any Loan Document or any agreement or
instrument contemplated hereby, or any Term Loan or the use of proceeds
thereof, except for claims in respect of a breach of the confidentiality
provisions contained herein or the gross negligence or willful misconduct of
any Agent or any of their respective officers, directors, employees, agents,
advisors, attorneys-in-fact or Affiliates.


 


Section 12.8                                Agents in
Individual Capacities. Each of the Agents and their respective
Affiliates may make loans to, issue letters of credit for the account of,
accept deposits from, acquire equity interests in and generally engage in any
kind of banking, trust, financial advisory, underwriting or other business with
CSSW Parent, the Borrower or their respective Affiliates as though such Agent
were not an Agent hereunder and without notice to or consent of the Lenders.
The Lenders acknowledge that, pursuant to such activities, an Agent or its
Affiliates may receive information regarding CSSW Parent, the Borrower or their
respective Affiliates (including information that may be subject to confidentiality
obligations in favor of CSSW Parent, the Borrower or such Affiliates) and
acknowledge that the Agents shall be under no obligation to provide such
information to them. Any Agent which is also a Lender hereunder shall have the
same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not an Agent, and the terms “Lender” and
“Lenders” shall include such Agent in its individual capacity.


 


Section 12.9                                Successor
Agents.


 


(a)                      Subject to the
appointment and acceptance of a successor as provided below, each of the
Administrative Agent and the Collateral Agent may resign at any time by giving
notice thereof to the other Agent, the Lenders and the Borrower, and each such
Agent may be removed at any time with or without cause by the Majority Lenders.
So long as no Default or Event of Default has occurred and is continuing, the
Borrower may make a request in writing to the Lenders for the removal of an
Agent, stating its reasons for such requested removal, but such removal shall
in any event require the affirmative vote of the Majority Lenders in their sole
and absolute discretion. Upon any such resignation or removal, the Majority
Lenders shall have the right, with the consent of the Borrower (such consent
not to be unreasonably withheld, delayed or conditioned) to appoint a successor
to the applicable Agent. If no successor Agent shall have been appointed by the
Majority Lenders, and shall have


 


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accepted
such appointment within 30 days after the resigning Agent’s giving of notice of
resignation or the giving of any notice of removal of any such Agent, then the
resigning Agent or Agent being removed, as the case may be, may appoint a
successor to such Agent. If the Collateral Agent shall resign or be removed
pursuant to the foregoing provisions, upon the acceptance of appointment by a
successor Collateral Agent hereunder, the former Collateral Agent shall deliver
all Collateral then in its possession to the successor Collateral Agent. Upon
the acceptance of its appointment as a successor Agent hereunder, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of such resigning or removed Agent, and
such resigning Agent or removed Agent shall be discharged from its duties and
obligations hereunder.


 


(b)                     After any
Agent’s resignation or removal, the provisions of this Article 12
and of Sections 13.1 and 13.2 shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was an Agent.


 


Section 12.10                          Registry. The Borrower
hereby designates the Administrative Agent, and the Administrative Agent
agrees, to serve as the Borrower’s agent, solely for purposes of this Section 12.10,
to maintain a register at the Notice Office (the “Register”) on which it
will record the Term Loans made by each of the Lenders (including (i) the
names and addresses of all Lenders, (ii) the interests of each Lender and
(iii) the principal amounts of the Term Loans owing to each Lender from
time to time (including the amount of PIK Interest thereon and any stated
interest thereon) and each repayment in respect of the principal amount of the
Term Loans of each Lender. Failure to make any such recordation, or any error
in such recordation shall not affect the Borrower’s obligations in respect of
such Term Loans. The entries in the Register shall be conclusive, in the
absence of manifest error, and the Borrower, the CSSW Parent, the
Administrative Agent and the Lenders may treat each Person whose name is
registered therein for all purposes as a party to this Agreement. With respect
to the assignment by any Lender to an assignee pursuant to Section 13.11,
the rights to the principal of, and interest on, any Term Loans made shall not
be effective until such transfer is recorded on the Register maintained by the
Administrative Agent with respect to ownership of such Term Loans, and prior to
such recordation all amounts owing to the transferor with respect to such Term
Loans shall remain owing to the transferor. The registration of an assignment
or transfer of all or part of any Term Loans shall be recorded by the
Administrative Agent on the Register only upon the acceptance by the
Administrative Agent of a properly executed and delivered Assignment and
Acceptance pursuant to Section 13.11. Coincident with the delivery
of such an Assignment and Acceptance to the Administrative Agent for acceptance
and registration of assignment or transfer of all or part of any Term Loans, or
as soon thereafter as practicable, the assigning or transferor Lender shall
surrender the Term Note evidencing such Term Loans, and thereupon one or more
new Term Notes in the same aggregate principal amount shall be issued to the
assigning or transferor Lender and/or the new Lender. The Register shall be
available for inspection by the Borrower or any Lenders at any reasonable time,
from time to time, upon reasonable prior notice.


 


Section 12.11                          Force Majeure. The
Administrative Agent shall not incur any liability for not performing any act
or fulfilling any duty, obligation or responsibility hereunder by reason of any
occurrence beyond the control of the Administrative Agent (including but not
limited to any act or provision of any present or future law or regulation or
governmental authority, any act of God or war, civil unrest, local or national
disturbance or disaster, any act of terrorism, or the


 


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unavailability of the
Federal Reserve Bank wire or facsimile or other wire or communication facility.


 


Section 12.12                          Reliance by
Administrative Agent. Whenever reference is made in this Agreement to
any action by, consent, designation, specification, requirement or approval of,
notice, request or other communication from, or other direction given or action
to be undertaken or to be (or not to be) suffered or omitted by the
Administrative Agent or to any election, decision, opinion, acceptance, use of
judgment, expression of satisfaction or other exercise of discretion, rights or
remedies to be made (or not to be made) by the Administrative Agent, it is
understood that in all cases the Administrative Agent shall be fully justified
in failing or refusing to take any such action under this Agreement if it shall
not have received such advice or concurrence of the Majority Lenders, as it
deems appropriate. This provision is intended solely for the benefit of the
Administrative Agent and its successors and permitted assigns and is not
intended to and will not entitle the other parties hereto to any defense, claim
or counterclaim, or confer any rights or benefits on any party hereto.


 


ARTICLE 13


 


MISCELLANEOUS


 


Section 13.1                                Costs and
Expenses. CSSW Parent and the Borrower, jointly and
severally shall, whether or not the transactions contemplated hereby are
consummated and whether or not any of the following are incurred before or
after the applicable Closing Date, pay, within ten (10) Business Days
after demand, (a) in accordance with the terms of the Engagement Letter,
all properly documented reasonable costs and expenses of the Agents and the
Initial Lenders in connection with the preparation, negotiation, execution, due
diligence, delivery, filing and recording of this Agreement and the other Loan
Documents and any other documents which may be delivered in connection herewith
or therewith, including without limitation Attorney Costs and consultants fees
and expenses approved by the Borrower of the Administration Agent and the
Initial Lenders, (b) all properly documented reasonable costs and expenses
(including Attorney Costs) of the Agents and the Initial Lenders in connection
with the administration of this Agreement and the other Loan Document,
including in connection with any amendment, modification, waiver or consent
with respect to any provision contained in this Agreement or any other Loan
Document, and (c) all properly documented reasonable costs and expenses
(including Attorney Costs) in connection with (i) any and all amounts
which the Agents and the Lenders have incurred in connection with any Event of
Default under this Agreement or any other Loan Document and (ii) any and
all amounts which any Agent or Lender has incurred in connection with the enforcement
or attempted enforcement of, or the investigation or preservation of any rights
or remedies under, this Agreement or any other Loan Document. In addition,
without duplication of amounts paid as Other Taxes pursuant to Section 4.5(c),
CSSW Parent and the Borrower, jointly and severally, shall pay any and all
stamp and other taxes and fees payable or determined to be payable in
connection with the execution, delivery, filing and recording of this
Agreement, the other Loan Documents, or any other document which may be
delivered in connection with this Agreement, and agree to hold the Secured
Parties harmless from and against any and all liabilities with respect to or
resulting from any delay by CSSW Parent or the Borrower in paying or omission
to pay such taxes and fees, provided that CSSW Parent and the Borrower
shall not be responsible for any penalties, interest and expenses relating to
such taxes


 


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and fees that are determined
by a court of competent jurisdiction in a final and non-appealable order to
have arisen from fraud, gross negligence or willful misconduct of the Secured
Parties.


 


Section 13.2                                Indemnity.  Whether or not the transactions contemplated
hereby are consummated:


 


(a)                                  CSSW Parent and
the Borrower, jointly and severally, shall pay, indemnify, save and hold each
Secured Party and each of their respective officers, directors, employees,
counsel, agents and attorneys-in-fact and Affiliates (each, an “Indemnified
Person”) harmless from and against any and all liabilities, obligations,
losses, damages, penalties, claims, actions, judgments, suits, costs, charges,
expenses or disbursements (including Attorney Costs) of any kind or nature
whatsoever which may at any time (including at any time following repayment of
the Term Loans or the termination, resignation or replacement of any Agent or
any Lender) be imposed on, incurred by or asserted against any such Person in
any way relating to, or arising out of, this Agreement or any other Loan Document,
including the Security Documents and any other document or instrument
contemplated by or referred to herein or therein, or the transactions
contemplated hereby and thereby, or any action taken or omitted by any such
Person under or in connection with any of the foregoing, including with respect
to the exercise by any Secured Party of any of its respective rights or
remedies under any of the Loan Documents, and any investigation, litigation or
proceeding (including any bankruptcy, insolvency, reorganization or other
similar proceeding or appellate proceeding) related to this Agreement or any
other Loan Document or the Term Loans, or the use of the proceeds thereof,
whether or not any Indemnified Person is a party thereto (all the foregoing,
collectively, the “Indemnified Liabilities”); provided that
Indemnified Liabilities shall not include Taxes governed by Section 4.5
and shall not include Excluded Taxes, and neither CSSW Parent nor the Borrower
shall have any obligation hereunder to any Indemnified Person with respect to
Indemnified Liabilities determined by a court of competent jurisdiction in a
final and non-appealable order to have arisen from the fraud, gross negligence
or willful misconduct of such Indemnified Person.


 


(b)                                 Environmental
Indemnity. Without in any way limiting the generality of the
other provisions contained in this Section 13.2, CSSW Parent and
the Borrower, jointly and severally, agree to defend, protect, indemnify, save
and hold harmless each Indemnified Person, whether as beneficiary of any of the
Security Documents, as a mortgagee in possession, or as successor-in-interest
to CSSW Parent or the Borrower, by foreclosure deed or deed in lieu of
foreclosure, or otherwise, from and against any and all liabilities,
obligations, losses, damages (including foreseeable and unforeseeable
consequential damages and punitive claims), penalties, fees, claims, actions,
judgments, suits, costs, disbursements (including, without limitation, Attorney
Costs and consultants’ fees and disbursements) and expenses (collectively, “Losses”)
of any kind or nature whatsoever that may at any time be incurred by, imposed
on, asserted or awarded against any such Indemnified Person directly or
indirectly, based on, or arising out of, or resulting from, (A) the actual
or alleged presence of Hazardous Substances on, in, under or affecting all or
any portion of the Property whether or not the same originates or emanates from
the Property or any property adjoining or adjacent to the Property or from
properties at which any Hazardous Substances generated, stored or handled by
CSSW Parent, the Borrower or any of its Subsidiaries were released or disposed
of, (B) any Environmental Claim relating to the Projects or (C) the
exercise of any Secured Party’s rights


 


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under
any of the provisions of the Security Documents (the “Indemnified Matters”),
whether any of the Indemnified Matters arise before or after foreclosure of any
of the security interests or other taking of title to all or any portion of the
Projects by any Secured Party, including, without limitation, (x) the
costs of removal or remediation of any and all Hazardous Substances from all or
any portion of the Property, any property adjoining or adjacent to the Property,
(y) additional costs required to take reasonable precautions to protect
against the release of Hazardous Substances on, in, under, from or affecting
the Property into the environment, including air, any body of water, any other
public domain or any surrounding areas, and (z) costs incurred to comply,
in connection with all or any portion of the Property or any surrounding areas,
with all applicable Environmental Laws with respect to Hazardous Substances,
except to the extent that any such Indemnified Matter is determined by a court
of competent jurisdiction in a final and non-appealable order to have arisen
from fraud, gross negligence or willful misconduct of such Indemnified Person.


 


(c)                                  Defense of
Actions. To the extent that CSSW Parent or the Borrower is unable or unwilling
to assume the defense of any claim for which indemnification is required
pursuant to the provisions of subsection (a) or (b) of this Section 13.2
(an “Indemnified Claim”) for a period of thirty (30) days following
written demand therefor by an Indemnified Person, such Indemnified Person shall
have the right to retain separate legal counsel of its own choice to conduct
the defense and all related matters in connection with any such litigation,
proceeding or other action; provided that an Indemnified Person shall
have the right to retain separate counsel whether or not CSSW Parent or the
Borrower is able or willing to assume the defense of any such litigation,
proceeding or other action if and to the extent that, in the reasonable opinion
of such Indemnified Person and its counsel, such action, suit or proceeding
involves the potential imposition of criminal liability upon such Indemnified
Person or a conflict of interest between such Indemnified Person and CSSW
Parent or the Borrower or between such Indemnified Person and another
Indemnified Person (unless such conflict of interest is waived in writing by
the affected Indemnified Persons). CSSW Parent and the Borrower, jointly and
severally, shall pay the reasonable and documented Attorney Costs (other than
with respect to disputes between Indemnified Persons), and such legal counsel
shall to the fullest extent consistent with its professional responsibilities
cooperate with CSSW Parent and the Borrower and any legal counsel designated by
CSSW Parent and the Borrower. CSSW Parent and the Borrower shall report to the
relevant Indemnified Person on the status of any such action, suit or
proceeding the defense of which it has assumed as material developments shall
occur and from time to time as requested by such Indemnified Person (but not
more frequently than once every sixty (60) days). Notwithstanding anything to
the contrary set forth herein, neither CSSW Parent nor the Borrower shall, 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 there is no conflict of interest between the affected
Indemnified Persons or any such conflict of interest is waived in writing by
the affected Indemnified Persons, be liable to the Indemnified Persons (or any
of them) under any of the provisions hereof for Attorney Costs of more than one
separate firm of attorneys (which firm shall be selected by the Borrower with
the prior written approval of the affected Indemnified Persons, which approval
shall not be unreasonably withheld or delayed, or upon failure to so select, by
the affected Indemnified Persons).


 


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(d)                                 Settlement,
Compromise. Notwithstanding anything herein to the contrary,
so long as no Default or Event of Default shall have occurred and be continuing
and provided the Indemnified Claim does not involve the potential imposition of
criminal liability upon such Indemnified Person, no Indemnified Person may
compromise or settle any Indemnified Claim involving such Indemnified Person,
the defense of which such Indemnified Person has assumed, other than at such
Indemnified Person’s own expense, without CSSW Parent’s and the Borrower’s prior
written consent (which consent shall not be unreasonably withheld or delayed); provided
that in no event shall CSSW Parent, the Borrower or any of their respective
Affiliates be required, in connection with the compromise or settlement of any
Indemnified Claim by an Indemnified Person, to admit any guilt, culpability or
complicity, or incur any civil or criminal liability, without the prior written
consent of CSSW Parent, the Borrower or such Affiliate of the Borrower, as the
case may be, which consent may be granted, conditioned or withheld in such
Person’s sole discretion. CSSW Parent and the Borrower further agrees it will
not, without the prior written consent of the affected Indemnified Persons,
settle or compromise or consent to the entry of any judgment in any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification may be sought hereunder in respect of which any Indemnified
Person is or could have been a party and indemnity could have been sought
hereunder by such Indemnified Person unless such settlement, compromise or
consent includes an unconditional release of such Indemnified Person from all
liability and obligations that are the subject matter of such action.


 


(e)                                  Subrogation. Upon payment
of any Indemnified Claim by CSSW Parent or the Borrower pursuant to the
provisions hereof to or on behalf of an Indemnified Person, CSSW Parent or the
Borrower, as the case may be, without any further action, shall be subrogated
to any and all claims that such Indemnified Person may have relating thereto,
and such Indemnified Person shall reasonably cooperate with CSSW Parent or the
Borrower and give such further reasonable assurances as are necessary or
advisable to enable CSSW Parent or the Borrower, as the case may be, to vigorously
pursue such claims.


 


(f)                                    Contribution. In the event
that the indemnity provided for herein is unavailable or insufficient to hold
any Indemnified Person harmless, then, provided such payment is not prohibited
by or contrary to any Requirement of Law or public policy, CSSW Parent and the
Borrower, jointly and severally, shall contribute to amounts paid or payable by
an Indemnified Person in respect of such Indemnified Person’s Indemnified
Claims as to which the indemnity provided for herein is unavailable or
insufficient in such proportion as appropriately reflects (a) the relative
benefits received or expected to be received by CSSW Parent, the Borrower and
their respective Affiliates, on the one hand, and the Indemnified Person, on
the other hand, in respect of the transactions contemplated by this Agreement,
(b) the relative fault of CSSW Parent, the Borrower and their respective
Affiliates, on the one hand, and the Indemnified Person, on the other hand in
connection with the acts or omissions which have resulted in the Indemnified
Claim, and (c) any other equitable considerations.  CSSW Parent, the Borrower and the Secured
Parties agree that it would not be just and equitable if contributions to be
made by CSSW Parent or the Borrower, as the case may be, pursuant to this
paragraph were to be determined by any method of allocation that does not take
into account the equitable considerations referred to above.


 


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(g)                                 Survival;
Defense. The obligations in this Section 13.2 shall survive
payment of the Term Loans and all other Obligations. All amounts owing under
this Section 13.2 shall be paid within 30 days after demand.


 


Section 13.3                                Notices.


 


(a)                                  All notices,
requests and other communications provided for hereunder shall be in writing
(including, unless the context expressly otherwise provides, by facsimile
transmission) and mailed or faxed to the address or facsimile number specified
for notices on the applicable signature page of this Agreement or the
Assignment and Acceptance or to such other address as shall be designated by
such party in a written notice to the other parties hereto given as provided in
this Section 13.3 (each, a “Notice Office”). The initial
Notice Office of the Administrative Agent is 45 Broadway, 14th floor, New York, New York 10006, Attn:
CMES-CSSW, LLC, Tel: 212-515-5264, Fax: 212-515-1576.


 


(b)                                 All such
notices, requests and communications (i) sent by mail will be effective
three Business Days after being deposited in the mail, postage prepaid,
(ii) sent by express courier will be effective upon delivery to or refusal
to accept delivery by the addressee, and (iii) transmitted by facsimile or
other electronic transmission will be effective when sent and confirmation
received; except that all notices and other communications to any Agent or the
Lenders shall not be effective until actually received.


 


(c)                                  CSSW Parent and
the Borrower acknowledge and agree that any agreement of the Secured Parties to
receive certain notices by telephone is solely for the convenience and at the
request of the Borrower. The Secured Parties shall be entitled to rely on the
authority of any Person purporting to be a Person authorized by CSSW Parent or
the Borrower to give such notice and the Secured Parties shall not have any
liability to the Borrower or other Person on account of any action taken or not
taken by any of the Secured Parties in good faith reliance upon such telephonic
notice.


 


(d)                                 Notices and
other communications to the Lenders hereunder may be delivered or furnished by
electronic communications pursuant to procedures approved by the Administrative
Agent; provided that the foregoing shall not apply to notices pursuant
to Article 2 unless otherwise agreed by the Administrative Agent
and the applicable Lender. The Administrative Agent or the Borrower may, in its
discretion, agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it; provided
that approval of such procedures may be limited to particular notices or
communications.


 


(e)                                  All notices,
requests and other communications hereunder and under the other Loan Documents
shall be in the English language.


 


Section 13.4                                Benefit of
Agreement. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the respective successors and permitted
assigns of the parties hereto. Neither CSSW Parent nor the Borrower may assign
or otherwise transfer any of their respective rights or obligations under this
Agreement or any of the other Loan Documents.


 


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The Lenders may only assign
their rights and obligations under this Agreement and the other Loan Documents
as provided in Section 13.11.


 


Section 13.5                                No Waiver;
Remedies Cumulative. No failure or delay on the part of any of the
Secured Parties in exercising any right, power or privilege hereunder or under
any other Loan Document and no course of dealing between CSSW Parent, the
Borrower and any Secured Party shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, power or privilege hereunder or under
any other Loan Document preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder or thereunder. No
notice to or demand on CSSW Parent or the Borrower in any case shall entitle
CSSW Parent or the Borrower to any other or further notice or demand in similar
or other circumstances or constitute a waiver of the rights of any Secured
Party to take any other or further action in any circumstances without notice
or demand. All remedies, either under this Agreement or any other Loan Document
or pursuant to any applicable Requirement of Law or otherwise afforded to any
Secured Party shall be cumulative and not alternative.


 


Section 13.6                                No Third Party
Beneficiaries. The agreement of each Lender to make extensions of
credit to the Borrower on the terms and conditions set forth in this Agreement
and the other Loan Documents is solely for the benefit of CSSW Parent and the
Borrower, and no other Person (including any Subsidiary of the Borrower, any
Project Participant, or any contractor, sub-contractor, supplier, worker,
carrier, warehouseman, materialman or vendor furnishing supplies, goods or
services to or for the benefit of the Borrower or any of the Projects or
receiving services from the Projects) shall have any rights hereunder against
any Secured Party with respect to the Term Loans, the proceeds thereof or
otherwise.


 


Section 13.7                                Reinstatement. To the extent
that any Secured Party receives any payment by or on behalf of the Borrower,
which payment or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required to be repaid to the Borrower
or to its estate, trustee, receiver, custodian or any other party under any
Debtor Relief Law or otherwise, then to the extent of the amount so required to
be repaid, the obligation or part thereof which has been paid, reduced or
satisfied by the amount so repaid shall be reinstated by the amount so repaid
and shall be included within the Obligations as of the date such initial
payment, reduction or satisfaction occurred.


 


Section 13.8                                Accredited
Investor. Each Initial Lender represents and warrants to the
Borrower that such Initial Lender is an “accredited investor” as defined in
Regulation D of the Securities Act of 1933, as amended and under National
Instrument 45-106 (Resale of Securities).


 


Section 13.9                                Counterparts. This
Agreement may be executed in any number of counterparts and by the different
parties hereto on separate counterparts, each of which when so executed and
delivered shall be an original, but all of which shall together constitute one
and the same instrument. Delivery of an executed signature page of this
Agreement by email or facsimile transmission shall be effective as delivery of
a manually executed counterpart thereof.


 


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Section 13.10                          Amendment or
Waiver.


 


(a)                                  No provision of
this Agreement or any other Loan Document may be amended, supplemented,
modified or waived, except by a written instrument signed by the Majority
Lenders and CSSW Parent, the Borrower and, if applicable, each other Guarantor
(as defined in the Guarantee and Security Agreement) (but only if CSSW Parent,
the Borrower or such Guarantor is a party thereto). Notwithstanding the
foregoing provisions, no such waiver and no such amendment, supplement or
modification shall (i) postpone or delay the Maturity Date, without the
prior written consent of each Lender affected thereby, or postpone or delay any
date fixed by this Agreement or any other Loan Document for any payment of
principal, interest or other amounts due to any Lender hereunder or under any
other Loan Document, without the prior written consent of each Lender affected
thereby, (ii) reduce the principal of, or the rate or amount of interest
or Call Premiums specified in this Agreement on, the Term Loans of any Lender,
without the prior written consent of each Lender affected thereby,
(iii) release all or substantially all of the Collateral or the Guarantors
except as shall be otherwise provided in any Security Document or other Loan
Document or consent to the assignment or transfer by the Borrower of any of its
respective obligations under this Agreement or any other Loan Document, without
the prior written consent of each Lender, (iv) amend, modify or waive any
provision of this Section 13.10, without the prior written consent
of each Lender, (v) amend, modify or waive any provision of Article 12
or any other provision of any Loan Document that affects the Agents without the
written consent of the applicable Agent or (vi) reduce the percentage
specified in or otherwise amend the definition of Majority Lenders or any other
provision specifying the number or percentage of Lenders required to approve or
consent to any action, without the prior written consent of each Lender.


 


(b)                                 Any waiver and
any amendment, supplement or modification made or entered into in accordance
with Section 13.10(a)  shall be binding upon CSSW Parent, the
Borrower, the Guarantors, the Agents and the Lenders.


 


Section 13.11                          Assignments,
Participations, etc.


 


(a)                                  Subject to
compliance with the following sentence, any Lender may at any time assign to
one or more Eligible Assignees that are not Affiliates of the Borrower (each,
an “Assignee” and “Successor Lender”) all or any part of any Term
Loans and the other rights and obligations of such Lender hereunder and under
the other Loan Documents; provided that (i) except with respect to
an assignment by a Lender to an entity that is an Affiliate of such Lender,
another Lender or a Related Fund, (x) the prior written consent of the
Administrative Agent shall be required for such assignment and (y) so long
as no Event of Default has occurred and is continuing, the prior written
consent of the Borrower shall be required for such assignment (which consent
shall not be unreasonably delayed, withheld or conditioned), (ii) the
Initial Lenders’ obligation to fund the Subsequent Loan may not be assigned
without the Borrower’s written consent to be granted in the Borrower’s sole
discretion and (iii) after acceleration pursuant to Section 11.3,
any Initial Lender, Assignee or Successor Lender may assign to any Person. Any
assignment permitted by the previous sentence must comply with the following
requirements: (A) each such assignment by a Lender of its Term Loans or
its Term Notes shall be made in such a manner so that the same portion of its
Term Loans or its Term Notes is assigned to the Assignee; (B) in the case
of an assignment of any part of a Term


 


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Loan
to any Assignee, such assignment shall not be for an amount less than
$10,000,000 or a higher integral multiple of $1,000,000 in excess thereof (or
100% of the assigning Lender’s remaining Term Loans) in each instance; and
(C) the Borrower and the Agents may continue to deal solely and directly
with the assigning Lender in connection with the interest so assigned until
(1) written notice of such assignment, together with payment instructions,
addresses, contact information and related information and any required tax
forms with respect to the Assignee, shall have been given to the Borrower and
the Administrative Agent by such assigning Lender and the Assignee,
(2) the assigning Lender or Assignee has paid to the Administrative Agent
a processing fee in the amount of $3,500 and (3) the assigning Lender
shall have delivered to the Borrower and the Administrative Agent an Assignment
and Acceptance substantially in the form of Exhibit F hereto (an “Assignment
and Acceptance”) with respect to such assignment from the assigning Lender.


 


(b)                                 From and after
the date that the Administrative Agent notifies the assigning Lender and the
Borrower that it has received (and provided its consent with respect to, if
required) an executed Assignment and Acceptance and payment of the
above-referenced processing fee and the Borrower has provided its consent to
such assignment, if required (such consent not to be unreasonably delayed,
withheld or conditioned), (i) the Assignee thereunder shall be a party
hereto and shall have the rights and obligations of a Lender hereunder and
under the other Loan Documents, and this Agreement shall be deemed to be
amended to the extent, but only to the extent, necessary to effect the addition
of the Assignee, and any reference to the assigning Lender hereunder or under
the other Loan Documents shall thereafter refer to such Lender and to the
Assignee to the extent of their respective interests, and (ii) the
assigning Lender shall, to the extent that rights and obligations hereunder and
under the other Loan Documents have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under the Loan Documents but shall continue to be entitled to the
benefits of Section 2.8, Section 4.5, Section 13.1
and Section 13.2.  At the
time of each assignment pursuant to Section 13.11(a) to a Person
which is not already a Lender hereunder, the respective assignee Lender shall
provide to the Borrower and the Administrative Agent the appropriate Internal
Revenue Service Forms described in Section 4.5(f). Any assignment
or transfer by a Lender of rights and obligations under this Agreement that
does not comply with this Section 13.11(a) and (b) 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 paragraph (d).


 


(c)                                  Within fifteen
(15) days after the Borrower has received a notice from the Administrative
Agent that it has received an executed Assignment and Acceptance and payment of
the processing fee, if requested by the Assignee or the assigning Lender, the
Borrower shall execute and deliver to the Administrative Agent new Term Notes
evidencing the Assignee’s assigned Term Loans and, if the assigning Lender has
retained a portion of its Term Loans, replacement Term Notes reflecting the
principal amount of the Term Loans retained by the assigning Lender (such Term
Notes to be in exchange for, but not in payment of, the Term Notes held by such
Lender).


 


(d)                                 Any Lender (the
“Originating Lender”) may at any time sell to one or more commercial
banks or other Persons not Affiliates of the Borrower (a “Participant”)
participating interests in any Term Loans; provided, however,
that (i) each such Participant


 


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shall
be an Eligible Assignee, (ii) the Originating Lender’s obligations under
this Agreement shall remain unchanged, (iii) the Originating Lender shall
remain solely responsible for the performance of such obligations,
(iv) the Borrower and the Agents shall continue to deal solely and
directly with the Originating Lender in connection with the Originating
Lender’s rights and obligations under this Agreement and the other Loan
Documents, and (v) no Lender shall transfer or grant any participating
interest under which the Participant shall have rights to approve any amendment
to, or any consent or waiver with respect to, this Agreement or any other Loan
Document, except to the extent such amendment, consent or waiver would require
consent of any affected Lender or all of the Lenders as described in Section 13.10.  In the case of any such participation, the
Participant shall not have any rights under this Agreement or any of the other
Loan Documents (the Participant’s rights against the Originating Lender in
respect of such Participation to be those set forth in the agreement executed
by the Originating Lender in favor of the Participant relating thereto) and all
amounts payable by the Borrower hereunder shall be determined as if such Lender
had not sold such participation.


 


(e)                                  A Participant
shall not be entitled to receive any greater payment with respect to a
participation sold to such Participant than the applicable Lender would have
been entitled to receive under Section 2.8 and 4.5, unless
the sale of the participation to such Participant is made with the Borrower’s
prior written consent. A Participant shall not be entitled (i) to the
benefits of Section 4.5 that the applicable Lender is entitled to
unless such Participant complies with Section 4.5(f), or
(ii) with respect to a Participation that has been consented to by the
Borrower pursuant to the previous sentence, to receive any greater payment with
respect to the participation sold to such Participant than the applicable
Lender would have been entitled to receive under Section 4.5 unless
the Participant (x) would be entitled to amounts under Section 4.5
if it were treated as an assignee as of the date of such participation and
(y) complies with Section 4.5(f) by providing to the Borrower
and the Administrative Agent each form and certificate that would be required
to be provided to them pursuant to Section 4.5(f) as if the
Participant was a Lender.


 


(f)                                    Subject to Section 13.11(a)
hereof, any Lender may pledge or assign all or any portion of the Term Loans
held by it as collateral security to secured obligations of the Lender and this
Section 13.11 shall not apply to any such pledge or assignment. No
such pledge or assignment shall release the assigning Lender from its
obligations hereunder or substitute any such pledge or assignee for such Lender
as a party hereto.


 


(g)                                 In the event
that any Lender sells a participation in a Term Loan, such Lender shall, acting
solely for this purpose as an agent of the Borrower, maintain a register on
which it enters the name and address of all Participants in the Term Loans held
by it and the principal amount (including the amount of PIK Interest and any
stated interest thereon) of the portion of the Loan which is the subject of the
participation (the “Participation Register”) and each repayment in
respect of the principal amount of the portion of the Term Loan held by each
Participant. A Term Loan may be participated in whole or in part only by
registration of such participation on the Participation Register. Any transfer
of such participation may be effected only by the Registration of such transfer
on the Participation Register. The entries in the Participation Register shall
be conclusive absent manifest error and such Lender shall treat such
participants whose name is recorded in the Participation Register as the owner
of such participation for all purposes of this Agreement, notwithstanding any
notice to the contrary.


 


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The
Participation Register shall be available for inspection by the Borrower or the
Administrative Agent at any reasonable time upon reasonable prior notice.


 


Section 13.12                          Survival. All
indemnities set forth herein, including, without limitation, Section 13.2,
shall survive the execution and delivery of this Agreement and the Term Notes
and the making and repayment of the Term Loans. In addition, each
representation and warranty made or deemed to be made pursuant hereto shall
survive the making of such representation and warranty.


 


Section 13.13                          WAIVER OF JURY
TRIAL. EACH OF THE PARTIES HERETO HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES THE RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER OR IN CONNECTION
WITH, THIS AGREEMENT, THE TERM NOTES OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE
OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF ANY PARTY RELATING HERETO OR THERETO. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE SECURED PARTIES TO ENTER INTO THIS AGREEMENT.


 


Section 13.14                          Right of
Set-off. In addition to any rights now or hereafter granted under applicable
Requirements of Law or otherwise, and not by way of limitation of any such
rights, upon the occurrence and during the continuance of an Event of Default,
each Lender is hereby authorized at any time or from time to time, without
presentment, demand, protest or other notice of any kind to the Borrower or to
any other Person, any such notice being hereby expressly waived, to set off and
to appropriate and apply any and all deposits (general or special) and any
other Indebtedness at any time held or owing by such Lender (including without
limitation by branches and agencies of any Lender wherever located), to or for
the credit or the account of the Borrower against and on account of the
Obligations or liabilities of the Borrower to such Lender under this Agreement
or any of the other Loan Documents, including all claims of any nature or
description arising out of or connected with this Agreement or any other Loan
Document, irrespective of whether such Lender shall have made any demand
hereunder and although said Obligations, liabilities or claims, or any of them,
shall be contingent or unmatured.


 


Section 13.15                          Severability. Any provision
hereof which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof and
without affecting the validity or enforceability of any provision in any other
jurisdiction.


 


Section 13.16                          Domicile of
Loans. Each Lender may transfer and carry its Term Loans at, to or for the
account of any office, Subsidiary or Affiliate of such Lender.


 


Section 13.17                          Limitation of
Recourse. There shall be full recourse to CSSW Parent and
the Borrower and to all of their respective assets for the liabilities of CSSW
Parent and the Borrower under this Agreement and the other Loan Documents for
the Obligations, but in no event shall the Parent or any officer, director or
holder of any equity interest in CSSW Parent, the Borrower or the Parent be
personally liable or obligated for such liabilities and Obligations, except as
it has specifically agreed to in any Loan Document to which it is a party.
Nothing


 


125

















 


contained herein shall
affect or diminish any rights of any Person against any other Person for such
other Person’s fraud, gross negligence or willful misconduct.


 


Section 13.18                          Governing Law;
Submission to Jurisdiction.


 


(a)                                  THIS AGREEMENT
AND EACH OF THE OTHER LOAN DOCUMENTS (UNLESS SUCH DOCUMENT EXPRESSLY STATES
OTHERWISE THEREIN) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF NEW YORK.


 


(b)                                 Each party
hereto hereby submits to the nonexclusive jurisdiction of the United States
District Court for the Southern District of New York and of any New York State
court sitting in New York City for the purposes of all legal proceedings arising
out of or relating to this Agreement, any other Loan Document or the
transactions contemplated hereby or thereby. Each party hereby irrevocably
waives, to the fullest extent permitted by applicable Requirement of Law, any
objection which it may now or hereafter have to the laying of the venue of any
such proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum. Nothing
herein shall affect the right to serve process in any other manner permitted by
applicable Requirements of Law or any right to bring legal action or
proceedings in any other competent jurisdiction, including judicial or
non-judicial foreclosure of real property interests which are part of the
Collateral. To the extent permitted by applicable Requirements of Law, each
party hereto further irrevocably agrees to the service of process of any of the
aforementioned courts in any suit, action or proceeding by the mailing of
copies thereof by certified mail, postage prepaid, return receipt requested, to
such party at the address referenced in Section 13.3, such service
to be effective upon the date indicated on the postal receipt returned from
such party.


 


Section 13.19                          Complete
Agreement. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AND COMPLETE AGREEMENT OF THE PARTIES HERETO, AND ALL PRIOR
NEGOTIATIONS, REPRESENTATIONS, UNDERSTANDINGS, WRITINGS AND STATEMENTS OF ANY
NATURE ARE HEREBY SUPERSEDED IN THEIR ENTIRETY BY THE TERMS OF THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS.


 


Section 13.20                          Confidentiality. The Secured
Parties shall keep confidential the terms and conditions (including the credit
structure and sources of revenue) of this Agreement and the Loan Documents to
which such entities are a party and shall not, and shall ensure that their
officers, directors and employees do not, disclose any such information to any
third party without the prior written consent of the Borrower unless:


 


(a)                                  such disclosure
is made in connection with any transfer or participation permitted in
accordance with the Loan Documents (and, in the case of a proposed transferee
or participant, until becoming bound by the Loan Documents such proposed
transferee or participant is otherwise bound by the provisions of this Section 13.20);
or


 


126

















 


(b)                                 such disclosure
is by the Secured Parties in connection with the exercise of any remedies under
any of the Loan Documents by such parties during the occurrence and continuance
of an Event of Default; or


 


(c)                                  required to do
so by an order of a court of competent jurisdiction or any competent judicial,
governmental, supervisory or regulatory body; or


 


(d)                                 pursuant to any
Requirement of Law in accordance with which the Secured Party concerned is
required to act; or


 


(e)                                  such disclosure
is made to its auditors for the purpose of enabling them to undertake any audit
or to its legal advisers when seeking bona fide legal advice in connection with
the Loan Documents (and such auditor and/or legal adviser are bound by the
provisions of this Section 13.20); or


 


(f)                                    such disclosure
is made to any employees, directors, agents, Affiliates, accountants and other
professional advisors or to consultant, or other adviser appointed pursuant to
the Loan Documents, to the extent necessary to enable that Person to give the
advice required by the Secured Parties (and such Persons are bound by the
provisions of this Section 13.20); or


 


(g)                                 such factual
information has been published or announced by third parties in conditions free
from confidentiality or has otherwise entered the public domain without fault
on the part of the relevant party (but only to the extent of the information
which has been published, announced or otherwise entered the public domain as
described in this clause (g)), provided that, in the case of clause
(c) and clause (d) above, if such Secured Party is permitted to by
any Requirements of Law in accordance with which the Secured Party is
accustomed to act, either not less that five (5) days’ notice of the
proposed disclosure has been given to the Borrower or (if less) whatever is the
greatest number of days that may elapse without the relevant Secured Party
infringing any obligation pursuant to the relevant law or regulation.


 


Notwithstanding
the foregoing, without the Borrower’s consent, any Secured Party may disclose
(i) the name of the Parent, (ii) the aggregate amount and type of the
financing evidenced hereby, (iii) the Secured Party’s role in such
financing, (iv) the applicable Closing Dates, (v) the type of project
(i.e., a wind project), (vi) the country in which the Projects are located
(i.e., U.S.), (vii) the sector of the Projects, (viii) the legal
adviser to the Lenders, (ix) the currency, amount, instrument type and
tenor of the Term Loans and (x) the names, titles and allocations to each
Lender.


 


Without
limiting the generality of the foregoing, any press release or other similar
release of information by the Secured Parties or any of their agents,
employees, etc. with respect to the Loan Documents is subject to the prior
written approval of the Borrower.


 


A
Secured Party’s obligations under this Section 13.20 shall survive
the sale, assignment, participation or transfer by such party for a period of
two (2) years from the date of such sale, assignment, participation or
transfer.


 


127

















 


Section 13.21                          Termination and
Release of Liens.


 


(a)                                  Upon the
indefeasible payment and performance in full (in cash) of any and all
Obligations (other than inchoate Obligations) of CSSW Parent and the Borrower
and the other Guarantors to the Secured Parties under the Loan Documents,
whether due or to become due, direct or indirect, absolute or contingent, and
howsoever evidenced, held or acquired, this Agreement and the other Loan
Documents shall terminate and be of no further force and effect (other than the
provisions hereof that by their express terms survive such termination) and the
Administrative Agent and Collateral Agent shall execute and deliver such
documentation confirming such termination as may reasonably be requested by the
Borrower and the Collateral shall be released from the Liens of the Security
Documents and the guarantees thereunder terminated, all without delivery of any
instrument or performance of any act by any Person.


 


(b)                                 Notwithstanding
anything to the contrary contained herein or in any other Loan Document, the
Agents are hereby irrevocably authorized by each Lender (without requirement of
notice to or consent of any Lender) to take any action requested by the
Borrower having the effect of releasing any Collateral or guarantee obligations
(i) to the extent necessary to permit consummation of any transaction
permitted by the Loan Documents or that has been consented to by the Majority
Lenders or (ii) the circumstances described in Section 13.21(a).


 


(c)                                  Upon the
incurrence or issuance of any Qualified Tax Equity Financing or any Steel Winds
Permitted Project Indebtedness, in each case with respect to the Steel Winds
Project (including by either of the Steel Winds Companies) on and after the
Subsequent Closing Date and so long as the Net Cash Proceeds thereof have been
applied in accordance with Section 4.1(a) to the extent the Steel
Winds Companies have granted Collateral pursuant to Section 9.22 of
this Agreement and Section 8.14 of the Guarantee and Security
Agreement, the Collateral granted by the Steel Winds Companies shall be
released from the Liens created by the Security Documents, and the Security
Documents shall no longer be applicable to the Steel Winds Companies and all
obligations (other than those that expressly survive such release) of the Steel
Winds Companies (including the guarantee obligations of the Steel Winds Holding
Company) under the Security Documents shall terminate, all without delivery of
any instrument or performance of any act by any Person.


 


Section 13.22                          USA Patriot Act. The
Administrative Agent and the Lenders subject to the USA PATRIOT Act hereby
notify CSSW Parent and the Borrower that, pursuant to the requirements of the
USA PATRIOT Act, the Administrative Agent and such Lenders are required to
obtain, verify and record information that identifies CSSW Parent and the
Borrower, which information includes the name and address of CSSW Parent and
the Borrower and other information that will allow the Administrative Agent and
each Lender to identify CSSW Parent and the Borrower in accordance with the USA
PATRIOT Act.


 


Section 13.23                          Acknowledgements. Each of CSSW
Parent and the Borrower hereby acknowledges that:


 


128

















 


(a)                                  it has been
advised by counsel in the negotiation, execution and delivery of this Agreement
and the other Loan Documents;


 


(b)                                 neither of the
Agents nor any Lender has any fiduciary relationship with or duty to CSSW
Parent or the Borrower arising out of or in connection with this Agreement or
any of the other Loan Documents, and the relationship between the Agents and
Lenders, on one hand, and CSSW Parent and the Borrower, on the other hand, in
connection herewith or therewith is solely that of debtor and creditor; and


 


(c)                                  no joint
venture is created hereby or by the other Loan Documents or otherwise exists by
virtue of the transactions contemplated hereby among the Lenders or among CSSW
Parent, the Borrower and the Lenders.


 


[Remainder of page intentionally left blank]


 


129

















 


IN
WITNESS WHEREOF, CSSW Parent, the Borrower, the Administrative Agent, the
Collateral Agent and the Initial Lenders party hereto have caused this
Agreement to be executed by their duly authorized officers as of the date first
set forth above.


 


	
   

  	
  CSSW
  PARENT:

  
	
   

  	
   

  
	
   

  	
  CSSW
  Holdings, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Evelyn Lim

  
	
   

  	
  Name:

  	
  Evelyn
  Lim

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice
  Address:

  
	
   

  	
   

  
	
   

  	
  c/o
  First Wind Energy, LLC

  
	
   

  	
  179
  Lincoln Street

  
	
   

  	
  Suite 500

  
	
   

  	
  Boston,
  MA 02111

  
	
   

  	
   

  
	
   

  	
  BORROWER:

  
	
   

  	
   

  
	
   

  	
  CSSW,
  LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Evelyn Lim

  
	
   

  	
  Name:

  	
  Evelyn
  Lim

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice
  Address:

  
	
   

  	
   

  
	
   

  	
  c/o
  First Wind Energy, LLC

  
	
   

  	
  179
  Lincoln Street

  
	
   

  	
  Suite 500

  
	
   

  	
  Boston,
  MA 02111

  



 


SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT


 

















 


	
   

  	
  INITIAL
  LENDERS:

  
	
   

  	
   

  
	
   

  	
  PIP3PX
  FirstWind Debt Ltd., as Initial Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Ben Hawkins

  
	
   

  	
  Name:

  	
  Ben
  Hawkins

  
	
   

  	
  Title:

  	
  Principal,
  Infrastructure Investments

  
	
   

  	
   

  
	
   

  	
  Notice
  Address:

  
	
   

  	
   

  
	
   

  	
  340
  Terrace Building, 9515 - 107 Street

  
	
   

  	
  Edmonton,
  AB T5K 2C3, Canada

  
	
   

  	
  Tel: 780.427.6468

  
	
   

  	
  Fax:
  780.422.0257

  
	
   

  	
  Attn:
  William McKenzie

  
	
   

  	
   

  
	
   

  	
  PIP3GV
  FirstsWind Debt Ltd., as Initial Lender 

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Ben Hawkins

  
	
   

  	
  Name:

  	
  Ben
  Hawkins

  
	
   

  	
  Title:

  	
  Principal,
  Infrastructure Investments

  
	
   

  	
   

  
	
   

  	
  Notice
  Address:

  
	
   

  	
   

  
	
   

  	
  340
  Terrace Building, 9515 - 107 Street

  
	
   

  	
  Edmonton,
  AB T5K 2C3, Canada

  
	
   

  	
  Tel: 780.427.6468

  
	
   

  	
  Fax:
  780.422.0257

  
	
   

  	
  Attn:
  William McKenzie

  



 


SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT


 

















 


	
   

  	
  ADMINISTRATIVE
  AGENT:

  
	
   

  	
   

  
	
   

  	
  Wells
  Fargo Bank, National Association, as 

  
	
   

  	
  Administrative
  Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael Pinzon

  
	
   

  	
  Name:

  	
  Michael
  Pinzon

  
	
   

  	
  Title:

  	
  Vice
  President 

  
	
   

  	
   

  
	
   

  	
  Notice
  Address:

  
	
   

  	
   

  
	
   

  	
  45
  Broadway, 14th Floor

  
	
   

  	
  New
  York, NY 10006

  
	
   

  	
  Tel: 212-515-5264

  
	
   

  	
  Fax:
  212-515-1576

  
	
   

  	
  Attn:
  CMES-CSSW, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  COLLATERAL
  AGENT:

  
	
   

  	
   

  
	
   

  	
  Wells
  Fargo Bank, National Association, as

  Collateral Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael Pinzon

  
	
   

  	
  Name:

  	
  Michael
  Pinzon

  
	
   

  	
  Title:

  	
  Vice
  President 

  
	
   

  	
   

  
	
   

  	
  Notice
  Address:

  
	
   

  	
   

  
	
   

  	
  45
  Broadway, 14th Floor

  
	
   

  	
  New
  York, NY 10006

  
	
   

  	
  Tel: 212-515-5264

  
	
   

  	
  Fax:
  212-515-1576

  
	
   

  	
  Attn:
  CMES-CSSW, LLC

  



 


SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT


 






 










 


Exhibit A


 


[FORM OF GUARANTEE AND SECURITY AGREEMENT]


 


To be attached


 

















 




 





FIRST LIEN GUARANTEE AND
SECURITY AGREEMENT


 


made by


 


CSSW Holdings, LLC,


 


CSSW, LLC


 


and certain of its
Subsidiaries


 


in favor of


 


Wells Fargo Bank, National
Association,

as Collateral Agent


 


Dated as of July 17,
2009




 





 


 


2

















 


Exhibit A


 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 1.

  	
  DEFINED
  TERMS

  	
  7

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.1

  	
  Definitions

  	
  7

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.

  	
  GUARANTEE

  	
  13

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.1

  	
  Guarantee

  	
  13

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.2

  	
  Right
  of Contribution

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.3

  	
  No
  Subrogation

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.4

  	
  Amendments,
  etc. with respect to the Borrower Obligations

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.5

  	
  Guarantee
  Absolute and Unconditional

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.6

  	
  Reinstatement

  	
  18

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.7

  	
  Payments

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 3.

  	
  GRANT
  OF SECURITY INTEREST

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.1

  	
  Grant
  of Security Interest

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.2

  	
  Deposit
  Accounts

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 4.

  	
  REPRESENTATIONS
  AND WARRANTIES

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1

  	
  Title;
  No Other Liens

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.2

  	
  Perfected
  First Priority Liens

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.3

  	
  Jurisdiction
  of Organization; Federal Identification Number; Chief Executive Office

  	
  23

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.4

  	
  Investment
  Property

  	
  23

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.5

  	
  Intellectual
  Property

  	
  25

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.6

  	
  Commercial
  Tort Claims

  	
  25

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 5.

  	
  COVENANTS

  	
  26

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.1

  	
  Delivery
  of Instruments, Certificated Securities and Chattel Paper

  	
  26

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.2

  	
  Maintenance
  of Perfected Security Interest; Further Documentation

  	
  26

  



 


3

















 


	
   

  	
  5.3

  	
  Changes
  in Name, etc

  	
  27

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.4

  	
  Investment
  Property

  	
  27

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.5

  	
  Intellectual
  Property

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.6

  	
  Commercial
  Tort Claims

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 6.

  	
  REMEDIAL
  PROVISIONS

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.1

  	
  Grantors
  Remain Liable

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.2

  	
  Pledged
  Stock

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.3

  	
  Proceeds
  to be Turned Over To Collateral Agent

  	
  32

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.4

  	
  Application
  of Proceeds

  	
  33

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.5

  	
  Code
  and Other Remedies

  	
  33

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.6

  	
  Sale
  of Pledged Stock

  	
  34

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.7

  	
  Subordination

  	
  35

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.8

  	
  Deficiency

  	
  36

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.

  	
  THE
  COLLATERAL AGENT

  	
  36

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.1

  	
  Collateral
  Agent’s Appointment as Attorney-in-Fact, etc

  	
  36

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.2

  	
  Duty
  of Collateral Agent

  	
  39

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.3

  	
  Execution
  of Financing Statements

  	
  39

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.4

  	
  Authority
  of Collateral Agent

  	
  40

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.5

  	
  Collateral
  and Administrative Agent’s Duties

  	
  40

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 8.

  	
  MISCELLANEOUS

  	
  41

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.1

  	
  Amendments
  in Writing

  	
  41

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.2

  	
  Notices

  	
  41

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.3

  	
  No
  Waiver by Course of Conduct; Cumulative Remedies

  	
  41

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.4

  	
  Enforcement
  Expenses; Indemnification

  	
  42

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.5

  	
  Successors
  and Assigns

  	
  43

  



 


4

















 


	
   

  	
  8.6

  	
  Set-Off

  	
  43

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.7

  	
  Counterparts

  	
  44

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.8

  	
  Severability

  	
  44

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.9

  	
  Section Headings

  	
  44

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.10

  	
  Integration

  	
  44

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.11

  	
  GOVERNING
  LAW

  	
  44

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.12

  	
  Submission
  To Jurisdiction

  	
  44

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.13

  	
  Acknowledgements

  	
  45

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.14

  	
  Additional
  Grantors

  	
  46

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.15

  	
  Termination;
  Releases

  	
  46

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.16

  	
  Security
  Interest Absolute

  	
  47

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.17

  	
  Reinstatement

  	
  49

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.18

  	
  WAIVER
  OF JURY TRIAL

  	
  50

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.19

  	
  Intercreditor Agreement

  	
  50

  
	
   

  	
   

  	
   

  	
   

  
	
  SCHEDULES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule
  1

  	
  Pledged
  Stock

  
	
  Schedule
  2

  	
  Perfection
  Matters

  
	
  Schedule
  3

  	
  Jurisdictions
  of Organization, Federal Identification Numbers and Chief Executive Offices

  
	
  Schedule
  4

  	
  Intellectual
  Property

  
	
  Schedule
  5

  	
  Notice
  Addresses

  
	
  Schedule
  6

  	
  Commercial
  Tort Claims

  
	
  Schedule 7

  	
  Deposit Accounts and
  Securities Accounts

  
	
   

  	
   

  	
   

  	
   

  
	
  ANNEX

  
	
   

  	
   

  	
   

  	
   

  
	
  Annex
  I

  	
  Assumption
  Agreement

  



 


5

















 


FIRST LIEN GUARANTEE AND SECURITY AGREEMENT


 


FIRST LIEN
GUARANTEE AND SECURITY AGREEMENT, dated as of July 17, 2009 (this “Agreement”),
made by each of the signatories hereto (together with any other entity that may
become a party hereto as provided herein, the “Grantors”), in favor of Wells
Fargo Bank, National Association, as collateral agent (in such capacity, and
together with its successors and assigns in such capacity, the “Collateral Agent”)
for the benefit of PIP3PX FirstWind Debt Ltd. and PIP3GV FirstWind Debt Ltd.
(the “Initial Lenders”) and the banks and other financial institutions or
entities (the “Other Lenders” and together with the Initial Lenders, the “Lenders”)
from time to time parties to the Credit Agreement referred to below.


 


W I T N E S S E T H:


 


WHEREAS, pursuant
to the Credit Agreement, dated as of July 17, 2009 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”),
by and among CSSW, LLC, as borrower (the “Borrower”),  CSSW Holdings, LLC (“CSSW Parent”), the
Initial Lenders, Wells Fargo Bank, National Association, as administrative
agent (in such capacity, and together with its successors and assigns in such
capacity, the “Administrative Agent”) and the Collateral Agent, the Initial
Lenders have severally agreed to make their respective extensions of credit to
the Borrower upon the terms and subject to the conditions set forth therein;


 


WHEREAS, the
Borrower is a member of an affiliated group of companies that includes each
other Grantor;


 


WHEREAS, the
proceeds of the extensions of credit under the Credit Agreement will be used in
part to enable the Borrower to make valuable transfers to one or more of the
other Grantors in connection with the operation of their respective businesses;


 


6

















 


WHEREAS, the
Borrower and the other Grantors are engaged in related businesses, and each
Grantor will derive substantial direct and indirect benefit from the making of
the extensions of credit under the Credit Agreement; and


 


WHEREAS, it is a
condition precedent to the obligation of the Initial Lenders to make their
respective extensions of credit to the Borrower under the Credit Agreement that
the Grantors shall have executed and delivered this Agreement to the Collateral
Agent for the ratable benefit of the Secured Parties;


 


NOW, THEREFORE, in
consideration of the premises and to induce the Agents and the Initial Lenders
to enter into the Credit Agreement and to induce the Initial Lenders to make
their respective extensions of credit to the Borrower thereunder, each Grantor
hereby agrees with the Collateral Agent, for the ratable benefit of the Secured
Parties, as follows:


 


SECTION 1.           DEFINED TERMS


 


1.1           Definitions.  (a)     Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein (including in the preamble and
recitals hereto) shall have the meanings given to them in the Credit Agreement,
and the following terms are used herein as defined in the New York UCC:  Accounts, Certificated Security, Chattel
Paper, Commercial Tort Claims, Contracts, Deposit Accounts, Documents,
Equipment, General Intangibles, Instruments, Inventory, Letter-of-Credit Rights,
Proceeds, Securities Accounts and Supporting Obligations.


 


(b)           The following terms shall have the
following meanings:


 


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


 


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


 


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


 


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“Borrower
Obligations” shall mean the collective reference to the unpaid principal of and
interest on the Term Loans and all other obligations and liabilities of the
Borrower (including, without limitation, interest accruing at the then
applicable rate provided in the Credit Agreement after the maturity of the Term
Loans and interest accruing at the then applicable rate provided in the Credit
Agreement after the filing of any petition in bankruptcy, or the commencement
of any insolvency, reorganization or like proceeding, relating to the Borrower,
whether or not a claim for post-filing or post-petition interest is allowed in
such proceeding) to the Collateral Agent, the Lenders or any other Secured
Party, whether direct or indirect, absolute or contingent, due or to become
due, or now existing or hereafter incurred, which may arise under, out of, or
in connection with, the Credit Agreement, this Agreement, the other Loan
Documents or any other document made, delivered or given in connection with any
of the foregoing, in each case whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all fees and disbursements of counsel to the
Collateral Agent or to the Secured Parties that are required to be paid by the
Borrower pursuant to the terms of any of the foregoing agreements).


 


“Collateral” shall
have the meaning ascribed to such term in Section 3.1.


 


“Collateral
Account” shall mean any collateral account established by the Collateral Agent
as provided in Section 6.3 or 6.4.


 


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


 


“Contracts”
shall mean all contracts and agreements to which any Grantor is or may
hereafter become a party (in each case, whether written or oral, or third party
or intercompany), including the Material Project Documents, as the same may be
amended, supplemented or otherwise modified from time to time, including,
without limitation, (i) all


 


8

















 


rights
of any Grantor to receive moneys due and to become due to it thereunder or in
connection therewith, (ii) all rights of any Grantor to damages arising
thereunder and proceeds of any insurance, indemnity, warranty or guaranty with
respect thereto and (iii) all rights of any Grantor to perform and to
exercise all remedies thereunder.


 


“Copyrights” shall
mean (i) all copyrights arising under the laws of the United States, any
other country or any political subdivision thereof, whether registered or
unregistered and whether published or unpublished (including, without
limitation, those listed in Schedule 4), all registrations and recordings thereof,
and all applications in connection therewith, including, without limitation,
all registrations, recordings and applications in the United States Copyright
Office, and (ii) the right to obtain all renewals thereof.


 


“Copyright
Licenses” shall mean any written agreement naming any Grantor as licensor or
licensee (including, without limitation, those listed in Schedule 4), granting
any right under any Copyright, including, without limitation, the grant of
rights to manufacture, distribute, exploit and sell materials derived from any
Copyright.


 


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


 


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


 


“Deposit
Account” shall have the meaning ascribed to such term in the Uniform Commercial
Code of any applicable jurisdiction and, in any event, including, without
limitation, any demand, time, savings, passbook or like account maintained with
a depositary institution.


 


“Deposit Account
Control Agreement” shall have the meaning ascribed to such term in Section 3.2.


 


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


 


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“Guarantor
Obligations” shall mean with respect to any Guarantor, all obligations and liabilities
of such Guarantor which may arise under or in connection with this Agreement
(including, without limitation, Section 2) or any other Loan Document to
which such Guarantor is a party, in each case whether on account of guarantee
obligations, reimbursement obligations, fees, indemnities, costs, expenses or
otherwise (including, without limitation, all Attorney Costs and expenses of
the Collateral Agent or the Secured Parties that are required to be paid by
such Guarantor pursuant to the terms of this Agreement or any other Loan
Document).


 


“Guarantors”
shall mean the collective reference to each Grantor other than the Borrower.


 


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


 


“Intellectual
Property” shall mean the collective reference to all rights, priorities and
privileges relating to intellectual property, whether arising under United
States, multinational or foreign laws or otherwise, including, without
limitation, the Copyrights, the Copyright Licenses, the Patents, the Patent
Licenses, the Trademarks and the Trademark Licenses, and all rights to sue at
law or in equity for any infringement or other impairment thereof, including
the right to receive all proceeds and damages therefrom.


 


“Intercompany
Note” shall mean any promissory note evidencing loans made by any Grantor to
CSSW Parent or any of its Subsidiaries.


 


“Investment
Property” shall mean the collective reference to (i) all “investment
property” as such term is defined in Section 9-102(a)(49) of the New York
UCC and (ii) whether or not constituting “investment property” as so
defined, all Pledged Notes and all Pledged Stock.


 


10














 


“Issuers”
shall mean the collective reference to each issuer of any Investment Property.


 


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


 


“New
York UCC” shall mean the Uniform Commercial Code as from time to time in effect
in the State of New York.


 


“Obligations”
shall mean (i) in the case of the Borrower, the Borrower Obligations, and (ii) in
the case of each Guarantor, its Guarantor Obligations.


 


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


 


“Patents”
shall mean (i) all letters patent of the United States, any other country
or any political subdivision thereof, all reissues and extensions thereof and
all goodwill associated therewith, including, without limitation, any of the
foregoing referred to in Schedule 4, (ii) all applications for letters
patent of the United States or any other country and all divisions,
continuations and continuations-in-part thereof, including, without limitation,
any of the foregoing referred to in Schedule 4, and (iii) all rights to
obtain any reissues or extensions of the foregoing.


 


“Patent
License” shall mean all agreements, whether written or oral, providing for the
grant by or to any Grantor of any right to manufacture, use or sell any
invention covered in whole or in part by a Patent, including, without
limitation, any of the foregoing referred to in Schedule 4.


 


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“Pledged
Notes” shall mean all promissory notes listed on Schedule 1, all Intercompany
Notes at any time issued to any Grantor and all other promissory notes issued
to or held by any Grantor (other than promissory notes issued in connection
with extensions of trade credit by any Grantor in the ordinary course of
business).


 


“Pledged
Stock” shall mean the Equity Interests listed on Schedule 1, together with any
other shares, stock certificates, options, interests or rights of any nature
whatsoever in respect of the Equity Interests of any Person that may be issued
or granted to, or held by, any Grantor while this Agreement is in effect.


 


“Proceeds”
shall mean all “proceeds” as such term is defined in Section 9-102(a)(64)
of the New York UCC and, in any event, shall include, without limitation, all
dividends or other income from the Investment Property, collections thereon or
distributions or payments with respect thereto.


 


“Securities
Act” shall mean the Securities Act of 1933, as amended.


 


“Subsidiary
Guarantors” shall mean after the Subsequent Closing Date, to the extent
Grantors hereunder, the collective reference to the Steel Winds Holding Company
and the Steel Winds Project Company.


 


“Trademarks”
shall mean (i) all trademarks, trade names, corporate names, company
names, business names, fictitious business names, trade styles, service marks,
logos and other source or business identifiers, and all goodwill associated
therewith, now existing or hereafter adopted or acquired, all registrations and
recordings thereof, and all applications in connection therewith, whether in
the United States Patent and Trademark Office or in any similar office or
agency of the United States, any State thereof or any other country or any
political


 


12

















 


subdivision
thereof, or otherwise, and all common-law rights related thereto, including, without
limitation, any of the foregoing referred to in Schedule 4, and (ii) the
right to obtain all renewals thereof.


 


“Trademark
License” shall mean any agreement, whether written or oral, providing for the
grant by or to any Grantor of any right to use any Trademark, including,
without limitation, any of the foregoing referred to in Schedule 4.


 


1.2           Other Definitional Provisions.  (a)  The “Interpretation, Etc.”
provisions set forth in Section 1.3 of the Credit Agreement shall apply to
this Agreement, including terms defined in the preamble and the recitals
hereto.


 


(b)           Where the context requires, terms
relating to the Collateral or any part thereof, when used in relation to a
Grantor, shall refer to such Grantor’s Collateral or the relevant part thereof.


 


SECTION 2.           GUARANTEE


 


2.1           Guarantee.  (a)  Each of the Guarantors hereby,
jointly and severally, unconditionally and irrevocably, guarantees to the
Collateral Agent, for the ratable benefit of the Secured Parties and their
respective successors, indorsees, transferees and assigns, the prompt and
complete payment and performance by the Borrower when due (whether at the
stated maturity, by acceleration or otherwise) of the Borrower Obligations.


 


(b)           Anything herein or in any other Loan
Document to the contrary notwithstanding, the maximum liability of each
Guarantor hereunder and under the other Loan Documents shall in no event exceed
the amount which can be guaranteed by such Guarantor 


 


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under
applicable federal and state laws relating to fraudulent conveyances, transfers
or the insolvency of debtors (after giving effect to the right of contribution
established in Section 2.2).


 


(c)           Each Guarantor agrees that the Borrower
Obligations may at any time and from time to time exceed the amount of the
liability of such Guarantor hereunder without impairing the guarantee of such
Guarantor contained in this Section 2 or affecting the rights and remedies
of the Collateral Agent or any Secured Party hereunder.


 


(d)           Subject to Section 8.15 hereof, the
guarantee contained in this Section 2 shall remain in full force and
effect until all the Borrower Obligations and the obligations of each Guarantor
under the guarantee contained in this Section 2 shall have been satisfied
by full and final payment in cash and the Initial Term Loan Commitment and
Subsequent Term Loan Commitment shall be terminated, notwithstanding that from
time to time during the term of the Credit Agreement the Borrower may be free
from any Borrower Obligations.


 


(e)           No payment made by the Borrower, any of
the Guarantors, any other guarantor or any other Person or received or
collected by the Collateral Agent or any Secured Party from the Borrower, any
of the Guarantors, any other guarantor or any other Person by virtue of any
action or proceeding or any set-off or appropriation or application at any time
or from time to time in reduction of or in payment of the Borrower Obligations
shall be deemed to modify, reduce, release or otherwise affect the liability of
any Guarantor hereunder which shall, notwithstanding any such payment (other
than any payment made by such Guarantor in respect of the Borrower Obligations
or any payment received or collected from such Guarantor in respect of the
Borrower Obligations), remain liable for the Borrower Obligations up to the
maximum liability of such Guarantor hereunder until the Borrower Obligations
are paid in full and the Initial Term Loan Commitment and Subsequent Term Loan
Commitment are terminated.


 


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2.2           Right of Contribution.  Each Subsidiary Guarantor hereby agrees that
to the extent that a Subsidiary Guarantor shall have paid more than its
proportionate share of any payment made hereunder, such Subsidiary Guarantor
shall be entitled to seek and receive contribution from and against any other
Subsidiary Guarantor hereunder which has not paid its proportionate share of
such payment.  Each Subsidiary Guarantor’s
right of contribution shall be subject to the terms and conditions of Section 2.3.  The provisions of this Section 2.2 shall
in no respect limit the obligations and liabilities of any Subsidiary Guarantor
to the Collateral Agent and the Secured Parties, and each Subsidiary Guarantor
shall remain liable to the Collateral Agent and the Secured Parties for the
full amount guaranteed by such Subsidiary Guarantor hereunder.


 


2.3           No Subrogation.  Notwithstanding any payment made by any
Guarantor hereunder or any set-off or application of funds of any Guarantor by
the Collateral Agent or any Secured Party, no Guarantor shall be entitled to be
subrogated to any of the rights of the Collateral Agent or any Secured Party
against the Borrower or any other Guarantor or any collateral security or
guarantee or right of set-off held by the Collateral Agent or any Secured Party
for the payment of the Borrower Obligations, nor shall any Guarantor seek or be
entitled to seek any contribution or reimbursement from the Borrower or any
other Guarantor in respect of payments made by such Guarantor hereunder, until
all amounts owing to the Collateral Agent and the Secured Parties by the
Borrower on account of the Borrower Obligations are paid in full and the
Initial Term Loan Commitment and Subsequent Term Loan Commitment are terminated.  If any amount shall be paid to any Guarantor
on account of such subrogation rights at any time when all of the Borrower
Obligations shall not have been paid in full, such amount shall be held by such
Guarantor in trust for the Collateral Agent and the Secured Parties, segregated
from 


 


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other
funds of such Guarantor, and shall, forthwith upon receipt by such Guarantor,
be turned over to the Collateral Agent in the exact form received by such
Guarantor (duly indorsed by such Guarantor to the Collateral Agent, if
required), to be applied against the Borrower Obligations, whether matured or
unmatured, in such order as the Collateral Agent, at the direction of the
Majority Lenders, may determine.


 


2.4           Amendments, etc. with respect to the
Borrower Obligations.  Each Guarantor
shall remain obligated hereunder notwithstanding that, without any reservation
of rights against any Guarantor and without notice to or further assent by any
Guarantor, any demand for payment of any of the Borrower Obligations made by
the Collateral Agent or any Secured Party may be rescinded by the Collateral
Agent or such Secured Party and any of the Borrower Obligations continued, and
the Borrower Obligations, or the liability of any other Person upon or for any
part thereof, or any collateral security or guarantee therefor or right of
set-off with respect thereto, may, from time to time, in whole or in part, be
renewed, extended, amended, modified, accelerated, compromised, waived, surrendered
or released by the Collateral Agent or any Secured Party, and the Credit
Agreement and the other Loan Documents and any other documents executed and
delivered in connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, as the Collateral Agent (or the Majority
Lenders or all Lenders, as the case may be) may deem advisable from time to
time, and any collateral security, guarantee or right of set-off at any time
held by the Collateral Agent or any Secured Party for the payment of the
Borrower Obligations may be sold, exchanged, waived, surrendered or
released.  Neither the Collateral Agent
nor any Secured Party shall have any obligation to protect, secure, perfect or
insure any Lien at any time held by it as security for the Borrower Obligations
or for the guarantee contained in this Section 2 or any property subject
thereto.


 


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2.5           Guarantee Absolute and
Unconditional.  Each Guarantor waives any
and all notice of the creation, renewal, extension or accrual of any of the
Borrower Obligations and notice of or proof of reliance by the Collateral Agent
or any Secured Party upon the guarantee contained in this Section 2 or
acceptance of the guarantee contained in this Section 2; the Borrower
Obligations, and any of them, shall conclusively be deemed to have been
created, contracted or incurred, or renewed, extended, amended or waived, in
reliance upon the guarantee contained in this Section 2; and all dealings
between the Borrower and any of the Guarantors, on the one hand, and the
Collateral Agent and the Secured Parties, on the other hand, likewise shall be
conclusively presumed to have been had or consummated in reliance upon the
guarantee contained in this Section 2. 
Each Guarantor waives diligence, presentment, protest, demand for
payment and notice of default or nonpayment to or upon the Borrower or any of
the Guarantors with respect to the Borrower Obligations.  Each Guarantor understands and agrees that
the guarantee contained in this Section 2 shall be construed as a
continuing, absolute and unconditional guarantee of payment without regard to (a) the
validity or enforceability of the Credit Agreement or any other Loan Document,
any of the Borrower Obligations or any other collateral security therefor or
guarantee or right of set-off with respect thereto at any time or from time to
time held by the Collateral Agent or any Secured Party, (b) any defense,
set-off or counterclaim (other than a defense of payment or performance) which
may at any time be available to or be asserted by the Borrower or any other
Person against the Collateral Agent or any Secured Party, or (c) any other
circumstance whatsoever (with or without notice to or knowledge of the Borrower
or such Guarantor) which constitutes, or might be construed to constitute, an
equitable or legal discharge of the Borrower for the Borrower Obligations, or
of such Guarantor under the guarantee of such Guarantor contained in this Section 2,
in bankruptcy 


 


17

















 


or in
any other instance.  When making any
demand hereunder or otherwise pursuing its rights and remedies hereunder
against any Guarantor, the Collateral Agent or any Secured Party may, but shall
be under no obligation to, make a similar demand on or otherwise pursue such
rights and remedies as it may have against the Borrower, any other Guarantor or
any other Person or against any collateral security or guarantee for the
Borrower Obligations or any right of set-off with respect thereto, and any
failure by the Collateral Agent or any Secured Party to make any such demand,
to pursue such other rights or remedies or to collect any payments from the
Borrower, any other Guarantor or any other Person or to realize upon any such
collateral security or guarantee or to exercise any such right of set-off, or
any release of the Borrower, any other Guarantor or any other Person or any
such collateral security, guarantee or right of set-off, shall not relieve any
Guarantor of any obligation or liability hereunder, and shall not impair or
affect the rights and remedies, whether express, implied or available as a
matter of law, of the Collateral Agent or any Secured Party against any
Guarantor.  For the purposes hereof “demand”
shall include the commencement and continuance of any legal proceedings.


 


2.6           Reinstatement.  The guarantee contained in this Section 2
shall continue to be effective, or be reinstated, as the case may be, if at any
time payment, or any part thereof, of any of the Borrower Obligations is
rescinded or must otherwise be restored or returned by the Collateral Agent or
any Secured Party upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Borrower or any Guarantor, or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, the Borrower or any Guarantor or any substantial part of its
property, or otherwise, all as though such payments had not been made.


 


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2.7           Payments. 
Payments by any Guarantor made hereunder will be paid to the Collateral
Agent without set-off or counterclaim in Dollars at the Payment Office of the
Collateral Agent specified in the Credit Agreement.


 


SECTION 3.           GRANT OF SECURITY INTEREST


 


3.1           Grant of Security Interest.  Each Grantor hereby assigns and transfers to
the Collateral Agent, and hereby grants to the Collateral Agent, for the
ratable benefit of the Secured Parties, a security interest in, all of the
following property now owned or at any time hereafter acquired by such Grantor
or in which such Grantor now has or at any time in the future may acquire any
right, title or interest (collectively, the “Collateral”), as collateral
security for the prompt and complete payment and performance when due (whether
at the stated maturity, by acceleration or otherwise) of such Grantor’s
Obligations:


 


(a)  all
Accounts;


 


(b)  all
Chattel Paper;


 


(c)  all
Contracts;


 


(d)  all
Deposit Accounts;


 


(e)  all
Documents;


 


(f)  all
Equipment;


 


(g)  all
Fixtures;


 


(h)  all
General Intangibles;


 


(i)  all
Instruments;


 


(j)  all
Intellectual Property;


 


(k) all
Inventory;


 


(l)  all
Investment Property;


 


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(m)  all
Letter-of-Credit Rights;


 


(n)  all
Commercial Tort Claims from time to time described on Schedule 6;


 


(o)  all
other property not otherwise described above (except for any property
specifically excluded from any clause in this section above, and any property
specifically excluded from any defined term used in any clause of this section
above);


 


(p)  all
books and records pertaining to the Collateral; and


 


(q)  to the
extent not otherwise included, all Proceeds, Supporting Obligations and
products of any and all of the foregoing and all collateral security and
guarantees given by any Person with respect to any of the foregoing;


 


provided, however,
that notwithstanding any of the other provisions set forth in this Section 3.1,
this Agreement shall not constitute a grant of a security interest in any
property to the extent that such grant of a security interest is prohibited by
any Requirements of Law of a Governmental Authority, requires a consent not
obtained of any Governmental Authority pursuant to such Requirement of Law or
is prohibited by, or constitutes a breach or default under or results in the
termination of or requires any consent not obtained under, any contract,
license, agreement, instrument or other document evidencing or giving rise to
such property or, in the case of any Investment Property, Pledged Stock or
Pledged Note, any applicable shareholder or similar agreement, except to the
extent that such Requirement of Law or the term in such contract, license,
agreement, instrument or other document or shareholder or similar agreement
providing for such prohibition, breach, default or termination or requiring
such consent is ineffective under applicable law; provided that any such
property shall be excluded from such security interest only to the extent and
for so long as the consequences specified above shall exist


 


20














 


and
shall cease to be excluded and shall be subject to the Lien of the Security
Documents immediately and automatically at such time as such consequence shall
no longer exist.


 


3.2           Deposit Accounts. Each Grantor agrees
that upon the opening by it of any Deposit Account, the Collateral Agent shall
have “control” (as defined in Section 9-104, 9-105, 9-106 or 9-107 of the
UCC) with respect to all cash and other Collateral on deposit therein.  Each Grantor hereby agrees that in the event
it opens a Deposit Account, it shall execute and deliver a deposit account
control agreement (a “Deposit Account Control Agreement”) with respect to such
Deposit Account to the Collateral Agent within 30 days of opening such Deposit
Account, in form and substance reasonably acceptable to the Collateral Agent.
No Grantor shall have any account other than a Deposit Account and no Grantor
shall deposit any cash or other Collateral into any account other than a
Deposit Account subject to a Deposit Account Control Agreement with the Collateral
Agent.


 


SECTION 4.           REPRESENTATIONS AND WARRANTIES


 


To induce the
Agents and the Initial Lenders to enter into the Credit Agreement and to induce
the Initial Lenders to make their respective extensions of credit to the
Borrower thereunder, each Grantor hereby represents and warrants to the Agents
and each Lender that:


 


4.1           Title; No Other Liens.  Except for the security interest granted to
the Collateral Agent for the ratable benefit of the Secured Parties pursuant to
this Agreement and Permitted Liens on the Collateral under the Credit
Agreement, such Grantor owns each item of the Collateral free and clear of any
and all Liens, encumbrances or claims of others.  No financing statement or other public notice
with respect to all or any part of the Collateral is on file or of record in
any public office, except such as have been filed in favor of the Collateral
Agent, for the ratable benefit of the Secured Parties, pursuant to this
Agreement or as are 


 


21

















 


permitted
under the Credit Agreement.  No Person
shall have “control” (as defined in Section 9-104, 9-105, 9-106 or 9-107
of the UCC) of any Deposit Account, Chattel Paper, Investment Property or
Letter-of-Credit Right constituting part of the Collateral other than the
Collateral Agent.  For the avoidance of
doubt, it is understood and agreed that any Grantor may, as part of its
business, grant licenses to third parties to use Intellectual Property owned or
developed by a Grantor.  For purposes of
restriction on Liens and encumbrances under this Agreement and the other Loan
Documents, such licensing activity shall not constitute a “Lien” on such
Intellectual Property.  Each of the
Collateral Agent and each Secured Party understands that any such licenses may
be exclusive to the applicable licensees, and such exclusivity provisions may
limit the ability of the Collateral Agent to utilize, sell, lease or transfer
the related Intellectual Property or otherwise realize value from such
Intellectual Property pursuant hereto.


 


4.2           Perfected First Priority Liens.  The security interests granted pursuant to
this Agreement (a) upon execution and delivery of any relevant Deposit
Account Control Agreements and upon completion of the filings and other actions
specified on Schedule 2 (which, in the case of all filings and other documents
referred to on said Schedule, have been delivered to the Collateral Agent in
completed and duly executed form) will constitute valid perfected security
interests in all of the Collateral in favor of the Collateral Agent, for the
ratable benefit of the Secured Parties, as collateral security for such Grantor’s
Obligations, enforceable in accordance with the terms hereof against all
creditors of such Grantor and any Persons purporting to purchase any Collateral
from such Grantor and (b) are prior to all other Liens on the Collateral
in existence on the date hereof except for, in the case of Liens on Steel Winds
Companies, Permitted Liens (other than as described in clause (n) of the
definition of “Permitted Liens”).


 


22

















 


4.3           Jurisdiction of Organization; Federal
Identification Number; Chief Executive Office. 
On the date hereof, such Grantor’s jurisdiction of organization, federal
identification number from the jurisdiction of organization (if any), and the
location of such Grantor’s chief executive office or sole place of business or
principal residence, as the case may be, are specified on Schedule 3.


 


4.4           Investment Property.  (a)  The shares of Pledged Stock pledged
by such Grantor hereunder constitute all the issued and outstanding shares of
all classes of the Equity Interests of each Issuer owned by such Grantor.


 


(b)           All the shares of the Pledged Stock have
been duly and validly issued and are fully paid and nonassessable. None of the
Pledged Stock is subject to any voting trust, shareholder agreement or voting
agreement or other agreement, right instrument or understanding with respect to
any purchase, sale, issuance, transfer, repurchase, redemption or voting
agreement, other than limited liability company agreements, partnership
agreements or other governing documents of the relevant Issuer. None of the
Pledged Stock is subject to an existing option, warrant, call, right,
commitment or other agreement, and there is no membership interest or other
Equity Interests outstanding required to be pledged hereunder in any
Subsidiary, that upon conversion or exchange would require, the issuance by the
applicable Grantor of any additional membership interests or other Equity
Interests of such Subsidiary or other securities convertible into, exchangeable
for or evidencing the right to subscribe for or purchase, a membership interest
or other Equity Interests of such Subsidiary.


 


(c)           Unless otherwise consented to by the
Collateral Agent, Equity Interests required to be pledged hereunder in any
Subsidiary that is organized as a limited liability company or limited
partnership and pledged hereunder shall either (i) be represented by a 


 


23

















 


certificate,
and in the Organizational Documents of such Subsidiary, the applicable Grantor
shall cause the Issuer of such interests to elect to treat such interests as a “security”
within the meaning of Article 8 of the Uniform Commercial Code of its
jurisdiction of organization or formation, as applicable, by including in its
Organizational Documents language substantially similar to the following and,
accordingly, such interests shall be governed by Article 8 of the Uniform
Commercial Code:


 


“The
[partnership/limited liability company] hereby irrevocably elects that all
[partnership/membership] interests in the [partnership/limited liability
company] shall be securities governed by Article 8 of the Uniform
Commercial Code of [jurisdiction of organization or formation, as applicable].
Each certificate evidencing [partnership/membership] interests in the
[partnership/limited liability company] shall bear the following legend: “This
certificate evidences an interest in [name of [partnership/limited liability
company]] and shall be a security for purposes of Article 8 of the Uniform
Commercial Code.” No change to this provision shall be effective until all
outstanding certificates have been surrendered for cancellation and any new
certificates thereafter issued shall not bear the foregoing legend.”


 


or (ii) not
have elected to be treated as a “security” within the meaning of Article 8
of the Uniform Commercial Code and shall not be represented by a certificate.


 


(d)           Each of the Pledged Notes constitutes the
legal, valid and binding obligation of the obligor with respect thereto,
enforceable in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors’ rights generally and general equitable
principles (whether considered in a proceeding in equity or at law).


 


24

















 


(e)           Such Grantor is the record and beneficial
owner of, and has good and marketable title to, the Investment Property pledged
by it hereunder, free and clear of any and all Liens, encumbrances or options
in favor of, or claims of, any other Person, except the security interest
created by this Agreement and as permitted by the Credit Agreement.


 


4.5           Intellectual Property.  (a) Schedule 4 lists all material
Intellectual Property owned by such Grantor in its own name on the date hereof.


 


(b)           On the date hereof, all material
Intellectual Property is valid, subsisting, unexpired and enforceable, has not
been abandoned and does not knowingly infringe the intellectual property rights
of any other Person.


 


4.6           Commercial Tort Claims.  (a)  On the date hereof, no Grantor has
rights in any Commercial Tort Claim with potential value in excess of $500,000.


 


(b)    Upon the filing of a financing statement
covering any Commercial Tort Claim referred to in Section 5.6 hereof
against such Grantor in the jurisdiction specified in Schedule 3 hereto, the
security interest granted in such Commercial Tort Claim will constitute a valid
perfected security interest in favor of the Collateral Agent, for the ratable
benefit of the Secured Parties, as collateral security for such Grantor’s
Obligations, enforceable in accordance with the terms hereof against all
creditors of such Grantor and any Persons purporting to purchase such
Collateral from Grantor, which security interest shall be prior to all other
Liens on such Collateral except for unrecorded liens permitted by the Credit Agreement
which have priority over the Liens on such Collateral by operation of law.


 


4.7           Deposit Accounts and Securities
Accounts.   Schedule 7 sets forth a
complete and correct list of all Deposit Accounts and Securities Accounts for
each Grantor on the date hereof.


 


25

















 


SECTION 5.           COVENANTS


 


Each Grantor
covenants and agrees with the Collateral Agent and the Secured Parties that,
from and after the date of this Agreement until the Obligations shall have been
paid in full and the Initial Term Loan Commitment and Subsequent Term Loan
Commitment shall have terminated:


 


5.1           Delivery of Instruments, Certificated
Securities and Chattel Paper.  If any
amount payable under or in connection with any of the Collateral shall be or
become evidenced by any Instrument, Certificated Security or Chattel Paper,
upon its receipt thereof, the Grantor shall promptly deliver to the Collateral
Agent such Instrument, Certificated Security or Chattel Paper, as applicable,
duly indorsed in a manner reasonably satisfactory to the Collateral Agent, to
be held as Collateral pursuant to this Agreement.


 


5.2           Maintenance of Perfected Security
Interest; Further Documentation.  (a) 
Such Grantor shall maintain the security interest created by this Agreement as
a perfected security interest having at least the priority described in Section 4.2
and shall defend such security interest against the claims and demands of all
Persons whomsoever, subject to the rights of such Grantor under the Loan Documents
to dispose of or pledge the Collateral.


 


(b)           Such Grantor will furnish to the
Collateral Agent and the Secured Parties from time to time statements and
schedules further identifying and describing the assets and property of such
Grantor as the Collateral Agent may reasonably request, all in reasonable
detail.


 


(c)           At any time and from time to time, upon
the written request of the Collateral Agent, and at the sole expense of such
Grantor, such Grantor will promptly and duly execute and deliver, and have
recorded, such further instruments and documents and take such further actions
as the Collateral Agent or any Lender may reasonably request for the purpose of



 


26

















 


obtaining
or preserving the full benefits of this Agreement and of the rights and powers
herein granted, including, without limitation, (i) the filing of any
financing or continuation statements under the Uniform Commercial Code (or
other similar laws) in effect in any jurisdiction with respect to the security
interests created hereby and (ii) subject to Section 3.2, in the case
of Deposit Accounts and Letter-of-Credit Rights and any other relevant
Collateral, taking any commercially reasonable actions necessary to enable the
Collateral Agent to obtain “control” (within the meaning of the applicable
Uniform Commercial Code) with respect thereto.


 


5.3           Changes in Name, etc.  Such Grantor will not, (a) except upon
30 days’ prior written notice to the Collateral Agent and delivery to the
Collateral Agent of all additional financing statements and other documents
reasonably requested by the Collateral Agent to maintain the validity,
perfection and priority of the security interests provided for herein, change
its jurisdiction of organization or the location of its chief executive office
or sole place of business or principal residence from that referred to in Section 4.3
or (b) except upon 10 days’ prior written notice to the Collateral Agent
and delivery to the Collateral Agent of all additional financing statements and
other documents reasonably requested by the Collateral Agent to maintain the
validity, perfection and priority of the security interests provided for
herein, change its name.


 


5.4           Investment Property.  (a)  If such Grantor shall become entitled
to receive or shall receive any certificate (including, without limitation, any
certificate representing a dividend or a distribution in connection with any
reclassification, increase or reduction of capital or any certificate issued in
connection with any reorganization), option or rights in respect of the Equity
Interests of any Issuer, whether in addition to, in substitution of, as a
conversion of, or in exchange for, any shares of the Pledged Stock, or
otherwise in respect thereof, such Grantor shall 


 


27

















 


accept
the same as the agent of the Collateral Agent and the Secured Parties, hold the
same in trust for the Collateral Agent and the Secured Parties and deliver the
same forthwith to the Collateral Agent in the exact form received, duly
indorsed by such Grantor to the Collateral Agent, if required, together with an
undated stock power covering such certificate duly executed in blank by such
Grantor and with, if the Collateral Agent so requests, signature guaranteed, to
be held by the Collateral Agent, subject to the terms hereof, as additional
collateral security for the Obligations. 
Any sums paid upon or in respect of Pledged Stock or Pledged Notes and
except as otherwise expressly provided in the Credit Agreement, any other
Investment Property, upon the liquidation or dissolution of any Issuer shall be
paid over to the Collateral Agent to be held by it hereunder as additional
collateral security for the Obligations, and in case any distribution of capital
constituting Collateral shall be made on or in respect of such Investment
Property or any property shall be distributed upon or with respect to such
Investment Property pursuant to the recapitalization or reclassification of the
capital of any Issuer or pursuant to the reorganization thereof, the property
constituting Collateral so distributed shall, unless otherwise subject to a
perfected security interest in favor of the Collateral Agent, be delivered to
the Collateral Agent to be held by it hereunder as additional collateral
security for the Obligations.  If any
sums of money or property constituting Collateral so paid or distributed in
respect of the Investment Property shall be received by such Grantor, such
Grantor shall, until such money or property is paid or delivered to the
Collateral Agent, hold such money or property in trust for the Collateral Agent
and the Secured Parties, segregated from other funds of such Grantor, as
additional collateral security for the Obligations.


 


(b)           Without the prior written consent of the
Collateral Agent, such Grantor will not (i) vote to enable, or take any
other action to permit, any Issuer to issue any Equity 


 


28

















 


Interests
of any nature or to issue any other securities convertible into or granting the
right to purchase or exchange for any Equity Interests of any nature of any
Issuer, unless such securities are delivered to the Collateral Agent,
concurrently with the issuance thereof, to be held by the Collateral Agent as
Collateral, (ii) sell, assign, transfer, exchange, or otherwise dispose
of, or grant any option with respect to, the Investment Property or Proceeds
thereof (except pursuant to a transaction expressly permitted by the Credit
Agreement), (iii) create, incur or permit to exist any Lien, encumbrance
or option in favor of, or any claim of any Person with respect to, any of the
Investment Property or Proceeds thereof, or any interest therein, except for
the security interests created by this Agreement or Permitted Liens under the
Credit Agreement or (iv) enter into any agreement or undertaking
restricting the right or ability of such Grantor or the Collateral Agent to
sell, assign or transfer any of the Investment Property or Proceeds thereof.


 


(c)           In the case of each Grantor which is an
Issuer, such Issuer agrees that (i) it will be bound by the terms of this
Agreement relating to the Investment Property issued by it and will comply with
such terms insofar as such terms are applicable to it and (ii) the terms
of Sections 6.2(c) and 6.6 shall apply to it, mutatis mutandis, with
respect to all actions that may be required of it pursuant to Section 6.2(c) or
6.6 with respect to the Investment Property issued by it.


 


5.5           Intellectual Property.  Such Grantor shall take commercially
reasonable actions to maintain the value and validity of all Intellectual
Property owned by it that is material to its business, except to the extent the
failure to take any such action could not reasonably be expected to have a Material
Adverse Effect.


 


5.6           Commercial Tort Claims.  If such Grantor shall obtain an interest in
any Commercial Tort Claim with a potential value in excess of $500,000, such
Grantor shall within 


 


29

















 


30 days
of obtaining such interest sign and deliver documentation reasonably acceptable
to the Collateral Agent granting a security interest under the terms and
provisions of this Agreement in and to such Commercial Tort Claim.


 


SECTION 6.           REMEDIAL PROVISIONS


 


6.1           Grantors Remain Liable.  Anything herein to the contrary
notwithstanding, each Grantor shall remain liable under each of the Contracts
to observe and perform all the conditions and obligations to be observed and
performed by it thereunder, all in accordance with the terms of any agreement
giving rise thereto and neither the Collateral Agent nor any Secured Party
shall have any obligation or liability under any Contract by reason of or
arising out of this Agreement or the receipt by the Collateral Agent or any
Secured Party of any payment relating thereto. Neither the Collateral Agent or
any Secured Party shall be obligated in any manner to perform any of the
obligations of any Grantor under or pursuant to any Contract, to make any
payment, to make any inquiry as to the nature or the sufficiency of any payment
received by it or as to the sufficiency of any performance by any party
thereunder, to present or file any claim, to take any action to enforce any
performance or to collect the payment of any amounts which may have been
assigned to it or to which it may be entitled at any time or times.


 


6.2           Pledged Stock.  (a)  Unless an Event of Default shall
have occurred and be continuing and the Collateral Agent shall have given
notice to the relevant Grantor of the Collateral Agent’s intent to exercise its
corresponding rights pursuant to Section 6.2(b), each Grantor shall be
permitted to receive all cash dividends paid in respect of the Pledged Stock
and all payments made in respect of the Pledged Notes, in each case, paid in
the normal course of business of the relevant Issuer and consistent with past
practice, to the extent permitted in the


 


30














 


Credit
Agreement, and to exercise all voting and corporate or other organizational
rights with respect to the Investment Property; provided, however, that no vote
shall be cast or corporate or other organizational right exercised or other
action taken which, in the Majority Lenders’ reasonable judgment, would
materially impair the Pledged Stock or which would result in any violation of
any provision of the Credit Agreement, this Agreement or any other Loan
Document.


 


(b)           If an Event of Default shall occur and be
continuing and the Collateral Agent shall give notice of its intent to exercise
such rights to the relevant Grantor or Grantors, (i) the Collateral Agent
shall have the right to receive any and all cash dividends, payments or other
Proceeds paid in respect of the Investment Property and make application
thereof to the Obligations in such order as the Collateral Agent may determine,
and (ii) any or all of the Investment Property shall be registered in the
name of the Collateral Agent or its nominee, and the Collateral Agent or its
nominee may thereafter exercise (x) all voting, corporate and other rights
pertaining to such Investment Property at any meeting of shareholders of the
relevant Issuer or Issuers or otherwise and (y) any and all rights of conversion,
exchange and subscription and any other rights, privileges or options
pertaining to such Investment Property as if it were the absolute owner thereof
(including, without limitation, the right to exchange at its discretion any and
all of the Investment Property upon the merger, consolidation, reorganization,
recapitalization or other fundamental change in the corporate or other
organizational structure of any Issuer, or upon the exercise by any Grantor or
the Collateral Agent of any right, privilege or option pertaining to such
Investment Property, and in connection therewith, the right to deposit and
deliver any and all of the Investment Property with any committee, depositary,
transfer agent, registrar or other designated agency upon such terms and
conditions as the Collateral 


 


31

















 


Agent
may determine), all without liability except to account for property actually
received by it, but the Collateral Agent shall have no duty to any Grantor to
exercise any such right, privilege or option and shall not be responsible for
any failure to do so or delay in so doing.


 


(c)           Each Grantor hereby authorizes and
instructs each Issuer of any Investment Property pledged by such Grantor
hereunder to (i) comply with any instruction received by it from the
Collateral Agent in writing that (x) states that an Event of Default has
occurred and is continuing and (y) is otherwise in accordance with the
terms of this Agreement, without any other or further instructions from such
Grantor, and each Grantor agrees that each Issuer shall be fully protected in
so complying and (ii) unless otherwise expressly permitted hereby, pay any
dividends or other payments with respect to the Investment Property directly to
the Collateral Agent.


 


6.3           Proceeds to be Turned Over To Collateral
Agent.  If an Event of Default shall
occur and be continuing, all Proceeds received by any Grantor consisting of
cash, checks and other near cash items shall be held by such Grantor in trust
for the Collateral Agent and the Secured Parties, segregated from other funds
of such Grantor, and shall, forthwith upon receipt by such Grantor, be turned
over to the Collateral Agent in the exact form received by such Grantor (duly
indorsed by such Grantor to the Collateral Agent, if required).  All Proceeds received by the Collateral Agent
hereunder shall be held by the Collateral Agent in a Collateral Account
maintained under its sole dominion and control. 
All Proceeds while held by the Collateral Agent in a Collateral Account
(or by such Grantor in trust for the Collateral Agent and the Secured Parties)
shall continue to be held as collateral security for all the Obligations and
shall not constitute payment thereof until applied as provided in Section 6.4.


 


32

















 


6.4           Application of Proceeds.  If an Event of Default shall have occurred
and be continuing, the Collateral Agent shall apply all or any part of Proceeds
constituting Collateral, whether or not held in any Collateral Account, and any
proceeds of the guarantee set forth in Section 2, in payment of the
Obligations then due and owing in accordance with Section 11.5 of the
Credit Agreement and the Collateral Agent shall retain any other proceeds
constituting Collateral in accordance with the terms of this Agreement.


 


6.5           Code and Other Remedies.  If an Event of Default shall occur and be
continuing, the Collateral Agent, on behalf of the Secured Parties, may
exercise, in addition to all other rights and remedies granted to them in this
Agreement and in any other instrument or agreement securing, evidencing or
relating to the Obligations, all rights and remedies of a secured party under
the New York UCC or any other applicable law. 
Without limiting the generality of the foregoing, the Collateral Agent,
without demand of performance or other demand, presentment, protest,
advertisement or notice of any kind (except any notice required by law referred
to below) to or upon any Grantor or any other Person (all and each of which
demands, defenses, advertisements and notices are hereby waived), may in such
circumstances forthwith collect, receive, appropriate and realize upon the
Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give
option or options to purchase, or otherwise dispose of and deliver the
Collateral or any part thereof (or contract to do any of the foregoing), in one
or more parcels at public or private sale or sales, at any exchange, broker’s
board or office of the Collateral Agent or any Secured Party or elsewhere upon
such terms and conditions as it may deem advisable and at such prices as it may
deem best, for cash or on credit or for future delivery without assumption of
any credit risk.  The Collateral Agent or
any Secured Party shall have the right upon any such public sale or sales, and,
to the extent permitted by law, upon any such 


 


33

















 


private
sale or sales, to purchase the whole or any part of the Collateral so sold,
free of any right or equity of redemption in any Grantor, which right or equity
is hereby waived and released.  Each
Grantor further agrees, at the Collateral Agent’s request, to assemble the
Collateral and make it available to the Collateral Agent at places which the
Collateral Agent shall reasonably select, whether at such Grantor’s premises or
elsewhere.  The Collateral Agent shall
apply the net proceeds of any action taken by it pursuant to this Section 6.5
with respect to any Grantor’s Collateral, after deducting all reasonable costs
and expenses of every kind incurred for the care or safekeeping of any of the
Collateral of such Grantor or in any way relating to preserving or maintaining
the Collateral of such Grantor or the rights of the Collateral Agent and the
Secured Parties hereunder with respect thereto, including, without limitation,
reasonable attorneys’ fees and disbursements, to the payment in whole or in
part of the Obligations of such Grantor, in such order as the Collateral Agent
may elect and only after such application and after the payment by the
Collateral Agent of any other amount required by any provision of law,
including, without limitation, Section 9-615(a)(3) of the New York
UCC, need the Collateral Agent account for the surplus, if any, to any Grantor.  To the extent permitted by applicable law,
each Grantor waives all claims, damages and demands it may acquire against the
Collateral Agent or any Secured Party arising out of the exercise by them of
any rights hereunder.  If any notice of a
proposed sale or other disposition of Collateral shall be required by law, such
notice shall be deemed reasonable and proper if given at least 10 days before
such sale or other disposition.


 


6.6           Sale of Pledged Stock.  (a)  Each Grantor recognizes that the
Collateral Agent may be unable to effect a public sale of any or all the
Pledged Stock, by reason of certain prohibitions contained in the Securities
Act and applicable state securities laws or otherwise, and may be compelled to
resort to one or more private sales thereof to a restricted group of 


 


34

















 


purchasers
which will be obliged to agree, among other things, to acquire such securities
for their own account for investment and not with a view to the distribution or
resale thereof.  Each Grantor
acknowledges and agrees that any such private sale may result in prices and
other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be deemed
to have been made in a commercially reasonable manner.  The Collateral Agent shall be under no
obligation to delay a sale of any of the Pledged Stock for the period of time
necessary to permit the Issuer thereof to register such securities for public
sale under the Securities Act, or under applicable state securities laws, even
if such Issuer would agree to do so.


 


(b)           Each Grantor agrees to use its best
efforts to do or cause to be done all such other acts as may be necessary to
make such sale or sales of all or any portion of the Pledged Stock pursuant to
this Section 6.6 valid and binding and in compliance with any and all
other applicable Requirements of Law. 
Each Grantor further agrees that a breach of any of the covenants
contained in this Section 6.6 will cause irreparable injury to the
Collateral Agent and the Secured Parties, that the Collateral Agent and the
Secured Parties have no adequate remedy at law in respect of such breach and,
as a consequence, that each and every covenant contained in this Section 6.6
shall be specifically enforceable against such Grantor, and such Grantor hereby
waives and agrees not to assert any defenses against an action for specific
performance of such covenants except for a defense that no Event of Default has
occurred or is continuing under the Credit Agreement.


 


6.7           Subordination.  Each Grantor hereby agrees that, upon the
occurrence and during the continuance of an Event of Default, unless otherwise
agreed by the Collateral Agent, 


 


35

















 


all
Indebtedness owing by it to any Subsidiary of any Grantor shall be fully
subordinated to the indefeasible payment in full in cash of such Grantor’s
Obligations.


 


6.8           Deficiency.  Each Grantor shall remain liable for any
deficiency if the proceeds of any sale or other disposition of the Collateral
are insufficient to pay its Obligations and reasonable Attorney Costs and
expenses of the Collateral Agent or any Secured Party to collect such
deficiency.


 


SECTION 7.           THE COLLATERAL AGENT


 


7.1           Collateral Agent’s Appointment as
Attorney-in-Fact, etc.  (a)  Each
Grantor hereby irrevocably constitutes and appoints the Collateral Agent and
any officer or agent thereof, with full power of substitution, as its true and
lawful attorney-in-fact with full irrevocable power and authority in the place
and stead of such Grantor and in the name of such Grantor or in its own name,
for the purpose of carrying out the terms of this Agreement, subject to the
last sentence of this Section 7.1(a), to take any and all appropriate
action and to execute any and all documents and instruments which may be
necessary or desirable to accomplish the purposes of this Agreement, and,
without limiting the generality of the foregoing, each Grantor hereby gives the
Collateral Agent the power and right, on behalf of such Grantor, without notice
to or assent by such Grantor, to do any or all of the following:


 


(i)            in the name of such Grantor or its own
name, or otherwise, take possession of and indorse and collect any checks,
drafts, notes, acceptances or other instruments for the payment of moneys due
under any Contract or with respect to any other Collateral and file any claim
or take any other action or proceeding in any court of law or equity or
otherwise deemed appropriate by the Collateral Agent for the purpose of
collecting any and all such moneys due under any Contract or with respect to
any other Collateral whenever payable;


 


36

















 


(ii)           in the case of any Intellectual Property,
execute and deliver, and have recorded, any and all agreements, instruments,
documents and papers as the Collateral Agent or any Lender may request to
evidence the Collateral Agent’s and the Secured Parties’ security interest in
such Intellectual Property and the goodwill and general intangibles of such
Grantor relating thereto or represented thereby;


 


(iii)          pay or discharge taxes and Liens levied
or placed on or threatened against the Collateral, effect any repairs or any
insurance called for by the terms of the Credit Agreement and pay all or any
part of the premiums therefor and the costs thereof;


 


(iv)          execute, in connection with any sale
provided for in Sections 6.5 or 6.6, any indorsements, assignments or other
instruments of conveyance or transfer with respect to the Collateral; and


 


(v)           (1)  direct any party liable for any
payment under any of the Collateral to make payment of any and all moneys due
or to become due thereunder directly to the Collateral Agent or as the
Collateral Agent shall direct;  (2)   ask or demand for, collect, and receive
payment of and receipt for, any and all moneys, claims and other amounts due or
to become due at any time in respect of or arising out of any Collateral;  (3)  
sign and indorse any invoices, freight or express bills, bills of
lading, storage or warehouse receipts, drafts against debtors, assignments,
verifications, notices and other documents in connection with any of the
Collateral;  (4) commence and
prosecute any suits, actions or proceedings at law or in equity in any court of
competent jurisdiction to collect the Collateral or any portion thereof and to
enforce any other right in respect of any Collateral; (5) defend any suit,
action or proceeding brought against such Grantor with respect to any Collateral;
(6) settle, compromise or adjust any such suit, action or proceeding and,
in connection therewith, give such discharges or releases as the Collateral
Agent 


 


37

















 


may
deem appropriate; (7) assign any Copyright, Patent or Trademark (along
with the goodwill of the business to which any such Copyright, Patent or
Trademark pertains), throughout the world for such term or terms, on such
conditions, and in such manner, as the Collateral Agent shall in its sole
discretion determine; and (8) generally, sell, transfer, pledge and make
any agreement with respect to or otherwise deal with any of the Collateral as
fully and completely as though the Collateral Agent were the absolute owner
thereof for all purposes, and do, at the Collateral Agent’s option and such
Grantor’s expense, at any time, or from time to time, all acts and things which
the Collateral Agent deems necessary to protect, preserve or realize upon the
Collateral and the Collateral Agent’s and the Secured Parties’ security
interests therein and to effect the intent of this Agreement, all as fully and
effectively as such Grantor might do.


 


Anything in this Section 7.1(a) to
the contrary notwithstanding, the Collateral Agent agrees that it will not
exercise any rights under the power of attorney provided for in this Section 7.1(a) unless
an Event of Default shall have occurred and be continuing.


 


(b)           If any Grantor fails to perform or comply
with any of its agreements contained herein, the Collateral Agent, at its
option, but without any obligation so to do, may perform or comply, or
otherwise cause performance or compliance, with such agreement.


 


(c)           The reasonable expenses of the Collateral
Agent incurred in connection with actions undertaken as provided in this Section 7.1,
together with interest thereon at a rate per annum equal to the highest rate
per annum at which interest would then be payable on any past due Term Loans
under the Credit Agreement, from the date of payment by the Collateral Agent to
the date reimbursed by the relevant Grantor, shall be payable by such Grantor
to the Collateral Agent immediately upon demand.


 


38

















 


(d)           Each Grantor hereby ratifies all that
said attorneys shall lawfully do or cause to be done by virtue hereof.  All powers, authorizations and agencies
contained in this Agreement are coupled with an interest and are irrevocable
until this Agreement is terminated and the security interests created hereby
are released.


 


7.2           Duty of Collateral Agent.  The Collateral Agent’s sole duty with respect
to the custody, safekeeping and physical preservation of the Collateral in its
possession, under Section 9-207 of the New York UCC or otherwise, shall be
to deal with it in the same manner as the Collateral Agent deals with similar
property for its own account.  Neither
the Collateral Agent, any Secured Party nor any of their respective officers,
directors, employees or agents shall be liable for failure to demand, collect
or realize upon any of the Collateral or for any delay in doing so or shall be
under any obligation to sell or otherwise dispose of any Collateral upon the
request of any Grantor or any other Person or to take any other action
whatsoever with regard to the Collateral or any part thereof.  The powers conferred on the Collateral Agent
and the Secured Parties hereunder are solely to protect the Collateral Agent’s
and the Secured Parties’ interests in the Collateral and shall not impose any
duty upon the Collateral Agent or any Secured Party to exercise any such
powers.  The Collateral Agent and the
Secured Parties shall be accountable only for amounts that they actually
receive as a result of the exercise of such powers, and neither they nor any of
their officers, directors, employees or agents shall be responsible to any
Grantor for any act or failure to act hereunder, except for their own gross
negligence or willful misconduct.


 


7.3           Execution of Financing Statements.  Pursuant to any applicable law, each Grantor
authorizes the Collateral Agent to file or record financing statements and
other filing or recording documents or instruments with respect to the
Collateral without the signature of such 


 


39

















 


Grantor
in such form and in such offices as the Collateral Agent or any Lender
determines appropriate to perfect the security interests of the Collateral
Agent under this Agreement.  Each Grantor
authorizes the Collateral Agent to use the collateral description “all personal
property” or “all assets” in any such financing statements.


 


7.4           Authority of Collateral Agent.  Each Grantor acknowledges that the rights and
responsibilities of the Collateral Agent under this Agreement with respect to
any action taken by the Collateral Agent or the exercise or non-exercise by the
Collateral Agent of any option, voting right, request, judgment or other right
or remedy provided for herein or resulting or arising out of this Agreement
shall, as between the Collateral Agent and the Secured Parties, be governed by
the Credit Agreement and by such other agreements with respect thereto as may
exist from time to time among them, but, as between the Collateral Agent and
the Grantors, the Collateral Agent shall be conclusively presumed to be acting
as agent for the Secured Parties with full and valid authority so to act or
refrain from acting, and no Grantor shall be under any obligation, or
entitlement, to make any inquiry respecting such authority.


 


7.5           Collateral and Administrative Agent’s
Duties. (a)  Wells Fargo Bank, National Association, in its capacity as
Collateral Agent and Administrative Agent, agrees to take any actions or
exercise any powers or remedies provided for it under this Agreement or the
Loan Documents if so instructed by the requisite Lenders; provided, however,
that the Agents shall not be required to take any action that exposes it to
personal liability, requires it to advance or expend funds, or that is contrary
to this Agreement, the Loan Documents or any Requirement of Law. The Lenders
acknowledge that the Administrative Agent and the Collateral Agent will only be
required to exercise its rights and remedies under this Agreement or the other
Loan Documents upon the written direction of the requisite Lenders and that any
permissive duty


 


40














 


contained
in this Agreement or the other Loan Documents shall not be construed as an
obligations imposed upon either the Administrative Agent or the Collateral
Agent.


 


(b)                                 Notwithstanding anything herein to the
contrary, the Collateral Agent shall be afforded all of the rights, powers,
immunities and indemnities of the Collateral Agent set forth in the Credit
Agreement and the other Loan Documents, as if such rights, powers, immunities
and indemnities were specifically set forth herein.  Each Grantor hereby acknowledges the
appointment of the Collateral Agent pursuant to the Credit Agreement.  The rights, privileges, protections and
benefits given to the Collateral Agent, including their right to be
indemnified, are extended to, and shall be enforceable by, the Collateral Agent
in its capacity hereunder.


 


SECTION 8.                                MISCELLANEOUS


 


8.1                                 Amendments in Writing.  None of the terms or provisions of this
Agreement may be waived, amended, supplemented or otherwise modified except in
accordance with Section 13.10 of the Credit Agreement.


 


8.2                                 Notices. 
All notices, requests and demands to or upon the Collateral Agent or any
Grantor hereunder shall be effected in the manner provided for in Section 13.3
of the Credit Agreement; provided that any such notice, request or demand to or
upon any Guarantor shall be addressed to such Guarantor at its notice address
set forth on Schedule 5.


 


8.3                                 No Waiver by Course of Conduct;
Cumulative Remedies.  Neither the
Collateral Agent nor any Secured Party shall by any act (except by a written
instrument pursuant to Section 8.1), delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default. 
No failure to exercise, nor any delay in exercising, on the part of the
Collateral Agent or any Secured Party, any right, power or privilege hereunder
shall operate as a waiver thereof.  No
single or partial 


 


41

















 


exercise
of any right, power or privilege hereunder shall preclude any other or further
exercise thereof or the exercise of any other right, power or privilege.  A waiver by the Collateral Agent or any
Secured Party of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the Collateral Agent or such
Secured Party would otherwise have on any future occasion.  The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not exclusive of
any other rights or remedies provided by law.


 


8.4                                 Enforcement Expenses;
Indemnification.  (a)  Each
Guarantor agrees to pay or reimburse each Secured Party and the Collateral
Agent for all its properly documented reasonable costs, fees and expenses
incurred in collecting against such Guarantor under the guarantee contained in Section 2
or otherwise enforcing or preserving any rights under this Agreement and the
other Loan Documents to which such Guarantor is a party, including, without
limitation, Attorney Costs and expenses of each Secured Party and the
Collateral Agent.


 


(b)                                 Each Guarantor agrees to pay, and to save
the Collateral Agent and the Secured Parties harmless from, any and all
liabilities with respect to, or resulting from any delay in paying, any and all
stamp, excise, sales or other taxes which may be payable or determined to be
payable with respect to any of the Collateral or in connection with any of the
transactions contemplated by this Agreement.


 


(c)                                  Each Guarantor agrees to pay, and to save
the Collateral Agent and the Secured Parties harmless from, any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever with
respect to the execution, delivery, enforcement, performance and administration
of this 


 


42

















 


Agreement
to the extent the Borrower would be required to do so pursuant to Sections 13.1
and 13.2 of the Credit Agreement.


 


(d)                                 The agreements in this Section 8.4
shall survive repayment of the Obligations and all other amounts payable under
the Credit Agreement and the other Loan Documents.


 


8.5                                 Successors and Assigns.  This Agreement shall be binding upon the
successors and assigns of each Grantor and shall inure to the benefit of the
Collateral Agent and the Secured Parties and their successors and assigns;
provided that no Grantor may assign, transfer or delegate any of its rights or
obligations under this Agreement without the prior written consent of the Collateral
Agent.


 


8.6                                 Set-Off. 
In addition to any rights and remedies of the Secured Parties provided
by law, each Secured Party shall have the right, without notice to any Grantor,
any such notice being expressly waived by each Grantor to the extent permitted
by applicable law, upon any Obligations becoming due and payable by any Grantor
(whether at the stated maturity, by acceleration or otherwise), to apply to the
payment of such Obligations, by setoff or otherwise, any and all deposits
(general or special, time or demand, provisional or final), in any currency,
and any other credits, indebtedness or claims, in any currency, in each case
whether direct or indirect, absolute or contingent, matured or unmatured, at
any time held or owing by such Secured Party, any affiliate thereof or any of
their respective branches or agencies to or for the credit or the account of
such Grantor.  Each Secured Party agrees
promptly to notify the relevant Grantor and the Collateral Agent after any such
application made by such Secured Party, provided that the failure to give such
notice shall not affect the validity of such application.


 


43

















 


8.7                                 Counterparts.  This Agreement may be executed by one or more
of the parties to this Agreement on any number of separate counterparts
(including by .pdf or telecopy), and all of said counterparts taken together
shall be deemed to constitute one and the same instrument.


 


8.8                                 Severability.  Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.


 


8.9                                 Section Headings.  The Section headings used in this
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation
hereof.


 


8.10                           Integration.  This Agreement and the other Loan Documents
represent the agreement of the Grantors, the Collateral Agent and the Secured
Parties with respect to the subject matter hereof and thereof, and there are no
promises, undertakings, representations or warranties by the Collateral Agent
or any Secured Party relative to subject matter hereof and thereof not
expressly set forth or referred to herein or therein.


 


8.11                           GOVERNING LAW.  THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.


 


8.12                           Submission To Jurisdiction.  Each party hereto hereby submits to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York and of any New York State court sitting in New York City
for the purposes of all legal 


 


44

















 


proceedings
arising out of or relating to this Agreement, any other Loan Document or the
transactions contemplated hereby or thereby. 
Each party hereby irrevocably waives, to the fullest extent permitted by
applicable Requirement of Law, any objection which it may now or hereafter have
to the laying of the venue of any such proceeding brought in such a court and any
claim that any such proceeding brought in such a court has been brought in an
inconvenient forum.  Nothing herein shall
affect the right to serve process in any other manner permitted by applicable
Requirements of Law or any right to bring legal action or proceedings in any
other competent jurisdiction, including judicial or non-judicial foreclosure of
real property interests which are part of the Collateral.  To the extent permitted by applicable
Requirements of Law, each party hereto further irrevocably agrees to the
service of process of any of the aforementioned courts in any suit, action or
proceeding by the mailing of copies thereof by certified mail, postage prepaid,
return receipt requested, to such party at the address referenced in Section 8.2,
such service to be effective upon the date indicated on the postal receipt
returned from such party.


 


8.13                           Acknowledgements.  Each Grantor hereby acknowledges that:


 


(a)                                  it has been advised by counsel in the
negotiation, execution and delivery of this Agreement and the other Loan
Documents to which it is a party;


 


(b)                                 neither the Collateral Agent nor any
Secured Party has any fiduciary relationship with or duty to any Grantor
arising out of or in connection with this Agreement or any of the other Loan
Documents, and the relationship between the Grantors, on the one hand, and the
Collateral Agent and Secured Parties, on the other hand, in connection herewith
or therewith is solely that of debtor and creditor; and


 


45

















 


(c)                                  no joint venture is created hereby or by
the other Loan Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Secured Parties or among the Grantors and the
Secured Parties.


 


8.14                           Additional Grantors.  Each Subsidiary of the Borrower that is
required to become a party to this Agreement on or after the Subsequent Closing
Date pursuant to Section 9.22 of the Credit Agreement shall become a
Grantor for all purposes of this Agreement upon execution and delivery by such
Subsidiary of an Assumption Agreement in the form of Annex I hereto. The
parties hereto acknowledge and agree that with respect to the Steel Winds
Project, if the Steel Winds Letters of Credit are in existence as of the
Subsequent Closing Date and the Steel Winds Project Company is the obligor
thereunder, then the Steel Winds Companies shall be required to become a party
to this Agreement upon the termination or expiration of such Steel Winds
Letters of Credit.


 


8.15                           Termination; Releases.  (a) Upon the indefeasible payment and
performance in full (in cash) of any and all Obligations (other than inchoate
Obligations for which no claims have been asserted), whether due or to become
due, direct or indirect, absolute or contingent, and howsoever evidences, held
or acquired, this Agreement and the other Loan Documents shall automatically
terminate and be of no further force and effect (other than the provisions
hereof that by their express terms survive such termination) and at the
direction of the Majority Lenders, the Administrative Agent and Collateral
Agent shall execute and deliver such documentation confirming such termination
as may reasonably be requested by the Borrower and the Collateral shall
automatically be released from the Liens of under this Agreement and any other
Security Documents and the guarantees thereunder terminated, all without
delivery of any instrument or performance of any act by any Person.


 


46

















 


(b)                                 Notwithstanding anything to the contrary
contained herein or in any other Loan Document, the Agents are hereby
irrevocably authorized by each Lender (without requirement of notice to or
consent of any Lender) to take any action requested by the Borrower having the
effect of releasing any Collateral or guarantee obligations under Section 2
hereunder (i) to the extent necessary to permit consummation of any
transaction permitted by the Loan Documents or that has been consented to by
the Majority Lenders or (ii) the circumstances described in clause (a) above.


 


(c)                                  Upon the incurrence or issuance of any
Qualified Tax Equity Financing or any Steel Winds Permitted Project
Indebtedness, in each case with respect to the Steel Winds Project (including
by either of the Steel Winds Companies) on and after the Subsequent Closing
Date and so long as the Net Cash Proceeds thereof have been applied in
accordance with Section 4.1(a) of the Credit Agreement to the extent
the Steel Winds Companies have granted Collateral pursuant to Section 9.22
of the Credit Agreement and Section 8.14 of this Agreement, the Collateral
granted by the Steel Winds Companies shall be released from the Liens created
by the Security Documents, and the Security Documents shall no longer be
applicable to the Steel Winds Companies and all obligations (other than those
that expressly survive such release) of the Steel Winds Companies (including
the guarantee obligations of Steel Winds Holding Company) under this Agreement
and any other Security Document shall terminate, all without delivery of any
instrument or performance of any act by any Person.


 


8.16                           Security Interest Absolute.  To the maximum extent permitted by applicable
Requirement of Law, the rights and remedies of the Collateral Agent hereunder,
the Liens created hereby, and, subject to Section 2.5, the obligations of
the Grantors under this Agreement are absolute, irrevocable and unconditional
and will remain in full force and effect 


 


47

















 


without
regard to, and will not be released, suspended, discharged, terminated or
otherwise affected by, any circumstance or occurrence whatsoever (other than
termination or release pursuant to Section 8.15), including: (a) any
renewal, extension, amendment or modification of, or addition or supplement to
or deletion from, any of the Loan Documents or any other instrument or
agreement referred to therein, or any assignment or transfer of any thereof, (b) any
waiver of, consent to or departure from, extension, indulgence or other action
or inaction under or in respect of any of the Obligations, this Agreement, any
other Loan Document or other instrument or agreement relating thereto, or any
exercise or non-exercise of any right, remedy, power or privilege under or in
respect of the Obligations, this Agreement, any other Loan Document or any such
other instrument or agreement relating thereto, (c) any furnishing of any
additional security for the Obligations or any part thereof to the Collateral
Agent or any other Person or any acceptance thereof by the Collateral Agent or
any other Person or any substitution, sale, exchange, release, surrender or
realization of or upon any such security by the Collateral Agent or any other
Person or the failure to create, preserve, validate, perfect or protect any other
Lien granted to, or purported to be granted to, or in favor of, the Collateral
Agent or any other Secured Party, (d) any invalidity, irregularity or
unenforceability of all or any part of the Obligations, any other Loan Document
or any other agreement or instrument relating thereto or any security therefor,
(e) the acceleration of the maturity of any of the Obligations or any
other modification of the time of payment thereof, (f)  any judicial or
nonjudicial foreclosure or sale of, or other election of remedies with respect
to, any interest in real property or other collateral serving as security for
all or any part of the Obligations, even though such foreclosure, sale or
election of remedies may impair the subrogation rights of any Grantor or may
preclude any Grantor from obtaining reimbursement, contribution,
indemnification or other recovery and even 


 


48

















 


though
such Grantor may or may not, as a result of such foreclosure, sale or election
of remedies, be liable for any deficiency, (g) any act or omission of the
Collateral Agent or any other Person (other than payment of the Obligations)
that directly or indirectly results in or aids the discharge or release of any
Grantor or any part of the Obligations or any security or guarantee (including
any letter of credit) for all or any part of the Obligations by operation of
law or otherwise, (h) the election by the Collateral Agent, in any
bankruptcy proceeding of any Person, of the application or non-application of Section 1111(b)(2) of
the Bankruptcy Code, (i) any extension of credit or the grant of any Lien
under Section 364 of the Bankruptcy Code, (j) any use of cash
collateral under Section 363 of the Bankruptcy Code, (k) any
agreement or stipulation with respect to the provision of adequate protection
in any bankruptcy proceeding of any Person, (l) the avoidance of any Lien
in favor of the Collateral Agent for any reason, (m) any bankruptcy,
insolvency, reorganization, arrangement, readjustment of debt, liquidation or
dissolution proceeding commenced by or against any Person, including any
discharge of, or bar or stay against collecting, all or any part of the
Obligations (or any interest on all or any part of the Obligations) in or as a
result of any such proceeding or (n) any other event or circumstance
whatsoever which might otherwise constitute a legal or equitable discharge of a
surety or a guarantor, it being the intent of this Section 8.16 that the
obligations of any Grantor hereunder shall be absolute, irrevocable and
unconditional under any and all circumstances.


 


8.17                           Reinstatement.  This Agreement and the Liens created
hereunder shall automatically be reinstated if at any time payment, or any part
thereof, of any of the Obligations is rescinded or must otherwise be restored
or returned by the Collateral Agent or any Secured Party upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of the Borrower or any
Guarantor, or upon or as a result of the appointment of a receiver, intervenor
or


 


49














 


conservator
of, or trustee or similar officer for, the Borrower or any Guarantor or any
substantial part of its property, or otherwise, all as though such payments had
not been made, and such Grantor shall indemnify the Collateral Agent, each
other Secured Party and its respective employees, officers and agents on demand
for all reasonable fees, costs and expenses (including reasonable fees, costs
and expenses of counsel) incurred by the Collateral Agent, such other Secured
Party or their respective employees, officers or agents in connection with such
reinstatement, rescission or restoration.


 


8.18         WAIVER OF JURY TRIAL.  EACH PARTY HERETO IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.


 


8.19         Intercreditor Agreement.  Notwithstanding anything to the contrary
herein, in the case of any inconsistency between this Agreement and the
Intercreditor Agreement, the Intercreditor Agreement shall govern.


 


IN WITNESS
WHEREOF, each of the undersigned has caused this Agreement to be duly executed
and delivered as of the date first above written.


 


[NAME OF GRANTOR]


 


By:


 


Name:


 


50

















 


	
  Title:

  
	
   

  
	
   

  
	
  WELLS
  FARGO BANK, NATIONAL ASSOCIATION, as Collateral Agent

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  
	
  Name:

  
	
   

  
	
  Title:

  



 


51

















 


	
  Schedule
  1

  
	
   

  
	
  DESCRIPTION
  OF INVESTMENT PROPERTY

  
	
   

  
	
  Pledged
  Stock:

  
	
   

  
	
  Issuer

  	
   

  	
  Class of Stock

  	
   

  	
  Stock Certificate No.

  	
   

  	
  No. of Shares

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CSSW, LLC

  	
   

  	
  N/A

  	
   

  	
  N/A

  	
   

  	
  100%
  of membership interests

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  New York Wind III, LLC

  	
   

  	
  N/A

  	
   

  	
  N/A

  	
   

  	
  100%
  of membership interests

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Stetson Holdings, LLC

  	
   

  	
  N/A

  	
   

  	
  N/A

  	
   

  	
  100%
  of membership interests

  	
   

  
	
   

  
	
  Pledged
  Notes:

  
	
   

  
	
  None.

  



 


52

















 


Schedule
2


 


FILINGS
AND OTHER ACTIONS


 


REQUIRED TO
PERFECT SECURITY INTERESTS


 


Uniform Commercial
Code Filings


 


Secretary of State
of the State of Delaware


 


Patent and
Trademark Filings


 


None.


 


Actions with respect
to Pledged Stock


 


Other Actions


 


Delivery of all
share certificates of Pledged Stock to Collateral Agent


 


53

















 


Schedule 3


 


LOCATION OF JURISDICTIONS OF ORGANIZATION; FEDERAL
IDENTIFICATION NUMBERS; CHIEF EXECUTIVE OFFICES


 


Full and Correct
Legal Name CSSW HOLDINGS, LLC CSSW, LLC


 


Type of
Organization Limited Liability Company Limited Liability Company


 


	
  Jurisdiction of Organization

  	
  Delaware

  	
  Delaware

  
	
   

  	
   

  	
   

  
	
  Organizational ID Number

  	
  4707418

  	
  4707420

  



 


Mailing Address c/o
First Wind Energy, LLC


 


85 Wells Avenue, Suite 305


 


Newton, MA 02459


 


Attention:  President c/o First Wind Energy, LLC


 


85 Wells Avenue, Suite 305


 


Newton, MA 02459


 


Attention:  President


 


	
  Place of Business

  	
  Delaware

  	
  Delaware

  



 


Location of Chief
Executive Officer c/o First Wind Energy, LLC


 


85 Wells Avenue, Suite 305


 


Newton, MA 02459


 


Attention:  President c/o First Wind Energy, LLC


 


85 Wells Avenue, Suite 305


 


Newton, MA 02459


 


Attention:  President


 


	
  Change of Name

  	
  N/A

  	
  N/A

  



 


54

















 


Schedule 4


 


COPYRIGHTS AND
COPYRIGHT LICENSES


 


None.


 


PATENTS AND PATENT
LICENSES


 


None.


 


TRADEMARKS AND
TRADEMARK LICENSES


 


None.


 


55

















 


Schedule 5


 


NOTICE ADDRESSES
OF GUARANTORS


 


c/o First Wind
Energy, LLC


 


85 Wells Avenue, Suite 305


 


Newton, MA 02459


 


56

















 


Schedule 6


 


COMMERCIAL TORT
CLAIMS


 


None.


 


57

















 


Schedule 7


 


DEPOSIT AND SECURITY
ACCOUNTS


 


None.


 


58

















 


Annex I to


 


Guarantee and
Security Agreement


 


ASSUMPTION
AGREEMENT, dated as of
                    ,
20    , made by                             
(the “Additional Grantor”), in favor of Wells Fargo Bank, National Association,
as collateral agent (in such capacity, and together with its successors and
assigns in such capacity, the “Collateral Agent”) for the benefit of PIP3PX
FirstWind Debt Ltd. and PIP3GV FirstWind Debt Ltd. (the “Initial Lenders”) and
the banks and other financial institutions or entities (the “Other Lenders” and
together with the Initial Lenders, the “Lenders”) parties to the Credit
Agreement referred to below.  All
capitalized terms not defined herein shall have the meaning ascribed to them in
such Credit Agreement referred to below.


 


59

















 


W I T N E S S E T
H :


 


WHEREAS, CSSW, LLC
as borrower (the “Borrower”),  CSSW
Holdings, LLC (“CSSW Parent”), the Initial Lenders, Wells Fargo Bank, National
Association, as administrative agent (in such capacity, and together with its
successors and assigns in such capacity, the “Administrative Agent”) and the
Collateral Agent have entered into the Credit Agreement, dated as of July 17,
2009 (as amended, supplemented or otherwise modified from time to time, the “Credit
Agreement”);


 


WHEREAS, in
connection with the Credit Agreement, the Borrower and certain of its
Affiliates (other than the Additional Grantor) have entered into the Guarantee
and Security Agreement, dated as of July 17, 2009 (as amended,
supplemented or otherwise modified from time to time, the “Guarantee and
Security Agreement”) in favor of the Collateral Agent for the ratable benefit
of the Secured Parties;


 


WHEREAS, the Credit
Agreement requires in certain circumstances for the Additional Grantor to
become a party to the Guarantee and Security Agreement on or after the
Subsequent Closing Date; and


 


WHEREAS, the
Additional Grantor has agreed to execute and deliver this Assumption Agreement
in order to become a party to the Guarantee and Security Agreement;


 


NOW, THEREFORE, IT
IS AGREED:


 


1.  Guarantee and Security Agreement.  By executing and delivering this Assumption
Agreement, the Additional Grantor, as provided in Section 8.14 of the
Guarantee and Security Agreement, hereby becomes a party to the Guarantee and
Security Agreement as a Grantor thereunder with the same force and effect as if
originally named therein as a Grantor and, without limiting the generality of
the foregoing, hereby expressly assumes all obligations and liabilities of a
Grantor thereunder.  The information set
forth in Annex I-A hereto is hereby 


 


60

















 


added
to the information set forth in the Schedules to the Guarantee and Security
Agreement. The Additional Grantor hereby represents and warrants that each of
the representations and warranties contained in Section 4 of the Guarantee
and Security Agreement is true and correct on and as the date hereof (after
giving effect to this Assumption Agreement) as if made on and as of such date.


 


2.  Governing Law.  THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.


 


3.
Acknowledgment.  The undersigned hereby
acknowledges and consents to, the Intercreditor Agreement, dated as of July 17,
2009, between HSH Nordbank, AG, New York Branch, as the Holdings Agent and
Wells Fargo Bank, National Association, as the Aimco Agent. The undersigned
agrees to be bound by the Intercreditor Agreement, and that the Intercreditor
Agreement may be amended by Aimco Agent and Holdings Agent (as such terms are
defined in the Intercreditor Agreement) without notice to, or the consent of,
the Additional Grantor or any other Person.


 


IN WITNESS
WHEREOF, the undersigned has caused this Assumption Agreement to be duly
executed and delivered as of the date first above written.


 


	
  [ADDITIONAL GRANTOR]

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
  Name:

  	
   

  
	
   

  	
   

  
	
  Title:

  	
   

  
			



 


61

















 


Annex I-A to


 


Assumption
Agreement


 


Supplement to
Schedule 1


 


Supplement to
Schedule 2


 


Supplement to
Schedule 3


 


Supplement to
Schedule 4


 


Supplement to
Schedule 5


 


Supplement to
Schedule 6


 


Supplement to Schedule 7


 


62

















 


Exhibit B


 


[FORM OF TERM NOTE]


 






 


TERM NOTE


 










 


New York, New York


 


	
  $                 

  	
  ,
  20  

  



 


FOR VALUE RECEIVED, the
undersigned, CSSW, LLC, a Delaware limited liability company (the “Borrower”)
hereby unconditionally promises to pay to the order of [Insert name of Lender]
(the “Lender”) or its registered assigns at the Payment Office specified
in the Credit Agreement (as hereinafter defined), in lawful money of the United
States and in immediately available funds, the principal sum of
                            
DOLLARS ($                  ),
with interest, including PIK Interest, if any, at the rate and payable in the
manner stated in the Amended and Restated Credit Agreement dated as of December     ,
2009 (as amended, modified, supplemented or restated and in effect from time to
time, the “Credit Agreement”), by and among (i) the Borrower, (ii) CSSW
Holdings, LLC, (iii) the Lenders party thereto, and (iv) Wells Fargo
Bank, National Association, as Administrative Agent and as Collateral Agent.


 


This is a “Term Note” to
which reference is made in the Credit Agreement and is subject to all terms and
provisions thereof. The principal of, and interest (including PIK Interest, if
any) on, this Term Note shall be payable at the times, in the manner, and in
the amounts as provided in the Credit Agreement and shall be subject to
prepayment and acceleration as provided therein. This Term Note is secured and
guaranteed as provided in the Loan Documents. Capitalized terms used herein and
not defined herein shall have the meanings assigned to such terms in the Credit
Agreement.


 


The Lender’s books and
records concerning the Term Loans, the accrual of interest (including PIK
Interest) thereon, and the repayment of such Term Loans, shall be prima facie
evidence of the existence and amounts of the Term Loans and other Obligations
therein recorded. The failure of the Lender to maintain such books and records,
or any error therein, shall not in any manner affect the obligations of the
Borrower to repay or pay the Term Loans, accrued interest thereon (including
PIK Interest) and the other Obligations of the Borrower to such Lender
hereunder in accordance with the terms of the Credit Agreement.


 


No delay or omission by any
Agent or any Lender in exercising or enforcing any of such Agent’s or such
Lender’s powers, rights, privileges, remedies or discretions hereunder shall
operate as a waiver thereof on that occasion nor on any other occasion. No
waiver of any Event of Default shall operate as a waiver of any other Event of
Default, nor as a continuing waiver.


 


In addition to any other
remedy provided in the Credit Agreement, upon the occurrence of any Event of
Default (other than an Event of Default specified in Section 11.1(g) of
the Credit Agreement), all amounts then unpaid on this Term Note (including any
accrued and unpaid interest) shall, upon notice to the Borrower by the
Administrative Agent (acting at the direction of the Majority Lenders),
immediately become due and payable.  If
an Event of Default specified in Section 11.1(g) shall occur with
respect to the Borrower, all amounts then unpaid on this Term


 

















 


Note (including any accrued
and unpaid interest) shall immediately become due and payable without notice.


 


Except as otherwise provided
in the Credit Agreement, all parties now and hereafter liable with respect to
this Term Note, whether maker, principal, surety, guarantor, endorser or
otherwise, hereby waive presentment, demand, notice and protest, and also waive
any delay on the part of the holder hereof.


 


This Term Note shall be
binding upon the Borrower, and each endorser and guarantor hereof, and upon
their respective successors, assigns, and representatives, and shall inure to
the benefit of the Lenders and their successors, endorsees and assigns.


 


THIS TERM NOTE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.


 


THESE INITIAL TERM LOANS
WERE ISSUED WITH ORIGINAL ISSUE DISCOUNT (“OID”).  LENDERS MAY OBTAIN THE ISSUE PRICE, THE
AMOUNT OF OID, THE ISSUE DATE AND THE YIELD TO MATURITY WITH RESPECT TO THESE
LOANS BY SUBMITTING A WRITTEN REQUEST TO BORROWER AT ITS NOTICE OFFICE.


 


[SIGNATURE PAGE FOLLOWS]


 


2


















 


IN WITNESS WHEREOF, the
Borrower has caused this Term Note to be duly executed as of the date set forth
above.


 


	
   

  	
  CSSW,
  LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


3

















 


Exhibit C


 


[FORM OF NOTICE OF
BORROWING]


 


NOTICE OF BORROWING


 


[Date](1)


 


Wells Fargo Bank,
National Association

as Administrative Agent for the Lenders party

to the Credit Agreement referred to below

45 Broadway, 14th Floor

New York, NY 10006

Attention:  CMES-CSSW, LLC


 


Ladies
and Gentlemen:


 


The undersigned, CSSW LLC, a Delaware limited
liability company (the “Borrower”), refers to the Amended and Restated
Credit Agreement dated as of December     , 2009 (as
amended, modified, supplemented or restated and in effect from time to time,
the “Credit Agreement,” the terms defined therein being used herein as
therein defined) among the Borrower, CSSW Holdings, LLC, the Lenders party
thereto, and Wells Fargo Bank, National Association, as Administrative Agent
and as Collateral Agent.


 


Pursuant to Section 2.2 of the Credit
Agreement, the Borrower hereby gives you notice, irrevocably, that it requests
Term Loans under the Credit Agreement, and in that connection sets forth below
the information relating to such Term Loans as is required by Section 2.2
of the Credit Agreement:


 


(i)       The aggregate principal
amount of the Term Loans to be made on the [Initial Closing Date] [Subsequent
Closing Date] [Stetson II Closing Date] is
$                    .


 


(ii)      The
[Initial Closing Date] [Subsequent Closing Date] [Stetson II Closing Date] is
[                ],
20    .


 


The undersigned hereby certifies that as of the
[Initial Closing Date] [Subsequent Closing Date] [Stetson II Closing Date],
each of the conditions precedent contained in [Section 3.1] [Section 3.2]
[Section 3.4] of the Credit Agreement will be fully satisfied or waived by
the Administrative Agent and the Initial Lenders.


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
  CSSW,
  LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 






(1)           At least three
Business Days prior to the applicable Closing Date, except if the borrowing is
to occur on the Initial Closing Date.


 

















 


Exhibit D


 


[FORM OF LEGAL OPINION OF CSSW PARENT’S,
BORROWER’S AND STEEL WINDS PROJECT COMPANY’S IN-HOUSE COUNSEL]


 


To be provided by Goodwin Procter LLP


 

















 


Exhibit E


 


[FORM OF LEGAL OPINION OF GOODWIN PROCTER LLP]


 


To be provided by Goodwin Procter LLP


 

















 


Exhibit F


 


[FORM OF ASSIGNMENT AND
ACCEPTANCE]


 






 


ASSIGNMENT AND ACCEPTANCE


 










 


Reference is made to the
Amended and Restated Credit Agreement dated as of December     ,
2009 (as amended, modified, supplemented or restated and in effect from time to
time, the “Credit Agreement”) by and among (i) CSSW, LLC (the “Borrower”),
(ii) CSSW Holdings, LLC, (iii) the Lenders party thereto, and (iv) Wells
Fargo Bank, National Association, as Administrative Agent and as Collateral
Agent. Capitalized terms used herein and not defined herein shall have the
meanings assigned to such terms in the Credit Agreement.


 


(the
“Assignor”) and
                    
(the “Assignee”) agree as follows:


 


1.                                       The Assignor hereby irrevocably sells and assigns to the
Assignee without recourse to the Assignor, and the Assignee hereby irrevocably
purchases and assumes from the Assignor without recourse to the Assignor, the
interest described in Section 1 of Schedule I hereto (the “Assigned
Interest”) in and to the Assignor’s rights and obligations as a Lender
under the Credit Agreement as of the Effective Date (defined below).  After giving effect to such sale and
assignment, the principal amount of the Term Loans owing to the Assignor and
the Assignee will be as set forth in Section 2 of Schedule I
hereto.


 


2.                                       The Assignor (a) represents and warrants that (i) it
is the legal and beneficial owner of the Assigned Interest and that the
Assigned Interest is free and clear of any adverse claim and (ii) it is
legally authorized to enter into this Assignment and Acceptance; (b) makes
no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in, or in connection with, the
Credit Agreement, any other Loan Document or any other instrument or document
furnished pursuant thereto or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement, any
other Loan Document or any other instrument or document furnished pursuant
thereto; (c) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower, any of
its Affiliates or any other obligor or the performance or observance by the
Borrower, any of its Affiliates or any other obligor of any of their respective
obligations under the Credit Agreement, any other Loan Document or any other
instrument or document furnished pursuant thereto; and (d) confirms that
the amount of the Term Loans subject to this Assignment and Acceptance is not
less than $10,000,000 or a higher integral multiple of $1,000,000 in excess
thereof, or, if less, 100% of the remaining amount of the Assignor’s Term
Loans.


 


3.                                       The Assignee (a) confirms that it has received a copy
of the Credit Agreement, together with copies of the financial statements
referred to in Sections 7.1 and 7.2 thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis and decision
to enter into this Assignment and Acceptance; (b) agrees that


 

















 


it will, independently and without
reliance upon the Agents, the Assignor or any other Lender, 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
Agreement, the other Loan Documents or any other instrument or document
furnished pursuant hereto or thereto; (c) appoints and authorizes the
Agents to take such action as agents on its behalf and to exercise such powers
under the Credit Agreement, the other Loan Documents or any other instrument or
document furnished pursuant hereto or thereto as are delegated to the Agents by
the terms thereof, together with such powers as are reasonably incidental
thereto; (d) agrees that it will be bound by the provisions of the Credit
Agreement and will perform in accordance with its terms all of the obligations
which, by the terms of the Credit Agreement, are required to be performed by it
as a Lender; (e) represents and warrants that it is legally authorized to
enter into this Assignment and Acceptance; (f) specifies as its lending
office (and address for notices) the office set forth beneath its name on the
signature pages hereof; and (g) agrees to deliver to the
Administrative Agent and the Borrower such documents and other information as
required by Section 4.5(f) of the Credit Agreement.


 


4.                                       Following the execution of this Assignment and Acceptance by
the Assignor and the Assignee, it will be delivered to the Administrative
Agent, together with (a) payment instructions, addresses, any required tax
forms, contact information and any related information with respect to the
Assignee and (b) a processing fee in the amount of $3,500 for acceptance
and recording by the Administrative Agent. Unless otherwise specified on
Schedule I hereto, the effective date of this Assignment and Acceptance shall
be the date that the Administrative Agent notifies the Assignor and the
Borrower that it has received (and provided its consent with respect to, if
necessary) a fully executed version of this Assignment and Acceptance and
payment of the above-referenced processing fee and the Borrower has provided
its consent to such assignment, if required (such consent not to be
unreasonably delayed, withheld or conditioned).


 


5.                                       From and after the Effective Date, (a) the Assignee
shall be a party to the Credit Agreement and, to the extent of the interest
assigned by this Assignment and Acceptance, shall have the rights and
obligations under the Credit Agreement of a Lender thereunder and under the
other Loan Documents and shall be bound by the provisions thereof, and (b) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement and the other Loan Documents with respect to the Assigned Interest,
other than those relating to events or circumstances occurring prior to the
Effective Date.


 


6.                                       From and after the Effective Date, the Administrative Agent
shall make all payments under the Credit Agreement in respect of the Assigned
Interest (including, without limitation, all payments of principal, interest
and fees with respect thereto) to the Assignee whether such amounts have
accrued prior to the Effective Date or accrue subsequent to the Effective Date.
The Assignor and Assignee shall make all appropriate adjustments in payments
under the Credit Agreement for periods prior to the Effective Date or with
respect to the making of this assignment directly between themselves.


 





















 


7.                                       This Assignment and Acceptance shall be governed by, and be
construed and interpreted in accordance with, the law of the State of New York.


 


8.                                       This Assignment and Acceptance may be executed in any number
of counterparts and by the different parties hereto on separate counterparts,
each of which when so executed and delivered shall be deemed to constitute an
original, but all of which shall together constitute one and the same
instrument.  Delivery of an executed
signature page of this Assignment and Acceptance by email or facsimile
transmission shall be effective as delivery of a manually executed counterpart
thereof.


 


[SIGNATURE PAGE FOLLOWS]


 

















 


IN WITNESS WHEREOF, the
parties hereto have caused this Assignment and Acceptance to be executed by
their respective officers thereunto duly authorized, as of the date first above
written on Schedule I hereto.


 


	
   

  	
  [ASSIGNOR]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [ASSIGNEE]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Lending
  Office (and address for notices):

  
	
   

  	
   

  
	
   

  	
  [Address]

  
	
   

  	
   

  
	
   

  	
   

  
	
  Accepted
  this            day

  	
   

  
	
  of
                  ,

  	
   

  
	
   

  	
   

  
	
  WELLS
  FARGO BANK, NATIONAL ASSOCIATION,

  	
   

  
	
  as
  Administrative Agent

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 

















 


	
  Consented
  to this         

  	
   

  
	
  day
  of
                  ,

  	
   

  
	
   

  	
   

  
	
  CSSW,
  LLC, as Borrower

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 

















 


Schedule I to Assignment and Acceptance


 


Dated
              ,


 


This
is Schedule I to Assignment and Acceptance with respect to the Amended and
Restated Credit Agreement dated as of December     ,
2009 (as amended, modified, supplemented or restated and in effect from time to
time, the “Credit Agreement”) by and among (i) CSSW, LLC (the “Borrower”),
(ii) CSSW Holdings, LLC, (iii) the Lenders party thereto, and (iv) Wells
Fargo Bank, National Association, as Administrative Agent and as Collateral
Agent.


 


	
  Section 1.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name
  of Assignor:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name
  of Assignee:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Principal
  amount of Term Loans assigned:

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
  Section 2.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Principal
  amount of Term Loans owing to Assignor:

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
  Principal
  amount of Term Loans owing to Assignee:

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
  Section 3.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Effective
  Date:

  	
   

  	
                          ,

  



 

















 


Exhibit G


 


[INITIAL CLOSING DATE ORGANIZATIONAL STRUCTURE]


 


To be provided by Goodwin Procter LLP


 














 





 














 


Exhibit H


 


[FORM OF UNDERTAKING AGREEMENT]


 


To be attached


 

















 


UNDERTAKING AGREEMENT


 


Dated as of July 17, 2009


 


FIRST WIND HOLDINGS, LLC


 


and


 


WELLS FARGO BANK, NATIONAL ASSOCIATION,


as Administrative Agent and Collateral Agent


 

















 


UNDERTAKING
AGREEMENT (this “Undertaking Agreement”), dated as of July 17, 2009, by
and among FIRST WIND HOLDINGS, LLC, a limited liability company duly organized
and validly existing under the laws of the State of Delaware (“FWH”), WELLS
FARGO BANK, NATIONAL ASSOCIATION, as administrative agent for the Lenders
(together with its successors and assigns in such capacity, the “Administrative
Agent”) and WELLS FARGO BANK, NATIONAL ASSOCIATION, as collateral agent
(together with its successors and assigns in such capacity, the “Collateral
Agent”) for the benefit of the Secured Parties.


 


RECITALS


 


WHEREAS, CSSW,
LLC, a Delaware limited liability company (the “Borrower”), CSSW Holdings, LLC
(“CSSW Parent”), a Delaware limited liability company and the Borrower’s
parent, various financial institutions party thereto as Lenders from time to
time, the Administrative Agent and the Collateral Agent have entered into the
Credit Agreement dated as of July 17, 2009 (as amended, restated,
supplemented or otherwise modified from time to time in accordance with the
terms thereof, the “Credit Agreement”), pursuant to which the Lenders have
agreed to provide the Term Loans to the Borrower on the terms and conditions
set forth therein;


 


WHEREAS, certain
Subsidiaries of the Borrower own, operate and maintain the Projects;


 


WHEREAS, FWH
currently provides, on behalf of such Subsidiaries, the guarantees, letters of
credits and other credit support specified on Schedule I hereto (each an “Existing
Credit Support Instrument”) to satisfy the credit support obligations under the
Material Project Documents specified in such Schedule;


 

















 


WHEREAS, the
Borrower currently owns, indirectly, Prattsburgh, and intends to Unwind the
rights and assets of Prattsburgh and transfer its equity interests in
Prattsburgh to an Affiliate (other than to any of its Subsidiaries); and


 


WHEREAS, FWH is an
indirect parent of the Borrower, and the issuance, execution and delivery of
this Undertaking Agreement is a condition precedent to the making of the Term
Loans by the Lenders.


 


NOW, THEREFORE, to
induce the Lenders to make the Term Loans and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
FWH desires to confirm and agree to certain matters for the benefit of the
Collateral Agent, the Administrative Agent and the other Secured Parties.  Accordingly, the parties hereto agree as
follows:


 


ARTICLE 1


 


DEFINITIONS


 


1.01         Definitions.  Capitalized terms used herein (including in
the preamble and recitals hereto) and not defined herein shall have the
meanings assigned thereto in the Credit Agreement.  The rules of interpretation set out in
Sections 1.2 and 1.3 of the Credit Agreement are incorporated herein by
reference and shall apply to this Undertaking Agreement.


 

















 


ARTICLE 2


 


THE CONFIRMATIONS
AND AGREEMENTS


 


2.01         Confirmations and Agreements.  FWH hereby confirms to and covenants and
agrees with the Administrative Agent and the Collateral Agent, for the benefit
of the Secured Parties, that, on behalf of each Subsidiary listed on Schedule I
hereto, FWH will maintain each of the Existing Credit Support Instruments set
forth on Schedule I in accordance with the terms of the relevant Material
Project Document (including extending the term of any such Existing Credit
Support Instrument if required thereunder) until, with respect to any Existing
Credit Support Instrument, the earliest to occur of (a) the date on which
the relevant Project Company or other Subsidiary of the Borrower (any such
Project Company or Subsidiary being referred to as a “New LC Obligor”) is able
to and provides pursuant to Permitted Project Indebtedness substitute credit
support that is acceptable to the relevant counterparty and in full replacement
of such Existing Credit Support Instrument, in accordance with the terms and
conditions of the applicable Material Project Document and the Loan Documents, (b) the
date on which all of FWH’s obligations with respect to the Existing Credit
Support Instrument have been assumed by a New LC Obligor, (c) the date on
which this Undertaking Agreement terminates under Section 2.03 and (d) after
an acceleration of the Term Loans under the Credit Agreement, the date upon
which the Collateral Agent transfers, assigns, sells or otherwise disposes of,
directly or indirectly, the Steel Winds Project in connection with its exercise
of remedies thereunder to an unaffiliated third party purchaser.


 


2.02         Indemnity.  Without waiving any rights, claims or
defenses FWH or any of its Affiliates may have under any agreement with an
Indemnified Person other than the Loan Documents, FWH shall pay, indemnify,
save and hold the Administrative Agent, the Collateral Agent and each Secured
Party and each of their respective officers, directors, employees, 


 

















 


counsel,
agents and attorneys-in-fact and Affiliates (each, an “Indemnified Person”)
harmless from and against any and all liabilities, obligations, losses,
damages, penalties, claims, actions, judgments, suits, costs, charges, expenses
or disbursements (including Attorney Costs) of any kind or nature whatsoever
which may at any time (including at any time following the Unwind of
Prattsburgh or repayment of the Term Loans or the termination, resignation or
replacement of any Agent or any Lender) be imposed on, incurred by or asserted
against any such Person in any way relating to, or arising out of, the
business, activities, assets, liabilities or obligations of Prattsburgh,
including the Unwind of Prattsburgh, or the actions of the Borrower or any of
its Affiliates related thereto, and any investigation, litigation or proceeding
(including any bankruptcy, insolvency, reorganization or other similar
proceeding or appellate proceeding) related to Prattsburgh, whether or not any
Indemnified Person is a party thereto (all the foregoing, collectively, the “Indemnified
Liabilities”); provided that FWH shall not have any obligation hereunder to any
Indemnified Person with respect to Indemnified Liabilities determined by a
court of competent jurisdiction in a final and non-appealable order to have
arisen from the fraud, gross negligence or willful misconduct of such
Indemnified Person.


 


2.03         Termination.  The obligations of FWH under this Undertaking
Agreement shall terminate on the date of termination of the Credit Agreement
and the other Loan Documents in accordance with Section 13.21 of the
Credit Agreement.


 


ARTICLE 3


 


MISCELLANEOUS


 


3.01         Notices.  All notices and other communications provided
for hereunder shall be:  (a) given
or made in writing in the manner set out in, and deemed to have been duly 


 

















 


given
in accordance with, Section 13.3 of the Credit Agreement and (b) sent
to a party hereto at its address and contact number specified on the signature pages hereto,
or at such other address and contact number as is designated by such party in a
written notice to the other parties hereto.


 


3.02         No Waiver; Remedies Cumulative.  No failure or delay on the part of any of the
Secured Parties in exercising any right, power or privilege hereunder and no
course of dealing between FWH, the Borrower, the Guarantors and any Secured
Party shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder.  No notice to or demand on FWH
in any case shall entitle FWH to any other or further notice or demand in
similar or other circumstances or constitute a waiver of the rights of any
Secured Party to take any other or further action in any circumstances without notice
or demand.  All remedies, either under
this Agreement or pursuant to any Requirement of Law or otherwise afforded to
any Secured Party shall be cumulative and not alternative.


 


3.03         Amendments, Etc.  The terms of this Undertaking Agreement may
be waived, altered or amended only by an instrument in writing duly executed by
FWH, the Administrative Agent and the Collateral Agent (each acting on the
instructions of the Majority Lenders).


 


3.04         Successors and Assigns.   This Undertaking Agreement shall be binding
upon and inure to the benefit of the respective successors and assigns of FWH
and the respective successors and assignees of each Secured Party; provided,
however, that FWH shall not assign or transfer its rights or obligations
hereunder without the prior written consent of each of the Lenders.  Any purported assignment in violation of this
provision shall be void.


 

















 


3.05         Counterparts.  This Undertaking Agreement may be executed in
any number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument.  Delivery of an executed
signature page of this Undertaking Agreement by email or facsimile transmission
or Portable Document Format (i.e., PDF) shall be effective as delivery of a
manually executed counterpart thereof.


 


3.06         Governing Law; Submission to
Jurisdiction.  (a)            THIS UNDERTAKING AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.


 


(b)           FWH hereby submits to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York and of any New York State court sitting in New York City
for the purposes of all legal proceedings arising out of or relating to this
Undertaking Agreement or the transactions contemplated hereby.  FWH hereby irrevocably waives, to the fullest
extent permitted by applicable Requirements of Law, any objection which it may
now or hereafter have to the laying of the venue of any such proceeding brought
in such a court and any claim that any such proceeding brought in such a court
has been brought in an inconvenient forum. 
Nothing herein shall affect the right to serve process in any other manner
permitted by applicable Requirements of Law or any right to bring legal action
or proceedings in any other competent jurisdiction.  To the extent permitted by applicable
Requirements of Law, FWH further irrevocably agrees to the service of process
of any of the aforementioned courts in any suit, action or proceeding by the
mailing of copies thereof by certified mail, postage prepaid, return receipt
requested, to such party at the address referenced in Section 3.01, such
service to be effective upon the date indicated on the postal receipt returned
from FWH.


 

















 


3.07         WAIVER OF JURY TRIAL.  EACH OF THE PARTIES HERETO HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT ANY OF THEM MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER
OR IN CONNECTION WITH, THIS AGREEMENT, THE TERM NOTES OR ANY OTHER LOAN
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY RELATING HERETO OR THERETO.  THIS PROVISION IS A MATERIAL INDUCEMENT FOR
THE SECURED PARTIES TO ENTER INTO THIS AGREEMENT.


 


3.08         Captions.  The captions and section headings appearing
herein are included solely for convenience of reference and are not intended to
affect the interpretation of any provision of this Undertaking Agreement.


 


3.09         Integration of Terms.  This Undertaking Agreement contains the
entire agreement between FWH and the Administrative Agent, the Collateral Agent
or any of the other Secured Parties relating to the subject matter hereof and
supersedes all oral statements and prior writing with respect hereto.


 


3.10         Collection Expenses.  FWH agrees to reimburse the Administrative
Agent, the Collateral Agent and any of the other Secured Parties for all
properly documented reasonable costs and expenses of the Administrative Agent,
the Collateral Agent or such other Secured Party (including, without
limitation, Attorney Costs) in connection with (a) any enforcement or
collection proceeding with respect to this Undertaking Agreement, including,
without limitation, all manner of participation in or other involvement with (i) bankruptcy,
insolvency, receivership, 


 

















 


foreclosure,
winding up or liquidation proceedings, (ii) judicial or regulatory
proceedings and (iii) workout, restructuring or other negotiations or
proceedings (whether or not the workout, restructuring or transaction
contemplated thereby is consummated) and (b) the enforcement of this Section 3.10.


 


3.11         Severability.  Any provision hereof which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof and without affecting the validity
or enforceability of any provision in any other jurisdiction.


 


3.12         No Benefit to Borrower, CSSW Parent or
their Subsidiaries.  This Undertaking
Agreement is for the benefit of only the Administrative Agent, the Collateral
Agent and the other Secured Parties and is not for the benefit of the Borrower,
the CSSW Parent or any of the Borrower’s Subsidiaries.


 


3.13         No Bankruptcy.  So long as the Loan Documents remain in
effect and until the termination of this Undertaking Agreement in accordance
with Section 2.03, FWH shall not, without the prior written consent of the
Administrative Agent and the Collateral Agent, commence, or join with any other
Person in commencing, any bankruptcy, reorganization or insolvency proceeding
against CSSW Parent, the Borrower or any of the Borrower’s Subsidiaries.


 


3.14         Survival.  All indemnities set forth herein shall
survive the execution and delivery of this Undertaking Agreement and the Term
Loans and the making and repayment of the Term Loans.  In addition, each representation and warranty
made or deemed to be made pursuant hereto shall survive the making of such
representation and warranty.


 














 


IN WITNESS
WHEREOF, the parties hereto have caused this Undertaking Agreement to be duly
executed and delivered as of the day and year first above written.


 


 


	
  FIRST
  WIND HOLDINGS, LLC

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
  Name:

  	
   

  
	
   

  	
   

  
	
  Title:

  	
   

  
	
   

  	
   

  
	
  Address
  for Notices:

  	
   

  
	
   

  	
   

  
	
  [                ]

  	
   

  
	
   

  	
   

  
	
  Attention:
  [                ]

  	
   

  
	
   

  	
   

  
	
  Telephone
  No.:
  [                ]

  	
   

  
	
   

  	
   

  
	
  Facsimile
  No.: [                ]

  	
   

  
	
   

  	
   

  
	
  E-Mail:
  [                ]

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  WELLS
  FARGO BANK, N.A.,

  	
   

  
	
   

  	
   

  
	
  in
  its capacity as the Administrative Agent

  	
   

  
			



 


 

















 


	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
  Name:

  	
   

  
	
   

  	
   

  
	
  Title:

  	
   

  
	
   

  	
   

  
	
  Address
  for Notices:

  	
   

  
	
   

  	
   

  
	
  [                ]

  	
   

  
	
   

  	
   

  
	
  Attn:
  [                ]

  	
   

  
	
   

  	
   

  
	
  Telephone
  No.:
  [                ]

  	
   

  
	
   

  	
   

  
	
  Facsimile
  No.:
  [                ]

  	
   

  
	
   

  	
   

  
	
  E-Mail:
  [                ]

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  WELLS
  FARGO BANK, N.A.,

  	
   

  
	
   

  	
   

  
	
  in
  its capacity as the Collateral Agent

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
  Name:

  	
   

  
	
   

  	
   

  
	
  Title:

  	
   

  



 

















 


Address for Notices: 


 


[                ]


 


Attn:
[                ]


 


Telephone No.:
[                ]


 


Facsimile No.: [                ]


 


E-Mail:
[                ]


 


 


SCHEDULE I


 


EXISTING CREDIT SUPPORT


 

















 


Exhibit I


 


[FORM OF INTERCREDITOR AGREEMENT]


 


To
be attached


 

















 


Exhibit J


 


FORM OF

COMPLIANCE CERTIFICATE


 


This Compliance Certificate is delivered pursuant to
Section 7.4 of the Amended and Restated Credit Agreement, dated as of December     ,
2009 (as amended, supplemented or otherwise modified from time to time (the “Credit
Agreement”), among CSSW, LLC (the “Borrower”), CSSW Holdings, LLC,
the Lenders from time to time party thereto, and Wells Fargo Bank, National
Association, as the administrative agent (in such capacity, the “Administrative
Agent”) and as the collateral agent. 
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.


 


I, the undersigned, hereby certify, in my capacity
as
                    
and not in my individual capacity, to the Administrative Agent and the Lenders
as follows:


 


1.     I am the duly elected, qualified and acting
[Chief Financial Officer/Treasurer/Assistant Treasurer] of the Borrower.


 


2.     I have reviewed and am familiar with the
contents of this Certificate.


 


3.     I have reviewed the terms of the Credit
Agreement and the other Loan Documents and have made or caused to be made under
my supervision, a review in reasonable detail of the transactions and financial
condition of the Borrower and its Subsidiaries during the accounting period
covered by the financial statements attached hereto as Attachment 1
(the “Financial Statements”) and such Financial Statements fairly
present in all material respects the financial condition and results of
operations of the Borrower and its Consolidated Subsidiaries in accordance with
GAAP, consistently applied, as at the end of, and for, such periods (subject,
in the case of unaudited financial statements, to normal year-end audit
adjustments and absence of footnotes). 
Such review did not disclose the existence during or at the end of the
accounting period covered by the Financial Statements, and I have no knowledge
of the existence, as of the date of this Certificate, of any condition or event
which constitutes a Default or Event of Default[, except as set forth
below:                          ].


 


4.     [Attached hereto as Attachment 2 are
the computations showing compliance with the covenant set forth in Article 8
of the Credit Agreement.]


 


5.     [Attached hereto as Attachment 3 is
a calculation of Reserve Amounts, Excess Reserves, Excess Cash, Cohocton
Permitted Indebtedness set forth in clauses (1), (2) and (3) of the
definition thereof, Stetson Permitted Indebtedness set forth in clauses (1), (2) and
(3) of the definition thereof, and Other Permitted Indebtedness set forth
in clause (a) of the definition thereof, and a description of all amounts
applied in respect of Excess Reserves.](2)


 


6.     To the extent the computations,
calculations and other information set forth in this Certificate are based on
projections or other pro forma or forward-looking information, it is my good
faith belief that such projections and other pro forma or forward-looking
information are based on reasonable estimates, information and assumptions.


 






(2) Calculated on a semi-annual basis.


 

















 


7.     The amount of the aggregate cash balance in
the Project accounts is as follows:


 

















 


IN WITNESS WHEREOF, I have executed this Certificate
this            day of
        , 20    .


 


 


	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


[Signature Page to
Compliance Certificate]


 

















 


Attachment 1


to Compliance Certificate


 


[Attach Financial Statements]


 

















 


Attachment 2


to Compliance Certificate


 


The information described herein is as of
            ,
        , and pertains to the period
from                   ,
         to
                                
    ,         .


 


[Set forth Covenant Calculations]


 

















 


Attachment 3


to Compliance Certificate


 


The information described herein is as of
            ,
        , and pertains to the period
from                   ,
         to
                                
    ,         .


 


[Calculations]


 

















 


Exhibit K


 


[FORM OF STETSON II EFFECTIVE DATE
ORGANIZATIONAL STRUCTURE]


 


To be attached


 














 


Exhibit K


 





 





 














 


Schedule 1


Steel Winds Reorganization


 


1.               New York Wind III to
purchase all of Lehman First Wind Holdings, LLC Class B membership interests in
New York Wind II (and to deliver a copy of the related documentation to the
Initial Lenders).


 


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


 


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


 


4.               Borrower to dissolve New
York Wind III or merge it into New York Wind II.  The limited liability company agreement of
New York Wind II will be amended and restated in form and substance
satisfactory to the Initial Lenders to be substantially similar to the existing
limited liability company agreement of New York Wind III, and a copy of such
amended and restated limited liability company agreement will be delivered to
the Initial Lenders at least ten (10) Business Days before the effectiveness of
the Steel Winds Reorganization.


 


5.               Evidence reasonably
satisfactory to the Initial Lenders of the termination of the Nominee Agreement
and release of pledges of Class A membership interests in New York Wind II and
each class of membership interests in New York Wind III by HSHN (and any other
action or consent required of HSHN). 
Full and complete copies of the related documentation will be delivered
to the Initial Lenders at least ten (10) Business Days before the effectiveness
of the Steel Winds Reorganization, with fully executed copies delivered
promptly after the Steel Winds Reorganization.


 


6.               Steel Winds Holding Company
and Steel Wind Project Company to give “all assets” pledge pursuant to the
Guarantee and Security Agreement (to the extent required by the Credit
Agreement).


 


7.               All necessary Governmental
Approvals for the Steel Winds Reorganization shall have been obtained and are
in full force and effect.


 

















 


Schedule 1.1


Commitments


 


	
  Lender

  	
   

  	
  Commitment

  	
   

  	
  Percentage

  	
   

  
	
  A. Initial Closing Date

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  PIP3PX
  FirstWind Debt Ltd.

  	
   

  	
  $

  	
  35,850,000

  	
   

  	
  35.85

  	
  %

  
	
  PIP3GV
  FirstWind Debt Ltd.

  	
   

  	
  $

  	
  64,150,000

  	
   

  	
  64.15

  	
  %

  
	
  TOTAL

  	
   

  	
  $

  	
  100,000,000

  	
   

  	
  100

  	
  %

  



 


	
  Lender

  	
   

  	
  Commitment

  	
   

  	
  Percentage

  	
   

  
	
  B. Subsequent Closing Date

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  PIP3PX
  FirstWind Debt Ltd.

  	
   

  	
  $

  	
  5,377,500.00

  	
   

  	
  35.85

  	
  %

  
	
  PIP3GV
  FirstWind Debt Ltd.

  	
   

  	
  $

  	
  9,622,500.00

  	
   

  	
  64.15

  	
  %

  
	
  TOTAL

  	
   

  	
  $

  	
  15,000,000.00

  	
   

  	
  100

  	
  %

  



 


	
  Lender

  	
   

  	
  Commitment

  	
   

  	
  Percentage

  	
   

  
	
  C. Stetson II Closing Date

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  PIP3PX
  FirstWind Debt Ltd.

  	
   

  	
  $

  	
  5,377,500.00

  	
   

  	
  35.85

  	
  %

  
	
  PIP3GV
  FirstWind Debt Ltd.

  	
   

  	
  $

  	
  9,622,500.00

  	
   

  	
  64.15

  	
  %

  
	
  TOTAL

  	
   

  	
  $

  	
  15,000,000.00

  	
   

  	
  100

  	
  %

  



 


Lender Wire Instructions:


 


Beneficiary Bank:


Bank Name: Canadian Imperial Bank of Commerce,
Toronto


SWIFT Code: CIBCCATT


 


2

















 


Bank Address: 10102 Jasper Ave, Edmonton,
Alberta


 


Beneficiary Name/For further credit to:


Customer Clearing Code: //CC001000059


Customer Account Number: 0579319


Customer Account Name: PA Private Income Pool 3
Pensions PIP3PX


Customer Address: 340
Terrace Building, 9515 — 107 Street, Edmonton, AB T5K 2C3


 


Correspondent (aka Intermediary) bank:


Bank of America, N.A.


New York, N.Y.


ABA Code: 026009593


BIC: BOFAUS3N


 


3

















 


Schedule 2


Stetson Transmission Line
Reorganization


 


Subject to the satisfaction of the Stetson Transfer
Conditions (as defined below), the Stetson I Project Company will transfer all
assets directly relating to the 38-mile 115 kV generator lead line (connecting
the Stetson I Project’s wind turbines to the New England transmission system)
(the “Transmission Assets”) to a to-be-formed special purpose company
(the “Gen Lead Company”) set forth below.  The Gen Lead Company will be a wholly-owned
indirect subsidiary of the Parent, whose sole purpose will be to own, operate
and maintain the generator lead line assets relating to the Stetson I Project
and other projects owned (directly or indirectly) in whole or in part by the
Parent.  Concurrently with the Stetson I
Project Company’s transfer of such Transmission Assets, the Stetson I Project
Company will (a) obtain an Equity Interest in the Gen Lead Company and (b) enter
into definitive agreements with the Gen Lead Company providing the Stetson I
Project Company with sufficient rights to transmission line access necessary
for operation of the Stetson Project (the “Transmission Agreements”).


 


The
Initial Lenders’ consent to the Stetson Transmission Line Reorganization shall
be subject to the satisfaction or waiver of the conditions precedent (the “Stetson
Transfer Conditions”) set forth below:


 


1.               The Borrower
shall provide the Initial Lenders with twenty-five (25) days’ prior notice of
the occurrence of the Stetson Transmission Line Reorganization, which notice
will be accompanied by:


 


a.               copies of the
primary transaction documents (including the Transmission Agreements and the
Organizational Documents of the Gen Lead Company) to be entered into in
connection therewith and all documentation related to Governmental Approvals;
and


 


b.              the certificate
of an Authorized Officer of the Borrower stating that (i) no Material Adverse
Effect could reasonably be expected to occur as a result of the Stetson
Transmission Line Reorganization; (ii) the Stetson I Project Company shall have
sufficient access rights to the transmission line after giving effect to the
Stetson Transmission Line Reorganization for the operation and maintenance of its
business; (iii) all necessary Governmental Approvals have been obtained or will
be obtained before the consummation of the Stetson Transmission Line
Reorganization, and, if obtained, are in full force and effect in connection
with the Stetson Transmission Line Reorganization; and (iv) the assets that are
being transferred to the Gen Lead Company are only those assets directly
related to the 38-mile 115 kV generator lead line and not otherwise necessary
for the operation of the Stetson I Project unrelated to such generator lead
line.


 


2.               The Initial
Lenders shall have the opportunity to review the documents delivered pursuant
to clause 1(a) above, which shall be reasonably satisfactory to them.


 


3.               After receipt of
the Borrower’s notice of the Stetson Transmission Line Reorganization, the
Initial Lenders shall have the right to engage an independent engineer selected
by 


 

















 


them
(at the expense of Borrower) to confirm (within the twenty-five (25) day period
prior to the occurrence of the Stetson Transmission Line Reorganization) that (a)
the Stetson I Project Company shall have sufficient access rights to the
transmission line after giving effect to the Stetson Transmission Line
Reorganization for the operation and maintenance of its business, and (b) all necessary
Governmental Approvals have been obtained and are in full force and effect in
connection with the Stetson Transmission Line Reorganization.


 


5

















 


Schedule 3


Stetson Reorganization


 


1.               Borrower to form the Stetson
Intermediate Holding Company.


 


2.               Borrower to transfer 100% of
the membership interests in the Stetson Holding Company to the Stetson
Intermediate Holding Company.


 


3.               First Wind Maine Holdings,
LLC to transfer 100% of the membership interests in the Stetson II Project
Company to the Stetson Holding Company. 
A copy of all documentation related to such transfer (including the
Organizational Documents of the Stetson Intermediate Holding Company) will be delivered
to the Initial Lenders at least three (3) Business Days before the
effectiveness of the Stetson Reorganization.


 


4.               Evidence reasonably
satisfactory to the Initial Lenders of the termination of the release of
pledges of the membership interests in and assets of the Stetson II Project Company
by HSHN (and any other action or consent required of HSHN).  Full and complete copies of the related
documentation will be delivered to the Initial Lenders at least three (3) Business
Days before the effectiveness of the Stetson Reorganization, with fully
executed copies delivered promptly after the Stetson Reorganization.


 


5.               Borrower to pledge all of
its Equity Interests in the Stetson Intermediate Holding Company pursuant to
the Guarantee and Security Agreement (to the extent required by the Amended and
Restated Credit Agreement).  Borrower to
take all actions for the creation and perfection of a first priority Lien
thereon as necessary or reasonably required by the Collateral Agent or the
Initial Lenders or otherwise required under the Amended and Restated Credit
Agreement, including Section 9.11 thereof, and under the Security
Documents.  Initial Lenders to release
Borrower’s pledge of its Equity Interests in the Stetson Holding Company and
take all actions for the release as necessary or reasonably required by the
Collateral Agent or otherwise required under the Amended and Restated Credit
Agreement and under the Security Documents.


 


6.               All necessary Governmental
Approvals for the Stetson Reorganization shall have been obtained and are in
full force and effect.


 


6

















 


Schedule 3.1(d)


Material Project Documents for
Cohocton Project and Stetson Project


 


Cohocton
Project


 


1.               Project O&M Agreement, dated as of December
30, 2008, by and among Operator and the Cohocton Project Companies, as amended
by that certain Amendment No. 1 to Project O&M Agreement, dated as of March
19, 2009.


 


2.               Amended and Restated Interconnection
Agreement, dated as of December 3, 2008, by and among New York Independent
System Operator, Inc. (“NYISO”), New York State Electric & Gas Corp. and
Canandaigua Power Partners, LLC (“CPP”).


 


3.               ISDA Master
Agreement, dated as of August 21, 2007, by and between the Cohocton Holding
Company and Credit Suisse Energy LLC, as amended by that certain First
Amendment to ISDA Master Agreement, dated as of August 20, 2008, as further
amended by that certain Second Amendment to ISDA Master Agreement, dated as of December
11, 2008, and as further amended by that certain Third Amendment to ISDA Master
Agreement, dated as of March 27, 2009, as amended by the Schedule to the 1992
ISDA Master Agreement and the Confirmation, dated as of August 21, 2007.


 


4.               Agreement to Purchase and Sell Unforced
Capacity in NYISO Installed Capacity Auctions, dated as of October 6, 2008,
given by CPP.


 


5.               Shared Facilities Agreement, dated as of March
27, 2009, by and between the Cohocton Project Companies.


 


6.               Management
Services Agreement, dated as of March 30, 2009, by and between Cohocton Holding
Company and First Wind Energy, LLC.


 


7.               Warranty
Agreement, dated as of September 27, 2006, by and between Clipper Turbine Works
and First Wind Acquisition III, LLC (f/k/a/ UPC Wind Acquisition III, LLC) (“FWA
III”), as amended by Amendment No. 1 to Turbine Supply Agreement and Warranty
Agreement, dated as of October 30, 2006, as amended by Amendment No. 2 to
Warranty Agreement, dated as of December 31, 2007, as amended by Amendment No. 3
to Warranty Agreement, dated as of December 30, 2008, and as further amended by
Settlement Agreement and 4th Amendment to Turbine Supply Agreement and Warranty
Agreement, dated as of March 30, 2009, as assigned to Cohocton Holding Company,
pursuant to that certain Assignment and Assumption Agreement, dated as of March
30, 2009.


 


8.               Turbine
Operation, Maintenance and Service Agreement, dated as of September 27, 2006,
by and between Operator and Clipper Fleet Services, Inc. (“Clipper Fleet”), as
amended by Amendment No. 1 to Turbine Operation, Maintenance and Service
Agreement, dated as of October 30, 2006, as assigned to Cohocton Holding
Company, pursuant to that certain Assignment and Assumption Agreement, dated as
of March 30, 2009.


 


7

















 


9.               Service Agreement for Point-to-Point
Transmission Service under the OATT, dated as of October 15, 2008, by and
between NYISO and CPP.


 


10.         Service Agreement for NYISO Market
Administration and Control Area Services Tariff, dated as of October 15, 2008,
by and between NYISO and CPP.


 


11.         Service Agreement for Non-Firm Point-to-Point
Transmission Service under the OATT, dated as of October 15, 2008, by and
between NYISO and CPP.


 


12.         Balance of Plant Contract, dated as of October
31, 2007, by and among the Cohocton Project Companies for themselves and as
agents on behalf of Steuben County Industrial Development Agency and M.A.
Mortenson Company (“MAM”), as amended by the First Amendment to Balance of
Plant Construction Contract, dated as of December 10, 2007, as amended by
Change Order 1 dated May 5, 2008, Change Order 2 dated May 5, 2008, Change
Order 4 dated March 28, 2008, Change Order 5 dated June 17, 2008, Change Order
6 dated March 28, 2008, Change Oder 8 dated May 23, 2008, Change Order 9 dated May
23, 2008, Change Order 10 dated March 28, 2008, Change Order 11 dated June 19,
2008, Change Order 12 dated May 27, 2008, Change Order 13 dated May 27, 2008,
Change Order 20 dated August 26, 2008, Change Order 21 dated August 26, 2008,
Change Order 23 dated August 8, 2008, Change Order 24 dated August 8, 2008,
Change Order 28 dated October 7, 2008, and Change Order 29 dated October 15,
2008, and Change Order 30 dated December 12, 2008, as further modified by that
Settlement Agreement, dated as of March 5, 2009 by and among the Cohocton
Project Companies and MAM,.


 


13.         Balance of Plant Contract, dated as of April
1, 2008, by and between CPP for itself and as agent on behalf of Steuben County
Industrial Development Agency and MSE Power Systems, Inc as amended by MSE
Change Order 1 dated April 8, 2008 and MSE Change Order 5 dated May 31, 2008.
MSE Change Order 2 dated April 8, 2008, MSE Change Order 4 dated May 15, 2008,
MSE Change Order 5 dated May 31, 2008, MSE Change Order 6 dated June 15, 2008,
MSE Change Order 7 dated June 15, 2008, MSE Change Order 9 dated June 15, 2008,
MSE Change Order 10 rev. 1 dated September 17, 2008, MSE Change Order 11 rev. 1
dated July 9, 2008, MSE Change Order 12 dated June 30, 2008, MSE Change Order
14 rev. 1 dated September 17, 2008, MSE Change Order 15 dated September 17,
2008, MSE Change Order 17 dated September 17, 2008, MSE Change Order 18 dated September
17, 2008, MSE Change Order 19 dated September 22, 2008, MSE Change Order 20
dated September 22, 2008, MSE Change Order 21 dated September 24, 2008, MSE
Change Order 24 dated October 7, 2008.


 


14.         Tract 3


STIC T129026


Fee Owner:   Jerry Thomas Deusenbery
1/3 Interest; Jerry T. Deusenbery and Cheryl L. Deusenbery 1/3 Interest;
Anthony Robert Deusenbery, 1/3 Interest


 


A Lease as evidenced by a
Memorandum of Lease made by Jerry Deusenbery, Anthony Deusenbery and Cheryl
Deusenbery to CPP, dated July 13, 2007 and recorded 


 


8

















 


February 19, 2008 in the
Steuben County Clerk’s Office in Book 2147 of Deeds at page 292.


 


15.         Tract 8


STIC T129032


Fee Owner:  Austin W. Dyckman, Inc.


 


A Lease as evidenced by a
Memorandum of Lease made by Austin W. Dyckman, Inc. to CPP, dated November 24,
2008 and recorded December 12, 2008 in the Steuben County Clerk’s Office in
Book 2212 of Deeds at Page 152, as amended by Memorandum of Lease (Corrective)
dated January 9, 2009 and recorded February 25, 2009 in Book 2225, Page 1, as
further amended by Memorandum of Lease (Corrective) dated March 24, 2009 and
recorded March 31, 2009 in the Steuben County Clerk’s Office in Book 2232 Page 1.


 


16.         Tract 9


STIC T129048


 


Fee Owner:  Richard Edmond & Sara Edmond


 


A Lease as evidenced by a
Memorandum of Lease made by Gerald Moore, Dorothy Moore and Richard Edmond &
Sara Edmond to CPP, dated August 2, 2007 and recorded February 19, 2008 in the Steuben
County Clerk’s Office in Book 2148 of Deeds at Page 110.


 


17.         Tract 10


STIC T129033


Fee Owner:  Paul E. Fairbrother and Roberta L.
Fairbrother


 


A Lease as evidenced by a
Memorandum of Lease made by Paul E. Fairbrother and Roberta L. Fairbrother to CPP
c/o Parent, dated July 24, 2007 and recorded on February 19, 2008 in the
Steuben County Clerk’s Office in Book 2148 of Deeds at page 1 as amended by
Memorandum of Lease (Corrective) recorded on November 13, 2008 in Book 2206 Page
59, as amended by Memorandum of Lease (Corrective) recorded February 25, 2009
in the Steuben County Clerk’s Office in Book 2225, Page 21.


 


18.         Tract 11


STIC T129034


Fee Owner:  Russell A. Ferrell and Susan L. Ferrell


 


A Lease as evidenced by a
Memorandum of Lease made by Mr. Russell Ferrell and Mrs. Susan Ferrell to CPP
c/o Parent, dated July 24, 2007 and recorded on February 19, 2008 in the
Steuben County Clerk’s Office in Book 2147 of Deeds at page 312.


 


19.         Tract 12


STIC T129035


Fee Owner:  Glenn A. Warner (purchased through foreclosure)


 


9

















 


Lease as evidenced by a
Memorandum of Lease made by Ms. Cindy McCormick and Mr. Charles Funk to CPP c/o
Parent, dated April 4, 2007 and recorded on February 19, 2008 in the Steuben
County Clerk’s Office in Book 2148 of Deeds at page 97.


 


20.         Tract 13


STIC T129036


Fee Owner:  Judith Graham


 


Lease as evidenced by a
Memorandum of Lease made by Judith Graham to CPP c/o Parent, dated October 29,
2007 and recorded on August 7, 2008 in the Steuben County Clerk’s Office in
Book 2178 of Deeds at page 279.


 


21.         Tract 14


STIC T129037


Fee Owner:  Bradley C. Harter and Kris S. Harter, doing
business as Harter Brothers Swiss Farms


 


A Lease as evidenced by a
Memorandum of Lease made by Bradley Harter and Kris Harter to CPP c/o Parent,
dated October 26, 2007 and recorded on August 7, 2008 in the Steuben County
Clerk’s Office in Book 2178 of Deeds at page 262, as amended by Memorandum of
Lease (Corrective) dated August 1, 2008 and recorded on February 25, 2009 in
the Steuben County Clerk’s Office in Book 2225 of Deeds at page 45.


 


22.         Tract 15


STIC T129039


Fee Owner:  William F. Holbrook


 


A Lease as evidenced by a
Memorandum of Lease made by William F. Holbrook to CPP c/o Parent, dated August
31, 2007 and recorded on July 22, 2008 in the Steuben County Clerk’s Office in
Book 2176 of Deeds at page 1.


 


23.         Tract 16


STIC T129040


Fee Owner:  Robert W. Jacobs


 


A Lease as evidenced by a
Memorandum of Lease made by Robert Jacobs and Karen Jacobs to CPP c/o Parent,
dated July 31, 2007 and recorded on June 27, 2008 in the Steuben County Clerk’s
Office in Book 2171 of Deeds at page 65.


 


24.         Tract 17


STIC T129041


Fee Owner:  Jan Kastberg


 


A Lease as evidenced by a
Memorandum of Lease made by and between Jan Kastberg, Lessor and CPP, dated August
3, 2007 and recorded on February 19, 2008 in the Steuben County Clerk’s Office
in Book 2148 of Deeds at page 137.


 


10

















 


25.         Tract 18


STIC T129072


Fee Owner:  Lent Hill Dairy Farm, LLC


 


A Lease as evidenced by a
Memorandum of Lease made by Lent Hill Dairy Farm, LLC to CPP, dated August 15,
2007 and recorded November 13, 2008 in the Steuben County Clerk’s Office in
Book 2206 of Deeds at Page 75, as amended by Memorandum of Lease (Corrective),
dated January 17, 2009 and recorded February 25, 2009 in the Steuben County
Clerk’s Office in Book 2225 of Deeds at page 74, as further amended by
Memorandum of Lease (Corrective) dated March 24, 2009 and recorded March 31,
2009 in the Steuben County Clerk’s Office in Book 2231 Page 244.


 


26.         Tract 20A


STIC T129044


Fee Owner:  John Meyer and Joseph Meyer


 


A Lease as evidenced by a
Memorandum of Lease made by Joseph Meyer, Jr. and John Meyer to CPP, c/o
Parent, dated November 7, 2007 and recorded February 27, 2008 in the Steuben
County Clerk’s Office in Book 2149 of Deeds, Page 230.


 


27.         Tract 20B


STIC T129031


Fee Owner:  Joseph Meyer, Joseph Meyer, Jr. and John
Meyer


 


Lease as evidenced by a
Memorandum of Lease made by Joseph Meyer, Joseph Meyer, Jr. and John Meyer to
CPP c/o Parent, dated November 7, 2007 and recorded on August 20, 2008 in the
Steuben County Clerk’s Office in Book 2183 of Deeds at page 43.


 


28.         Tract 21


STIC T129045


Fee Owner:  Phyllis G. Meyer aka Phyllis Meyer


 


A Lease as evidenced by a
Memorandum of Lease made by Phyllis Meyer to CPP c/o Parent, dated November 7,
2007 and recorded on February 27, 2008 in the Steuben County Clerk’s Office in
Book 2149 of Deeds at page 249.


 


29.         Tract 22


STIC T129049


Fee Owner:  John S. Nelson and Patricia F. Nelson


 


A Lease as evidenced by a
Memorandum of Lease made by John Nelson and Patricia Nelson to CPP c/o Parent,
dated October 29, 2007 and recorded on June 25, 2008 in the Steuben County
Clerk’s Office in Book 2170 of Deeds at page 247 as amended by Memorandum of
Lease (Corrective) dated December 26, 2008 and recorded January 14, 2009 in
Book 2217 at Page 329.


 


30.         Tract 23


STIC T129050


Fee Owner:  Paul Preston and Lucille Preston


 


11














 


A Lease as evidenced by a
Memorandum of Lease made by Paul E. Preston and Lucille I. Preston to CPP,
dated June 21, 2007 and recorded on February 19, 2008 in the Steuben County
Clerk’s Office in Book 2148 of Deeds at page 149.


 


31.   Tract 25


STIC T129052


Fee Owner:  Douglas Schwingel and Susan E. Schwingel


 


Lease as evidenced by a
Memorandum of Lease between Douglas L. Schwingel and Susan Schwingel, Lessor
and CPP, c/o Parent, Lessee, dated June 22, 2007 and recorded February 19, 2008
in the Steuben County Clerk’s Office in Liber 2147 of Deeds, Page 324, as
amended by Memorandum of Lease (Corrective), dated September 8, 2008 and
recorded November 3, 2008 in the Steuben County Clerk’s Office in Book 2206 of
Deeds at page 39.


 


32.   Tract 26


STIC T129053


Fee Owner:  Neil R. Sick and Linda J. Sick


 


A Lease as evidenced by a
Memorandum of Lease made by Neil R. Sick and Linda J. Sick to CPP, dated August
15, 2007 and recorded on February 19, 2008 in the Steuben County Clerk’s Office
in Book 2148 of Deeds at page 18.


 


33.   Tract 27


STIC T129054


Fee Owner:  Berta M. Simmons


 


Lease as evidenced by a
Memorandum of Lease between Berta Simmons, Lessor and CPP, c/o Parent, dated June
20, 2007 and recorded on February 19, 2008 in the Steuben County Clerk’s Office
in Book 2148 of Deeds, Page 32.


 


34.   Tract 30


STIC T129056


Fee Owner:  Forrest R. Slayton and Kelly E. Slayton


 


Lease as evidenced by a
Memorandum of Lease made by Forrest Slayton and Kelly Slayton to CPP c/o
Parent, dated August 15, 2007 and recorded February 19, 2008 in the Steuben
County Clerk’s Office in Book 2148 of Deeds, Page 161.


 


35.   Tract 31


STIC T129058


Fee Owner:  County of Steuben


 


A Lease as evidenced by a
Memorandum of Lease made by County of Steuben to CPP, dated November 7, 2008
and recorded December 9, 2008 in the Steuben County Clerk’s Office in Book 2211
of Deeds at page 294.


 


12

















 


36.   Tract 32


STIC T129061


Fee Owner:  Jane C. Towner


 


A Lease has evidenced by
a Memorandum of Lease made by Jane C. Towne to CPP, dated July 31, 2007 and
recorded February 19, 2008 in the Steuben County Clerk’s Office in Book 2148 of
Deeds, Page 47.


 


37.   Tract 34


STIC T129065


Fee Owner:  Tedd R. Wallace


 


A Lease as evidenced by a
Memorandum of Lease made by Tedd R. Wallace to CPP, dated December 17, 2008 and
recorded December 23, 2008 in the Steuben County Clerk’s Office in Book 2215, Page
17.


 


38.   Tract 35


STIC T129066


Fee Owner:  Thomas Walter and Carrie Walter aka Carrie I.
Walter


 


A lease as evidenced by A
Memorandum of Lease between Thomas E. Walter and Carrie I. Walter and CPP,
dated July 26, 2007 and recorded February 19, 2008 in the Steuben County Clerk’s
Office in Liber 2148 of Deeds, Page 61.


 


39.   Tract 36


STIC T129070


Fee Owner:  Maureen D. Wolcott, as surviving spouse


 


A Lease as evidenced by a
Memorandum of Lease made by Maureen Wolcott to CPP c/o Parent, dated August 15,
2007 and recorded on February 19, 2008 in the Steuben County Clerk’s Office in
Book 2149 of Deeds at Page 279, as corrected by Memorandum of Lease dated March
24, 2009 and recorded March 31, 2009 in the Steuben County Clerk’s Office in
Book 2231, Page 229.


 


40.   Tract 37


STIC T129073


Fee Owner:  Roger W. Wolcott


 


A Lease as evidenced by
Memorandum of Lease made by and between Roger Wolcott and CPP, dated June 21,
2007 and recorded on February 19, 2008 in the Steuben County Clerk’s Office in
Book 2148 of Deeds at page 175.


 


41.   Tract 38


STIC T129535


Fee Owner:  Eric Zastawrny


 


A Lease as evidenced by
Memorandum of Lease made by Eric Zastawrny to CPP c/o Parent, dated August 9,
2007 and recorded on February 19, 2008 in the Steuben County Clerk’s Office in
Book 2148 of Deeds at page 73.


 


13

















 


42.   Tract 42


STIC T134500


Fee Owner:  Shirley O’Neil, Suzanne Middleton, Diana
Sheldon and Bruce Fleishman


 


Grant of Easements
made by Shirley O’Neil, Suzanne Middleton, Diana Sheldon and Bruce Fleishman to
CPP II, dated October 9, 2008 and recorded December 18, 2008 in the Steuben
County Clerk’s Office in Book 2213, Page 292.


 


Grant of Easements
made by Shirley O’Neil, Suzanne Middleton, Diana Sheldon to Bruce Fleishman,
dated November 5, 2008 and recorded on December 22, 2008 in the Steuben County
Clerk’s Office in Book 2214, Page 175.


 


43.   Tract 43


STIC T129059


Fee Owner:  Steuben County IDA


 


A Lease as evidenced by a
Memorandum of Lease made by Steuben County IDA to CPP, dated December 1, 2008
and recorded December 22, 2008 in the Steuben County Clerk’s Office in Book
2214, Page 93.


 


44.   Tract 44


STIC T131845


Fee Owner:  CPP


 


Warranty Deed with Lien
Covenant executed by Madison and Paul Realty, Inc. to CPP, dated November 26,
2007 and recorded on January 22, 2008 in the Steuben County Clerk’s Office in
Liber 2141 of Deeds at page 182.


 


45.   Tract 45


STIC T130566


Fee Owner: Roger L.
Bidlack


 


An easement as evidenced
by a Memorandum of Easement Agreement made by Roger L. Bidlack to CPP.


 


46.   Tract 46


Intentionally deleted..


 


47.   Tract 47


STIC T130564


Fee Owner: Ronald Saxton


 


An easement as evidenced
by a Memorandum of Easement Agreement made by Ronald Saxton to CPP.


 


48.   Tract 48


STIC T130568


Fee Owner: William E.
Schumacher


 


14

















 


An easement as evidenced
by a Memorandum of Easement Agreement by William E. Schumacher to CPP.


 


49.   Tract 49


STIC T130567


Fee Owner: Mary E. Sick


 


An easement as evidenced
by a Memorandum of Easement Agreement made by Mary E. Sick to CPP.


 


50.   Tract 50


STIC T


Fee Owner: S & D
Farms, Inc.


 


An easement as evidenced
by a Memorandum of Easement Agreement made by S & D Farms, Inc. to CPP
dated March 10, 2008.


 


51.   Tract 51


STIC T


Fee Owner: Conway K.
Slayton and Sharon Slayton


 


An easement as evidenced
by a Memorandum of Easement Agreement made by Conway K. Slayton and Sharon
Slayton to CPP dated November 27, 2007.


 


52.   Tract 52


STIC T


Fee Owner: Roland C. Drum
and Sara L. Drum


 


An easement as evidenced
by a Memorandum of Easement Agreement made by Roland C. Drum and Sara L. Drum
to CPP.


 


53.   Tract 53


STIC T


Fee Owner: Austin W.
Dyckman, Inc.


 


An easement as evidenced
by a Memorandum of Easement Agreement made by Austin W. Dyckman to CPP,
recorded in the Steuben County Clerk’s Office on February 19, 2008 in Liber
2148 page 207.


 


54.   Tract 54


STIC T


Fee Owner: Paul E.
Fairbrother and Roberta L. Fairbrother


 


An easement as evidenced
by a Memorandum of Easement Agreement made by Paul E. Fairbrother and Roberta
L. Fairbrother to CPP.


 


55.   Tract 55


STIC T


 


15

















 


Fee Owner: Lent Hill
Dairy Farm, LLC


 


An easement as evidenced
by a Memorandum of Easement Agreement made by Lent Hill Dairy Farm, LLC to CPP.


 


56.   Tract 56


STIC T


Fee Owner: Phyllis Meyer


 


An easement as evidenced
by a Memorandum of Easement Agreement made by Phyllis Meyer to CPP.


 


57.   Tract 57


STIC T


Fee Owner: Douglas
Schwingel and Susan Schwingel


 


An easement as evidenced
by a Memorandum of Easement Agreement made by Douglas Schwingel and Susan
Schwingel to CPP recorded in the Steuben County Clerk’s Office on February 19,
2008 in Liber 2148 page 201.


 


58.   Tract 58


STIC T


Fee Owner: Paul White and
Kathie White


 


An easement as evidenced
by a Memorandum of Easement Agreement made by Paul White and Kathie White to
CPP recorded in the Steuben County Clerk’s Office on February 19, 2008 in Liber
2148 page 195.


 


59.   Tract 59


STIC T


Fee Owner: Roger W.
Wolcott and Linda A. Wolcott


 


An easement as evidenced
by a Memorandum of Easement Agreement made by Roger W. Wolcott and Linda A.
Wolcott to CPP.


 


60.   Tract 1


STIC T129064


Fee Owner: Ted E. Walker
and Susan J. Walker


 


A Lease as evidenced by a
Memorandum of Lease made by Ted E. Walker and Susan J. Walker to CPP II c/o
Parent, dated October 23, 2008 and recorded on December 23, 2008 in the Steuben
County Clerk’s Office in Book 2215 of Deeds, Page 1.


 


61.   Tract 2


STIC T129023


Fee Owner:  Glenn M. Cunningham and Diana J. Cunningham


 


16

















 


A Lease as evidenced by a
Memorandum of Lease made by Glenn and Diana Cunningham, Lessors to CPP II c/o
Parent, dated June 22, 2007 and recorded on June 27, 2008 in the Steuben County
Clerk’s Office in Book 2171 of Deeds, Page 57.


 


62.   Tract 4


STIC T129028


Fee Owner:  Gene R. Drum


 


Lease as evidenced by a
Land Lease Agreement made by and between Gene Drum to CPP II dated as of July 12,
2007, as evidenced by a Memorandum of Lease made by Gene Drum to CPP, dated July
12, 2007 and recorded December 22, 2008 in the Steuben County Clerk’s Office in
Book 2214, Page 200.


 


63.   Tract 5


STIC T129029


Fee Owner:  Gene R. Drum and Patricia Drum, husband and
wife


 


A Lease as evidenced by a
Memorandum of Lease made by Gene R. Drum and Patricia Drum to CPP II, dated August
13, 2007 and recorded on February 27, 2008 in the Steuben County Clerk’s Office
in Book 2149 of Deeds at page 265.


 


64.   Tract 6


STIC T129027


Fee Owner:  Thomas McAree, Gene Drum, Arthur Moran, Mark
Hansen, William Jablonka and Todd Lewis as tenants in common


 


Lease as evidenced by a
Land Lease Agreement made by and between Gene Drum with CPP II dated as of July
12, 2007, as evidenced by A Lease as evidenced by a Memorandum of Lease made by
Gene Drum to CPP, dated 15th day of August, 2007 and recorded December 17, 2008
in the Steuben County Clerk’s Office in Book 2213, Page 181.


 


65.   Tract 7


STIC T129030


Fee Owner:  Roland C. Drum and Sara L. Drum


 


Lease as evidenced by a
Memorandum of Lease made by Roland Drum and Sarah Drum to CPP II c/o Parent,
dated August 13, 2007 and recorded on February 27, 2008 in the Steuben County
Clerk’s Office in Book 2149 of Deeds at page 302 as amended by Memorandum of
Lease (Corrective) dated December 15, 2008 and recorded on December 22, 2008 in
Book 2214, Page 187.


 


66.   Tract 18


STIC T129072


Fee Owner:  Lent Hill Dairy Farm, LLC


 


A Lease as evidenced by a
Memorandum of Lease made by Lent Hill Dairy Farm, LLC to CPP, dated August 15,
2007 and recorded November 13, 2008 in the Steuben County 


 


17

















 


Clerk’s Office in Book
2206 of Deeds at Page 137, as amended by Memorandum of Lease (Corrective),
dated December 18, 2008 and recorded December 18, 2008 in Book 2213 at Page 309.


 


67.   Tract 24


STIC T129051


Fee Owner:  Henry M. Schultheiss, Ilean W. Schultheiss
a/k/a Ilean Y. Schultheiss and Edward Schultheiss


 


Land Lease Agreement made
by Henry Schultheiss, Ilean Schultheiss and Edward Schultheiss with CPP II,
dated February 28, 2006, as amended by that Land Lease Amendment dated as of July
30, 2007, as further amended by that Second Land Lease Amendment dated as of September
3, 2008 evidenced by a Memorandum of Lease made by Henry Schultheiss, Ilean
Schultheiss and Edward Schultheiss to CPP, dated December 22, 2008 and recorded
December 22, 2008 in the Steuben County Clerk’s Office in Book 2214, Page 221.


 


68.   Tract 29


STIC T129055


Fee Owner:  David M. Simolo, Daniel J. Kilker and Robert
M. Kilker


 


A Lease as evidenced by a
Memorandum of Lease made by David M. Simolo, Daniel J. Kilker and Robert M.
Kilker to CPP II c/o Parent, dated July 9, 2007 and recorded on February 19,
2008 in the Steuben County Clerk’s Office in Book 2148 of Deeds at page 84.


 


69.   Tract 33


STIC T129062


Fee Owner:  Rick Towner and Christine Towner


 


A Lease as evidenced by a
Memorandum of Lease made by Rick Towner and Christine Towner to CPP II, dated July
31, 2007 and recorded on February 19, 2008 in the Steuben County Clerk’s Office
in Book 2148 of Deeds at page 123.


 


70.   Tract 41


STIC T129534


Fee Owner:  William P. Jablonka


 


Easement as evidenced by
a Grant of Easement made by William P. Jablonka to CPP II, dated September 12,
2008 and recorded December 2, 2008 in the Steuben County Clerk’s Office in Book
2210 of Deeds at Page 144.


 


71.   Tract 42


STIC T134500


Fee Owner:  Shirley O’Neil, Suzanne Middleton, Diana
Sheldon and Bruce Fleishman


 


18

















 


Grant of Easements made
by Shirley O’Neil, Suzanne Middleton, Diana Sheldon and Bruce Fleishman to CPP
II, dated October 9, 2008 and recorded December 18, 2008 in the Steuben County
Clerk’s Office in Book 2213, Page 292.


 


Grant of Easements made
by Shirley O’Neil, Suzanne Middleton, Diana Sheldon to Bruce Fleishman, dated November
5, 2008 and recorded on December 22, 2008 in the Steuben County Clerk’s Office
in Book 2214, Page 175.


 


72.   Tract 43


STIC T129059


Fee Owner:  Steuben County IDA


 


A Lease as evidenced by a
Memorandum of Lease made by Steuben County IDA to CPP II, dated December 1,
2008 and recorded December 22, 2008 in Steuben County Clerk’s Office in Book
2214, Page 117.


 


Stetson
Project


 


1.     Standard Large Generator Interconnection Agreement,
dated as of December 7, 2007, by and among ISO New England Inc., Bangor
Hydro-Electric Company and Stetson Project Company.


 


2.     ISDA Master Agreement, dated
as of June 11, 2008, by and between Stetson Holdings, LLC and Constellation
Energy Commodities Group, Inc., as amended by the Schedule to the 1992 ISDA
Master Agreement, the Credit Support Annex, and the Confirmation, each dated as
of June 11, 2008.


 


3.     Project O&M Agreement, dated as of November 17,
2008, by and between Operator and Stetson Project Company.


 


4.     Contract for the Sale of Power and Generation
Equipment and Related Services (Stetson), dated as of June 4, 2007, by and
between First Wind Acquisition, LLC (f/k/a UPC Wind Acquisition, LLC) and
General Electric Company, as amended by that Scope Change Order Form 01 dated as
of August 14, 2007, as amended by that Scope Change Order Form 02 dated September
7, 2007,  as amended by that Change Order
No. A, dated as of the 8th day of July, 2008, as amended by that External
Change Order No. 3, dated as of the 5th day of August, 2008, as amended by that
External Change Order No. 4, dated as of the 22nd day of July, 2008, and as amended by that
External Change Order No. 4, Revision No. 1, dated as of the 8th day of August,
2008, as amended by that External Change Order No. 5 dated as of the 13th day of July,
2009.


 


5.     Operations Support Agreement, dated June 27,
2008, by and between General Electric International Incorporated and Stetson
Project Company.


 


6.     Consulting and Administrative Services
Agreement, dated as of November 1, 2006, by and between First Wind Energy,
Stetson Project Company, Stetson Wind II, LLC and the other companies party
thereto from time to time.


 


19

















 


7.     Stetson Wind Power Project Construction
Works Contract No. EWPV-07-02, dated December 31, 2007, between Stetson Project
Company and Reed & Reed, Inc (and associated change orders), as amended by
Change Order 1 dated as of September 26, 2007, as amended by Change Order 2
dated as of November 9, 2008, Change Order 3 dated as of November 11, 2008,
Change Order 4 dated as of January 28, 2009


 


8.     Construction Agreement dated as of August
30, 2008 by and between Evergreen Wind Power V, LLC and Cianbro Corporation, as
Contractor, for the Stetson Mountain Substation.


 


9.     Land Lease Agreement, dated October 12,
2006, by and between Lakeville Shores, Inc. and Stetson Project Company, as
amended by that certain First Amendment to Land Lease Agreement, dated March 30,
2007, and as further amended by that certain Second Amendment to Land Lease
Agreement, dated August 17, 2007.


 


10.   Management Services Agreement, dated July
17, 2009, by and between Evergreen Wind Power V, LLC and First Wind Energy,
LLC.


 


Stetson
Transmission Line(1)


 


11.   Stetson Wind Power Project Transmission
Line Contract, effective as of July 18, 2008, by and between Stetson Project
Company and PowerTel Utilities Contractors Limited (“PowerTel”) (and associated
change orders).


 


12.   Warranty Deed, dated as of June 14, 2007,
from Rickey Deloge, Sr. to Stetson Project Company, recorded in the Penobscot
County Registry of Deeds in Book 11012, Page 347.


 


13.   Quitclaim Deed, dated as of March 13,
2008, from Gary A. Fleming and Cynthia Fleming to Stetson Project Company,
recorded in the Penobscot County Registry of Deeds in Book 11330, Page 56.


 


14.   Local Service Agreement, dated January 12,
2009, among ISO New England Inc., Bangor Hydro-Electric Company and Stetson
Project Company.


 


15.   Local Service Agreement, dated December 8,
2008, among ISO New England Inc., Bangor Hydro-Electric Company and Stetson
Project Company.


 


16.   Quitclaim Deed, dated as of October 24,
2007, from H C Haynes, Inc to Stetson Project Company, recorded in the
Penobscot County Registry of Deeds in Book 11226, Page 162.


 






(1)   These transmission documents will be
transferred to the Gen Lead Company in connection with the Stetson Transmission
Line Reorganization and will no longer be Material Project Documents after the
Stetson Transmission Line Reorganization.


 


20

















 


17.   Warranty Deed, dated as of April 10,
2008, from Andrew G. Edwards to Stetson Project Company, recorded in the
Penobscot County Registry of Deeds in Book 11354, Page 291.


 


18.   Quitclaim Deed, dated as of November 6,
2007, from Marjorie White Ghost to Stetson Project Company, recorded in the
Penobscot County Registry of Deeds in Book 11198, Page 46.


 


19.   Quitclaim Deed, dated as of May 14, 2008,
from Robert Harmon, Jr. to Stetson Project Company, recorded in the Penobscot
County Registry of Deeds in Book 11392, Page 109.


 


20.   Quitclaim Deed, dated as of May 22, 2008,
from Huber Timber LLC to Stetson Project Company, recorded in the Penobscot
County Registry of Deeds in Book 11403, Page 237.


 


21.   Warranty Deed, dated as of July 3, 2008,
from J. Robert Hudson to Stetson Project Company, recorded in the Penobscot
County Registry of Deeds in Book 11474, Page 343.


 


22.   Quitclaim Deed, dated as of April 21,
2008, from Lakeville Shores, Inc. to Stetson Project Company, recorded in the
Penobscot County Registry of Deeds in Book 11367, Page 185.


 


23.   Quitclaim Deed, dated as of March 18,
2008, from Thomas E. Linscott and Karen B. Linscott to Stetson Project Company,
recorded in the Penobscot County Registry of Deeds in Book 11329, Page 273.


 


24.   Warranty Deed, dated as of April 28,
2008, from Donald Morin and Elizabeth A. Morin to Stetson Project Company,
recorded in the Penobscot County Registry of Deeds in Book 11379, Page 121.


 


25.   Quitclaim Deed, dated as of May 12, 2008,
from Prentiss & Carlisle Company, Inc., et al., to Stetson Project Company,
recorded in the Penobscot County Registry of Deeds in Book 11424, Page 100.


 


26.   Quitclaim Deed, dated as of May 12, 2008,
from Prentiss & Carlisle Company, Inc., et. al, to Stetson Project Company,
recorded in the Penobscot County Registry of Deeds in Book 11424, Page 116.


 


27.   Quitclaim Deed, dated as of May 7, 2008,
from Prentiss & Carlisle Company, Inc. to Stetson Project Company, recorded
in the Penobscot County Registry of Deeds in Book 11386, Page 8.


 


28.   Quitclaim Deed, dated as of May 12, 2008,
from Prentiss & Carlisle Company, Inc. and McCrillis Timberlands, LLC to
Stetson Project Company, recorded in the Penobscot County Registry of Deeds in
Book 11393, Page 96.


 


21














 


29.   Quitclaim Deed, dated as of October 30,
2004, from Henry D. Provencher to Stetson Project Company, recorded in the
Penobscot County Registry of Deeds in Book 11187, Page 311.


 


30.   Quitclaim Deed, dated as of March 11,
2008, from Jamie Lee Steeves to Stetson Project Company, recorded in the
Penobscot County Registry of Deeds in Book 11320, Page 125.


 


31.   Quitclaim Deed, dated as of March 11,
2008, from Donald L. Whitney and Ida M. Whitney to Stetson Project Company,
recorded in the Penobscot County Registry of Deeds in Book 11322. Page 275, and
corrected by that certain Corrective Quitclaim Deed, dated as of June 24, 2008
and recorded in the Penobscot County Registry of Deeds in Book 11444, Page 110.


 


32.   Quitclaim Deed, dated as of March 26,
2008, from Harlan H. Whitney and Pauline D. Whitney to Stetson Project Company,
recorded in the Penobscot County Registry of Deeds in Book 11338, Page 154.


 


33.   Quitclaim Deed, dated as of June 24,
2008, from Harlan H. Whitney and Pauline D. Whitney to Stetson Project Company,
recorded in the Penobscot County Registry of Deeds in Book 11444, Page 114.


 


34.   Quitclaim Deed, dated as of March 22,
2008, from John R. Whitney and Deborah M. Whitney to Stetson Project Company,
recorded in the Penobscot County Registry of Deeds in Book 11332, Page 340.


 


35.   Quitclaim Deed, dated as of June 24,
2008, from Donald L. Whitney and Ida M. Whitney to Stetson Project Company,
recorded in the Penobscot County Registry of Deeds in Book 11444, Page 112.


 


36.   Quitclaim Deed, dated as of May 9, 2008,
from Lakeville Shores, Inc. to Stetson Project Company, recorded in the
Penobscot County Registry of Deeds in Book 11392, Page 76.


 


37.   Easement, dated as of March 6, 2007, by
Joanne Adams for the benefit of Stetson Project Company, recorded in the
Penobscot County Registry of Deeds in Book 11317, Page 64.


 


38.   Easement, dated as of April 17, 2008, by
Charles T. Alferes and Ethel L. Alferes, Trustees of the Ethel L. Alferes 1998
Trust, for the benefit of Stetson Project Company, recorded in the Penobscot
County Registry of Deeds in Book 11367, Page 205.


 


39.   Deed of Easement, dated as of January 17,
2008, by Aroostook & Bangor Resources for the benefit of Stetson Project
Company, recorded in the Penobscot County Registry of Deeds in Book 11275, Page
109.


 


40.   Generator Lead Easement Agreement and
Right of First Refusal, dated as of October 10, 2008, by Bangor Hydro-Electric
Company for the benefit of Stetson Project Company, recorded in the Penobscot
County Registry of Deeds in Book 11563, Page 77.


 


22

















 


41.   Easement, dated as of March 20, 2008, by
Eileen Marie Beaulieu for the benefit of Stetson Project Company, recorded in
the Penobscot County Registry of Deeds in Book 11332, Page 334.


 


42.   Easement, dated as of March 26, 2008, by
Russell W. Brown, Sr. and Catherine Brown for the benefit of Stetson Project
Company, recorded in the Penobscot County Registry of Deeds in Book 11362, Page
184.


 


43.   Evergreen Easement, dated as of February 22,
2008, by C.N. Brown Company for the benefit of Stetson Project Company,
recorded in the Penobscot County Registry of Deeds in Book 11301, Page 268, and
assigned in part pursuant to that certain Assignment of Easement Rights, dated
as of March 14, 2008, by Stetson Project Company to Northern Timbers, Inc.,
recorded in the Penobscot County Registry of Deeds in Book 11338, Page 149.


 


44.   Easement, dated as of February 28, 2008,
by Lucy Campbell, Susan Fort, David B. Campbell, Sheila Jean, Alan Bruce
Campbell, and Linda Lucian for the benefit of Stetson Project Company, recorded
in the Penobscot County Registry of Deeds in Book 11333, Page 117.


 


45.   Easement, dated as of January 15, 2008,
by Susan Claerbout and Kenneth Claerbout for the benefit of Stetson Project
Company, recorded in the Penobscot County Registry of Deeds in Book 11284, Page
312.


 


46.   Easement, dated as of August 28, 2008, by
Louis M. Coiro and Patricia R. Joyce Coiro for the benefit of Stetson Project
Company, recorded in the Penobscot County Registry of Deeds in Book 11531, Page
217.


 


47.   Easement rights reserved in that certain
Quitclaim Deed, dated as of March 24, 2008, from Stetson Project Company, to
Louis M. Coiro and Patricia R. Joyce Coiro, recorded in the Penobscot County
Registry of Deeds in Book 11531, Page 220.


 


48.   Easement, dated as of May 2, 2008, by
Richard A. Delaite and David W. Delaite for the benefit of Stetson Project
Company, recorded in the Penobscot County Registry of Deeds in Book 11384, Page
320.


 


49.   Easement, dated as of July 31, 2008, by
John A. Dudley, III and Debra Dudley for the benefit of Stetson Project
Company, recorded in the Penobscot County Registry of Deeds in Book 11486, Page
2.


 


50.   Easement, dated as of February 15, 2008,
by Gardner Land Company, Inc. for the benefit of Stetson Project Company,
recorded in the Penobscot County Registry of Deeds in Book 11329, Page 282.


 


51.   Easement, dated April 15, 2008, by The
Gerrity Family Limited Partnership for the benefit of Stetson Project Company,
recorded in the Penobscot County Registry of Deeds in Book 11360, Page 172.


 


23

















 


52.   Easement, dated as of March 21, 2008, by
Dennis Gould and Robert Yorks for the benefit of Stetson Project Company,
recorded in the Penobscot County Registry of Deeds in Book 11332, Page 337.


 


53.   Easement, dated as of June 24, 2008, by
John Hagemeyer and Sylvia Hagemeyer for the benefit of Stetson Project Company,
recorded in the Penobscot County Registry of Deeds in Book 11444, Page 105.


 


54.   Easement, dated as of April 4, 2008, by
Loren A. Hale and Joyce M. Hale for the benefit of Stetson Project Company,
recorded in the Penobscot County Registry of Deeds in Book 11351, Page 117.


 


55.   Easement, dated as of May 9, 2008, by
Haynes Timberland, Inc. for the benefit of Stetson Project Company, recorded in
the Penobscot County Registry of Deeds in Book 11392, Page 94.


 


56.   Easement, dated as of May 9, 2008, by
Haynes Timberland, Inc. for the benefit of Stetson Project Company, recorded in
the Penobscot County Registry of Deeds in Book 11392, Page 86.


 


57.   Easement, dated as of May 9, 2008, by
Haynes Timberland, Inc. for the benefit of Stetson Project Company, recorded in
the Penobscot County Registry of Deeds in Book 11392, Page 90.


 


58.   Easement, dated as of May 9, 2008, by
Herbert C. Haynes, Jr. and Ginger E. Maxwell, as Personal Representatives of
the Estate of Herbert C. Haynes, for the benefit of Stetson Project Company,
recorded in the Penobscot County Registry of Deeds in Book 11392, Page 82.


 


59.   Easement, dated as of April 21, 2008, by
Herbert C. Haynes, Jr. for the benefit of Stetson Project Company, recorded in
the Penobscot County Registry of Deeds in Book 11367, Page 201.


 


60.   Easement, dated as of May 9, 2008, by H.
C. Haynes, Inc. for the benefit of Stetson Project Company, recorded in the
Penobscot County Register of Deeds in Book 11392, Page 72.


 


61.   Easement, dated as of February 21, 2008,
by Thomas B. Kates, Jr. and Walter W. Hughes, Sr. for the benefit of Stetson
Project Company, recorded in the Penobscot County Registry of Deeds in Book
11301, Page 261.


 


62.   Easement, undated, by John M. Kyler, II
and Joan E. H. Kyler for the benefit of Stetson Project Company, recorded on July
1, 2008 in the Penobscot County Registry of Deeds in Book 11450, Page 21.


 


63.   Easement, dated as of April 21, 2008, by
Lakeville Shores, Inc. for the benefit of Stetson Project Company, recorded in
the Penobscot County Registry of Deeds in Book 11367, Page 187, and assigned in
part pursuant to that certain Crossing Easement Agreement, 


 


24

















 


dated
as of October 10, 2008, by and between Stetson Project Company and Bangor
Hydro-Electric Company, recorded in the Penobscot County Registry of Deeds in
Book 11563, Page 59.


 


64.   Easement, dated as of May 9, 2008, by
Lakeville Shores, Inc. for the benefit of Stetson Project Company, recorded in
the Penobscot County Registry of Deeds in Book 11392, Page 68.


 


65.   Easement, dated as of April 21, 2008, by
Lakeville Shores, Inc. for the benefit of Stetson Project Company, recorded in
the Penobscot County Registry of Deeds in Book 11367, Page 191.


 


66.   Easement, dated as of April 21, 2008, by
Lakeville Shores, Inc. for the benefit of Stetson Project Company, recorded in
the Penobscot County Registry of Deeds in Book 11367, Page 196.


 


67.   Easement dated as of June 12,
2009 between Lakeville Shores, Inc. and Evergreen Wind Power V, LLC, recorded
in the Washington County Registry of Deeds in Book 3543, Page 223.


 


68.   Transmission Line Easement Deed, dated as
of October 2, 2008, by Maine Electric Power Company, Inc. for the benefit of
Stetson Project Company, recorded in the Penobscot County Registry of Deeds in
Book 11553, Page 18.


 


69.   Quitclaim Deed Without Covenant, dated as
of September 19, 2008, by the State of Maine Department of Inland Fisheries and
Wildlife for the benefit of Stetson Project Company, recorded in the Penobscot
County Registry of Deeds in Book 11537, Page 290.


 


70.   Easement, dated as of May 9, 2008, by
Ginger Maxwell for the benefit of Stetson Project Company, recorded in the
Penobscot County Registry of Deeds in Book 11392, Page 78.


 


71.   Easement, dated as of March 4, 2008, by
Clayton J. McCarthy for the benefit of Stetson Project Company, recorded in the
Penobscot County Registry of Deeds in Book 11317, Page 56.


 


72.   Easement, dated as of March 4, 2008, by
Clayton J. McCarthy for the benefit of Stetson Project Company, recorded in the
Penobscot County Registry of Deeds in Book 11317, Page 51.


 


73.   Easement, dated as of March 4, 2008, by
Hayden P. McCarthy for the benefit of Stetson Project Company, recorded in the
Penobscot County Registry of Deeds in Book 11317, Page 60, and corrected by
that certain Corrective Easement, dated as of June 26, 2008 and recorded in the
Penobscot County Registry of Deeds in Book 11450, Page 2.


 


74.   Easement, dated as of June 20, 2008, by
Naturals Rod & Gun Club for the benefit of Stetson Project Company,
recorded in the Penobscot County Registry of Deeds in Book 11450, Page 6.


 


25

















 


75.   Easement, dated as of March 6, 2008, by
Northern Timbers, Inc. for the benefit of Stetson Project Company, recorded in
the Penobscot County Registry of Deeds in Book 11338, Page 146.


 


76.   Easement, dated as of April 4, 2008, by
John Osgood and Susan Osgood for the benefit of Stetson Project Company,
recorded in the Penobscot County Registry of Deeds in Book 11354, Page 297.


 


77.   Easement, dated as of February 21, 2008,
by Delia M. Parker for the benefit of Stetson Project Company, recorded in the
Penobscot County Registry of Deeds in Book 11301, Page 264.


 


78.   Easement Deed and Agreement, undated, by
Penobscot Forest LLC for the benefit of Stetson Project Company, recorded on July
23, 2008 in the Penobscot County Registry of Deeds in Book 11473, Page 276.


 


79.   Easement, dated as of May 12, 2008, by
Prentiss & Carlisle Company, Inc. and McCrillis Timberlands, LLC for the
benefit of Stetson Project Company, recorded in the Penobscot County Registry
of Deeds in Book 11392, Page 103.


 


80.   Easement, dated as of March 28, 2008, by
Elaine Reardon for the benefit of Stetson Project Company, recorded in the
Penobscot County Registry of Deeds in Book 11360, Page 181.


 


81.   Easement, dated as of February 28, 2008,
by Albert S. Ring and Linda M. Ring for the benefit of Stetson Project Company,
recorded in the Penobscot County Registry of Deeds in Book 11348, Page 235.


 


82.   Easement, dated as of March 2, 2008, by
Edward F. Sargent, Jr. for the benefit of Stetson Project Company, recorded in
the Penobscot County Registry of Deeds in Book 11348, Page 239.


 


83.   Easement, dated as of March 14, 2008, by
Royl M. Schoonover and Vanessa V. Schoonover for the benefit of Stetson Project
Company, recorded in the Penobscot County Registry of Deeds in Book 11327, Page
239.


 


84.   Easement, dated as of March 26, 2008, by
Shepard V. Sloane, as Trustee of the Jane Vaughn B. Stuart Trust created January
19, 1990 and as Trustee u/w/o Dr. W. Sterry Branning f/b/o Jane Vaughn B.
Stuart, for the benefit of Stetson Project Company, recorded in the Penobscot
County Registry of Deeds in Book 11317, Page 46.


 


85.   Easement, dated as of March 10, 2008, by
Junior L. Smith and Christine C. Goldsmith for the benefit of Stetson Project
Company, recorded in the Penobscot County Registry of Deeds in Book 11322, Page
277.


 


86.   Easement, dated as of May 30, 2008, by
Edwin Tash, Sr., et al. for the benefit of Stetson Project Company, recorded in
the Penobscot County Registry of Deeds in Book 11418, Page 84.


 


26

















 


87.   Easement, dated as of March 13, 2008, by
Roscoe Tash and Marlene Tash for the benefit of Stetson Project Company,
recorded in the Penobscot County Registry of Deeds in Book 11327, Page 236.


 


88.   Easement, dated as of March 11, 2008, by
Bion Tolman for the benefit of Stetson Project Company, recorded in the
Penobscot County Registry of Deeds in Book 11322, Page 280.


 


89.   Easement, dated as of March 18, 2008, by
Kevin R. Tozier for the benefit of Stetson Project Company, recorded in the
Penobscot County Registry of Deeds in Book 11329, Page 278.


 


90.   Easement, dated as of August 2, 2007, by
Elgin H. Turner for the benefit of Stetson Project Company, recorded in the
Penobscot County Registry of Deeds in Book 11140, Page 1.


 


91.   Easement, dated as of June 10, 2008, by
Jeffrey B. Vicaire and Rhonda J. Vicaire for the benefit of Stetson Project
Company, recorded in the Penobscot County Registry of Deeds in Book 11426, Page
317.


 


92.   Easement, dated as of March 6, 2008, by
Melvin L. Vicaire and Lynn M. Vicaire for the benefit of Stetson Project
Company, recorded in the Penobscot County Registry of Deeds in Book 11317, Page
68.


 


93.   Easement, dated as of February 25, 2008,
by Edward Whitney, III, Anne-Marie B. Whitney, Scott E. Whitney and Mark J.
Whitney for the benefit of Stetson Project Company, recorded in the Penobscot
County Registry of Deeds in Book 11329, Page 275.


 


94.   Easement, dated as of February 25, 2008,
by William Ziehl and Rhonda Ziehl for the benefit of Stetson Project Company,
recorded in the Penobscot County Registry of Deeds in Book 11311, Page 83.


 


95.   Easement for Right-of-Way Access Road,
dated as of May 2, 2008, by Richard A. Delaite and David W. Delaite for the
benefit of Stetson Project Company, recorded in the Penobscot County Register
of Deeds in Book 11384, Page 323.


 


96.   Easement dated
as of July 16, 2008 between Evergreen Wind Power V, LLC and John R. Whitney and
recorded in the Penobscot County Registry of Deeds in Book 11467, Page 254.


 


97.   Easement Deed, dated as of May 12, 2008,
by Prentiss & Carlisle Company, Inc. and McCrillis Timberlands, LLC for the
benefit of Stetson Project Company, recorded in the Penobscot County Register
of Deeds in Book 11392, Page 98.


 


98.   Easement, dated as of July 15, 2008, by
John E. Osgood and Susan Osgood for the benefit of Stetson Project Company,
recorded in the Penobscot County Registry of Deeds in Book 11465, Page 80.


 


27

















 


99.   Overhead Wire Agreement, dated as of May 15,
2008, by and between Stetson Project Company, and Maine Central Railroad
Company, recorded in the Penobscot County Registry of Deeds in Book 11414, Page
332.


 


100. Overhead Wire Agreement, dated as of May 1,
2008, by and between Stetson Project Company, and Eastern Maine Railway
Company, recorded in the Penobscot County Registry of Deeds in Book 11478, Page
169, and evidenced by that certain Memorandum of Overhead Wire Agreement, dated
as of May 1, 2008.


 


101. Overhead Wire Agreement, dated as of May 1,
2008, by and between Stetson Project Company, and Eastern Maine Railway,
recorded in the Penobscot County Registry of Deeds in Book 11478, Page 166, and
evidenced by that certain Memorandum of Overhead Wire Agreement, dated as of May
1, 2008.


 


102. Crossing Agreement, dated as of June 6,
2008, by and between Stetson Project Company, and Eastern Maine Electric
Cooperative, Inc., recorded in the Penobscot County Registry of Deeds in Book
11420, Page 198.


 


103. Transmission Line Crossing Area Consent
and Agreement (Woodville — Line 84), dated as of October 10, 2008, by and
between Stetson Project Company, and Bangor Hydro-Electric Company, recorded in
the Penobscot County Registry of Deeds in Book 11563, Page 37.


 


104. Transmission Line Crossing Area Consent and
Agreement (Chester — Line 86), dated as of October 10, 2008, by and between
Stetson Project Company, and Bangor Hydro-Electric Company, recorded in the
Penobscot County Registry of Deeds in Book 11563, Page 41.


 


105. Assignment and Assumption of Property
Rights Agreement, dated as of June 6, 2008, by and between Stetson Project
Company, and Eastern Maine Electric Cooperative, Inc., recorded in the
Penobscot County Registry of Deeds in Book 11420, Page 179.


 


28

















 


Schedule 3.1(e)


Major Project Indebtedness
Documents for Cohocton Project and Stetson Project


 


Agreement for Purchase of Membership Interests in UPC
New York Wind 2, LLC, dated as of January 31, 2008, between Lehman First Wind
Holdings, LLC and New York Wind III LLC, and the Amended and Restated Limited
Liability Agreement of New York Wind II, LLC, dated as of August 18, 2008.


 


Cohocton Project


 


Financing Agreement,
dated as of March 30, 2009, by and among the Cohocton Holding Company, HSHN, as
arranger, administrative agent and security agent, Norddeutsche Landesbank
Girozentrale, New York Branch, as arranger and the lenders parties thereto and
the “Collateral Documents” as defined therein.


 


Stetson Project


 


Financing Agreement,
dated as of July 17, 2009, by and among Evergreen Wind Power V, LLC, HSHN and
the lenders parties thereto and the “Collateral Documents” as defined therein.


 


29

















 


Schedule 3.2(d)


Steel Winds Material Project
Documents


 


1.     Power Purchase Agreement, dated as of July 21, 2006,
by and between Constellation NewEnergy, Inc., assigned to Constellation Energy
Commodities Group, Inc. pursuant to that certain Assignment of Agreement
effective as of August 1, 2008, and Steel Winds Project LLC, assigned
to Niagara Wind Power, LLC pursuant to that certain Irrevocable Option to
Purchase dated as of September 1, 2006 between Steel Winds Project LLC, New
York Wind, LLC (pka UPC New York Wind, LLC), Steel Winds LLC and Niagara Wind
Power, LLC, and exercise thereof by written notice on June 1, 2007, as amended
by that certain Amendment to Power Purchase Agreement, dated as of April 30,
2008.


 


2.     Guarantee Agreement dated as of July 26, 2006, by and
between Constellation NewEnergy, Inc., as Guarantee, assigned to Constellation
Energy Commodities Group, Inc. pursuant to that certain Assignment of Agreement
effective as of August 1, 2008, and Steel Winds Project, LLC, as Guarantor,
assigned to Niagara Wind Power, LLC pursuant to that certain Irrevocable Option
to Purchase dated as of September 1, 2006 between Steel Winds Project LLC, New
York Wind, LLC (pka UPC New York Wind, LLC), Steel Winds LLC and Niagara Wind
Power, LLC, and exercise thereof by written notice on June 1, 2007.


 


3.     Project O&M Agreement, dated as of September 1,
2006, by and between UPC New York Wind O&M, LLC, assigned to First Wind
O&M, LLC (pka UPC Wind O&M, LLC) pursuant to that certain Assignment of
Project O&M Agreement dated as of October 4, 2006, and Steel Winds Project,
, assigned to Niagara Wind Power, LLC pursuant to that certain Irrevocable
Option to Purchase dated as of September 1, 2006 between Steel Winds Project
LLC, New York Wind, LLC (pka UPC New York Wind, LLC), Steel Winds LLC and
Niagara Wind Power, LLC, and exercise thereof by written notice on June 1,
2007.


 


4.     Small Generator Interconnection Agreement, dated as of
2006, by and between Niagara Mohawk Power Corporation (d/b/a/ National Grid)
and Steel Winds LLC, assigned to Steel Winds Project, LLC by that certain
Assignment and Assumption Agreement, dated as of November 17, 2006, as further
assigned to Niagara Wind Power, LLC pursuant to that certain Irrevocable Option
to Purchase dated as of September 1, 2006 between Steel Winds Project LLC, New
York Wind, LLC (pka UPC New York Wind, LLC), Steel Winds LLC and Niagara Wind
Power, LLC, and exercise thereof by written notice on June 1, 2007.


 


5.     Balance of Plant Contract, dated as of September 1,
2006, by and between, Steel Winds Projct, LLC, assigned to Niagara Wind Power,
LLC pursuant to that certain Irrevocable Option to Purchase dated as of September
1, 2006 between Steel Winds Project LLC, New York Wind, LLC (pka UPC New York
Wind, LLC), Steel Winds LLC and Niagara Wind Power, LLC, and exercise thereof
by written notice on June 1, 2007 and Tennessee Valley Infrastructure Group, Inc.


 


30

















 


6.     Warranty Agreement, dated as of July 24, 2006, by and
between First Wind Acquisition II, LLC (pka UPC Wind Acquisition II, LLC).
assigned to Steel Winds Project, LLC by that certain Assignment and Assumption
Agreement, dated as of September 1, 2006, as further assigned to Niagara Wind
Power, LLC pursuant to that certain Irrevocable Option to Purchase dated as of September
1, 2006 between Steel Winds Project LLC, New York Wind, LLC (pka UPC New York
Wind, LLC), Steel Winds LLC and Niagara Wind Power, LLC, and exercise thereof
by written notice on June 1, 2007,and Clipper Turbine Works, as amended by that
certain Amendment No. 1 to Warranty Agreement, dated as of December 31, 2007,
as amended by that certain Omnibus Agreement, dated as of December 30, 2008.


 


7.     Turbine Operation, Maintenance and Service Agreement,
dated as of July 24, 2006, by and between First Wind O&M, LLC and Clipper
Fleet, as amended by that certain Amendment No. 1 to Turbine Operation,
Maintenance and Service Agreement, dated as of December 31, 2007, by and
between Clipper Fleet and Operator.


 


8.     Commodity Swap Confirmation, dated as of September 20,
2006, by and between Niagara Wind Power, LLC and Morgan Stanley Capital Group, Inc.


 


9.     Administrative Services Agreement, dated as of September
1, 2006, by and between Steel Winds Project LLC, as Owner and First Wind
Energy, LLC (pka UPC Wind Management, LLC), assigned to Niagara Wind Power, LLC
pursuant to that certain Irrevocable Option to Purchase dated as of September 1,
2006 between Steel Winds Project LLC, New York Wind, LLC (pka UPC New York
Wind, LLC), Steel Winds LLC and Niagara Wind Power, LLC, and exercise thereof by
written notice on June 1, 2007.


 


10.   Substation Cost Sharing Agreement dated as of May 4,
2007, by and between Steel Winds Project LLC, as Tenant, assigned to Niagara
Wind Power, LLC pursuant to that certain Irrevocable Option to Purchase dated
as of September 1, 2006 between Steel Winds Project LLC, New York Wind, LLC
(pka UPC New York Wind, LLC), Steel Winds LLC and Niagara Wind Power, LLC, and
exercise thereof by written notice on June 1, 2007, and Steel Winds LLC, as
Landlord.


 


11.   Sublease Agreement dated as of May 19, 2008 between BQ
Energy, LLC and Niagara Wind Power, LLC.


 


12.   Substation Lease Agreement dated as of May 19, 2008,
between Steel Winds LLC and Niagara Wind Power, LLC.


 


31

















 


Schedule 3.3(f)


Stetson II Material Project
Documents


 


1.     Stetson II Wind Power Project Construction Contract,
dated as of September 30, 2009, between Stetson II Project Company and Reed &
Reed, Inc., as modified by that certain Limited Notice to Proceed, dated as of September
30, 2009, and as further modified by that certain Second Limited Notice to
Proceed and Amendment to Contract, dated as of November 24, 2009.


 


2.     Power Purchase Agreement, dated as of September
29, 2009, by and between Stetson II Project Company and President and Fellows
of Harvard College.


 


3.     Contract for the Sale of Power Generation
Equipment and Related Services, dated June 27, 2006, as amended by that UPC
Notice No. 2007-GE-J3XU5-01, dated June 29, 2007, as amended by that External
Change Order (ECO) No. 2, dated November 20, 2007, as amended by Amendment No. 1
to the Contract for the Sale of Power Generation Equipment and Related
Services, dated November 27, 2007, as amended by External Change Order (ECO) No.
3, dated May 12, 2008, as amended by External Change Order (ECO) No. 4, dated September
17, 2008, as amended by Amendment No. 2 to the Contract for the Sale of Power
Generation Equipment and Related Services, dated February 20, 2009, as amended
by External Change Order (ECO) No. 5, dated June 1, 2009, as assigned to the
Stetson II Project Company, pursuant to that certain Assignment and Assumption
Agreement, dated as of the Stetson II Effective Date.


 


4.     Local Service Agreement between Bangor Hydro-Electric
Company, ISO New England, Inc. and Stetson II Project Company, dated as of June
26, 2009 for long term Non-Firm Local Point-to-Point Transmission Service.


 


5.     Operations Support Agreement, dated as of June 27,
2008, between General Electric International Incorporated, as operator, and
Stetson I Project Company, as owner.


 


6.     Project O&M Agreement, dated as of December 18,
2009, by and between Stetson II Project Company and Operator.


 


7.     Shared Facilities Agreement, by and between Stetson I
Project Company and Stetson II Project Company, dated as of the Stetson II
Effective Date.


 


8.     Equipment Purchase Agreement, dated as of April 29,
2009, by and between First Wind Construction, LLC, as Buyer, and Waukesha
Electric, as Seller, and assigned to Stetson II Project Company, pursuant to
that certain Assignment and Assumption Agreement, dated as of the Stetson II
Effective Date, by and between First Wind Construction, LLC and Stetson II
Project Company.


 


9.     Management Services Agreement, dated as of December 18,
2009, by and between Stetson II Project Company and First Wind Energy, LLC.


 


10.   Line Loss Allocation Letter Agreement,
dated February 2, 2009, entered into by Stetson I Project Company, Stetson II
Project Company and Evergreen Wind Power III, LLC.


 


32

















 


11.   Standard Large Generator Interconnection
Agreement, dated August 14, 2009 and effective October 1, 2009, by and between
Stetson II Project Company, Evergreen Gen Lead, LLC, ISO New England, Inc. and
Bangor Hydro-Electric Company.


 


12.   Amended and Restated Land Lease
Agreement, dated December 26, 2008, by and between Lakeville Shores, Inc. and
Stetson II Project Company, a memorandum of which was recorded in the
Washington County Registry of Deeds in Book 3482, Page 141 on December 30,
2008.


 


13.   First Amendment to Amended and Restated
Land Lease Agreement, by and between Lakeville Shores, Inc. and Stetson II
Project Company, recorded in the Washington County Registry of Deeds in Book
3543, Page 234.


 


14.   Grant of Easements, Lakeville Shores, Inc.
to Stetson II Project Company recorded at the Washington County Registry of
Deeds in Book 3543, Page 249.


 


33

















 


Schedule 5.2 


Consents, Authorizations, Filings and Notices


 


Consents required from
HSHN in connection with the HSHN Amendments.


 


34

















 


Schedule 5.4


Locations of Principal Place of Business


 


	
  CSSW Holdings, LLC*

  
	
  c/o First Wind Energy,
  LLC

  
	
  179 Lincoln Street,
  Suite 500

  
	
  Boston, MA 02111

  
	
   

  
	
  CSSW, LLC*

  
	
  c/o First Wind Energy,
  LLC

  
	
  179 Lincoln Street,
  Suite 500

  
	
  Boston, MA 02111

  
	
   

  
	
  New York Wind III, LLC*

  
	
  c/o First Wind Energy,
  LLC

  
	
  179 Lincoln Street,
  Suite 500

  
	
  Boston, MA 02111

  
	
   

  
	
  New York Wind II, LLC*

  
	
  c/o First Wind Energy,
  LLC

  
	
  179 Lincoln Street,
  Suite 500

  
	
  Boston, MA 02111

  
	
   

  
	
  CSSW Cohoton Holdings,
  LLC*

  
	
  c/o First Wind Energy,
  LLC

  
	
  179 Lincoln Street,
  Suite 500

  
	
  Boston, MA 02111

  
	
   

  
	
  New York Wind, LLC*

  
	
  c/o First Wind Energy,
  LLC

  
	
  179 Lincoln Street,
  Suite 500

  
	
  Boston, MA 02111

  
	
   

  
	
  Canandaigua Power Partners,
  LLC*

  
	
  c/o First Wind Energy,
  LLC

  
	
  179 Lincoln Street,
  Suite 500

  
	
  Boston, MA 02111

  
	
   

  
	
  Canandaigua Power
  Partners II, LLC*

  
	
  c/o First Wind Energy,
  LLC

  
	
  179 Lincoln Street,
  Suite 500

  
	
  Boston, MA 02111

  



 






*      Previous place of business
during the last six (6) months (including as of the Initial Closing Date and
the Subsequent Closing Date): 85 Wells Ave., Suite 305, Newton, MA 02459.


 


35

















 


	
  Niagara Wind Power, LLC*

  
	
  c/o First Wind Energy,
  LLC

  
	
  179 Lincoln Street,
  Suite 500

  
	
  Boston, MA 02111

  
	
   

  
	
  CSSW Stetson Holdings,
  LLC

  
	
  c/o First Wind Energy,
  LLC

  
	
  179 Lincoln Street,
  Suite 500

  
	
  Boston, MA 02111

  
	
   

  
	
  Stetson Holdings, LLC*

  
	
  c/o First Wind Energy,
  LLC

  
	
  179 Lincoln Street,
  Suite 500

  
	
  Boston, MA 02111

  
	
   

  
	
  Evergreen Wind Power V,
  LLC*

  
	
  c/o First Wind Energy,
  LLC

  
	
  179 Lincoln Street,
  Suite 500

  
	
  Boston, MA 02111

  
	
   

  
	
  Stetson Wind II, LLC*

  
	
  c/o First Wind Energy,
  LLC

  
	
  179 Lincoln Street,
  Suite 500

  
	
  Boston, MA 02111

  



 


36














 


Schedule 5.5 


Subsidiaries


 


After
Initial Closing


 


	
  Name

  	
   

  	
  Jurisdiction

  of

  Organization

  	
   

  	
  Owner of Equity Interests

  	
   

  	
  Percentage of Membership

  Interest

  
	
  CSSW,
  LLC

  	
   

  	
  DE

  	
   

  	
  CSSW
  Holdings, LLC

  	
   

  	
  100%

  
	
  New
  York Wind III, LLC

  	
   

  	
  DE

  	
   

  	
  CSSW,
  LLC

  	
   

  	
  100%

  
	
  New
  York Wind II, LLC

  	
   

  	
  DE

  	
   

  	
  New
  York Wind III, LLC

  	
   

  	
  75%
  (Class A Membership Interest)

  
	
   

  	
   

  	
   

  	
   

  	
  Lehman
  First Wind Holdings, LLC

  	
   

  	
  25%
  (Class B Membership Interest)

  
	
  New
  York Wind, LLC*

  	
   

  	
  DE

  	
   

  	
  New
  York Wind II, LLC

  	
   

  	
  100%

  
	
  Canandaigua
  Power Partners, LLC*

  	
   

  	
  DE

  	
   

  	
  New
  York Wind, LLC

  	
   

  	
  100%

  
	
  Canandaigua
  Power Partners II, LLC*

  	
   

  	
  DE

  	
   

  	
  New
  York Wind, LLC

  	
   

  	
  100%

  
	
  Niagara
  Wind Power, LLC

  	
   

  	
  DE

  	
   

  	
  New
  York Wind II, LLC

  	
   

  	
  100%(2)

  
	
  Stetson
  Holdings, LLC

  	
   

  	
  DE

  	
   

  	
  CSSW,
  LLC

  	
   

  	
  100%

  
	
  Evergreen
  Wind Power V, LLC

  	
   

  	
  DE

  	
   

  	
  Stetson
  Holdings, LLC

  	
   

  	
  100%

  



 


After
Subsequent Closing


 


	
  Name

  	
   

  	
  Jurisdiction

  of

  Organization

  	
   

  	
  Owner of Equity Interests

  	
   

  	
  Percentage of Membership

  Interest

  
	
  CSSW,
  LLC

  	
   

  	
  DE

  	
   

  	
  CSSW
  Holdings, LLC

  	
   

  	
  100%

  
	
  New
  York Wind III, LLC

  	
   

  	
  DE

  	
   

  	
  CSSW,
  LLC

  	
   

  	
  100%

  
	
  New
  York Wind II, LLC

  	
   

  	
  DE

  	
   

  	
  New
  York Wind III, LLC

  	
   

  	
  100%

  
	
  CSSW
  Cohocton Holdings, LLC

  	
   

  	
  DE

  	
   

  	
  CSSW,
  LLC

  	
   

  	
  100%

  
	
  New
  York Wind, LLC

  	
   

  	
  DE

  	
   

  	
  CSSW
  Cohocton Holdings, LLC

  	
   

  	
  100%

  
	
  Canandaigua
  Power Partners, LLC

  	
   

  	
  DE

  	
   

  	
  New
  York Wind, LLC

  	
   

  	
  100%

  
	
  Canandaigua
  Power Partners II, LLC

  	
   

  	
  DE

  	
   

  	
  New
  York Wind, LLC

  	
   

  	
  100%

  
	
  Niagara
  Wind Power, LLC

  	
   

  	
  DE

  	
   

  	
  New
  York Wind II, LLC

  	
   

  	
  100%

  



 






	
  *

  	
  Control subject to
  Nominee Agreement.

  
	
   

  	
   

  
	
  (2)

  	
  Ownership interest is reduced pursuant to Steel
  Winds Project Company Limited Liability Company Operating Agreement.

  



 


37

















 


	
  Stetson
  Holdings, LLC

  	
   

  	
  DE

  	
   

  	
  CSSW,
  LLC

  	
   

  	
  100%

  
	
  Evergreen
  Wind Power V, LLC

  	
   

  	
  DE

  	
   

  	
  Stetson
  Holdings, LLC

  	
   

  	
  100%

  



 


After
Stetson II Effective Date


 


	
  Name

  	
   

  	
  Jurisdiction

  of

  Organization

  	
   

  	
  Owner of Equity Interests

  	
   

  	
  Percentage of Membership

  Interest

  
	
  CSSW,
  LLC

  	
   

  	
  DE

  	
   

  	
  CSSW
  Holdings, LLC

  	
   

  	
  100%

  
	
  New
  York Wind III, LLC

  	
   

  	
  DE

  	
   

  	
  CSSW,
  LLC

  	
   

  	
  100%

  
	
  New
  York Wind II, LLC

  	
   

  	
  DE

  	
   

  	
  New
  York Wind III, LLC

  	
   

  	
  100%

  
	
  CSSW
  Cohocton Holdings

  	
   

  	
  DE

  	
   

  	
  CSSW,
  LLC

  	
   

  	
  100%

  
	
  New
  York Wind, LLC

  	
   

  	
  DE

  	
   

  	
  CSSW
  Cohocton Holdings, LLC

  	
   

  	
  100%

  
	
  Canandaigua
  Power Partners, LLC

  	
   

  	
  DE

  	
   

  	
  New
  York Wind, LLC

  	
   

  	
  100%

  
	
  Canandaigua
  Power Partners II, LLC

  	
   

  	
  DE

  	
   

  	
  New
  York Wind, LLC

  	
   

  	
  100%

  
	
  Niagara
  Wind Power, LLC

  	
   

  	
  DE

  	
   

  	
  New
  York Wind II, LLC

  	
   

  	
  100%

  
	
  CSSW
  Stetson Holdings, LLC

  	
   

  	
  DE

  	
   

  	
  CSSW,
  LLC

  	
   

  	
  100%

  
	
  Stetson
  Holdings, LLC

  	
   

  	
  DE

  	
   

  	
  CSSW
  Stetson Holdings, LLC

  	
   

  	
  100%

  
	
  Evergreen
  Wind Power V, LLC

  	
   

  	
  DE

  	
   

  	
  Stetson
  Holdings, LLC

  	
   

  	
  100%

  
	
  Stetson
  Wind II, LLC

  	
   

  	
  DE

  	
   

  	
  Stetson
  Holdings, LLC

  	
   

  	
  100%

  



 


38

















 


Schedule 5.6


Taxes


 


NONE


 


39

















 


Schedule 5.7


Material Events


 


Clipper Blade remediation at Cohocton Project and
Steel Winds Project.


RCA65
Blade Skin Crack RCA Overview


· Blade skin
crack found at 6m blade station on turbine during 2000 hour post-commissioning
blade inspection on Friday 8/22/08


· RCA65 launched
Monday 8/25/08 to investigate problem


· Blade
inspections are on-going at 500 hr intervals on all operational turbines.
Turbines with identified blade skin cracks are taken off line and put in
standby mode.


· Root cause has
been identified: manufacturing defect, wrinkle in structural skin laminate.


· Factory
corrective action has been implemented and field repair activities are
underway.


 


40

















 


Schedule 5.13


Employee Benefits


 


NONE


 


41

















 


Schedule 5.19


Governmental Approvals


 


NONE


 

















 


Schedule 5.20


Financing Statements


 


	
  Financing
  Statement

  	
   

  	
  Filing Office

  
	
   

  	
   

  	
   

  
	
  Upon occurrence of the Initial
  Closing Date:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  UCC-1 Financing
  Statement evidencing the pledge by CSSW Holdings, LLC, in favor of Collateral
  Agent, of all assets as collateral

  	
   

  	
  Delaware

  
	
   

  	
   

  	
   

  
	
  UCC-1 Financing
  Statement evidencing the pledge by CSSW, LLC, in favor of Collateral Agent,
  of all assets as collateral

  	
   

  	
  Delaware

  
	
   

  	
   

  	
   

  
	
  Upon occurrence of the
  Subsequent Closing Date:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  UCC-1 Financing
  Statement evidencing the pledge by Steel Winds Holding Company, in favor of
  Collateral Agent, of 100% of the Equity Interests in Niagara Wind Power, LLC
  as collateral(3)

  	
   

  	
  Delaware

  
	
   

  	
   

  	
   

  
	
  UCC-1 Financing
  Statement evidencing the pledge by Niagara Wind Power, LLC, in favor of
  Collateral Agent, of all assets of Niagara Wind Power, LLC as collateral(4)

  	
   

  	
  Delaware

  



 






	
  (3)

  	
  Unless
  LC Indebtedness of Steel Winds Project Company is then in existence.

  
	
   

  	
   

  
	
  (4)

  	
  Unless LC Indebtedness of
  Steel Winds Project Company is then in existence.

  



 


43

















 


Schedule 5.21(b)


Regulatory Matters


 


On
the Stetson II Effective Date, the Stetson II Project Company will not be, nor
will it be required to be by FERC or under the FPA, as applicable, subject to
regulation under the FPA as a “public utility”, authorized by an order issued
by FERC to make sales of energy capacity and ancillary services at market-based
rates pursuant to Section 205 of the FPA or have both market-based rate
authority and blanket authorization to issue securities and assume liabilities
pursuant to Section 204 of the FPA, as well as other waivers of regulations and
blanket authorizations as are customarily granted by FERC to entities with
market-based rate authorization.


 

















 


Schedule 10.1


Indebtedness


 


NONE


 


45

















 


Schedule 10.2


Liens


 


NONE


 


46

















 


Schedule 10.3


Investments


 


NONE


 


47