Exhibit 10.26


 


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.


 


Execution Version


 


FINANCING AGREEMENT


 


among


 


STETSON HOLDINGS, LLC


 


a Delaware limited liability company


 


(Borrower);


 


BNP PARIBAS


 


(Joint Lead Arranger, Joint
Bookrunner, Administrative Agent for the Lenders, and as Issuing Bank)


 


HSH NORDBANK AG, NEW YORK BRANCH


 


(Joint Lead Arranger, Joint Bookrunner, Co-Syndication
Agent);


 


BNP PARIBAS


 


(Security Agent for the Secured Parties);


 


and


 


THE LENDERS PARTIES HERETO


 





















 


TABLE
OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 1.
  DEFINITIONS

  	
  1

  
	
  1.1

  	
  Definitions

  	
  1

  
	
  1.2

  	
  Rules of
  Interpretation

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2.
  THE LOAN FACILITY

  	
  1

  
	
  2.1

  	
  Loan
  Facility

  	
  1

  
	
  2.2

  	
  Letters of
  Credit

  	
  4

  
	
  2.3

  	
  Use of Loan
  Proceeds

  	
  12

  
	
  2.4

  	
  Total
  Commitment

  	
  12

  
	
  2.5

  	
  Notice of
  Borrowing of Loans

  	
  13

  
	
  2.6

  	
  Defaulting
  Lenders

  	
  13

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3.
  GENERAL PROVISIONS RELATED TO CREDIT FACILITIES

  	
  15

  
	
  3.1

  	
  Loan Funding

  	
  15

  
	
  3.2

  	
  Prepayments

  	
  16

  
	
  3.3

  	
  Fees

  	
  18

  
	
  3.4

  	
  Other
  Payment Terms

  	
  20

  
	
  3.5

  	
  Pro Rata
  Treatment

  	
  25

  
	
  3.6

  	
  Change of
  Circumstances

  	
  26

  
	
  3.7

  	
  Funding
  Losses

  	
  28

  
	
  3.8

  	
  Alternate
  Office; Minimization of Costs

  	
  29

  
	
  3.9

  	
  Interest
  Rate Protection

  	
  29

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4.
  COLLATERAL DOCUMENTS

  	
  30

  
	
  4.1

  	
  Security

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5.
  CONDITIONS PRECEDENT

  	
  32

  
	
  5.1

  	
  Conditions
  Precedent to the Closing Date; Issuance of Letters of Credit

  	
  32

  
	
  5.2

  	
  Conditions
  Precedent to each Borrowing

  	
  39

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6.
  REPRESENTATIONS AND WARRANTIES

  	
  40

  
	
  6.1

  	
  Organization

  	
  40

  
	
  6.2

  	
  Authorization;
  No Conflict

  	
  41

  
	
  6.3

  	
  Enforceability

  	
  41

  
	
  6.4

  	
  ERISA

  	
  42

  
	
  6.5

  	
  Taxes

  	
  42

  
	
  6.6

  	
  Business,
  Debt, Contracts, Etc.

  	
  42

  
	
  6.7

  	
  Private
  Offering by Borrower

  	
  43

  
	
  6.8

  	
  Filings

  	
  43

  
	
  6.9

  	
  Investment
  Company, Holding Company Act

  	
  43

  
	
  6.10

  	
  Governmental
  Regulation

  	
  43

  
	
  6.11

  	
  Margin Stock

  	
  43

  
	
  6.12

  	
  Financial
  Statements

  	
  44

  
	
  6.13

  	
  Partnerships
  and Joint Ventures

  	
  44

  
				



 


i





















 


TABLE OF CONTENTS


(Continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  6.14

  	
  Existing
  Defaults

  	
  44

  
	
  6.15

  	
  No Default

  	
  44

  
	
  6.16

  	
  Permits

  	
  44

  
	
  6.17

  	
  Offices,
  Location of Collateral

  	
  45

  
	
  6.18

  	
  No Material
  Adverse Effect

  	
  46

  
	
  6.19

  	
  Environmental
  Matters

  	
  46

  
	
  6.20

  	
  Litigation

  	
  47

  
	
  6.21

  	
  Title and
  Liens

  	
  47

  
	
  6.22

  	
  Utilities

  	
  48

  
	
  6.23

  	
  Roads/Feeder
  Lines

  	
  48

  
	
  6.24

  	
  Sufficiency
  of Project Documents

  	
  49

  
	
  6.25

  	
  Project
  Documents

  	
  49

  
	
  6.26

  	
  Representations
  and Warranties of Affiliated Participants

  	
  49

  
	
  6.27

  	
  EWG

  	
  49

  
	
  6.28

  	
  Labor
  Disputes and Acts of God

  	
  50

  
	
  6.29

  	
  Disclosure

  	
  50

  
	
  6.30

  	
  Base Case
  Project Projections

  	
  50

  
	
  6.31

  	
  Collateral

  	
  50

  
	
  6.32

  	
  Intellectual
  Property

  	
  51

  
	
  6.33

  	
  Proper
  Subdivision

  	
  51

  
	
  6.34

  	
  Land Not in
  Flood Zone

  	
  51

  
	
  6.35

  	
  Insurance

  	
  52

  
	
  6.36

  	
  Bankruptcy
  Event

  	
  52

  
	
  6.37

  	
  Construction
  of Projects

  	
  52

  
	
  6.38

  	
  Construction
  Contracts

  	
  52

  
	
  6.39

  	
  Warranty
  Period

  	
  52

  
	
  6.40

  	
  OFAC and
  Related Matters

  	
  52

  
	
  6.41

  	
  OFAC
  Restrictions

  	
  53

  
	
  6.42

  	
  Line Outage
  Costs

  	
  53

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7.
  COVENANTS OF BORROWER

  	
  53

  
	
  7.1

  	
  Use of Loan
  Proceeds and Project Revenues

  	
  54

  
	
  7.2

  	
  Payment

  	
  54

  
	
  7.3

  	
  Notices and
  Deliveries

  	
  54

  
	
  7.4

  	
  Financial
  Statements

  	
  57

  
	
  7.5

  	
  Reports

  	
  58

  
	
  7.6

  	
  Additional
  Permits and Project Documents; Additional Consents

  	
  59

  
	
  7.7

  	
  Compliance
  with Environmental Report Recommendations

  	
  59

  
	
  7.8

  	
  Existence,
  Conduct of Business, Properties, Etc.

  	
  60

  
	
  7.9

  	
  Obligations

  	
  60

  
	
  7.10

  	
  Books,
  Records, Access

  	
  60

  
	
  7.11

  	
  EWG and Rate
  Approval

  	
  61

  
	
  7.12

  	
  Operation of Projects

  	
  61

  



 


ii





















 


TABLE OF CONTENTS


(Continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  7.13

  	
  Preservation
  of Rights; Further Assurances

  	
  62

  
	
  7.14

  	
  Taxes, Other
  Government Charges and Utility Charges

  	
  63

  
	
  7.15

  	
  Compliance
  With Laws; Permits

  	
  63

  
	
  7.16

  	
  Compliance
  with Anti-Money Laundering and OFAC Laws

  	
  64

  
	
  7.17

  	
  Separateness
  Provisions

  	
  65

  
	
  7.18

  	
  Enforcement
  of Remedies

  	
  65

  
	
  7.19

  	
  O&M
  Service Agreement

  	
  65

  
	
  7.20

  	
  Maintenance
  of Insurance

  	
  65

  
	
  7.21

  	
  Maintenance
  of Title

  	
  72

  
	
  7.22

  	
  Event of
  Eminent Domain

  	
  72

  
	
  7.23

  	
  Indemnification

  	
  72

  
	
  7.24

  	
  Replacement
  of Operator

  	
  75

  
	
  7.25

  	
  Government
  Grant

  	
  75

  
	
  7.26

  	
  Further
  Assurances

  	
  75

  
	
  7.27

  	
  Upwind Array
  Effect

  	
  75

  
	
  7.28

  	
  Capacity
  Revenues

  	
  76

  
	
  7.29

  	
  Survey —
  Stetson II Project

  	
  76

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8.
  NEGATIVE COVENANTS OF BORROWER

  	
  77

  
	
  8.1

  	
  Contingent Liabilities

  	
  77

  
	
  8.2

  	
  Limitations on Lien

  	
  77

  
	
  8.3

  	
  Indebtedness

  	
  77

  
	
  8.4

  	
  Sale or
  Lease of Assets

  	
  77

  
	
  8.5

  	
  Changes

  	
  78

  
	
  8.6

  	
  Distributions

  	
  78

  
	
  8.7

  	
  Investments

  	
  78

  
	
  8.8

  	
  Transactions
  With Affiliates

  	
  78

  
	
  8.9

  	
  Margin Stock
  Regulations

  	
  79

  
	
  8.10

  	
  Partnerships

  	
  79

  
	
  8.11

  	
  Dissolution

  	
  79

  
	
  8.12

  	
  Amendments;
  Change Orders

  	
  79

  
	
  8.13

  	
  Compliance
  With Operative Documents

  	
  80

  
	
  8.14

  	
  Name and
  Location; Fiscal Year

  	
  80

  
	
  8.15

  	
  Use of
  Project Site

  	
  80

  
	
  8.16

  	
  Assignment

  	
  80

  
	
  8.17

  	
  Transfer of
  Interest

  	
  80

  
	
  8.18

  	
  Abandonment
  of Projects

  	
  80

  
	
  8.19

  	
  Environmental
  Matters

  	
  81

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9.
  COLLATERAL ACCOUNTS

  	
  81

  
	
  9.1

  	
  Establishment
  of Collateral Accounts

  	
  81

  
	
  9.2

  	
  Permitted
  Investments

  	
  81

  
	
  9.3

  	
  Foreclosure

  	
  82

  



 


iii





















 


TABLE OF CONTENTS


(Continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10.
  EVENTS OF DEFAULT; REMEDIES

  	
  82

  
	
  10.1

  	
  Events of
  Default

  	
  82

  
	
  10.2

  	
  Remedies

  	
  88

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11.
  SCOPE OF LIABILITY

  	
  89

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12.
  AGENTS

  	
  90

  
	
  12.1

  	
  Appointment,
  Powers and Immunities

  	
  90

  
	
  12.2

  	
  Duties,
  Responsibilities, Powers and Immunities of Agents

  	
  91

  
	
  12.3

  	
  Reliance by
  Agents

  	
  92

  
	
  12.4

  	
  Non-Reliance

  	
  92

  
	
  12.5

  	
  Defaults

  	
  92

  
	
  12.6

  	
  Indemnification

  	
  93

  
	
  12.7

  	
  Successor
  Agents

  	
  93

  
	
  12.8

  	
  Authorization

  	
  94

  
	
  12.9

  	
  Other Rights
  and Powers of Agents

  	
  94

  
	
  12.10

  	
  Security
  Agent to Hold in Trust.

  	
  95

  
	
  12.11

  	
  Amendments
  and Decision Making

  	
  95

  
	
  12.12

  	
  Withholding
  Tax

  	
  96

  
	
  12.13

  	
  Substitution
  of Lender

  	
  97

  
	
  12.14

  	
  Participations

  	
  97

  
	
  12.15

  	
  Transfer of
  Loans; Commitments

  	
  98

  
	
  12.16

  	
  Laws

  	
  99

  
	
  12.17

  	
  Assignability
  to Federal Reserve Bank

  	
  99

  
	
  12.18

  	
  Response to
  Borrower Requests

  	
  99

  
	
   

  	
   

  	
   

  
	
  ARTICLE 13.
  INDEPENDENT CONSULTANTS

  	
  100

  
	
  13.1

  	
  Removal and
  Fees

  	
  100

  
	
  13.2

  	
  Duties

  	
  100

  
	
  13.3

  	
  Independent
  Consultants’ Certificates

  	
  100

  
	
  13.4

  	
  Certification
  of Dates

  	
  100

  
	
   

  	
   

  	
   

  
	
  ARTICLE 14.
  MISCELLANEOUS

  	
  101

  
	
  14.1

  	
  Addresses

  	
  101

  
	
  14.2

  	
  Additional
  Security; Right to-Set Off

  	
  102

  
	
  14.3

  	
  Delay and
  Waiver

  	
  102

  
	
  14.4

  	
  Costs,
  Expenses and Attorneys’ Fees

  	
  103

  
	
  14.5

  	
  Attorney-In-Fact

  	
  103

  
	
  14.6

  	
  Entire
  Agreement; Amendments

  	
  103

  
	
  14.7

  	
  Governing
  Law

  	
  104

  
	
  14.8

  	
  Severability

  	
  104

  
	
  14.9

  	
  Headings

  	
  104

  
	
  14.10

  	
  Accounting
  Terms

  	
  104

  



 


iv





















 


TABLE OF CONTENTS


(Continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  14.11

  	
  Additional
  Financing

  	
  104

  
	
  14.12

  	
  No
  Partnership, Etc.

  	
  105

  
	
  14.13

  	
  Mortgage Documents/Collateral Documents

  	
  105

  
	
  14.14

  	
  Limitation on Liability

  	
  105

  
	
  14.15

  	
  Waiver of
  Jury Trial

  	
  105

  
	
  14.16

  	
  Consent to
  Jurisdiction

  	
  106

  
	
  14.17

  	
  Usury

  	
  106

  
	
  14.18

  	
  Successors
  and Assigns

  	
  107

  
	
  14.19

  	
  Confidentiality

  	
  107

  
	
  14.20

  	
  Counterparts

  	
  108

  
	
  14.21

  	
  Patriot Act Compliance

  	
  108

  



 


v





















 


INDEX OF EXHIBITS AND SCHEDULES


 


	
  Exhibit A

  	
   

  	
  Definitions
  and Rules of Interpretation

  
	
   

  	
   

  	
   

  
	
  Exhibit B-1

  	
   

  	
  Form of
  Note

  
	
   

  	
   

  	
   

  
	
  Exhibit C

  	
   

  	
  [Reserved]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Disbursement
  Procedures

  
	
   

  	
   

  	
   

  
	
  Exhibit D-1

  	
   

  	
  [Reserved]

  
	
  Exhibit D-2

  	
   

  	
  [Reserved]

  
	
  Exhibit D-3

  	
   

  	
  Form of
  Confirmation of Interest Period Selection

  
	
  Exhibit D-4

  	
   

  	
  Form of
  Notice of Borrowing

  
	
  Exhibit D-5

  	
   

  	
  Form of
  Pending Disbursements Clause

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Security-Related
  Documents

  
	
   

  	
   

  	
   

  
	
  Exhibit E-1

  	
   

  	
  Form of
  Mortgage Documents

  
	
  Exhibit E-2

  	
   

  	
  Form of
  Borrower Pledge and Security Agreement

  
	
  Exhibit E-3

  	
   

  	
  Form of
  Guaranty and Security Agreement

  
	
  Exhibit E-4

  	
   

  	
  Form of
  Account Control Agreement

  
	
  Exhibit E-5

  	
   

  	
  Schedule of
  Permitted Encumbrances

  
	
  Exhibit E-6

  	
   

  	
  Schedule of
  Security Filings

  
	
  Exhibit E-7

  	
   

  	
  Form of
  Member Pledge and Security Agreement

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Consents

  
	
   

  	
   

  	
   

  
	
  Exhibit F-1

  	
   

  	
   

  
	
  Exhibit F-2

  	
   

  	
  Form of
  Consent of BOP Contractor

  
	
  Exhibit F-3

  	
   

  	
  Form of
  Consent of Energy Hedge Provider

  
	
  Exhibit F-4

  	
   

  	
  Form of
  Consent of Energy Hedge Guarantor

  
	
  Exhibit F-5

  	
   

  	
  [Reserved]

  
	
  Exhibit F-6

  	
   

  	
  Form of Landowner Estoppel

  
	
  Exhibit F-7

  	
   

  	
  Form of
  Consent of Contracting Party

  
	
  Exhibit F-8

  	
   

  	
  Form of
  Consent of Turbine Supplier and Turbine Operator

  
	
  Exhibit F-9

  	
   

  	
  [Reserved]

  
	
  Exhibit F-10

  	
   

  	
  Form of
  Consent of Operator

  
	
  Exhibit F-11

  	
   

  	
  Form of
  Shared Facilities Consent

  
	
  Exhibit F-12

  	
   

  	
  Form of
  Project Administration Agreement Consent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Closing
  Certificates

  
	
   

  	
   

  	
   

  
	
  Exhibit G-1

  	
   

  	
  Form of
  Borrower’s Closing Certificate

  
	
  Exhibit G-2

  	
   

  	
  Form of
  Insurance Consultant’s Certificate

  
	
  Exhibit G-3

  	
   

  	
  Form of
  Environmental Consultant’s Certificate

  



 


vi





















 


	
  Exhibit G-4

  	
   

  	
  Form of
  Independent Engineer’s Closing Certificate and Report

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Project
  Description Exhibits

  
	
   

  	
   

  	
   

  
	
  Exhibit H-1

  	
   

  	
  [Reserved]

  
	
  Exhibit H-2A

  	
   

  	
  Schedule of
  Borrower Permit Exceptions— Environmental, Permitting, Real Property, Maine
  Regulatory Matters and FERC

  
	
  Exhibit H-2B

  	
   

  	
  Schedule of
  Applicable Permits — Environmental, Permitting, Real Property, Maine
  Regulatory Matters and FERC

  
	
  Exhibit H-3

  	
   

  	
  Governmental
  Regulations

  
	
  Exhibit H-4

  	
   

  	
  [Reserved]

  
	
  Exhibit H-5

  	
   

  	
  Pending
  Litigation

  
	
  Exhibit H-6

  	
   

  	
  Environmental
  Matters Disclosure

  
	
  Exhibit H-7

  	
   

  	
  Chief
  Executive Office of Borrower

  
	
  Exhibit H-8A

  	
   

  	
  Description
  of Stetson I Real Property Interests

  
	
  Exhibit H-8B

  	
   

  	
  Description
  of Stetson II Real Property Interests

  
	
  Exhibit H-9

  	
   

  	
  Description
  of Transmission Line Real Property Interests

  
	
   

  	
   

  	
   

  
	
  Other
  Exhibits

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit I

  	
   

  	
  Lenders/Lending
  Offices

  
	
  Exhibit J

  	
   

  	
  Schedule of
  Lender Proportionate Shares

  
	
  Exhibit K

  	
   

  	
  Amortization
  Schedule

  
	
  Exhibit L-1

  	
   

  	
  Form of
  Withholding Certificate (Treaty)

  
	
  Exhibit L-2

  	
   

  	
  Form of
  Withholding Certificate (Effectively Connected)

  
	
  Exhibit L-3

  	
   

  	
  Form of
  Withholding Certificate (Portfolio Interest)

  
	
  Exhibit M

  	
   

  	
  Form of
  Subordination Agreement

  
	
  Exhibit N

  	
   

  	
  Form of
  Assignment Agreement

  
	
  Exhibit O

  	
   

  	
  Form of
  O&M Reserve LC

  
	
  Exhibit P

  	
   

  	
  Form of
  Debt Service Reserve LC

  
	
  Exhibit Q-1

  	
   

  	
  Form of
  Energy Hedge LC

  
	
  Exhibit Q-2

  	
   

  	
  Form of
  REC Contract LC

  
	
  Exhibit R

  	
   

  	
  Form of
  Working Capital LC

  
	
  Exhibit S

  	
   

  	
  Form of
  Notice of LC Activity

  



 


vii





















 


FINANCING AGREEMENT


 


This FINANCING AGREEMENT (this “Financing
Agreement”), dated as of December 22, 2009, is entered into by and
among STETSON HOLDINGS, LLC, a Delaware
limited liability company, as Borrower; the financial institutions listed on Exhibit I
or who later become a party hereto, as Lenders; BNP PARIBAS,
as a Joint Lead Arranger, as Administrative Agent for the Lenders, Security
Agent for the Secured Parties, and as Issuing Bank; and HSH NORDBANK
AG, NEW YORK BRANCH, as a Joint Lead Arranger.


 


AGREEMENT


 


In consideration of the agreements herein and in the other Financing
Documents and in reliance upon the representations and warranties set forth
herein and therein, the parties agree as follows:


 


ARTICLE
1.


DEFINITIONS


 


1.1          Definitions.


 


Except
as otherwise expressly provided, capitalized terms used in this Financing
Agreement and its exhibits shall have the meanings given in Exhibit A.


 


1.2          Rules of Interpretation.


 


Except
as otherwise expressly provided, the rules of interpretation set forth in Exhibit A
shall apply to this Financing Agreement and the other Financing Documents.


 


ARTICLE
2.


THE LOAN FACILITY


 


2.1                               Loan Facility.


 


(a)                                 Availability.


 


(i)                                     Term Loan.  Subject to
the terms and conditions set forth in this Financing Agreement, each Lender
severally agrees to make to Borrower one or more loans as Borrower may request
during the Availability Period under Section 2.5 (individually, a “Term
Loan” and, collectively, the “Term Loans”), in an aggregate
principal amount not to exceed such Lender’s Proportionate Share of the Total
Term Loan Commitment.  Borrower may
request Base Rate Loans or LIBO Rate Loans, in each case, pursuant to the
Notice of Borrowing under Section 2.5.  Each Lender shall make its Term Loan, in an
amount not in excess of its Total Term Loan Commitment, pursuant to Section 3.1(c).


 


(ii)                                  Bridge Loan. 
Subject to the terms and conditions set forth in this Financing
Agreement, each Lender severally agrees to make to Borrower 


 





















 


one or more loans
as Borrower may request during the Availability Period under Section 2.5
(individually, a “Bridge Loan” and, collectively, the “Bridge Loans”),
in an aggregate principal amount not to exceed such Lender’s Proportionate
Share of the Total Bridge Loan Commitment. 
Borrower may request Base Rate Loans or LIBO Rate Loans, in each case,
pursuant to the Notice of Borrowing under Section 2.5.  Each Lender shall make its Bridge Loan, in an
amount not in excess of its Total Bridge Loan Commitment, pursuant to Section 3.1(c).


 


(b)                                 Interest Provisions.


 


(i)                                     Interest Rate. 
Each Loan shall bear interest on the unpaid principal amount thereof
from the date of the funding of such Loan until the repayment or prepayment
thereof at a rate determined by reference to the LIBO Rate or Base Rate, as
applicable.  In respect of Term Loans and
Bridge Loans, the applicable basis for determining the rate of interest with
respect to any LIBO Rate Loan shall be selected by Borrower initially at the
time the Notice of Borrowing is given with respect to such LIBO Rate Loan
pursuant to Section 2.5, and, thereafter, the basis for determining
the interest rate with respect to such LIBO Rate Loan may be changed from time
to time pursuant to Section 2.1(c).


 


Borrower shall pay
interest (including interest accruing after the commencement of an insolvency
proceeding under applicable Bankruptcy Law) on the unpaid principal amount of
each LIBO Rate Loan from the date of the funding of such LIBO Rate Loan until
the repayment or prepayment thereof, at a rate per annum in effect during each
Interest Period for such LIBO Rate Loan, equal to the LIBO Rate for the
relevant Interest Period plus the Applicable Margin.  Borrower shall pay interest (including
interest accruing after the commencement of an insolvency proceeding under
applicable Bankruptcy Law) on the unpaid principal amount of each Base Rate
Loan from the date of the funding of such Base Rate Loan until the repayment or
prepayment thereof, at a rate per annum equal to the Base Rate in effect during
such period plus the Applicable Base Rate Margin.  In the event that an Event of Default shall
have occurred and be continuing, the applicable Default Rate shall apply to all
then outstanding Loans and shall be payable on demand or otherwise pursuant to Section 3.4(c)(ii).


 


(ii)                                  Interest Payment Dates. 
Borrower shall pay accrued interest on the unpaid principal amount of
each outstanding Loan (a) on each Payment Date and (b) upon
prepayment (to the extent thereof) and at maturity of each Loan (each an “Interest
Payment Date”).


 


2


















 


(c)           Interest Periods.


 


(i)            Solely with respect to Term Loans and
Bridge Loans and in connection with each LIBO Rate Loan, Borrower shall,
pursuant to the Notice of Borrowing or a Confirmation of Interest Period
Selection select an Interest Period to be applicable to such LIBO Rate Loans,
which Interest Periods shall be a six (6) month period  ending
in each case on a Payment Date or, solely with respect to the initial LIBO Rate
Loans, any shorter Interest Period ending on the first Payment Date, as
requested by Borrower and approved by Administrative Agent (any such period, an
“Interest Period”); provided, however, that (1) with
the exception of any shorter Interest Period ending on the first Payment Date,
the selection of any Interest Period other than the six (6) month Interest
Period shall be subject to availability of such Interest Period from each
Lender; (2) any Interest Period which would otherwise end on a day which
is not a Business Day shall be extended to the next succeeding Business Day
unless that day falls in the next calendar month, in which case such Interest
Period shall end on the immediately preceding Business Day; (3) any
Interest Period which begins on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last Business Day of
a calendar month; and (4) no Interest Period shall extend beyond the Term
Loan Maturity Date or Bridge Loan Maturity Date, as applicable.  If Borrower fails to notify Administrative
Agent of the next Interest Period for any LIBO Rate Loan in accordance with
this Section 2.1(c)(i), such Term Loan or Bridge Loan, as
applicable, shall automatically continue as a new LIBO Rate Loan with the same
Interest Period as such prior LIBO Rate Loan; provided, however,
that in the event that the Interest Period of such new LIBO Rate Loan would
extend beyond the applicable Maturity Date, then such Loan shall automatically
convert to a Base Rate Loan.


 


(d)           Interest Account and Interest
Computations.  Borrower authorizes Administrative Agent to
record in an account or accounts maintained by Administrative Agent on its
books (1) the interest rates applicable to all Loans and the effective
dates of all changes thereto; (2) the Interest Period for each LIBO Rate
Loan; (3) the date and amount of each principal and interest payment on
each outstanding Loan; and (4) such other information as Administrative
Agent may determine is necessary for the computation of interest payable by
Borrower hereunder consistent with this Financing Agreement.  Borrower agrees that all computations of
interest made by Administrative Agent shall be conclusive in the absence of
demonstrable error.  Administrative Agent
shall, at the request of Borrower, deliver to Borrower a statement detailing
such computations of interest.  All
computations of interest on LIBO Rate Loans shall be based upon a year of 360
days and the actual days elapsed (including the first day but excluding the
last day of the applicable Interest Period). 
All computations of interest on Base Rate Loans hereunder shall be based
upon a year of 365 days (or 366 days in a leap year) and the actual days 


 


3

















 


elapsed (including the
first day but excluding the last day of the applicable interest period).


 


(e)           Principal Payments. 
On each Payment Date, Borrower shall repay to Administrative Agent for
the account of each Lender, an amount equal to the Scheduled Repayment Amount
for such Payment Date.  Any unpaid
principal, interest, fees, costs and all other Obligations with respect to the
Loans shall be due and payable on the Bridge Loan Maturity Date, LC Loan
Maturity Date or Term Loan Maturity Date, as applicable.   Notwithstanding the foregoing, in no event
shall the principal amount of the Loans to be repaid by Borrower on any Payment
Date exceed the aggregate principal amount of the Loans then outstanding.


 


(f)            Promissory Notes. 
The obligation of Borrower to repay the Loans made by each Lender and to
pay all interest thereon at the rates provided herein and all other Obligations
with respect to such Loans under this Financing Agreement shall be irrevocable,
absolute and unconditional under any and all circumstances and shall be evidenced
by promissory notes substantially in the form of Exhibit B-1
(individually, a “Note” and, collectively, the “Notes”), each
payable to the order of such Lender and in the principal amount of such Lender’s
Proportionate Share of Loans requested to be made as of the Closing Date.  Such Notes shall be duly executed by Borrower
and delivered to each Lender on or prior to the Closing Date.


 


2.2    
Letters of Credit.


 


(a)           Issuance and Availability.


 


(i)            O&M Reserve LC. 
Subject to the terms and conditions contained in this Financing
Agreement, the Issuing Bank irrevocably agrees to issue on the Closing Date,
the O&M Reserve LC for the account of Borrower and in favor of the
Administrative Agent (on behalf of the Lenders) as beneficiary in support of
O&M Costs.  The O&M Reserve LC
shall be in an initial Stated Amount equal to $2,570,000 and shall be
substantially in the form attached hereto as Exhibit O.


 


(ii)           Debt Service Reserve LC. 
Subject to the terms and conditions contained in this Financing Agreement,
Issuing Bank irrevocably agrees to issue on the Closing Date, the Debt Service
Reserve LC for the account of Borrower and in favor of the Administrative Agent
(on behalf of the Lenders) as beneficiary in support of the Debt Service
Reserve Requirement.  The Debt Service
Reserve LC shall be in an initial Stated Amount equal to $6,630,000 and shall
be substantially in the form attached hereto as Exhibit P.


 


(iii)          Energy Hedge LCs and REC Contract LCs. 
Subject to the terms and conditions contained in this Financing
Agreement, Issuing Bank 


 


4

















 


irrevocably agrees
to issue, during the LC Issuance Period, one or more Energy Hedge LCs for the
account of Borrower and in favor of the applicable counterparty under the
applicable Energy Hedge and one or more REC Contract LCs for the account of
Borrower and in favor of the applicable counterparty under the applicable REC
Contract.  Each Energy Hedge LC shall be
substantially in the form attached hereto as Exhibit Q-1.  Each REC Contract LC shall be substantially
in the form attached hereto as Exhibit Q-2.


 


(iv)          Working Capital LCs. 
Subject to the terms and conditions contained in this Financing
Agreement, Issuing Bank irrevocably agrees to issue, during the LC Issuance
Period, one or more Working Capital LCs for the account of Borrower and in
favor of the applicable counterparty under the applicable Project
Documents.  Each Working Capital LC shall
be substantially in the form attached hereto as Exhibit R.


 


(b)           Letter of Credit Commitments and
Adjustments.


 


(i)            The Total LC Commitment shall be a
separate revolving working capital facility provided by Issuing Bank and its
participants and permitted assignees pursuant to Sections 12.14 and 12.15
of the Financing Agreement, respectively, as Lender in respect of any LC Loans,
and the issuance of the Letters of Credit shall be deemed to reduce, in an
amount equal to the aggregate Stated Amount of such Letters of Credit, the
Available LC Commitment.


 


(ii)           Any Drawing Payment with respect to the
O&M Reserve LC shall reduce the available Stated Amount thereof pursuant to
this Financing Agreement and the Total LC Commitment applicable thereto shall
be reduced, each in an amount equal to such Drawing Payment.  Any Drawing Payment with respect to the Debt
Service Reserve LC shall reduce the available Stated Amount thereof pursuant to
this Financing Agreement and the Total LC Commitment applicable thereto shall
be reduced, each in an amount equal to such Drawing Payment.  Any Drawing Payment with respect to any Hedge
LC shall reduce the available Stated Amount thereof pursuant to this Financing
Agreement and the Total LC Commitment applicable thereto shall be reduced, each
in an amount equal to such Drawing Payment. 
Any Drawing Payment with respect to any Working Capital LC shall reduce
the available Stated Amount thereof pursuant to this Financing Agreement and
the Total LC Commitment applicable thereto shall be reduced, each in an amount
equal to such Drawing Payment.


 


(iii)          Subject to Section 2.2(b)(iv),
the Stated Amount of any Letter of Credit may, upon request by Borrower
pursuant to Section 2.2(c), be reinstated to its original Stated
Amount; provided, that (A) the applicable Reimbursement Obligation
or LC Loan is paid in full; (B) no Inchoate Default or Event of Default
has occurred and is continuing; (C) each 


 


5

















 


representation and
warranty set forth in Article 6 shall be true and correct in all
material respects as of such date (unless such representation or warranty
relates solely to an earlier date, in which case it shall have been true and
correct in all material respects as of such earlier date); and (D) all
applicable terms and conditions set forth in the applicable Letter of Credit
are satisfied in accordance therewith.


 


(iv)          Notwithstanding anything to the contrary
provided in this Financing Agreement, the sum of the Stated Amounts of any
Letters of Credit issued, or requested but not yet issued, hereunder at any
time, any Reimbursement Obligations remaining unpaid at any time and LC Loans
outstanding at any time shall not exceed the Total LC Commitment.


 


(c)           Notice of LC Activity. Subject to the terms and conditions
contained in this Financing Agreement (including the satisfaction of the
requirements in Section 2.2(b)) and so long as no Inchoate Default
or Event of Default has occurred and is continuing, Borrower shall request (x) the
issuance or extension of any Letter of Credit, or (y) any reinstatement,
increase or decrease in the Stated Amount thereof, in each case, by delivering
to Administrative Agent and Issuing Bank an irrevocable written notice in the
form of Exhibit S, appropriately completed (a “Notice of LC
Activity”), which specifies, among other things:


 


(i)            the particulars of any Letters of Credit
to be issued, extended or amended, including the then-current Stated Amount of
such Letters of Credit (which shall not exceed the then Available LC Commitment
applicable to such Letters of Credit); and


 


(ii)           with respect to any Hedge LC or Working
Capital LC, if a reinstatement, increase or decrease to the Stated Amount of
such Letter of Credit is requested, the amount by which such Stated Amount is
to be reinstated, increased or decreased, as applicable.


 


In the case of any Hedge LC or Working
Capital LC, Borrower shall deliver the Notice of LC Activity to Administrative
Agent (with a copy to Issuing Bank) at least five (5) Business Days before
the date of issuance, reinstatement, increase or decrease of the Stated Amount
of such Letter of Credit.  Upon the
adjustment date specified in such Notice of LC Activity, subject to the terms
and conditions set forth in this Financing Agreement, Issuing Bank shall, by
amendment or adjustment to the Letter of Credit, adjust the Stated Amount
thereof to reflect the change specified in such Notice of LC Activity.  From the effective date of any such
adjustment, the LC Fees payable pursuant to Section 3.3(e) shall
be computed on the basis of the Stated Amount as so adjusted.


 


(d)           Drawings; LC Loans.


 


(i)            Drawings.  Subject to
the terms and conditions of this Financing Agreement, each Lender in respect of
the LC Loans, and its participants and permitted assignees pursuant to Sections
12.14 and 12.15 of the 


 


6

















 


Financing
Agreement, respectively, severally agrees to advance to Issuing Bank, for the
account of Borrower, such Lender’s Proportionate Share of the full amount of
any Drawing Payment under any Letter of Credit. 
Upon the making of any Drawing Payment, Borrower shall be obligated to
reimburse Issuing Bank for such Drawing Payment as provided below.


 


(ii)           Lender Participation. 
Upon a Drawing Payment on any Letter of Credit, each Lender in respect
of the LC Loans, and its participants and permitted assignees pursuant to Sections
12.14 and 12.15 of the Financing Agreement, respectively, hereby
severally agrees that it shall forthwith purchase from Issuing Bank a
participation interest in the unreimbursed Drawing Payment made by Issuing Bank
under such Letter of Credit, in an amount equal to such Lender’s Proportionate
Share of such unreimbursed Drawing Payment.


 


(iii)          Reimbursement of O&M Reserve LC.


 


Borrower hereby agrees to
repay any Drawing Payment and to pay all fees and interest thereon at the rates
provided herein, which obligation shall be irrevocable, absolute and
unconditional; provided, that as long as an Event of Default (other than
an Event of Default that will be cured with the proceeds of the proposed draw
on the O&M Reserve LC) has not occurred and is continuing and unless
Borrower has repaid the full amount of such Drawing Payment on the next
Business Day, the amount of such Drawing Payment shall be converted to a loan
made pursuant to this Section 2.2(d)(iii) (an “O&M Reserve
LC Loan”).  Each O&M Reserve LC
Loan, if any, shall be due and payable in full on the LC Loan Maturity
Date.  Borrower shall pay interest on the
unpaid amount of the O&M Reserve LC Loan calculated from the date of such
O&M Reserve LC Loan until such O&M Reserve LC Loan is repaid in full at
a rate per annum equal to the Base Rate plus the Applicable Base Rate Margin.


 


(iv)          Reimbursement of Debt Service Reserve LC.


 


Borrower hereby agrees to
repay any Drawing Payment and to pay all fees and interest thereon at the rates
provided herein, which obligation shall be irrevocable, absolute and
unconditional; provided, that as long as an Event of Default (other than
an Event of Default that will be cured with the proceeds of the proposed draw
on the Debt Service Reserve LC) has not occurred and is continuing and unless
Borrower has repaid the full amount of such Drawing Payment on the next
Business Day, the amount of such Drawing Payment shall be converted to a loan
made pursuant to this Section 2.2(d)(iv) (a “Debt Service
Reserve LC Loan”).  Each Debt Service
Reserve LC Loan, if any, shall be due and payable in full on the LC Loan
Maturity Date.  Borrower shall pay
interest on the unpaid amount of the Debt Service Reserve LC Loan calculated
from the date of such Debt Service Reserve LC Loan until such Debt Service
Reserve LC 


 


7

















 


Loan is repaid in full at
a rate per annum equal to the Base Rate plus the Applicable Base Rate Margin.


 


(v)           Reimbursement of Hedge LC.


 


Borrower hereby agrees to
repay any Drawing Payment and to pay all fees and interest thereon at the rates
provided herein, which obligation shall be irrevocable, absolute and
unconditional; provided, that as long as an Event of Default (other than
an Event of Default that will be cured with the proceeds of the proposed draw
on the applicable Hedge LC) has not occurred and is continuing and unless
Borrower has repaid the full amount of such Drawing Payment on the next
Business Day, the amount of the applicable Drawing Payment in respect of any
Hedge LC shall be converted to a loan made pursuant to this Section 2.2(d)(v) (a
“Hedge LC Loan”).  Each Hedge LC
Loan, if any, shall be due and payable in full on the LC Loan Maturity
Date.  Borrower shall pay interest on the
unpaid amount of each Hedge LC Loan calculated from the date of such Hedge LC
Loan until such Hedge LC Loan is repaid in full at a rate per annum equal to
the Base Rate plus the Applicable Base Rate Margin.


 


(vi)          Reimbursement of Working Capital LC.


 


Borrower hereby agrees to
repay any Drawing Payment and to pay all fees and interest thereon at the rates
provided herein, which obligation shall be irrevocable, absolute and
unconditional; provided, that as long as an Event of Default (other than
an Event of Default that will be cured with the proceeds of the proposed draw
on the applicable Working Capital LC) has not occurred and is continuing and
unless Borrower has repaid the full amount of such Drawing Payment on the next
Business Day, the amount of the applicable Drawing Payment in respect of any
Working Capital LC shall be converted to a loan made pursuant to this Section 2.2(d)(vi) (a
“Working Capital LC Loan”).  Each
Working Capital LC Loan, if any, shall be due and payable in full on the LC
Loan Maturity Date.  Borrower shall pay
interest on the unpaid amount of each Working Capital LC Loan calculated from
the date of such Working Capital LC Loan until such Working Capital LC Loan is
repaid in full at a rate per annum equal to the Base Rate plus the Applicable
Base Rate Margin.


 


(vii)         Interim Interest. 
Without limiting the Borrower’s obligation to reimburse Drawing Payments
pursuant to this Section 2.2(d), if the Issuing Bank makes any
Drawing Payment, then, unless the Borrower reimburses that Drawing Payment in
full on the date that such Drawing Payment is made, the unreimbursed amount of
that Drawing Payment shall bear interest, for each day from and including the
date that such Drawing Payment is made to but excluding the date that the
Borrower reimburses that Drawing Payment at the rate per annum equal to the
Base Rate in effect during such period plus the Applicable Base Rate
Margin.


 


8

















 


(e)           Adjustments to Stated Amount;
Cancellation.


 


(i)            Adjustments to Stated Amount. 
The Stated Amount of each Letter of Credit (i) shall be adjusted as
provided in Section 2.2(b) and (ii) may be adjusted as
provided in Section 2.2(c).


 


(ii)           Cancellation Upon Acceleration. 
At such time as, pursuant to the terms hereof, Administrative Agent and
the Lenders have accelerated the Obligations and unless Borrower has provided
Issuing Bank with cash collateral on terms and conditions reasonably
satisfactory to Issuing Bank in an amount equal to 103%  of
the Stated Amount of each Letter of Credit then outstanding and all
Reimbursement Obligations of Borrower then outstanding, Issuing Bank shall be
entitled to cancel each Letter of Credit at any time at least thirty
(30) days after delivery to Administrative Agent, the beneficiary of such
Letter of Credit and Borrower of a written notice of such intent to cancel.


 


(iii)          Expiration.  The Letters
of Credit shall expire on their respective Expiration Dates which shall in no
event be later than the LC Loan Maturity Date, or on such earlier date if
terminated pursuant to the terms of this Financing Agreement or the applicable
Letter of Credit.


 


(iv)          Lender Participation. 
The several obligations of (x) each Lender, and its participants
and permitted assignees pursuant to Sections 12.14 and 12.15 of
the Financing Agreement, who have purchased a participation in the Letters of
Credit in such Lender’s Proportionate Share of the maximum amount which is or
at any time may become available to be drawn thereunder, and (y) each
Lender, and its participants and permitted assignees pursuant to Sections
12.14 and 12.15 of the Financing Agreement, to make LC Loans in
accordance with Section 2.2(d) shall be absolute, irrevocable
and unconditional under any and all circumstances whatsoever and shall not be
affected by any circumstance, including, without limitation, (A) any
set-off, counterclaim, recoupment, defense or other right which any such Lender
or any other Person may have against the Administrative Agent, the Issuing
Bank, the Borrower or any other Person for any reason whatsoever; (B) the
occurrence or continuance of a Default, an Event of Default or the termination
of the Commitments, the acceleration of the Term Loans, Bridge Loans or the
termination of such Letter of Credit; (C) any adverse change in the
condition (financial or otherwise) of the Borrower or any other Person; (D) any
breach of any Financing Document by any party thereto; (E) the fact that
any condition precedent to (1) the issuance of, or the making of any
payment under, such Letter of Credit or (2) the making of LC Loans, was
not met; (F) any violation or asserted violation of law by any Lender or
any Affiliate thereof; or (G) to the extent permitted under applicable
law, any other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing. 
Immediately upon the issuance of any Letter of 


 


9

















 


Credit, Issuing
Bank shall be deemed to have sold and transferred to such Lender, and such
Lender shall be deemed to have purchased and received from Issuing Bank, in
each case irrevocably and without any further action by any party, an undivided
interest and participation in the Letter of Credit, each Drawing and the other
obligations in respect thereof in an amount equal to such Lender’s
Proportionate Share referenced above. 
Each payment by each such Lender or other Person to the Issuing Bank for
its own account shall be made without any offset, abatement, withholding or
reduction whatsoever.  If the Issuing
Bank is required at any time to return to the Borrower or to a trustee,
receiver, liquidator, custodian or other similar official any portion of the
payments made by the Borrower to such Issuing Bank in payment of any
Reimbursement Obligation or interest thereon upon the insolvency of the
Borrower, or the commencement of any case or proceeding under any bankruptcy,
insolvency or other similar law with respect to the Borrower, each applicable
Lender or other Person shall, on demand of the Issuing Bank, forthwith return
to the Issuing Bank any amounts transferred to such Lender or other Person by
the Issuing Bank in respect thereof pursuant to this subsection plus such Lender’s or other Person’s pro
rata share of any interest on such payments required to be paid to the Person
recovering such payments plus
interest on the amount so demanded from the day such demand is made, if such
demand is made by 2:00 p.m., New York time, or from the next following
Business Day, if such demand is made after 2:00 p.m., New York time, to
but not including the day such amounts are returned by such Lender or other
Person to the Issuing Bank at a rate per annum for each day equal to (A) the
Federal Funds Effective Rate for the day of such demand and (B) the Federal
Funds Effective Rate plus 3.00% for each day thereafter.


 


(v)           Draw Procedures. 
Issuing Bank shall require each Lender in respect of the LC Loans, and
its participants and permitted assignees pursuant to Sections 12.14 and 12.15
of the Financing Agreement, respectively, to severally pay to Issuing Bank its
respective Proportionate Share of all or any portion of any Drawing Payment
made or to be made by Issuing Bank under any Letter of Credit by contacting
Administrative Agent telephonically (promptly confirmed in writing) at any time
after Issuing Bank has received notice of or request for such Drawing, and
specifying the amount of such Drawing, such Lender’s Proportionate Share
thereof, and the date on which such Drawing is to be made or was made and
Administrative Agent shall promptly notify each Lender thereof; provided,
however, that Issuing Bank shall not request such Lenders to make any
payment in connection with any portion of a Drawing for which Issuing Bank has
received a Reimbursement Payment from Borrower. 
Upon receipt of any such request for payment from Issuing Bank, such
Lender shall pay to Issuing Bank such Lender’s Proportionate Share of the
unreimbursed portion of such Drawing, together with interest thereon at a per
annum rate equal to the Federal Funds Effective Rate from the date of 


 


10

















 


such Drawing to
the date on which such Lender makes payment. 
Such Lender’s obligation to make each such payment to Issuing Bank shall
be absolute, unconditional and irrevocable, and shall not be affected by any
circumstance whatsoever, including the occurrence or continuance of any
Inchoate Default or Event of Default, or the failure of any other Lender to
make any payment hereunder, and such Lender further agrees that each such
payment shall be made without any offset, abatement, withholding or reduction
whatsoever.  In the event that any
Lender fails to make available to Issuing Bank the amount of its Proportionate
Share in such LC Loan, Issuing Bank shall be entitled to recover such amount on
demand from such Lender together with interest thereon at the Federal Funds
Effective Rate plus 3.00% (without any right to indemnification by such Lender
from Borrower in respect of such interest). 
If any
Reimbursement Payment is made by Borrower to Issuing Bank, Issuing Bank shall
pay to such Lender which has paid its Proportionate Share of the Drawing such
Lender’s Proportionate Share of the Reimbursement Payment and then retain the
balance of such Reimbursement Payment.


 


(f)            Commercial Practices. 
Borrower agrees that none of Issuing Bank, Administrative Agent, nor any
Lender (nor any of their respective directors, officers or employees) shall be
liable or responsible for, and the Reimbursement Obligations of Borrower and
Borrower’s obligations to repay the O&M Reserve LC Loan, Debt Service
Reserve LC Loan, Hedge LC Loans and the Working Capital LC Loans pursuant to
the terms of this Financing Agreement shall be absolute, unconditional and
irrevocable, and shall be performed strictly in accordance with the terms of
this Financing Agreement regardless of (i) the use of any Letter of Credit
or for any acts or omissions of any beneficiary or transferee in connection
therewith; (ii) payment by Issuing Bank against presentation of documents
which do not strictly comply with the terms of any Letter of Credit, including
failure of any documents to bear any reference or adequate reference to such
Letter of Credit so long as such documents substantially comply with the terms
of such Letter of Credit and Issuing Bank has not acted with gross negligence
or willful misconduct; (iii) any amendment or waiver of or any consent to
departure from all or any terms of any of the Financing Documents agreed by
Borrower; (iv) the existence of any claim, setoff, defense or other right
which Borrower may have at any time against any beneficiary or transferee of
any Letter of Credit (or any Persons for whom any such beneficiary or
transferee may be acting), Administrative Agent, Issuing Bank, any Lender or any
other Person, whether in connection with this Financing Agreement, the
transactions contemplated herein or in the other Financing Documents, or in any
unrelated transaction; (v) any demand, statement, certificate, draft or
other document presented under any Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement therein
being untrue or inaccurate in any respect; (vi) any extension of time for
or delay, renewal or compromise of or other indulgence or modification to the
Drawing Payment granted or agreed to by Administrative Agent, Issuing Bank or
any Lender; (vii) any failure of the relevant Project Document under which
the relevant Letter of Credit is issued or 


 


11

















 


any other
Operative Document to be in full force and effect, (viii) any failure to
perfect or preserve the perfection of any Lien thereon, or the release of any
of the Collateral securing the performance or observance of the terms of this
Financing Agreement or any of the other Financing Documents, or (ix) any
other circumstances whatsoever in making or failing to make payment under any
Letter of Credit, except, in each case, that Issuing Bank shall be liable to
Borrower for acts or events described in clauses (i) through (ix) above
to the extent suffered by Borrower which Borrower provides evidence that such
acts or events were caused by (A) Issuing Bank’s willful misconduct or
gross negligence in determining whether a drawing made under any Letter of
Credit complies with the terms and conditions stated therein or (B) Issuing
Bank’s willful failure to pay under any Letter of Credit after a drawing by the
beneficiary strictly complying with the terms and conditions stated
therein.  Without limiting the foregoing,
Issuing Bank may accept any document that appears on its face to be in order,
without responsibility for further investigation.  Borrower hereby waives any right to object to
any payment made under any Letter of Credit with regard to a drawing that is in
the form provided in such Letter of Credit but which varies with respect to
punctuation (except punctuation with respect to any Dollar amount specified
therein), capitalization, spelling or similar administrative matters of form
that do not change meaning.


 


(g)           On the earlier of (i) the day when
each Letter of Credit expires by its terms and (ii) the LC Loan Maturity
Date, Borrower shall cause each Letter of Credit to be irrevocably terminated
by the beneficiary thereof (pursuant to documentation acceptable to the Issuing
Bank) and surrendered to the Issuing Bank for cancellation.


 


2.3    
Use of Loan Proceeds.


 


Borrower
shall use the proceeds of the Loans solely for the purposes and in the order
and manner provided in Section 7.1.


 


2.4    
Total Commitment.


 


(a)           Working Capital Letters of Credit. 
The sum of the maximum aggregate Stated Amount of all Letters of Credit
outstanding at any time, the Stated Amount of any requested but not yet issued
Letters of Credit, any Reimbursement Obligations remaining unpaid at any time
and LC Loans outstanding at any time shall not exceed $26,700,000 (such amount,
as reduced from time to time, the “Total LC Commitment”).  The maximum Stated Amount of the O&M
Reserve LC outstanding and the Stated Amount of any requested but not yet
issued O&M Reserve LC at any time shall not exceed $2,570,000.  The maximum Stated Amount of the Debt
Service Reserve LC outstanding at any time and the Stated Amount of any
requested but not yet issued Debt Service Reserve LC shall not exceed
$6,630,000.  The maximum Stated Amount of
all Hedge LCs outstanding at any time shall not exceed $16,500,000.  The maximum Stated Amount of all Working
Capital LCs outstanding at any time shall not exceed $1,000,000.


 


12














 


(b)           Term Loans.  The Total
Term Loan Commitment on the Closing Date is $71,000,000.


 


(c)           Bridge Loans. 
The Total Bridge Loan Commitment on the Closing Date is $18,632,891.16.


 


(d)           Total Commitment. 
The Total Commitment on the Closing Date is $116,332,891.16.  The Total Commitment shall terminate without
any further action from Borrower, the Agents and the Lenders upon the
disbursement of Term Loans and the Bridge Loans, and the issuance of Letters of
Credit in the amount of the Total Commitment pursuant to Section 2.1
and Section 2.2, as applicable. 
Borrower may from time to time upon two (2) Business Days notice to
Administrative Agent, permanently reduce (without premium or penalty), by an
amount of $500,000 or integral multiples of $100,000 in excess thereof or
cancel in its entirety the Total LC Commitment, the Total Term Loan Commitment
or the Total Bridge Loan Commitment.


 


2.5     Notice of Borrowing of
Loans.


 


Borrower
shall request the Term Loans and Bridge Loans by delivering to Administrative
Agent an initial irrevocable written notice in the form of Exhibit D-4
(the “Notice of Borrowing”). 
Borrower shall give the Notice of Borrowing to Administrative Agent not
later than 12:00 p.m., New York time, at least three (3) Business
Days before the proposed Borrowing (or as otherwise agreed among Administrative
Agent, the Lenders and Borrower).


 


2.6    
Defaulting Lenders.


 


Notwithstanding any provision of this
Financing Agreement to the contrary, if any Lender becomes a Defaulting Lender,
then the following provisions shall apply for so long as such lender is a
Defaulting Lender:


 


(a)           fees shall cease to accrue on the
unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 3.3;


 


(b)           the Commitment of such Defaulting Lender
shall not be included in determining whether all Lenders or the Required
Lenders have taken or may take any action hereunder (including any consent to
any amendment or waiver); provided, that any waiver, amendment or
modification requiring the consent of all Lenders or each affected Lender which
affects such Defaulting Lender differently than other affected Lenders shall
require the consent of such Defaulting Lender;


 


(c)           if any LC Exposure exists at the time a
Lender with an LC Commitment and/or LC Loan becomes a Defaulting Lender then:


 


(i)            all or any part of such LC Exposure shall
be reallocated among the non-Defaulting Lenders in accordance with their
respective Proportionate Share but only to the extent the sum of all
non-Defaulting Lenders LC 


 


13

















 


Exposure plus such
Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting
Lenders’ Commitments;


 


(ii)           if the reallocation described in clause (i) above
cannot, or can only partially, be effected, the Borrower shall, within one (1) Business
Day following notice by the Administrative Agent, cash collateralize such
defaulting Lender’s LC Exposure (after giving effect to any partial
reallocation pursuant to clause (i) above) in accordance with the
procedures set forth in Section 2.2(e) for so long as such LC
Exposure is outstanding;


 


(iii)          if the Borrower cash collateralizes any
portion of such Defaulting Lender’s LC Exposure pursuant to this Section 2.6(c),
the Borrower shall not be required to pay any fees to such Defaulting Lender
pursuant to Section 3.3(e) with respect to such Defaulting
Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is
cash collateralized;


 


(iv)          if the LC Exposure of the non-Defaulting
Lenders is reallocated pursuant to this Section 2.6(c), then the
fees payable to the Lenders pursuant to Section 3.3(e) shall
be adjusted in accordance with each such non-Defaulting Lender’s Proportionate
Share; and


 


(v)           if any Defaulting Lender’s LC Exposure is
neither cash collateralized nor reallocated pursuant to this Section 2.6,
then, without prejudice to any rights or remedies of the Issuing Bank or any
Lender hereunder, all participation fees payable under Section 3.3
with respect to such Defaulting Lender’s LC Exposure shall be payable to the
Issuing Bank until such LC Exposure is cash collateralized and/or reallocated.


 


(d)           so long as any Lender with an LC
Commitment and/or LC Loan is a Defaulting Lender, the Issuing Bank shall not be
required to issue, amend, renew or extend any Letter of Credit, unless it is
satisfied that the related LC Exposure will be 100% covered by the LC
Commitments of the non-Defaulting Lenders and/or cash collateral will be
provided by the Borrower in accordance with this Section 2.6;


 


(e)           any amount payable to such Defaulting
Lender hereunder (whether on account of principal, interest, fees or otherwise
and including any amount that would otherwise be payable to such Defaulting
Lender shall, in lieu of being distributed to such Defaulting Lender, be
retained by the Administrative Agent in a segregated account and, subject to
any applicable requirements of law, be applied at such time or times as may be
determined by the Administrative Agent (i) first, to the payments of any
amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) second
to the payment of any amounts owing by such Defaulting Lender to the Issuing
Bank hereunder, (iii) third, to the funding of any Loan or the funding or
cash collateralization of any participating 


 


14

















 


interest in any
Letter of Credit in respect of which such Defaulting Lender has failed to fund
its portion thereof as required by this Agreement, as determined by the
Administrative Agent, (iv) fourth, if so determined by the Administrative
Agent and the Borrower, held in such account as cash collateral for future
funding obligations of any Defaulting Lender under this Agreement, (v) fifth,
pro rata, to the payment of any amounts owing to the Borrower or any Lender as
a result of any judgment of a court of competent jurisdiction obtained by the
Borrower or any Lender against such Defaulting Lender as a result of such
Defaulting Lender’s breach of its obligations under this Agreement and (vi) sixth,
to such Defaulting Lender’s or as otherwise directed by a court of competent
jurisdiction; provided, that if such payment is a prepayment of the principal
amount of any Loans or Reimbursement Obligations in respect of Drawing Payments
which a Defaulting Lender has funded in accordance with its participation
obligations, such payment shall be applied solely to prepay the Loans of, and
Reimbursement Obligations owed to, all non-Defaulting Lenders pro rata prior to
being applied to the prepayment of any Loans, or Reimbursement Obligations owed
to, any Defaulting Lender; and


 


(f)            so long as any Lender with an LC
Commitment and/or LC Loan is a Defaulting Lender for longer than thirty (30)
days, the Issuing Bank may resign by giving thirty (30) days’ written notice
thereof to the Lenders and Borrower, such resignation to be effective only upon
the acceptance of a successor Issuing Bank (reasonably satisfactory to the
Majority Lenders who are non-Defaulting Lenders and the Borrower) and the
replacement of all Letters of Credit issued hereunder (and the parties have
executed in conjunction therewith all necessary documentation).


 


In the
event that the Administrative. Agent, the Borrower and the Issuing Bank each
agrees that a Defaulting Lender has adequately remedied all maters that caused
such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders
shall be readjusted to reflect the inclusion of such Lender’s Commitment and on
such date such Lender shall purchase at par such of the Loans of the other
Lenders as the Administrative Agent shall determine may necessary in order for
such Lender to hold such Loans in accordance with its Proportionate Share.


 


ARTICLE 3.


GENERAL
PROVISIONS RELATED TO CREDIT FACILITIES


 


3.1    
Loan Funding.


 


(a)           Notice.  The Notice of
Borrowing and each Confirmation of Interest Period Selection shall be delivered
to Administrative Agent in accordance with Section 14.1.  Administrative Agent shall promptly notify
each Lender of the contents of such notices.


 


15

















 


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


 


(c)           Lender Funding. 
No later than 11:00 a.m., New York time, on the proposed date set
forth in the Notice of Borrowing subject to the satisfaction of the conditions
precedent set forth in Section 5.1, each Lender shall make
available its Term Loans and/or Bridge Loans, as applicable, requested in each
Notice of Borrowing in Dollars in immediately available funds by transferring
such funds into the Disbursement Account; provided, that, in connection with
the initial Notice of Borrowing delivered in connection with the Closing Date,
each Lender shall make available its Term Loans and/or Bridge Loans, as
applicable, by transferring such funds into an account designated by the Administrative
Agent.  The failure of any Lender to make
the Term Loan and/or Bridge Loan, as applicable, to be made by it as part of
any Borrowing shall not relieve any other Lender of its obligation hereunder to
make its Term Loan and/or Bridge Loan, as applicable.  No Lender shall have any obligation or
liability in respect of the failure of any other Lender to make the Term Loan
and/or Bridge Loan, as applicable, to be made by it as part of any Borrowing
made under this Financing Agreement.


 


(d)           Disbursement of Funds. 
Funds in the Disbursement Account shall be disbursed in accordance with Section 6(a) of
the Account Control Agreement.  No Agent
shall have any obligation or liability in respect of any disbursement of the
Loans to the extent funds in respect of such disbursements are not received
from the Lenders in accordance with Section 3.1(c).  Funds in all other Collateral Accounts shall
be disbursed in accordance with Article 9 of the Financing
Agreement and the Account Control Agreement.


 


3.2    
Prepayments.


 


Loans, subject to the terms and conditions of this Financing
Agreement, are prepayable in accordance with the following terms:


 


(a)           Terms of All Prepayments. 
Upon the prepayment of any Loan (whether such prepayment is an Optional
Prepayment or a Mandatory Prepayment), Borrower shall pay to Administrative
Agent for the account of each Lender owed such Loan, as applicable, (A) all
accrued interest to the date of such prepayment on the amount prepaid; (B) all
accrued fees, if any, to the date of such prepayment corresponding to the
amount being prepaid; (C) if such prepayment is the prepayment of a Loan
on a day other than the last day of an Interest Period for such Loan, all
Liquidation Costs, if any, incurred by such Lender as a result of such prepayment;
and (D) if such prepayment is a prepayment of the Fixed Portion resulting
in an early termination of an Interest Rate Agreement, the Interest Fix Fees,
with respect to such prepayment, if applicable. 
All Mandatory Prepayments and Optional Prepayments shall be applied to
reduce the remaining 


 


16

















 


Scheduled
Repayment Amounts in the inverse order of maturity of the Loan then
outstanding.  Loans prepaid may not be
re-borrowed.


 


(b)           Optional Prepayments. 
Subject to Section 3.2(a), Borrower may, at its option upon
five (5) Business Days’ irrevocable notice to Administrative Agent, prepay
(i) any Term Loans or Bridge Loans in whole or in part in a minimum amount
of $1,000,000, or (ii) any Term Loans pursuant to the Stetson II
Prepayment.  Each such notice of Optional
Prepayment shall specify such date, the aggregate principal amount of the Term
Loans or Bridge Loans, as applicable, to be prepaid on such date and the interest
to be paid on the prepayment date with respect to such principal amount being
prepaid, and shall be accompanied by a certificate of Borrower as to the
estimated Liquidation Costs (if any) and Interest Fix Fees (if any) due in
connection with such Optional Prepayment (calculated as if the date of such
notice were the date of the Optional Prepayment) setting forth the details of
such computation.  Within two (2) Business
Days after the date of such Optional Prepayment, Administrative Agent shall
deliver to Borrower and each applicable Lender a certificate of Administrative
Agent confirming the calculation of such Liquidation Costs (if any) or Interest
Fix Fees (if any) as of the specified prepayment date.  Borrower may make an Optional Prepayment with
respect to all Term Loans or Bridge Loans then outstanding at any time, without
any premium or penalty, except for Liquidation Costs or Interest Fix Fees, if
any.


 


(c)           Mandatory Prepayments. 
Subject to Section 3.2(a), Borrower shall prepay: (i) within
seven (7) Business Days after the Closing Date an amount equal to
$3,000,000 with respect to the Term Loans, which amount shall be paid from
amounts on deposit in the Stetson I Holding Account, (ii) on the date that
is earlier to occur of (A) the achievement of Final Completion (as defined
in the Stetson II Reed Agreement) and (B) the date of submission of the
Government Grant application in respect of the Stetson II Project, an amount
equal to the difference between $18,632,891.16 and the aggregate amount of paid
construction costs that constitute the eligible basis for the Government Grant
pursuant to Section 1603 of the American Recovery and Reinvestment Act of
2009 (as determined by the Administrative Agent in consultation with the
Independent Engineer), which amount shall be applied as a prepayment of Bridge
Loans, (iii) the Loans in an amount required in respect of an Upwind Array
Event pursuant to Section 7.27, (iv) the Loans in an amount
equal to the lesser of (A) 100% of Excess Cash and (B) the amount
required pursuant to Section 7.28, and (v) to the extent
otherwise provided by the terms of this Financing Agreement, including pursuant
to Section 6 of the Account Control Agreement.


 


(d)           Pro Rata Treatment of Lenders. 
Except as expressly set forth in this Section 3.2(d), all
prepayments of Loans shall be applied among the Lenders pro rata,
according to their respective Proportionate Shares of Loans at the time of the
applicable prepayment.  Prepayments of
Loans in accordance with Section 3.6(a) and Section 3.6(b) shall
be applied in accordance with the requirements set forth in those Sections.


 


17

















 


(e)           Funding of Prepayment Costs. 
Borrower shall fund Optional Prepayments solely from Borrower
Equity.  Except as otherwise provided in
this Financing Agreement or the Account Control Agreement, all Mandatory
Prepayments shall be funded pursuant to Section 6(b) of the Account
Control Agreement.


 


(f)            Prepayment or Reduction of Interest Rate
Agreements.  Any amount being prepaid in respect of the
Term Loans and/or Bridge Loans under this Financing Agreement (except for
prepayments under Sections 3.6(a) and 3.6(b)) may, at
the option of Borrower (i) be first applied to the Floating Portion and
then to the Fixed Portion or (ii) may be applied to the Floating Portion
and the Fixed Portion on a pro rata
basis.  Any prepayment of the Fixed
Portion of the Term Loans under this Financing Agreement shall be accompanied
by a concurrent reduction or prepayment by Borrower of its exposure and
obligations under the Interest Rate Agreements then in effect as provided in Section 3.9(b).


 


3.3    
Fees.


 


(a)           Structuring Fees. 
On the Closing Date, Borrower shall pay to the Joint Lead Arrangers
solely for each Joint Lead Arranger’s account the structuring fees in the
amount set forth in the Lender Fee Side Agreement.


 


(b)           Annual Agency Fee. 
Borrower shall pay to Administrative Agent on the Closing Date, solely
for the account of Administrative Agent, an administrative agency fee payable
in advance in an amount set forth in the Agency Fee Side Agreement.


 


(c)           Securities Intermediary Fees. 
Borrower shall pay to the Securities Intermediary on the Closing Date,
solely for the account of the Securities Intermediary, a fee in the amount and
on terms and conditions set forth in the Account Control Agreement.


 


(d)           Commitment Fees.


 


(i)            On each Payment Date during the
Availability Period (where all or any portion of such semi-annual period occurs
on or after the Closing Date)and on the last day of the Availability Period,
Borrower shall pay to Administrative Agent, for the benefit of the Lenders,
accruing from the Closing Date or the first day of such Payment Date, as the
case may be, Term Loan commitment fees (the “Term Loan Commitment Fees”)
for such period (or portion thereof) then ending equal to the product of (x) 1.00%
times (y) the daily
average Total Term Loan Commitment for such semi-annual period (or portion
thereof) times (z) a
fraction, the numerator of which is the number of days in such period (or
portion thereof) and the denominator of which is 360.


 


(ii)           On each Payment Date during the
Availability Period (where all or any portion of such semi-annual period occurs
on or after the Closing Date) and on the Bridge Loan Maturity Date, Borrower
shall pay to Administrative Agent, for the benefit of the Lenders, accruing
from the 


 


18

















 


Closing Date or
the first day of such Payment Date, as the case may be, Bridge Loan commitment
fees (the “Bridge Loan Commitment Fees”) for such period (or portion
thereof) then ending equal to the product of (x) 1.00% times (y) the daily average
Bridge Loan Commitment for such semi-annual period (or portion thereof) times (z) a fraction, the
numerator of which is the number of days in such period (or portion thereof)
and the denominator of which is 360.


 


(e)           Letter of Credit Fees.


 


(i)            With respect to any portion of the
Available LC Commitment that has not been cancelled, reduced or utilized by the
issuance of the Letters of Credit, on each Payment Date commencing from the
Closing Date and ending on the LC Loan Maturity Date and on any date on which a
Letter of Credit is issued, Borrower shall pay to Administrative Agent, for the
benefit of the Issuing Bank and the Lenders, accruing from the Closing Date or
the first day of such semi-annual period, as the case may be, a commitment fee
(the “LC Commitment Fee”) for such six (6) month period (or portion
thereof) then ending equal to the product of (i) 1.00% times (ii) the
daily average Available LC Commitment for such six (6) month period (or
portion thereof) times (iii) a fraction, the numerator of which is the
number of days in such six (6) month period (or portion thereof) and the
denominator of which is 360.


 


(ii)           Upon the issuance of any Letter of Credit,
on each Payment Date prior to the Expiration Date of such Letter of Credit
(where all or any portion of such six (6) month period occurs on or after
the date of such issuance) and on the date of such Expiration Date when such
Letter of Credit is returned to the Issuing Bank for cancellation (or, if such
Letter of Credit is reduced or canceled prior to such date, on the date of such
reduction or cancellation), Borrower shall pay to Administrative Agent, for the
benefit of the Issuing Bank and the Lenders, accruing from the date of such
issuance, a letter of credit fee (the “Letter of Credit Fee”) for such
six (6) month period (or portion thereof) then ending equal to the product
of (A) the Applicable Margin times (B) the daily average Stated
Amount of such Letter of Credit for such six (6) month period (or portion
thereof) times (C) a fraction, the numerator of which is the number of
days in such six (6) month period (or portion thereof) and the denominator
of which is 360.


 


(iii)          As a condition precedent to the issuance
of each Letter of Credit, Borrower shall pay to the Administrative Agent for
the account of the Issuing Bank, an upfront letter of credit fee (the “LC
Fronting Fee”) in the amount set forth in the Lender Fee Side Agreement.


 


19

















 


3.4    
Other Payment Terms.


 


(a)           Place and Manner. 
Borrower shall make all payments due to each Lender, Issuing Bank and
Administrative Agent hereunder to the Administrative Agent Account for the
account of each Lender, Issuing Bank or Administrative Agent (as the case may
be) in Dollars and in immediately available funds not later than 12:00 p.m.,
New York time, on the date on which such payment is due.  Any payment made after such time on any day
shall be deemed received on the next Business Day after such payment is
received.  Upon receipt of any payment
hereunder on behalf of any Lender or the Issuing Bank, as applicable,
Administrative Agent shall remit such payment to such Lender or Issuing Bank,
as applicable, no later than 3:00 p.m., New York time, on the date of
receipt if received prior to 12:30 p.m., New York time, on such day, or
otherwise on the next Business Day.


 


(b)           Date.  Unless
otherwise specified in this Financing Agreement, whenever any payment due hereunder
shall fall due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall be
included in the computation of interest or fees, as the case may be.


 


(c)           Late Payments; Conversion to Base Rate
Loans.


 


(i)            If any amounts required to be paid by
Borrower under this Financing Agreement or the other Financing Documents
(including principal or interest payable on any Loan, and any fees or other
amounts otherwise payable by Borrower to Administrative Agent, Issuing Bank or
any Lender) remain unpaid after such amounts are due, subject to the applicable
cure periods, if any, set forth in Sections 10.1(a) or 10.1(d),
Borrower shall pay interest on the aggregate, outstanding balance of such amounts
from the date due until those amounts are paid in full at a per annum rate
equal to the Default Rate until the earlier of (A) the date when such
Event of Default has been cured by Borrower to the satisfaction of
Administrative Agent (acting with the consent of the Majority Lenders and the
Issuing Bank) or (B) the date when any and all Obligations of Borrower
under this Financing Agreement and all other Financing Documents have been
indefeasibly paid in full in cash and performed as required hereunder and
thereunder.


 


(ii)           Without limiting any rights or remedies
of the Agents under Article 10 or other Financing Documents, as
long as any Event of Default shall have occurred and be continuing: (A) Administrative
Agent shall suspend the continuation of any Loan (if any) on the basis of a
LIBO Rate, in which event all Loans then outstanding shall be automatically
converted on the last Business Day of the respective Interest Periods therefor
into Base Rate Loans; (B) prior to such conversion, if an Event of Default
shall have occurred and is continuing, the then outstanding LIBO Rate Loans (if
any) shall accrue interest at the LIBO Rate Default Rate that shall be due and 


 


20

















 


payable on the
last Business Day of the applicable Interest Period; and (C) upon such
conversion to Base Rate Loans, the resulting Base Rate Loans shall accrue
interest at a rate per annum equal to the Base Rate Default Rate.  The interest accruing at the Base Rate
Default Rate, shall be payable on demand and/or on each Payment Date
thereafter, as applicable, commencing on the date of such conversion.  All computations of the LIBO Rate Default
Rate shall be based on a year of 360 days and the actual days elapsed
(including the first day, but excluding the last day of the applicable Interest
Period).  All computations of the Base
Rate Default Rate shall be based on a 365 day year (or 366 day year during a
leap year) with respect to the actual days elapsed when such Base Rate Default
Rate is payable.  Interest accruing at
the Base Rate Default Rate shall include the first day, but exclude the last
day of the period for which such interest is payable.


 


(d)           Net of Taxes, Etc.


 


(i)            Taxes.  Any and all
payments to or for the benefit of any Lender or the Issuing Bank by Borrower
hereunder or under any other Financing Document shall be made free and clear of
and without deduction, setoff or counterclaim of any kind whatsoever and in
such amounts as may be necessary in order that all such payments, after
deduction for or on account of liabilities of any Lender or the Issuing Bank
with respect to any present or future taxes, levies, imposts, deductions,
charges or withholdings arising from or relating to such Lender’s (or the
Issuing Bank’s) Loans made under this Financing Agreement, excluding (i) taxes
imposed on or measured by the income or capital of any Lender or the Issuing
Bank by any jurisdiction or any political subdivision or taxing authority
thereof or therein as a result of a connection between such Lender or the
Issuing Bank and such jurisdiction or political subdivision, other than a
connection resulting solely from executing, delivering or performing its
obligations or receiving a payment under, or enforcing, this Financing
Agreement or any Note, (ii) any branch profits taxes imposed by the United
States or any similar tax imposed by any other jurisdiction in which such
Lender or the Issuing Bank is located, or (iii) any withholding tax that
is imposed on amounts payable to any Lender or the Issuing Bank that is
attributable to such Lender’s or the Issuing Bank’s failure to comply with Section 3.4(e) or
to the inaccuracy of any certification made pursuant to Section 3.4(e) unless
such inaccuracy arose as the result of a change in applicable law or the
interpretation or administration thereof by any Governmental Authority after
the date such certification was made (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities being hereinafter
referred to as “Taxes”), shall be not less than the amounts otherwise
specified to be paid under this Financing Agreement and the other Financing
Documents.  If Borrower shall be required
by law to withhold or deduct any Taxes imposed by the United States or any
political subdivision thereof from or 


 


21

















 


in respect of any
sum payable hereunder or under any other Financing Document to any Lender or
the Issuing Bank, and if such Lender or the Issuing Bank shall have complied
with its obligations set forth in Section 3.4(e), (A) the sum
payable shall be increased as may be necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 3.4(d)), such Lender or the Issuing Bank
receives an amount equal to the sum it would have received had no such
deductions been made; (B) Borrower shall make such deductions; and (C) Borrower
shall pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law. 
If Borrower shall make any payment under this Section 3.4(d) to
or for the benefit of any Lender or the Issuing Bank with respect to Taxes and
if such Lender or the Issuing Bank determines in its discretion, exercised in good
faith, that it has received the benefit of any credit or deduction for such
Taxes, then such Lender or the Issuing Bank shall pay to Borrower an amount
equal to the amount of such credit or deduction actually received by the Lender
or the Issuing Bank; provided, however, that the aggregate amount payable by such Lender or
the Issuing Bank pursuant to this sentence shall not exceed the aggregate
amount previously paid by Borrower with respect to such Taxes.  In addition, and without duplication of other
taxes or charges addressed herein, Borrower agrees to pay any present or future
stamp, recording or documentary taxes and any other excise or property taxes,
charges or similar levies that arise under the laws of the United States of
America or the State of New York from any payment made hereunder or under any
other Financing Document or from the execution or delivery or otherwise with
respect to this Financing Agreement or any other Financing Document
(hereinafter referred to as “Other Taxes”).


 


(ii)           Indemnity.  Borrower shall
indemnify each Lender and the Issuing Bank for the full amount of Taxes and
Other Taxes (including any Taxes or Other Taxes imposed by any jurisdiction on
amounts payable under this Section 3.4(d)) arising from the
execution, delivery or performance of its obligations or from receiving a
payment hereunder, or enforcing this Financing Agreement or any Financing
Document, paid by any Lender or the Issuing Bank, or any liability (including
penalties, interest and reasonable and reasonably documented expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other Taxes
were correctly or legally asserted; provided that Borrower shall not be obligated to indemnify any
Lender or the Issuing Bank for any penalties, interest or expenses relating to
Taxes or Other Taxes arising from the indemnitee’s gross negligence, willful
misconduct or unexcused breach of this Financing Agreement as determined by a
final non-appealable judgment of a court of competent jurisdiction.  Each Lender and the Issuing Bank agrees to
give notice to Borrower of the assertion of any claim against such Lender or
the Issuing Bank relating to such Taxes or Other Taxes as promptly as is
practicable, and in no event later than ten (10) days prior to


 


22














 


the final expiration of any
period available to such Lender or the Issuing Bank under applicable law for
challenging such a claim; provided, however, that any Lender’s or
the Issuing Bank’s failure to notify Borrower within such period shall not
relieve Borrower of its obligation under this Section 3.4(d) with
respect to claims arising prior to such time as Borrower receives notice from
the indemnitee as provided herein, but shall relieve Borrower of its
obligations under this Section 3.4(d) with respect to interest
and penalties between the end of the period and such time as Borrower receives
notice from such Lender or the Issuing Bank as provided herein.  Payments by Borrower pursuant to this
indemnification shall be made within thirty (30) days from the date such Lender
or the Issuing Bank makes written demand therefor (submitted through
Administrative Agent), which demand shall be accompanied by documentation
establishing, in reasonable detail, the basis and calculation thereof and
certifying that the method used to calculate such amount is fair and
reasonable.  Following a written request
by Borrower setting forth in reasonable detail the basis therefor, each Lender
and the Issuing Bank agrees either (i) in good faith to contest Taxes or
Other Taxes with respect to which such Lender or the Issuing Bank has received
an indemnity payment pursuant to this Section 3.4(d)(ii), or (ii) to
permit Borrower to contest such Taxes or Other Taxes if such Lender’s or the
Issuing Bank’s permission would be required and to cooperate with Borrower in
such contest, in each case at Borrower’s sole cost and expense, provided that
nothing in the foregoing sentence shall oblige such Lender or the Issuing Bank
to disclose to Borrower its tax returns or other information it reasonably
considers to be confidential or proprietary or to take other actions that in
the reasonable judgment of such Lender or the Issuing Bank would be adverse to
its commercial interests.  Each Lender
and the Issuing Bank agrees to repay to Borrower any refund (including that
portion of any interest that was included as part of such refund with respect
to Taxes or Other Taxes paid by Borrower pursuant to this Section 3.4(d)),
as soon as commercially practicable after receipt of such refund, received by
such Lender or the Issuing Bank for Taxes or Other Taxes that were paid by
Borrower pursuant to this Section 3.4(d).


 


(iii)          Notice.  Within thirty (30) days after the date of any
payment of Taxes or Other Taxes by Borrower, Borrower shall furnish to
Administrative Agent, at the address referred to in Section 14.1,
the original or a certified copy of a receipt evidencing payment thereof, a
certified copy of the return reporting such payment or other evidence of such
payment reasonably satisfactory to Administrative Agent, in either instance,
certified by an Authorized Officer of Borrower. 
Administrative Agent shall promptly provide a copy of such receipt,
return or other evidence of payment to each Lender and the Issuing Bank.  Borrower shall compensate Administrative
Agent, Issuing Bank and each Lender for all reasonable losses and expenses
sustained by Administrative Agent, Issuing Bank or Lender, as the case may be,
as a result of any failure by Borrower to so


 


23

















 


furnish
the original or certified copy of such receipt, return or other evidence of
payment.


 


(iv)                              Survival of
Obligations.  The
obligations of Borrower under this Section 3.4(d) shall
survive the termination of this Financing Agreement and the repayment of the
Obligations for a period of two (2) years.


 


(e)                                                                                  Withholding
Exemption Certificates. 
Administrative Agent, on the Closing Date, and each Lender, upon
becoming a Lender hereunder, and each Person to which any Lender grants a
participation (or otherwise transfers its interest in this Financing
Agreement), agrees that it will deliver, as soon as commercially practicable,
to Borrower and Administrative Agent (and Administrative Agent agrees that it
will promptly deliver to Borrower) (i) in the case of Administrative
Agent, Form W-8IMY (together with any withholding statement required by
applicable law) in respect of amounts to be received for or on account of the
Lenders and Form W-8ECI in respect of amounts to be received for its own
account, each duly completed; (ii) in the case of a Lender or Person that
is a United States person (as defined in Section 7701(a)(30) of the Code),
a copy of a United States Internal Revenue Service Form W-9, duly
completed; or (iii) in the case of a Lender or Person that is not a United
States person, a duly completed and executed letter in the form of Exhibit L-1,
Exhibit L-2 or Exhibit L-3 (Forms of “Withholding
Certificate (Treaty)”, “Withholding Certificate (Effectively
Connected)” and “Withholding Certificate (Portfolio Interest)”)
as appropriate, and two duly completed copies of United States Internal Revenue
Service Form W-8BEN or W-8ECI or successor applicable form, as the case
may be, certifying in each case that Administrative Agent or Lender is entitled
to receive payments under this Financing Agreement without deduction or
withholding of any United States federal income or withholding taxes and
including, in each case, a U.S. taxpayer identification number (“TIN”)
if required by such form or otherwise necessary to obtain the benefits being
claimed.  Each Lender which delivers to
Borrower and Administrative Agent a Form W-8BEN or W-8ECI pursuant to the
preceding sentence further undertakes to deliver to Borrower and to
Administrative Agent further copies of the said letter and Form W-8BEN or
W-8ECI, or successor applicable forms, or other manner of certification or
procedure, as the case may be, on or before the date that any such letter or
form expires or becomes obsolete or within a reasonable time after gaining
knowledge of the occurrence of any event requiring a change in the most recent
letter and forms previously delivered by it to Borrower and Administrative
Agent, and such extensions or renewals thereof as may reasonably be requested
by Borrower or Administrative Agent, certifying in the case of a Form W-8BEN
or W-8ECI that such Lender is entitled to receive payments under this Financing
Agreement and the other Financing Documents without deduction or withholding of
any United States federal income or withholding taxes, unless a change in
applicable law or the


 


24

















 


interpretation or
administration thereof by any Governmental Authority has occurred prior to the
date on which any such delivery would otherwise be required, which change
renders all such forms inapplicable or which change would prevent a Lender from
duly completing and delivering any such letter or form with respect to it and
such Lender advises Borrower that it is not capable of receiving payments
without any deduction or withholding of United States federal income or
withholding tax.  Borrower shall not be
obligated to pay any additional amounts in respect of United States Federal
income tax pursuant to Section 3.4(d) (or make an
indemnification payment pursuant to Section 3.4(d)) to any Lender
(including any Person to which any Lender sells, assigns, grants a
participation in, or otherwise transfers its rights under this Financing
Agreement) if the obligation to pay such additional amounts (or such
indemnification) would not have arisen but for a failure of such Lender to
comply with its obligations under this Section 3.4(e).  In the event that any Lender fails or is
unable to satisfy the provisions of this Section 3.4(e), Borrower,
Administrative Agent and such Lender shall cooperate to find another Person to
be substituted for such Lender in the manner provided in Section 12.13
hereof.


 


3.5                                 Pro Rata
Treatment.


 


(a)                                  Borrowing, Etc.  Except as otherwise provided in this
Financing Agreement, (i) each Loan and each reduction of the applicable
Commitments shall be made or allocated among the Lenders pro rata according to their respective
Proportionate Shares of such Loans or Commitments and (ii) each payment of
principal of and interest on Loans shall be made or shared among the Lenders
holding such Loans pro rata
according to the Proportionate Shares of such Loans.


 


(b)                                 Sharing of
Payments, Etc.  If any
Lender or the Issuing Bank (a “Benefited Lender”) shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
setoff, or otherwise) on account of Loans (or interest thereon) owed to it,
other than pursuant to Sections 3.6(a) or (b), in excess of
its ratable share of payments on account of such Loans obtained by all Lenders
entitled to such payments, such Lender shall forthwith purchase from the other
Lenders such participations in the Loans, as the case may be, as shall be
necessary to cause such purchasing Lender to share the excess payment ratably
with each of them; and if after taking into account such participations the
Benefited Lender continues to have access to additional funds of Borrower for
application on account of its debt, then the Benefited Lender shall use such
funds to reduce indebtedness of Borrower under the Financing Documents held by
it and share such payments with the other Lenders; provided, however,
that, if all or any portion of such excess payment is thereafter recovered from
such purchasing Lender, such purchase from such Lender shall be rescinded and
each other Lender shall repay to the purchasing Lender the purchase price to
the extent of such recovery together with an amount equal to such other Lender’s
ratable share (according to the proportion of (i) the amount of such other
Lender’s required


 


25

















 


repayment to (ii) the
total amount so recovered from the purchasing Lender) of any interest or other
amount paid or payable by the purchasing Lender in respect of the total amount
so recovered.  Borrower agrees that any
Lender so purchasing a participation from another Lender pursuant to this Section 3.5(b) may,
to the fullest extent permitted by law, exercise all its rights of payment
(including the right of setoff) with respect to such participation as fully as
if such Lender were the direct creditor of Borrower in the amount of such
participation; provided that Borrower shall have no
liability to the Lenders or the Issuing Bank hereunder to the extent that it
has made all payments to the Lenders, Issuing Bank and Administrative Agent
required to be made by Borrower hereunder.


 


3.6                                 Change of
Circumstances.


 


(a)                                  Inability to
Determine Rates.  If, on or
before the first day of any Interest Period for any LIBO Rate Loan (i) Administrative
Agent determines that the LIBO Rate for such Interest Period with respect to
the LIBO Rate Loans cannot be adequately and reasonably determined due to the
unavailability of funds in or other circumstances affecting the London
interbank market (in respect of a change of circumstances compared to the
totality of the circumstances that existed on the Closing Date), or (ii) Lenders
holding in the aggregate at least 33.33% of the then outstanding and unpaid
principal amount of LIBO Rate Loans shall advise Administrative Agent that (x) the
rates of interest for such LIBO Rate Loans do not adequately and fairly reflect
the cost to such Lenders of maintaining or continuing such LIBO Rate Loans
(compared to the totality of the circumstances that existed on the Closing
Date) or (y) deposits in Dollars in the London interbank market are not
available to such Lenders (as conclusively certified by each such Lender in
good faith in writing to Administrative Agent and to Borrower) in the ordinary
course of business in sufficient amounts to maintain or continue their LIBO
Rate Loans, then Administrative Agent shall immediately give notice of such
condition to Borrower (the “Notice of Inability to Determine Rates”).  After the giving of any such Notice of
Inability to Determine Rates and until Administrative Agent shall otherwise
notify Borrower and the Lenders that the circumstances giving rise to such
condition no longer exist, Borrower’s right to request the continuation of LIBO
Rate Loans shall be suspended.  Any Loan
outstanding at the commencement of any such suspension shall be converted at
the end of the then current Interest Period for such Loans into Base Rate
Loans.  Loans converted into Base Rate
Loans shall accrue interest at the rate per annum equal to the Base Rate then
in effect plus the Applicable Base Rate Margin.  All computations with respect to such Base
Rate Loan shall be made as set forth in the last sentence of Section 2.1(d).


 


(b)                                 Illegality.  If, after the date of this Financing
Agreement, the adoption of any Governmental Rule, any change in any
Governmental Rule or the application or requirements thereof (whether such
change occurs in accordance with the terms of such Governmental Rule as
enacted, as a result of amendment, or otherwise), any change in the
interpretation or administration of any Governmental Rule by any
Governmental Authority, or compliance by any Lender or Borrower with any


 


26

















 


request or directive
(whether or not having the force of law) of any Governmental Authority (a “Change
of Law”) shall make it unlawful or impossible for any Lender to maintain or
continue any LIBO Rate Loan, such Lender shall immediately notify
Administrative Agent and Borrower of such Change of Law (“Notice of Change
of Law”).  Upon receipt of such
notice (i) Borrower’s right to request the continuation of LIBO Rate Loans
and the obligations of Lenders to maintain or continue LIBO Rate Loans shall be
suspended for so long as such condition shall exist; and (ii) Borrower
shall, at the request of such Lender, either (y) immediately repay such
Loans pursuant to Section 3.2 or (z) convert such outstanding
Loans into Base Rate Loans, if such Lender shall notify Borrower that such
Lender may not lawfully maintain or continue such Loans.  Any conversion or prepayment of Loans made
pursuant to the preceding sentence prior to the last day of an Interest Period
for such Loans shall be deemed a prepayment thereof for purposes of Section 3.7.  Upon the giving of any such Notice of Change
of Law, such Base Rate Loans shall accrue interest equal to the Base Rate then
in effect plus the Applicable Base Rate Margin.  All computations with respect to such Base
Rate Loans shall be made as set forth in the last sentence of Section 2.1(d).


 


(c)                                  Increased Costs.  If, after the date of this Financing
Agreement, any Change of Law:


 


(i)            shall, without
duplication with amounts payable under Section 3.4(d), subject any
Lender to any tax, duty or other charge with respect to any Loan, or shall
change the basis of taxation of payments by Borrower to any Lender on such a
Loan (except for Taxes, Other Taxes, or changes in the rate of taxation on the
overall net income of any Lender);


 


(ii)           shall impose,
modify or require any reserve, special deposit or similar requirement
(including any modification of a Reserve Requirement) against assets held by,
deposits in or other liabilities for the account of, advances or loans by, or
any other acquisition of funds by, any Lender for any Loan; or


 


(iii)          shall impose on
any Lender any other requirement directly related to any Loan;


 


and the effect of any of the
foregoing is to increase the cost to such Lender of renewing, participating in
or maintaining any such Loan or to reduce any amount receivable by such Lender
hereunder or under the Notes; then Borrower shall from time to time, upon
demand by Administrative Agent (accompanied by a certificate from such Lender
setting forth in reasonable detail the amount of such increased costs or
reduced amounts and the basis for determination of such amount), pay to
Administrative Agent on behalf of such Lender additional amounts sufficient to
reimburse such Lender for such increased costs or to compensate such Lender for
such reduced amounts.  Thereafter,
Borrower may replace any such Lender so affected pursuant to Section 12.13.


 


27

















 


(d)                                 Capital
Requirements.  If any
Lender determines that (i) any Change of Law after the date of this
Financing Agreement increases the amount of capital required or expected to be
maintained by such Lender or the Lending Office of such Lender (a “Capital
Adequacy Requirement”) and (ii) the amount of capital maintained by
such Lender or such Lending Office which is attributable to, or based upon, the
Loans, or this Financing Agreement must be increased as a result of such
Capital Adequacy Requirement (taking into account such Lender’s policies with
respect to capital adequacy), Borrower shall pay to Administrative Agent on
behalf of such Lender or such Person, upon demand of Administrative Agent
(accompanied by a certificate from such Lender setting forth in reasonable
detail the computation of any such increased costs), such amounts as such
Lender or such Person shall reasonably determine are necessary to compensate such
Lender or such Person for such reasonably increased costs to such Lender or
Person of such increased capital. 
Thereafter, Borrower may replace any such Lender so affected pursuant to
Section 12.13.


 


(e)                                  Notice.  Each Lender will notify Administrative Agent
of any event occurring after the date of this Financing Agreement that will
entitle such Lender to compensation pursuant to this Section 3.6,
as promptly as is practicable and in no event later than 120 days after the
principal officer or other representative of such Lender responsible for
administering this Financing Agreement obtains knowledge thereof, and
Administrative Agent shall promptly notify Borrower of such event; provided that
any Lender’s failure to notify Administrative Agent within such 120-day period
shall not relieve Borrower of its obligation under this Section 3.6
with respect to claims arising prior to such time as Borrower receives notice
as provided herein but shall relieve Borrower of its obligations under this Section 3.6
with respect to interest and penalties between the end of such 120-day period
and such time as Borrower receives notice from such Lender as provided
herein.  No Person purchasing from a
Lender a participation in any Loan shall be entitled to any payment from or on behalf
of Borrower pursuant to Section 3.6(c) or 3.6(d) which
would be in excess of the applicable proportionate amount (based on the portion
of the Loan in which such Person is participating) which would then be payable
to such Lender if such Lender had not sold a participation in that portion of
the Loan.


 


3.7                                 Funding Losses.


 


If Borrower shall (a) repay
or prepay any Loans on any day other than the last day of an Interest Period
for such Loans (whether an Optional Prepayment or a Mandatory Prepayment); (b) fail
to borrow any Loans in accordance with the Notice of Borrowing delivered to
Administrative Agent (whether as a result of the failure to satisfy any
applicable conditions or otherwise other than a default by a Lender); or (c) fail
to make any prepayment of any Loan in accordance with any notice of prepayment
delivered to Administrative Agent; then Borrower shall, upon demand by any
Lender, reimburse such Lender (by payment to Administrative Agent for the
account of such Lender) for all documented and reasonable costs and losses
incurred by such Lender as a result of such repayment, prepayment or failure
(but such costs and losses shall not include any compensation for lost profit
or lost opportunity) (“Liquidation Costs”) together


 


28

















 


with any Interest Fix Fees. 
Borrower understands that such Liquidation Costs may include losses
incurred by a Lender as a result of funding and other contracts entered into by
such Lender to fund Loans.  Each Lender
demanding payment under this Section 3.7 shall deliver to
Administrative Agent a certificate setting forth in reasonable detail the basis
for and amount of costs and losses for which demand is made, and Administrative
Agent shall promptly provide such certificate to Borrower.


 


3.8                                 Alternate
Office; Minimization of Costs.


 


(a)                                  To the extent
reasonably possible, each Lender shall designate an alternative Lending Office
with respect to its Loans and otherwise take any reasonable actions to reduce
any liability of Borrower to such Lender under Section 3.4(d), 3.6(c) or
3.6(d), or to avoid the unavailability of Loans or the determination of
the interest rate under Section 3.6(a) or Section 3.6(b) so
long as such Lender, in its sole discretion, determines that such designation
is not materially disadvantageous to such Lender.


 


(b)                                 Any Lender may
designate a Lending Office other than that set forth on Exhibit I
and may assign all of its interests under the Financing Documents, and its
Notes, to such Lending Office, provided that such
designation and assignment do not at the time of such designation and
assignment increase the reasonably foreseeable liability of Borrower under Sections
3.4(d), 3.6(c), or 3.6(d) or make Loans or an interest
rate option unavailable pursuant to Section 3.6(a) or Section 3.6(b).


 


(c)                                  Each Lender
shall use reasonable efforts to avoid or minimize any additional costs, taxes,
expense or obligation which might otherwise be imposed on Borrower pursuant to Sections
3.4(d), 3.6(c) or 3.6(d) or as a result of such
Lender being subject to a Reserve Requirement or to avoid the unavailability of
Loans or the determination of the interest rate under Section 3.6(a) or
Section 3.6(b); provided, however, that such efforts
shall not cause the imposition on any Lender of any additional costs or legal
or regulatory burdens unless Borrower shall provide such Lender with an
indemnification for such additional costs in form and substance reasonably
satisfactory to such Lender.


 


3.9                                 Interest Rate
Protection.


 


(a)                                  Interest Rate
Agreement.  No later
than five (5) Business Days after the Closing Date, Borrower shall have
entered into, and shall maintain in full force and effect, one or more LIBO
Rate cap agreements and/or interest rate swaps with schedules and confirmations
thereto (collectively, the “Interest Rate Agreements”) with respect to a
minimum of 75% of the aggregate outstanding principal of the Term Loans on the
Closing Date, on terms and conditions reasonably satisfactory to the Borrower
and the counterparty to each such Interest Rate Agreement.  Borrower may substitute one type of Interest
Rate Agreement for another type of Interest Rate Agreement, which substitution
shall not otherwise constitute an Event of Default.


 


29

















 


(b)                                 Interest Fix
Fees.  Borrower shall pay all
reasonable costs, fees and expenses incurred by each counterparty providing the
Interest Rate Agreements that Borrower enters into hereunder, including any
reasonable costs, fees or expenses (including increased interest payments)
incurred in connection with any unwinding, breach or termination of such
Interest Rate Agreements (“Interest Fix Fees”).


 


(c)                                  Security.  The obligations of Borrower under each
Interest Rate Agreement, and all associated Interest Fix Fees shall be secured
by the Collateral Documents and shall rank pari
passu with the obligations of Borrower under the other Financing
Documents.


 


ARTICLE 4.

COLLATERAL DOCUMENTS


 


4.1                                 Security.


 


(a)                                  Mortgage
Documents, Security Agreements, Etc.  The Obligations shall be secured by, and
Borrower shall deliver or cause to be delivered the following to Administrative
Agent and Security Agent at the times required pursuant to Article 7:


 


(i)                                     (A) A
mortgage, in the form of the Leasehold Mortgage, Assignment Of Rents, Security
Agreement And Fixture Filing shown on Exhibit E-1, duly executed by
Evergreen Wind Power V, LLC in a recordable form, in favor of Security Agent,
with respect to the Stetson I Lease; (B) a mortgage, in the form of the
Mortgage, Assignment Of Rents, Security Agreement And Fixture Filing shown on Exhibit E-1,
duly executed by Evergreen Wind Power V, LLC in a recordable form, in favor of
Security Agent, with respect to the Transmission Line Real Property Interests;
and (C) a mortgage, in the form of the Leasehold Mortgage, Assignment Of
Rents, Security Agreement And Fixture Filing shown on Exhibit E-1,
duly executed by Stetson Wind II, LLC in a recordable form, in favor of
Security Agent, with respect to the Stetson II Lease (together, the “Mortgage
Documents”);


 


(ii)                                  A Pledge and
Security Agreement in the form of Exhibit E-2, duly executed by the
Borrower, in favor of Security Agent (the “Borrower Pledge and Security
Agreement”);


 


(iii)                               A Pledge and
Security Agreement in the form of Exhibit E-7, duly executed by
Member in favor of Security Agent (the “Member Pledge and Security Agreement”);


 


30

















 


(iv)                              A Guaranty and
Security Agreement in the form of Exhibit E-3, duly executed by
each Project Company, in each case, in favor of Security Agent (each, a “Guaranty
and Security Agreement”);


 


(v)                                 The Account
Control Agreement;


 


(vi)                              The Consents
from the counterparties in respect of the following Material Project Documents,
in favor of Security Agent:


 


A.                                   the Energy
Hedge;


 


B.                                     the Citigroup
REC Contract;


 


C.                                     the PPA;


 


D.                                    the BOP
Agreement;


 


E.                                      the Turbine
Supply Agreement;


 


F.                                      the Turbine
Service Agreement;


 


G.                                     the Shared
Facilities Agreement;


 


H.                                    the Equipment
Purchase Agreement;


 


I.                                         the O&M
Service Agreement; and


 


J.                                        the Project
Administration Agreement.


 


(vii)         The Estoppel
Agreements in favor of Security Agent;


 


(viii)        Such other
documents, instruments and agreements as Security Agent may request to ensure
that it has first-priority perfected Liens in all assets of Borrower and each
Project Company, all the issued and outstanding membership interests in each
Project Company and all the issued and outstanding membership interests in the
Borrower (other than Permitted Liens that, pursuant to applicable law, are
entitled to a higher priority than the liens granted to the Security Agent
pursuant to the Collateral Documents).


 


(b)                                 Further
Assurances.  Borrower
shall deliver to Security Agent each of the foregoing and such other
instruments, agreements, certificates, opinions and documents (including UCC
financing statements and fixture filings and landlord waivers) as Security
Agent may reasonably request to perfect and maintain the Liens granted to
Security Agent by the foregoing prior to the Liens or other interests of any
Person other than Security Agent (other than Permitted Liens that, pursuant to
applicable law, are entitled to a higher priority than the liens granted to the
Security Agent pursuant to the Collateral Documents).  Borrower shall fully


 


31

















 


cooperate with Security
Agent and perform all additional acts necessary or reasonably requested by
Security Agent or Administrative Agent to effect the purposes of the foregoing.


 


ARTICLE 5.

CONDITIONS PRECEDENT


 


5.1                                 Conditions
Precedent to the Closing Date; Issuance of Letters of Credit.


 


The obligation of the
Lenders to make the Loans hereunder and the Issuing Bank to issue the Letters
of Credit is subject to the prior satisfaction by Borrower of each of the
following conditions to the satisfaction of Administrative Agent, Issuing Bank
and the Lenders (unless waived in writing by Administrative Agent with consent
of all Lenders and the Issuing Bank):


 


(a)                                  All Sponsor
Equity shall have been deposited into the Disbursement Account or otherwise
contributed in respect of the Projects by or on behalf of the Sponsor.


 


(b)                                 Each
representation and warranty set forth in Article 6 is true and
correct in all material respects on the Closing Date (unless such representation
or warranty relates solely to an earlier date, in which case it shall have been
true and correct in all material respects as of such earlier date).


 


(c)                                  No Event of
Default or Inchoate Default with respect to any Affiliated Participant has
occurred and is continuing as of the Closing Date and to the knowledge of
Borrower, no Inchoate Default with respect to any Major Project Participant
that is not an Affiliated Participant has occurred and is continuing as of the
Closing Date.


 


(d)                                 Delivery to
Administrative Agent of a copy of one or more resolutions or other
authorizations of Borrower, the Member, and each Affiliated Participant,
certified by the appropriate officers of each such entity as being in full
force and effect on the Closing Date, authorizing, in respect of Borrower, the
Borrowing herein provided for and the execution, delivery and performance of
this Financing Agreement, and in respect of Borrower and each Affiliated
Participant, the other Operative Documents and any instruments or agreements
required hereunder or thereunder and in each case to which Borrower or such
Affiliated Participant is a party.


 


(e)                                  Delivery to
Administrative Agent of a certificate satisfactory in form and substance to
Administrative Agent from Borrower and each Affiliated Participant, signed by
the appropriate Authorized Officer of each such entity and dated the Closing
Date, as to the incumbency of the natural persons authorized, in respect of
Borrower, to execute and deliver this Financing Agreement, and in respect of
Borrower and each Affiliated Participant, the other Operative Documents and any
instruments or agreements required hereunder or thereunder and in each case to
which Borrower or such Affiliated Participant is a party.


 


32














 


(f)                                    Delivery to Administrative Agent of (i) a
copy of the Certificate of Formation of Borrower, certified by the Secretary of
State of the State of Delaware, a copy of the Borrower LLC Agreement and any
agreements or certificates related to the Borrower LLC Agreement filed in
accordance with applicable state law; (ii) copies of the Certificates of
Formation of each Affiliated Participant, certified by the Secretary of State
of the State of formation of each Affiliated Participant; and (iii) copies
of the limited liability company agreement of each Affiliated Participant, as
applicable, in each case, certified by an Authorized Officer thereof.


 


(g)                                 Delivery to Administrative Agent of
certificates issued by the Secretary of State of the State or any other jurisdiction
of organization of each Major Project Participant (other than the individual
counterparties to the Real Property Agreements) certifying that each such Major
Project Participant exists under the laws of such State and has paid all taxes
due to such State, if such certificates are reasonably available in such State
or jurisdiction.


 


(h)                                 Delivery to Administrative Agent of
certificates issued by the Secretary of State of the State of Maine certifying
that each Major Project Participant (other than individual counterparties to
the Real Property Agreements), is in good standing and is qualified to do
business in and has paid all taxes due to such state, if reasonably available; provided,
however, that no such certificate shall be required if such Major Project
Participant is not required to qualify to do business in such state in order to
perform its obligations under the Project Documents to which it is a party or
where such Major Project Participant is not the type of Person for which a good
standing certificate or certification as to payment of taxes is reasonably
available.


 


(i)                                     Delivery to Administrative Agent of (i) executed
originals of each Financing Document required as of the Closing Date, and (ii) certified
true and correct execution copies of each Material Project Document and any
existing supplements or amendments thereto, all of which Financing Documents,
Material Project Documents and supplements or amendments thereto shall, in all
material respects, be satisfactory in form and substance to Administrative
Agent, Issuing Bank, the Lenders and the Independent Engineer.  Receipt by Security Agent of evidence
reasonably satisfactory to it that all appropriate financing statements,
fixture filings and the Mortgage Documents were or will be promptly in
connection with the funding of the Loans filed and/or recorded as required
hereunder or by law.  The Member shall
have delivered to Security Agent the original certificates or other
instruments, along with a blank membership interest transfer power, evidencing
the Member’s 100% ownership interest in all of the issued and outstanding
membership interests of the Borrower. 
The Borrower shall have delivered to Security Agent the original
certificates or other instruments, along with blank membership interest
transfer powers, evidencing the Borrower’s 100% ownership interest in all of
the issued and outstanding membership interests of each Project Company.


 


33

















 


(j)                                     Delivery to Administrative Agent, Issuing
Bank and each Lender, as applicable, of all requested information pursuant to
the Patriot Act and Know-Your-Customer regulatory requirements.


 


(k)                                  Execution and delivery to Administrative
Agent by Sponsor of the Sponsor Indemnity, in form and substance satisfactory
to Administrative Agent.


 


(l)                                     Each Financing Document, Material Project
Document and Applicable Permit shall be in full force and effect in accordance
with its terms and, to the knowledge of Borrower, no material defaults shall
have occurred thereunder.


 


(m)                               Administrative Agent shall have received
a certificate, dated as of the Closing Date, signed on behalf of Borrower by an
Authorized Officer of the Borrower, in substantially the form of Exhibit G-1.


 


(n)                                 Delivery to Administrative Agent of the
Insurance Consultant’s certificate, in substantially the form of Exhibit G-2,
with the Insurance Consultant’s report, in form and substance satisfactory to
Administrative Agent, attached thereto.


 


(o)                                 Delivery to Administrative Agent of the
Environmental Consultant’s certificate, in substantially the form of Exhibit G-3,
with the Environmental Report, in form and substance satisfactory to
Administrative Agent, attached thereto.


 


(p)                                 Delivery to Administrative Agent of the
Independent Engineer’s Closing Certificate, in the form of Exhibit G-4,
and otherwise satisfactory to Administrative Agent and the Lenders along with a
copy of the Independent Engineer’s report in form and substance satisfactory to
the Administrative Agent and the Lenders regarding its satisfactory technical
review of the Projects, such report confirming (i) the reasonableness of
the Projects’ production, revenue, operating cost and major maintenance
assumptions; (ii) the adequacy of the Projects’ overall wind farm design
including the proposed civil and electrical works, the interconnection
facilities and grid functionality; (iii) the adequacy of the Base Case
Project Projections, including power production forecasts; and (iv) the
status and progress of the construction and development of the Stetson II
Project, and the adequacy of the aggregate estimated costs (and reasonableness
of the related assumptions) necessary for the achievement of Substantial
Completion (as defined in the Stetson II Reed Agreement) of the Stetson II
Project (the “Independent Engineer’s Closing Certificate and Report”).


 


(q)                                 Delivery to Administrative Agent of a
report prepared by the Power Market Consultant, satisfactory in form and
substance to Administrative Agent and the Lenders, and demonstration that
Borrower has complied in all material respects with all relevant
recommendations set forth in such report.


 


(r)                                    Delivery to Administrative Agent of the
transmission report prepared by the Transmission Consultant, satisfactory in
form and substance to Administrative Agent and the Lenders.


 


34

















 


(s)                                  Delivery to Administrative Agent of a
report prepared by the Wind Consultant, which shall include a wind and
associated power production gross and net forecast based on the turbine power
curve specifications, expected availability of Turbines and actual site and
resource characteristics (such review including 50%, 75%, 90% and 99%
confidence levels for one and ten year probability forecasts), in each case,
satisfactory in form and substance to Administrative Agent, Issuing Bank, the
Lenders and the Independent Engineer, along with a reliance certificate from
the Wind Consultant dated as of the Closing Date, addressed to Administrative
Agent, with respect to such report confirming that the Administrative Agent and
the Lenders may rely on such report as of the Closing Date.


 


(t)                                    Delivery to the Administrative Agent,
Transmission Owner and the ISO of a duly executed notice by the Borrower to the
Transmission Owner and the ISO, in form and substance acceptable to the
Administrative Agent, notifying the ISO and the Transmission Owner of the
collateral assignment of the Interconnection Agreement to the Lenders as
required pursuant to Section 19.1 of the Interconnection Agreement.


 


(u)                                 Delivery to Administrative Agent of the
Annual Operating Plan, satisfactory in form and substance to Administrative
Agent and the Lenders.


 


(v)                                 Delivery to Administrative Agent of an
opinion, each dated the Closing Date, of:


 


(i)                                     Morgan, Lewis & Bockius LLP, special counsel for Borrower, Member and each
other Affiliated Participant, in form and substance acceptable to
Administrative Agent (including certain federal permitting matters);


 


(ii)           Verrill Dana, LLP, special real estate counsel for
Borrower, Member and each Project Company (including certain state and local
permitting matters);


 


(iii)          Bernstein, Shur, Sawyer & Nelson, P.A.,
special counsel for Borrower and the Project Companies with respect to Maine
energy regulatory matters


 


(iv)                              McDermott, Will & Emery, LLP,
special counsel for Borrower with respect to the Energy Hedge;


 


(v)                                 in-house counsel for Borrower, Member and
each other Affiliated Participant, in form and substance acceptable to
Administrative Agent; and


 


(vi)                              counsel for the Turbine Supplier and
Turbine Operator, in form and substance acceptable to Administrative Agent.


 


(w)                               Insurance complying with Section 7.20
shall be in full force and effect as of the Closing Date and Administrative
Agent shall have received (i) a certificate of Borrower signed by an
Authorized Officer responsible for insurance matters or 


 


35

















 


Borrower’s
authorized insurance representative, dated as of the Closing Date, and
identifying underwriters, type of insurance, insurance limits and policy terms,
listing the special provisions required as set forth in Section 7.20,
describing the insurance obtained and stating that such insurance is in full
force and effect and that all premiums then due thereon have been paid and that,
in the opinion of such Person, such insurance complies with Section 7.20,
and (ii) certified copies of all policies evidencing such insurance (or a
binder, commitment or certificates signed by the insurer or a broker authorized
to bind the insurer), in form and substance satisfactory to Administrative
Agent.


 


(x)                                   Delivery to Administrative Agent of (i) Exhibit H-2B,
the schedule of Applicable Permits, in form and substance satisfactory to
Administrative Agent; and (ii) true and correct copies of all Applicable
Permits, which Permits shall be in form and substance satisfactory to
Administrative Agent and shall be in the name of, or assigned to, the Project
Companies or the Borrower, together with a certificate of Borrower signed by an
Authorized Officer certifying that all such Applicable Permits under (ii) hereof
have been obtained and that such Applicable Permits are in full force and
effect and are not subject to appeal, further procedures or any unsatisfied
conditions that may allow material modification or revocation.


 


(y)                                 Except as set forth in Exhibit H-5
and Exhibit H-6, no material action, suit, proceeding,
Environmental Claim or investigation shall have been instituted or, to the
knowledge of Borrower, threatened against Borrower, any Affiliated Participant
or the Project, which action, suit, proceeding, Environmental Claim or
investigation could reasonably be expected to have a Material Adverse Effect.


 


(z)                                   No action, suit, proceeding or
investigation shall have been instituted, or to the knowledge of Borrower,
threatened, nor shall any rule, regulation, order, judgment or decree have been
issued or proposed to be issued by any Governmental Authority that, solely as a
result of the ownership or operation of the Project, the generation or sale of
electricity therefrom or the entering into of any Operative Document or any
transaction contemplated hereby or thereby, would cause or deem (i) Administrative
Agent, Issuing Bank, Security Agent, or the Lenders or any Affiliate of any of
them to be subject to, or not exempted from, regulation under PUHCA, any
financial, organizational or rate regulation as a “public utility” or “electric
utility” or terms of similar effect under Maine law, or under any other state
laws and regulations respecting the rates or the financial or organizational
regulation of electric utilities; or (ii) Borrower, any Project Company or
the Member to be subject to, or not exempted from, regulation (A) under
any financial, organizational or rate regulation as a “public utility” or “electric
utility” or terms of similar effect under Maine law, (B) under any other
state laws and regulations respecting the rates or the financial or
organizational regulation of electric utilities except, with respect to the
Member, any such state laws or regulations that could not be reasonably
expected to have a Material Adverse Effect, and (C) under PUHCA, other
than (x) compliance with Section 1265 of PUHCA required with respect
to Borrower, the Member or the Project Companies; and (y) regulation under
PUHCA with respect to any Affiliate of 


 


36

















 


Borrower
(including Member and the Project Companies) if such regulation could not be
reasonably expected to have a Material Adverse Effect.


 


(aa)                            All amounts required to be paid to or
deposited with Administrative Agent, Security Agent, Issuing Bank or any
Lender, and all taxes, fees and other costs payable in connection with the
execution, delivery, recordation and filing of the documents and instruments
required to be filed under this Section 5.1, shall have been paid
in full or provided for.


 


(bb)                          Delivery to Administrative Agent of the (i) audited
financial statements for the Sponsor for fiscal year 2008 and (ii) unaudited
financial statements of each of Borrower and each Project Company, on a
consolidated basis, and Member, including its respective balance sheet and an
income and expense statement, as of September 30, 2009, together with
certificates from the appropriate Authorized Officers of the Borrower stating that
such financial statements fairly present, in all material respects, the
financial position of Borrower and each Project Company (on a consolidated
basis), Member and Sponsor, as applicable, at the date thereof, subject to
changes resulting from audit and normal year-end adjustments.


 


(cc)                            Delivery to Administrative Agent of a UCC
search report with respect to Borrower, Member and each Project Company dated
as of the Closing Date or an earlier date satisfactory to Administrative Agent
for each of the jurisdictions in which the UCC-1 financing statements, the
fixture filings and the Mortgage Documents are intended to be filed in respect
of the Collateral.


 


(dd)                          Delivery to Administrative Agent of:  (i) the Construction Budget and
Schedule, (ii) Annual Operating Plan, (iii) the Base Case Project
Projections and (iv) the Debt Sizing Base Case, reflecting,
among other things, a Projected Debt Service Coverage Ratio of not less
than 1.00 to 1.00 when applying the P99 Production Level and a Projected Debt
Service Coverage Ratio of not less than 1.30 to 1.00 when applying the P50
Production Level.


 


(ee)                            Administrative Agent shall have received
a title insurance policy or policies in an ALTA Loan Policy Form (6-17-06),
together with such endorsements as are required by Administrative Agent, or
Title Insurer’s irrevocable, unconditional commitment to issue such policy
(such policy and endorsements being hereinafter referred to as the “Title
Policy”), each policy in an amount equal to the Total Commitment issued by
the Title Insurer, in form and substance and with such reinsurance  as is available on commercially reasonable terms and
reasonably satisfactory to Administrative Agent, and insuring (or agreeing to
insure) Administrative Agent that:


 


(i)                                     The applicable Project Company has a good
and marketable title to or right to control, occupy and use the Project Site
and the Transmission Line Real Property Interests, free and clear of liens,
encumbrances or other exceptions to title except those exceptions specified on Exhibit E-5
(the “Permitted Encumbrances”);


 


37

















 


(ii)           the Mortgage Documents constitute a valid first
priority Lien on the Mortgaged Property, free and clear of all Liens,
encumbrances and exceptions to title, other than Permitted Encumbrances.  The Title Policy shall effect full coverage
against losses arising out of encroachments on boundary and other losses with
respect to which Administrative Agent may request coverage, which shall include
an endorsement deleting creditor’s rights and arbitration provisions, an
endorsement covering pending disbursements, and an affirmative mechanic’s lien
endorsement; and


 


(iii)          such other matters as Administrative Agent may
reasonably request, and containing only Permitted Encumbrances and any other
exceptions relating to the boundaries of the Project Site, encroachments and
matters disclosed or discoverable by a survey or inspection as are reasonably
acceptable to Administrative Agent and containing no exception for mechanics’
or materialmen’s liens.


 


(ff)                                Administrative Agent shall have received
an as-built ALTA/ASCM survey of the Project Site with respect to the Stetson I
Project and an ALTA/ASCM survey of the Project Site with respect to the Stetson
II Project, in each case, satisfactory in form and substance to Administrative
Agent and Title Insurer, current within thirty (30) days of the Closing Date
and certified to Administrative Agent and Title Insurer by a licensed surveyor
in form satisfactory to Administrative Agent.


 


(gg)                          Each Project Company is an “exempt
wholesale generator” within the meaning of Section 1262(6) of PUHCA
and Borrower shall have delivered to Administrative Agent, (i) in respect
of the Stetson I Project, the FERC notice Acknowledging Effectiveness of
Evergreen Wind Power V, LLC’s Exempt Wholesale Generator Status, dated May 27,
2009, and the FERC Order Granting Market-Based Rate Authority to Evergreen Wind
Power V, LLC, dated January 15, 2009; and (ii) in respect of the
Stetson II Project, a copy of the Notice of Self-Certification of Exempt
Wholesale Generator Status with respect to Stetson Wind II, LLC, properly filed
with the FERC and any responsive orders issued by FERC or the FERC staff,
acting under delegated authority, copies of all applications for market-based
rate authorization with respect to Stetson Wind II, LLC, properly filed with
FERC pursuant to Section 205 of the FPA, and any responsive orders issued
by FERC, or the FERC staff acting under delegated authority, granting such
authorizations.


 


(hh)                          Borrower shall have delivered to
Administrative Agent satisfactory evidence of the establishment of the
Collateral Accounts.  All Reserve
Accounts have been fully funded as required under Section 6 of the Account
Control Agreement.


 


(ii)                                  Borrower shall have delivered to
Administrative Agent a certificate of Borrower or other evidence that the
output of the Projects will qualify for RECs.


 


38

















 


(jj)           Receipt of all fees under the Fee Side Agreement by
all applicable Persons thereunder.


 


(kk)         No event, condition or circumstance that could be
reasonably expected to have a Material Adverse Effect shall have occurred and
be continuing.


 


(ll)           Borrower shall have deposited Project Revenues from
the Stetson I Project (i) in an amount equal to $3,000,000 into the
Stetson I Holding Account, and (ii) all remaining Project Revenues into
the Revenue Account, in each case prior to the Closing Date.


 


(mm)       Borrower shall have delivered evidence reasonably
satisfactory to Administrative Agent that all work that has been performed at
the Stetson II Project by the Closing Date requiring inspection by any
Governmental Authorities having jurisdiction has been duly inspected and
approved by such authorities and that any certificates or notices required to
be issued in connection therewith have been issued by such Governmental
Authorities, that all parties performing such work have been or will be paid
for such work, and that no mechanics’ and/or materialmen’s liens or applications
therefor have been filed and either lien waivers have been obtained or all
applicable filing periods for any such mechanics’ and/or materialmen’s liens
have expired.


 


5.2                                 Conditions Precedent to each Borrowing.


 


The
obligation of the Lenders to effect or permit any Borrowing (including the
first Borrowing of a Term Loan and the first Borrowing of a Bridge Loan) is
subject to the prior satisfaction by Borrower of each of the following
conditions to the satisfaction of Administrative Agent, Issuing Bank and the
Lenders (unless waived in writing by Administrative Agent with consent of all
Lenders and the Issuing Bank):


 


(a)                                  Borrower shall have requested the Term
Loans and/or Bridge Loans pursuant to a Notice of Borrowing delivered to
Administrative Agent in accordance with Section 2.5.


 


(b)                                 [Intentionally Omitted].


 


(c)                                  Each representation and warranty set
forth in Article 6 is true and correct in all material respects on
such date (unless such representation or warranty relates solely to an earlier
date, in which case it shall have been true and correct in all material
respects as of such earlier date).


 


(d)                                 No Event of Default or Inchoate Default
with respect to any Affiliated Participant has occurred and is continuing or
will result from the funding of the Loans and to the knowledge of Borrower, no
Inchoate Default with respect to any Major Project Participant that is not an
Affiliated Participant has occurred and is continuing or will result from the
funding of the Loans.


 


39

















 


(e)                                  Administrative Agent shall have received (i) a
continuation report and an endorsement to the Title Policy with respect
to the Stetson II Project to the date of such Borrowing in the form reasonably
approved by the Administrative Agent conforming to the pending disbursement
requirements set forth in Exhibit D-5 and setting forth no
additional exceptions (including without limitation survey exceptions for the
Stetson II Project) except those approved by the Administrative Agent, and (ii) a
continuation report and endorsement to each Title Policy with respect to the
Stetson I Project and the Transmission Line Real Property Interests to the date
of such Borrowing in the form reasonably approved by the Administrative Agent,
which continuation report and endorsements shall: (A) update the date of
each Title Policy and all endorsements attached thereto to the date of such
Borrowing, (B) show no additional exceptions to each Title Policy
(including without limitation survey exceptions for the Stetson I Project or
the Transmission Line Real Property Interest) except those approved by the
Administrative Agent, and (C) shall state the amount of the Loans advanced
to date.


 


(f)                                    Except as set forth in Exhibit H-5
and Exhibit H-6, no material action, suit, proceeding,
Environmental Claim or investigation shall have been instituted or, to the
knowledge of Borrower, threatened against Borrower, any Affiliated Participant
or the Project, which action, suit, proceeding, Environmental Claim or
investigation could reasonably be expected to have a Material Adverse Effect.


 


(g)                                 Each Financing Document, Material Project
Document and Applicable Permit shall be in full force and effect in accordance
with its terms and, to the knowledge of Borrower, no material defaults shall
have occurred thereunder.


 


(h)                                 No event, condition or circumstance that
could be reasonably expected to have a Material Adverse Effect shall have
occurred and be continuing.


 


ARTICLE
6.

REPRESENTATIONS AND WARRANTIES


 


Borrower
makes the following representations and warranties to and in favor of
Administrative Agent, Issuing Bank and the Lenders as of the Closing Date.


 


6.1                                 Organization.


 


(a)                                  Borrower (i) is a limited liability
company duly formed, validly existing and in good standing under the laws of
the State of Delaware and in each other jurisdiction where the character of its
properties or the nature of its activities makes such qualification
necessary.  Borrower has all requisite
limited liability company power and authority to own or hold under lease and/or
easement and operate the property it purports to own or hold under lease and/or
easement and to carry on its business as now being conducted and as proposed to
be conducted under the Operative Documents in respect of the Project and Borrower
has the requisite limited liability power and authority to execute, deliver and
perform its 


 


40

















 


obligations under
each Operative Document to which it is a party. 
The Member is the sole member of Borrower holding all of the issued and
outstanding membership interests in Borrower.


 


(b)                                 Each Affiliated Participant (i) is
duly formed and validly existing and in good standing under the laws of the
State of its organization with all requisite organizational or other power and
authority under the laws of such State to enter into the Operative Documents to
which it is a party and to perform its obligations thereunder and to consummate
the transactions contemplated thereby; (ii) is duly qualified, authorized to
do business and in good standing in such State and each other material
jurisdiction where the character of its properties or the nature of its
activities makes such qualification necessary, except where the failure to do
so could not reasonably be expected to have a Material Adverse Effect; (iii) has
the requisite limited liability company or corporate power (A) to carry on
its business as now being conducted and as proposed to be conducted by it, (B) to
execute, deliver and perform its obligations under each Operative Document to
which it is a party, in its individual capacity, and (C) to provide
guaranties and grant the Liens and security interests provided for in the
Financing Documents to which it is a party; and (iv) has the requisite
limited liability company or corporate authority to execute, deliver and
perform its obligations under each Operative Document to which it is a party.


 


6.2                                 Authorization; No Conflict.


 


Borrower
and each Affiliated Participant has duly authorized, executed and delivered each
Operative Document to which Borrower or such Affiliated Participant is a party
(or such Operative Documents have been duly and validly assigned to Borrower
and Borrower has assumed the obligations thereunder by operation of law or
otherwise), and none of the execution and delivery thereof by Borrower or such
Affiliated Participant, the consummation of the transactions contemplated
thereby or the compliance with the terms thereof or performance of its
obligations thereunder (i) does or will contravene (A) the Borrower
LLC Agreement or any organizational document of such Affiliated Participant or (B) any
other Legal Requirement applicable to or binding on Borrower, such Affiliated
Participant or any of their respective properties, except for any such contravention
of a Legal Requirement that could not be reasonably expected to have a Material
Adverse Effect; (ii) does or will contravene or result in any material
breach of or constitute any material default under, or result in or require the
creation of any Lien (other than Permitted Liens) upon any of their respective
properties under, any agreement or instrument to which Borrower or any
Affiliated Participant is a party or by which any of them or any of their
respective properties may be bound or affected; or (iii) does or will
require the consent or approval of any Person, which has not already been
obtained.


 


6.3                                 Enforceability.


 


Assuming
the due authorization, execution and delivery thereof by each other party
thereto, each Operative Document to which Borrower or any Affiliated
Participant is a party is a legal, valid and binding obligation of Borrower or
such Affiliated Participant, enforceable against Borrower or such Affiliated
Participant in accordance with its terms, except 


 


41

















 


to the extent that enforceability may be limited by
applicable bankruptcy, insolvency, moratorium, reorganization or other similar
laws affecting the enforcement of creditors’ rights and subject to general
equitable principles (regardless of whether such enforceability is considered
in a proceeding in equity or at law). 
None of the Operative Documents to which Borrower or any Affiliated
Participant is a party has been amended or modified except in accordance with
this Financing Agreement or as disclosed. 
Each Operative Document has been duly executed and delivered by Borrower
and each Affiliated Participant, and to the knowledge of Borrower, by each
other party thereto.  Each Operative
Document (other than any Additional Project Documents) is in effect as of the
Closing Date.  As of each date referenced
in Section 7.4(b), each Operative Document remains in effect except
for those Operative Documents that have expired in accordance with their
respective terms as of such date.


 


6.4                                 ERISA.


 


There
are no ERISA Plans for Borrower, Member or the Project Companies or ERISA Plans
that provide benefits to any employee of Borrower, Member or the Project
Companies, and none of Borrower, Member or any Project Company has maintained,
contributed, or been obligated to contribute to any ERISA Plan at any time
within the five (5) years preceding the Closing Date.


 


6.5                                 Taxes.


 


(a)                                  Each of Borrower, Member and each Project
Company has filed, or has caused to be filed, all federal, state, local and foreign
tax returns that it is required to file, has paid or has caused to be paid all
taxes it is required to pay to the extent due (other than those taxes that it
is contesting in good faith and by appropriate proceedings in accordance with Section 7.14).


 


(b)                                 For United
States federal and Maine income tax purposes, Member and Evergreen Wind Power
V, LLC each have elected to be treated as a corporation, and Borrower and
Stetson Wind II, LLC will each be treated as a disregarded entity.  Neither the execution and delivery of the
Operative Documents nor the consummation of any of the transactions
contemplated by the Operative Documents will affect such status of Member,
Borrower or any Project Company.  Member,
Borrower and each Project Company has made such elections and taken such other
actions, and agrees and warrants that it shall at all times make such elections
and take such other actions, as would permit Member, Borrower and each Project
Company, as applicable, to maintain the status as a disregarded entity or
corporation, as applicable, for U.S. Federal and Maine income tax purposes, to
the maximum extent permitted by applicable Governmental Rules.


 


6.6                                 Business, Debt, Contracts, Etc.


 


Each
of Borrower and each Project Company has not conducted any business other than
the business contemplated by the Operative Documents.  Except as reflected in the financial
statements delivered to Administrative Agent pursuant to Article 5,
none of Borrower nor any Project Company has any outstanding Debt or other
material liabilities other than


 


42














 


pursuant to or allowed by the Operative
Documents.  Except as otherwise
disclosed, neither Borrower nor any Project Company is a party to or bound by
any material contract obligating Borrower or any Project Company, as
applicable, to pay more than $100,000 in any fiscal year or $250,000 in the
aggregate over the term of such contract other than the Operative Documents and
the Financing Documents to which it is a party.


 


6.7                                 Private Offering by Borrower.


 


Assuming
the Lenders are acquiring the Notes for investment purposes only, and not for
purposes of resale or distribution thereof except for assignments or
participations as provided in Sections 12.14 and 12.15, no
registration of the Notes under the Securities Act of 1933, as amended, or
under the securities laws of any applicable jurisdiction is required in
connection with the offering, issuance and sale of the Notes hereunder.


 


6.8                                 Filings.


 


No
filing, recording, re-filing or rerecording other than those listed on Exhibit E-6
is necessary to perfect and maintain the perfection and priority of the
interest, title or Liens referred to in Section 6.21 relating to
personal property set forth in the Member Pledge and Security Agreement,
Borrower Pledge and Security Agreement and each Guaranty and Security Agreement,
and on or prior to the Closing Date all such filings or recordings (other than
those that are required to be made only at a later date, which are so indicated
on Exhibit E-6) will have been made.  No filing or recording other than the
recording of the Mortgage Documents in the office of the clerk of Washington
County and Penobscot County of the State of Maine is necessary to create Liens
on the real property interests referred to in Section 6.21, and on
or promptly after the Closing Date such filing will be made.


 


6.9                                 Investment Company, Holding Company Act.


 


None
of Borrower, the Member or any Affiliated Participant that is a party to an
Operative Document is an investment company or a company controlled by an
investment company within the meaning of the Investment Company Act of 1940, as
amended.  Borrower and Member have
made any required filing with FERC, pursuant to PUHCA.  No Affiliate of Borrower (including the Member) is
subject to, or not exempt from, regulation under PUHCA other than regulation
under PUHCA that would not reasonably be expected to constitute a Material
Adverse Effect.  Each Project Company
satisfies the requirements of Section 1262(6) of PUHCA and the
regulations thereunder to be an “exempt wholesale generator.”


 


6.10                           Governmental Regulation.


 


Except
as set forth in Exhibit H-3, neither Borrower nor the Project
Companies will be deemed by MPUC to be subject to financial, organizational or
rate regulation as a “public utility” under any applicable Maine law or under
any other state or other law, rule or regulation.


 


6.11                           Margin Stock.


 


Borrower
is not engaged principally, or as one of its principal activities, in the
business of extending credit for the purpose of “buying,” “carrying” or “purchasing”
margin 


 


43

















 


stock (as defined or used in Regulation T, U or X of
the Federal Reserve Board), and no part of the proceeds of the Loans or the
Project Revenues will be used by Borrower to buy, purchase or carry any such
margin stock or to extend credit to others for the purpose of buying,
purchasing or carrying any such margin stock or otherwise in violation of
Regulation T, U or X of the Federal Reserve Board.


 


6.12                           Financial Statements.


 


The
consolidated financial statements of Borrower delivered pursuant to Section 5.1(bb)
fairly present, in all material respects, the financial position of Borrower
and the Project Companies, on a combined basis, as of the respective dates
thereof and (except as specified in Section 5.1(bb)) the results of
operations and cash flows of Borrower and each Project Company, on a combined
basis, for each of the periods then ended, subject, in the case of any such
unaudited financial statements, to changes resulting from audit and normal
year-end adjustments.  Except for
obligations under the Operative Documents to which it is a party, none of
Borrower nor any Project Company has (and will not following the funding of the
Loans have) any contingent obligations, unmatured liabilities, contingent
liability or liability for taxes, long-term lease or forward or long-term
commitment that are not reflected in the foregoing financial statements or the
notes thereto and which in any such case are material in relation to the
business, operations, properties, assets, financial condition or prospects of
Borrower and the Project Companies.


 


6.13                           Partnerships and Joint Ventures.


 


Neither
Borrower nor any Project Company is a general partner or a limited partner in
any general or limited partnership, a joint venturer in any joint venture or a
member in any limited liability company (except for Borrower’s ownership of the
Project Companies).  Borrower’s sole
subsidiaries are the Project Companies. 
Neither Project Company has any subsidiaries.


 


6.14                           Existing Defaults.


 


Neither
Borrower nor any Project Company is in default under any material term of any
Operative Document or any other agreement or instrument relating to any
obligation of Borrower and each Project Company for or with respect to borrowed
money, as applicable.


 


6.15                           No Default.


 


No
Event of Default or Inchoate Default with respect to any Affiliated Participant
has occurred and is continuing.


 


6.16                           Permits.


 


(a)                                  Except as set forth in Exhibit H-2A,
there are no Permits under existing Legal Requirements, including all Environmental
Laws, applicable to Borrower, each Project Company and the Project as it is
currently designed that are or will become Applicable Permits other than the
Permits described in Exhibit H-2B (including all Permits needed to
enable the Borrower and each Project Company 


 


44

















 


to execute,
deliver and perform its obligations under the Financing Documents and each
Project Document).  Each Permit described
in Part I of Exhibit H-2B is in full force and effect and is
not subject to any current legal proceeding or to any unsatisfied condition
that may allow material modification or revocation or that could reasonably be
expected to have a Material Adverse Effect, and all applicable appeal periods
with respect thereto have expired.  None
of the Permits described in Part I of Exhibit H-2B has been
modified, amended or supplemented in a manner that could be reasonably expected
to have a Material Adverse Effect. 
Except as set forth on Exhibit H-6, Borrower and each
Project Company is in compliance in all material respects with all Applicable
Permits set forth in Part I of  Exhibit H-2B.


 


(b)                                 Each Permit described in Part II of Exhibit H-2B
is of a type that is routinely granted on application and Borrower believes that
each Permit so indicated on Part II of Exhibit H-2B will be
obtained before it becomes an Applicable Permit.


 


(c)                                  To Borrower’s knowledge, each other Major
Project Participant is in compliance in all material respects with its
respective applicable third party Permits, each other Major Project Participant
possesses all Permits, licenses, franchises, patents, copyrights, trademarks
and trade names, or rights thereto necessary to perform its duties under the
Operative Documents to which it is a party, and such Person is not in violation
of any valid rights of others with respect to any of the foregoing that could
be reasonably expected to have a Material Adverse Effect.


 


(d)                                 Neither Borrower nor any Project Company
has entered into any stipulations with any Governmental Authority issuing any
Applicable Permit(s) which are not expressly set forth in such Permit(s).


 


6.17                           Offices, Location of Collateral.


 


(a)                                  The chief executive office, if it has
more than one place of business, or place of business, if it has only one place
of business (as such terms are used in Section 9-307 of the Uniform
Commercial Code as in effect in each State where the Collateral is located and
the State of New York from time to time) of Borrower and each Project Company
is set forth in Exhibit H-7 hereto (as such Exhibit may be
supplemented from time to time by 30 days’ notice to Administrative Agent).


 


(b)                                 All of the tangible Collateral (excluding
the Collateral Accounts, the membership interests in the Borrower and each
Project Company and general intangibles and other possessory security
interests) and the Mortgaged Property is, or when acquired and installed
pursuant to the Project Documents will be, located at or on the Project Site or
on the real property the subject of the Transmission Line Real Property
Interests.


 


45

















 


6.18                           No Material Adverse Effect


 


To
Borrower’s knowledge, since September 30, 2009 no event, condition or
circumstance that could reasonably be expected to have a Material Adverse
Effect has occurred or is continuing.


 


6.19                           Environmental Matters.


 


(a)                                  Except as set forth in Exhibit H-6,
none of Borrower, Member or any Project Company (the “Subject Companies”)
is or has in the past been in violation of any Environmental Law which
violation could reasonably be expected to give rise to a material liability to
any of the Subject Companies or have a Material Adverse Effect.


 


(b)                                 Except as set forth in Exhibit H-6,
(i) the Subject Companies have obtained all material Permits required
under any Environmental Laws for the construction and operation of the
Projects, or the occupation and operation of the Project Site, the Improvements
or other Mortgaged Property, (ii) the Subject Companies and the Projects
comply and have complied with all such material Permits in such a manner that
no Material Adverse Effect has been caused or created and (iii) no actions
are pending, or to the knowledge of Borrower, threatened, to revoke, terminate,
cancel, modify, amend, appeal or otherwise challenge any such Permits.


 


(c)                                  Except as set forth in Exhibit H-6,
none of the Subject Companies nor, to the knowledge of Borrower, any other
Person has used, Released, discharged, generated, manufactured, produced,
stored, or disposed of, in, on, under, or about the Project Site, the
Improvements or other Mortgaged Property, or transported, arranged or permitted
the disposal thereto or therefrom, of any Hazardous Substances that could
reasonably be expected to subject Administrative Agent, Issuing Bank, the
Lenders or the Subject Companies to a material liability under any
Environmental Law or that could reasonably be expected to have a Material
Adverse Effect.


 


(d)                                 Except as set forth in Exhibit H-6,
there are no aboveground or, to Borrower’s knowledge, underground tanks,
whether operative or temporarily or permanently closed, located on the Project
Site, the Improvements or other Mortgaged Property, the presence of which could
reasonably be expected to have a Material Adverse Effect.


 


(e)                                  Except as set forth in Exhibit H-6,
there are no Hazardous Substances used, stored or present at, on or near the
Project Site, the Improvements or other Mortgaged Property that could
reasonably be expected to give rise to a material liability of any of the
Subject Companies under any Environmental Law or that could reasonably be
expected to have a Material Adverse Effect.


 


(f)                                    Except as set forth in Exhibit H-6,
there is or has been no condition, circumstance, action, activity or event that
could reasonably form the basis of any material 


 


46

















 


violation of any
Environmental Law or give rise to any material liability of any of the Subject
Companies under any Environmental Law that could reasonably be expected to have
a Material Adverse Effect.


 


(g)                                 Except as set forth in Exhibit H-6,
there is no Environmental Claim pending or, to the knowledge of Borrower,
threatened with respect to the Project Site, the Improvements or other
Mortgaged Property or any of the Subject Companies with respect to the
Projects, which Environmental Claim could be reasonably expected to have a
Material Adverse Effect.


 


(h)                                 Borrower has provided to Administrative
Agent all reports and other documents relating to environmental investigations
and environmental matters concerning the Projects in Borrower’s possession or
control.


 


6.20                           Litigation.


 


(a)                                  Except as set forth on Exhibit H-5
or Exhibit H-6, as applicable, there are no pending or, to Borrower’s
knowledge, actions threatened in writing against Borrower, Member or any
Project Company or proceedings of any kind, including actions or proceedings of
or before any Governmental Authority or any Environmental Claims to which
Borrower, Member or any Project Company is a party or is subject, or by which
any of them or any of their properties are bound that, if adversely determined
against Borrower, Member or any Project Company could be reasonably expected to
have a Material Adverse Effect.


 


(b)                                 Except as set forth on Exhibit H-5,
there are no pending or, to Borrower’s knowledge, actions threatened in writing
against Borrower, Member or any Project Company or proceedings of any kind,
including any actions, complaints or proceedings of, or before, any
Governmental Authority or any Environmental Claims to which the Project or any
of the Affiliated Participants is a party or is subject, or by which any of
them or any of their properties or the Project are bound that, if adversely
determined against any such Affiliated Participants or the Project, could be
reasonably expected to have a Material Adverse Effect.


 


6.21                           Title and Liens.


 


(a)                                  Borrower or each Project Company, as
applicable, has good and marketable title to all personal property comprising
the Projects, a good and marketable, undivided leasehold estate under the
Stetson I Real Property Interests and the Stetson II Real Property Interests
that are leases and a good and marketable, undivided easement estate under the
Transmission Line Real Property Interests and the Stetson II Real Property
Interests that are easements.  Each of
the Stetson I Real Property Interests, the Stetson II Real Property Interests
and the Transmission Line Real Property Interests are free and clear of all
Liens, encumbrances or other exceptions to title other than Permitted
Liens.  No written notice has been given
to Borrower or any Project Company by any lessor or easement grantor under any
of the Stetson I Real Property Interests, Stetson II 


 


47

















 


Real Property
Interests and the Transmission Line Real Property Interests as to any rights of
third parties that are not disclosed in the Title Policy.  To the knowledge of Borrower, except as
disclosed in the Title Policy, each lessor or easement grantor under each Real
Property Agreement has a good and marketable fee simple estate in the
respective portion of the Project Site, in each case free and clear of all
Liens, encumbrances or other exceptions to title other than Permitted
Liens.  Subject to the provisions of the
Mortgage Documents, the Lien of the Mortgage Documents constitutes a valid and
subsisting first priority Lien of record on all the Mortgaged Property
described in the Mortgage Documents, and the Lien of the Collateral Documents
constitutes a first priority perfected security interest in all of the personal
property included in the Collateral described in the Collateral Documents,
subject to no other Liens except, in the case of Collateral not constituting
pledged shares, member interests or other ownership interests in any Person, Permitted
Liens.


 


(b)                                 None of the Permitted Liens:


 


(i)                                     Materially interferes with the completion
or operation of the Projects on the Project Site or, unless otherwise obtained,
requires any consents, approvals, permits, easements, licenses or other rights from
or notices to the parties thereto for the completion or operation of the
Projects or for the granting of the security contemplated by the Collateral
Documents;


 


(ii)                                  provides for any rights in favor of the
parties thereto that could materially interfere with the realization of the
security granted to the Secured Parties by the Collateral Documents.


 


6.22                           Utilities.


 


All
utility services necessary for the completion and operation of the Projects for
its intended purposes are available at the Project Site or will be so available
when required.


 


6.23                           Roads/Feeder Lines.


 


(a)                                  All roads necessary for the completion
and full utilization of the Projects for their intended purposes under the
Project Documents have either been completed or the necessary rights of way
therefor have been acquired.


 


(b)                                 All necessary easements, rights of way,
agreements and other rights for the completion, interconnection and utilization
of the feeder lines for the Projects have been acquired.


 


(c)                                  All of the easements, rights of way,
agreements and other rights referred to in paragraphs (a) and (b) are
good, valid and subsisting and are held by Borrower or the Project Companies,
as applicable, with a good and marketable title thereto free and clear of all
Liens, encumbrances or other exceptions to title other than Permitted Liens.


 


48

















 


6.24                           Sufficiency of Project Documents.


 


(a)                                  Other than those that can be reasonably
expected to be commercially available when and as required, the services to be
performed, the materials to be supplied and the real property interests and the
other rights granted to Borrower and the Project Companies pursuant to the
Project Documents:


 


(i)                                     comprise all of the property interests
necessary to secure any right material to the completion, operation and
maintenance of the Projects in accordance with all Legal Requirements, all
without reference to any proprietary information not owned by or available to
Borrower or any Project Company under the Project Documents;


 


(ii)                                  are sufficient to enable each Project to
be located, completed, operated and routinely maintained on the respective
Project Site; and


 


(iii)                               provide adequate ingress and egress for
any reasonable purpose in connection with the completion, operation and routine
maintenance of each Project under the Project Documents.


 


(b)                                 There are no material services, materials
or rights required for the completion, operation or routine maintenance of the
Projects in accordance with the Energy Hedge, Turbine Supply Agreement, BOP
Agreement, the Turbine Service Agreement, the O&M Service Agreement, the
Plans and Specifications and the Base Case Project Projections other than those
available under the Project Documents or that can reasonably be expected to be
commercially available at the Project Site on commercially reasonable
terms.  The Material Project Documents
are the only material agreements in effect as of the Closing Date for the
completion and operation of the Projects.


 


6.25                           Project Documents.


 


Except
as otherwise disclosed in writing to Administrative Agent, to Borrower’s
knowledge, no default by any Major Project Participant to a Material Project
Document to which it is a party has occurred and is continuing, which default
could be reasonably expected to have a Material Adverse Effect.


 


6.26                           Representations and Warranties of
Affiliated Participants.


 


The
representations and warranties of the Affiliated Participants contained in the
Operative Documents other than this Financing Agreement are true and correct in
all material respects as made therein as of the time made or deemed to have
been made.


 


6.27                           EWG.


 


Each Project Company
qualifies as an EWG.


 


49

















 


6.28                           Labor Disputes and Acts of God.


 


Neither
the business nor the properties of each of Borrower and each Project Company
or, to the knowledge of Borrower, any of the other Major Project Participants
are affected by any fire, explosion, accident, strike, lockout or other labor
dispute, drought, storm, hail, earthquake, embargo, act of God or of the public
enemy, or other casualty (whether or not covered by insurance), that could be
reasonably expected to have a Material Adverse Effect.


 


6.29                           Disclosure.


 


Neither
this Financing Agreement nor any other Financing Document or certificate
furnished to Administrative Agent, by or, to the knowledge of Borrower, on
behalf of Borrower, in connection with the transactions contemplated by this
Financing Agreement or the Project Documents or the design, description,
testing or operation of the Project, contains any untrue statement of a
material fact or omits to state any material fact necessary in order to make
statements made therein (in light of the circumstances in which they were made)
not misleading.  As of the Closing Date,
there is no fact known to Borrower which Borrower has not disclosed to
Administrative Agent or the Independent Consultants that has or could be
reasonably expected to have a Material Adverse Effect which has not been set
forth in this Financing Agreement or in the other documents, certificates and
written statements furnished to Administrative Agent and/or the Independent
Consultants, by or on behalf of Borrower in connection with the Projects.  No material adverse change has occurred with
respect to the financial condition, properties or business of any Affiliated
Participant that could be reasonably expected to have a Material Adverse
Effect.  To the knowledge of Borrower, no
material adverse change has occurred with respect to the financial condition,
properties or business of any Major Project Participant that is not an
Affiliated Participant that constitutes a Material Adverse Effect.


 


6.30                           Base Case Project Projections.


 


The
Base Case Project Projections (a) are based on reasonable assumptions as
to all legal and factual matters material to the estimates set forth therein, (b) are
consistent, in all material respects, with the provisions of the Project
Documents, and (c) to Borrower’s knowledge, accurately represent the
anticipated financial performance of the Projects based on the assumptions set
forth in the Base Case Project Projections.


 


6.31                           Collateral.


 


The
security interests in the Collateral granted to Security Agent, for the benefit
of the Secured Parties, pursuant to the Collateral Documents (a) constitute
as to personal property included in the Collateral and, with respect to
subsequently acquired personal property included in the Collateral, will
constitute, a perfected security interest under the UCC to the extent a
security interest can be perfected by filing or, in the case of the Collateral
Accounts and the Pledged Equity Interests (the Pledged Equity Interests being “certificated securities” as defined in Article 8 of the UCC), by control
or possession by or on behalf of the secured party; and (b) are, and, with
respect to such subsequently acquired property, will be, as to Collateral
perfected under the UCC as aforesaid, superior and prior to the rights of all
third Persons now existing or hereafter arising whether by way of mortgage, lien,
security interests, encumbrance, 


 


50

















 


assignment or otherwise, except, in the case of
Collateral not constituting Pledged Equity Interests, for Permitted Liens.  Except to the extent possession of portions
of such Collateral is required for perfection, all such action as is necessary
has been taken to establish and perfect for the benefit of Security Agent
rights in and to such Collateral to the extent Security Agent’s security
interest can be perfected by recording, filing, registration, giving of notice
or other similar action.  No filing,
recordation, re-filing or re-recording other than those listed on Exhibit E-6
(as the same may be supplemented from time to time) is necessary to maintain
the perfection of the security interest in or Liens on the Collateral
comprising personal property set forth in the Member Pledge and Security
Agreement, the Borrower Pledge and Security Agreement and each Guaranty and
Security Agreement, and all such filings will have been made to the extent
Security Agent’s security interest (for the benefit of the Secured Parties) can
be perfected by filing.  Security Agent
has received all original certificates representing all issued and outstanding
membership interests in Borrower and each Project Company.  Borrower has taken the steps necessary
pursuant to the Account Control Agreement to give “control” (as that term is
defined in Section 8-106(d) of the UCC of New York) to Security Agent
over the Collateral Accounts.


 


6.32                           Intellectual Property.


 


Borrower
owns or has the right to use all material patents, trademarks, service marks,
trade names, copyrights, licenses, know-how and other rights, which are
necessary for the completion and operation of the Projects.  Neither Borrower nor any Project Company has
received notice that (a) any material product, process, method, substance,
part or other material presently contemplated to be sold by or employed by
Borrower or any Project Company, as applicable, in connection with the Projects
will infringe in any material manner upon any patent, trademark, service mark,
trade name, copyright, license or other right owned by any other Person; (b) there
is any pending or threatened claim or litigation against or affecting Borrower
or any Project Company, as applicable, contesting its right to sell or use any
such product, process, method, substance, part or other material; or (c) there
is, or there is pending or proposed, any patent, invention, device, application
or principle or any statute, law, rule, regulation, standard or code relating
to intellectual property that could reasonably be expected to have a Material
Adverse Effect.


 


6.33                           Proper Subdivision.


 


The
Project Site does not have to be subdivided from larger tracts of land in order
to be made subject to a Lien without regard to any other real property, and may
be mortgaged, conveyed, made subject to a Lien subject to the extent and
limitations of Borrower’s and each Project Company’s, as applicable,  rights, title and interest therein and
thereto.


 


6.34                           Land Not in Flood Zone.


 


Except
as reflected on the as-built ALTA/ACSM survey delivered by Borrower pursuant to
Section 5.1(ff), to Borrower’s knowledge, none of the Collateral at
the Project Site includes improved real estate that is located in an area that
has been identified by the Director of the Federal Emergency Management Agency
as an area having special flood hazards and in 


 


51

















 


which flood insurance has been made available under
the National Flood Insurance Act of 1968, as amended.


 


6.35                           Insurance.


 


All
insurance policies required to be maintained by Borrower and each Project
Company, as applicable, under Section 7.20    and
represented by insurance policies, binders, commitments or certificates signed
by the insurer or a broker authorized to bind the insurer provided to
Administrative Agent pursuant to Section 5.1    (w) are
in full force and effect and neither Borrower nor any Project Company has
received any notice of cancellation from the relevant insurers.


 


6.36                           Bankruptcy Event.


 


No
Bankruptcy Event has occurred and is continuing with respect to Borrower, the
Member or any Affiliated Participant or, to the knowledge of Borrower, with
respect to any Major Project Participant.


 


6.37                           Construction of Projects.


 


To the
knowledge of Borrower, all work done on the Projects has been done in a good
and workmanlike manner in all material respects and in accordance with the
Turbine Supply Agreement, BOP Agreement and Prudent Utility Practices in all
material respects.  Neither Borrower nor
any Project Company has, except as permitted by the Project Documents,
permitted the use of any temporary components or used parts in the construction
of the Projects.


 


6.38                           Construction Contracts.


 


Borrower
and each Project Company has paid and discharged or caused to be paid or
discharged all material liabilities and obligations for payments of any amounts
required to be paid to the Turbine Supplier and the BOP Contractor as of the
date hereof.


 


6.39                           Warranty Period.


 


The
Warranty Period (as defined in the Turbine Supply Agreement) has commenced with
respect to the Turbines.  Borrower and
each Project Company, as applicable, has paid and discharged or caused to be
paid or discharged all material liabilities and obligations due and payable as
of the Closing Date, if any, to Turbine Supplier under the Turbine Supply
Agreement.


 


6.40                           OFAC and Related Matters.


 


(a)                                  Except to the extent any violation would
be due solely to the identity or nationality of one or more parties hereto
other than the Sponsor, Borrower, the Member or any Project Company,


 


(i)                                     None of the transactions contemplated
hereby will violate (w) the United States Trading with the Enemy Act, as
amended, (x) any of the foreign


 


52














 


assets control
regulations of the United States Treasury Department (31 C.F.R., Subtitle
B, Chapter V, as amended) or any enabling legislation or executive order
relating thereto (as amended, the “Department of Treasury Rule”), (y) Executive
Order No. 13,224, 66 Fed Reg 49,079 (2001), issued by the President of the
United States (Executive Order Blocking Property and Prohibiting Transactions
with Persons Who Commit, Threaten to Commit or Support Terrorism) (as amended,
the  “Terrorism Order”)) or (z) the
Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, Public Law
107-56 (October 26, 2001), as amended (the “Patriot Act”).


 


(ii)           None of the Member, Sponsor, the Borrower nor any
Project Company is a “blocked person” as described in Section 1 of the
Terrorism Order or a Person described in the Department of the Treasury Rule.


 


(iii)          None of the Member, Sponsor, the Borrower nor any
Project Company knowingly engages in any dealings or transactions, or is
otherwise associated, with any such blocked person or any such Person.


 


6.41                           OFAC Restrictions.


 


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


 


6.42                           Line Outage Costs.


 


Neither the Borrower
nor any Project Company incurred any line outage costs under and pursuant to
the Interconnection Agreement.


 


ARTICLE
7.


COVENANTS OF BORROWER


 


Borrower
covenants and agrees that until all of the Loans and Obligations have been paid
and performed in full and as long as Commitments remain in effect, Borrower
shall, unless Administrative Agent (on instructions of the Majority Lenders and
Issuing Bank) waives compliance in writing, perform all of the covenants set
forth in this Article 7:


 


53

















 


7.1                                 Use of Loan Proceeds and Project Revenues.


 


(a)                                  Proceeds of Loans; Letter of Credit. 
Unless otherwise applied by Administrative Agent pursuant to this
Financing Agreement, proceeds of the Loans shall be applied by Security Agent
and the Securities Intermediary in the order and manner set forth in more
detail in Article 9 and the Account Control Agreement.  The proceeds of the Term Loans and the Bridge
Loans shall be used solely for (i) the payment in full to the lenders
under the Existing Stetson I Facilities, (ii) the payment in full to the
lenders of the loans corresponding to each Stetson II Project Turbine under the
Stetson II Turbine Supply Loan, (iii) payment of construction costs in
accordance with the Construction Budget and Schedule, and (iv) payment of
transaction costs, fees and expenses related to this Financing Agreement.  The Letters of Credit and the proceeds of the
LC Loans shall be used solely in the manner set forth in this Financing
Agreement.


 


(b)                                 Revenues.  Unless otherwise applied by Administrative
Agent pursuant to this Financing Agreement, Borrower shall (and Borrower shall
cause each Project Company to) deposit all Project Revenues in the Revenue
Account pursuant to Article 9 hereof and the Account Control
Agreement, for application solely for the purposes and in the order and manner
provided in Article 9 hereof and the Account Control Agreement.


 


7.2                                 Payment.


 


Borrower
shall promptly pay all amounts due under this Financing Agreement and the other
Financing Documents to which it is a party according to the terms hereof and
thereof.


 


7.3                                 Notices and Deliveries.


 


Borrower
shall promptly upon acquiring notice or giving notice, as the case may be, or
obtaining knowledge thereof, give written notice to Administrative Agent of:


 


(a)                                  Any litigation pending or, to the
knowledge of Borrower, threatened against Borrower or any Project Company
involving claims against Borrower, any Project Company or the Project in excess
of $200,000 in the aggregate in any fiscal year of Borrower or any Project
Company, as applicable, or involving any material injunctive, declaratory or
other equitable relief, such notice to include copies of all papers filed in
such litigation and to be given monthly if any such papers have been filed
since the last notice given;


 


(b)                                 Any dispute or disputes which exist
between Borrower (or any Project Company, as applicable) and any Governmental
Authority and which involve (i) claims against Borrower (or any Project
Company, as applicable) which exceed $500,000 in the aggregate in any fiscal
year of Borrower (or any Project Company, as applicable), (ii) injunctive
or declaratory relief, (iii) revocation, suspension or material adverse
modification of any Applicable Permit or the commencement of any action or
proceeding that could reasonably be expected to result in revocation, 


 


54

















 


suspension or
material adverse modification of an Applicable Permit, or (iv) any Liens
for material taxes due but not yet paid;


 


(c)                                  Any Event of Default or Inchoate Default;


 


(d)                                 Any casualty, damage or loss, whether or
not insured, through fire, theft, other hazard or casualty, or any act or
omission of Borrower, Member or any Project Company, or their respective
officers, directors, employees, agents, contractors, consultants or
representatives, or of any other Person if such casualty, damage or loss
affects Borrower, any Project Company or the Project in excess of $1,000,000
for any one casualty or loss, or an aggregate of $3,000,000 in any fiscal year
of Borrower (or any Project Company, as applicable), and Borrower shall keep
Administrative Agent timely apprised of any insurance claim proceedings;


 


(e)                                  Any cancellation or material change in
the terms, coverages or amounts of any insurance described in Section 7.20;


 


(f)                                    Any matter that has had or, in Borrower’s
reasonable judgment, would reasonably be expected to have a Material Adverse
Effect;


 


(g)                                 Any scheduled maintenance calendar with
respect to the Project delivered to Borrower (or any Project Company, as
applicable) pursuant to the Turbine Service Agreement or the O&M Service
Agreement;


 


(h)                                 Any termination or material event of
default or notice of termination or default under any Project Document to which
Borrower or any Affiliated Participant is a party (including any failure of
Borrower to maintain in effect security instruments (including cash collateral)
as and when required pursuant to the terms and conditions of the Energy Hedge);


 


(i)                                     Any developments concerning any FERC or
MPUC proceedings affecting any Project that could be reasonably expected to
have a Material Adverse Effect;


 


(j)                                     (i) Any fact, circumstance,
condition or occurrence at, on, or arising from or with respect to, the
Projects, the Project Site, the Improvements, or other Mortgaged Property that
has resulted or could reasonably be expected to result in a material
non-compliance with any Environmental Law or any material liability or material
remedial, corrective or investigatory obligation thereunder, (ii) any
Release of Hazardous Substances on or from the Project Site, the Improvements
or other Mortgaged Property that has resulted or could reasonably be expected
to result in personal injury or material property damage or could reasonably be
expected to have a Material Adverse Effect, and (iii) any pending or, to
Borrower’s knowledge, threatened, Environmental Claim against Borrower (or any
Project Company, as applicable) or to Borrower’s knowledge any of its
Affiliates, contractors, lessees or any other Persons, arising in connection
with their occupying or conducting operations on or at the Projects, the
Project Site, the 


 


55

















 


Improvements or
the other Mortgaged Property which could reasonably be expected to have a
Material Adverse Effect;


 


(k)                                  The receipt of any management letter or
similar communication as to any deficiencies in the accounting practices of
Borrower (or any Project Company, as applicable) from Borrower’s (or any
Project Company’s, as applicable) auditors, or the resignation, discharge or
change of Borrower’s (or any Project Company’s, as applicable) auditors;


 


(l)                                     Any claim of force majeure under any
Project Document;


 


(m)                               Any forced outage affecting five (5) Turbines
or more for more than 24 hours;


 


(n)                                 Borrower’s, any Project Company’s or any
ERISA affiliate’s adoption of or participation in any ERISA Plan, or intention
to adopt or participate in any ERISA Plan;


 


(o)                                 The occurrence of an Event of Eminent
Domain;


 


(p)                                 Any event or condition likely to require
the incurrence of major maintenance items in an amount that is at least 20%
higher, in the aggregate, than the corresponding amounts set forth with respect
to all such items in the Base Case Project Projections for such year, within
thirty (30) days of the date when Borrower obtains such knowledge;


 


(q)                                 (i) a notice of any drawing or
demand by the Energy Hedge Provider on the security instruments established by
or on behalf of Borrower as required under the Energy Hedge, (ii) a notice
of any drawing or demand by Borrower on any security instruments established by
or on behalf of Energy Hedge Provider as required under the Energy Hedge; or (iii) prior
to the creation of the Energy Hedge Lien, if applicable, if the amount of the
available Total LC Commitment in respect of the Hedge LCs plus
the value of any other existing credit support (in excess of the value of the
Energy Hedge LC) provided to Energy Hedge Provider minus
the Energy Hedge Liquidity Reserve Requirement (such amount as calculated on
each Payment Date, the “Hedge LC Margin”) is less than $2,500,000,
Borrower shall cause to be deposited into the Energy Hedge Reserve Account
amounts remaining in the Revenue Account pursuant to Section 6(b)(9) of
the Account Control Agreement; provided, that  the amounts on deposit in the Energy Hedge
Deposit Account shall never be required to exceed $5,000,000 at any given time.


 


(r)                                    All material notices relating to any
Project received by Borrower (or any Project Company) from any Governmental
Authority;


 


(s)                                  The receipt of Turbine Mechanical
Completion Certificates (as defined in the Turbine Supply Agreement), and the
Infrastructure Completion Certificate (as defined in the BOP Agreement) with
respect to the Stetson II Project; and


 


56

















 


(t)                                    All material written notices or material
written periodic reports with respect to any Project received by the Borrower
or any Project Company under any Project Document they are a party to, including
any such notices related to the Turbines by the Turbine Operator or the Turbine
Supplier.


 


7.4                                 Financial Statements.


 


(a)                                  Borrower shall deliver to Administrative
Agent (or cause to be delivered to Administrative Agent) with sufficient copies
for the Lenders, in form and substance reasonably satisfactory to
Administrative Agent (with consent of the Majority Lenders and the Issuing
Bank):


 


(i)                                     As soon as practicable but no later than
forty-five (45) days after the close of the first, second and third quarterly
periods of its fiscal year, quarterly (and year-to-date) unaudited financial
statements of Borrower and each Project Company (on a consolidated basis),
Member, Sponsor and Energy Hedge Guarantor, including a balance sheet and an
income and expense statement.  Such
requirement may be satisfied with respect to any Person if the appropriate Form 10-Q
filed with the Securities and Exchange Commission is publicly available;


 


(ii)                                  As soon as practicable but no later than
120 days after the close of each applicable fiscal year, audited financial
statements of Borrower and each Project Company, on a consolidated basis,  Sponsor, Member and Energy Hedge
Guarantor including a statement of equity, a balance sheet as of the close of
such year, an income and expense statement and a cash flow statement, all
prepared in conformity with GAAP and certified by an independent certified
public accountant selected by the Person whose financial statements are being
prepared and, except in the case of any company subject to reporting
requirements under the Securities Exchange Act of 1934, satisfactory to
Administrative Agent (with consent of the Majority Lenders and the Issuing
Bank); provided, however, that any accounting firm of
international or national standing shall be satisfactory.  The certificate to be delivered by an
independent certified public accountant pursuant to the first sentence of this Section 7.4(a)(ii) with
respect to Borrower and each Project Company shall not be qualified or limited
because of such accountant’s restricted or limited examination of any material
portion of the records of the applicable Person.  Such requirement may be satisfied with
respect to any Person if the appropriate Form 10-K filed with the
Securities and Exchange Commission is publicly available; and


 


(iii)                               Any additional financial statements,
reports or documents to the extent available to Borrower or to which Borrower
(or any Project Company, as applicable) is entitled under the Material Project
Documents and that are reasonably requested by Administrative Agent.


 


57

















 


(b)                                 Each time the financial statements
described above are delivered under this Section 7.4, a certificate
signed by an Authorized Officer of the Person whose financial statements are
being delivered shall be delivered along with such financial statements,
certifying that such Authorized 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, to the knowledge of the Authorized Officer, no
Inchoate Default or Event of Default exists or if any such event or condition
existed or exists, the nature thereof and the corrective actions that the
Sponsor, Member, Borrower or the Project Company has taken or proposes to take
with respect thereto.


 


7.5                                 Reports.


 


(a)                                  No later than five (5) Business Days
prior to each Payment Date, Borrower shall deliver to the Administrative Agent
the calculation of the Debt Service Coverage Ratio for the past 12-month period
(which calculation of the Debt Service Coverage Ratio shall include Borrower’s
reasonable estimate for Project Revenues and O&M Costs through such Payment
Date).  The calculations of the Debt
Service Coverage Ratio hereunder, upon confirmation from the Administrative
Agent, shall be used in determining the transfers and releases from the Revenue
Account and the Disbursement Reserve Account, as applicable, in accordance with
the terms of the Account Control Agreement.


 


(b)                                 Following the Closing Date, on the 26th day of each
calendar month commencing January 2010, Borrower shall deliver to
Administrative Agent (with sufficient copies for the Lenders) a monthly summary
operating report which shall include (i) monthly, a three-month and
year-to-date numerical and narrative assessment with respect to each calendar
month in the relevant period of (A) the variance analysis of each Project’s
compliance with each material category in the Base Case Project Projections, (B) each
Project’s electrical production (including variances from budgeted amounts),
delivery and curtailment, if any, (C) Project availability and unscheduled
maintenance of Turbines in respect of both Projects, (D) [reserved], (E) all
Project Revenues received and all O&M Costs paid during such period
(including any REC penalties, if applicable and the activity under the Energy
Hedge) and all cash balances, including debt service payments during such
period, (F) any claims for warranty claims under the Turbine Supply
Agreement made or outstanding during such quarter, (G) replacement of
equipment not contemplated by the Base Case Project Projections of value in
excess of $250,000, and (H) material disputes with contractors,
materialmen, suppliers or others and any related claims against Borrower (or
any Project Company, as applicable); and (ii) average wind speeds
(including with respect to each calendar month in such period).


 


(c)                                  Promptly following the end of each
calendar quarter, commencing with the quarter ending December 31, 2009,
Borrower shall deliver to Administrative Agent a summary report describing the
then current balance of RECs calculated pursuant to the REC Contracts,
including the relevant balances of RECs for each 


 


58

















 


category
referenced therein and, to the extent reasonably available to Borrower, the REC
balances determined by GIS Administrator with respect to each Project for the
relevant quarter.  Promptly following
each annual reconciliation of REC balances under the REC Contracts, Borrower
shall deliver to Administrative Agent a reasonably detailed report discussing
in sufficient detail (i) the results of such reconciliation, (ii) the
applicable REC balances for each category referenced therein and, to the extent
reasonably available to Borrower, the REC balances determined by GIS
Administrator with respect to the Projects for the relevant period, (iii) if
applicable, the amount of substitute RECs required to be provided by Borrower
(or any Project Company, as applicable) as a result of such reconciliation and
the costs payable by Borrower (or any Project Company, as applicable) as a
result thereof, and (iv) any REC penalties due and payable by Borrower (or
any Project Company, as applicable) or GIS Administrator as a result of such
reconciliation.


 


(d)                                 Borrower shall provide to Administrative
Agent promptly upon reasonable request such information concerning the Projects
and the Project Companies and, to the extent available, the other Affiliated
Participants, at such times as Administrative Agent shall reasonably require,
including such reports and information as are reasonably required by the
Independent Consultants.


 


(e)                                  Borrower shall provide reports required
under this Section 7.5 in a number of copies sufficient for
distribution to all Lenders.


 


7.6                                 Additional Permits and Project Documents;
Additional Consents.


 


Borrower
shall deliver to Administrative Agent promptly, but in no event later than
thirty (30) days after the receipt thereof by Borrower, copies of (a) all
Applicable Permits or any Additional Project Documents obtained or entered into
by Borrower (or any Project Company, as applicable) after the Closing Date; and
(b) any material amendment, supplement or other modification to any
Applicable Permit received by Borrower after the Closing Date.  Each Additional Project Document entered into
by Borrower (or any Project Company, as applicable) after the Closing Date
shall be in form and substance reasonably satisfactory to Administrative Agent
and concurrently with the delivery of such Additional Project Document,
Borrower shall cause each other party to such agreement to execute and deliver
to Administrative Agent, to the extent reasonably required by Administrative
Agent, a consent in substantially the form of Exhibit F-7 and use
its commercially reasonable efforts, to the extent reasonably required by
Administrative Agent,  to cause such
counterparty to provide an opinion of its counsel, in form and substance
reasonably acceptable to Administrative Agent. 
Within fifteen (15) Business Days after the Closing Date, Stetson Wind
II, LLC shall enter into an agreement, in form and substance similar to the
Turbine Service Agreement and reasonably satisfactory to the Administrative
Agent.


 


7.7                                 Compliance with Environmental Report
Recommendations


 


Borrower shall (and Borrower shall cause each Project
Company to), and shall use reasonable efforts to cause each counterparty to
each Project Document to, comply in all 


 


59

















 


material
respects with all material and relevant recommendations of the applicable
Environmental Consultant set forth in the Environmental Reports, and shall
inform each such counterparty of each Project Document of the material and
relevant recommendations contained in each such Environmental Reports.


 


7.8                                 Existence, Conduct of Business, Properties,
Etc.


 


Except
as otherwise expressly permitted under this Financing Agreement, Borrower shall
(and Borrower shall cause each Project Company to) (a) maintain and
preserve its existence as a Delaware limited liability company and all material
rights, privileges, remedies and franchises necessary or desirable in the
normal conduct of its business; (b) perform all of its material
contractual obligations under the Operative Documents and all other agreements
and contracts by which it is bound upon the terms contained therein; (c) maintain
all Permits and licenses, including all Applicable Permits, which are necessary
or advisable to conduct its business and to own, insure, operate and maintain
each Project in the manner contemplated by the Project Documents; (d) at
or before the time that any Permit becomes an Applicable Permit, obtain such
Permit; and (e) engage only in the business contemplated by the Operative
Documents.


 


7.9                                 Obligations.


 


Borrower
shall (and Borrower shall cause each Project Company to) pay all of its
obligations as and when due and payable, including trade payables in the
ordinary course of business and taxes and tax claims, except such obligations
as may be contested in good faith by Borrower (or any Project Company, as
applicable) or as to which a bona fide
dispute may exist, provided that with respect to any such disputes relating to amounts
of more than $100,000, (i) Administrative Agent is satisfied in its
reasonable discretion that non-payment of such obligation pending the
resolution of such contest or dispute could not reasonably be expected to have
a Material Adverse Effect; or (ii) provision is made to the satisfaction
of Administrative Agent (and Administrative Agent’s failure to object to
Borrower’s written request for approval of such arrangements within ten (10) Business
Days of receipt of such request shall constitute approval thereof) in its
reasonable discretion for the posting of security (other than the Collateral)
for or the bonding of such obligations or the prompt payment thereof in the
event that such obligation is payable.


 


7.10                           Books, Records, Access.


 


(a)                                  Borrower shall (and Borrower shall cause
each Project Company to) maintain adequate books, accounts and records with
respect to Borrower (or the Project Companies, as applicable) and each Project
and prepare all financial statements required hereunder in conformity with GAAP
and in material compliance with the regulations of any Governmental Authority
having jurisdiction thereof, and permit employees or agents of any Lender at
any reasonable time during Borrower’s normal business hours and upon reasonable
prior notice to Borrower and Administrative Agent, without undue disturbance to
Borrower’s commercial operations and at all times in reasonable compliance with
Borrower’s health, safety, and environmental policies (assuming that Borrower
has provided 


 


60

















 


adequate training
to such Lender), to inspect all of Borrower’s (and each Project Company’s)
properties including the Project Site, to examine or audit all of Borrower’s
(and each Project Company’s) books, accounts and records and make copies and
memoranda thereof, in each case subject to the provisions of Section 14.19    ;
provided, however, that prior to the occurrence of an Inchoate
Default or Event of Default the Lender desiring to conduct an inspection in
excess of one inspection per 90-day period shall bear the cost thereof.


 


(b)                                 Borrower shall, upon reasonable notice
from the Independent Engineer, provide the Independent Engineer with reasonable
access to the Project Site at all times during Borrower’s normal business
hours, remote access to the Project’s SCADA System (as defined in the Turbine
Supply Agreement) and access to and copies of such of the Project’s engineering
drawings and civil and electrical designs and interconnection facilities and
project manuals so as to enable the Independent Engineer to deliver such certificates
and written reports to Administrative Agent (with sufficient copies for the
Lenders) as Administrative Agent may reasonably request.


 


(c)                                  Borrower shall provide the Independent
Engineer with copies of all manuals that are material to the operation of the
Projects and that are required to be delivered to Borrower.


 


7.11                           EWG and Rate Approval.


 


(a)                                  Borrower shall take or cause to be taken
all necessary and appropriate actions so that each Project Company will be an
Exempt Wholesale Generator until all amounts due the Lenders under the
Financing Documents have been paid in full.


 


(b)                                 Borrower shall (i) take or cause to
be taken all necessary and appropriate actions so that Borrower will not be
subject to the jurisdiction of FERC as a “public utility” under Parts II and
III of the FPA and neither Borrower nor any Project Company will be subject to
jurisdiction of the MPUC as a “public utility” under applicable Maine law; and (ii) take
or cause to be taken all necessary or appropriate actions so that each Project
Company will maintain any FERC approvals and Maine state approvals in respect
of selling power in Maine.


 


7.12                           Operation of Projects.


 


(a)                                  Borrower shall keep and operate each
Project, or cause the same to be kept and operated, in good operating condition
consistent in all material respects with Prudent Utility Practices, all
Applicable Permits and Legal Requirements and all applicable requirements of
the Operative Documents, and make or cause to be made all repairs (structural
and non-structural, extraordinary or ordinary) necessary to keep and operate
each Project in such condition.  Borrower
shall from time to time consider and implement the reasonable recommendations
of the Independent Engineer in connection with the operation of each Project.


 


61

















 


(b)                                 Borrower shall operate and maintain each
Project, or cause each Project to be operated and maintained in accordance with
the Base Case Project Projections (subject to Borrower’s other rights under the
Financing Documents, including Borrower’s rights to access amounts in the
Collateral Accounts in accordance with the terms of this Agreement and the
Account Control Agreement).


 


(c)                                  Borrower shall operate and maintain each
Project, or cause each Project to be operated and maintained in accordance with
the Base Case Project Projections in effect from time to time after the
expiration of the applicable Warranty Period (as defined in each Turbine Supply
Agreement).


 


(d)                                 Borrower shall not (nor shall it allow
any Project Company to) (i) approve any material amendments or
modifications to any operation and maintenance manuals referred to in the
Turbine Service Agreement and O&M Service Agreement, or (ii) terminate
the Turbine Service Agreement ***** in each case without obtaining the prior
written consent of Administrative Agent (with consent of the Majority Lenders
and Issuing Bank).


 


7.13                           Preservation of Rights; Further Assurances.


 


(a)                                  Borrower shall preserve, protect and
defend its rights (and the rights of each Project Company, as applicable) under
each and every Project Document, including (where necessary or appropriate)
prosecution of suits to enforce any material right of Borrower (or any Project
Company, as applicable) thereunder and enforcement of any claims with respect
thereto.


 


(b)                                 From time to time as reasonably requested
by any Agent, Borrower shall (and Borrower shall cause each Project Company to)
execute, acknowledge, record, register, deliver and/or file all such notices,
statements, instruments and other documents (including any memorandum of lease
or other agreement, financing statement, continuation statement, fixture
filing, certificate of title or estoppel certificate) relating to the Loans and
other Obligations of Borrower hereunder stating the interest and charges then
due and any known defaults, and take such other steps as may be necessary or
reasonably advisable to render fully valid and enforceable under all applicable
laws the rights, Liens and priorities of the Secured Parties (or any Agent on
their behalf) with respect to all Collateral and other security from time to
time furnished under this Financing Agreement and the other Financing Documents
or intended to be so furnished, in each case in such form, together with such
legal opinions as may reasonably be requested by any Agent and at such times as
shall be reasonably satisfactory to Security Agent, and pay all reasonable fees
and expenses (including reasonable attorneys’ fees) incident to compliance with
this Section 7.13(b).


 


(c)                                  If Borrower (or any Project Company)
shall at any time acquire any real property or leasehold, easement or other
interest in real property not covered by the Mortgage Documents, promptly upon
such acquisition, Borrower shall (and Borrower shall cause each Project Company
to) execute, deliver and record a


 


62














 


supplement to the
Mortgage Documents, reasonably satisfactory in form and substance to Security
Agent, subjecting such real property or leasehold, easement or other interests
to the Lien and security interest created by the Mortgage Documents.


 


7.14         Taxes, Other Government Charges and Utility
Charges.


 


Borrower
shall (and Borrower shall cause each Project Company to) pay, or cause to be
paid, as and when due and prior to delinquency, all taxes, assessments and
governmental charges of any kind that may at any time be lawfully assessed or
levied against or with respect to Borrower, each Project Company or the
Projects, all utility and other charges incurred in the completion, operation,
maintenance, use, occupancy and upkeep of each Project, and all assessments and
charges lawfully made by any Governmental Authority for public improvements
that may be secured by a Lien on any Project. 
However, Borrower and each Project Company may contest in good faith any
such taxes, assessments and other charges and, in such event, may permit the
taxes, assessments or other charges so contested to remain unpaid during any
period, including appeals, when each of Borrower and each Project Company is in
good faith contesting the same, so long as, with respect to any such dispute in
an amount greater than $100,000 (a) reserves reasonably satisfactory to
Administrative Agent have been established in an amount sufficient to pay any
such taxes, assessments or other charges, accrued interest thereon, potential
penalties, additions to tax or other costs relating thereto, or other adequate
provision for the payment thereof shall have been made, provided that
failure of Administrative Agent to object to Borrower’s written request for
approval of reserve arrangements within ten (10) Business Days of receipt
by Administrative Agent of such request shall constitute and be deemed approval
thereof; (b) enforcement of the contested tax, assessment or other charge
is effectively stayed for the entire duration of such contest; and (c) any
tax, assessment or other charge determined to be due, together with any
interest, additions to tax or penalties thereon, is paid when due after
resolution of such contest by final non-appealable judgment.


 


7.15         Compliance With Laws; Permits.


 


At its
expense, Borrower shall (and Borrower shall cause each Project Company to),
except to the extent failure to do so could not be reasonably expected to have
a Material Adverse Effect, (a) comply, or cause compliance, with all
Legal Requirements relating to the Projects, each Project Company or to
Borrower, including all Environmental Laws; (b) procure, maintain and
comply, or cause to be procured, maintained and complied with, all Permits
required under Legal Requirements (including all Environmental Laws) for any
use of the Projects, the Project Site, the Improvements or other Mortgaged
Property, then being made or contemplated by the Operative Documents; and (c) in
the case of a change of name or corporate organization involving Borrower or
any Project Company, as applicable, take such actions, including the filing of
appropriate notices with all Governmental Authorities that have issued
Applicable Permits, to maintain in full force and effect each Applicable
Permit, as may be necessary by applicable Legal Requirements.  Borrower shall (and Borrower shall cause each
Project Company to) (i) promptly take any remedial, responsive or
corrective action required under any Environmental Law with respect to any
presence or Release of Hazardous Substances to the extent that such presence or
Release could reasonably be expected to give rise to a material liability or a
material remedial, corrective or investigatory obligation of Borrower (or any
Project 


 


63

















 


Company, as applicable) or (ii) promptly respond
to, and address, any material Environmental Claim against Borrower, any Project
Company or any Project.  Borrower (or any
Project Company, as applicable) may, at its expense, contest by appropriate proceedings
conducted in good faith the validity or application of Legal Requirements or
Permits, provided that (i) none of the Agents, Lenders, Issuing
Bank, any Project Company or Borrower reasonably would be likely to be
subjected to any criminal or other liability for failure to comply therewith;  and  (ii) all proceedings to enforce
such Legal Requirements or Permits against the Agents, Issuing Bank, the
Lenders, Borrower, the Project Companies or the Projects, shall have been duly
and effectively stayed during the entire pendency of such contest.


 


7.16         Compliance with Anti-Money Laundering and OFAC Laws.


 


(a)           The Borrower shall (and the Borrower
shall cause each Project Company to) comply at all times with the requirements
of all Anti-Money Laundering Laws.


 


(b)           The Borrower shall provide the
Administrative Agent (on behalf of the Lenders) with any information regarding
the Borrower, Sponsor, the Member and any Project Company necessary for the
Lenders to comply with all Anti-Money Laundering Laws.


 


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


 


(d)           The Borrower shall not, and shall cause
the Member, Sponsor and each Project Company not to, conduct business with or
engage in any transaction with any person or entity named in the OFAC SDN List
or any Person included in, owned by, controlled by, acting for or on behalf of,
providing assistance, support, sponsorship, or services of any kind to, or
otherwise associated with any of the Persons referred to or described in the
OFAC SDN List.


 


(e)           If the Borrower obtains actual knowledge
or receives any written notice that the Borrower, the Member, Sponsor, any
Project Company or any Person holding any legal or beneficial interest
whatsoever therein (whether directly or indirectly) is named on the OFAC SDN List
(such occurrence, an “OFAC Violation”), the Borrower shall immediately (i) give
written notice to the Administrative Agent of such OFAC Violation, and (ii) comply
with all applicable laws with respect to such OFAC Violation (regardless of
whether the party included on the OFAC SDN List is located within the
jurisdiction of the United States of America), including the OFAC Laws, and the
Borrower hereby authorizes and consents to the Administrative Agent taking any
and all steps the Agent deems necessary, in its sole discretion, to comply with
all applicable laws with respect to any such OFAC Violation, including the
requirements of the OFAC Laws (including the “freezing” and/or “blocking” of
assets and reporting such action to OFAC).


 


(f)            Upon the Administrative Agent’s request
from time to time, the Borrower shall deliver a certification confirming its
compliance with the covenants set forth in this Section 7.16.


 


64

















 


7.17         Separateness Provisions.


 


Borrower shall (and Borrower shall cause each Project Company to)
comply with the separateness provisions set forth in Article 6 of its
respective LLC Agreement, other than as required for Borrower and each Project
Company to execute, deliver and perform the obligations under the Operative
Documents to which it is a party.


 


7.18         Enforcement of Remedies.


 


Borrower
shall diligently pursue and enforce all of its rights and remedies under the
Turbine Supply Agreement and the BOP Agreement in a reasonably commercial
manner.


 


7.19         O&M Service Agreement.  The Borrower shall cause the Annual Operating
Budget under and as defined in the O&M Service Agreement to be in
compliance with the Base Case Project Projections.  The Borrower shall deliver to the
Administrative Agent a copy of each such Annual Operating Budget upon receipt.


 


7.20         Maintenance of Insurance.


 


(a)           Borrower shall (and Borrower shall cause each Project
Company to), without cost to the Lenders, maintain or cause to be maintained on
its (or the Project Companies’, as applicable) behalf in effect at all times
the types of insurance required by the following provisions together with any
other types of insurance required hereunder or in any other Project Document,
with insurance companies rated A-, X or better, by Best’s Insurance Guide and
Key Ratings (or an equivalent rating by another nationally recognized insurance
rating agency of similar standing if Best’s Insurance Guide and Key Ratings
shall no longer be published), or other insurance companies of recognized responsibility
satisfactory to Administrative Agent (with the consent of the Majority Lenders
and Issuing Bank).  Upon request of the
Administrative Agent, Borrower shall supply copies of insurance policies or
agreed upon policy wordings.


 


(b)           The following insurance coverages shall be in form and
substance reasonably satisfactory to the Administrative Agent and shall be in
place as of the Closing Date until all obligations of Borrower pursuant to this
Financing Agreement and the other Financing Documents have been fully
discharged:


 


(i)            Commercial
general liability insurance for the Borrower and each Project Company on a “per
occurrence” policy form, or “AEGIS”
claims-first made equivalent policy including coverage for
premises/operations, explosion, collapse and underground hazards,
products/completed operations, broad form property damage, blanket contractual
liability, and personal injury, with primary coverage limits of no less than
$1,000,000 any one occurrence and $2,000,000 in the aggregate.  The commercial general liability policy shall
also include a severability of interest with no exclusions for cross-liability.  Deductibles in excess of $10,000 shall be
subject to review and approval by the Administrative Agent.  Pollution 


 


65

















 


liability
is optional unless otherwise required by contract, and then, to such limits as
required therein.


 


(ii)           Automobile liability insurance for
Borrower and each Project Company, including coverage for owned, non-owned and hired
automobiles, as applicable, for both bodily injury and property damage and
containing appropriate no-fault insurance provisions or other endorsements in
accordance with applicable state legal requirements, with limits of no less
than $1,000,000 per accident with respect to bodily injury, property damage or
death.


 


(iii)          Worker’s compensation insurance, disability benefits
insurance and other similar forms of insurance which Borrower (or any Project
Company, as applicable) is required by law to provide for the Project,
providing statutory benefits and other applicable States’ endorsement and
USL&H Act coverage (if any exposure exists), covering loss resulting from
injury, sickness, disability or death of the employees of Borrower (or any
Project Company, as applicable) with limits for employer’s liability of not
less than bodily injury by accident $4,500,000 each accident, bodily injury by
disease $4,500,000 policy limit, and bodily injury by disease $4,500,000 each
employee.  These limits may be satisfied
through a combination of primary and excess policies.


 


(iv)          Umbrella/Excess
Liability Insurance written on an occurrence basis or AEGIS claims-first-made
equivalent and providing limits in excess of the primary limits applying under
policies described in Sections 7.20(b)(i) and (ii).  Such insurance coverage shall have a limit of
liability of not less
than $20,000,000 per occurrence and in the annual aggregate.  The umbrella and/or excess
liability policies shall not contain endorsements which restrict coverages as
set forth in Section 7.20(b)(i), and which are provided in the
underlying policies.  If the policy or
policies provided under this Section 7.20(b)(iv) contain(s) aggregate
limits and such limits are diminished below $15,000,000 by any incident, occurrence,
claim, settlement or judgment against such insurance which has caused the
carrier to establish a reserve, Borrower (and each Project Company, as
applicable) shall take immediate steps to restore such aggregate limits or
shall provide other equivalent insurance protection for such aggregate limits.


 


(v)           Aircraft liability, to the extent exposure exists, for
the use of any owned, non-owned or hired aircraft used in the operation of the
Project with a limit of not less than $10,000,000.


 


(vi)          From the point
of groundbreaking for the Borrower and the Stetson II Project and through the
date of Substantial Completion, or
until such time as cover is provided under the operational insurance as set
forth in Section 7.20(b)(vii) below, with no gap in coverage,
builder’s risk insurance on an 


 


66

















 


“all
risk” basis on a completed value form including earthquake and flood, collapse,
sinkhole, subsidence and malicious mischief, on a replacement cost basis with
no coinsurance penalty and providing:


 


A.            coverage for
the Stetson II Project including removal of debris, and first party pollution
and hazardous material clean up and removal (with a limit of not less than
$1,000,000) insuring the buildings, structures, machinery, equipment,
facilities, fixtures and other properties intended to be a permanent part of
the Stetson II Project in a minimum aggregate amount not less than full
replacement value of the Stetson II Project, subject to an annual aggregate
limit of not less than $50,000,000 for flood, earthquake, collapse, sinkhole
and subsidence coverage,


 


B.            off-site
coverage with a per occurrence limit of $5,000,000 of the limit of liability or
such higher amount as is sufficient to cover the replacement cost values of
off-site equipment for which there have been progress payments.  Said off-site coverage may be insured as a
section of the all risk builder’s risk or as a separate policy,


 


C.            transit
coverage (including ocean cargo where ocean transit will be required) with a
per occurrence limit of the full insurable value of any single shipment and
providing for 12 months delay in start-up cover (revenues including PTCs, if
applicable, less non-continuing expenses). 
Said transit coverage may be insured as a section of the all risk
builder’s risk or as a separate policy. 
If as a separate policy, such policy to be placed no later than 20 days
prior to the first shipment and shall contain a 50/50 clause,


 


D.            coverage for
operational testing and startup with the same dollar coverage and modifications
as set out in (vi)(A) above for all assets related to the Stetson II
Project, with cover running continuously for machinery breakdown from the
beginning of testing until such time as operational cover is put into place;
and


 


E.             business
interruption insurance (of a “delay” or “delay in start-up” and “contingent
delay in startup” nature) in a minimum aggregate amount for the delay in
start-up of not less than the equivalent of twelve (12) months and for
contingent at least six (6) months “Advance Loss of Profits” including
grossed up production tax credits and Renewable Energy Credits (if applicable)
on an “all risk” basis, as set forth in (vi)(A) through (vi)(D) above.  The “contingent delay in start- up” shall 


 


67

















 


endorse
and insure all non-owned substations and interconnection facilities and
material project suppliers


 


F.             All such
policies may have deductibles of not greater than $150,000 per loss; and
business interruption/delay in start-up coverage shall have a deductible not
greater than a 30 day period; and operational testing shall have a deductible
of not greater than $150,000 per occurrence; and transit coverage shall have a
deductible of not greater than $150,000 per occurrence.


 


(vii)         All-risk
property insurance covering against physical loss or damage to the Stetson II
Project assets from and after the
date of Substantial Completion as defined in the Turbine Supply Agreements with
no gap in coverage with the requirements in Section (b)(vi) above,
Borrower, and Stetson I Project assets (including (i) buried
cables at any of the Project sites and (ii) transmission lines to the
extent the Borrower or any Project Company has risk of loss and insurance,
subject to commercially availability), including fire and extended coverage,
collapse, flood, earth movement and comprehensive boiler and machinery coverage
(including electrical malfunction and mechanical breakdown).  Such insurance coverage shall not include any
exclusion for resultant damage caused by faulty workmanship, design or
materials.  Such insurance coverage shall
be written on a full replacement cost basis with no coinsurance penalty, and
providing:


 


A.            expediting and extra expense
at $500,000 (unless provided under the business interruption cover in F.
below);


 


B.            debris removal with a
$10,000,000 limit;


 


C.            transit cover to the extent
exposure exists, with limits equivalent to the full replacement value of
property at risks;


 


D.            earthquake and flood
coverage may be written with a sublimit of not less than $50,000,000 and cover
for terrorism is optional, unless required by contract;


 


E.             the policy limits shall be
automatically reinstated following a loss event, with the exception of damage
from earthquake and flood, which shall be on an annual aggregate limit;


 


F.             business interruption
insurance covering against the same
perils as set forth in Section 7.20(b)(vii) above, in an
amount not less than twelve (12) months of projected revenues (including production tax credits and renewable energy credits, to the extent
applicable) less non continuing expenses with an indemnity period of not less
than  twelve (12) months.  The 


 


68

















 


business
interruption limit may be included in the policy limit set forth in Section 7.20(b)(vii).  Borrower shall also maintain contingent
business interruption coverage to the first non-owned substation(s) and
transmission facilities or electrical distribution systems on a specified and
named location basis with a limit  not
less than $5,000,000 (subject
to commercial availability).. Borrower shall also maintain or cause to be
maintained, expediting or extra expenses coverage in an amount not less than
$500,000.  Such cover may be subject to a
waiting period not to exceed thirty (30) days; and


 


G.            all such policies
may have deductibles of not greater than $150,000 per loss and business
interruption coverage shall have a deductible not greater than a 30 day period,
unless otherwise approved by the Administrative Agent.


 


(viii)        Such other or additional insurance (as to
risks covered, policy amounts, policy provisions or otherwise) as, under
Prudent Utility Practices, are from time to time insured against for property
and facilities similar in type, nature, use and location to the Project which
Administrative Agent may reasonably require after consultation with the
Insurance Consultant and Borrower or Borrower’s insurance representative.


 


(c)           Borrower shall use
reasonable efforts to require each contractor to maintain insurance consistent
with industry practice.


 


(d)           All policies wherein any Lender has an insurable
interest shall insure the interests of the Agents and the Lenders as well as
Borrower and any Project Company, as applicable ,and shall name Agents, and the
Lenders as additional insured, unless the Agents and the Lenders are named as
an insured under the policy.  All
policies covering real or personal property or business interruption shall name
the Security Agent as sole loss payee in accordance with lender’s loss payable
endorsement 438 BFU or ISO CP 1218 or their equivalent and shall provide that
any payment thereunder for any loss or damage with respect to the Projects
shall be made in accordance with the provisions set forth in Article 9
of this Financing Agreement and Section 6 of the Account Control
Agreement.  Upon payment and satisfaction
of all of Borrower’s obligations under, and termination of the Financing
Documents, Administrative Agent will instruct the insurers to name Borrower, or
such successor credit provider or other Person as Borrower shall specify, as
loss payee.


 


All policies of
liability, except for workmens compensation and employer’s liability where not
legally allowed, shall name the Secured Parties as Additional Insured.


 


All
policies shall:


 


69

















 


(A)  expressly provide that all provisions thereof, except
the limits of liability (which shall be applicable to all insureds as a group)
and liability for premiums (which shall be solely a liability of Borrower)
shall operate in the same manner as if there were a separate policy covering
each such insured.


 


(B)   be primary and non-contributory with insurance carried
by or on behalf of additional insureds.


 


(C)   Each policy shall waive subrogation (to
the extent allowed by law) against any of the Secured Parties, any Project Company or Borrower.


 


(D)  To the extent commercially
available, each such
policy shall provide that if any premium or installment is not paid when due,
or if such insurance is to be cancelled or terminated for any reason
whatsoever, the insurers (or their representatives) will promptly notify
Borrower and Administrative Agent, and any such cancellation or termination
shall not be effective until thirty (30) days (ten (10) days with regard
to non-payment) after receipt of such notice to Administrative Agent, and that
appropriate certification shall be made to Borrower by each insurer with
respect thereto.


 


(E)   All policies covering real and personal property or
business interruption (including delay in start-up/
advance loss of profits)
shall be endorsed so that the interests of Agents and Lenders shall be insured
regardless of any breach or violation by Borrower, any Project Company or any
other Person, of any warranties, declarations or conditions contained in such
insurance policies.


 


(e)           In the event that Borrower (or any Project Company)
fails to respond in a timely and appropriate manner (as reasonably determined
by Administrative Agent) to take any steps necessary or reasonably requested by
Administrative Agent to collect from any insurers for any loss covered by any
insurance required to be maintained by this Section 7.20,
Administrative Agent shall have the right to make all proofs of loss, adjust
all claims with the insurance company or companies and/or receive all or any
part of the proceeds of the foregoing insurance policies, either in its own
name or the name of Borrower or any Project Company; provided, however,
that Borrower shall (and Borrower shall cause each Project Company to), upon
Administrative Agent’s request and at Borrower’s (or each Project Company’s, as
applicable) own cost and expense, make all proofs of loss and take all other
steps necessary or reasonably requested by Administrative Agent to collect from
insurers for any loss covered by any insurance required to be obtained by this Section 7.20.  Notwithstanding this Section 7.20(e),
Administrative Agent shall have the right to participate and receive
information with respect to all claims and losses.


 


70

















 


(f)            On or before the Closing Date and at each policy
renewal, Borrower or its authorized insurance representative shall furnish
evidence of insurance (certificates of insurance, binders, cover notes or
policy wordings) to the Administrative Agent in accordance with industry
standards.  On or before the Closing Date
and annually thereafter, the Borrower or its insurance representative shall
furnish to Administrative Agent a certificate signed by a duly authorized
representative of Borrower or insurance brokerage firm, showing the insurance
then maintained by or on behalf of Borrower and each Project Company pursuant
to this Section 7.20 and stating that such insurance complies in
all material aspects with the terms hereof and that premiums are current and
that no policies are in danger or threat of cancellation for non-payment of
premiums.  In the event that at any time
the insurance required by this Section 7.20 shall be reduced or
cease to be maintained, then (without limiting the rights of Administrative
Agent hereunder in respect of the Event of Default which arises as a result of
such failure) Administrative Agent may on behalf of the Secured Parties, at its
option, maintain the insurance required hereby and, in such event, Borrower
shall reimburse Administrative Agent upon demand for the cost thereof together
with interest thereon at a rate per annum equal to the Default Rate, but in no
event shall the rate of interest exceed the maximum rate permitted by law.


 


(g)           In the event any insurance (including the limits or
deductibles thereof) hereby required by this Section 7.20 to be
maintained, other than insurance required by law to be maintained, shall not be
available on commercially reasonable terms in the commercial insurance market,
Administrative Agent acting upon consultation with the Insurance Consultant,
shall not unreasonably withhold its agreement to waive such requirement to the
extent the maintenance thereof is not so available and/or, to the extent
applicable, may allow Borrower (or any Project Company, as applicable) to
obtain the best available insurance comparable to the requirements of this Section 7.20
on commercially reasonable terms then available in the commercial insurance
market (as determined by the Insurance Consultant); provided, however,
that (i) Borrower shall first request any such waiver in writing, which
request shall be accompanied by written reports prepared by Borrower and the
Insurance Consultant certifying that such insurance is not available on
commercially reasonable terms in the commercial insurance market for wind
energy generation projects of similar type and capacity (and, in any case where
the required amount is not so available, certifying as to the maximum amount
which is so available) and explaining in detail the basis for such conclusions
and the form and substance of such reports to be reasonably acceptable to
Administrative Agent; (ii) at any time after the granting of any such
waiver, but not more often than once
annually, Administrative Agent may request, and Borrower shall furnish
to Administrative Agent within fifteen (15) days after such request,
supplemental reports reasonably acceptable to Administrative Agent updating the
prior reports and reaffirming such conclusion; and (iii) any such waiver
shall be effective only so long as such insurance shall not be available on
commercially reasonable terms in the commercial insurance market (as determined
by the Insurance Consultant), it being understood that the failure of Borrower
to timely furnish any such supplemental report shall be conclusive 


 


71

















 


evidence that such waiver
is no longer effective because such condition no longer exists.


 


(h)           In the event that any policy is written on a “claims-made”
or “occurrence reported” basis and such policy is not renewed or the
retroactive date of such policy is to be changed, Borrower shall (and Borrower
shall cause each Project Company to) obtain for each such policy or policies an
extended reporting period coverage or “tail” coverage reasonably available in
the commercial insurance market for each such policy or policies and shall
provide Administrative Agent with proof that such basic and supplemental
extended reporting period coverage or “tail” has been obtained.


 


7.21         Maintenance of Title.


 


Borrower
shall (and Borrower shall cause each Project Company to) maintain (a)   good and marketable title to the Mortgaged Property
pursuant to the Real Property Agreements, subject only to Permitted Liens; and (b) good
and marketable title to all of its other respective personal properties and
assets (other than properties and assets disposed of in the ordinary course of
business) related to the Project to the extent that failure to do so could be
reasonably expected to have a Material Adverse Effect.


 


7.22         Event of Eminent Domain.


 


If an
Event of Eminent Domain shall be threatened or occur with respect to any
Collateral Borrower shall (and Borrower shall cause each Project Company to) (a) diligently
pursue all its rights to compensation against the relevant Governmental
Authority in respect of such Event of Eminent Domain; (b) not, without the
written consent of Administrative Agent (with the consent of the Majority
Lenders whose consent shall not be unreasonably withheld), compromise or settle
any claim against such Governmental Authority; and (c) pay or apply all
Eminent Domain Proceeds in accordance with Section 6 of the Account
Control Agreement.  Borrower (and each
Project Company, as applicable) consents to the participation of Administrative
Agent in any proceedings resulting from an Event of Eminent Domain, and
Borrower shall (and Borrower shall cause each Project Company to) from time to
time deliver to Administrative Agent all documents and instruments reasonably
requested by it to permit such participation.


 


7.23         Indemnification.


 


(a)           Without duplication of Borrower’s
obligations under Sections 3.4(d), 3.6(c) or 3.6(d) (and
excluding any items or events specifically excluded from Borrower’s obligations
thereunder) and without duplication of any other indemnification requirements
in this Financing Agreement, Borrower shall indemnify, defend and hold harmless
each Agent, Lender, Issuing Bank and Borrower’s counterparties under Interest
Rate Agreements and in their capacities as such, their respective officers,
directors, shareholders, controlling persons, employees, agents and servants
(collectively, the “Indemnitees”) from and against and reimburse the
Indemnitees for:


 


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(i)            any and all claims, obligations,
liabilities, losses, damages, injuries (to person, property, or natural
resources), penalties, stamp or other similar taxes, actions, suits, judgments,
costs and expenses (including reasonable and documented attorney’s fees and
expenses) of whatever kind or nature actually incurred, INCLUDING
STRICT LIABILITY CLAIMS, whether or not well founded, meritorious or
unmeritorious, demanded, asserted or claimed against any such Indemnitee in any
way relating to, or arising out of or in connection with this Financing
Agreement, the other Operative Documents, or the Project (collectively, “Claims”),
except, with respect to any Indemnitee, or any Claims by any Lender, Issuing
Bank, any Agent, or any counterparty of Borrower to an Interest Rate Agreement
or any Affiliate of any of the same against such Indemnitee or its officers,
directors, shareholders, controlling persons, employees, agents or servants
(collectively, its “Affiliated Indemnitees”); and


 


(ii)           any Environmental Claims and all other
Claims arising under any Environmental Law relating to any fact, circumstance,
condition or occurrence at, on, or arising from, or with respect to any
Project, the Project Site, the Improvements, or other Mortgaged Property or the
past or current facilities or operations of the Subject Persons related to the
Projects, including all Claims in connection with the Release or presence of
any Hazardous Substances at any Project, the Project Site, the Improvements, or
other Mortgaged Property, whether foreseeable or unforeseeable and, as relating
to any Project, the Project Site, the Improvements or other Mortgaged Property,
(A) all costs of removal and disposal of Hazardous Substances, (B) all
reasonably documented costs actually incurred in accordance with the
requirements of the Environmental Laws or relevant Governmental Authorities to (1) determine
whether the applicable Project is in compliance with all applicable Legal
Requirements; and/or (2) correct any non-compliance with any applicable Legal
Requirements, and (C) all reasonably documented costs actually incurred
for claims for damages to persons or property, including reasonable attorneys’
and consultants’ fees and court costs.


 


(b)           THE FOREGOING INDEMNITIES SHALL NOT APPLY
WITH RESPECT TO AN INDEMNITEE OR ITS AFFILIATED INDEMNITEES, TO THE EXTENT
ARISING AS A RESULT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH
INDEMNITEE OR ITS AFFILIATED INDEMNITEES AS DETERMINED BY A FINAL
NON-APPEALABLE JUDGMENT OF A COURT OF COMPETENT JURISDICTION, BUT SHALL
CONTINUE TO APPLY TO OTHER INDEMNITEES.


 


(c)           The provisions of this Section 7.23
shall survive foreclosure of the Collateral Documents and satisfaction or
discharge of Borrower’s obligations (including the Obligations) hereunder, and
shall be in addition to any other rights and remedies of the Lenders.


 


73

















 


(d)           In case any action, suit or proceeding
subject to the indemnity of this Section 7.23 shall be brought
against any Indemnitee, such Indemnitee shall notify Borrower of the
commencement thereof, and Borrower shall be entitled, at its expense, acting
through counsel reasonably acceptable to such Indemnitee, to participate in,
and, to the extent that Borrower desires, to assume and control the defense
thereof.  Such Indemnitee shall be
entitled, at its expense, to participate in any action, suit or proceeding the
defense of which has been assumed by Borrower. 
Notwithstanding the foregoing, Borrower shall not be entitled to assume
and control the defenses of any such action, suit or proceedings if and to the
extent that, in the reasonable opinion of such Indemnitee and its counsel, such
action, suit or proceeding involves the potential imposition of criminal
liability upon such Indemnitee or a potential or actual conflict of interest
between such Indemnitee and Borrower (unless such conflict of interest is
waived in writing by such Indemnitee), and in such event (other than with
respect to disputes between such Indemnitee and another Indemnitee) Borrower
shall pay the reasonable expenses of such Indemnitee in such defense; provided that Borrower shall not be required to pay any such
expenses of more than one lead counsel.


 


(e)           Borrower shall report to such Indemnitee
on the status of such action, suit or proceeding as material developments shall
occur and from time to time as requested by such Indemnitee (but not more
frequently than every sixty (60) days). 
Borrower shall deliver to such Indemnitee a copy of each document filed
or served on any party in such action, suit or proceeding, and each material
document which Borrower possesses relating to such action, suit or proceeding.


 


(f)            Notwithstanding Borrower’s rights
hereunder to control certain actions, suits or proceedings, unless Borrower has
provided Indemnitee such security as is adequate (in such Indemnitee’s
reasonable judgment taking into account the cover available under the insurance
maintained by or on behalf of Borrower to cover any potential unfavorable
determination of any such action, suit or proceeding), if any Indemnitee
reasonably believes that failure to compromise or settle such Claim is
reasonably likely to have an imminent material adverse effect on such
Indemnitee or a Material Adverse Effect, such Indemnitee shall be entitled to
compromise or settle any such Claim.  Any
such compromise or settlement shall be binding upon Borrower for purposes of
this Section 7.23.


 


(g)           Upon payment of any Claim by Borrower
pursuant to this Section 7.23, or other similar indemnity provisions
contained herein to or on behalf of an Indemnitee, Borrower, without any
further action, shall be subrogated to any and all claims that such Indemnitee
may have relating thereto, and such Indemnitee shall cooperate with Borrower
and give such further assurances as are necessary or advisable to enable
Borrower vigorously to pursue such claims.


 


(h)           Any amounts payable by Borrower pursuant
to this Section 7.23 shall be regularly payable within thirty (30)
days after Borrower receives an invoice for such amounts from any applicable
Indemnitee, and if not paid within such 30-day period shall bear interest at
the Default Rate.


 


74

















 


7.24         Replacement of Operator.


 


To the
extent that Operator ceases to be the operator of the Projects, Borrower shall
retain a replacement operator of the Projects that has recognized knowledge and
expertise in providing management, operations, maintenance, and administration
services to U.S. wind energy generation projects similar to the Projects and
that has been approved in writing by Administrative Agent (acting upon
consultation with the Independent Engineer). 
If the Turbine Service Agreement is terminated or expires by its terms
without being renewed or extended, Borrower shall cause Operator (or
replacement operator retained pursuant to the immediately preceding sentence)
to expand such operator’s scope of work under the O&M Service Agreement (or
an Additional Project Document replacing the Turbine Service Agreement) in
order to fully incorporate Turbine Operator’s responsibilities under the
Turbine Service Agreement.


 


7.25         Government Grant.


 


Borrower
shall, as soon as practicable, apply for and otherwise cause the Stetson II
Project to qualify for the maximum allowable Government Grant pursuant to the
American Recovery and Reinvestment Act of 2009 and to provide the
Administrative Agent with a copy of all application documents and related
correspondence.  All Government Grant
proceeds received shall be deposited into the Government Grant Proceeds
Account, in accordance with Section 6(g) of the Account Control
Agreement.


 


7.26         Further Assurances.


 


Promptly
upon request by an Agent or any Lender through the Administrative Agent (and,
in any event, no more than ten (10) Business Days after any such request),
the Borrower shall (a) correct any material defect or error that may be
discovered in any Financing Document or in the execution, acknowledgment,
filing or recordation thereof, and (b) do, execute, acknowledge, deliver,
record, re-record, file, re-file, register and re-register any and all such
further acts, deeds, certificates, assurances and other instruments as the
Administrative Agent, the Security Agent or any Lender through the
Administrative Agent, may reasonably require from time to time in order to (i) carry
out more effectively the purposes of the Financing Documents, (ii) to the
fullest extent permitted by applicable law, subject any of the Borrower’s
properties, assets, rights or interests to the Liens now or hereafter intended
to be covered by any of the Collateral Documents, (iii) perfect and
maintain the validity, effectiveness and priority of any of the Collateral
Documents and any of the Liens intended to be created thereunder and (iv) assure,
convey, grant, assign, transfer, preserve, protect and confirm more effectively
unto the Secured Parties the rights granted or now or hereafter intended to be
granted to the Secured Parties under any Financing Document or under any other
instrument executed in connection with any Financing Document to which the
Borrower is or is to be a party.


 


7.27         Upwind Array Effect.


 


In the
event that an Upwind Array Event shall occur, then within ninety (90) days of
such event (such date the “Adjustment Date”), Borrower shall calculate
and deliver to the Administrative Agent a Projected Debt Service Coverage Ratio
as of such date using the 


 


75

















 


applicable Base Case Project Projections updated with
any changes needed solely to take into account the effect, if any, of such
Upwind Array Event on the expected power production of any Project, as
determined by the Independent Engineer. 
In the event that there occurs an Upwind Array Event, and the annual
Debt Service Coverage Ratio through the Maturity Date is less than 1.00 to 1.00
when using the P99 Production Level, then Borrower shall make a
mandatory prepayment in accordance with Section 3.2(c)(iii) not later
than the next Payment Date after such Adjustment Date to the Administrative
Agent, for the account of each Lender, in an amount necessary to maintain
through the Maturity Date a minimum annual Debt Service Coverage Ratio
of at least 1.00 to 1.00 when using the P99 Production Level using the Debt Sizing Base Case delivered
pursuant to Section 5.1(dd)  modified only to reflect any decrease in the projected
annual production of electricity by the Projects as a result of the Upwind
Array Event and the Amortization Schedule shall be amended and revised to take
into account the effect of such prepayment.


 


7.28         Capacity Revenues.


 


In the event that after June 30, 2010, the
Borrower or the Project Companies fail to qualify in respect of the capacity
revenue level as set forth in the Debt Sizing Base Case (which includes a
capacity revenue price of $1 per kilowatt per month) for each 6-month period
after June 30, 2013, then Borrower shall make a mandatory prepayment in
accordance with Section 3.2(c)(iii) not later than the next
Payment Date after June 30, 2010 to the Administrative Agent, for the
account of each Lender, in an amount equal to the difference between the
capacity revenue level as set forth in the Debt Sizing Base Case for the
applicable 6-month period and the actual capacity revenue level for which the
Projects have qualified for such 6-month period.


 


7.29         Survey — Stetson II Project.


 


Upon
the occurrence of Final Completion (as defined in the Stetson II Reed
Agreement) in respect of the Stetson II Project, Borrower shall deliver to
Administrative Agent, in each case in form and substance satisfactory to Administrative Agent, (i) an
as-built ALTA/ASCM survey of the Project Site with respect to the Stetson II
Project, dated within sixty (60) days of the date thereof,  showing that the Stetson II
Project is located entirely in the Stetson II Real Property Interests, and
showing the location of all plotable easements and all utility services, and (ii) an
endorsement to the Title Policy that (w) deletes all exceptions for
mechanics’ liens, (x) redates the Title Policy and all endorsements
attached to the Title Policy to the date of Final Completion, (y) amends
the survey endorsement attached to the Title Policy and all references in the
Title Policy to the initial survey to refer to the new survey required under
clause (i) above and (z) deletes the pending disbursement clause
and sets forth no additional exceptions (including survey exceptions), except
Permitted Liens and those exceptions otherwise approved by the Majority Lenders.


 


76

















 


ARTICLE 8.

NEGATIVE COVENANTS OF BORROWER


 


Borrower
covenants and agrees that until all of the Loans and Obligations have been paid
and performed in full, unless otherwise approved by Administrative Agent (with
the consent of the Majority Lenders, unless stated otherwise), Borrower will
(and Borrower will cause each Project Company to, as applicable) perform the
covenants set forth in this Article 8.


 


8.1           Contingent Liabilities.


 


Except
as provided in this Financing Agreement, the Project Documents or the Financing
Documents, Borrower shall not (nor shall Borrower allow any Project Company to)
become liable as a surety, guarantor, accommodation endorser or otherwise, for
or upon the obligation of any other Person or otherwise create, incur, assume
or suffer to exist any contingent obligation exceeding in the aggregate
$250,000; provided, however, that this Section 8.1
shall not be deemed to prohibit (a) the acquisition of goods, supplies or
merchandise in the normal course of business on normal trade credit; (b) the
endorsement of negotiable instruments received in the normal course of its
business; or (c) the incurrence, creation, assumption or existence of
Permitted Debt.


 


8.2           Limitations on Lien.


 


Borrower
shall not (nor shall Borrower allow any Project Company to) create, assume or
suffer to exist any Lien securing a charge or obligation on any properties or
assets of Borrower or any Project Company except for Permitted Liens.  Administrative Agent acknowledges that
Borrower has advised that it intends to amend the Energy Hedge, subject to the
terms and conditions of this Financing Agreement, to permit the creation of a
Lien in favor of the Energy Hedge Provider (the “Energy Hedge Lien”),
and Administrative Agent agrees that, upon request from Borrower, it will in
good faith review and negotiate documents to be executed in connection
therewith in a prompt and reasonable manner.


 


8.3           Indebtedness.


 


Borrower
shall not (nor shall Borrower allow any Project Company to) incur, create,
assume or permit to exist any Debt except Permitted Debt.


 


8.4           Sale or Lease of Assets.


 


Except
with respect to assets not exceeding $450,000 in the aggregate, Borrower shall
not (nor shall Borrower allow any Project Company to) sell, lease, assign,
transfer or otherwise dispose of its assets, whether now owned or hereafter
acquired (a) except in the ordinary course of its business or as
contemplated by the Operative Documents; or (b) except for obsolete, worn
out, damaged or replaced property not used or useful in its business.
Administrative Agent acknowledges that Borrower has informed Administrative
Agent that Evergreen Wind Power V, LLC intends to transfer the assets related
to the 38-mile 115 kV generator lead line (connecting the Projects’ Turbines to
the New England transmission system), including the Transmission Line Real
Property Interests to the Gen Lead Company, and Administrative Agent agrees
that, upon request from Borrower, it, with the consent of the 


 


77

















 


Majority Lenders, will in good faith review and
negotiate documents, in form and substance reasonably satisfactory to the
Administrative Agent, to be executed in connection therewith in a prompt and
reasonable manner as long as such documents provide Borrower and the Project
Companies with sufficient transmission line access and rights for full and
unencumbered operation of the Projects (the “Permitted Transmission Line
Transfer”).  Borrower shall cause any
applicable parties to execute consents to collateral assignment and any other
documents reasonably requested by Security Agent.  In connection with the completed transfer of
transmission assets to the Gen Lead Company in accordance herewith, Security
Agent shall execute a discharge of the Mortgage Document executed with respect
to the Transmission Line Real Property Interests.


 


8.5           Changes.


 


Borrower
shall not (nor shall Borrower allow any Project Company to) change the nature
of its business or expand its business beyond the business contemplated in the
Operative Documents.


 


8.6           Distributions.


 


Except
for any distributions (i) made by the Project Companies to the Borrower as
required to enable the Borrower to cause all Project Revenues to be deposited
into the Revenue Account pursuant to Section 6(b) of the Account
Control Agreement, (ii) allowed to be made by the Borrower pursuant to Section 6
of the Account Control Agreement, and (iii) in accordance with the
definition of Restoration Conditions, Borrower shall not (nor shall Borrower
allow any Project Company to) directly or indirectly, (a) make or declare
any distribution (in cash, property or obligation) on, or make any other
payment on account of, any interest in Borrower or any Project Company, (b) make
any payments in respect of any management fees to the Member or any Affiliated
Participant (except if such fees are included in the Base Case Project
Projections or are reflected in the Project Documents).


 


8.7           Investments.


 


Borrower
shall not (nor shall Borrower allow any Project Company to) make or permit to
remain outstanding any advances or loans or extensions of credit to, or
purchase or own any stock, bonds, notes, debentures or other securities of any
Person, except Permitted Investments.


 


8.8           Transactions With Affiliates.


 


Except
for (a) any employment, noncompetition or confidentiality agreement
entered into by Borrower or any Project Company, as applicable, with any of its
respective employees, officers or directors in the ordinary course of business,
(b) as otherwise expressly permitted or contemplated by this Financing
Agreement and the other Operative Documents in effect as of the Closing Date or
(c) transactions in connection with a Permitted Transmission Line
Transfer, Borrower shall not (nor shall Borrower allow any Project Company to)
directly or indirectly enter into any transaction or series of transactions
with or for the benefit of an Affiliate without the prior written approval of
Administrative Agent (with the consent of the Majority Lenders, which consent
shall not be unreasonably withheld) unless such transaction or agreement 


 


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is entered into in the ordinary course of business on
fair and reasonable terms certified by an officer of the Borrower as no less
favorable to such Person than what such Person would obtain in an arm’s length
transaction with a counterparty that is not an Affiliate.


 


8.9           Margin Stock Regulations.


 


Borrower
shall not (nor shall Borrower allow any Project Company to) directly or
indirectly apply any part of the proceeds of any Loan or Project Revenues to
the “buying,” “purchasing” or “carrying” of any margin stock within the meaning
of Regulations T, U or X of the Federal Reserve Board, or any regulations,
interpretations or rulings thereunder.


 


8.10         Partnerships.


 


Except
for Borrower’s membership interests in the Project Companies or each Project
Company’s acquisition of membership interests in the Gen Lead Company in
connection with a Permitted Transmission Line Transfer, Borrower shall not (nor
shall Borrower allow any Project Company to) become a general or limited
partner in any partnership, a joint venturer in any joint venture or a member
in any limited liability company.  Except
for the Project Companies, Borrower shall not form or acquire any subsidiaries.  No Project Company shall form or acquire any
subsidiaries other than in connection with a Permitted Transmission Line
Transfer.


 


8.11         Dissolution.


 


Borrower
shall not (nor shall Borrower allow any Project Company to) liquidate or
dissolve, or sell or lease or otherwise transfer or dispose of all or any
substantial part of its property, assets or business, or combine, merge or
consolidate with or into any other entity.


 


8.12         Amendments; Change Orders.


 


(a)           Borrower shall not, and shall not allow
any Project Company or any Affiliated Participant to, cause, consent to, or
permit, any (i) termination or (ii) amendment, modification (other
than any amendments or modifications contemplated by Section 12.9(c)),
variance, impairment, replacement, or waiver of timely compliance with any
material terms or conditions of, any Project Document or execution of any
Additional Project Document with payments exceeding $250,000 over its term
without the prior written consent of Administrative Agent (acting with the
consent of the Majority Lenders and, as applicable for technical matters, upon
consultation with the Independent Engineer).


 


(b)           Borrower shall not (and shall not allow
any Project Company to) declare Final Completion (as defined in the Stetson II
Reed Agreement) of the Stetson II Project under the Stetson II Reed Agreement
without the prior written consent of Administrative Agent; provided, however,
that such consent shall be deemed to have been given if the Independent
Engineer has certified to the Administrative Agent that Final Completion of the
Stetson II Project under the Stetson II Reed Agreement has occurred.


 


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8.13         Compliance With Operative Documents.


 


Borrower
shall not (nor shall Borrower allow any Project Company to)  permit (to the extent within its control and
permitted by the Operative Documents) to be done any act under the Operative
Documents, or omit or refrain (to the extent within its control and permitted
by the Operative Documents) from any act under the Operative Documents, where such
act done or permitted to be done, or such omission of or refraining from
action, that could be reasonably expected to have a Material Adverse Effect.


 


8.14         Name and Location; Fiscal Year.


 


Neither
Member nor Borrower shall (nor shall Borrower allow any Project Company to)
change its name, its limited liability company structure, its jurisdiction of
organization or change its fiscal year, in each case, without Administrative
Agent’s prior written consent, such consent not to be unreasonably withheld.


 


8.15         Use of Project Site.


 


Borrower
shall not (nor shall Borrower allow any Project Company to) use, or permit to
be used, the Project Site for any purpose other than for the construction,
operation and maintenance of the Projects as contemplated by the Operative
Documents, without the prior written consent of Administrative Agent (with the
consent of the Majority Lenders, acting reasonably), or locate any portion of
any Project on a site other than as permitted by the Operative Documents,
except, in each case, to the extent such use does not conflict with the
business of Borrower (or the Project Companies) 
or Borrower’s (or the Project Companies’) compliance with the Material
Project Documents in effect from time to time.


 


8.16         Assignment.


 


Borrower
shall not (nor shall Borrower allow any Project Company to) assign its rights
hereunder or under any of the Operative Documents to any Person except as
permitted by Section 8.17 and the other Financing Documents.


 


8.17         Transfer of Interest.


 


Borrower shall not (nor shall Borrower allow any
Project Company to) cause, make, suffer, permit or consent to any creation,
sale, assignment or transfer of any ownership interest in Borrower or any
Project Company without the prior written consent of Administrative Agent acting
in good faith (with the consent of all the Lenders, whose consent shall not be
unreasonably delayed or withheld).  As
used herein, the transfer of an ownership interest in Borrower shall mean any
sale, assignment or transfer of the Sponsor’s direct or indirect ownership
interest in the Member.


 


8.18         Abandonment of Projects.


 


Borrower
shall not (nor shall Borrower allow any Project Company to) willfully and
voluntarily abandon the operation of any Project for a continuous period of
more than forty-five (45) days.


 


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8.19         Environmental Matters.


 


Borrower
shall not (nor shall Borrower allow any Project Company to) Release, emit or
discharge into the environment any Hazardous Substances in a manner that could
reasonably be expected to have a Material Adverse Effect.  Borrower shall not (nor shall Borrower allow
any Project Company to) engage in any other act or omission in violation of any
Environmental Laws, Legal Requirements or Applicable Permits that could reasonably
be expected to have a Material Adverse Effect.


 


ARTICLE 9.

COLLATERAL ACCOUNTS


 


9.1           Establishment of Collateral Accounts.


 


On or
prior to the Closing Date, the Borrower and the Security Agent shall cause to
be established at the Securities Intermediary the Operating Account, Revenue
Account, the Disbursement Account, the Debt Service Reserve Account, the
O&M Reserve Account, the Loss Proceeds Account, the Distribution Reserve
Account, the Stetson I Holding Account, the Government Grant Proceeds Account,
the Gen Lead Account and the Energy Hedge Reserve Account.  Each Collateral Account shall be a “securities
account” within the meaning of Section 8-501 of the Uniform Commercial
Code in effect in the State of New York. 
In accordance with the terms of the Collateral Documents, the Borrower
and each Project Company has pledged, assigned and transferred to the Security
Agent for the equal and ratable benefit of the Secured Parties, and has granted
to the Security Agent for the equal and ratable benefit of the Secured Parties
a first- priority, perfected lien on and security interest in, all of its
right, title and interest in, to and under the Collateral Accounts, any
Permitted Investments (or any other property) held in or credited to the
Collateral Accounts and the proceeds of any such Permitted Investments (or such
other property).  The Borrower hereby
irrevocably confirms the authority of the Security Agent to (and directs and
authorizes the Security Agent to) instruct the Securities Intermediary to deposit
into and remit funds from such Collateral Accounts in accordance with the terms
and conditions of this Financing Agreement and the Collateral Documents.


 


9.2           Permitted Investments.


 


Upon
the request of the Borrower, the Security Agent shall instruct Securities
Intermediary to invest and reinvest any balances in any Collateral Account or
any amounts held as Loss Proceeds from time to time solely in Permitted
Investments, and solely at the expense and risk of the Borrower; provided,
however, that (a) if the Borrower fails to provide such request or during
any period when an Event of Default exists and is continuing, the Security
Agent may instruct Securities Intermediary to invest and reinvest such balances
as the Security Agent shall determine in its sole discretion and (b) the
maturity of any Permitted Investment shall not exceed thirty (30) days and
(c) the minimum amount of each such Permitted Investment shall be One
Hundred Thousand Dollars ($100,000) (or, with respect to any Collateral
Account, such lesser amount as equals the balance in such Collateral Account at
the time).  Earnings on Permitted
Investments shall be deposited on the date received by the Securities
Intermediary (or 


 


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as soon as practicable thereafter) in the Revenue
Account for application as provided for in this Financing Agreement.  All such investments and reinvestments shall
be held as provided in the Account Control Agreement.  The Borrower shall bear all risk of loss of
capital from investments in Permitted Investments.  As long as the Security Agent, the
Administrative Agent and the Securities Intermediary complied with all their
respective obligations under the Financing Documents, none of the
Administrative Agent, the Security Agent or the Securities Intermediary shall
be liable for any loss resulting from any investment in any Permitted
Investment or the sale, disposition, redemption or liquidation of such
investment or by reason of the fact that the proceeds realized in respect of
such sale, disposition, redemption or liquidation were less than that which
might otherwise have been obtained, except if such liability is caused by gross
negligence or willful misconduct of such Person.


 


9.3           Foreclosure.


 


Regardless of any Bankruptcy Event which
has been commenced by or against the Borrower, any Collateral or any proceeds
thereof received in connection with the Collateral Documents, in connection
with any sale, release or other disposition of, or collection or realization
on, such Collateral, shall be applied by the Security Agent in the following
order:


 


(a)           first, on a pro rata
basis, to the payment of any and all fees, costs and expenses due and payable
to the Agents and the Lenders in connection with this Financing Agreement and
the other Financing Documents;


 


(b)           second, on a pro rata
basis to any Secured Party which has theretofore advanced or paid any fees to
any Agent or Issuing Bank that would otherwise have been payable under priority
first, in an amount equal to the amount
thereof so advanced or paid by such Secured Party and for which such Secured
Party has not been previously reimbursed;


 


(c)           third, on a pro rata
basis, to the payment of any interest expense then due and payable under this
Financing Agreement and all Interest Fix Fees;


 


(d)           fourth, on a pro rata
basis, to the payment, without duplication, of all principal and other amounts
then due and payable in respect of the Obligations under the Financing
Agreement;


 


(e)           last, the balance, if any, after all of the
Obligations have been paid in full in cash, to the Borrower or to such other
person legally entitled thereto.


 


ARTICLE 10.


EVENTS OF
DEFAULT; REMEDIES


 


10.1         Events of Default.


 


The
occurrence of any of the following events, shall constitute an event of default
(individually, an “Event of Default,” and collectively, the “Events
of Default”) hereunder:


 


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(a)           Failure to Make Payments. 
Borrower shall fail to pay, in accordance with the terms of this
Financing Agreement, (i) any principal on any Loan (including any
Scheduled Repayment Amount or any Mandatory Prepayments required hereunder) on
the date that such sum is due; (ii) any interest on any Loan within five (5) days
after the date that such sum is due; or (iii) any fee, cost, charge or
other sum, including amounts in respect of any Liquidation Costs or Interest
Fix Fees due under this Financing Agreement within ten (10) days after the
date notice is provided to Borrower by Administrative Agent that such sum
referenced in this clause (iii) is due.


 


(b)           Judgments.  A final
judgment or judgments shall be entered against Borrower (or any Project
Company) in the aggregate amount of $500,000 or more individually and in the
aggregate (other than (i) a judgment which is fully covered by insurance
or discharged within thirty (30) days after its entry, or (ii) a judgment,
the execution of which is effectively stayed within thirty (30) days after its
entry but only for thirty (30) days after the date on which such stay is
terminated or expires) or that could reasonably be expected to have a Material
Adverse Effect.


 


(c)           Misstatements. 
Any financial statement, representation or warranty made or prepared by,
under the control of or on behalf of Borrower, Member, Sponsor or any Project
Company or pursuant to this Financing Agreement or any other Financing Document
shall prove to have been false or misleading in any material respect as of the
time made or deemed made which could reasonably be expected to have a Material
Adverse Effect; provided, however, that if any such misstatement
is capable of being remedied and has not caused a Material Adverse Effect,
Borrower may correct such misstatement by delivering a written correction of
such misstatement to Administrative Agent, in the form and substance
satisfactory to Administrative Agent, within thirty (30) days of obtaining
knowledge of such misstatement.


 


(d)           Bankruptcy; Insolvency. 
Any of Borrower, Member, any Project Company, any Affiliated Participant
or any other Major Project Participant, as long as such Person remains a Major
Project Participant (each such Person, the “Subject Person”) shall
institute a voluntary case seeking liquidation or reorganization under the
Bankruptcy Law (or any successor statute), or shall consent to the institution
of an involuntary case thereunder against it; or any of the Subject Persons
shall file a petition, answer or consent or shall otherwise institute any
similar proceeding under any other applicable federal, state or other
applicable law, or shall consent thereto; or any of the Subject Persons shall
apply for, or by consent or acquiescence there shall be an appointment of, a
receiver, liquidator, sequestrator, trustee or other officer with similar
powers, or any of the Subject Persons shall make an assignment for the benefit
of creditors (except for the collateral assignments and grants of security
interests to Security Agent pursuant to the Financing Documents); or any of the
Subject Persons shall admit in writing its inability to pay its debts generally
as they become due; or if an involuntary case shall be commenced seeking the
liquidation or reorganization of any of the Subject Persons under the
Bankruptcy Law (or any successor statute) or any 


 


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similar proceeding
shall be commenced against any of the Subject Persons under any other
applicable federal, state or other applicable law and (i) the petition
commencing the involuntary case is not timely controverted; (ii) the
petition commencing the involuntary case is not dismissed within sixty (60)
days of its filing; (iii) an interim trustee is appointed to take
possession of all or a portion of the property, and/or to operate all or any
part of the business of any of the Subject Persons and such appointment is not
vacated within sixty (60) days; or (iv) an order for relief shall have
been issued or entered therein; or a decree or order of a court having
jurisdiction in the premises for the appointment of a receiver, liquidator,
sequestrator, trustee or other officer having similar powers over any of the
Subject Persons or of all or a part of their property, shall have been entered;
or any other similar relief shall be granted against any of the Subject Persons
under any federal, state or other applicable law (any such event, a “Bankruptcy
Event”); provided, however, that solely with respect to any
BOP Contractor, Borrower or any Affiliated Participant shall have sixty (60)
days following any Bankruptcy Event to replace such BOP Contractor with a
Replacement Obligor.


 


(e)           Cross Default. 
Borrower (or any Project Company) shall default for a period beyond any
applicable grace period (i) in the payment of any principal, interest or
other amount due under any agreement (other than the Financing Documents)
involving the borrowing of money or the advance of credit and the outstanding
amount or amounts payable under all such agreements equals or exceeds $500,000
in the aggregate, or (ii) in the payment of any amount or performance of
any obligation due under any guaranty or other agreement (other than the
Financing Documents) if in either case of clauses (i) or (ii), pursuant to
such default, the holder of the obligation concerned exercises its right to
accelerate the maturity of an indebtedness evidenced thereby which equals or
exceeds $500,000.


 


(f)            ERISA.  If Borrower,
any Project Company or any member of the Controlled Group should establish,
maintain, contribute to or become obligated to contribute to any ERISA Plan and
(i) a reportable event (as defined in Section 4043(b) of ERISA)
shall have occurred with respect to any ERISA Plan and, within thirty (30) days
after the reporting of such reportable event to Administrative Agent by
Borrower (or Administrative Agent otherwise obtaining knowledge of such event)
and the furnishing of such information as Administrative Agent may reasonably
request with respect thereto, Administrative Agent shall have notified Borrower
in writing that (1) Administrative Agent has made a determination that, on
the basis of such reportable event, there are reasonable grounds for the
termination of such ERISA Plan by the PBGC or for the appointment by the
appropriate United States District Court of a trustee to administer such ERISA
Plan and (2) as a result thereof, an Event of Default exists hereunder; or
(ii) a trustee shall be appointed by a United States District Court to
administer any ERISA Plan; or (iii) the PBGC shall institute proceedings
to terminate any ERISA Plan; or (iv) a complete or partial withdrawal by
Borrower, any Project Company or any member of the Controlled Group from any
Multiemployer Plan shall have occurred, or any Multiemployer Plan shall enter
reorganization status, become insolvent, or terminate (or notify Borrower, any
Project Company or any member of the 


 


84

















 


Controlled Group
of its intent to terminate) under Section 4041A of ERISA and, within
thirty (30) days after the reporting of any such occurrence to Administrative
Agent by Borrower (or Administrative Agent otherwise obtaining knowledge of
such event) and the furnishing of such information as Administrative Agent may
reasonably request with respect thereto, Administrative Agent shall have
notified Borrower in writing that Administrative Agent has made a determination
that, on the basis of such occurrence, an Event of Default exists hereunder; provided,
however, that any of the events described in this Section 10.1(f) could
reasonably be expected to have a Material Adverse Effect provided, further,
that any of the events described in this Section 10.1(f) shall
apply only to (x) one or more ERISA Plans that are single-employer plans
(as defined in Section 4001(a)(15) of ERISA) and under which the aggregate
gross amount of unfunded benefit liabilities (as defined in Section 4001(a)(16)
of ERISA), including vested unfunded liabilities which arise or might arise as
the result of the termination of such ERISA Plan or Plans, and/or (y) one
or more Multiemployer Plans to which the aggregate liabilities of Borrower,
each Project Company and all members of the Controlled Group shall, in each
case, be in an amount that could reasonably be expected to have a Material
Adverse Effect.


 


(g)           Breach of Project Documents. 
Subject to Section 10.1(h), Borrower or any Project Company
(unless waived by the counterparty under the applicable Project Document) or
any Major Project Participant shall be in breach of, or default under, any
Project Document and any applicable cure period thereunder shall have expired
with respect to such breach or default (or, if no cure period is stipulated for
such breach or default, the cure period for such default shall be no longer
than thirty (30) days) or if the giving of notice would allow Person to
terminate such Project Document, and Administrative Agent shall have reasonably
determined (with the consent of the Majority Lenders), and have sent a written
notice to Borrower to that effect, that such breach or default could reasonably
be expected to have a Material Adverse Effect; provided, however,
that with respect to a breach or default by any Major Project Participant, if
Borrower or any Affiliated Participant shall replace such Major Project
Participant with a Replacement Obligor within sixty (60) days of such breach or
default, such breach or default shall not be deemed a default under this
Financing Agreement; provided, further, however, the
Replacement Obligor and the form of such replacement agreement shall be in form
and substance satisfactory to the Administrative Agent and the Lenders.  For purposes of the foregoing, any cure by
any Agent or any Lender on Borrower’s or any Project Company’s behalf with
respect to a breach or default by Borrower or any Project Company under a
Project Document shall not be considered a remedy under this Financing
Agreement for any such breach or default of such Project Document.


 


(h)           Loss of Material Project Document. 
Notwithstanding Section 10.1    (g), if
any Material Project Document shall fail for any reason to be in full force; provided,
however, that Borrower shall have forty-five (45) days following such
failure to cure such failure or enter into a replacement Material Project Document
with a Replacement Obligor.


 


85

















 


(i)            Breach of Terms of Financing Documents.


 


(i)            (A) Borrower shall fail to (or
Borrower shall fail to cause any Project Company to) perform or observe any of
the covenants set forth in Sections  7.1,  7.11, 8.1,
8.2, 8.3, 8.4, 8.6, 8.11, 8.17, or 8.18
or (B) Sponsor shall fail to make any payment when due under the Sponsor
Indemnity; or


 


(ii)           Borrower or any Affiliated Participant
shall fail to perform or observe any other covenant to be performed or observed
by it hereunder or under any other Financing Document to which it is a party
not otherwise specifically provided for elsewhere in this Article 10,
and such failure shall continue unremedied for a period of thirty (30) days; provided,
however, that upon notice from Borrower to Administrative Agent, such
cure period shall be extended to such longer period of time as is reasonably
necessary to effect a cure so long as (x) such default could reasonably be
expected to be susceptible of a cure after the initial 30-day cure period and (y) Borrower
or the Project Companies, as applicable, are diligently and continuously
preceding to cure, or cause the cure of, such default; provided, further,
that such extended cure period shall not exceed thirty (30) days from the
expiration of the initial 30-day cure period.


 


(j)            Security.  Any of the
Collateral Documents, once executed and delivered, shall (except as the result
solely of the acts or omissions of the Agents or any Secured Party) fail to
provide the Secured Parties with the first-priority Liens, security interest,
rights, titles, interest, remedies, powers or privileges intended to be created
thereby or cease to be in full force and effect with respect to the Collateral,
or the validity thereof or the applicability thereof to the Loans, the Notes or
any other Obligations purported to be secured or guaranteed thereby or any part
thereof, shall be disaffirmed by or on behalf of Borrower or any Project
Company or there shall occur a default or event of default (however defined)
under any of the Collateral Documents and Administrative Agent (with the
consent of the Majority Lenders) shall determine in its sole discretion that
such default or event of default that could be reasonably expected to have a
Material Adverse Effect.


 


(k)           Loss of Applicable Permits. 
Any Applicable Permit necessary for completion, operation or maintenance
of any Project shall be materially modified, revoked or cancelled by the
issuing agency or other Governmental Authority having jurisdiction, and
Administrative Agent (with the consent of the Majority Lenders) shall have
reasonably determined that such material modification, revocation or
cancellation would be reasonably expected to have a Material Adverse Effect on
the Project and such material modification, revocation or cancellation
continues unremedied for forty-five (45) days from such modification,
revocation or cancellation.  For purposes
of the foregoing, any cure by any Agent or any Lender on Borrower’s or any
Project Company’s behalf with respect to any such material modification,
revocation or cancellation of any Applicable Permit shall not be considered a
remedy under this Financing Agreement.


 


86

















 


(l)            Loss of Collateral. 
Borrower or any Project Company, as applicable, ceases to be the sole
direct or beneficial owner of the Collateral or any portion of Borrower’s or
any Project Company’s Collateral material to any Project is seized or
appropriated without fair value being paid therefor such as to allow
replacement of such property and/or prepayment in full of all Obligations and
to allow Borrower in the judgment of Administrative Agent (with the consent of
the Majority Lenders, acting reasonably) to continue satisfying its obligations
hereunder and under the other Operative Documents.


 


(m)          Material Adverse Effect. 
Occurrence of an event or condition that has a Material Adverse Effect.


 


(n)           Stetson II Project Prepayment and
Cure.  Notwithstanding the foregoing
and subject to all terms and conditions set forth in this Section 10.1(n),
upon the occurrence at any time prior to Final Completion (as defined in the
Stetson II Reed Agreement) of the Stetson II Project of any Event of Default
set forth in Sections 10.1(g), (h), (k) and/or (m) relating
solely to the Stetson II Project or Stetson Wind II, LLC, Borrower shall, upon
delivery to Administrative Agent of notice of its intent to Administrative
Agent on or before the expiry of the applicable cure period, have the right to
cure such Event of Default by making the Stetson II Prepayment within five (5) Business Days after
receipt of written notice from Administrative Agent of the required amount of
the Stetson II Prepayment (the “Stetson II Prepayment Notice”); provided,
that if Borrower disputes the prepayment amount set forth in the Stetson II
Prepayment Notice, the Borrower may propose in good faith a revised amount of
the Stetson II Prepayment; provided, further, that in the event
that Administrative Agent and Borrower are unable, after exercising
commercially reasonable efforts, to agree on a revised amount of the Stetson II
Prepayment within five (5) Business Days of Borrower’s receipt of the
Stetson II Prepayment Notice, Borrower shall have the right to cure the
applicable Event of Default by making the Stetson II Prepayment (in the amount
set forth in the Stetson II Prepayment Notice) within two (2) Business
Days after such written notice is received.


 


Notwithstanding any of
the foregoing, the cure right set forth in this Section 10.1(n) is
expressly subject to Borrower taking such actions that may be necessary (as
determined by the Lenders in their sole discretion) to ensure the adequacy of
the Collateral with respect to all remaining Obligations; provided, that
upon the indefeasible payment by Borrower of the Stetson II Prepayment, (i) Lenders’
security interests with respect to the portion of the Collateral related solely
to the Stetson II Project, to the extent not necessary to ensure the adequacy
of the Collateral with respect to all remaining Obligations (as determined by
the Lenders in their sole discretion) shall be terminated and released, (ii) any
remaining Total Bridge Loan Commitment shall terminate and any remaining Total
Term Loan Commitment allocated to the Stetson II Project at such time as
determined by the Administrative Agent (taking into account all debt sizing
requirements contemplated in the Debt Sizing Base Case) shall terminate, (iii) Stetson
Wind II, LLC shall automatically and without further action be 


 


87

















 


terminated,
released and discharged from, and no longer be bound by, any and all of its
obligations under this Financing Agreement and the other Loan Documents (except
to the extent necessary to ensure the adequacy of the remaining Collateral, as
determined by the Lenders in their sole discretion, and except for any such
obligations that, by their terms, expressly survive termination), and (iv) none
of Borrower, any Affiliated Participant, Evergreen Wind Power V, LLC nor
Stetson Wind II, LLC shall be bound by any representations, warranties or
covenants of other terms or obligations contained in this Financing Agreement
or any of the Loan Documents as they relate solely to Stetson Wind II, LLC or
the Stetson II Project, and no Default or Event of Default shall be deemed to
have occurred hereunder or any of the Loan Documents as a result of, and any
determination of a Default of Event of Default hereunder or any of the Loan
Documents shall exclude, any action, omission, circumstance or occurrence with
respect to Stetson Wind II, LLC, the Stetson II Project and any other assets of
Stetson Wind II, LLC.


 


(o)           Change of Control. 
Occurrence of any Change of Control.


 


10.2         Remedies.


 


Upon
the occurrence and during the continuation of an Event of Default,
Administrative Agent may, at the election of the Majority Lenders, without
further notice of default, presentment or demand for payment, protest or notice
of non-payment or dishonor, or other notices or demands of any kind, all such
notices and demands being waived, exercise any or all of the following rights
and remedies, in any combination or order that Administrative Agent (with the
consent of the Majority Lenders) may elect, in addition to such other rights or
remedies as the Lenders may have hereunder, under the Collateral Documents or
at law or in equity:


 


(a)           No Loans.  Cancel all
Commitments, refuse to make any Loans, or refuse to make any payments from the
Revenue Account or any other Collateral Account or other funds held by any
Agent or the Securities Intermediary under the Financing Documents for or on
behalf of Borrower.


 


(b)           Cure by Administrative Agent. 
Without any obligation to do so, cure any Event of Default hereunder and
cure any default and render any performance under any Project Documents as the
Majority Lenders in their sole discretion may consider necessary or
appropriate, whether to preserve and protect the Collateral or the Secured
Parties’ interests therein or for any other reason, and all sums so expended,
together with interest on such total amount at the Default Rate (but in no
event shall the rate exceed the maximum lawful rate), shall be repaid by
Borrower to Administrative Agent on demand and shall be secured by the Financing
Documents as if such amounts were Loans, notwithstanding that such expenditures
may, together with amounts advanced under this Financing Agreement, exceed the
amount of the Total Commitment.


 


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(c)           Acceleration. 
Declare and make any or all sums of accrued and outstanding principal of
Loans and accrued but unpaid interest remaining under this Financing Agreement
and evidenced by any or all of the Notes, together with all unpaid fees, costs
(including Liquidation Costs, Interest Fix Fees and charges and amounts due
hereunder or under any other Financing Document) immediately due and payable, provided,
however, that upon an Event of Default occurring under Section 10.1(d),
all such amounts shall become immediately due and payable without further act
of Administrative Agent or Lender or any other Person.


 


(d)           Cash Collateral.  (i) Apply
or execute upon, any amounts on deposit in any Collateral Account, any Loss
Proceeds or Borrower Equity or any other moneys of Borrower on deposit with
Administrative Agent or any Secured Party in the manner provided in the Uniform
Commercial Code and other relevant statutes and decisions and interpretations
thereunder with respect to cash collateral and/or (ii) draw upon or make a
demand under any Collateral Document or any Project Document collaterally
assigned to Security Agent by  Borrower
or any Project Company; and/or (iii) require the cash collateralization of
all Letters of Credit (to the extent of the undrawn Stated Amounts of Letters
of Credit issued and outstanding).


 


(e)           Possession of Project. 
Enter into possession of the Projects and operate and maintain the
Projects, and all sums expended by Administrative Agent in so doing, together
with interest on such total amount at the Default Rate, shall be repaid by
Borrower to Administrative Agent upon demand and shall be secured by the
Financing Documents to the extent provided therein, notwithstanding that such
expenditures may, together with amounts advanced under this Financing
Agreement, exceed the amount of the Total Commitment.


 


(f)            Remedies Under Financing Documents. 
Exercise any and all rights and remedies available to any Agent, Issuing
Bank or Lender under any of the Financing Documents (including making a demand
under the Sponsor Indemnity pursuant to the terms thereof) or under applicable
law, including judicial or non-judicial foreclosure or public or private sale
of any of the Collateral pursuant to the Collateral Documents.


 


ARTICLE 11.


SCOPE OF
LIABILITY


 


Notwithstanding
anything to the contrary in this Financing Agreement or the other Financing
Documents (but subject to the last sentence of this Article 11), no
Lender, Issuing Bank, Agent, Secured Party or other Person shall have any
recourse against any Affiliated Participant (other than Sponsor, Member,
Borrower, each Project Company) or the stockholders or other owners, officers,
directors or employees of any such Person (each, a “Non-Recourse Party”),
for any liability to the Lenders arising in connection with any breach or
default under this Financing Agreement or any Financing Document, except to the
extent the same is enforced against Sponsor, Member, Borrower, the Project
Companies and the Collateral and the rents, issues, profits, proceeds and products
of the Collateral, and the Lenders shall look solely to 


 


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Sponsor, Member, Borrower and the Project Companies
(but not to any Non-Recourse Party or to any distributions received by or
payments allowed to any Non-Recourse Party pursuant to the terms of this
Financing Agreement or any Financing Document) and the Collateral and the
rents, issues, profits, proceeds and products of the Collateral in enforcing
rights and obligations under and in connection with the Financing Documents, provided that (a) the foregoing provisions of this Article 11
shall not constitute a waiver, release or discharge of any of the indebtedness,
or of any of the terms, covenants, conditions, or provisions of this Financing
Agreement, the Notes, any other Collateral Document or other Financing Document
or any Material Project Document, and the same shall continue until all
Obligations have been fully paid, discharged, observed, or performed; and (b) the
foregoing provisions of this Article 11 shall not limit or restrict
the right of the Agents, Issuing Bank and/or the Lenders to name Sponsor,
Member, Borrower, any Project Company or any applicable Person as a defendant
in any action or suit for a judicial foreclosure or for the exercise of any
other remedy under or with respect to this Financing Agreement, the Projects,
the Sponsor Indemnity Agreement, the Mortgage Documents, the Borrower Pledge
and Security Agreement, Member Pledge and Security Agreement, each Guaranty and
Security Agreement or any other Financing Document, or otherwise, or for
injunction or specific performance, so long as no judgment in the nature of a
deficiency judgment shall be enforced against any Non-Recourse Party out of any
property, assets or funds other than the Collateral and the rents, issues,
profits, proceeds or products of the Collateral, and any other property of
Sponsor, Member, Borrower or any Project Company.  Notwithstanding the foregoing, it is
expressly understood and agreed that nothing contained in this Article 11
shall be deemed to (i) limit or restrict any right or remedy of the
Lenders or the Issuing Bank (or any assignee or beneficiary thereof or
successor thereto) with respect to, and each of Sponsor, Member, Borrower, each
Project Company shall remain fully liable to the extent that Sponsor, Member,
Borrower, each Project Company would otherwise be liable for its own actions
with respect to, any fraud, willful misconduct, gross negligence or willful
misrepresentation or (ii) limit in any respect the enforceability against
the parties thereto (including any Non-Recourse Parties) of any Collateral
Documents, any Project Documents or any Operative Document in accordance with
their respective terms.


 


ARTICLE 12.


AGENTS


 


12.1         Appointment, Powers and Immunities.


 


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


 


(b)           Each Secured Party hereby appoints and
authorizes Security Agent to act as its agent hereunder and under the other
Financing Documents with such powers as are expressly delegated to Security
Agent by the terms of this Financing Agreement and the other Financing
Documents, together with such other powers as are reasonably incidental
thereto.


 


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12.2         Duties, Responsibilities, Powers and
Immunities of Agents.


 


(a)           Each Agent shall not have any duties or
responsibilities except those expressly set forth in this Financing Agreement
or in any other Financing Document, and shall not be a trustee for, or
fiduciary of, any Lender or any other Secured Party.  Notwithstanding anything to the contrary
contained herein, no Agent shall be required to take any action which is
contrary to this Financing Agreement or any other Financing Documents or any
Legal Requirement or exposes such Agent to any liability.  Each of the Agents, the Lenders and any of
their respective Affiliates shall not be responsible to any other Agent, Lender
for any recitals, statements, representations or warranties made by Borrower,
or any Project Company or any Affiliates thereof contained in this Financing
Agreement or any other Financing Document or in any certificate or other
document referred to or provided for in, or received by any Agent or any Lender
under this Financing Agreement or any other Financing Document, for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Financing Agreement, the Notes, any other Financing Document or any other
document referred to or provided for herein or for any failure by Borrower, any
Project Company or any Affiliates thereof to perform their respective
obligations hereunder or thereunder. 
Each Agent may employ agents and attorneys-in-fact and shall not be
responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care.  No Agent shall be liable to Borrower for
breach by any other Agent under any Financing Document or any Lender in its
capacity solely as Agent, or be liable to any other Agent or any Lender for
breach by Borrower of any Financing Document.


 


(b)           Each Agent and its respective directors,
officers, employees or agents shall not be responsible for any action taken or
omitted to be taken by it or them hereunder or under any other Financing
Document or in connection herewith or therewith, except for its or their own
gross negligence or willful misconduct as determined by a final non-appealable
judgment of a court of competent jurisdiction. 
Without limiting the generality of the foregoing, each Agent (i) may
treat the payee of any Note as the holder thereof until such Agent receives
written notice of the assignment or transfer thereof signed by such payee and
in form and substance satisfactory to such Agent; (ii) may consult with
legal counsel, independent public accountants and other experts selected by it
and shall not be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel, accountants or
experts; (iii) makes no warranty or representation to any Lender or any
other Agent for any statements, warranties or representations made in or in
connection with any Project Document or Financing Document; (iv) shall not
have any duty to ascertain or to inquire as to the performance or observance of
any of the terms, covenants or conditions of any Operative Document on the part
of any party thereto or to inspect the property (including the books and
records) of Borrower, any Project Company or any other Person; and (v) shall
not be responsible to any Lender or any other Agent for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of any
Operative Document or any other instrument or document furnished pursuant 


 


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hereto or
thereto.  Except as otherwise provided
under this Financing Agreement, each Agent shall take such action with respect
to the Financing Documents as shall be directed, or consented to, by the
Majority Lenders.


 


12.3         Reliance by Agents.


 


Each
Agent shall be entitled to rely upon any certificate, notice or other document
(including any cable, telegram, telecopy or telex) reasonably believed by it to
be genuine and correct and to have been signed or sent by or on behalf of the
proper Person or Persons, and upon advice and statements of legal counsel,
independent accountants and other experts selected by such Agent.  As to any other matters not expressly
provided for by this Financing Agreement, Administrative Agent shall not be
required to take any action or exercise any discretion, but shall be required
to act or to refrain from acting upon instructions or with the consent of the
Majority Lenders (except that Administrative Agent shall not be required to
take any action which exposes Administrative Agent to personal liability or
which is contrary to this Financing Agreement, any other Financing Document or
any Legal Requirement) and shall in all cases be fully protected in acting, or
in refraining from acting, hereunder or under any other Financing Document in
accordance with the instructions or consent of the Majority Lenders, and such
instructions or consent of the Majority Lenders and any action taken or
refraining to act pursuant thereto shall be binding on all Lenders.


 


12.4         Non-Reliance.


 


Each
Lender represents that it has, independently and without reliance on any Agent
or any other Lender, and based on such documents and information as it has
deemed appropriate, made its own appraisal of the financial condition and
affairs of Borrower and each Project Company and decision to enter into this
Financing Agreement and agrees that it will, independently and without reliance
upon any Agent or any other Lender, and based on such documents and information
as it shall deem appropriate at the time, continue to make its own appraisals
and decisions in taking or not taking action under this Financing
Agreement.  Each Agent and Lender shall
not be required to keep informed as to the performance or observance by
Borrower, any Project Company or any Affiliated Participant under this
Financing Agreement or any other document referred to or provided for herein or
to make inquiry of, or to inspect the properties or books of Borrower, any
Project Company or any Affiliated Participant.


 


12.5         Defaults.


 


(a)           Each Agent (acting in its capacity as
Agent and not in any other capacity) shall not be deemed to have knowledge or
notice of the occurrence of any Inchoate Default or Event of Default unless
such Agent has received a written notice from a Lender, another Agent or Borrower,
referring to this Financing Agreement, describing such Inchoate Default or
Event of Default and indicating that such notice is a “notice of default”.  If an Agent receives such a notice of the
occurrence of an Inchoate Default or Event of Default, it shall give notice
thereof to the Lenders and the other Agent. 
Each Agent shall take such action with respect to such Inchoate Default
or Event of Default as is provided in Article 10 of this Financing
Agreement.


 


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(b)           Unless and until an Agent shall have
received instructions from the Lenders or the other Agent, as may be
applicable, such Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Inchoate Default or Event
of Default as it shall deem advisable in the best interests of the Lenders (in
case of Administrative Agent) or Secured Parties (in case of Security Agent).


 


12.6         Indemnification.


 


Without
limiting the Obligations of Borrower hereunder, each Lender agrees to indemnify
Administrative Agent and Security Agent, ratably in accordance with the
proportion that (i) the aggregate Commitments and/or Loans of such Lender
bears to (ii) the aggregate of all Commitments and/or Loans, for any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever which
may at any time be imposed on, incurred by or asserted against Security Agent
or Administrative Agent in any way relating to or arising out of this Financing
Agreement any other Financing Documents or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or
thereby or the enforcement of any of the terms hereof or thereof or of any such
other documents; provided, however, that no Lender shall be
liable for any of the foregoing to the extent they arise from Security Agent’s
or Administrative Agent’s gross negligence or willful misconduct as determined
by a final non-appealable judgment of a court of competent jurisdiction.  Each of Administrative Agent and Security
Agent shall be fully justified in refusing to take or to continue to take any
action hereunder unless it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense which may be incurred by it
by reason of taking or continuing to take any such action.  Without limitation of the foregoing, each
Lender agrees to reimburse Administrative Agent and Security Agent promptly
upon demand for its ratable share of any out-of-pocket expenses (including
counsel fees) incurred by Security Agent or Administrative Agent in connection
with the preparation, execution, administration or enforcement of, or legal
advice in respect of rights or responsibilities under, the Operative Documents,
to the extent that Security Agent or Administrative Agent are not reimbursed
promptly for such expenses by Borrower.


 


12.7         Successor Agents.


 


Each
Agent acknowledges that its current intention is to remain Agent
hereunder.  Nevertheless, any Agent may
resign at any time by giving fifteen (15) days’ written notice thereof to the
Lenders and Borrower, such resignation to be effective only upon the acceptance
of the appointment of a successor Agent by the Lenders, in case of a successor
Administrative Agent or Security Agent. 
Furthermore, with the consent of Borrower (such consent not to be
unreasonably withheld) any Agent may assign its duties and rights as Agent to
any of its Affiliates satisfying the requirements set forth below upon sixty
(60) days prior written notice to the Lenders, the other Agents and
Borrower.  Upon the occurrence of such
assignment, all rights and obligations of such assigning Agent under the
Financing Documents shall be transferred to such assignee, and the parties
hereto shall execute in conjunction therewith assignment documentation and such
other documentation as shall be necessary or desirable to preserve the
transactions contemplated hereby and to preserve such Agent’s security interest
in the Collateral, if any, all as shall be reasonably satisfactory to such
assignee.  Any Agent may be removed


 


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involuntarily only for a material breach of its duties
and obligations hereunder or under the other Financing Documents or for gross
negligence or willful misconduct as determined by a final non-appealable
judgment of a court of competent jurisdiction in connection with the
performance of its duties hereunder or under the other Financing Documents and
then only upon the affirmative vote of the Majority Lenders (in each case, the “Required
Applicable Lenders”) (excluding such Agent from such vote and such Agent’s
Loans from the amounts used to determine the portion of the Loans necessary to
constitute the Required Applicable Lenders). 
Upon any such resignation or removal, the Required Applicable Lenders
shall have the right to appoint a successor Agent with the consent of Borrower
(unless an Event of Default shall have occurred and be continuing), which
consent shall not be unreasonably withheld. 
If no successor Agent shall have been so appointed by the Required
Applicable Lenders, and shall have accepted such appointment, within thirty (30)
days after the retiring Agent’s giving of notice of resignation or the Lenders’
removal of the retiring Agent, the retiring Agent may, on behalf of the
Lenders, with the consent of Borrower (such consent not to be unreasonably
withheld) appoint a successor Agent, which shall be a Lender, if any Lender
shall be willing to serve, and otherwise shall be a financial institution
having a combined capital and surplus of at least $500,000,000.  Upon the acceptance of any appointment as
Agent under the Operative Documents by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations as Agent only under the Financing
Documents.  After any retiring Agent’s
resignation or removal hereunder as Agent, the provisions of this Financing
Agreement shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Agent under the Operative Documents.


 


12.8         Authorization.


 


(a)           Administrative Agent is hereby authorized
by the Lenders to execute, deliver and perform each of the Financing Documents
to which Administrative Agent is or is intended to be a party and each Lender
agrees to be bound by all of the agreements of Administrative Agent contained
in the Financing Documents.


 


(b)           Security Agent is hereby authorized by
the Secured Parties to execute, deliver and perform each of the Financing
Documents to which such Agent is or is intended to be a party and each Secured Party
agrees to be bound by all of the agreements of such Agent contained in the
Financing Documents.


 


(c)           Borrower irrevocably authorizes each
Agent to disclose any information received in its capacity as Agent to the
other Agents and Lenders.


 


12.9         Other Rights and Powers of Agents.


 


(a)           With respect to its Commitments, the
Loans made by it, the Interest Rate Agreements issued by it and any Note issued
to it, each of Administrative Agent and Security Agent shall have the same
rights and powers under the Operative Documents as any other Lender; and each
Agent may exercise the same as though it were not an Agent.  The term “Lender,” or “Lenders,” shall,
unless otherwise expressly indicated, include each Agent in its individual
capacity.  Each Agent


 


94

















 


and its Affiliates
may accept deposits from, lend money to, act as trustee under indentures of,
and generally engage in any kind of business with Borrower or any other Person,
without any duty to account therefor to any of the Lenders, or the other Agent.


 


(b)           Any information acquired by an Agent
which, in its reasonable opinion, is acquired by it other than in its capacity
as Agent will be treated as confidential by such Agent and will not be deemed
to be information possessed by such Agent in its capacity as such.


 


(c)           Administrative Agent shall be entitled to approve an
amendment or modification to any Project Document to the extent it is necessary
to correct any provision that is inconsistent with any other provision in such
Project Document or to the extent such amendment or modification, in the
reasonable determination of Administrative Agent, does not adversely affect the
interests of any Lender.


 


12.10       Security Agent to Hold in Trust.


 


Security
Agent will hold all of its rights under or pursuant to the Collateral Documents
and all sums received by it under this Financing Agreement and under the
Collateral Documents (save for any sums received solely for its own account
pursuant to such documents) in accordance with the terms of this Financing
Agreement and the Collateral Documents in trust for each of the Secured
Parties.


 


12.11       Amendments and Decision Making.


 


Subject
to the terms and conditions as set forth in this Financing Agreement, the
Majority Lenders (or Administrative Agent with the consent in writing of the
Majority Lenders) and Borrower may enter into any amendments, modifications or
supplements to, or waivers of the terms of this Financing Agreement and the
other Financing Documents; provided, that any amendments, modifications
or supplements to, or waivers that would modify Section 2.2 or
otherwise affect the Issuing Bank shall also require the consent of the Issuing
Bank; provided, however, that no such amendment, modification or
supplement shall, without the consent of all the Lenders and the Issuing Bank:


 


(a)           Extend the maturity of any Loan or any of
the Notes or reduce the principal amount thereof, or reduce the rate or change
the time of payment of interest due on any Loan or any Note; or


 


(b)           modify Sections 2.1, 2.3, 2.4, 3.4, 3.5, 3.6,
3.7, 7.1, 7.24, and 8.6; or


 


(c)           reduce the amount or extend the payment
date for any amount due under Article 2; or


 


(d)           increase the amount of the Commitments of
any Lender under this Financing Agreement; or


 


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


 


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


 


(g)           permit Borrower to assign its rights
under this Financing Agreement except as provided in Section 8.16;
or


 


(h)           amend this Section 12.11; or


 


(i)            release any Collateral from the Lien of
any of the Collateral Documents or release any guaranties under any of the
Collateral Documents or allow release of any funds from any Collateral Account
otherwise than in accordance with the terms hereof.


 


Notwithstanding
anything to the contrary provided in this Section 12.11, any
amendment, modification, supplement or waiver of any provision of Article 12
shall require the prior written consent of each Agent.


 


12.12       Withholding Tax.


 


(a)           Administrative Agent may withhold from
any interest payment to any Lender an amount equivalent to any applicable
withholding tax.  If the forms or other
documentation required by Section 3.4(e) are not delivered to
Administrative Agent, then Administrative Agent may withhold from any interest
payment to any Lender not providing such forms or other documentation, an
amount equivalent to the applicable withholding tax.


 


(b)           If the Internal Revenue Service or any
authority of the United States or other jurisdiction asserts a claim that
Administrative Agent or Borrower did not properly withhold tax from amounts
paid to or for the account of any Lender (because the appropriate form was not
delivered, was inaccurate, was not properly executed, or because such Lender
failed to notify Administrative Agent, Borrower or any other Person of a change
in circumstances which rendered the exemption from, or reduction of,
withholding tax ineffective, or for any other reason, other than gross
negligence or willful misconduct of Administrative Agent or Borrower claiming
indemnity hereunder) such Lender shall indemnify promptly Administrative Agent
and/or Borrower (but in the case of Borrower, only to the extent that Borrower
would not have been required to pay additional amounts or indemnify such Lender
for such tax pursuant to Section 3.4), as applicable, fully for all
amounts paid, directly or indirectly, by such Person as tax or otherwise,
including penalties, additions to tax and interest, together with all expenses
incurred, including legal expenses, allocated staff costs, and any out of
pocket expenses.


 


(c)           If any Lender sells, assigns, grants
participations in, or otherwise transfers its rights under this Financing
Agreement, the participant shall comply and be bound


 


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by the terms of Sections
3.4(d), 3.4(e), 12.12(a) and 12.12(b) as
though it were such Lender.


 


12.13       Substitution of Lender.


 


Should
any Lender (i) be a Defaulting Lender, (ii) otherwise fail to make a
Loan, (iii) fail to provide the forms or other documentation required by Section 3.4(f) in
violation of its obligations under this Financing Agreement, (iv) be
unable to maintain or continue LIBO Rate Loans due to an event occurring under Section 3.6(a),
(v) be unable to maintain or continue Loans due to an event occurring
under Section 3.6(b), (vi) claim increased costs under Section 3.6(c) or
Section 3.6(d), (vii) claim any right to payment under Section 3.4(d),
or (viii) refuse to give timely consent to an amendment, modification or
waiver of the Financing Documents that, pursuant to Section 12.11,
requires consent of all of the Lenders and the consent of at least the Required
Lenders has been obtained with respect thereto (in each case, a “Substitutable
Lender”), Administrative Agent shall (a) in its sole and absolute
discretion, fund the Loan on behalf of the Substitutable Lender or (b) cooperate
with Borrower or any other Lender to find another Person that shall be
acceptable to Administrative Agent and that shall be willing to assume the
Substitutable Lender’s obligations under this Financing Agreement (including
the obligation to make, maintain or continue the Loan which the Substitutable
Lender failed to make but without assuming any liability for damages for
failing to have made, maintained or continued such Loan or any previously
required Loan).  Subject to the
provisions of the next following sentence, such Person shall be substituted for
the Substitutable Lender hereunder upon execution and delivery to
Administrative Agent of an agreement acceptable to Administrative Agent by such
Person assuming the Substitutable Lender’s obligations under this Financing
Agreement, and all principal, interest and fees which would otherwise have been
payable to the Substitutable Lender shall thereafter be payable to such
Person.  Nothing in (and no action taken pursuant
to) this Section 12.13 shall relieve the Substitutable Lender from
any liability it might have to Borrower, to Administrative Agent or to the
other Lenders as a result of its failure to make, maintain or continue such
Loan.


 


12.14       Participations.


 


Nothing
herein provided shall prevent any Lender from selling a participation in its
Loans; provided that (a) no such sale of a
participation shall (i) alter such Lender’s obligations hereunder, or (ii) cause
an increase in any expense or cost to Borrower including pursuant to Section 3.4
or otherwise under this Financing Agreement, and (b) any agreement
pursuant to which any Lender may grant a participation in its rights with
respect to its Loans shall provide that, with respect to such Loans, such
Lender shall retain the sole right and responsibility to exercise the rights of
such Lender, and enforce the obligations of Borrower relating to such Loans,
including the right to approve any amendment, modification or waiver of any
provision of this Financing Agreement or any other Financing Document and the
right to take action to have the Obligations (and the Notes) declared due and
payable pursuant to Article 10. 
Each Lender that sells a participation in its Commitments or Loans shall
provide notice of such sale to Borrower no later than ten (10) Business
Days after the date of any such sale.  No
recipient of a participation in any Loans of any Lender shall have any rights
under this Financing Agreement or shall be entitled to any reimbursement for
Taxes, Other Taxes, increased cost or reserve


 


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requirements under Section 3.4 or 3.6
or any other indemnity or payment rights against Borrower.


 


12.15       Transfer of Loans; Commitments.


 


Notwithstanding
anything else herein to the contrary, any Lender, after receiving the prior
written consent of Administrative Agent and the Issuing Bank, such consent not
to be unreasonably withheld or delayed, and, prior to the occurrence and
continuation of an Event of Default, Borrower, such consent not to be
unreasonably withheld or delayed, may from time to time, at its option, sell,
assign, transfer, negotiate or otherwise dispose of all or a portion of its
Loans and Commitments (including the Lender’s interest in this Financing
Agreement and the other Financing Documents) to any bank, insurance company or
other financial institution; provided, however, that (i) no
Lender (including any assignee of any Lender) may assign any portion of its
Loans and Commitments to a new lender if, at the time of transfer, such
assignment would result, if the circumstances (including Governmental Rules) at
the time of such transfer were unchanged or if the change in such circumstances
does not give rise to or increase the costs described in this sentence, in
claims being made by such new lender, for costs pursuant to Section 3.4
or Section 3.6 hereof in excess of those which could be made by the
assigning Lender were it not to make such assignment, unless such new lender
waives its right to claim such costs or unless Borrower consents to such
transfer and (ii) in no event shall the consent of the Borrower be
required in respect of any such assignments, transfers or other dispositions
described above from a Lender to an Affiliate of such Lender and such Lender
confirms to Borrower in writing that no material increased costs under Section 3.4
or Section 3.6 could reasonably be expected to result from such
transfer.  In the event of any such
assignment, (a) the assigning Lender’s Proportionate Share of Loans and
Commitments shall be reduced by the amount of the Proportionate Share of Loans
and Commitments assigned to the new lender, (b) the parties to such
assignment shall execute and deliver to Administrative Agent an assignment
agreement in substantially the form of Exhibit N attached hereto, evidencing
such sale, assignment, transfer or other disposition and evidencing the
assumption by the new Lender of its Proportionate Share of Loans and
Commitments; (c) Borrower shall (A) execute and deliver to such new
lender a new Note in the form attached hereto as Exhibit B-1, in a
principal amount equal to its Proportionate Share of the Loans being assigned,
and (B) execute and exchange with the assigning Lender a replacement note
for the Note then held by such Lender in an amount equal to the Proportionate
Share of the Loans retained by the Lender, if any, and (d) the assigning
Lender shall cancel and return any replaced Note to Borrower promptly after the
effectiveness of such assignment. 
Administrative Agent shall be paid an assignment fee of $3,000 by the
assigning Lender for each assignment made pursuant to this Section 12.15,
unless waived by Administrative Agent. 
For greater certainty, it is the intention of the parties that transfer
of a Note among Lenders pursuant to the terms and conditions of this Financing
Agreement may be effected only by surrender and reissuance of such Note by
Borrower or by issuance of a replacement Note by Borrower.  Thereafter, such new lender shall be deemed
to be a Lender and shall have all of the rights and duties of the assigning
Lender (except as otherwise provided in this Article 12), in
accordance with its Proportionate Share of Loans and Commitments, under each of
the Financing Documents.  For greater
certainty, other than as set forth in Section 14.4, the costs of
the foregoing shall not be for the account of Borrower.


 


98

















 


12.16       Laws.


 


Notwithstanding
the foregoing provisions of this Article 12, no sale, assignment,
transfer, negotiation or other disposition of the interests of any Lender
hereunder or under the other Financing Documents shall be allowed if it would
require registration under the Securities Act of 1933, as amended, any other
federal securities laws or regulations or the securities laws or regulations of
any applicable jurisdiction.  Borrower
shall, from time to time at the request and expense of the Lenders, execute and
deliver to Administrative Agent, or to such party or parties as Administrative
Agent may designate, any and all further instruments and take such further
actions as may in the opinion of Administrative Agent be reasonably necessary
or advisable to give full force and effect to such disposition.


 


12.17       Assignability to Federal Reserve Bank.


 


Notwithstanding
any other provision contained in this Financing Agreement or any other
Financing Document to the contrary, any Lender may assign all or any portion of
the Loans or Notes held by it to any Federal Reserve Bank or the United States
Treasury as collateral security pursuant to Regulation A of the Federal Reserve
Board and any Operating Circular issued by such Federal Reserve Bank; provided,
however, that any payment in respect of such assigned Loans or Notes
made by Borrower to or for the account of the assigning and/or pledging Lender
in accordance with the terms of this Financing Agreement shall satisfy Borrower’s
obligations hereunder in respect to such assigned Loans or Notes to the extent
of such payment.  No such assignment
shall release the assigning Lender from its obligations hereunder and in no
event shall such Federal Reserve Bank be considered to be a “Lender” or be
entitled to require the assigning Lender to take or omit to take any action
hereunder.


 


12.18       Response to Borrower Requests.


 


Each Agent and
Lender shall endeavor to act as diligently as practicable in the review of
documents, the making of determinations or the consideration of requests for
consents, approvals, waivers or amendments required to be reviewed, made or
considered by the Agents or Lenders, as the case may be, as contemplated by and
in accordance with the provisions of this Financing Agreement and the other
Operative Documents.  Borrower shall
provide each Agent with reasonable advance written notice of the expected occurrence
of any such requirements and, at the reasonable request of Borrower and to the
extent required by this Financing Agreement, each Agent shall so advise the
Lenders.  Borrower shall provide such
documents and information to Administrative Agent as Administrative Agent or
any Lender (through Administrative Agent) may reasonably consider necessary or
advisable, and shall otherwise cooperate with the Agents and the Lenders to
permit the Agents and the Lenders effectively to review such documents, make
such determinations or consider such requests for consents, approvals, waivers
or amendments.


 


99

















 


ARTICLE 13.


INDEPENDENT
CONSULTANTS


 


13.1         Removal and Fees.


 


Administrative
Agent (with the consent of the Majority Lenders in their reasonable discretion),
to the extent consistent with the terms of any letter agreement of Borrower
with an Independent Consultant, may remove from time to time, any one or more
of the Independent Consultants and appoint replacements reasonably acceptable
to Borrower.  Notice of any replacement
of Independent Consultant shall be given by Administrative Agent to Borrower,
the other Agents, the Lenders and to the Independent Consultant being
replaced.  All reasonable fees and
expenses of the Independent Consultants (whether the original Independent
Consultants or replacements) shall be paid by Borrower; provided, however,
that unless an Event of Default shall have occurred and be continuing,
Administrative Agent shall request that each such Independent Consultant
provide Borrower with its proposed scope of work and proposed budget therefor,
and Administrative Agent shall consult with Borrower with regard to the matters
contained therein.


 


13.2         Duties.


 


Each
Independent Consultant shall be contractually obligated to Administrative Agent
to carry out the activities required of it in this Financing Agreement and as
otherwise requested by Administrative Agent and shall be responsible solely to
Administrative Agent.  Borrower
acknowledges that it will not have any cause of action or claim against any
Independent Consultant resulting from any decision made or not made, any action
taken or not taken or any advice given by such Independent Consultant in the
due performance in good faith of its duties to Administrative Agent hereunder,
except to the extent arising from such Independent Consultant’s gross
negligence or willful misconduct.


 


13.3         Independent Consultants’ Certificates.


 


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


 


13.4         Certification of Dates.


 


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


 


100

















 


ARTICLE 14.


MISCELLANEOUS


 


14.1         Addresses.


 


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


 


	
  If to
  Administrative

  	
   

  	
  BNP Paribas

  
	
  Agent or Issuing
  Bank:

  	
   

  	
  787 Seventh
  Avenue

  
	
   

  	
   

  	
  New York,
  NY  10019

  
	
   

  	
   

  	
  Attention:

  	
  Project
  Finance & Utilities

  
	
   

  	
   

  	
  Facsimile:

  	
  (212)
  841-2146

  
	
   

  	
   

  	
   

  
	
  If to
  Security Agent:

  	
   

  	
  BNP Paribas

  
	
   

  	
   

  	
  787 Seventh
  Avenue

  
	
   

  	
   

  	
  New York,
  NY  10019

  
	
   

  	
   

  	
  Attention:

  	
  Project
  Finance & Utilities

  
	
   

  	
   

  	
  Facsimile:

  	
  (212)
  841-2146

  
	
   

  	
   

  	
   

  
	
  If to
  Borrower:

  	
   

  	
  Stetson
  Holdings, LLC

  
	
   

  	
   

  	
  c/o First
  Wind Energy, LLC

  
	
   

  	
   

  	
  179 Lincoln
  Street, Suite 500

  
	
   

  	
   

  	
  Boston, MA
  02111

  
	
   

  	
   

  	
  Attention:

  	
  Secretary

  
	
   

  	
   

  	
  Facsimile:

  	
  (617)
  960-2889

  
	
   

  	
   

  	
   

  
	
  If to any Lender:

  	
   

  	
  To its address set forth for its Lending Office in Exhibit
  I.

  



 


All
notices or other communications required or permitted to be given hereunder
shall be in writing and shall be considered as properly given (a) if
delivered in person; (b) if sent by a nationally recognized overnight
delivery service; (c) in the event overnight delivery services are not
readily available, if mailed by first class mail, postage prepaid, registered
or certified with return receipt requested; or (d) if sent by facsimile or
other direct written electronic means with a confirmation of receipt.  Notice so given shall be effective upon
receipt by the addressee, except that communication or notice so transmitted by
facsimile or other direct written electronic means shall be deemed to have been
validly and effectively given on the day (if a Business Day and, if not, on the
next following Business Day) on which it is transmitted if transmitted before
4:00 p.m., recipient’s time, and if transmitted after that time, on the
next following Business Day; provided, however, that if any
notice is tendered to an addressee and the delivery thereof is refused by such
addressee, such notice shall be effective upon such tender.  Any party shall have the right to change its
address for notice hereunder to any other location by giving of
thirty (30) days’ written notice to the other parties in the manner set
forth hereinabove.


 


101

















 


Borrower
agrees and acknowledges that the Agents, Issuing Bank and the Lenders may act
upon any notice or other communication delivered to them by telecopy by or on
behalf of Borrower in accordance with the instructions contained therein that
are received by the Agents, Issuing Bank or the Lenders from persons purported
to be, or which instructions appear to be authorized by Borrower.  Borrower further agrees to indemnify and hold
the Agents, Issuing Bank and the Lenders harmless from any claims by virtue of
their actions on the basis of instructions contained in any telecopied notice
from Borrower as such instructions were understood by the Agents and the
Lenders except for claims relating solely from the gross negligence or willful
misconduct of the Agents, Issuing Bank or Lenders, as applicable, as determined
by a final non-appealable judgment of a court of competent jurisdiction.  The Agents, Issuing Bank and Lenders shall
not be liable for any errors in transmission or the illegibility of any
telecopied documents delivered by or on behalf of Borrower.  In the event that Borrower sends the Agents,
Issuing Bank and Lenders an executed original of a previously telecopied notice
or other communication, the Agents, Issuing Bank or Lenders, as applicable,
shall have no duty to compare it against such notice previously received by
telecopy nor shall the Agents, Issuing Bank or Lenders have any responsibility
should the contents of the original notice differ from the telecopied notice
acted upon by the Agents, Issuing Bank or Lenders, as applicable.


 


14.2         Additional Security; Right to-Set Off.


 


Any
deposits or other sums at any time credited or due from Lenders and any Project
Revenues, securities or other property of Borrower or any Project Company in
the possession of any of the Agents may at all times be treated as collateral
security for the payment of the Loans and the Notes and all other obligations
of Borrower to the Lenders under this Financing Agreement and the other
Financing Documents and Borrower’s and each Project Company’s interest in such
deposits and other property have been pledged and assigned as collateral
security to Security Agent pursuant to the Borrower Pledge and Security
Agreement and each Guaranty and Security Agreement.  Regardless of the adequacy of any other
collateral, any Lender (but only with the consent of Security Agent) may execute
or realize on the Lenders’ security interest in any such deposits or other sums
credited by or due from the Lenders to Borrower, and may apply any such
deposits or other sums to or set them off against Borrower’s obligations to
Lenders under the Notes and this Financing Agreement at any time after the
occurrence and during the continuance of any Event of Default.


 


14.3         Delay and Waiver.


 


No
delay or omission to exercise any right, power or remedy accruing to the
Agents, Issuing Bank or the Lenders upon the occurrence of any Event of Default
or Inchoate Default or any breach or default of Borrower under this Financing
Agreement or any other Financing Document shall impair any such right, power or
remedy of the Agents, Issuing Bank or the Lenders, nor shall it be construed to
be a waiver of any such breach or default, or an acquiescence therein, or of or
in any similar breach or default thereafter occurring, nor shall any waiver of
any single Event of Default, Inchoate Default or other breach or default be deemed
a waiver of any other Event of Default, Inchoate Default or other breach or
default theretofore or thereafter occurring. 
Any waiver, indulgence, permit, consent or approval of any kind or
character on the part of the Agents, Issuing Bank and/or the Lenders of any
Event of Default, Inchoate Default or other breach or default under this
Financing Agreement or any other


 


102






 










 


Financing Document, or any waiver on the part of the
Agents, Issuing Bank and/or the Lenders of any provision or condition of this
Financing Agreement or any other Financing Document, must be in a writing
expressly referencing this Financing Agreement and shall be effective only to
the extent in such writing specifically set forth.  All remedies, either under this Financing
Agreement or any other Financing Document or by law or otherwise afforded to
the Agents, Issuing Bank and the Lenders, shall be cumulative and not
alternative.


 


14.4         Costs, Expenses and Attorneys’ Fees.


 


Subject
to limitations set forth in the relevant letter agreements with Independent
Consultants, Borrower shall pay to each Agent all of its reasonable costs and
expenses in connection with the preparation, negotiation, closing and costs of
administering this Financing Agreement and the documents contemplated hereby,
including the reasonable fees, expenses and disbursements of Milbank, Tweed,
Hadley & McCloy LLP and other attorneys retained by such Agent
(subject to the prior consent of Borrower, not to be unreasonably withheld) in
connection with the preparation of such documents and any amendments hereof or
thereof, or the negotiation, closing or administration of this Financing Agreement,
and the reasonable fees, expenses and disbursements of the Independent
Consultants in connection with this Financing Agreement or the Loans or
Commitments, and the reasonable travel and out-of-pocket costs incurred by such
Persons.  Borrower will reimburse each
Agent, Issuing Bank and the Lenders for all costs and expenses, including
reasonable attorneys’ fees, expended or incurred by such Agent, Issuing Bank
and/or any Lender in enforcing this Financing Agreement or the other Financing
Documents or exercising any rights under any Consent in connection with an
Event of Default or Inchoate Default, in actions for declaratory relief in any
way related to this Financing Agreement, in collecting any sum which becomes
due to such Agent, Issuing Bank and/or any Lender on the Notes or under the
Financing Documents, or in connection with the participation by such Agent,
Issuing Bank and any Lender in any legal proceedings under the Turbine Supply
Agreement, provided, however, that Borrower shall not be
responsible for the payment of any fees, costs, or other liabilities arising
out of any dispute between or among Administrative Agent, Issuing Bank, the
Lenders, any counterparty of Borrower under the Interest Rate Agreements, and
their respective Affiliates to the extent, and only to the extent, that such
dispute does not arise out of any alleged failure of Borrower or any Affiliated
Participant to perform their respective obligations under the Financing
Documents.


 


14.5         Attorney-In-Fact.


 


For
the purpose of allowing the Agents to exercise their rights and remedies
provided in Article 10 (as may be applicable) following the
occurrence and during the continuation of a Event of Default, Borrower hereby
constitutes and appoints each Agent its true and lawful attorney-in-fact, with
full power of substitution.


 


14.6         Entire Agreement; Amendments.


 


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


 


103

















 


Financing Agreement and any such agreement, document
or instrument, the terms, conditions and provisions of this Financing Agreement
shall prevail.  This Financing Agreement
may only be amended or modified by an instrument in writing signed by Borrower
and the Agents (acting on behalf of or with the consent of the Lenders and the
Issuing Bank, in each case, as required herein or in other Financing Documents)
in accordance with the terms of this Financing Agreement.


 


14.7         Governing Law.


 


THIS
FINANCING AGREEMENT, AND ANY INSTRUMENT OR AGREEMENT REQUIRED HEREUNDER (TO THE
EXTENT NOT EXPRESSLY PROVIDED FOR THEREIN), SHALL BE GOVERNED BY, AND CONSTRUED
UNDER, THE LAWS OF THE STATE OF NEW YORK, APPLICABLE TO CONTRACTS MADE AND TO
BE PERFORMED IN SUCH STATE AND WITHOUT REFERENCE TO CONFLICTS OF LAWS RULES
THEREOF (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW).


 


14.8         Severability.


 


In
case any one or more of the provisions contained in this Financing Agreement
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby, and the parties hereto shall enter into good
faith negotiations to replace the invalid, illegal or unenforceable provision.


 


14.9         Headings.


 


Paragraph
headings and a table of contents have been inserted in this Financing Agreement
as a matter of convenience for reference only and it is agreed that such
paragraph headings are not a part of this Financing Agreement and shall not be
used in the interpretation of any provision of this Financing Agreement.


 


14.10       Accounting Terms.


 


All
accounting terms not specifically defined herein shall be construed in
accordance with GAAP and practices consistent with those applied in the preparation
of the financial statements of Borrower, each Project Company and Major Project
Participants, to the extent required herein, submitted by Borrower to
Administrative Agent, and (unless otherwise indicated) all financial data of
Borrower, each Project Company  and Major
Project Participants, to the extent required herein, submitted pursuant to this
Financing Agreement shall be prepared in accordance with such principles and
practices.


 


14.11       Additional Financing.


 


The
parties hereto acknowledge that the Lenders have made no agreement or
commitment to provide any financing except as set forth herein.


 


104

















 


14.12       No Partnership, Etc.


 


The
Agents, Issuing Bank, the Lenders and Borrower intend that the relationship
between them shall be solely that of creditor and debtor.  Nothing contained in this Financing
Agreement, the Notes or in any of the other Financing Documents shall be deemed
or construed to create a partnership, tenancy-in-common, joint tenancy, joint
venture or co-ownership by or between or among the Agents, Issuing Bank, the
Lenders and Borrower or any other Person. 
None of the Agents, Issuing Bank or the Lenders shall be in any way
responsible or liable for the debts, losses, obligations or duties of Borrower,
any Project Company or any other Person with respect to the Project or
otherwise.  All obligations to pay real
property or other taxes, assessments, insurance premiums, and all other fees
and charges arising from the ownership, operation or occupancy of the Project
and to perform all obligations under agreements and contracts relating to the
Project shall be the sole responsibility of Borrower and the Project Companies,
as applicable.


 


14.13       Mortgage Documents/Collateral Documents.


 


The
Loans and the other Obligations are secured in part by the Mortgage Documents
encumbering certain properties in Maine. 
Reference is hereby made to the Mortgage Documents and the other
Collateral Documents for the provisions, among others, relating to the nature
and extent of the security provided thereunder, the rights, duties and
obligations of Borrower and the rights of the Agents, Issuing Bank and the
Lenders with respect to such security.


 


14.14       Limitation on Liability.


 


NO
CLAIM SHALL BE MADE BY ANY PARTY HERETO OR ANY OF ITS AFFILIATES, DIRECTORS,
EMPLOYEES, ATTORNEYS OR AGENTS AGAINST ANY OTHER PARTY HERETO OR ANY OF ITS
AFFILIATES, DIRECTORS, EMPLOYEES, ATTORNEYS OR AGENTS FOR ANY SPECIAL,
INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (WHETHER OR NOT THE CLAIM THEREFOR
IS BASED ON CONTRACT, TORT, DUTY IMPOSED BY LAW OR OTHERWISE), IN CONNECTION
WITH, ARISING OUT OF OR IN ANY WAY RELATED TO THE TRANSACTIONS CONTEMPLATED BY
THIS FINANCING AGREEMENT OR THE OTHER OPERATIVE DOCUMENTS OR ANY ACT OR
OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH; AND EACH PARTY HEREBY
WAIVES, RELEASES AND AGREES NOT TO SUE UPON ANY SUCH CLAIM FOR ANY SUCH
SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER OR NOT ACCRUED
AND WHETHER OR NOT KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR.


 


14.15       Waiver of Jury Trial.


 


THE
AGENTS, THE ISSUING BANK, THE LENDERS AND BORROWER HEREBY KNOWINGLY,
VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR
IN CONNECTION WITH, THIS FINANCING AGREEMENT OR ANY OTHER OPERATIVE DOCUMENT,
OR ANY 


 


105

















 


COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN), OR ACTIONS OF THE AGENTS, ISSUING BANK, THE
LENDERS OR BORROWER.  THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE AGENTS, ISSUING BANK AND THE LENDERS TO ENTER INTO
THIS FINANCING AGREEMENT.


 


14.16       Consent to Jurisdiction.


 


The
Agents, the Issuing Bank, the Lenders and Borrower (on behalf of itself and on
behalf of Sponsor, Member, each Project Company and each Affiliated
Participant) agree that any legal action or proceeding by or against Borrower
or with respect to or arising out of this Financing Agreement, the Notes or any
other Financing Document may be brought in or removed to the courts of
competent jurisdiction of the State of New York sitting in The City of New York
in New York County and of the United States of America in and for the Southern
District of New York, as Administrative Agent may elect.  By execution and delivery of this Financing
Agreement, the Agents, the Lenders, Issuing Bank and Borrower (on behalf of
itself and on behalf of Sponsor, Member, each Project Company and each
Affiliated Participant) accept, for themselves and in respect of their
property, generally and unconditionally, the jurisdiction of the aforesaid
courts.  The Agents, the Lenders, the
Issuing Bank and Borrower (on behalf of itself and on behalf of Sponsor,
Member, each Project Company and each Affiliated Participant) irrevocably
consent to the service of process out of any of the aforementioned courts in
any such action or proceeding by the mailing of copies thereof by registered or
certified airmail, postage prepaid, to the Agents, Issuing Bank, the Lenders or
Borrower (on behalf of itself and on behalf of Sponsor, Member, each Project
Company and each Affiliated Participant), as the case may be, at their
respective addresses for notices as specified herein and that such service
shall be effective five (5) Business Days after such mailing.  Nothing herein shall affect the right to
serve process in any other manner permitted by law or the right of the Agents,
Issuing Bank or any Lender to bring legal action or proceedings in any other
competent jurisdiction, including judicial or non-judicial foreclosure of the
Mortgage Documents.  The Agents, the
Issuing Bank, the Lenders and Borrower (on behalf of itself and on behalf of
Sponsor, Member, each Project Company and each Affiliated Participant) hereby
waive any right to stay or dismiss any action or proceeding under or in
connection with any or all of the Project, this Financing Agreement or any
other Financing Document brought before the foregoing courts on the basis of forum non-conveniens.


 


14.17       Usury.


 


Nothing
contained in this Financing Agreement or the Notes shall be deemed to require
the payment of interest or other charges by Borrower or any other Person in
excess of the amount which the holders of the Notes may lawfully charge under
any applicable usury laws.  In the event
that the holders of the Notes shall collect moneys which are deemed to
constitute interest which would increase the effective interest rate to a rate
in excess of that permitted to be charged by applicable law, all such sums
deemed to constitute interest in excess of the legal rate shall, upon such
determination, at the option of the holder of the Notes, be returned to
Borrower or credited against the principal balance of the Notes then
outstanding.


 


106






 










 


14.18       Successors and Assigns.


 


The
provisions of this Financing Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective permitted successors and
assigns.  Borrower may not assign or
otherwise transfer any of its rights under this Financing Agreement without the
prior written consent of Administrative Agent (with the consent of all Lenders
and the Issuing Bank).


 


14.19       Confidentiality.


 


The
Agents, Issuing Bank and the Lenders agree to use best efforts to maintain the
confidential nature of, and shall not use or disclose the financial information
or other confidential information related to Borrower, the Project Companies or
any of Borrower’s Affiliates without first obtaining Borrower’s prior written
consent; provided that nothing in this Section 14.19
shall require any Agent, Issuing Bank or any Lender to obtain any consent of
Borrower in connection with (and Borrower hereby authorizes the Agents, Issuing
Bank and each Lender to freely disclose any financial information or
confidential information with respect to Borrower, the Project Companies, the
Project, any Project Document or any Financing Document without any consent of
Borrower, to the extent otherwise required, in connection with) (a) exercising
any of their respective rights under the Financing Documents, including those
exercisable upon the occurrence of an Event of Default; (b) providing
information about Borrower, the Project Companies, the Project, any Project
Document or any Financing Document or the parties thereto to any other Lender
or prospective Lender or any Person acquiring, or potentially acquiring, any
interest of the Lenders under the Financing Agreement and any such Person’s
directors, officers, employees, agents and consultants in connection with their
credit evaluation of Borrower, the Project Companies or otherwise (if, in the
case of any such Person potentially acquiring such an interest from any Lender,
such Person agrees to be bound by the terms of a confidentiality agreement
substantially similar to this Section 14.19); (c) any
situation in which any Agent, Issuing Bank or any Lender (i) is required
by law or required by any Governmental Authority or the National Association of
Insurance Commissioners to disclose information or (ii) is requested by
bank examiners to disclose information (provided that in each instance under
clauses (i) and (ii) above such Person uses reasonable efforts to
maintain confidentiality of the information disclosed); (d) providing
information to legal counsel to any Agent, Issuing Bank or any Lender in
connection with the transactions contemplated by any of the Financing Documents
(if such Lender informs such counsel of the confidential nature of such
information and requires that it be kept confidential except as permitted
herein); (e) providing information to independent accountants, auditors or
other expert consultants retained by any Agent, Issuing Bank or any Lender (if
such Lender informs such auditors or consultants of the confidential nature of
such information and requires that it be kept confidential except as permitted
herein); (f) any information that is in or becomes part of the public
domain otherwise than through a wrongful act of any Agent, Issuing Bank, any
Lender or any employees or agents thereof or other Persons to whom confidential
information is disclosed under subsections (b), (c), (d) or (e) above;
(g) any information that is in the possession of any Agent, Issuing Bank
or any Lender prior to receipt thereof from Borrower or any other Person known
to any Agent, Issuing Bank or any Lender to be acting on behalf of Borrower; (h) any
information that is independently developed by any Agent, Issuing Bank or any
Lender; and (i) any information that is disclosed to any Agent, Issuing
Bank or any Lender by a third 


 


107

















 


party that is not known or reasonably suspected by
such Agent, Issuing Bank or Lender to be bound by a confidentiality agreement
with, or other contractual, legal or fiduciary obligation of confidentiality
to, Borrower, any Project Company or any of Borrower’s Affiliates, with respect
to such information.


 


Notwithstanding
anything to the contrary set forth in this Section 14.19, after
notice to Borrower, any Agent, Issuing Bank or Lender shall be free to disclose
any information regarding the tax structure of the transactions contemplated in
this Financing Agreement to any relevant Governmental Authority requiring such
information.


 


14.20       Counterparts.


 


This
Financing Agreement and any amendment, waivers, consents or supplements hereto
or in connection herewith may be executed in one or more counterparts, each of
which when executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument.


 


14.21       Patriot Act Compliance.


 


Administrative
Agent hereby notifies Borrower that, pursuant to the requirements of the
Patriot Act, it and any Lender shall be required to obtain, verify and record
information that identifies Borrower and each Project Company, which
information includes, without limitation, the names and addresses and other
information that will allow it or any Lender to identify Borrower and each
Project Company in accordance with the requirements of the Patriot Act.  Borrower shall promptly deliver information
described in the immediately preceding sentence when requested by
Administrative Agent, Issuing Bank or any Lender in writing pursuant to the
requirements of the Patriot Act.


 


[SIGNATURES FOLLOW]


 


108

















 


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


 


 


	
   

  	
  STETSON
  HOLDINGS, LLC

  
	
   

  	
  a Delaware
  limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Evelyn
  Lim

  
	
   

  	
  Name:

  	
  Evelyn Lim

  
	
   

  	
  Title:

  	
  Secretary

  



 

















 


	
   

  	
  BNP
  PARIBAS,

  
	
   

  	
  as
  Administrative Agent for the Lenders

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Andrew
  Platt

  
	
   

  	
   

  	
  Name: Andrew
  Platt

  
	
   

  	
   

  	
  Title: Managing
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sean
  Finnegan

  
	
   

  	
   

  	
  Name: Sean
  Finnegan

  
	
   

  	
   

  	
  Title: Director

  



 

















 


	
   

  	
  BNP
  PARIBAS,

  
	
   

  	
  as Security
  Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Andrew
  Platt

  
	
   

  	
   

  	
  Name: Andrew
  Platt

  
	
   

  	
   

  	
  Title: Managing
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sean
  Finnegan

  
	
   

  	
   

  	
  Name: Sean
  Finnegan

  
	
   

  	
   

  	
  Title: Director

  



 

















 


	
   

  	
  BNP PARIBAS,  

  
	
   

  	
  as Joint
  Lead Arranger, Joint Bookrunner and as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian A.
  Goldstein

  
	
   

  	
   

  	
  Name: Brian
  A. Goldstein

  
	
   

  	
   

  	
  Title: Managing
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sean
  Finnegan

  
	
   

  	
   

  	
  Name: Sean
  Finnegan

  
	
   

  	
   

  	
  Title: Director

  



 

















 


	
   

  	
  HSH
  NORDBANK AG, NEW YORK BRANCH,

  
	
   

  	
  as Joint
  Lead Arranger, Joint Bookrunner and as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sylvia
  Chong

  
	
   

  	
   

  	
  Name: Sylvia
  Chong

  
	
   

  	
   

  	
  Title: Senior
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David
  Watson

  
	
   

  	
   

  	
  Name: David
  Watson

  
	
   

  	
   

  	
  Title: Vice
  President

  



 

















 


	
   

  	
  BNP
  PARIBAS,

  
	
   

  	
  as Issuing
  Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Andrew
  Platt

  
	
   

  	
   

  	
  Name: Andrew
  Platt

  
	
   

  	
   

  	
  Title: Managing
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sean
  Finnegan

  
	
   

  	
   

  	
  Name: Sean
  Finnegan

  
	
   

  	
   

  	
  Title: Director

  



 






 










 


Execution
Version


 


EXHIBIT
A


to
Financing Agreement


 


DEFINITIONS
AND RULES OF INTERPRETATION


 


(Attached)


 


A-1

















 


EXHIBIT A

to Financing Agreement


 


DEFINITIONS


 


“Account Control Agreement” means that certain Account
Control Agreement among Borrower, Administrative Agent, Security Agent and
Securities Intermediary, in substantially the form of Exhibit E-4 to the
Financing Agreement.


 


“Additional Project Documents” means, collectively, any
contract or agreement entered into by Borrower in respect of any Project
subsequent to the Closing Date that either (a) replaces or is entered into
in substitution of an existing Material Project Document; or (b) obligates
Borrower to make payments in an aggregate amount exceeding $250,000 over its
term except with respect to contracts or agreements for the purchase of
materials, equipment or Parts that are included in the Base Case Project
Projections.


 


“Adjustment Date” has the meaning given in Section 7.27
of the Financing Agreement.


 


“Administrative Agent” means BNP Paribas, in its capacity as
Administrative Agent for the Lenders under the Financing Agreement, or any
successor in such capacity appointed from time to time in accordance with the
Financing Agreement.


 


“Administrative Agent Account” means the account of
Administrative Agent at such office or bank as it may notify from time to time
to the Lenders, the other Agents and Borrower.


 


“Affiliate” means (a) with respect to
any Person that is not directly or indirectly controlled by the Sponsor, any
other Person that directly, or indirectly through one or more intermediaries,
controls, is controlled by or is under common control with the Person
specified, or who holds or beneficially owns ten percent (10%) or more of the equity
interest in the Person specified or ten percent (10%) or more of any class of
voting securities of the Person specified.


 


A-2

















 


“Affiliated Indemnitees” has the meaning given in Section 7.23(a)(i) of
the Financing Agreement.


 


“Affiliated Participant” means the Borrower, Member, any
Project Company, and Sponsor for so long as such Person has any obligation
under any Collateral Document to which it is a party and any Major Project
Participant that is an Affiliate of Borrower, Sponsor, any Project Company or
Member for so long as such Person has any obligation under a Material Project
Document to which it is a party.


 


“Agency Fee Side Agreement” means that certain Fee Letter,
dated as of the Closing Date, by and between the Administrative Agent and the
Borrower.


 


“Agents” means Administrative Agent and Security Agent.


 


“AIMCO Prepayment” means an optional prepayment of the Term
Loans as contemplated pursuant to Section 9.17 of that certain Credit
Agreement, dated as of July 17, 2009 (as amended from time to time), by
and among Wells Fargo, N.A., as collateral agent and administrative agent, the
lender party thereto, CSSW, LLC a Delaware limited liability company, and CSSW
Holdings, LLC, a Delaware limited liability company.


 


“Amortization Schedule” means the amortization schedule set
forth as Exhibit K to the Financing Agreement.


 


“Annual Operating Plan” means the Annual
Operating Plan that shall contain a reasonably detailed narrative description
of (a) the categories of revenues and costs set forth in the Base Case
Project Projections; (b) maintenance and repair activities expected or
planned for the upcoming 12-month period; (c) the planned purchases of
Parts, (d) the marketing
plan of the Borrower detailing, among other things, the strategy for power
sales, power scheduling, renewable energy credit sales and ICAP  sales, and (e) any event or
condition forecasted for the 


 


A-3

















 


relevant upcoming 12-month period that is likely to
require the incurrence of major maintenance expense items in an amount that is
at least 20% higher than the corresponding amount set forth with respect to
such category in the Base Case Project Projections for such year.


 


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


 


“Applicable Base Rate Margin” means, with respect to any Base
Rate Loans, (i) 2.25% per annum during the period commencing on the
Closing Date and ending on the third anniversary thereof, and (ii) 2.50%
per annum thereafter until the Maturity Date.


 


“Applicable Margin” means, with respect to any LIBO Rate
Loans, (i) 3.25% per annum during the period commencing on the Closing
Date and ending on the third anniversary thereof, and (ii) 3.50% per annum
thereafter until the Maturity Date.


 


“Applicable Permit” means, at any given time, any Permit,
including any zoning, environmental protection, pollution, sanitation, FERC,
the Maine Public Utilities Commission, safety, siting or building, importation
of technology, or equipment and materials Permit (a) that is necessary as
of and after the Closing Date, in light of the stage of construction or
operation of any Project, to test, construct, operate, maintain, repair, own or
use such Project as contemplated 


 


A-4

















 


pursuant to applicable Legal Requirements or as
required by the Operative Documents, to generate or sell electricity therefrom,
to enter into any Operative Document or to consummate any transaction contemplated thereby in each case
materially in accordance with all applicable Legal Requirements; or (b) that is necessary at such
time so that (i) none of the Agents, Issuing Bank, the Lenders, or any
Affiliate of any of them may be deemed by any Governmental Authority to be
subject to regulation under the FPA or PUHCA or under any state laws or
regulations respecting the rates or the financial or organizational regulation
of electric utilities as a result of the construction, testing or operation of
any Project or the generation or sale of electricity therefrom, or (ii) none
of Borrower nor any Affiliate of Borrower may be deemed by any Governmental
Authority to be subject to, and not exempt from, compliance with PUHCA (other
than Section 1265 thereof).


 


“Authorized Officer” means
(a) with respect to any Person that is a corporation, the president, any
vice president, the treasurer or the chief financial officer of such Person; (b) with
respect to any Person that is a partnership, the general partner or a duly authorized officer of a
general partners of such Person or such other authorized officer as appointed
by the board of directors of such general partner; or (c) with respect to
any Person that is a limited liability company, any member or manager, or to
the extent duly authorized to so act pursuant to such Person’s governing
documents, the president, any vice president, the treasurer or chief financial
officer of such Person or, in the case of a limited liability company, of a
member of such Person.  No Person shall
be deemed to be an “Authorized Officer” unless designated as an individual duly
authorized to act on behalf of such Person in a certificate of incumbency of
such Person delivered to Administrative Agent.


 


“Available Bridge Loan Commitment”
means (a) at any time prior to the Bridge 


 


A-5

















 


Loan Maturity Date, the Total Bridge Loan Commitment
at such time minus the aggregate
outstanding amount of the Bridge Loans at such time, and (b) after the
conditions set forth in clause (a) are satisfied, zero.


 


“Available Term Loan Commitment”
means (a) at any time prior to the Term Loan Maturity Date, the Total Term
Loan Commitment at such time minus
the aggregate outstanding amount of the Term Loans at such time, and (b) after
the conditions set forth in clause (a) are satisfied, zero.


 


“Availability Period” means the period commencing
on the Closing Date and ending July 1, 2010.


 


“Available LC Commitment” means, with
respect to any type of Letter of Credit (a) at any time and from time to
time, the Total LC Commitment applicable to such type of Letter of Credit minus
(b) the aggregate Stated Amounts applicable to such type of Letter of
Credit.


 


“Bankruptcy Event” has the meaning given in Section 10.1(d) of
the Financing Agreement.


 


“Bankruptcy Law” means Title 11, United States Code, and any
other state or federal insolvency, reorganization, moratorium or similar law
for the relief of debtors.


 


“Base Case Project Projections” means a good
faith projection of reasonable operating results and forecasted cash flows for
the Projects for the period from the Closing Date to the twentieth anniversary
thereof.


 


“Base Rate” means, for any day, a rate
per annum equal to the higher of (a) the Prime Rate in effect on such day
as determined by the Administrative Agent, (b) the Federal Funds Effective
Rate for such day plus 0.50% and (c) 3-month LIBO Rate on such day plus 


 


A-6

















 


1.50%.  Any
change in the Base Rate due to a change in the Prime Rate, the Federal Funds
Effective Rate or the 3-month LIBO Rate shall be effective from and including
the effective date of such change in the Prime Rate, the Federal Funds
Effective Rate or the 3-month LIBO Rate, as the case may be.


 


“Base Rate Default Rate” means, with respect
to any Base Rate Loans outstanding from time to time, the interest rate per
annum equal to the Base Rate then in effect plus the Applicable Base
Rate Margin plus 2.00% per annum.


 


“Base Rate
Loans” means
Loans that bear interest at a rate per annum determined by reference to the
Base Rate.


 


“Benefited Lender” has the meaning given in Section 3.5(b) of
the Financing Agreement.


 


“BOP Agreement” or “BOP Agreements”
means, the Stetson I Reed Agreement, the Stetson II Reed Agreement, and/or
Cianbro Agreement, as applicable.


 


“BOP Contractor” means as applicable, Reed & Reed, Inc.,
or Cianbro Corporation.


 


“Borrower” means Stetson Holdings, LLC, a Delaware limited
liability company.


 


“Borrower Equity” means any equity contributed or required to
be contributed to Borrower by Member or Sponsor.


 


“Borrower LLC Agreement” means Limited
Liability Company Agreement of Stetson Holdings, LLC, dated as of May 27,
2008, as modified by that certain Membership Interest Transfer Agreement of
Stetson Holdings, LLC, dated as of July 17, 2009, as further amended by
that certain First Amendment to Limited Liability Company Agreement of Stetson
Holdings, LLC, dated as of July 17, 2009, as modified by that certain
Membership Interest 


 


A-7

















 


Transfer Agreement of Stetson Holdings, LLC, dated
as of the date of the Financing Agreement, and as further amended by that
certain Second Amendment to Limited Liability Company Agreement, dated as of
the date of the Financing Agreement.


 


“Borrower Pledge and Security Agreement” has the meaning given in Section 4.1(a)(ii) of
the Financing Agreement.


 


“Borrowing” means a borrowing or advance of Loans or the
issuance or extension of any Letter of Credit under the Financing Agreement
except for any conversions or continuation of Loans.  For the avoidance of doubt, neither the
conversions of Loans
under Sections 3.4(c), 3.6(a) or 3.6(b) of the Financing Agreement,
nor continuations of any Loan without any increase in the aggregate principal
amount outstanding shall be deemed to be a Borrowing.


 


“Bridge Loan” and “Bridge Loans”
have the meaning
given in Section 2.1(a)(ii) of the Financing Agreement.


 


“Bridge Loan Commitment Fees” has the meaning given in Section 3.3(d)(ii) of
the Financing Agreement.


 


“Bridge Loan Maturity Date” means the earliest to occur of (a) receipt
by the Borrower or any Project Company of the Government Grant proceeds in
respect of the Stetson II Project; (b) the date that is ninety (90) days
or, at the sole discretion of the Administrative Agent, up to one hundred
twenty (120) days after Commercial Operation; (c) the date on
which the entire outstanding principal balance of the Bridge Loans, together with all unpaid
interest, fees, charges and costs, become due and payable under the Financing
Agreement; and (d) September 1, 2010.


 


“Business Day” means any day (a) other than a Saturday,
Sunday or other day on 


 


A-8

















 


which
banks are authorized to be closed in New York, New York; and (b) which is
also a day on which dealings in Dollar deposits are carried out in the London interbank
market.


 


“Capital Adequacy Requirement” has the meaning given in Section 3.6(d) of
the Financing Agreement.


 


“Change of Control” means an event or any
series of events by which (i) Member ceases to own, directly or
indirectly, at least 51% of the voting rights of the equity interests of
Borrower or (ii) Member ceases to own legally and beneficially at least
51% of the membership or economic interests of the Borrower.


 


“Change of Law” has the meaning given in Section 3.6(b) of
the Financing Agreement.


 


“Cianbro Agreement” means that certain
Construction Agreement, dated as of August 18, 2008, by and between
Evergreen Wind Power V, LLC and Cianbro Corporation, as Contractor, for the
Stetson Mountain Substation.


 


“Citigroup REC Contract” means that certain
Agreement for the Purchase and Sale of Renewable Energy Certificates and Credit
Support Annex to the Agreement for the Purchase and Sale of Renewable Energy
Certificates, each dated as of December 21, 2009, by and between Borrower
and Citigroup Energy Inc.


 


“Claims” has the meaning given in Section 7.23(a)(i) of
the Financing Agreement.


 


“Closing Date” means the date when each of the
conditions precedent listed in Section 5.1 of the Financing Agreement has
been satisfied or waived in writing by Administrative Agent and the Issuing
Bank (with the consent of all the Lenders).


 


“Code” means the Internal Revenue Code of 1986, as amended,
including any applicable Treasury Regulations.


 


A-9














 


“Collateral” means all real and personal property which is
subject or required to become subject to the security interests or Liens
granted by Borrower (or other Persons, as applicable) under any of the
Collateral Documents.


 


“Collateral  Accounts” means
the Revenue Account, Operating Account, the Debt Service Reserve Account, the O&M Reserve
Account, the Loss
Proceeds Account, the Disbursement Reserve Account and the Government Grant
Proceeds Account.


 


“Collateral Documents” means the Mortgage Documents, the
Member Pledge and Security Agreement, the Borrower Security and Pledge
Agreement, each Guaranty and Security Agreement, the Account Control Agreement,
the Sponsor Indemnity, the Consents and any other security documents, financing
statements and the like filed or recorded in connection with the foregoing.


 


“Commercial Operation Date” means, in
respect of the Stetson II Project, the date on which each of the following has
occurred:  (i) the Placed in Service
Date, (ii) “Commercial Operation Date” under the PPA, and (iii) “Commercial
Operation” under the Interconnection Agreement.


 


“Commitment” means, at any time with respect to each Lender,
such Lender’s Proportionate Share of the Total Commitment at such time.


 


“Commitment Fees” means, collectively, the Term Loan
Commitment Fees, Bridge Loan Commitment Fees and the LC Commitment Fees.


 


“Confirmation of Interest Period Selection”  means a written confirmation,
substantially in the form of Exhibit C-1 to the Financing Agreement,
confirming Borrower’s telephone notice to the Administrative Agent of a
selected Interest Period.


 


“Consents” means, collectively, the consents listed in Section 4.1(a)(vi) of
the 


 


A-10

















 


Financing
Agreement by and among Borrower, Security Agent and the Persons identified in
such section, in each case substantially in the forms of Exhibits F-1 through
F-12 to the Financing Agreement.


 


“Construction Budget and Schedule” means, in respect of the
Stetson II Project, the budget and schedule of anticipated costs to be incurred
in connection with the construction and development of the Stetson II Project,
in form and substance satisfactory to Administrative Agent.


 


“Controlled Group” means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with Borrower, are treated as a single employer
under Section 414(b) or 414(c) of the Code.


 


“Debt” of any Person at any date means, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (c) all
obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, (d) all obligations of such Person under leases which are or
should be, in accordance with GAAP, recorded as capital leases in respect of
which such Person is liable, (e) all obligations of such Person to
purchase securities (or other property) which arise out of or in connection
with the sale of the same or substantially similar securities (or property), (f) all
deferred obligations of such Person to reimburse any bank or other Person in
respect of amounts paid or advanced under a letter of credit or other
instrument, (g) all indebtedness of others secured by a Lien on any asset
of such Person, whether or not such indebtedness is assumed by such Person, (h) all
indebtedness of others guaranteed directly or indirectly by such Person or as
to which such Person has an obligation substantially the economic equivalent of
a 


 


A-11

















 


guaranty
and (i) obligations in respect of Interest Rate Agreements.


 


“Debt Service” means the obligations payable by Borrower for
interest and principal on the Term Loans (other than the $3,000,000 to be
prepaid as a Mandatory Prepayment pursuant to Section 3.2(c) of the
Financing Agreement), interest only on the Bridge Loans, fees and expenses
payable under the Financing Documents or other charges due in respect of Debt,
and Reimbursement Obligations and any interest accrued thereon, as set forth in
the Financing Documents.


 


“Debt Service Coverage Ratio” means the
ratio, calculated by the Administrative Agent as of each Payment Date for the
preceding twelve-month period, based on (a) (i) Project Revenues from the ownership or operation of the
Projects, less  (ii) O&M Costs, to (b) Debt
Service; provided, that in respect of each applicable Payment Date that
is less than twelve (12) months after the date of the Financing Agreement, the
calculation shall be performed in respect of the time period from the date of
the Financing Agreement to such Payment Date.


 


“Debt Service Reserve Account” has the
meaning given in Section 6(d) of the Account Control Agreement.


 


“Debt Service Reserve LC” means the
letter of credit to be issued pursuant to Section 2.2(a)(ii) of the
Financing Agreement.


 


“Debt Service Reserve LC Loan” has the
meaning given in Section 2.2(d)(iv) of the Financing Agreement.


 


“Debt Service Reserve Requirement” means
$6,630,000.


 


“Debt Sizing Base Case” means a good faith
projection of reasonable operating results and forecasted cash flows for the
Projects for the period from the Closing Date to the twentieth anniversary
thereof, which shall include, without limitation, (i) hedged energy 


 


A-12

















 


revenues in respect of the Energy Hedge, (ii) energy
and REC revenues based on the floor price set forth in the PPA, (iii) hedged
REC sales in respect of the REC Contracts, (iv) capacity revenue (utilizing an assumption of a monthly capacity
price of $1 per kilowatt after the completion of transmission system upgrades
in June 2013), (v) merchant energy revenues, if applicable, (vi) cash
collateral in the amount of $3,000,000 that will be placed on deposit in the
Stetson I Holding Account, and (vii) any other forecasted cash receipts
and expenditures of the Projects.


 


“Default
Rate” means the
Base Rate Default Rate or the LIBO Rate Default Rate, as the context may
require.


 


“Defaulting Lender” means any Lender, as reasonably
determined by the Administrative Agent, that has (a) failed to fund any
portion of its Loans or participations in Letters of Credit within one (1) Business
Date of the date required to be funded by it hereunder, (b) notified the
Borrower, the Administrative Agent, the Issuing Bank or any Lender in writing
that it does not intend to comply with any of its funding obligations under the
Financing Agreement or under other agreements in which it commits to extend
credit, (c) failed, within one (1) Business Day after request by the
Administrative Agent, to confirm that it will comply with the terms of the
Financing Agreement relating to its obligations to fund prospective Loans and
participations in then outstanding Letters of Credit, (d) otherwise failed
to pay over to the Administrative Agent or any other Lender any other amount
required to be paid by it under the Financing Agreement within one (1) Business
Day of the date when due, unless the subject of a good faith dispute, or (e) (i) become
or is insolvent or has a parent company that has become or is insolvent or (ii) become
the subject of a bankruptcy or insolvency proceeding, or has had a receiver,
conservator, trustee or custodian appointed for it, or has taken any action in
furtherance 


 


A-13

















 


of, or
indicating its consent to, approval of or acquiescence in any such proceeding
or appointment or has a parent company that has become the subject of a
bankruptcy or insolvency proceeding, or has had a receiver, conservator,
trustee or custodian appointed for it, or has taken any action in furtherance
of, or indicating its consent to, approval of or acquiescence in any such
proceeding or appointment.


 


“Department of Treasury Rule” has the meaning assigned to such term in Section 6.40(a)(i) of
the Financing Agreement.


 


“Disbursement Account” has the meaning given in Section 6(a) of
the Account Control Agreement.


 


“Distribution Reserve Account” has the meaning given in Section 6(i) of
the Account Control Agreement.


 


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


 


“Drawing” means a drawing on a Letter of
Credit.


 


“Drawing Payment” means a payment by
Issuing Bank of all or any part of the Stated Amount in conjunction with a
Drawing under any Letter of Credit.


 


“Eminent Domain Proceeds” means all amounts and
proceeds (including instruments) received in respect of any Event of Eminent
Domain.


 


“Energy Hedge” means the ISDA Master
Agreement, Schedule to Master Agreement, Credit Support Annex to the Schedule
to the Master Agreement, Credit Support Annex (Elections and Variables) and
Confirmation, each dated as of June 11, 2008 by and between Borrower and
Energy Hedge Provider.


 


A-14

















 


“Energy Hedge Guarantor” means Constellation Energy Group, Inc.


 


“Energy  Hedge LC”
means one or more letters of credit to be issued pursuant to Section 2.2(a)(iii) of
the Financing Agreement.


 


“Energy Hedge Lien” has the meaning
given in Section 8.2 of the Financing Agreement.


 


“Energy Hedge Liquidity Reserve Requirement” means, at any time,
the mark to market value with respect to the credit support required to be
established by Borrower pursuant to the Energy Hedge, which mark to market
calculation shall be performed monthly by the Borrower and reported to
Administrative Agent.


 


“Energy Hedge Provider” means
Constellation Energy Commodities Group, Inc.


 


“Energy Hedge Reserve Account” has the
meaning given in Section 6(k) of the Account Control Agreement.


 


“Environmental Claim” means 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 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 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, 


 


A-15

















 


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.


 


“Environmental Consultant” means, with respect to the
Stetson I Project, Ransom Environmental Consultants, Inc., or with respect
to the Stetson II Project, Acadia Environmental Technology, or their respective
successors appointed pursuant to Section 13.1 of the Financing Agreement.


 


“Environmental Law” means any and all federal, state and
local statutes, Governmental Rules (including any Hazardous Substances
Law), regulations, ordinances, judgments, consent decrees, settlements, orders,
codes or injunctions and all common law, whenever enacted or in effect
concerning pollution, protection of human health, safety or the environment or
preservation or reclamation of natural and biological resources.


 


“Environmental Reports” means, with respect to the
Stetson I Project, (i) the Phase I Environmental Site Assessment (ESA)
Stetson Wind Project Township 8 Range 3 NBPP, Township 8 Range 4 NBPP, Carroll
Plantation, Prentiss Township, Webster Plantation, Kingman Township, Towns of
Mattawamkeag, Woodville & Chester, Maine, dated January 30, 2008,
(ii) Phase I Environmental Site Assessment (ESA) Provencher Property Town
of Chester, Penobscot County, Maine, dated September 24, 2007, (iii) Phase
I Environmental Site Assessment (ESA) Deloge Property Town of Chester,
Penobscot County, Maine, dated November 29, 2007, (iv) Phase I
Environmental Site Assessment (ESA) State of Maine/Haynes Timberland Exchange
Property Map 1, Lot 5, Webster Plantation and Map 8, Lot 1, Prentiss Township,
Penobscot County, Maine, dated June 20, 2008, (v) Phase I
Environmental Site Assessment (ESA) Ghost, Kazilionis & Coiro
Properties (Plan 6, Lot 17.1, Plan 1, Lot 11-10 & Portion of Plan 1,
Lots 11-8) Prentiss Township, Penobscot County, Maine, dated October 22, 


 


A-16

















 


2007, and (vi) Phase I Environmental Site
Assessment (ESA) Update Stetson Wind Project Township 8 Range 3 NBPP, Township
8 Range 4 NBPP, Carroll Plantation, Prentiss Township, Webster Plantation,
Kingman Township, Towns of Mattawamkeag, Woodville & Chester, Maine,
dated September 14, 2009, each prepared by Ransom Environmental
Consultants, Inc., and with respect to the Stetson II Project, the Phase I
Environmental Assessment Stetson II, T8 R4 NBPP, Washington County, Maine,
dated May 13, 2009, prepared by Acadia Environmental Technology.


 


“Equipment Purchase Agreement” means that certain 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 Wind II,
LLC, pursuant to that certain Assignment and Assumption Agreement, dated as of December 22,
2009, by and between First Wind Construction, LLC and Stetson Wind II, LLC.


 


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


 


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


 


“Estoppel Agreement” means the estoppels agreements executed
by the Landowners with respect to the Real Property Agreements, in the form of Exhibit F-6
to the Financing Agreement and otherwise satisfactory in content to the
Security Agent.


 


“Event of Default” and “Events of Default”
have the meanings given in Section 10.1 of the Financing Agreement.


 


“Event of Eminent Domain” means any compulsory transfer or
taking by 


 


A-17

















 


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


 


“Evergreen Wind Power V LLC Agreement”
means the First Amended and Restated Limited Liability Company Agreement of
Evergreen Wind Power  V, LLC, dated as of April 2, 2007, as amended
by that certain First Amendment to First Amended and Restated Limited Liability
Company Agreement of Evergreen Wind Power V, LLC, dated as of December 11,
2008, as modified by that certain Membership Interest Transfer Agreement of
Evergreen Wind Power V, LLC, dated as of July 17, 2009, as further
amended by that certain Second Amendment to First Amended and Restated Limited
Liability Company Agreement of Evergreen Wind Power V, LLC, dated as of July 17,
2009, and as further amended by that certain Third Amendment to First Amended
and Restated Limited Liability Company Agreement of Evergreen Wind Power V,
LLC, dated as of the date of the Financing Agreement.


 


“Excess Cash” means, for any applicable
time period, Project Revenues received, less paid
O&M Costs, less paid Debt Service, less amounts required for deposit into the Reserve Accounts
(pursuant to Section 6 of the Account Control Agreement), plus any amounts withdrawn from such Reserve Accounts.


 


“Exempt Wholesale Generator” or “EWG” means an “exempt wholesale generator,” as such term is
defined in PUHCA and the FERC’s regulations thereunder.


 


“Existing Stetson I Facilities” means
all obligations of Evergreen Wind Power V, LLC under that certain Financing
Agreement, dated as of July 17, 2009, by and among Evergreen Wind Power V,
LLC, as borrower, HSH Nordbank AG, New York Branch, as 


 


A-18

















 


arranger, administrative agent, security agent and
issuing bank, and the financial institutions party thereto as lenders, as
amended from time to time.


 


“Expiration Date” means, with respect to
any Letter of Credit, the date of expiration set forth therein.


 


“FDIC” means the Federal Deposit
Insurance Corporation.


 


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


 


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


 


“Fee Side Agreement”  means, collectively, the Lender Fee Side
Agreement and the Agency Fee Side Agreement.


 


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


 


“Financing Agreement” means that certain Financing Agreement,
dated as of December 22, 2009, by and among Borrower, Administrative
Agent, Issuing Bank, Security Agent, the Joint Lead Arrangers and the Lenders.


 


“Financing Documents” means the Financing Agreement, the
Notes, the Collateral Documents, the Fee Side Agreement, the Letters of Credit,
the Interest Rate Agreements, and any other documents, agreements or
instruments entered into in connection


 


A-19














 


with
any of the foregoing.


 


“Fixed Portion” means, at any time, the Term Loans that have
been hedged pursuant to Interest Rate Agreements in accordance with Section 3.9
of the Financing Agreement.


 


“Floating Portion” means, at any time, the Term Loans that
have been not hedged pursuant to Interest Rate Agreements.


 


“FPA” means the Federal Power Act, 16. U.S.C., Section 824 et seq.


 


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


 


“Gen Lead Account” has the meaning given in Section 6(j) of
the Account Control Agreement.


 


“Gen Lead Company” means Evergreen Gen Lead, LLC, a
wholly-owned indirect subsidiary of the Sponsor.


 


“GIS Administrator” has the meaning given in the
New England Power Pool Generation Information System Operating Rules.


 


“Governmental Authority” means any national, state or local
government (whether domestic or foreign), any political subdivision thereof or
any other governmental, quasi-governmental, judicial, public or statutory instrumentality,
authority, body, agency, bureau or entity, (including the Internal Revenue
Service, Department of Energy, any zoning authority, FERC, the FDIC, the
Comptroller of the Currency or the Federal Reserve Board, any central bank or
any comparable authority) or any arbitrator, any of which has the authority to
bind a party at law.


 


“Government Grant” means any cash grants
received by Borrower from the 


 


A-20

















 


United States government in respect of the Stetson
II Project pursuant to Section 1603 of the American Recovery and
Reinvestment Act of 2009.


 


“Government Grant Disallowance Event”
means any reduction, disallowance or invalidation in any Government Grant
received by Borrower or Stetson Wind II, LLC in respect of the Stetson II
Project, for any reason, including, without limitation, any misstatements,
misrepresentations or inaccuracies in the Government Grant application  filed in respect of the Stetson II Project.


 


“Government Grant Proceeds Account” has
the meaning given in Section 6(g) of the Account Control Agreement.


 


“Governmental Rule” means any law, rule, regulation,
ordinance, order, code interpretation, judgment, decree, directive, guideline,
policy (only to the extent that such guideline or policy is mandatory in
character) or similar form of decision of any Governmental Authority.


 


“Guaranty and Security Agreement” has the meaning given in Section 4.1(a)(iv) of
the Financing Agreement.


 


“Hazardous Substances” means, collectively, (a) any petroleum or
petroleum products, flammable materials, explosives, radioactive materials,
asbestos, urea formaldehyde foam insulation, and transformers or other
equipment that contain polychlorinated byphenyls, (b) any chemicals or
other materials or substances defined as or included in the definition of “hazardous
substances”, “hazardous wastes”, “hazardous materials”, “extremely hazardous
wastes”, “restricted hazardous wastes”, “toxic substances”, “toxic pollutants”,
“contaminants”, “pollutants” or words of similar import under any Environmental
Law and (c) any other chemical or other material or substance, exposure to
which is prohibited, limited or regulated or with 


 


A-21

















 


respect
to which liability or standards of conduct are imposed under any Environmental
Law.


 


“Hazardous Substances Law” means any and all federal, state
and local statutes, Governmental Rules, regulations, ordinances, judgments,
consent decrees, settlements, orders, codes or injunctions that impose
liability for or standards of conduct concerning the generation, manufacture,
processing, emission, distribution, use, treatment, storage, release or
threatened release, discharge, disposal, cleanup, transport, arrangement for
disposal or handling of Hazardous Substances including, but not limited to, the
Federal Water Pollution Control Act, as amended, the Resource Conservation and
Recovery Act of 1976 (RCRA), as amended, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (CERCLA), as amended, the
Toxic Substances Control Act (TSCA), as amended, and the Occupational Safety
and Health Act of 1970 (OSHA), as amended, to the extent it relates to the
handling of and exposure to Hazardous Substances.


 


“Hedge LC” means an Energy Hedge LC or a
REC Contract LC, as the case may be.


 


“Hedge LC Loan” has the meaning given in
Section 2.2(d)(v) of the Financing Agreement.


 


“Hedge LC Margin” has the meaning given in Section 7.3(q) of
the Financing Agreement.


 


“Improvements” means all buildings, structures and
improvements now located or later to be constructed on the Project Site or the
Transmission Lien Real Property Interests.


 


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


 


A-22

















 


“Indemnitees” has the meaning given in Section 7.23(a) of
the Financing Agreement.


 


“Independent Consultants” means, collectively, the Insurance
Consultant, the Independent Engineer, the Wind Consultant, the Power Market
Consultant and the Environmental Consultant, or their respective successors
appointed pursuant to Section 13.1 of the Financing Agreement.


 


“Independent Engineer” means Garrad Hassan America, Inc.,
or its successor
appointed pursuant to Section 13.1 of the Financing Agreement.


 


“Independent Engineer’s  Closing Certificate and
Report” has the meaning given in Section 5.1(p) of the
Financing Agreement.


 


“Insurance Consultant” means Moore McNeil, LLC, or
its successor appointed pursuant to Section 13.1 of the Financing
Agreement.


 


“Insurance Proceeds” means all amounts
and proceeds (including instruments) received by the Borrower or any Project
Company or with respect to the Projects, in respect of any insurance policy
maintained by Borrower, except for any proceeds from any business interruption
insurance policies maintained by Borrower thereunder.


 


“Interconnection Agreement” means, with respect to the Stetson
I Project, the Amended and Restated Standard Large Generator Interconnection
Agreement effective as of October 1, 2009, by and among ISO, Transmission
Owner, Evergreen Wind Power V, LLC and Gen Lead Company, and with respect to
the Stetson II Project, the Standard Large Generator Interconnection Agreement
effective as of October 1, 2009 by and among ISO, Transmission Owner,
Stetson Wind II, LLC and Gen Lead Company.


 


“Interest Fix Fees” has the meaning given in Section 3.9(b) of
the Financing 


 


A-23

















 


Agreement.


 


“Interest Payment Date” has the meaning
given in Section 2.1(b)(ii) of the Financing Agreement.


 


“Interest Period” has the meaning given in Section 2.1(c) of
the Financing Agreement.


 


“Interest Rate Agreements” has the meaning given in Section 3.9(a) of
the Financing Agreement.


 


“ISO” means the ISO New England, Inc.


 


“ISO Service Agreements” means (a) the Local Service
Agreement between Bangor Hydro-Electric Company, ISO and Evergreen Wind Power
V, LLC for long term Firm Local Point-to-Point Transmission Service, dated as
of January 12, 2009, (b) the Local Service Agreement between Bangor
Hydro-Electric Company, ISO and Evergreen Wind Power V, LLC for long term Firm
Local Point-to-Point Transmission Service, dated as of December 8, 2008, (c) the
Local Service Agreement between Bangor Hydro-Electric Company, ISO and Stetson
Wind II, dated as of June 26, 2009 for long term Non-Firm Local
Point-to-Point Transmission Service.


 


“Issuing Bank” means BNP Paribas, or any
successor pursuant to Section 2.6(f) of the Financing Agreement.


 


“Joint Lead Arranger” or “Joint Lead Arrangers”  means BNP
Paribas and HSH Nordbank AG, New York Branch.


 


“Landowners” means the counterparties to the Project
Companies under the Real Property Agreements.


 


“LC Commitment” means, at any time with
respect to BNP Paribas
and its 


 


A-24

















 


participants
and permitted assignees pursuant to Sections 12.14 and 12.15 of the Financing
Agreement, respectively, the Total LC Commitment.


 


“LC Commitment Fee” has the meaning
given in Section 3.3(e)(i) of the Financing Agreement.


 


“LC Exposure” means, for
any Letter of Credit, at any time, the sum of (a) the Stated Amount of
such Letter of Credit issued and outstanding at such time, plus (b) the
aggregate amount of all Reimbursement Obligations or LC Loans on any such
Letter of Credit, if any.


 


“LC Fees” means, collectively, the LC
Commitment Fees, LC Fronting Fee and the Letter of Credit Fees.


 


“LC Fronting Fee” has the meaning given
in Section 3.3(e)(iii) of the Financing Agreement.


 


“LC Issuance Period” means the period
commencing on the Closing Date and ending on the LC Loan Maturity Date.


 


“LC Loan” means each and any O&M
Reserve LC Loan, Debt Service Reserve LC Loan, Hedge LC Loan and Working
Capital LC Loan.


 


“LC Loan Maturity Date” means the earlier to occur of (a) five
(5) Business Days prior to the date that is seven (7) years from the
Closing Date; and (b) the date on which the entire outstanding
principal balance of
the LC Loans, together with all unpaid interest, fees, charges and costs,
become due and payable under the Financing Agreement.


 


“Lease” means, collectively, the Stetson
I Lease and the Stetson II Lease.


 


“Legal Requirements” means, as to any
Person, the articles of incorporation, by-laws or other organizational or
governing documents
of such Person, and any law, treaty, rule or 


 


A-25

















 


regulation,
including any Governmental Rule, any requirement under a Permit, and any
determination of any Governmental Authority in each case applicable to or
binding upon such Person or any of its properties or to which such Person or
any of its property is subject.


 


“Lender” or “Lenders” means
lenders from time to time party to the Financing Agreement as Lenders in
respect of the Term Loans, Bridge Loans, LC Loans and Letters of Credit.


 


“Lender Fee Side Agreement” means that certain Fee Letter,
dated as of the Closing Date, by and between the Administrative Agent, the
Joint Lead Arrangers, the Lenders and the Borrower.


 


“Lending Office” means the office designated as such beneath
the name of a Lender set forth on Exhibit I of the Financing Agreement or
such other office of such Lender as such Lender may specify in writing from
time to time to Administrative Agent and Borrower in accordance with the
Financing Agreement.


 


“Letter of Credit Fee” has the meaning
given in Section 3.3(e)(ii) of the Financing Agreement.


 


“Letters of Credit” means, collectively,
the O&M Reserve LC, the Debt Service Reserve LC, each Hedge LC and each
Working Capital LC.


 


“LIBO Rate” means, with respect to any
LIBO Rate Loan for any Interest Period, the rate appearing on Reuters BBA Libor
Rates Page 3750 (or on any successor or substitute page of such
service, or any successor to or substitute for such service, providing rate
quotations comparable to those currently provided on such page of such
service, as determined by the Administrative Agent from time to time for
purposes of providing quotations of interest rates applicable to dollar
deposits in the London interbank market at approximately 11:00 a.m. 


 


A-26

















 


(London, England time) two (2) Business Days
prior to the commencement of such Interest Period, as the rate for dollar
deposits with a maturity comparable to such Interest Period.


 


“LIBO Rate  Default Rate”
means, with respect to any LIBO Rate Loans outstanding from time to time, the
interest rate per annum equal to the LIBO Rate then in effect plus the
Applicable Margin plus 2.00% per annum.


 


“LIBO Rate
Loans” means Term
Loans that bear interest at a rate per annum determined by reference to the
LIBO Rate.


 


“Lien” on any asset means any mortgage, deed of trust, lien,
pledge, charge, security interest, restrictive covenant by Borrower, Member or
any Project Company or easement or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected or effective under
applicable law, as well as the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement
relating to such asset.


 


“Liquidation Costs” has the meaning given in Section 3.7
of the Financing Agreement.


 


“LLC Agreements” means, collectively, the (a) Borrower
LLC Agreement; (b) Evergreen Wind Power V LLC Agreement; (c) Stetson
Wind II LLC Agreement; and (d) Member LLC Agreement.


 


“Loan” and “Loans” means
the Term Loans and Bridge Loans.


 


“Loss Proceeds” means, collectively, the Eminent Domain
Proceeds and the Insurance Proceeds.


 


“Loss Proceeds Account”
has the meaning given in Section 6(f) of the Account Control
Agreement.


 


“Major Project Participants” means (a) Borrower; (b) Member;
(c) Sponsor; 


 


A-27

















 


(d) each
Project Company; (e) Operator;  (f) BOP Contractor while any warranties remain under
its applicable BOP Contract; (g) Energy Hedge Provider; (h) Energy
Hedge Guarantor; (i) ISO; (j) Turbine Supplier while any warranties
remain under a Turbine Supply Agreement, (k) Turbine Operator, (l) Transmission
Owner, (m) the power purchaser under the PPA, (n) REC Contracts
Counterparties, (o) First Wind Energy, LLC, (p) Waukesha Electric,
and (q) each other Person to a Material Project Document (except for
grantors under the Real Property Agreements), in each case, for so long as such
Person has obligations under such Material Project Document, and subject to any
other limitations set forth in this definition of Major Project Participant.


 


“Majority Lenders” means, subject to Section 2.6(c)(ii) of
the Financing Agreement, the Lenders having outstanding Loans representing at
least 66.67% of the aggregate amount of all outstanding Loans.


 


“Mandatory Prepayment” means a prepayment of Loans required
of Borrower pursuant to Section 3.2(c) of the Financing Agreement.


 


“Material Adverse Effect” means any event or occurrence of
whatever nature that could reasonably be expected to result in a material
adverse change in (a) the status of the business, results of operations or
condition (financial or otherwise) of Borrower, any Project Company or the
Project that affects the ability of Borrower to meet its financial obligations
under the Financing Agreement in a timely manner during the term of the Financing
Agreement, taking into consideration the scheduled repayment of the Loans and
payment of other Obligations under the Financing Documents; or (b) the
ability of Borrower to perform its respective material obligations under the
Operative Documents to which it is a party, or (c) with respect to the
Financing Documents, the validity or priority of the Lenders’ security
interests in, 


 


A-28

















 


and
Liens on, the Collateral and the continued effectiveness and enforceability of
the Collateral Documents.


 


“Material Project Documents” means the Energy Hedge, the
Interconnection Agreement, the ISO Service Agreements, the BOP Agreements, the
Turbine Supply Agreement, the Turbine Service Agreement, the O&M Service
Agreement, the PPA, the REC Contracts, the Real Property Agreements, the LLC
Agreements, the Shared Facilities Agreement, the Equipment Purchase Agreement
and the Project Administration Agreement, in each case unless and until any
such Material Project Document expires on its scheduled termination date
without being extended or is replaced with an Additional Project Document
pursuant to the applicable provisions of the Financing Agreement, and in the
case of the BOP Agreements and the Turbine Supply Agreement, upon the
expiration of any warranty periods thereunder.


 


“Maturity Date” means, as applicable, the Bridge Loan
Maturity Date, the LC Loan Maturity Date or the Term Loan Maturity Date.


 


“Member” means CSSW Stetson Holdings, LLC, a
Delaware limited liability company, and any subsequent transferee pursuant to Section 8.17
of the Financing Agreement.


 


“Member LLC Agreement” means the Limited Liability Company
Agreement of CSSW Stetson Holdings, LLC, a Delaware limited liability company,
dated as of December 7, 2009.


 


“Member Pledge and Security Agreement” has
the meaning given in Section 4.1(a)(iii) of the Financing Agreement.


 


“Minimum Debt Service Coverage Ratio” means a Debt Service
Coverage Ratio of a minimum of 1.20 to 1.00.


 


“Monthly Transfer Date”
means (a) December 31, 2009, (b) thereafter, the last


 


A-29














 


Business
Day of each succeeding calendar month, and (c) the Maturity Date.


 


“Moody’s” means Moody’s Investors Service, Inc., or, if
such credit rating agency terminates its activities, any other credit rating
agency acceptable to the Majority Lenders.


 


“Mortgage Documents” has the meaning given in Section 4.1(a)(i) of
the Financing Agreement.


 


“Mortgaged Property” has the meaning given to the term “Mortgaged
Property” in the granting clause of each Mortgage Document.


 


“MPUC” means the Maine Public Utilities Commission.


 


“Multiemployer Plan” means any ERISA Plan that is a
multiemployer plan (as defined in Section 4001(a)(3) of ERISA) to which
Borrower or any member of the Controlled Group is making, or has an obligation
to make, contributions, or has made, or has been obligated to make,
contributions since the date which is six (6) years immediately preceding
the Closing Date.


 


“Non-Recourse Party” has the meaning given in Article 11
of the Financing Agreement.


 


“Note” and “Notes”
have the meaning given in Section 2.1(f) of the Financing Agreement.


 


“Notice of Borrowing” has the meaning given in Section 2.5
of the Financing Agreement.


 


“Notice of Change of Law” has the meaning given in Section 3.6(b) of
the Financing Agreement.


 


“Notice of Inability to Determine Rates” has the meaning
given in Section 


 


A-30

















 


3.6(a) of
the Financing Agreement.


 


“Notice of LC Activity” has the meaning
given in Section 2.2(c) of the Financing Agreement.


 


“O&M Costs” means, for any period, all actual cash
operating and maintenance costs incurred and paid by Borrower or any Project
Company for such period, payments required under the Project Documents,
including under the Turbine Service Agreement and the O&M Service Agreement
for such period, costs for major maintenance for such period, local sales and
real estate taxes for such period, income tax (if any) for such period,
insurance premiums for such period, consumables, payments made in connection
with the requirements of any Permits or Legal Requirements for such period,
payments under any lease or any Real Property Agreement (including any royalty
or similar payments), reasonable legal, accounting and consulting fees, costs
and expenses paid by Borrower or any Project Company in connection with the
management, maintenance or operation of the Projects in accordance with the
Project Documents for such period whether performed by an Affiliate or the
Member, fees paid in connection with obtaining, transferring, maintaining or
amending any Applicable Permits and reasonable general and administrative
expenses for such period, but exclusive, in all cases, of non-cash charges,
including depreciation or obsolescence charges or reserves therefor,
amortization of intangibles or other bookkeeping entries of a similar nature,
and also exclusive of all debt service obligations of Borrower under the
Financing Documents.


 


“O&M Reserve Account” has the meaning given in Section 6(e) of
the Account Control Agreement.


 


“O&M Reserve LC” means the letter of
credit to be issued pursuant to Section 2.2(a)(i) of the Financing
Agreement.


 


A-31

















 


“O&M Reserve LC Loan” has the
meaning given in Section 2.2(d)(iii) of the Financing Agreement.


 


“O&M Reserve Requirement”
means $2,570,000.


 


“O&M
Service Agreement” means, collectively, (a) that certain Project
O&M Agreement, dated as of November 17, 2008, by and between Evergreen
Wind Power V, LLC and First Wind O&M, LLC; and (b) that certain
Project O&M Agreement, dated as of December 18, 2009, by and between
Stetson Wind II, LLC and First Wind O&M, LLC.


 


“Obligations” means, with respect to
Borrower or any Affiliated Participant (only to the extent of its obligations
under any Financing Document to which it is a party), all Loans, Reimbursement
Obligations and obligations of performance, howsoever arising (and whether
arising or incurred before or after any Bankruptcy Event), owed by Borrower or
any Affiliated Participant (only to the extent of its obligations under any Financing
Document to which it is a party) to the Agents, Issuing Bank, Joint Lead
Arrangers, the Lenders or Borrower’s counterparties under the Interest Rate
Agreements (whether or not evidenced by any note or instrument and whether or
not for the payment of money), direct or indirect, absolute or contingent, due
or to become due, now existing or hereafter arising, pursuant to the terms of
the Financing Agreement or any of the other Financing Documents, including all
principal, interest, Liquidation Costs, Interest Fix Fees, fees, charges,
expenses, attorneys’ fees and accountants’ fees chargeable and other amounts
payable by Borrower or any Affiliated Participant (only to the extent of its
obligations under any Financing Document to which it is a party) under the
Financing Agreement or any of the other Financing Documents.


 


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


 


A-32

















 


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


 


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


 


“OFAC Violation” has the meaning assigned to such term in Section 7.16(e) of
the Financing Agreement.


 


“Operating Account” has the meaning
given in Section 6(b) of the Account Control Agreement.


 


“Operative Documents” means the
Financing Documents and the Project Documents.


 


“Operator” means First Wind O&M,
LLC, or such other Person as shall be approved by Administrative Agent (acting
reasonably on instructions of the Majority Lenders) to operate the Project in
accordance with Section 7.12(b) of
the Financing Agreement.


 


“Optional Prepayment” means a prepayment of Loans at the
option of Borrower pursuant to the Financing Agreement, including, without
limitation, pursuant to Section 3.2(b) of the Financing Agreement.


 


“Other Taxes” has the meaning given in Section 3.4(d)(i) of
the Financing Agreement.


 


“P50 Production Level”
means the aggregate annual energy production level of the Projects that has a
probability of excedence of 50% over a one-year and ten-year period of 


 


A-33

















 


time, according to the Independent Engineer’s wind
production forecasts delivered to Administrative Agent.


 


“P99 Production Level”
means the aggregate annual energy production level of the Projects that has a
probability of excedence of 99% over a one-year period of time, according to
Independent Engineer’s wind production forecasts delivered to Administrative
Agent.


 


“Parts” means any part, appliance, instrument, appurtenance,
accessory or other personal property of any nature necessary or useful to the
operation, maintenance, service or repair of any Project.


 


“Patriot Act” has the meaning assigned
to such term in Section 6.40(a) of
the Financing Agreement.


 


“Payment Date” means (a) December 31, 2009, (b) thereafter,
the last Business Day of each succeeding six (6) month period, and (c) the
Maturity Date.


 


“PBGC” means the Pension Benefit Guaranty Corporation.


 


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


 


“Permitted Debt” means (a) the Loans and the other
Obligations; (b) trade or other similar indebtedness incurred in the
ordinary course of business in accordance with the Base Case Project
Projections; and (c) in addition to Debt expressly set forth in the Base
Case Project Projections, up to $100,000 of Debt incurred in the ordinary
course of business in a fiscal year or up to $250,000 of Debt in the aggregate
outstanding at any time incurred in the ordinary course of business.


 


“Permitted Encumbrances” has the meaning given in Section 5.1(ee)(i) of
the 


 


A-34

















 


Financing
Agreement.


 


“Permitted Investments” means investments in and agreements
reflecting such investments or executed to effectuate the same:


 


obligations issued or guaranteed by the United States
of America maturing or being due or payable in full not more than thirty (30)
days after Borrower’s acquisition thereof;


 


certificates of deposit, bankers acceptances and other
“money market instruments” issued by any Lender or a bank having capital and
surplus in an aggregate amount of not less than $500,000,000 and having the
following ratings: A or greater by S&P or A2 or greater by Moody’s, and, in
each case, maturing or being due or payable in full not more than one thirty
(30) days after Borrower’s acquisition thereof;


 


collateralized repurchase agreements entered into with
any bank or trust company organized under the laws of the United States of
America or any State thereof and having capital and surplus in an aggregate
amount of not less than $100,000,000 relating to United States of America
government obligations maturing or being due or payable in full not more than
thirty (30) days after Borrower’s acquisition thereof;


 


(i) tax exempt short-term securities having at
least the following ratings: A or greater by S&P or Prime or greater by
Moody’s; and (ii) tax exempt long-term securities having at least the
following ratings: A or greater by S&P or A2 or greater by Moody’s, in each
case maturing or being due or payable in full not more than thirty (30) days
after Borrower’s acquisition thereof;


 


money market funds for which the Securities
Intermediary or any of its Affiliates is investment manager or advisor; or


 


any other investments approved by Security Agent
(acting with the consent of the Majority Lenders).


 


“Permitted Liens” means (a) the Liens, rights and
interests of the Agents and other Secured Parties as provided in the Operative
Documents (including in the Collateral Documents); (b) Liens imposed by
any Governmental Authority for any taxes applicable to Borrower, for which
adequate reserves have been set aside therefor (as determined by the Security
Agent) or are either secured by a bond or other security reasonably acceptable
to 


 


A-35

















 


Administrative
Agent or not yet due or being contested in good faith and by appropriate
proceedings, so long as (i) such proceedings shall not involve any
substantial danger of the sale, forfeiture or loss of any Project, any material
portion of the Project Site or any Real Property Parcel, as the case may be,
title thereto or any interest therein and shall not interfere in any material
respect with the use or disposition of the Projects, any material portion of
the Project Site or any Real Property Parcel, or (ii) adequate reserves
have been set aside therefor (as determined by the Security Agent) or such bond
or other security acceptable to Administrative Agent in its sole discretion has
been posted or provided in such manner and amount as to assure Administrative
Agent that any taxes, assessments or other charges determined to be due will be
promptly paid in full when such contest is determined; (c) materialmen’s,
mechanics’, workers’, repairmen’s, employees’ or other like liens arising in
the ordinary course of business or, prior to the Commercial Operation Date, in
connection with the construction of the Stetson II Project, either for amounts
not yet due or for amounts being contested in good faith and by appropriate
proceedings so long as (i) such proceedings shall not involve any
substantial danger of the sale, forfeiture or loss of any part of the Stetson
II Project, any material portion of the Project Site or any Real Property
Parcel, as the case may be, title thereto or any interest therein and shall not
interfere in any material respect with the use or disposition of the Stetson II
Project, any material portion of the Project Site or any Real Property Parcel,
or (ii) adequate reserves have been set aside therefor (as determined by
the Security Agent) or a bond or other security acceptable to Administrative
Agent in its sole discretion has been posted or provided in such manner and
amount as to assure Administrative Agent that any amounts determined to be due
will be promptly paid in full when such contest is determined; (d) Permitted
Encumbrances; (e) Liens incurred in the ordinary course of business in
connection with worker’s compensation, 


 


A-36

















 


unemployment
insurance, social security and other Governmental Rules and that do not in
the aggregate, materially impair the use or the value of any Project; (f) Liens
arising out of judgments or awards so long as an appeal or proceeding for
review is being prosecuted in good faith and for the payment of which adequate
reserves in accordance with GAAP, bonds or other security acceptable to
Administrative Agent in its sole discretion have been provided or are fully
covered by insurance; (g) minor defects, easements, rights-of-way,
restrictions and other similar encumbrances incurred in the ordinary course of
business and encumbrances consisting of zoning restrictions, licenses,
restrictions on the use of property or minor imperfections in title which do
not impair the property affected thereby for the purpose for which title was
acquired or materially interfere with the operation of any Project as contemplated
by the Operative Documents; (h) mineral rights the use and enjoyment of
which do not materially interfere with the use and enjoyment of any Project or
any material portion of the Project Site; (i) Liens, deposits or pledges
to secure mandatory statutory obligations or performance of bids, tenders,
contracts (other than for the repayment of borrowed money) or leases, or for
purposes of like general nature in the ordinary course of Borrower’s business; (j) Liens
on assets, other than any real property assets, of Borrower related to any
Project, which assets have a fair market value of less than $250,000 in the
aggregate; (k) involuntary Liens (including a lien of an attachment,
judgment or execution) securing a charge or obligation, on any of Borrower’s
property, either real or personal, related to any Project, whether now or
hereafter owned in the aggregate sum of less than $250,000; (l) subject to
Section 8.4 of the Financing Agreement, a Lien granted to Security Agent
with respect to the ownership interests of the Project Companies in the Gen
Lead Company in connection with a Permitted Transmission Line Transfer; and (m) Energy
Hedge Lien if created in connection with documents executed pursuant to Section 8.2
of the Financing 


 


A-37

















 


Agreement..


 


“Permitted Transmission Line Transfer”
has the meaning given in Section 8.4 of the Financing Agreement.


 


“Person” means any natural person, corporation, limited
liability company, partnership, firm, association, Governmental Authority or
any other entity whether acting in an individual, fiduciary or other capacity.


 


“Placed in Service Date” means the date
on which (a) Turbine Mechanical Completion Certificates, or any
replacement certificate providing the same certifications, have been delivered
for the Turbines included in the Stetson II Project; (b) the Stetson II
Project has obtained all Applicable Permits required for its operation, and (c) the
Stetson II Project is interconnected and synchronized to the grid and capable
of producing electricity in commercial quantities.


 


“Plans and Specifications” means the plans and specifications for the
construction and design of the Stetson II Project, including any document
describing the scope of work performed by the BOP Contractor under the BOP
Agreement or any other contract or subcontract for the construction of the
Stetson II Project and any feeder lines and interconnections, all work
drawings, engineering and construction schedules, project schedules, project
monitoring systems, specifications status lists, material and procurement
ledgers, drawings and drawing lists, manpower allocation documents, management
and project procedures documents, project design criteria, and any other
document or software referred to in or utilized in connection with the BOP
Agreement or any of the documents referred to in this definition, as the same
may be amended to the extent permitted by the Financing Agreement.


 


“Pledged
Equity Interests”
means (a) all the issued and outstanding membership 


 


A-38

















 


interests
held by Member in Borrower and (b) all the issued and outstanding
membership interests held by Borrower in each Project Company.


 


“Power Market Consultant” means PACE Global Energy Services,
LLC, or its successor appointed pursuant to Section 13.1 of the Financing
Agreement.


 


“PPA” means that certain Power Purchase
Agreement between President and Fellows of Harvard College and Stetson Wind II,
LLC, dated as of September 29, 2009.


 


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


 


“Project Administration Agreement” means, collectively, (a) that
certain Management Services Agreement, dated as of July 17, 2009, by and
between Evergreen Wind Power V, LLC and First Wind Energy, LLC, and (b) that
certain Management Services Agreement, dated as of December 18, 2009, by
and between Stetson Wind II, LLC and First Wind Energy, LLC.


 


“Project Company” or “Project Companies” means Evergreen Wind Power V, LLC and/or
Stetson Wind II, LLC, as applicable.


 


“Project Documents” means the Material
Project Documents and the Additional Project Documents.


 


“Projected Debt Service Coverage Ratio”
means the ratio, calculated by the Administrative Agent, based on the financial
model utilized to create the Base Case Project Projections and applying each of
the P50 Production Level and the P99 Production Level, of (a) (i) Project
Revenues projected to be received by the Borrower or any Project Company from


 


A-39














 


the
ownership or operation of the Projects, less (ii) projected
O&M Costs, to (b) Debt Service, calculated for each quarterly period
during the remaining term under the Energy Hedge.


 


“Project Revenues” means all payments
received by Borrower or any Project Company from the ownership or operation of any Project, including (a) any
payments due to Borrower under the Energy Hedge and resulting from the
ownership of the Projects (including capacity payments) and all other income
derived from the sale or use of electric energy and renewable energy credits
generated by the Projects, (b) payments due to Borrower or any Project
Company under any Material Project Documents (including (i) any liquidated
damages due to Borrower or any Project Company under any BOP Agreement or the
Turbine Supply Agreement, (ii) warranty payments due to Borrower or any
Project Company under the Turbine Supply Agreement, and (iii) any warranty
payments due to Borrower or any Project Company under any BOP Agreement), (c) Loss
Proceeds of any business interruption insurance maintained by or on behalf of
Borrower or any Project Company, and (d) any net proceeds derived from the
sale of any property pertaining to any Project or incidental to the operation
of any Project to the extent allowed under the Financing Agreement; provided,
that Project Revenues shall not include (i) Loss Proceeds (other
than proceeds of any business interruption insurance), (ii) the investment
income on amounts on deposit in the Collateral Accounts, (iii) Government
Grants and (iv) amounts received by Evergreen Wind Power V, LLC in
connection with a Permitted Transmission Line Transfer.


 


“Project Site” means all property described in the Lease.


 


“Projects” means the Stetson I Project and the Stetson II
Project.


 


“Proportionate Share” means the percentages and amounts set
forth opposite such Lender’s name on Exhibit J to the Financing Agreement
to be prepared by Administrative 


 


A-40

















 


Agent
and attached to the Financing Agreement on the Closing Date, as such Exhibit J
may be amended and modified from time to time as a result of transfers of Loans
or LC Commitment by a Lender.


 


“Prudent Utility Practices” means those practices, methods,
equipment, specifications and standards of safety and performance, of which
there may be more than one, and as the same may change from time to time, as
are commonly used by wind energy generation facilities of a type and size
similar to any Project as good, safe and prudent engineering practices utilized
in connection with the design, construction, operation, maintenance, repair and
use of electrical and other equipment, facilities and improvements of such wind
energy generation facility, with commensurate standards of safety, performance,
dependability, and efficiency.


 


“PUHCA” means the Public Utility Holding
Company Act of 2005, as amended, and all FERC rules and regulations
adopted thereunder.


 


“Real Property Agreements”  means the Lease.


 


“REC Contracts” means: (a) the
Certificate Purchase Agreement, dated as of October 9, 2008, by and
between Evergreen Wind Power, LLC, as seller, and Massachusetts Electric
Corporation, as buyer, as assigned to Evergreen Wind Power V, LLC effective as
of April 24, 2009; (b) the 2010 Certificate Purchase Agreement, dated
as of August 18, 2009, by and between Evergreen Wind Power V, LLC, as
seller, and Massachusetts Electric Corporation, as buyer; (c) the Purchase
and Sale Agreement for Massachusetts Renewable Energy Credits, dated as of October 22,
2009, by and between Evergreen Wind Power V, LLC and Shell Energy North
America, LP; (d) the Renewable Energy Certificate Purchase Agreement, by
and between NSTAR Electric & Gas Corporation and Evergreen Wind Power
V, LLC, dated as of October 5, 2009; and (e) the Citigroup REC
Contract; and (f) the trade confirmation dated December 21, 


 


A-41

















 


2009, between Evergreen Wind Power V, LLC and Energy
America, LLC.


 


“REC Contracts Counterparties” means
each of the counterparties to the REC Contracts.


 


“REC  Contract LC”
means one or more letters of credit to be issued pursuant to Section 2.2(a)(iii) of
the Financing Agreement.


 


“Regulation D” means Regulation D of the Federal Reserve
Board (or any successor).


 


“Reimbursement Obligation” means
Borrower’s obligation to repay any Drawing Payments under any Letter of Credit
(together with interest accrued and unpaid thereon) as provided in Section 2.2(d) of
the Financing Agreement.


 


“Reimbursement Payments” means a payment
made by or on behalf of Borrower in partial or complete satisfaction of a
Reimbursement Obligation.


 


“Release” means disposing, discharging, injecting, spilling,
leaking, leaching, dumping, pumping, pouring, emitting, escaping, emptying,
seeping, migrating, placing, abandonment and the like, into or upon any land or
water or air, or otherwise entering into the environment.


 


“Replacement Obligor” means, with respect to any Person party
to a Project Document, any Person satisfactory to Administrative Agent (with
the consent of the Majority Lenders) who, pursuant to any definitive agreement
or definitive guaranty satisfactory to Administrative Agent (with the consent
of the Majority Lenders) assumes the obligation of providing the services
and/or products on terms and conditions no less favorable to Borrower or any
Project Company than those which such Person being replaced is obligated to
provide pursuant to the applicable Project Document.


 


A-42

















 


“Required Applicable Lenders” has the meaning given in Section 12.7
of the Financing Agreement, subject to Section 2.6(c)(ii) of the
Financing Agreement.


 


“Reserve
Accounts” means the Debt Service Reserve Account and the O&M Reserve
Account.


 


“Reserve Requirement”
means, at any time, the maximum rate at which reserves (including any marginal,
special, supplemental, or emergency reserves) are required to be maintained
under regulations issued from time to time by the Federal Reserve Board by
member banks of the Federal Reserve System against “Eurocurrency liabilities”
(as such term is used in Regulation D). 
Without limiting the effect of the foregoing, the Reserve Requirement
shall reflect any other reserves required to be maintained by such member banks
with respect to (a) any category of liabilities which includes deposits by
reference to which the LIBO Rate with respect to LIBO Rate Loans is to be
determined, or (b) any category of extensions of credit or other assets
which include LIBO Rate Loans.


 


“Restoration Conditions” means in the
event Borrower wishes to restore any Project or the Project Site affected by an
Event of Eminent Domain or any event of loss for which Borrower or any Project
Company has received Loss Proceeds in an amount in excess of $1,500,000,
Borrower has promptly delivered to the Administrative Agent a Restoration Plan
and, such Restoration Plan has been approved by the Lenders and the
Administrative Agent in their sole discretion, in consultation with the
Independent Engineer; provided, however, that to the extent the
Restoration Plan is otherwise approved as set forth above and prior to the
receipt of such Loss Proceeds from the relevant insurance company, the Borrower
may use Borrower Equity to restore the Project or the Project Site affected by
such Event of Eminent Domain or event of loss and, following such restoration
to the satisfaction of the Administrative Agent (acting in consultation with
the Independent Engineer), the Borrower may be subsequently reimbursed in an
amount up to the Loss Proceeds, if any, actually received in the Loss Proceeds
Account with respect to such Event of Eminent Domain or event of loss, as
applicable.


 


“Restoration Plan” means a plan,
certified by an authorized officer of Borrower, 


 


A-43

















 


for the restoration of the affected portion of any
Project, demonstrating that: (i) the sum of the aggregate amounts of Loss
Proceeds in respect of such event available to the Borrower (including in
respect of any deductible for which Borrower is responsible) are anticipated to
be sufficient to restore the affected portion of such Project to the condition
then required or contemplated under the applicable Project Document prior to
the occurrence of such event, (ii) all Applicable Permits required for the
restoration work have been obtained or can be expected to be obtained in due
course and are or can be expected to be free of any burdensome conditions, and (iii) the
restoration work will not result in a termination, cancellation, revocation or other
invalidity or impairment of any Applicable Permit or any Project Documents then
in effect that could, individually or in the aggregate, be reasonably expected
to have a Material Adverse Effect.


 


“Revenue Account” has the meaning given
in Section 6(a) of the Account Control Agreement.


 


“S&P” means Standard & Poor’s Ratings Group, a
division of the McGraw-Hill Companies, Inc., or, if such credit rating
agency terminates its activities, any other credit rating agency acceptable to
the Lenders.


 


“Scheduled Repayment Amount” means the repayment amounts of
the Term Loans and Bridge Loans corresponding to each Payment Date as set forth
in the Amortization Schedule and as adjusted from time to time pursuant to Section 3.2(a) of
the Financing Agreement.


 


“Secured Parties” means, collectively, the Lenders, the
Agents, the Issuing Bank, the Arranger, Securities Intermediary and Borrower’s
counterparties to the Interest Rate Agreements.


 


A-44

















 


“Securities Intermediary” means SunTrust Bank, a
Georgia corporation, in its capacity as the Securities Intermediary under the
Account Control
Agreement, or its successor appointed pursuant to the terms of the Financing
Agreement and the Account Control Agreement.


 


“Security Agent” means BNP Paribas, acting in its capacity as
Security Agent for the Secured Parties under the Financing Agreement, or any
successor appointed pursuant to the terms of the Financing Agreement.


 


“Shared Facilities Agreement” means that certain Shared Facilities
Agreement, by and between Evergreen Wind Power V, LLC and Stetson Wind II, LLC,
dated as of December 22, 2009.


 


“Sponsor” means First Wind Holdings, LLC, a
Delaware limited liability company.


 


“Sponsor Equity” means the equity required to be contributed
by Sponsor in respect of the Projects in an amount equal to $95,962,382.


 


“Sponsor Indemnity Agreement” means the
Indemnity Agreement dated as of the date of the Financing Agreement, by the
Sponsor in respect of certain indemnity obligations arising out of a Government
Grant Disallowance Event.


 


“State” means (a) any state of the United States of
America or (b) the District of Columbia.


 


“Stated Amount” means, with regard to
any Letter of Credit, the total amount available to be drawn under such Letter
of Credit at the time in question in accordance with the terms of such Letter
of Credit and the Financing Agreement.


 


“Stetson I Holding Account” has the meaning given in Section 6(h) of
the 


 


A-45

















 


Account
Control Agreement.


 


“Stetson I Lease” means that certain Land Lease Agreement, dated October 12,
2006, by and between Lakeville Shores, Inc. and Evergreen Wind Power V,
LLC, 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.


 


“Stetson I Project” means the approximately 57 megawatt
nameplate capacity wind generation project comprised of Turbines, turbine
towers, tower-mounted transformers, feeder lines, transmission lines,
substations, switches, meteorological towers and related facilities, situated
in Washington County, Maine, together with all buildings, structures or
improvements erected on the land subject to the Stetson I Real Property
Interests, all alterations thereto or replacements thereof, all fixtures,
attachments, appliances, equipment, machinery and other articles attached
thereto or used in connection therewith and all Parts which may from time to
time be incorporated or installed in or attached thereto, all contracts and
agreements for the purchase or sale of commodities or other personal property
related thereto, all leases of real or personal property related thereto, and
all other real and tangible and intangible personal property owned by Borrower
and placed upon or used in connection with the generation of electricity upon
the Project Site.


 


“Stetson I Real Property Interests” means the Stetson I
Lease, as described in Exhibit H-8A to the Financing Agreement.


 


“Stetson I Reed Agreement” means that
certain Stetson Wind Power Project Construction Works Contract No. EWPV-07-02,
dated as of December 31, 2007, by and between Evergreen Wind Power V, LLC,
and Reed & Reed, Inc., as Contractor, as amended by Change Order
Number 001, dated as of August 15, 2008, as further amended by Change
Order Number 


 


A-46

















 


002, dated as of November 9, 2008, as further
amended by Change Order Number 003, dated as of November 11, 2008, and as
further amended by Change Order Number 004, dated as of January 28, 2008.


 


“Stetson II Lease” means that certain Amended and Restated Land Lease
Agreement, dated as of December 26, 2008, by and between Lakeville Shores, Inc.
and Stetson Wind II, LLC, as amended by that certain First Amendment dated as
of June 30, 2009.


 


“Stetson II Prepayment” means an amount
equal to the sum of (i) the outstanding Bridge Loans and (ii) the
outstanding Term Loans allocated to the Stetson II Project, as determined
pursuant to Section 10.1(n) of the Financing Agreement by the
Administrative Agent (taking into account all debt sizing requirements
contemplated in the Debt Sizing Base Case).


 


“Stetson II Project” means the approximately 25.5 megawatt nameplate
capacity wind generation project comprised of Turbines, turbine towers,
tower-mounted transformers, feeder lines, transmission lines, substations,
switches, meteorological towers and related facilities, situated in Washington
County, Maine, together with all buildings, structures or improvements erected
on the land subject to the Stetson II Real Property Interests, all alterations
thereto or replacements thereof, all fixtures, attachments, appliances,
equipment, machinery and other articles attached thereto or used in connection
therewith and all Parts which may from time to time be incorporated or
installed in or attached thereto, all contracts and agreements for the purchase
or sale of commodities or other personal property related thereto, all leases
of real or personal property related thereto, and all other real and tangible
and intangible personal property owned by Borrower and placed upon or used in
connection with the generation of electricity upon the Project Site.


 


A-47

















 


“Stetson II Real Property Interests” means the Stetson II
Lease and other easement interests, as described in Exhibit H-8B to the
Financing Agreement.


 


“Stetson II Reed Agreement” means 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.


 


“Stetson II Turbine Supply Loan” means
the Fourth Amended and Restated Secured Promissory Note, dated as of July 17,
2009, between First Wind Acquisition, LLC and HSH Nordbank AG, New York Branch.


 


“Stetson Wind II LLC Agreement” means the Limited Liability
Company Agreement of Stetson Wind II, LLC, dated July 3, 2007, as amended
by that certain First Amendment to Limited Liability Company Agreement of
Stetson Wind II, LLC, dated December 11, 2008, and as further amended by
that certain Second Amendment to Limited Liability Company Agreement of Stetson
Wind II, LLC, dated as of the date of the Financing Agreement.


 


“Subject Companies” has the meaning given in Section 6.19(a) of
the Financing Agreement.


 


“Subject Persons” has the meaning given in Section 10.1(d) of
the Financing Agreement.


 


“Substitutable Lender” has the meaning given in Section 12.13
of the Financing Agreement.


 


“Taxes” has the meaning given in Section 3.4(d)(i) of
the Financing Agreement.


 


A-48

















 


“Term Loan” and “Term Loans”
have the meaning
given in Section 2.1(a) of the Financing Agreement.


 


“Term Loan Commitment Fees” has the meaning given in Section 3.3(d)(i) of
the Financing Agreement.


 


“Term Loan Maturity Date” means the earlier to occur of (a) seven
(7) years from the Closing Date; and (b) the date on which the entire
outstanding principal
balance of the Term Loans, together with all unpaid interest, fees, charges and
costs, become due and payable under the Financing Agreement.


 


“Terrorism Order” has the meaning assigned to such term in Section 6.40(a) of the
Financing Agreement.


 


“Title Insurer” means Stewart Title Guaranty Company.


 


“Title Policy” means that certain policy of the title
insurance issued by the Title Insurer as provided in Section 5.1(ee) of
the Financing Agreement, including all amendments thereto, endorsements thereof
and substitutions or replacements therefor.


 


“Total Bridge Loan Commitment” means the
aggregate amount of $18,632,891.16, as set forth in Section 2.4(c) of
the Financing Agreement.


 


“Total Commitment” means the (i) Total Term Loan
Commitment plus (ii) Total Bridge Loan
Commitment plus (c) Total LC Commitment,
as set forth in Section 2.4(a) of the Financing Agreement.


 


“Total LC Commitment” has the meaning
given in Section 2.4(a) of the Financing Agreement.


 


“Total Term Loan Commitment” means the
aggregate amount of $71,000,000, as set forth in Section 2.4(b) of
the Financing Agreement.


 


A-49














 


“Transmission Consultant” means Nexant Inc.


 


“Transmission Line Real Property Interests”
means those real property interests set forth in Exhibit H-9 to the
Financing Agreement.


 


“Transmission Owner” means Bangor Hydro-Electric Company.


 


“Turbine” means each GE 1.5sle MW wind turbine generator used
in any Project, conforming to the specifications for such model set forth in
the Turbine Supply Agreement.


 


“Turbine Operator” means General Electric
International Incorporated.


 


“Turbine Service Agreement” means Operations Support Agreement, dated
as of June 27, 2008, between General Electric International Incorporated,
as Operator, and Evergreen Wind Power V, LLC, as Owner.


 


“Turbine Supplier” means General Electric Company.


 


“Turbine Supply Agreements” means, collectively,
(a) the Contract for the Sale of Power Generation Equipment and Related
Services (Stetson), dated as of June 4, 2007, between First Wind
Acquisition, LLC, as Buyer, and General Electric Company, as Seller (“GE”), 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, as amended by that External
Change Order No. 4, Revision No. 1, dated as of the 8th day of August, 2008, and as amended by that
External Change Order No. 5, dated as of July 14, 2009, as assigned
to Evergreen Wind Power V, LLC, pursuant to that certain Assignment and
Assumption Agreement, dated July 17, 2009. and (b) Contract for 


 


A-50

















 


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 Stetson Wind II, LLC, pursuant to that certain Assignment and
Assumption Agreement, dated as of the date of the Financing Agreement.


 


“UCC” means the Uniform Commercial Code of the jurisdiction the law of
which governs the document in which such term is used or which governs the
creation or perfection of the Liens granted thereunder.


 


“Upwind Array” means a single Upwind Turbine
or wind energy project and all Upwind Turbines located thereon.


 


“Upwind Array Event” means the erection of
an Upwind Turbine owned by Borrower or any Affiliate thereof that is not
included in the Projects, which related Upwind Array could reasonably be
expected to have a material adverse impact on the power output of any Project,
as determined by the Independent Engineer (but in no event will a loss of power
output of 2% of the power output of any Project or less be considered a
material adverse impact).


 


“Upwind Turbine” means a
wind turbine generator that is located upwind of the Projects and within a
radius of 15 rotor diameter of a WTG comprising a part of any Project.


 


“Waukesha Electric” means Waukesha
Electric Systems, Inc., a Wisconsin corporation.


 


“Wind Consultant” means AWS Truewind,
LLC, or its successor appointed pursuant to Section 13.1 of the Financing
Agreement.


 


A-51

















 


“Withholding Certificate (Effectively Connected)”
has the meaning given in Section 3.4(e) of the Financing Agreement.


 


“Withholding Certificate (Portfolio Interest)”
has the meaning given in Section 3.4(e) of the Financing Agreement.


 


“Withholding Certificate (Treaty)” has
the meaning given in Section 3.4(e) of
the Financing Agreement.


 


“Working Capital LC” means one or more
letters of credit to be issued pursuant to Section 2.2(a)(iv) of the
Financing Agreement.


 


“Working Capital LC Loan” has the
meaning given in Section 2.2(d)(vi) of the Financing Agreement.


 


A-52

















 


RULES OF INTERPRETATION


 


1.                                       The singular includes the plural and the
plural includes the singular.


 


2.                                       The word “or” is not exclusive.


 


3.                                       A reference to a Governmental Rule includes
any amendment or modification to such Governmental Rule, and all regulations,
rulings and other Governmental Rules promulgated under such Governmental
Rule.


 


4.                                       A reference to a Person includes its
successors and permitted assigns.


 


5.                                       Accounting terms have the meanings
assigned to them by GAAP, as applied by the accounting entity to which they
refer.


 


6.                                       The words “include,” “includes” and “including”
are not limiting.


 


7.                                       A reference in a document to an Article,
Section, Exhibit, Schedule, Annex or Appendix is to the Article, Section,
Exhibit, Schedule, Annex or Appendix of such document unless otherwise
indicated.  Exhibits, Schedules, Annexes
or Appendices to any document shall be deemed incorporated by reference in such
document.


 


8.                                       References to any document, instrument or
agreement (a) shall include all exhibits, schedules and other attachments
thereto, (b) shall include all documents, instruments or agreements issued
or executed in replacement thereof, and (c) shall mean such document,
instrument or agreement, or replacement or predecessor thereto, as amended,
modified and supplemented from time to time and in effect at any given time.


 


9.                                       The words “hereof,” “herein” and “hereunder”
and words of similar import when used in any document shall refer to such
document as a whole and not to any particular provision of such document.  The words “will” and “shall” are used
interchangeably with the same meaning.


 


10.                                 References to “days” shall mean calendar
days, unless the term “Business Days” shall be used.  References to a time of day shall mean such
time in New York, New York, unless otherwise specified.


 


11.                                 The Financing
Documents are the result of negotiations between, and have been reviewed by
Borrower, the Affiliated Participants, the Agents, Issuing Bank, each Lender
and their respective counsel. 
Accordingly, the Financing Documents shall be deemed to be the product
of all parties thereto, and no ambiguity shall be construed in favor of or
against Borrower, the Affiliated Participants, Issuing Bank, any Agent or any
Lender.


 


1

















 


EXHIBIT
B-1


to
Financing Agreement


 


	
   

  	
  Note No.

  



 


FORM OF
NOTE


 


	
  $

  	
   

  
	
   

  	
  Dated as of

  



 


For value received,
the undersigned Stetson Holdings, LLC, a Delaware limited liability company (“Borrower”),
promises to pay to                   , (“Lender”)
for the account of its applicable Lending Office specified in the Financing
Agreement referred to below, in lawful money of the United States of America
and in immediately available funds, the principal amount of                      DOLLARS ($                    ), or if less, the
aggregate unpaid and outstanding principal amount of this Note advanced by
Lender to Borrower pursuant to the Financing Agreement, dated as of December [    ],
2009 (the “Financing Agreement”), by and among  BNP Paribas 
as Joint Lead Arranger, Joint Bookrunner, Administrative
Agent, Security Agent, and Issuing Bank, and HSH Nordbank AG, New
York Branch as Joint Lead Arranger, Joint Bookrunner, Co-Syndication Agent
and the certain lenders (“Lenders”) party thereto.


 


This is one of the
Notes referred to in the Financing Agreement and is entitled to the benefits
thereof and is subject to all terms, provisions and conditions thereof.  Capitalized terms used and not defined herein
shall have the meanings set forth in Exhibit A to the Financing Agreement.


 


This Note is made in
connection with and is secured by, among other instruments, the provisions of
the Mortgage Documents, the Member Pledge and Security Agreement, the Borrower
Security and Pledge Agreement, the Account Control Agreement and the other
Collateral Documents.  Reference is
hereby made to the Financing Agreement, the Mortgage Documents, the Member
Pledge and Security Agreement, the Borrower Security and Peldge Agreement, the
Account Control Agreement and the other Collateral Documents for the
provisions, among others, with respect to the custody and application of the
Collateral, the nature and extent of the security provided thereunder, the
rights, duties and obligations of Borrower and the rights of the holder of this
Note.


 


The principal amount
hereof is payable in accordance with the Financing Agreement, and such
principal amount may be prepaid solely in accordance with the Financing
Agreement.


 


Borrower authorizes
Lender to record on the schedule annexed to this Note, the date and amount of
each Loan made by Lender, each payment or prepayment of principal thereunder
and agrees that all such notations shall constitute prima facie evidence of the matters noted in the absence of
demonstrable error.  Borrower further
authorizes Lender to attach to and make a part of this Note continuations of
the schedule attached thereto as necessary. 
No failure to make any 


 


Exhibit B-1


 


2

















 


such
notations, nor any errors in making any such notations, shall affect the
validity of Borrower’s obligations to repay the full unpaid and outstanding
principal amount of the Loans.


 


Borrower further
agrees to pay, in lawful money of the United States of America and in
immediately available funds, interest from the date hereof on the unpaid and
outstanding principal amount hereof until such unpaid and outstanding principal
amount shall become due and payable (whether at stated maturity, by
acceleration or otherwise) at the rates of interest and at the times set forth
in the Financing Agreement.


 


If any payment on this
Note becomes due and payable on a date which is not a Business Day, such payment
shall be made on the succeeding, or next preceding, Business Day, in accordance
with the terms of the Financing Agreement.


 


Upon the occurrence of
any one or more Events of Default, all amounts then remaining unpaid on this
Note may become or be declared to be immediately due and payable as provided in
the Financing Agreement and other Financing Documents, without notice of
default, presentment or demand for payment, protest or notice of nonpayment or
dishonor, or notices or demands of any kind, all of which are expressly waived
by Borrower.


 


Recourse under this
Note shall be limited to that expressly set forth in Article 11 of the
Financing Agreement.


 


Borrower agrees to pay
all costs and expenses, including without limitation reasonable attorneys’ fees
and Liquidation Costs incurred in connection with the enforcement of this Note,
in accordance with the Financing Agreement.


 


Except as permitted by
the Financing Agreement, this Note may not be assigned by Lender to any other
person.  Transfer of this Note may be
effected only by a surrender of the Note by Lender and either reissuance of the
Note or issuance of a new Note by Borrower to the new lender.


 


This Note has been
executed and delivered in and shall be construed and interpreted in accordance
with and governed by the laws of the State of New York without reference to
conflicts of laws other than Section 5-1401 and 5-1402 of the New York
General Obligations Law.


 


[SIGNATURE
TO FOLLOW]


 


Exhibit B-1


 


3

















 


	
   

  	
   

  	
  STETSON HOLDINGS, LLC

  
	
   

  	
   

  	
  a Delaware limited
  liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  



 


Exhibit B-1


 


4

















 


	
   

  	
   

  	
   

  	
   

  	
  Prepayment or

  	
   

  	
  Outstanding

  	
   

  
	
  Date

  	
   

  	
  Advance

  	
   

  	
  Repayment

  	
   

  	
  Balance

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Exhibit B-1


 


5

















 


EXHIBIT
C

to Financing Agreement


 


[Reserved]


 


Exhibit C


 


1

















 


EXHIBIT
D-1


to
Financing Agreement


 


[Reserved]


 


Exhibit D-1


 


1














 


EXHIBIT
D-2


to
Financing Agreement


 


[Reserved]


 


Exhibit D-2


 


1

















 


EXHIBIT
D-3

to Financing Agreement


 


FORM OF CONFIRMATION OF
INTEREST PERIOD SELECTION


 


TO:                                                                            BNP
Paribas, as Administrative Agent


 


FROM:                                                         Stetson Holdings, LLC, a
Delaware limited liability company (“Borrower”)


 


DATE:                                         


 


1.                                       This
Confirmation of Interest Period Selection is delivered to you pursuant to Section 2.1(c) of
the Financing Agreement, dated as of December [    ],
2009 by and among  BNP
Paribas  as Joint Lead Arranger, Joint
Bookrunner, Administrative Agent, Security Agent, and Issuing Bank,
and HSH Nordbank AG, New York Branch as Joint Lead Arranger, Joint
Bookrunner, Co-Syndication Agent and the certain lenders
(“Lenders”) party thereto (as amended, amended and restated,
supplemented and modified from time to time, the “Financing Agreement”).  All defined terms set forth herein shall have
the meanings specified in Exhibit A to the Financing Agreement.


 


2(a)                            We
hereby confirm with respect to the [Base Rate Loan/LIBO Rate Loan] in the
principal amount of
$                                        ,
that the applicable rate of interest is herby changed to a [LIBO Rate Loan/Base
Rate Loan], and we have selected a new Interest Period in respect of the new
[LIBO Rate Loan/Base Rate Loan], effective as
of                        ,
20    , as specified below:


 


Interest Period(1):


 


2(b)                           We
hereby confirm with respect to the LIBO Rate Loan in the principal amount of
$                                        ,
the current Interest Period with respect to which ends on
                        ,
20     and as such, we have selected a new Interest Period
in respect of such LIBO Rate Loan effective as of                        ,
20    , as specified below:


 


Interest Period:(2)


 


[SIGNATURE
TO FOLLOW]


 






(1) Paragraph 2(a) is
applicable in the event of a change from a Base Rate Loan to a LIBO Rate Loan
or a LIBO Rate Loan to a Base Rate Loan.


(2) Paragraph
2(b) is applicable in the event of a selection of a new Interest period of
a LIBO Rate Loan.


 


Exhibit D-3


 


1

















 


	
   

  	
  Yours very truly,

  
	
   

  	
   

  	
   

  
	
   

  	
  STETSON HOLDINGS, LLC,

  a
  Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Exhibit D-3


 


2

















 


EXHIBIT
D-4

to Financing Agreement


 


FORM OF NOTICE OF
BORROWING


 


Date: 
[            
    ], 2009


 


BNP Paribas


787 Seventh Avenue


New York, NY 10019


Attention:


Telephone:


Facsimile:


 


Re: Stetson Wind Farm Project


 


Ladies and Gentlemen:


 


This Notice of Borrowing is delivered to you pursuant to Sections 2.5
and [5.2(a)] of the Financing Agreement, dated as of December [    ],
2009 by and among  BNP
Paribas  as Joint Lead Arranger, Joint
Bookrunner, Administrative Agent, Security Agent, and Issuing Bank, and HSH Nordbank AG, New York
Branch as Joint Lead Arranger, Joint Bookrunner, Co-Syndication Agent and the
certain lenders (“Lenders”) party thereto (as amended, amended and
restated, supplemented and modified from time to time, the “Financing
Agreement”).  All capitalized terms
used herein shall have the respective meanings specified in Exhibit A to
the Financing Agreement unless otherwise defined herein or unless the context
requires otherwise.


 


This Notice of Borrowing constitutes a request for [Term Loans]/[Bridge
Loans] as follows:


 


1.                                       The proposed Closing Date is
[          ], 2009.


 


The aggregate amount of
[Term Loans]/[Bridge Loans] is
$[                    ],
of which amount $[                          ]
will be the aggregate principal amount of LIBO Rate Loans. Pursuant to Section 2.1(c) of
the Financing Agreement, Borrower hereby requests an irregular Interest Period
for this LIBO Rate Loan with an expiration date of [                            ].]


 


The undersigned does hereby certify as of the
date hereof that:


 


2.                                       Each representation and warranty set
forth in Article 6 of the Financing Agreement is true and correct in all
material respects as if made on the date hereof (unless such 


 


Exhibit D-4


 


1

















 


representation or
warranty relates solely to an earlier date, in which case it shall have been
true and correct in all material respects as of such earlier date).


 


3.                                       No Event of Default or Inchoate Default with
respect to any Affiliated Participant has occurred and is continuing or will
result from the funding of the Loans and to the knowledge of Borrower, no
Inchoate Default with respect to any Major Project Participant that is not an
Affiliated Participant has occurred and is continuing or will result from the
funding of the Loans.


 


4.                                       Neither Borrower nor Member is in default
under any material term of any Operative Document or any other agreement or
instrument relating to any obligation of Borrower and Member for or with
respect to borrowed money, as applicable.


 


[SIGNATURE TO FOLLOW]


 


Exhibit D-4


 


2

















 


The undersigned further confirms and certifies to each
Lender that, as of Closing Date, all conditions precedent to the Closing Date
set forth in Section 5.1 of the Financing Agreement have all been
satisfied or waived in accordance with the terms of the Financing Agreement.


 


	
   

  	
  STETSON HOLDINGS, LLC,

  
	
   

  	
  a Delaware limited
  liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Exhibit D-4


 


3

















 


EXHIBIT
D-5


to
Financing Agreement


 


FORM OF
PENDING DISBURSEMENTS CLAUSE


 


Pending disbursement of
the full proceeds of the loan secured by the Mortgage or Deed of Trust
described in Schedule A, this Policy insures only to the extent of the amount
actually disbursed which on the date hereof 
is
                                        .  This Policy insures against loss or damage
which results from claims of mechanics’ or materialmen’s liens arising from
non-payment of bills for labor performed or material furnished prior to December 22,
2009, except any such liens or notices thereof as may be recited under Schedule
B hereof.  At the time of each
disbursement of proceeds of the loan, an endorsement to this Policy must be
secured increasing the amount insured hereunder up to the face amount of the
Policy, and re-dating the Policy, all endorsements attached thereto, and the
date set forth in the immediate preceding sentence to the date of the relevant
disbursement, subject to the following requirements being met before issuance
of such endorsement: (a) a title search is made by the Company that
reveals no liens, objections or any adverse changes in title, with the Company
reserving the right to take as an exception any liens, objections or any
adverse changes in title revealed by such (b) the contractor and owner
furnish the Company satisfactory paid bills, lien waivers, estoppel
certificates and other evidence that all items, from which a lien might arise,
have been paid or otherwise satisfied, and (c) the Owner and Contractor
furnish the Company satisfactory Affidavit and Indemnity Agreement (s) as
to the matters referred to in (b) above. 
This Policy does not insure against mechanics’ and materialmen’s liens
for labor performed and materials furnished subsequent to the last date to
which mechanics’ lien coverage has been extended, nor does this Policy insure
completion of the improvements in progress, or their compliance with plans and
specifications.  The Company in no way
guarantees the sufficiency of the mortgage proceeds as adequate to complete
improvements.  Notwithstanding any other
language contained in the insuring provisions of this Policy, the above
provisions are the sole provision applicable to coverage for loss or damage
resulting from mechanics’ or materialmen’s liens or claims not of record.


 


Exhibit D-5


 


1

















 


EXHIBIT
E-1


to
Financing Agreement


 


FORM OF
MORTGAGE DOCUMENTS


 


(See Tab      )


 

















 


Penobscot and Washington Counties, Maine


 






 


MORTGAGE, ASSIGNMENT OF RENTS, SECURITY

AGREEMENT AND FIXTURE FILING


 


BY


 


EVERGREEN WIND POWER V, LLC,

as Mortgagor


 


TO


 


BNP PARIBAS, as Security Agent,

as Mortgagee


 


Relating to Premises in:


 


Penobscot and Washington Counties, Maine


 


DATED:  As of December 22,
2009


 






 


This instrument was prepared

by and after recording should be returned to:


 


Milbank, Tweed, Hadley & McCloy LLP

601 South Figueroa Street, 30th Floor

Los Angeles, CA 90017

Attn:  Allan T. Marks


 

















 


MORTGAGE, ASSIGNMENT OF RENTS, SECURITY

AGREEMENT AND FIXTURE FILING


 


KNOW ALL PERSONS BY THESE PRESENTS:


 


THIS MORTGAGE, ASSIGNMENT OF RENTS, SECURITY
AGREEMENT AND FIXTURE FILING (this “Mortgage”) is made as of December 22,
2009 by EVERGREEN WIND POWER V, LLC, a limited liability company duly organized
and validly existing under the laws of the State of Delaware and having an
office at c/o First Wind Energy, LLC, 179 Lincoln Street, Suite 500,
Boston, MA 02111 (the “Mortgagor”), in favor of BNP PARIBAS, having
an office at 787 Seventh Avenue, New York, New York 10019, as
Security Agent for the Secured Parties party to the Loan Agreement referred to
below (in such capacity, together with its successors in such capacity, the “Mortgagee”).


 


W I T N E S S E T H:


 


WHEREAS, Stetson Holdings, LLC, as borrower (the “Borrower”),
BNP Paribas, HSH Nordbank AG, New York Branch and other financial institutions
who later become a party thereto (collectively, the “Lenders”), HSH
Nordbank AG, New York Branch, in its capacity as Joint Lead Arranger, and BNP
Paribas, in its capacities as Joint Lead Arranger, as Administrative Agent for
the Lenders, as Security Agent for the Secured Parties, and as Issuing Bank,
are the parties to a Financing Agreement dated as of December 22, 2009 (as
modified, supplemented, further amended and amended and restated and in effect
from time to time, being herein called the “Loan Agreement”; except as
otherwise herein expressly provided, all terms defined in the Loan Agreement
being used herein as defined therein), which Loan Agreement provides for
extensions of credit to be made by the Lenders to the Borrower as set forth
therein in an original aggregate amount up to but not exceeding the Commitment,
for extensions of credit (the “Loans”).


 


WHEREAS the Mortgagor expects to receive benefits
from the extensions of credit pursuant to the Loan Agreement.


 


WHEREAS, pursuant to that certain Guaranty and
Security Agreement, dated as of December 22, 2009 as modified,
supplemented, amended and amended and restated and in effect from time to time,
being herein called the “Security Agreement”), the Mortgagor has
unconditionally secured the principal of and interest on the Loans made by the
Lenders to the Borrower and all other amounts from time to time owing to the
Lenders by the Borrower under the Loan Documents (as hereinafter defined);


 


WHEREAS, it is a condition to the obligation of the
Lenders to extend credit to the Borrower pursuant to the Loan Agreement that
the Mortgagor execute and deliver this Mortgage;


 


NOW, THEREFORE, for good and valuable consideration,
the receipt of which is hereby acknowledged, and FOR THE PURPOSE OF SECURING
the following (collectively, the “Obligations”):


 


1.     the
obligations of the Mortgagor in respect of its guarantee under the Security
Agreements,


 














 


2.     the
performance and payment of the covenants, agreements and obligations
hereinafter contained and contained in the Security Agreement,


 


3.     the
performance and payment of the covenants, agreements and obligations
hereinafter contained and contained in the Loan Agreement and the other Loan
Documents and all other monies secured hereby, including, without limitation,
any and all sums expended by the Mortgagee pursuant to Section 1.09,
together with interest thereon, and


 


4.     the
payment of all other obligations of the Borrower and Mortgagor to the Lenders
under the Loan Documents,


 


the Mortgagor hereby irrevocably grants, bargains,
sells, releases, conveys, warrants, assigns, transfers, mortgages, pledges,
sets over and confirms unto the Mortgagee, under and subject to the terms and
conditions hereinafter set forth, the land and premises (the “Land”)
described in the deeds to Mortgagor identified in Exhibit A,
together with the easement rights (the “Easement Rights”) described in
the assignment and easement deeds to Mortgagor identified in Exhibit B,
the Land and the Easement Rights being hereinafter collectively called the “Property”;


 


TOGETHER WITH all interests, estates or other
claims, both in law and in equity, that the Mortgagor now has or may hereafter
acquire in (a) the Property, (b) all easements, rights-of-way and
rights used in connection therewith or as a means of access thereto, including
(without limitation) the access easements identified in Exhibit D
and (c) all tenements, hereditaments and appurtenances
in any manner belonging, relating or appertaining thereto (all of the foregoing
interests, estates and other claims being hereinafter collectively called “Access
Easements and Rights of Way”); and


 


TOGETHER WITH all estate, right, title and interest
of the Mortgagor, now owned or hereafter acquired, in and to any land lying
within the right-of-way of any streets, open or proposed, adjoining the
Property, and any and all sidewalks, alleys and strips and gores of land
adjacent to or used in connection therewith (all of the foregoing estate,
right, title and interest being hereinafter called “Adjacent Rights”);
and


 


TOGETHER WITH all estate, right, title and interest
of the Mortgagor, now owned or hereafter acquired, in and to any and all
buildings and other improvements now or hereafter located on the Land or on the
land burdened by the Easement Rights and all building materials, building
equipment and fixtures of every kind and nature located on the Land or on the
land burdened by the Easement Rights or, attached to, contained in or used in
any such buildings and other improvements (including, without limitation,
substations, transmission lines, collection lines, microwave towers and
ancillary facilities), and all appurtenances and additions thereto and
betterments, substitutions and replacements thereof (all of the foregoing
estate, right, title and interest being hereinafter collectively called “Improvements”);
and


 


TOGETHER WITH all estate, right, title and interest
of the Mortgagor in and to all such tangible property now owned or hereafter
acquired by the Mortgagor (including but not limited to any and all machinery,
apparatus, equipment, fittings, partitions, ducts, shafts, pipes, radiators,
conduits, wiring, floor coverings, awnings, motors, engines, boilers, stokers,
pumps, dynamos, 


 

















 


transformers, turbines, generators, fans,
blowers, vents, switchboards, elevators, escalators, compressors, furnaces,
cleaning equipment, call and sprinkler systems, fire extinguishing apparatus,
water and other tanks, heating, ventilating, plumbing, incinerating, air
conditioning and air cooling systems and water, gas, telephone,
telecommunications, telemetry and electric equipment and articles of personal
property) now or hereafter located on or at or attached to the Land or on the
land burdened by the Easement Rights such that an interest in such tangible
property arises under applicable real estate law, and any and all products and
accessions to any such property that may exist at any time (all of the foregoing
estate, right, title and interest, and products and accessions being
hereinafter called “Fixtures”); and


 


TOGETHER WITH all estate, right, title and interest
of the Mortgagor in and to all rights, royalties and profits in connection with
all minerals, oil and gas and other hydrocarbon substances on or in the
Property, development rights or credits, air rights, water, water rights
(whether riparian, appropriative, or otherwise and whether or not appurtenant)
and water stock (all of the foregoing estate, right, title and interest being
hereinafter collectively called “Mineral and Related Rights”); and


 


TOGETHER WITH all reversion or reversions and
remainder or remainders of the Property and Improvements and all estate, right,
title and interest of the Mortgagor in and to any and all present and future
leases of space in the Property and Improvements, and all rents, revenues,
proceeds, issues, profits, royalties, income and other benefits now or
hereafter derived from the Property, the Improvements and the Fixtures, subject
to the right, power and authority hereinafter given to the Mortgagor to collect
and apply the same (all of the foregoing reversions, remainders, leases of
space, rents, revenues, proceeds, issues, profits, royalties, income and other
benefits being hereinafter collectively called “Rents”); and


 


TOGETHER WITH all estate, right, title and interest
and other claim or demand that the Mortgagor now has or may hereafter acquire
with respect to any damage to the Property, the Improvements or the Fixtures
and any and all proceeds of insurance in effect with respect to the
Improvements or the Fixtures, including, without limitation, any title
insurance, and any and all awards made for the taking by eminent domain, or by
any proceeding or purchase in lieu thereof, of the Property, the Improvements
or the Fixtures, including without limitation any awards resulting from a
change of grade of streets or as the result of any other damage to the
Property, the Improvements or the Fixtures for which compensation shall be
given by any governmental authority (all of the foregoing estate, right, title
and interest and other claims or demand, and any such proceeds or awards being
hereinafter collectively called “Damage Rights”); and


 


TOGETHER WITH all estate, right, title and interest
of the Mortgagor in respect of any and all air rights, development rights,
zoning rights or other similar rights or interests that benefit or are
appurtenant to the Property or the Improvements (including, but not limited to,
any and all wind energy and wind flow rights, noise buffer rights, development
rights, option rights or similar or comparable rights of any nature whatsoever
now or hereafter appurtenant to the Property or now or hereafter transferred to
the Property) (all of the foregoing estate, right, title and interest being
hereinafter collectively called “Air and Development Rights”); and


 


TOGETHER WITH all estate, right, title and interest
of the Mortgagor in and to the agreements identified in Exhibit C
attached hereto, and all other agreements heretofore or 


 

















 


hereafter entered into relating to the
construction, ownership, operation, management or use of the Property or
Improvements, to the fullest extent that the same or any interest therein may
be legally assigned by Mortgagor (collectively, the “Agreements”); and


 


TOGETHER WITH all estate, right, title and interest
of the Mortgagor in and to the permits identified in Exhibit E
attached hereto, and all other building permits, governmental permits,
licenses, variances, conditional or special use permits, and other
authorizations now or hereafter issued in connection with the construction,
development, ownership, operation, management or use of the Property or
Improvements, to the fullest extent that the same or any interest therein may
be legally assigned by Mortgagor (collectively, the “Permits”).


 


All of the foregoing Access Easements and Rights of
Way, Adjacent Rights, Improvements, Fixtures, Mineral and Related Rights,
Rents, Damage Rights, Air and Development Rights, Agreements and Permits being
sometimes hereinafter referred to collectively as the “Ancillary Rights and
Properties” and the Land, the Easement Rights, and Ancillary Rights and
Properties being sometimes hereinafter referred to collectively as the “Mortgage
Estate”;


 


TO HAVE AND TO HOLD the Mortgage Estate with all
privileges and appurtenances thereunto belonging, to the Mortgagee and its
successors and assigns, forever, upon the terms and conditions and for the uses
hereinafter set forth;


 


PROVIDED ALWAYS, that if the principal of and
interest on the Loans under the Loan Agreement and all of the other Obligations
shall be paid in full, and the Borrower shall abide by and comply with each and
every covenant contained herein and in the Loan Agreement, then this Mortgage
and the Lien and estate hereby granted shall cease, terminate and become void.


 


This Mortgage, the Loan Agreement and any other
instrument given to evidence or further secure the payment and performance of
any Obligation are sometimes hereinafter collectively referred to as the “Loan
Documents.”


 


TO PROTECT THE SECURITY OF THIS MORTGAGE, THE
MORTGAGOR HEREBY COVENANTS AND AGREES AS FOLLOWS:


 


ARTICLE 1


 


Particular
Covenants and Agreements of the Mortgagor


 


Section 1.01.          Payment of Secured Obligations.  The Mortgagor shall pay when due all
Obligations in respect of its guarantee under the Collateral Documents.


 

















 


Section 1.02.          Title, Etc.  The Mortgagor represents and warrants that
the Mortgagor is lawfully seized and possessed of a valid and subsisting fee
simple interest in the Land, is the owner of the Easement Rights, and is the
owner of the related Ancillary Rights and Properties, in each case subject to
no mortgage, deed of trust, lien, pledge, charge, security interest or other
encumbrance or adverse claim of any nature, except those permitted under the
Loan Agreement.


 


The Mortgagor represents and warrants that it has
the full power and lawful authority to grant, bargain, sell, release, convey,
warrant, assign, transfer, mortgage, pledge, set over and confirm unto the
Mortgagee the Mortgage Estate as hereinabove provided.


 


Section 1.03.          Further Assurances; Filing;
Re-Filing; Etc.


 


(a)           Further
Instruments.  The Mortgagor shall
execute, acknowledge and deliver, from time to time, such further instruments
as the Mortgagee may reasonably require to accomplish the purposes of this
Mortgage.


 


(b)           Filing
and Re-Filing.  The Mortgagor,
immediately upon the execution and delivery of this Mortgage, and thereafter
from time to time, shall cause this Mortgage, any security agreement or
mortgage supplemental hereto and each instrument of further assurance to be
filed, registered or recorded and re-filed, re-registered or re-recorded in
such manner and in such places as may be required by any present or future law
in order to publish notice of and perfect the Lien or estate of this Mortgage
upon the Mortgage Estate.


 


(c)           Fees
and Expenses.  The Mortgagor shall
pay all filing, registration and recording fees, all re-filing, re-registration
and re-recording fees, and all expenses incident to the execution, filing,
recording and acknowledgment of this Mortgage, any security agreement or
mortgage supplemental hereto and any instrument of further assurance, and all
Federal, state, county and municipal stamp taxes and other taxes, duties,
imposts, assessments and charges arising out of or in connection with the
execution, delivery, filing and recording of this Mortgage or any of the other
Loan Documents, any security agreement or mortgage supplemental hereto or any
instruments of further assurance.


 


Section 1.04.          Intentionally Omitted.


 


Section 1.05.          Insurance.  The Mortgagor will maintain insurance, with
respect to the Mortgage Estate, in accordance with the Loan Agreement.


 


Section 1.06.          Casualty and Condemnation Events.


 


(a)           Casualty
and Condemnation.  Should the
Mortgage Estate or any part thereof be taken or damaged by reason of any fire
or other casualty (collectively, a “Casualty”), or by reason of any
public improvement or condemnation proceeding (collectively, a “Condemnation”)
or should the Mortgagor receive any notice or other information regarding any
such proceeding, such Casualty, Condemnation or notice or other information
regarding any such proceeding shall be handled in accordance with the Loan
Agreement.


 

















 


Section 1.07.          Impositions.  The Mortgagor shall pay or cause to be paid
all taxes, assessments, water and sewer rates, utility charges and all other
governmental or non-governmental charges assessed or levied against any part of
the Mortgage Estate or upon the Lien or estate of the Mortgagee therein in
accordance with the Loan Agreement.


 


Section 1.08.          Limitations of Use.  Except as otherwise permitted under the Loan
Documents, the Mortgagor shall comply in all material respects with the
provisions of all leases, licenses, agreements and private covenants,
conditions and restrictions that at any time are applicable to the Mortgage
Estate.


 


Section 1.09.          Actions to Protect Mortgage Estate.  If the Mortgagor shall fail to (a) perform
and observe any of the terms, covenants or conditions required to be performed
or observed by it under the instruments conveying the Easement Rights to
Mortgagor identified in Exhibit B, or perform and observe any of
the terms, covenants or conditions required to be performed or observed by it
under the Agreements identified in Exhibit C, (b) effect the
insurance required by and as provided in Section 1.05, (c) make the
payments required by Section 1.07 or (d) perform or observe any of
its other covenants or agreements hereunder, the Mortgagee may, without
obligation to do so, and upon notice to the Mortgagor (except in an emergency)
effect or pay the same.  To the maximum
extent permitted by law, all sums, including reasonable attorneys’ fees and
disbursements, so expended or expended to sustain the Lien or estate of this
Mortgage or its priority, or to protect or enforce any of the rights hereunder,
or to recover any of the Obligations, shall be a Lien on the Mortgage Estate,
shall be deemed to be added to the Obligations secured hereby, and shall be
paid by the Mortgagor within 10 days after demand therefor,
together with interest thereon at the default rate provided for in the Loan
Agreement.


 


Section 1.10.          Estoppel
Certificates.  The Mortgagor, within
ten days after written request therefor, shall
furnish the Mortgagee a written statement, duly acknowledged, of the amount of
the Obligations then secured by this Mortgage and whether to their knowledge
any offsets or defenses exist against any such Obligations.


 


ARTICLE 2


 


Assignment
of Rents, Issues and Profits


 


Section 2.01.          Assignment of Rents, Issues and
Profits.  The Mortgagor hereby
assigns and transfers to the Mortgagee, FOR THE PURPOSE OF SECURING the
Obligations, all Rents, and hereby gives to and confers upon the Mortgagee the
right, power and authority to collect the same. 
The Mortgagor irrevocably appoints the Mortgagee its true and lawful
attorney-in-fact, at its option at any time and from time to time following the
occurrence and during the continuance of a Default, to demand, receive and
enforce payment, to give receipts, releases and satisfactions, and to sue, in
the name of the Mortgagor or otherwise, for Rents and apply the same to the
Obligations as provided in paragraph (a) of Section 4.03; provided,
however, that the Mortgagor shall have the right to collect Rents at any
time prior to the occurrence of a Default (but not more than one month in
advance, except in the case of security deposits).


 

















 


Section 2.02.          Collection Upon Default.  To the extent permitted by law, upon the
occurrence of any Default, the Mortgagee may, at any time without notice,
either in person, by agent or by a receiver appointed by a court, and without
regard to the adequacy of any security for the Obligations or the solvency of
the Mortgagor, enter upon and take possession of the Property, the Improvements
and the Fixtures or any part thereof, in its own name, sue for or otherwise
collect Rents including those past due and unpaid, and, apply the same, less
costs and expenses of operation and collection, including attorneys’ fees and
disbursements, to the payment of the Obligations as provided in paragraph (a) of
Section 4.03, and in such order as the Mortgagee may determine.  The collection of Rents or the entering upon
and taking possession of the Property, the Improvements or the Fixtures or any
part thereof, or the application thereof as aforesaid, shall not cure or waive
any Default or notice thereof or invalidate any act done in response to such
Default or pursuant to notice thereof.


 


ARTICLE 3


 


Security
Agreement


 


Section 3.01.          Creation
of Security Interest.  The Mortgagor
hereby grants to the Mortgagee a security interest in the Fixtures for the
purpose of securing the Obligations.  The
Mortgagee shall have, in addition to all rights and remedies provided herein
and in the other Loan Documents, all the rights and remedies of a secured party
under the Uniform Commercial Code of the state in which the applicable
portion of the Fixtures is located.  The
Mortgagor represents and warrants to the Mortgagee that the Mortgagor has an
interest of record in the real property on which the Fixtures are located, and
the organizational identification number of the Mortgagor is 90-0197266.Section 3.02            Warranties,
Representations and Covenants.  The
Mortgagor hereby warrants, represents and covenants that:  (a) the Fixtures will be kept on or at
the Property and the Mortgagor will not remove any Fixtures from the Property,
except as permitted under the Loan Documents and except such portions or items
of the Fixtures that are consumed or worn out in ordinary usage, all of which
shall be promptly replaced by the Mortgagor, except as otherwise expressly
provided in the Loan Documents, (b) all covenants and obligations of the
Mortgagor contained herein relating to the Mortgage Estate shall be deemed to
apply to the Fixtures whether or not expressly referred to herein and (c) this
Mortgage constitutes a security agreement and “fixture filing” as those terms
are used in the applicable Uniform Commercial Code.  The Mortgagor is the “Debtor” and its name
and mailing address are set forth on Page 1 hereof.  The Mortgagee is the “Secured Party” and its
name and mailing address from which information relative to the security
interest created hereby are also set forth on Page 1 hereof.  The information provided in this Section 3.02
is provided so that this Mortgage shall comply with the requirements of the
Uniform Commercial Code as in effect in the state in which the Mortgage
Estate is located for a mortgage instrument to be filed as a financing
statement.


 


Defaults; Remedies


 


Section 4.01.          Defaults.  If any Event of Default (herein, a “Default”)
under the Loan Agreement shall occur and be continuing and, as more
particularly provided in the Loan Agreement, the principal of and accrued
interest on the extensions of credit and all other Obligations under the Loan
Agreement shall be declared, or become, due and payable, then the


 

















 


obligations of the Mortgagor
under the Security Agreement shall become due and payable, without presentment,
demand, protest or other formalities of any kind, all of which have been waived
pursuant to the Loan Agreement.Default
Remedies.


 


Section 4.02           Default Remedies.


 


(a)           Remedies
Generally.  If a Default shall have
occurred and be continuing, this Mortgage may, to the maximum extent permitted
by law, be enforced, and the Mortgagee may exercise any right, power or remedy
permitted to it hereunder, under the Loan Agreement or under any of the other
Loan Documents or by law, and, without limiting the generality of the
foregoing, the Mortgagee may, personally or by its agents, to the maximum
extent permitted by law:


 


(i)    enter
into and take possession of the Mortgage Estate or any part thereof, exclude
the Mortgagor and all persons claiming under the Mortgagor whose claims are
junior to this Mortgage, wholly or partly therefrom,
and use, operate, manage and control the same either in the name of the
Mortgagor or otherwise as the Mortgagee shall deem best, and upon such entry,
from time to time at the expense of the Mortgagor and the Mortgage Estate, make
all such repairs, replacements, alterations, additions or improvements to the
Mortgage Estate or any part thereof as the Mortgagee may deem proper and,
whether or not the Mortgagee has so entered and taken possession of the
Mortgage Estate or any part thereof, collect and receive all Rents and apply
the same to the payment of all expenses that the Mortgagee may be authorized to
make under this Mortgage, the remainder to be applied to the payment of the
Obligations until the same shall have been repaid in full; if the Mortgagee
demands or attempts to take possession of the Mortgage Estate or any portion
thereof in the exercise of any rights hereunder, the Mortgagor shall promptly
turn over and deliver complete possession thereof to the Mortgagee; and


 


(ii)   personally or by agents,
with or without entry, if the Mortgagee shall deem it advisable:


 


(x)            sell the Mortgage Estate at a sale or sales held at such
place or places and time or times and upon such notice and otherwise in such
manner as may be required by law, or, in the absence of any such requirement,
as the Mortgagee may deem appropriate, and from time to time adjourn any such
sale by announcement at the time and place specified for such sale or for such
adjourned sale without further notice, except such as may be required by law;


 


(y)           proceed to protect and enforce its rights under this
Mortgage, by suit for specific performance of any covenant contained herein or
in the Loan Documents or in aid of the execution of any power granted herein or
in the Loan Documents, or for the foreclosure of this Mortgage (as a mortgage
or otherwise) and the sale of the Mortgage Estate under the judgment or decree
of a court of competent jurisdiction, or for the enforcement of any other right
as the Mortgagee shall deem most effectual for such purpose, provided,
that in the event of a sale, by foreclosure or otherwise, of less than all of
the Mortgage Estate, this Mortgage shall continue as a Lien on, and security
interest in, the remaining portion of the Mortgage Estate; or


 

















 


(z)            exercise any or all of the remedies available to a
secured party under the applicable Uniform Commercial Code, including,
without limitation:


 


(1)   either personally or by
means of a court appointed receiver, take possession of all or any of the
Fixtures and exclude therefrom the Mortgagor and all
persons claiming under the Mortgagor, and thereafter hold, store, use, operate,
manage, maintain and control, make repairs, replacements, alterations,
additions and improvements to and exercise all rights and powers of the
Mortgagor in respect of the Fixtures or any part thereof; if the Mortgagee
demands or attempts to take possession of the Fixtures in the exercise of any
rights hereunder, the Mortgagor shall promptly turn over and deliver complete
possession thereof to the Mortgagee;


 


(2)   without notice to or demand
upon the Mortgagor, make such payments and do such acts as the Mortgagee may
deem necessary to protect its security interest in the Fixtures, including,
without limitation, paying, purchasing, contesting or compromising any
encumbrance that is prior to or superior to the security interest granted
hereunder, and in exercising any such powers or authority paying all expenses
incurred in connection therewith;


 


(3)   require the Mortgagor to
assemble the Fixtures or any portion thereof, at a place designated by the
Mortgagee and reasonably convenient to both parties, and promptly to deliver
the Fixtures to the Mortgagee, or an agent or representative designated by it;
the Mortgagee, and its agents and representatives, shall have the right to
enter upon the premises and property of the Mortgagor to exercise the Mortgagee’s
rights hereunder; and


 


(4)   sell, lease or otherwise
dispose of the Fixtures, with or without having the Fixtures at the place of
sale, and upon such terms and in such manner as the Mortgagee may determine
(and the Mortgagee or any Lender may be a purchaser at any such sale).


 


(b)           Appointment
of Receiver.  If a Default shall have
occurred and be continuing, the Mortgagee, to the maximum extent permitted by
law, shall be entitled, as a matter of right, to the appointment of a receiver
of the Mortgage Estate, without notice or demand, and without regard to the
adequacy of the security for the Obligations or the solvency of the
Mortgagor.  The Mortgagor hereby
irrevocably consents to such appointment and waives notice of any application therefor.  Any such
receiver or receivers shall have all the usual powers and duties of receivers
in like or similar cases and all the powers and duties of the Mortgagee in case
of entry and shall continue as such and exercise all such powers until the date
of confirmation of sale of the Mortgage Estate, unless such receivership is
sooner terminated.


 


(c)           Rents.  If a Default shall have occurred and be
continuing, the Mortgagor shall, to the maximum extent permitted by law, pay
monthly in advance to the Mortgagee, or to


 

















 


any
receiver appointed at the request of the Mortgagee to collect Rents, the fair and
reasonable rental value for the use and occupancy of the Property, the
Improvements and the Fixtures or of such part thereof as may be in the
possession of the Mortgagor.  Upon
default in the payment thereof, the Mortgagor shall vacate and surrender possession
of the Property, the Improvements and the Fixtures to the Mortgagee or such
receiver, and upon a failure so to do may be evicted by summary proceedings.


 


(d)        Sale.  In any sale
under any provision of this Mortgage or pursuant to any judgment or decree of
court, the Mortgage Estate, to the maximum extent permitted by law, may be sold
in one or more parcels or as an entirety and in such order as the Mortgagee may
elect, without regard to the right of the Mortgagor or any person claiming
under the Mortgagor to the marshalling of assets.  The purchaser at any such sale shall take
title to the Mortgage Estate or the part thereof so sold free and discharged of
the estate of the Mortgagor therein, the purchaser being hereby discharged from
all liability to see to the application of the purchase money.  Any person, including Mortgagee or any
Lender, may purchase at any such sale. 
Upon the completion of any such sale by virtue of this Section 4.02
the Mortgagee shall execute and deliver to the purchaser an appropriate
instrument that shall effectively transfer all of the Mortgagor’s estate,
right, title, interest, property, claim and demand in and to the Mortgage
Estate or portion thereof so sold, but without any covenant or warranty,
express or implied.  The Mortgagee is
hereby irrevocably appointed the attorney-in-fact of the Mortgagor in its name
and stead to make all appropriate transfers and deliveries of the Mortgage
Estate or any portions thereof so sold and, for that purpose, the Mortgagee may
execute all appropriate instruments of transfer, and may substitute one or more
persons with like power, the Mortgagor hereby ratifying and confirming all that
such attorneys or such substitute or substitutes shall lawfully do by virtue
hereof.  Nevertheless, the Mortgagor
shall ratify and confirm, or cause to be ratified and confirmed, any such sale
or sales by executing and delivering, or by causing to be executed and
delivered, to the Mortgagee or to such purchaser or purchasers all such
instruments as may be advisable, in the judgment of the Mortgagee, for such
purpose, and as may be designated in such request.  Any sale or sales made under or by virtue of
this Mortgage, to the extent not prohibited by law, shall operate to divest all
the estate, right, title, interest, property, claim and demand whatsoever,
whether at law or in equity, of the Mortgagor in, to and under the Mortgage
Estate, or any portions thereof so sold, and shall be a perpetual bar both at
law and in equity against the Mortgagor and against any and all persons
claiming or who may claim the same, or any part thereof, by, through or under
the Mortgagor.  The powers and agency
herein granted are coupled with an interest and are irrevocable.


 


(e)           Possession
of Loan Documents Not Necessary.  All
rights of action under the Loan Documents and this Mortgage may be enforced by
the Mortgagee without the possession of the Loan Documents and without the
production thereof at any trial or other proceeding relative thereto.


 


(f)            Power
of Sale.  This Mortgage is on the
STATUTORY CONDITION and upon the further condition of full and seasonable
compliance of the Mortgagor with all of the terms, conditions, covenants and
agreements set forth herein, for any breach of which the Mortgagee and its
successors and assigns shall have the right of foreclosure and any and all
other rights and remedies given to a mortgagee and secured party under the law
of Maine, this Mortgage and any document it secures.  This Mortgage is given primarily for a
business,


 

















 


commercial
or agricultural purpose.  Mortgagor,
therefore, agrees that the Mortgagee and its successors and assigns shall have “THE
STATUTORY POWER OF SALE” pursuant to the applicable provisions of
Titles 14 and 33 of the Maine Revised Statutes of 1964, as said
Statutes have been and shall be amended, which POWER is expressly incorporated
herein by reference.  Mortgagor hereby
represents that the Mortgagor is a limited liability company, and the Mortgagor
is not the trustee of a trust.  Such
Statutory Power of Sale shall be in addition to all rights and remedies set
forth herein or available under applicable law.


 


Section 4.03.          Application of Proceeds.


 


(a)           Application
of Proceeds Generally.  The proceeds
of any sale made either under the power of sale hereby given or under a
judgment, order or decree made in any action to foreclose or to enforce this
Mortgage, or of any monies held by the Mortgagee hereunder shall, to the
maximum extent permitted by law, be applied:


 


(i)    first
to the payment of all costs and expenses of such sale, including the Mortgagee’s
reasonable attorneys’ fees and disbursements;


 


(ii)   then to the payment of all
charges, expenses and advances incurred or made by the Mortgagee in order to
protect the Lien and estate of this Mortgage or the security afforded hereby;


 


(iii)  then to the payment in full
of the Obligations, ratably in accordance with the respective amounts then due
and owing or as the Lenders may otherwise agree;


 


and after payment in full of all Obligations any
surplus remaining shall be paid to the Mortgagor or to whomsoever may be
lawfully entitled to receive the same.


 


(b)           Liability
for Deficiencies.  No sale or other
disposition of all or any part of the Mortgage Estate pursuant to Section 4.02
shall be deemed to relieve the Mortgagor of its obligations under the Loan
Agreement or any other Loan Document except to the extent the proceeds thereof
are applied to the payment of such obligations. 
Except as otherwise provided in the Loan Documents, if the proceeds of
sale, collection or other realization of or upon the Mortgage Estate are
insufficient to cover the costs and expenses of such realization and the
payment in full of the Obligations, the Mortgagor shall remain liable for any
deficiency.


 


Section 4.04.          Right to Sue.  The Mortgagee shall have the right from time
to time to sue for any sums required to be paid by the Mortgagor under the
terms of this Mortgage as the same become due, without regard to whether or not
the Obligations shall be, or have become, due and without prejudice to the
right of the Mortgagee thereafter to bring any action or proceeding of
foreclosure or any other action upon the occurrence of any Default existing at
the time such earlier action was commenced.


 


Section 4.05.          Powers of the Mortgagee.  The Mortgagee may at any time or from time to
time (with the agreement of the Mortgagor) alter or modify the same in any way,
or waive any of the terms, covenants or conditions hereof or thereof, in whole
or in part, and may release any portion of the Mortgage Estate or any other
security, and grant such extensions and indulgences in relation to the
Obligations, or release any person liable therefor as
the Mortgagee


 














 


may determine without the
consent of any junior lienor or encumbrancer, without any obligation to give
notice of any kind thereto, without in any manner affecting the priority of the
Lien and estate of this Mortgage on or in any part of the Mortgage Estate, and
without affecting the liability of any other person liable for any of the
Obligations.


 


Section 4.06.          Remedies Cumulative.


 


(a)           Remedies
Cumulative.  No right or remedy
herein conferred upon or reserved to the Mortgagee is intended to be exclusive
of any other right or remedy, and each and every right and remedy shall be
cumulative and in addition to any other right or remedy under this Mortgage, or
under applicable law, whether now or hereafter existing; the failure of the
Mortgagee to insist at any time upon the strict observance or performance of
any of the provisions of this Mortgage or to exercise any right or remedy
provided for herein or under applicable law, shall not impair any such right or
remedy nor be construed as a waiver or relinquishment thereof.


 


(b)           Other
Security.  The Mortgagee shall be
entitled to enforce payment and performance of any of the obligations of the
Mortgagor and to exercise all rights and powers under this Mortgage or under
any Loan Document or any laws now or hereafter in force, notwithstanding that
some or all of the Obligations may now or hereafter be otherwise secured,
whether by mortgage, deed of trust, pledge, Lien, assignment or otherwise;
neither the acceptance of this Mortgage nor its enforcement, whether by court
action or pursuant to the power of sale or other powers herein contained, shall
prejudice or in any manner affect the Mortgagee’s right to realize upon or
enforce any other security now or hereafter held by the Mortgagee, it being
stipulated that the Mortgagee shall be entitled to enforce this Mortgage and
any other security now or hereafter held by the Mortgagee in such order and
manner as the Mortgagee, in its sole discretion, may determine; every power or
remedy given by the Loan Agreement, this Mortgage or any of the other Loan
Documents to the Mortgagee, or to which the Mortgagee is otherwise entitled,
may be exercised, concurrently or independently, from time to time and as often
as may be deemed expedient by the Mortgagee, and the Mortgagee may pursue
inconsistent remedies.


 

















 


Section 4.07.          Waiver of Stay, Extension,
Moratorium Laws; Equity of Redemption. 
To the maximum extent permitted by law, the Mortgagor shall not at any
time insist upon, or plead, or in any manner whatever claim or take any benefit
or advantage of any applicable present or future stay, extension or moratorium
law, that may affect observance or performance of the provisions of this
Mortgage; nor claim, take or insist upon any benefit or advantage of any
present or future law providing for the valuation or appraisal of the Mortgage
Estate or any portion thereof prior to any sale or sales thereof that may be
made under or by virtue of Section 4.02; and the Mortgagor, to the extent
that it lawfully may, hereby waives all benefit or advantage of any such law or
laws.  The Mortgagor for itself and all
who may claim under it, hereby waives, to the maximum extent permitted by
applicable law, any and all rights and equities of redemption from sale under
the power of sale created hereunder or from sale under any order or decree of
foreclosure of this Mortgage and (if a Default shall have occurred) all notice
or notices of seizure, and all right to have the Mortgage Estate marshalled
upon any foreclosure hereof.  The
Mortgagee shall not be obligated to pursue or exhaust its rights or remedies as
against any other part of the Mortgage Estate and the Mortgagor hereby waives
any right or claim of right to have the Mortgagee proceed in any particular
order.


 


Section 4.08.          No Waiver of Foreclosure.  Mortgagor agrees for itself and its
successors and assigns that the acceptance, before the expiration of the right
of redemption and after the commencement of foreclosure proceedings of this
Mortgage, of insurance proceeds, eminent domain awards, Rents or anything else
of value to be applied on or to the Obligations by the Mortgagee or the Lenders
or any person or party holding under it shall not constitute a waiver of such
foreclosure, and this agreement by Mortgagor shall be that agreement referred to
in Section 6321 of Title 14 of the Maine Revised Statutes
of 1964 as necessary to prevent such waiver of foreclosure.  This agreement by Mortgagor is intended to
apply to the acceptance and application of any such proceeds, awards, Rents and
other sums or anything else of value whether the same shall be accepted from,
or for the account of, Mortgagor or from any other source whatsoever by the
Mortgagee or any Lender or by any person or party holding under Mortgagee at
any time or times in the future while any of the Obligations shall remain
outstanding.


 


Section 4.09.          Assignment
of Certain Easement Obligations.


 


Any foreclosure of this Mortgage shall constitute an
express assignment from the Mortgagor to the Mortgagee or other party that
acquires the Property pursuant to such foreclosure sale (the “Assignee”)
of the Mortgagor’s obligations under the Easement Deed dated as of October 2,
2008 between Evergreen Wind Power V, LLC, and Maine Electric Power Company and
recorded in the Penobscot County Registry of Deeds in Book 11553, Page 18
and the Use Agreement referenced therein, if any, and such acquisition of the
Property pursuant to such foreclosure shall be deemed to be a written
acceptance of all such assigned obligations by the Assignee.  Furthermore, Assignee shall give notice of
any such acquisition of the Property pursuant to such foreclosure as may be
required pursuant to the instruments identified on the attached Exhibit F.


 

















 


ARTICLE 5


 


Miscellaneous


 


Section 5.01.          Release by Mortgagee.  Upon the termination of the Commitments under
and as defined in the Loan Agreement and the payment in full of the
Obligations, the Mortgagee shall release the Lien of this Mortgage, or upon the
request of the Mortgagor, and at the Mortgagor’s expense, assign this Mortgage
without recourse to the Mortgagor’s designee, or to the person or persons
legally entitled thereto, by an instrument duly acknowledged in form for
recording.  Upon any transfer by
Mortgagor of title to all or any portion of the Mortgage Estate, which transfer
is not prohibited by the Loan Documents, the Mortgagee shall, upon the request
of the Mortgagor, execute and deliver a release (in recordable form) of the
transferred property from the Lien of this Mortgage.  If all of the Mortgage Estate is so transferred,
the Mortgagee shall completely release and discharge this Mortgage.


 


Section 5.02.          Notices.  All notices, demands, consents, requests or
other communications (collectively, “notices”) that are permitted or
required to be given by any party to the other hereunder shall be in writing
and given in the manner specified in the Loan Agreement.


 


Section 5.03.          Amendments; Waivers; Etc.  This Mortgage cannot be modified, changed or
discharged except by an agreement in writing, duly acknowledged in form for
recording, signed by the Mortgagor and the Mortgagee with the consent of the
Lenders as provided in the Loan Agreement. 
For purposes hereof, a statement by the Mortgagee in any modification or
supplement to this Mortgage to the effect that such modification or supplement
has been consented to by the Lenders as provided in the Loan Agreement shall be
conclusive evidence of such consent and it shall not be necessary for a copy of
such consent to be recorded with such modification or supplement as a condition
to such modification or supplement being recorded in the appropriate real
estate records.


 


Section 5.04.          Successors and Assigns.  This Mortgage applies to, inures to the
benefit of and binds the Mortgagor and the Mortgagee and their respective
successors and assigns and shall run with the Property.


 


Section 5.05.          Captions.  The captions or headings at the beginning of
Articles, Sections and paragraphs hereof are for convenience of reference and
are not a part of this Mortgage.


 


Section 5.06.          Severability.  If any term or provision of this Mortgage or
the application thereof to any person or circumstance shall to any extent be
invalid or unenforceable, the remainder of this Mortgage, or the application of
such term or provision to persons or circumstances other than those as to which
it is invalid or unenforceable, shall not be affected thereby, and each term
and provision of this Mortgage shall be valid and enforceable to the maximum
extent permitted by law.  If any portion
of the Obligations shall for any reason not be secured by a valid and
enforceable Lien upon any part of the Mortgage Estate, then any payments made
in respect of the Obligations (whether voluntary or under foreclosure or other
enforcement action or procedure or otherwise) shall, for purposes of this
Mortgage (except to the 


 

















 


extent otherwise required by
applicable law) be deemed to be made (i) first, in respect of the portion
of the Obligations not secured by the Lien of this Mortgage, (ii) second,
in respect of the portion of the Obligations secured by the Lien of this
Mortgage, but which Lien is on less than all of the Mortgage Estate, and (iii) last,
to the portion of the Obligations secured by the Lien of this Mortgage, and
which Lien is on all of the Mortgage Estate.


 


Section 5.07.          Maximum Amount.  Notwithstanding anything contained in this
Mortgage to the contrary, the maximum amount of principal indebtedness secured
by this Mortgage at the time of execution hereof or which under any contingency
may become secured by this Mortgage is $116,700,000 plus (a) taxes,
charges or assessments which may be imposed by law upon the Mortgage Estate; (b) premiums
on insurance policies covering the Mortgage Estate; and (c) expenses
incurred in upholding the lien of this Mortgage, including, but not limited to (i) the
expenses of any litigation to prosecute or defend the rights and liens created
by this Mortgage; (ii) any amount, cost or charges to which the Mortgagee
becomes subrogated, upon payment, whether under recognized principles of law or
equity, or under express statutory authority after a Default and (iii) interest
at the rate set forth in the Loan Documents.


 


Section 5.08.          Open End Mortgage.  As stated in the recitals of this Mortgage,
the Obligations include both loans now existing under the Loan Agreement and
future loans that may be advanced thereunder and Mortgagor’s obligations
pursuant to the Security Agreement. 
Pursuant to Maine’s Open-End Mortgage statute, Title 33 § 505 of
the Maine Revised Statutes of 1964, as amended (herein called the “Open-End
Mortgage Statute”), the aggregate principal amount of all debts or obligations
secured hereby and remaining unpaid including “future advances” but not
including “contingent obligations” or “protective advances” as such terms are
defined in the Open-End Mortgage Statute, shall not at any time exceed
$116,700,000, and the Mortgagor’s obligations under the Security Agreement
shall be “contingent obligations” as defined in the Open-End Mortgage Statute
and the maximum amount of such contingent obligations shall not at any time
exceed $116,700,000 (collectively, the “Maximum Amounts”); provided,
further, that nothing herein contained shall limit the amount secured by this
Mortgage if such amount is increased by “protective advances” as defined in the
Open-End Mortgage Statute.  All of the
Obligations that are “future advances,” “contingent obligations” or “protective
advances” as such terms are defined in the Open-End Mortgage Statute shall be
secured by this Mortgage with the record priority set forth in the Open-End
Mortgage Statute.  The Maximum Amounts
shall only pertain to the record priority of the amount secured hereby pursuant
to the Open-End Mortgage Statute and do not otherwise limit the amount of total
obligations of Mortgagor secured hereby or limit the liability of Mortgagor to
the Mortgagee or the Secured Parties for such total obligations.


 


Section 5.09.          Written Trust Agreement.  The provisions of the Loan Agreement relating
to the Security Agent and its relationship to the Secured Parties are intended
to constitute a written trust agreement for purposes of Title 33 § 851 of
the Maine Revised Statutes of 1964, as amended.


 


Section 5.10.          Release of Mortgage.  Pursuant to Title 33 § 551 of the Maine
Revised Statutes of 1964, as amended, Mortgagee shall, within 60 days
after full performance of the conditions of this Mortgage, record a valid and
complete release of this Mortgage together


 

















 


with any instrument of
assignment necessary to establish the Mortgagee’s record ownership of this
Mortgage.


 

















 


IN WITNESS WHEREOF, this Mortgage has been duly
executed by the Mortgagor as of the day and year first above written.


 


	
   

  	
  EVERGREEN WIND POWER V,
  LLC,

  
	
   

  	
  a Delaware limited
  liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


	
  COMMONWEALTH OF MASSACHUSETTS

  	
  )

  
	
   

  	
  ) ss.:

  
	
  COUNTY OF MIDDLESEX

  	
  )

  



 


On this      day of
                ,
2009 before me, the undersigned, a Notary Public in and for said State,
personally appeared                             ,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual(s) whose name(s) is subscribed to the within
instrument and acknowledged to me that s/he executed the same in her/his
capacity, and that by her/his, signature on the instrument, the individual(s) or
the person(s) upon behalf of which the individual acted, executed the
instrument.


 


	
   

  	
   

  
	
  Notary Public

  	
   

  



 


Exhibit E-1


 


1

















 


EXHIBIT A


 


Deeds Conveying
Land to Mortgagor


 


1.               Deed dated as of April 28, 2008
between Evergreen Wind Power V, LLC, and Donald Morin and Elizabeth A. Morin
and recorded in the Penobscot County Registry of Deeds in Book 11379, Page 121.


 


2.               Deed dated as of May 22, 2008
between Evergreen Wind Power V, LLC, and Huber Timer, LLC and recorded in the
Penobscot County Registry of Deeds in Book 11403, Page 237.


 


3.     Deed dated
as of May 12, 2008 between Evergreen Wind Power V, LLC, and Prentiss &
Carlisle Co. and recorded in the Penobscot County Registry of Deeds in
Book 11424, Page 100.


 


4.     Deed dated
as of June 14, 2007 between Evergreen Wind Power V, LLC, and Ricky Deloge, Sr.
and recorded in the Penobscot County Registry of Deeds in Book 11012, Page 347.


 


5.     Deed dated
as of March 26, 2008 between Evergreen Wind Power V, LLC, and Harlan H.
Whitney and Pauline D. Whitney and recorded in the Penobscot County Registry of
Deeds in Book 11338. Page 154.


 


6.     Deed dated
as of June 24, 2008 between Evergreen Wind Power V, LLC, and Harlan H.
Whitney and Pauline D. Whitney and recorded in the Penobscot County Registry of
Deeds in Book 11444, Page 114.


 


7.     Deed dated
as of May 12, 2008 between Evergreen Wind Power V, LLC, and Prentiss &
Carlisle Co. and recorded in the Penobscot County Registry of Deeds in
Book 11424, Page 116.


 


8.     Deed dated
as of June 24, 2008 between Evergreen Wind Power V, LLC, and Donald L.
Whitney and recorded in the Penobscot County Registry of Deeds in Book 11444, Page 112.


 


9.     Deed dated
as of March, 11 2008 between Evergreen Wind Power V, LLC, and Donald L. Whitney
and recorded in the Penobscot County Registry of Deeds in Book 11322, Page 275.  Said deed being corrected by document dated June 24,
2008 and recorded in said Registry of Deeds in Book 11444, Page 110.


 


10.   Deed dated
as of March 22, 2008 between Evergreen Wind Power V, LLC, and John R.
Whitney and Deborah M. Whitney and recorded in the Penobscot County Registry of
Deeds in Book 11332, Page 340.


 


11.   Deed dated
as of May 14, 2008 between Evergreen Wind Power V, LLC, and Robert Harmon, Jr.
and recorded in the Penobscot County Registry of Deeds in Book 11392, Page 109.


 

















 


12.   Deed dated
as of April 10, 2008 between Evergreen Wind Power V, LLC, and Andrew G.
Edwards and recorded in the Penobscot County Registry of Deeds in Book 11354, Page 291.


 


13.   Deed dated
as of March 13, 2008 between Evergreen Wind Power V, LLC, and Gary A.
Fleming and Cynthia Fleming and recorded in the Penobscot County Registry of
Deeds in Book 11330, Page 56.


 


14.   Deed dated
as of October 24, 2007 between Evergreen Wind Power V, LLC, and H C Haynes, Inc.
and recorded in the Penobscot County Registry of Deeds in Book 11226, Page 162.


 


15.   Deed dated
as of October 30, 2004 between Evergreen Wind Power V, LLC, and Henry D.
Provencher and recorded in the Penobscot County Registry of Deeds in Book
11187, Page 311.


 


16.   Deed dated
as of May 7, 2008 between Evergreen Wind Power V, LLC, and Prentiss &
Carlisle Co. and recorded in the Penobscot County Registry of Deeds in
Book 11386, Page 8.


 


17.   Deed dated
as of May 9, 2008 between Evergreen Wind Power V, LLC, and Lakeville
Shores, Inc. and recorded in the Penobscot County Registry of Deeds in
Book 11392, Page 76.


 


18.   Deed dated
as of April 21, 2008 between Evergreen Wind Power V, LLC, and Lakeville
Shores, Inc. and recorded in the Penobscot County Registry of Deeds in
Book 11367, Page 185.


 


19.   Deed dated
as of March 11, 2008 between Evergreen Wind Power V, LLC, and Jamie Lee
Steeves and recorded in the Penobscot County Registry of Deeds in Book 11320, Page 125.


 


20.   Deed dated
as of November 6, 2007 between Evergreen Wind Power V, LLC, and Marjorie
White Ghost and recorded in the Penobscot County Registry of Deeds in Book
11198, Page 46.


 


21.   Deed dated
as of May 12, 2008 between Evergreen Wind Power V, LLC, and Prentiss &
Carlisle Co., Inc. and McCrillis Timberlands, LLC and recorded in the
Penobscot County Registry of Deeds in Book 11393, Page 96.


 


22.         Deed dated as of March 18, 2008
between Evergreen Wind Power V, LLC, and Thomas E. Linscott and Karen B.
Linscott and recorded in the Penobscot County Registry of Deeds in Book 11329, Page 273.


 


23.         Deed dated as of July 3, 2008
between Evergreen Wind Power V, LLC, and J. Robert Hudson and recorded in
the Penobscot County Registry of Deeds in Book 11474, Page 343.


 

















 


EXHIBIT B


 


Instruments
Conveying Easement Rights to Mortgagor


 


1.               Easement dated October 10, 2008
between Evergreen Wind Power V, LLC, and Bangor Hydro Electric Company and
recorded in the Penobscot County Registry of Deeds in Book 11563, Page 77.


 


2.               Easement dated as of October 2, 2008
between Evergreen Wind Power V, LLC, and Maine Electric Power Company and
recorded in the Penobscot County Registry of Deeds in Book 11553, Page 18.


 


3.               Easement dated as of April 21, 2008
between Evergreen Wind Power V, LLC, and Lakeville Shores, Inc. and
recorded in the Penobscot County Registry of Deeds in Book 11367, Page 187.


 


4.               Easement dated as of April 4, 2008
between Evergreen Wind Power V, LLC, and Loren A. Hale and Joyce M. Hale and
recorded in the Penobscot County Registry of Deeds in Book 11351, Page 117.


 


5.     Easement
dated as of March 13, 2008 between Evergreen Wind Power V, LLC, and Roscoe
Tash and recorded in the Penobscot County Registry of Deeds in Book 11327,
Page 236.


 


6.     Easement
dated as of August 2, 2007 between Evergreen Wind Power V, LLC, and Elgin H.
Turner and recorded in the Penobscot County Registry of Deeds in
Book 11140, Page 1.


 


7.     Easement
dated as of May 30, 2008 between Evergreen Wind Power V, LLC, and Edwin
Tash, Sr. et al and recorded in the Penobscot County Registry of Deeds in
Book 11418, Page 84.


 


8.     Easement
dated April 15, 2008 between Evergreen Wind Power V, LLC, and The Gerrity
Family Limited Partnership and recorded in the Penobscot County Registry of
Deeds in Book 11360, Page 172.


 


9.     Easement
dated as of March 4, 2008 between Evergreen Wind Power V, LLC, and Clayton
J. McCarthy and recorded in the Penobscot County Registry of Deeds in Book
11317, Page 56.


 


10.   Easement
dated as of March 28, 2008 between Evergreen Wind Power V, LLC, and Elaine
Reardon and recorded in the Penobscot County Registry of Deeds in Book 11360, Page 181.


 


11.   Easement
dated as of February 28, 2008 between Evergreen Wind Power V, LLC, and
Albert S. Ring and Linda M. Ring and recorded in the Penobscot County Registry
of Deeds in Book 11348, Page 235.


 

















 


12.   Easement
dated as of May 9, 2008 between Evergreen Wind Power V, LLC, and H C
Haynes, Inc. and recorded in the Penobscot County Register of Deeds in
Book 11392, Page 72.


 


13.   Easement
dated as of March 2, 2008 between Evergreen Wind Power V, LLC, and Edward
F. Sargent, Jr. and recorded in the Penobscot County Registry of Deeds in
Book 11348, Page 239.


 


14.   Easement
dated as of February 25, 2008 between Evergreen Wind Power V, LLC, and
Edward Whitney, III, AnneMarie B. Whitney, Scott E. Whitney, Mark J. Whitney
and recorded in the Penobscot County Registry of Deeds in Book 11329, Page 275.


 


15.   Easement
dated as of March 6, 2008 between Evergreen Wind Power V, LLC, and Shepard
V. Sloane-Trustee and recorded in the Penobscot County Registry of Deeds in
Book 11317, Page 46.


 


16.   Easement
dated as of March 14, 2008 between Evergreen Wind Power V, LLC, and Royl
M. Schoonover and Vanessa V. Schoonover and recorded in the Penobscot County
Registry of Deeds in Book 11327, Page 239.


 


17.   Easement
dated as of May 9, 2008 between Evergreen Wind Power V, LLC, and Lakeville
Shores, Inc. and recorded in the Penobscot County Registry of Deeds in
Book 11392, Page 68.


 


18.   Easement
dated as of March 4, 2008 between Evergreen Wind Power V, LLC, and Clayton
J. McCarthy and recorded in the Penobscot County Registry of Deeds in Book
11317, Page 51.


 


19.   Easement
dated as of March 4, 2008 between Evergreen Wind Power V, LLC, and Hayden
P. McCarthy and recorded in the Penobscot County Registry of Deeds in Book
11317, Page 60.  Said easement being
corrected by document dated June 26, 2008 and recorded in said Registry of
Deeds in Book 11450, Page 2.


 


20.   Easement
dated as of March 26, 2008 between Evergreen Wind Power V, LLC, and
Northern Timbers, Inc. and recorded in the Penobscot County Registry of
Deeds in Book 11338, Page 146.


 


21.   Easement
dated as of February 22, 2008 between Evergreen Wind Power V, LLC, and C N
Brown Company and recorded in the Penobscot County Registry of Deeds in Book
11301, Page 268.


 














 


22.         Easement dated as of January 17, 2008 between
Evergreen Wind Power V, LLC, and Aroostook & Bangor Resources and
recorded in the Penobscot County Registry of Deeds in Book 11275, Page 109.


 


23.         Easement dated as of May 2, 2008 between
Evergreen Wind Power V, LLC, and Richard A. Delaite and David W. Delaite and
recorded in the Penobscot County Registry of Deeds in Book 11384, Page 320.


 


24.         Easement dated as of March 11, 2008 between
Evergreen Wind Power V, LLC, and Bion Tolman and recorded in the Penobscot
County Registry of Deeds in Book 11322, Page 280.


 


25.         Easement dated as of June 10, 2008 between
Evergreen Wind Power V, LLC, and Jeffrey B. Vicaire and Rhonda J. Vicaire and
recorded in the Penobscot County Registry of Deeds in Book 11426, Page 317.


 


26.         Easement dated as of March 6, 2007 between
Evergreen Wind Power V, LLC, and Joanne Adams and recorded in the Penobscot
County Registry of Deeds in Book 11317, Page 64.


 


27.         Easement dated 2008 between Evergreen Wind Power V,
LLC, and John M. Kyler and Joan E. H. Kyler and recorded in the Penobscot
County Registry of Deeds in Book 11450, Page 21.


 


28.         Easement dated as of March 6, 2008 between
Evergreen Wind Power V, LLC, and Melvin L. Vicaire and Lynn Vicaire and
recorded in the Penobscot County Registry of Deeds in Book 11317, Page 68.


 


29.         Easement dated as of February 21, 2008 between
Evergreen Wind Power V, LLC, and Thomas B. Kates, Jr. and Walter W. Hughes
and recorded in the Penobscot County Registry of Deeds in Book 11301, Page 261.


 


30.         Easement dated as of February 25, 2008 between
Evergreen Wind Power V, LLC, and William Ziehl and Rhonda Ziehl and recorded in
the Penobscot County Registry of Deeds in Book 11311, Page 83.


 


31.         Easement recorded March 25, 2008 between
Evergreen Wind Power V, LLC, and Lucy Campbell, Susan Fort, David B. Campbell,
Sheila Jean, Alan Bruce, and Linda Lucian and recorded in the Penobscot County
Registry of Deeds in Book 11333, Page 117.


 

















 


32.         Easement between Evergreen Wind Power V, LLC, and
Penobscot Forest, LLC and recorded in the Penobscot County Registry of Deeds in
Book 11473, Page 276.


 


33.         Easement dated as of April 21, 2008 between
Evergreen Wind Power V, LLC, and Lakeville Shores, Inc. and recorded in
the Penobscot County Registry of Deeds in Book 11367, Page 191.


 


34.         Easement dated as of June 24, 2008 between
Evergreen Wind Power V, LLC, and John Hagemeyer and Sylvia Hagemeyer and
recorded in the Penobscot County Registry of Deeds in Book 11444, Page 105.


 


35.         Assignment and Assumption dated as of June 6, 2008
between Evergreen Wind Power V, LLC, and Eastern Maine Electric Cooperative, Inc.
and recorded in the Penobscot County Registry of Deeds in Book 11420, Page 179.


 


36.         Easement dated as of June 20, 2008 between
Evergreen Wind Power V, LLC, and Naturals Rod & Gun Club and recorded
in the Penobscot County Registry of Deeds in Book 11450, Page 6.


 


37.         Easement dated as of September 19, 2008 between
Evergreen Wind Power V, LLC, and State of Maine, Inland Fisheries and Wildlife
and recorded in the Penobscot County Registry of Deeds in Book 11537, Page 290.


 


38.         Easement dated as of May 9, 2008 between
Evergreen Wind Power V, LLC, and Haynes Timberland, Inc. and recorded in
the Penobscot County Registry of Deeds in Book 11392, Page 94.


 


39.         Easement dated as of April 17, 2008 between
Evergreen Wind Power V, LLC, and Charles Alferes and Ethel Alferes-Trustees and
recorded in the Penobscot County Registry of Deeds in Book 11367, Page 205.


 


40.         Easement dated as of May 9, 2008 between
Evergreen Wind Power V, LLC, and Haynes Timberland, Inc. and recorded in
the Penobscot County Registry of Deeds in Book 11392, Page 86.


 


41.         Easement dated as of May 9, 2008 between
Evergreen Wind Power V, LLC, and Haynes Timberland, Inc. and recorded in
the Penobscot County Registry of Deeds in Book 11392, Page 90.


 

















 


42.         Easement dated as of May 9, 2008 between
Evergreen Wind Power V, LLC, and Ginger Maxwell and recorded in the Penobscot
County Registry of Deeds in Book 11392, Page 78, as corrected by
Corrective Easement from Ginger Maxwell dated November 25, 2009 and
recorded at said Registry in Book 11987, Page 189.


 


43.         Easement dated as of July 31, 2008 between
Evergreen Wind Power V, LLC, and John A. Dudley, III and Debra Dudley and
recorded in the Penobscot County Registry of Deeds in Book 11486, Page 2.


 


44.         Easement dated as of July 15, 2008 between
Evergreen Wind Power V, LLC, and John E. Osgood and Susan Osgood and recorded
in the Penobscot County Registry of Deeds in Book 11465, Page 80.


 


45.         Easement dated as of March 18, 2008 between
Evergreen Wind Power V, LLC, and Kevin R. Tozier and recorded in the Penobscot
County Registry of Deeds in Book 11329, Page 278.


 


46.         Easement dated as of May 12, 2008 between
Evergreen Wind Power V, LLC, and Prentiss & Carlisle Company and McCrillis
Timberlands, LLC and recorded in the Penobscot County Registry of Deeds in Book
11392, Page 103.


 


47.         Easement dated as of February 21, 2008 between
Evergreen Wind Power V, LLC, and Delia M. Parker and recorded in the Penobscot
County Registry of Deeds in Book 11301, Page 264.


 


48.         Easement dated as of March 10, 2008 between
Evergreen Wind Power V, LLC, and Junior L. Smith and Christine C. Goldsmith and
recorded in the Penobscot County Registry of Deeds in Book 11322, Page 277.


 


49.         Easement dated as of May 9, 2008 between
Evergreen Wind Power V, LLC, and Estate of Herbert Haynes, by Personal
Representative and recorded in the Penobscot County Registry of Deeds in Book
11392, Page 82.


 


50.         Easement dated as of January 15, 2008 between
Evergreen Wind Power V, LLC, and Susan Claerbout and Kenneth Claerbout and
recorded in the Penobscot County Registry of Deeds in Book 11284, Page 312.


 


51.         Easement dated as of April 21, 2008 between
Evergreen Wind Power V, LLC, and Herbert C. 
Haynes, Jr. and recorded in the Penobscot County Registry of Deeds
in Book 11367, Page 201.


 

















 


52.         Easement dated as of April 21, 2008 between
Evergreen Wind Power V, LLC, and Lakeville Shores, Inc. and recorded in
the Penobscot County Registry of Deeds in Book 11367, Page 196.


 


53.         Easement dated as of February 15, 2008 between
Evergreen Wind Power V, LLC, and Gardner Land Company, Inc. and recorded
in the Penobscot County Registry of Deeds in Book 11329, Page 282.


 


54.         Easement dated as of March 21, 2008 between
Evergreen Wind Power V, LLC, and Dennis Gould and Robert Yorks and recorded in
the Penobscot County Registry of Deeds in Book 11332, Page 337.


 


55.         Easement dated as of March 20, 2008 between
Evergreen Wind Power V, LLC, and Eileen Marie Beaulieu and recorded in the
Penobscot County Registry of Deeds in Book 11332, Page 334.


 


56.         Easement dated as of August 28, 2008 between
Evergreen Wind Power V, LLC, and Louis M. Coiro and Patricia R. Joyce Coiro and
recorded in the Penobscot County Registry of Deeds in Book 11531, Page 217.


 


57.         Easement dated as of March 26, 2008 between
Evergreen Wind Power V, LLC, and Russell Brown and recorded in the Penobscot
County Registry of Deeds in Book 11362, Page 184.


 


58.         Easement rights reserved in a Deed dated as of March 24,
2008 between Evergreen Wind Power V, LLC, and Louis M. Coiro and recorded in
the Penobscot County Registry of Deeds in Book 11531, Page 220.


 


59.         Grant of Easements 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.


 

















 


EXHIBIT C


 


Crossing Agreements


 


1.               Crossing Easement Agreement between Evergreen Wind
Power V, LLC and Bangor Hydro Electric Company dated October 10, 2008 and
recorded in the Penobscot County Registry of Deeds in Book 11563, Page 59.


 


2.               Transmission Line Crossing Area Consent and Agreement
between Evergreen Wind Power V, LLC and Bangor Hydro Electric Company dated October 10,
2008 and recorded in the Penobscot County Registry of Deeds in Book 11563, Page 41.


 


3.               Overhead Wire Agreement dated May 1, 2008 between
Evergreen Wind Power V, LLC, and Eastern Maine Railway Company and recorded in
the Penobscot County Registry of Deeds in Book 11478, Page 169.


 


4.               Transmission Line Crossing Area Consent and Agreement
between Evergreen Wind Power V, LLC, and Bangor Hydro Electric Company dated October 10,
2008 and recorded in the Penobscot County Registry of Deeds in Book 11563, Page 37.


 


5.               Overhead Wire Agreement dated May 1, 2008 between
Evergreen Wind Power V, LLC, and Eastern Maine Railway Company and recorded in
the Penobscot County Registry of Deeds in Book 11478, Page 166.


 


6.               Overhead Wire Agreement dated May 15, 2008
between Evergreen Wind Power V, LLC, and Maine Central Railroad Company and
recorded in the Penobscot County Registry of Deeds in Book 11414, Page 332.


 


7.               Crossing Agreement dated June 6, 2008 between
Evergreen Wind Power V, LLC, and Eastern Maine Electric Cooperative, Inc.
and recorded in the Penobscot County Registry of Deeds in Book 11420, Page 198.


 

















 


EXHIBIT D


 


Access Easements


 


1.               Easement dated 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.


 


2.               Easement dated May 12, 2008 between Evergreen
Wind Power V, LLC, and Prentiss & Carlisle Co. and recorded in the
Penobscot County Register of Deeds in Book 11392, Page 98.


 


3.               Easement dated May 2, 2008 between Evergreen Wind
Power V, LLC, and Richard A. Delaite and recorded in the Penobscot County
Register of Deeds in Book 11384, Page 323.


 

















 


EXHIBIT E


 


Permits


 


1.               Department of Environmental Protection Site Order
dated March 18, 2008 and filed in the Penobscot County Registry of Deeds
in Book 11345, Page 249.


 


2.               State of Maine Utility Location Permits for multiple
crossings all dated February 7, 2008 (Maine DOT Permits 51818, 51814,
51816, 51824, and 51820.


 


3.               Town of Chester Utility Location Permit for crossing
the Pea Ridge Road.


 


4.               Town of Woodville Utility Location Permit dated May 12,
2008 for crossing the Butterfield Ridge Road and the River Road.


 


5.               Town of Mattawamkeag Utility Location Permit dated May 22,
2008 for crossing the River Road.


 


6.               Carroll Plantation Utility Location Permit dated April 28,
2008 for crossing in North Road.


 

















 


EXHIBIT F


 


Notice Provisions


 


1.               Easement dated October 10, 2008 between Evergreen
Wind Power V, LLC, and Bangor Hydro Electric Company and recorded in the
Penobscot County Registry of Deeds in Book 11563, Page 77.


 


2.               Overhead Wire Agreement dated May 1, 2008 between
Evergreen Wind Power V, LLC, and Eastern Maine Railway Company and recorded in
the Penobscot County Registry of Deeds in Book 11478, Page 169.  .


 


3.               Overhead Wire Agreement dated May 1, 2008 between
Evergreen Wind Power V, LLC, and Eastern Maine Railway Company and recorded in
the Penobscot County Registry of Deeds in Book 11478, Page 166.


 


4.               Overhead Wire Agreement dated May 15, 2008
between Evergreen Wind Power V, LLC, and Maine Central Railroad Company and
recorded in the Penobscot County Registry of Deeds in Book 11414, Page 332.


 


5.               Easement between Evergreen Wind Power V, LLC, and
Penobscot Forest, LLC and recorded in the Penobscot County Registry of Deeds in
Book 11473, Page 276.


 


6.               Easement dated as of June 20, 2008 between
Evergreen Wind Power V, LLC, and Naturals Rod & Gun Club and recorded
in the Penobscot County Registry of Deeds in Book 11450, Page 6.


 

















 


EXECUTION FORM


 


EXHIBIT
E-2


to
Financing Agreement


 


FORM OF
BORROWER PLEDGE AND SECURITY AGREEMENT


 


(See
Tab      )


 

















 




 


 


PLEDGE AND SECURITY AGREEMENT


 


among


 




STETSON HOLDINGS, LLC,

as Borrower


 


and


 


EVERGREEN WIND POWER V, LLC


 


and


 


STETSON WIND II, LLC,


 


each as a Project Company


 


and


 


BNP PARIBAS]

as Security Agent


 


Dated as of December [    ], 2009


 


 





 














 


TABLE OF CONTENTS


 


	
  Section 1.

  	
  Definitions

  	
  2

  
	
  Section 2.

  	
  Pledge
  and Grant of Security Interest

  	
  2

  
	
  Section 3.

  	
  Delivery
  of Collateral

  	
  15

  
	
  Section 4.

  	
  Obligations
  Secured

  	
  15

  
	
  Section 5.

  	
  Use of
  Collateral

  	
  15

  
	
  Section 6.

  	
  Remedies

  	
  15

  
	
  Section 7.

  	
  Remedies
  Cumulative; Delay Not Waiver

  	
  18

  
	
  Section 8.

  	
  Representations
  and Warranties of Borrower

  	
  19

  
	
  Section 9.

  	
  Covenants
  of Borrower

  	
  22

  
	
  Section 10.

  	
  Voting
  Rights

  	
  24

  
	
  Section 11.

  	
  Certain
  Consents and Waivers

  	
  24

  
	
  Section 12.

  	
  Project
  Companies’ Consent and Covenant

  	
  25

  
	
  Section 13.

  	
  Attorney-in-Fact

  	
  26

  
	
  Section 14.

  	
  Perfection;
  Further Assurances

  	
  29

  
	
  Section 15.

  	
  Notices

  	
  30

  
	
  Section 16.

  	
  Continuing
  Assignment and Security Interest; Transfer of Notes

  	
  30

  
	
  Section 17.

  	
  Termination
  of Security Interest

  	
  31

  
	
  Section 18.

  	
  Severability

  	
  31

  
	
  Section 19.

  	
  Successors
  and Assigns

  	
  31

  
	
  Section 20.

  	
  No
  Amendment, Modification

  	
  31

  
	
  Section 21.

  	
  Headings

  	
  32

  
	
  Section 22.

  	
  Liability

  	
  32

  
	
  Section 23.

  	
  References
  to Other Documents

  	
  32

  
	
  Section 24.

  	
  Governing
  Law

  	
  32

  
	
  Section 25.

  	
  Execution
  in Counterparts

  	
  32

  
	
  Section 26.

  	
  Reinstatement

  	
  32

  
	
  Section 27.

  	
  Third
  Party Rights

  	
  33

  
	
  Section 28.

  	
  Conflict
  Among Agreements

  	
  33

  
	
  Section 29.

  	
  Waiver of Jury Trial

  	
  33

  



 


i

















 


PLEDGE
AND SECURITY AGREEMENT


 


This PLEDGE AND SECURITY AGREEMENT (as amended, amended and restated,
supplemented or otherwise modified from time to time, this “Agreement”),
is entered into as of December [    ], 2009, by and
among Stetson Holdings, LLC, a Delaware limited liability company (“Borrower”),
Evergreen Wind Power V, LLC, a Delaware limited liability company and Stetson
Wind II, LLC, a Delaware limited liability company (each a “Project Company”,
and collectively “Project Companies”), and BNP Paribas, as Security Agent (together
with its successors and assigns in such capacity, “Security Agent”) for
each of the Secured Parties.


 


RECITALS


 


A.            Borrower has entered into that certain Financing
Agreement, dated as of the date hereof (as amended, amended and restated,
supplemented or otherwise modified from time to time, the “Financing
Agreement”), among Borrower, the financial institutions from time to time
parties thereto (collectively, “Lenders”), the Security Agent, BNP
Paribas, as joint Lead Arranger, Joint Bookrunner, Administrative Agent for the
Lenders, and Issuing Bank and HSH Nordbank AG, New York Branch, as Joint Lead
Arranger, Joint Bookrunner and as Co-Syndication Agent, pursuant to which the
Lenders and the Issuing Bank have agreed to extend credit to Borrower in the
amounts specified and on the terms and subject to the conditions set forth
therein.


 


B.            Borrower is the sole member of each Project Company and
owns one hundred percent (100%) of all issued and outstanding membership
interests in each Project Company (collectively, the “Membership Interest”),
with respect to Evergreen Wind Power V, LLC, pursuant to that certain First
Amended and Restated Limited Liability Company Agreement of Evergreen Wind
Power  V, LLC, dated as of April 2,
2007, as amended by that certain First Amendment to First Amended and Restated
Limited Liability Company Agreement of Evergreen Wind Power V, LLC, dated as of
December 11, 2008, as modified by that certain Membership Interest
Transfer Agreement of Evergreen Wind Power V, LLC, dated as of July 17,
2009, as further amended by that certain Second Amendment to First Amended and
Restated Limited Liability Company Agreement of Evergreen Wind Power V, LLC,
dated as of July 17, 2009, and as further amended by that certain Third
Amendment to First Amended and Restated Limited Liability Company Agreement of
Evergreen Wind Power V, LLC, dated as of the date hereof; and with respect to
Stetson Wind II, LLC, pursuant to that certain Limited Liability Company
Agreement of Stetson Wind II, LLC, dated July 3, 2007, as amended by that
certain First Amendment to Limited Liability Company Agreement of Stetson Wind
II, LLC, dated December 11, 2008, and as further amended by that certain
Second Amendment to Limited Liability Company Agreement of Stetson Wind II,
LLC, dated as of the date hereof (as amended, amended and restated,
supplemented or otherwise modified from time to time, each an “LLC Agreement”,
and collectively, the “LLC Agreements”).


 


1

















 


C.            Borrower will gain an economic benefit from the extension
of credit to be made under the Financing Agreement and desires that the Issuing
Bank and the Lenders enter into the Financing Agreement.


 


D.            It is a condition precedent to the effectiveness of the
Financing Agreement that the parties hereto shall have executed and delivered
this Agreement.


 


AGREEMENT


 


NOW THEREFORE, in consideration of the foregoing premises, and in order
to induce the Lenders and the Issuing Bank to enter into the Financing
Agreement and to make the Loans and the extension of credit contemplated by the
Financing Agreement, and for other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, Borrower and each Project
Company hereby agree with Security Agent, for the benefit of Security Agent and
the Secured Parties, as follows:


 


Section 1. Definitions.


 


Unless otherwise defined herein, all capitalized terms
used in this Agreement (including the preamble and recitals), shall have the
meanings provided in the Financing Agreement, or, if not defined therein, shall
have the meanings provided in the Uniform Commercial Code, as the same from
time to time shall be in effect in the State of New York (the “UCC”); provided,
however, in the event that, by reason of mandatory provisions of law,
any or all of the perfection or priority of the security interest in any
Collateral (as defined below) is governed by the Uniform Commercial Code as in
effect in a jurisdiction other than the State of New York, the term “UCC” shall
mean the Uniform Commercial Code as in effect in such other jurisdiction for
purposes of the provisions hereof relating to such perfection or priority and
for purposes of definitions related to such provisions.  The Rules of Interpretation contained in
Exhibit A to the Financing Agreement shall apply to this Agreement.


 


(a)                                  Certain Uniform Commercial Code Terms.  As used herein, the terms “Accession”,
“Account”, “As-Extracted Collateral”, “Chattel Paper”, “Commodity
Account”, “Commodity Contract”, “Deposit Account”, “Commercial
Tort Claim”, “Document”, “Electronic Chattel Paper”, “Equipment”,
“Fixture”, “General Intangible”, “Goods”, “Instrument”,
“Inventory”, “Investment Property”, “Letter-of-Credit Right”,
“Motor Vehicle”, “Payment Intangible”, “Proceeds”, “Promissory
Note” and “Software” have the respective meanings set forth in Article 9
of the UCC, and the terms “Certificated Security”, “Financial Asset”,
“Securities Account”, “Securities Intermediary”, “Security”,
“Security Certificate”, “Security Entitlement” and “Software”
have the respective meanings set forth in Article 8 of the UCC.


 


Section 2. Pledge and Grant of Security Interest.


 


(a)                                  Granting Clause.  To secure the timely payment and performance
of the Obligations, Borrower does hereby assign, grant and pledge to Security 


 


2

















 


Agent,
for the benefit of the Secured Parties, a continuing security interest in all
estate, right, title and interest of Borrower in, to and under all assets of
Borrower, whether now owned or hereafter existing or acquired, including all
the estate, right, title and interest of 
Borrower in, to and under the following (collectively, the “Collateral”):


 


(i)                                             each
of the agreements and documents listed on Exhibit A, in each case,
as amended, amended and restated, supplemented or otherwise modified from time
to time (each, an “Assigned Agreement” and collectively, the “Assigned
Agreements”) and all of Borrower’s rights thereunder;


 


(ii)                                          all
Accounts;


 


(iii)                                       all
As-Extracted Collateral;


 


(iv)                                      all
Chattel Paper (including Electronic Chattel Paper);


 


(v)                                         all
Deposit Accounts;


 


(vi)                                      all
Documents;


 


(vii)                                   all
Equipment (including, for the avoidance of doubt, all wind turbines);


 


(viii)                                all
Fixtures;


 


(ix)                                        all
General Intangibles;


 


(x)                                           all
Goods not covered by the other clauses of this Section 2, if any;


 


(xi)                                        all
Instruments, including all Promissory Notes;


 


(xii)                                     all
inventions, processes, production methods, proprietary information (including
operating data and wind resource data related to the Project), know how, maps,
plans, specifications, architectural, engineering, construction or shop
drawings, route surveys, engineering reports, manuals and similar materials in
which Borrower has an interest, and all payment and performance bonds or
warranties or guaranties relating to the Project and all of Borrower’s rights
under and in patents, patent licenses, copyrights, trademarks and trade names,
trade secrets and any replacements, renewals or substitutions for any of the
foregoing (collectively, “Intellectual Property”);


 


(xiii)                                  all
Inventory;


 


3

















 


(xiv)                                 all Motor
Vehicles;


 


(xv)                                    all
Investment Property not covered by other clauses of this Section 2,
including all Securities, all Securities Accounts and all Security Entitlements
with respect thereto and Financial Assets carried therein, and all Commodity
Accounts and Commodity Contracts;


 


(xvi)                                 all
Letter-of-Credit Rights;


 


(xvii)                              Payment
Intangibles;


 


(xviii)                           Software;


 


(xix)                                   all
Commercial Tort Claims arising out of, relating to or in connection with all or
any part of the Inventory, Equipment or Documents of Borrower;


 


(xx)                                      all
cash and cash instruments;


 


(xxi)                                   all
other tangible and intangible personal property whatsoever of the Borrower; and


 


(xxii)                                (a) the Membership
Interest and any and all certificates representing the Membership Interest (“Membership
Certificates”) as listed on Annex A attached hereto, and all
dividends, cash, options, warrants, instruments, chattel paper, other rights
and property or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for the Membership Interest; (b) all
additional membership interests, shares of stock or other equity interest of
Borrower in any Project Company, at any time acquired by Borrower in any
manner, and the certificates representing such additional membership interests,
shares or other equity interest of Borrower in such Project Company (any such
additional membership interests, shares or other equity interest of Borrower in
such Project Company shall constitute part of the Membership Interest), and all
dividends, cash, options, warrants, instruments, chattel paper, other rights
and property or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such membership
interests, shares or other equity interest of Borrower in such Project Company;
(c) all of Borrower’s rights to receive income, gain, profit, loss or
other items allocated or distributed to Borrower under the LLC Agreements; (d) all
rights to receive all distributions of any nature whatsoever from any Project
Company with respect to such Membership Interest, if any; (e) all of
Borrower’s capital or ownership interest, including capital accounts, in each
Project Company, and all accounts, 


 


4

















 


deposits
or credits of any kind with each Project Company related to or required in
connection with the Membership Interest; (f) all of Borrower’s voting
rights in (if any), or rights to control or direct the affairs (if any), of
each Project Company; (g) all of Borrower’s right, title and interest, as
a member of each Project Company, in or to any and all of each Project Company’s
assets or properties; (h) all other right, title and interest in or to
each Project Company, and all rights to receive income, profit or other
distributions from each Project Company, of any nature whatsoever, in each
case, as such rights are derived from Borrower’s Membership Interest in each
Project Company;  (i) all claims of Borrower
for damages arising out of or for breach of or default relating to the
Collateral (including under or in connection with the LLC Agreements); (j) all
rights of Borrower to terminate, amend, supplement, modify or waive performance
under the LLC Agreements, to perform thereunder and to compel performance and
otherwise exercise all remedies thereunder; (k) without
affecting the obligations under any provision prohibiting that action under any
Financing Document, in the event of any consolidation or merger involving any
Project Company in which such Project Company is not the surviving entity, (x) all
shares, securities, membership, partnership or ownership interests of the
successor entity formed by or resulting from that consolidation or merger, and (y) all
other consideration (including all personal property, tangible or intangible)
received in exchange for such Collateral;  (l) all of Borrower’s interests in the Applicable
Permits, if any, to the extent permitted by applicable Governmental Rules; (m) all of Borrower’s right, title and interest
in the Collateral (including under or in connection with the LLC Agreements);
and


 


(xxiii)                          all
Proceeds of any of the Collateral, all Accessions to and substitutions and
replacements for, any of the Collateral, and all offspring, rents, profits and
products of any of the Collateral.


 


The foregoing
notwithstanding, the term “Collateral” shall not include (i) contracts and
agreements which by their terms or by operation of law prohibit or do not allow
assignment or which would become void solely by virtue of a security interest
being granted therein, in each case only for so long as such restriction is in
place and no such restriction was agreed with the intent to undermine the
security interest granted therein, or (ii) any Applicable Permits or other
permits or any insurance policies that by their terms or by operation of law
would become void, voidable, terminable or revocable or in respect of which
Borrower would be deemed to be in breach or default thereunder if pledged or
assigned hereunder or if a security interest therein were granted hereunder, to
the extent necessary to avoid such voidness, voidability, revocability, breach
or default.


 


5

















 


(b)                                 Nature of Security Interest.  The granting of the foregoing security
interest does not make Security Agent or any Secured Party a successor to
Borrower as a member in any Project Company, and none of Security Agent, any
Secured Party or any of their successors or assigns hereunder shall be deemed
to have become a member in any Project Company by accepting this Agreement or
exercising any right granted herein unless and until such time, if any, when
Security Agent, any Secured Party or any such successor or assign expressly
becomes a member in any Project Company after a foreclosure upon the
Collateral.  Notwithstanding anything
herein to the contrary, none of Security Agent, the Secured Parties, or any of
their successors or assigns shall be deemed to have assumed or otherwise become
liable for any debts or obligations of any Project Company or of Borrower by
virtue of the security interest granted hereunder (except to the extent, if
any, that Security Agent, any Secured Party or any of their successors or
assigns hereafter expressly becomes a member in any Project Company).


 


(c)                                  Delivery of Agreements.  Borrower has heretofore delivered or
concurrently with the delivery hereof is delivering to Security Agent, an
executed counterpart or certified copy of each LLC Agreement and each of the
Assigned Agreements in existence on the date hereof.  Borrower will likewise, to the extent
required under the Financing Agreement deliver to Security Agent a copy of an
executed counterpart or certified copy of each Additional Project Document and
each future lease or future easement relating to the Project or any part
thereof and amendments and supplements to the foregoing, included in the
Collateral, as they are entered into by Borrower promptly upon the execution
thereof.  Notwithstanding anything to the
contrary contained herein, no such Additional Project Document, or material
future lease, or other material agreement related to the Project may be entered
into by Borrower without the prior written approval of Security Agent, except
as otherwise permitted under the Financing Agreement and the LLC Agreements, as
applicable.


 


(d)                                 Continuing Liability Under Agreements.  Notwithstanding anything to the contrary
contained herein, (a) Borrower shall remain liable under each LLC
Agreement and each Assigned Agreement  to
perform all of the obligations undertaken by it thereunder, all in accordance
with and pursuant to the terms and provisions thereof, and (b) Security
Agent shall have no obligation or liability under any of such agreements by
reason of or arising out of this Agreement, nor shall Security Agent be
required or obligated in any manner to perform or fulfill any obligations of
Borrower thereunder or to make any payment or inquiry as to the nature or
sufficiency of any payment received by it, or present or file any claim, or
take any action to collect or enforce the payment of any amounts which may have
been assigned to it or to which it may be entitled at any time.


 


6

















 


(e)                                  Consent to Transfer:  Borrower, as the sole member of each Project
Company, hereby irrevocably consents (for all purposes under the LLC
Agreements) to the transfer of the Membership Interest of each Project Company
to any Person upon exercise by the Security Agent of its remedies in accordance
with the provisions of Section 6.


 


(f)                                    Defaults Under Assigned Agreements.  If a default by Borrower under any of the
Assigned Agreements shall occur and be continuing, and if such default could
reasonably be expected to result in a Material Adverse Effect as determined by
Administrative Agent (with consent of Required Applicable Lenders), then, upon
ten (10) Business Days’ notice to Borrower (or, if the applicable Assigned
Agreement has a cure period of less than twenty (20) days with respect to
defaults, then such ten (10) Business Days notice period shall be reduced
to the number of days which is half of the number of days provided to cure any
such default under such Assigned Agreement), Security Agent shall, at its
option, be permitted (but not obligated) to remedy any such default either
pursuant to the terms of any Consent in respect of such Assigned Agreement or
otherwise by giving written notice of such intent to Borrower and to the parties
to the Assigned Agreement or Assigned Agreements for which Security Agent
intends to remedy the default.  After
giving such notice of its intent to cure such default and upon the commencement
thereof, Security Agent will proceed to cure such default.  Any cure by Security Agent of Borrower’s
default under any of the Assigned Agreements shall not be construed as an
assumption by Security Agent or any other Secured Party of any obligations,
covenants or agreements of Borrower under such Assigned Agreement or any other
Assigned Agreement, and neither Security Agent nor any other Secured Party
shall be liable to Borrower or any other Person as a result of any actions
undertaken by Security Agent in curing or attempting to cure any such default,
except as otherwise set forth in the Financing Agreement or any applicable
Consent.  This Agreement shall not be
deemed to release or to affect in any way the obligations of Borrower under the
Assigned Agreements.


 


(g)                                 Intellectual Property.  For the purpose of enabling Security Agent to
exercise its rights, remedies, powers and privileges under Section 6
at that time or times as Security Agent is lawfully entitled to exercise those
rights, remedies, powers and privileges, and for no other purpose, Borrower
hereby grants to Security Agent, to the extent assignable or licensable in a
manner consistent with this Agreement and without payment of any royalty or
compensation, an irrevocable, nonexclusive license (exercisable without payment
of royalty or other compensation to Borrower) to use, assign, license or
sublicense any of the Intellectual Property of Borrower, together with
reasonable access to all media in which any of the licensed items may be
recorded or stored and to all computer programs used for the compilation or
printout of those items.


 


7

















 


(h)                                 Preservation of Security Interests.  Borrower shall:


 


(i)                                             upon
the acquisition after the date of this Agreement by Borrower of any
Certificated Securities, Instruments, Deposit Accounts, other Investment
Property, Electronic Chattel Paper, Letter-of Credit Rights, Motor Vehicles or
other Equipment covered by a certificate of title or ownership promptly (x) take
such action with respect to that Collateral as is specified for that type of
Collateral in Section 14 and (y) take all such other actions,
and authenticate or sign and file or record such other records or instruments,
as are necessary or as Security Agent may reasonably request to create, perfect
and establish the priority of the liens granted by this Agreement in any and
all of the Collateral, to preserve the validity, perfection or priority of the
liens granted by this Agreement in any and all of the Collateral or to enable
Security Agent to exercise its remedies, rights, powers and privileges under
this Agreement.


 


(ii)                                          upon
Borrower’s acquiring, or otherwise becoming entitled to the benefits of, any
Intellectual Property or upon or prior to Borrower’s filing, either directly or
through Security Agent, any licensee or any other designee, of any application
with any Governmental Authority for any Intellectual Property, in each case
after the date of this Agreement, execute and deliver such contracts,
agreements and other instruments as Security Agent may reasonably request to
create, perfect and establish the priority of the liens granted by this
Agreement in that Intellectual Property.


 


(iii)                                       whether
with respect to Collateral as of the date of this Agreement or Collateral in
which Borrower acquires rights in the future, authorize, give, authenticate,
execute, deliver, file or record any and all financing statements, notices,
contracts, agreements or other records or instruments, obtain any and all
Applicable Permits, and take all such other actions, as are necessary or as
Security Agent may reasonably request to create, perfect and establish the
priority of the liens granted by this Agreement in any and all of the
Collateral, to preserve the validity, perfection or priority of the liens
granted by this Agreement in any and all of the Collateral or to enable
Security Agent to exercise and enforce its remedies, rights, powers and
privileges under this Agreement.


 


(iv)                                      furnish
to Security Agent from time to time statements and schedules further
identifying and describing the Collateral pledged by Borrower hereunder and
such other reports in connection with the Collateral pledged by Borrower
hereunder as Security Agent may reasonably request, all in reasonable detail.


 


8

















 


(i)                                     Commercial Tort Claims.  Borrower agrees that, if it shall acquire any
interest in any Commercial Tort Claim (whether from another Person or because
such Commercial Tort Claim shall have come into existence), (i) Borrower
shall, immediately upon such acquisition, deliver to Security Agent, in each
case in form and substance reasonably satisfactory to Security Agent, a notice
of the existence and nature of such Commercial Tort Claim containing a
reasonably specific description of such Commercial Tort Claim, certified by
Borrower as true, correct and complete, (ii) the provisions of Section 2  shall apply to such Commercial Tort Claim
(and Borrower authorizes Security Agent to supplement this Agreement with a
description of such Commercial Tort Claim if Borrower fails to deliver the
supplement described in clause (i)), and (iii) Borrower shall execute and
deliver to Security Agent, in each case in form and substance reasonably
satisfactory to Security Agent, any certificate, agreement and other document,
and take all other action, deemed by Security Agent to be reasonably necessary
or appropriate for Security Agent to obtain, on behalf of the Secured Parties,
a first-priority, perfected security interest in all such Commercial Tort
Claims.


 


(j)                                     Obligations Unconditional.  The obligations of Borrower under this
Agreement shall be continuing, irrevocable, absolute and unconditional
irrespective of the value, genuineness, validity, regularity or enforceability
of any Financing Document or any other agreement or instrument referred to
therein or herein, or any substitution, release or exchange of any guarantee of
or security for any of the Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor (other than payment in full of all Obligations, subject to Section 2(l)),
it being the intent of this Section 2(j) that the obligations
of Borrower hereunder shall be absolute and unconditional under any and all
circumstances.  Without limiting the
generality of the foregoing, it is agreed that the occurrence of any one or
more of the following shall not alter or impair the liability of Borrower
hereunder, which shall remain absolute and unconditional as described above
without regard to and not be released, discharged or in any way affected
(whether in full or in part) by:


 


(i)                                             at
any time or from time to time, without notice to Borrower, the time for any
performance of or compliance with any of the Obligations shall be extended, or
such performance or compliance shall be waived;


 


(ii)                                          any
of the acts mentioned in any of the provisions of any Financing Document shall
have occurred;


 


9














 


(iii)                                       the
maturity of any of the Obligations shall be accelerated, or any of the
Obligations shall be modified, supplemented or amended in any respect, or any
right under any Financing Document or any other agreement or instrument
referred to therein or herein shall be waived or any guarantee of any of the
Obligations or any security therefor shall be released or exchanged in whole or
in part or otherwise dealt with;


 


(iv)                                      any
lien granted to, or in favor of, Security Agent as security for any of the Obligations
shall fail to be perfected; or


 


(v)                                         any
bankruptcy, insolvency, reorganization, arrangement, readjustment of debt,
liquidation or dissolution proceeding commenced by or against Security Agent,
Borrower, any Project Company or any other 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.


 


Should, after
the occurrence and during the continuation of an Event of Default, any money
due or owing under this Agreement not be recoverable from Borrower for any
reason, whether by operation of law or otherwise, then, in any such case, such
money shall nevertheless be recoverable by Security Agent from the proceeds of
the Collateral as though Borrower were the principal debtor in respect thereof
and not merely a pledgor hereunder.


 


(k)                                  Waiver.


 


(i)                                             Borrower
hereby expressly waives promptness, diligence, presentment, demand for payment
or performance and protest; filing of claims with any court; any proceeding to
enforce any provision of the Financing Documents; notice of acceptance of and
reliance on this Agreement by the Secured Parties, notice of the creation of
any Obligations of Borrower or any Project Company, and any other notice
whatsoever (other than those specifically provided under the Financing
Documents); any requirement that Security Agent exhaust any right, power or
remedy or proceed or take any other action against any Project Company under
any Financing Document to which it is a party or any lien or encumbrance on, or
any claim of payment against, any property of any Project Company or any other
agreement or instrument referred to therein, or any other Person under any
guarantee of, or lien securing, or claim for payment of, any of the
Obligations; any right to require a proceeding by Security Agent first against
any Project Company whether to marshal any assets or to exhaust any right or
take any action against any Project Company or any other 


 


10

















 


Person
or any collateral or otherwise, any diligence in collection or protection for
realization upon any Obligation, any obligation hereunder or any collateral
security for any of the foregoing; any right of protest, presentment, notice or
demand whatsoever, and any claims of waiver, release, surrender, alteration or
compromise and all defenses, set-offs, counterclaims, recoupments, reductions,
limitations, impairments or terminations, whether arising hereunder or
otherwise.  Borrower further waives (A) any
requirement that any other Person be joined as a party to any proceeding for
the enforcement by Security Agent of any Obligation and (B) the filing of
claims by Security Agent in the event of the receivership or bankruptcy of
Borrower or any Project Company. 
Security Agent shall have the right to bring suit directly against
Borrower with respect to the obligations owed to Security Agent hereunder
either prior to or concurrently with any lawsuit against, or without bringing
any suit against Borrower, any Project Company or any other Person.


 


(ii)                                          The
enforceability and effectiveness of this Agreement and the liability of
Borrower, and the rights, remedies, powers and privileges of Security Agent,
under this Agreement shall not be affected, limited, reduced, discharged or
terminated, and Borrower hereby expressly waives to the fullest extent
permitted by law any defense now or in the future arising by reason of:


 


A.                                   the illegality, invalidity or unenforceability
of all or any part of the Obligations, any Financing Document or any agreement,
security document, guarantee or other instrument relating to all or any part of
the Obligations;


 


B.                                     any disability or other defense with
respect to all or any part of the Obligations of any Project Company or
Borrower, including the effect of any statute of limitations that may bar the
enforcement of all or any part of the Obligations;


 


C.                                     the illegality, invalidity or
unenforceability of any security or guarantee for all or any part of the
Obligations or the lack of perfection or continuing perfection or failure of
the priority of any lien or encumbrance on any collateral for all or any part
of the Obligations;


 


D.                                    the cessation, for any cause whatsoever, of
the liability of any Project Company that is a guarantor of all or any part of
the Obligations (other than, subject to Section 2(l), by reason of
the full payment and performance of all Obligations);


 


11

















 


E.                                      other than notice expressly required under
this Agreement, any failure of Security Agent to give notice of sale or other
disposition of any collateral (including any notice of any judicial or
nonjudicial foreclosure or sale of any interest in real property serving as
collateral for all or any part of the Obligations) for all or any part of the
Obligations to any Project Company, Borrower or any other Person or any defect
in, or any failure by any Project Company, Borrower or any other Person to
receive, any notice that may be given in connection with any sale or
disposition of any collateral for all or any part of the Obligations;


 


F.                                      any failure of Security Agent to comply
with applicable laws in connection with the sale or other disposition of any
collateral (other than the Collateral) for all or any part of the Obligations;


 


G.                                     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 Project Company or Borrower or may
preclude any Project Company or Borrower from obtaining reimbursement,
contribution, indemnification or other recovery from any Project Company or
Borrower or any other Person and even though such Project Company or Borrower
may not, as a result of such foreclosure, sale or election of remedies, be
liable for any deficiency;


 


H.                                    any act or omission of Security Agent or
any other Person that directly or indirectly results in or aids the discharge
or release of Borrower or any Project Company 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;


 


I.                                         any law which provides that the obligation
of a surety or guarantor must neither be larger in amount nor in other respects
more burdensome than that of the principal or which reduces a surety’s or
guarantor’s obligation in proportion to the principal obligation;


 


J.                                        any counterclaim, set-off or other claim
which Borrower has or alleges to have with respect to all or any part of the
Obligations;


 


12

















 


K.                                    any failure of Security Agent to file or
enforce a claim in any bankruptcy or other proceeding with respect to any
Person;


 


L.                                      the election by Security Agent, in any
bankruptcy proceeding of any Person, of the application or non-application of Section 1111(b)(2) of
the United States Bankruptcy Code;


 


M.                                 any extension of credit or the grant of any
lien or encumbrance under Section 364 of the United States Bankruptcy
Code;


 


N.                                    any use of cash collateral under Section 363
of the United States Bankruptcy Code;


 


O.                                    any agreement or stipulation with respect
to the provision of adequate protection in any bankruptcy proceeding of any
Person;


 


P.                                      the avoidance of any lien or encumbrance in
favor of Security Agent for any reason;


 


Q.                                    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


 


R.                                     any action taken by Security Agent that is
authorized by this Section 2(k) or otherwise in this Agreement
or by any other provision of any Financing Document or any omission to take any
such action.


 


(l)                                     Reinstatement.  The obligations of Borrower under this Section 2
shall be automatically reinstated if and to the extent that for any reason any
payment by or on behalf of Borrower in respect of the Obligations is rescinded
or must be otherwise restored by any holder of any of the Obligations, whether
as a result of any proceedings in bankruptcy or reorganization or
otherwise.  Borrower agrees that it will
indemnify Security Agent on demand for all reasonable costs and expenses
(including reasonable and reasonably documented fees of counsel) incurred by
Security Agent in connection with such rescission or restoration, including any
such costs and expenses incurred in defending against any claim alleging that
such payment constituted a preference, fraudulent transfer or similar payment
under any bankruptcy, insolvency or similar law.


 


13

















 


(m)                               Subrogation. 
Borrower hereby waives all rights of subrogation or contribution,
whether arising by contract or operation of law (including, without limitation,
any such right arising under any bankruptcy, insolvency or other similar law)
or otherwise by reason of any payment by it pursuant to the provisions of this Section 2
and further agrees for the benefit of Security Agent that any such payment by
it shall be characterized as a contribution of capital by Borrower to the
applicable Project Company (or an investment in the equity capital of the
applicable Project Company by Borrower). 
If any amount shall be paid to Borrower on account of such subrogation
rights at any time prior to the indefeasible and unconditional payment,
discharge or performance in full of the Obligations, such amount shall be held
in trust for the benefit of Security Agent (if applicable) and shall forthwith
be paid to Security Agent to be credited and applied upon and against the
Obligations, to the extent then matured, in accordance with the terms of the
relevant Financing Documents or, to the extent not then matured or existing, be
held by Security Agent as collateral security for the Obligations.


 


(n)                                 Remedies. 
Borrower agrees that, as between Borrower and Security Agent, any
Obligations of Borrower to the Secured Parties under any of the Financing
Documents to which it is a party may be declared to be forthwith due and
payable notwithstanding any stay, injunction or other prohibition preventing
such declaration (or such Obligations from becoming automatically due and
payable) as against Borrower or any Project Company, and that, in the event of such
declaration (or such Obligations being deemed to have become automatically due
and payable), such Obligations (whether or not due and payable by Borrower or
any Project Company) shall forthwith become due and payable by Borrower for
purposes of this Agreement.  For the
avoidance of doubt, it is understood and agreed that any amount payable by
Borrower pursuant to the immediately preceding sentence may be applied to the
payment or prepayment (as the case may be) of the Obligations of Borrower or
any Project Company, as applicable (whether or not due and payable).  Each of the obligations of Borrower under
this Agreement is separate and independent of each other obligation of Borrower
hereunder and separate and independent of the Obligations, and Borrower agrees
that a separate action or actions may be brought and prosecuted by Security
Agent against Borrower to enforce this Agreement, irrespective of whether any
action is brought by Security Agent against Borrower or any Project Company
under any relevant Financing Document or whether Borrower or any Project
Company is joined in any such action or actions.


 


(o)                                 Continuing Obligation.  The obligations of Borrower provided in this Section 2
are continuing obligations and shall apply to all Obligations whenever arising.


 


14

















 


Section 3. Delivery of Collateral.


 


All Membership Certificates, instruments or other documents
representing or evidencing the Membership Interest, if any, shall be endorsed
for transfer or accompanied by duly executed instruments of transfer or
assignments in blank, all in a form satisfactory to Security Agent, and shall
be delivered promptly to Security Agent or its nominee upon execution of this
Agreement.  Security Agent shall have the
right, at any time in its discretion and without prior notice to Borrower, but
only following the occurrence and during the continuance of an Event of
Default, to transfer to or register in the name of Security Agent or its
nominee, any or all such certificates, instruments or other documents, provided,
that Security Agent shall promptly notify Borrower and the applicable Project
Company of such transfer or registration. 
Such certificates, instruments and other documents representing the
Membership Interest shall be returned to Borrower promptly upon satisfaction of
the Obligations.


 


Section 4. Obligations Secured.


 


This Agreement and all of the Collateral hereunder assigned to Security
Agent, for the benefit of the Secured Parties, secures the payment and performance
when due of all Obligations to Security Agent and the other Secured Parties
under the Financing Documents.


 


Section 5. Use of Collateral.


 


Except for the Membership Certificates, so long as no Event of Default
has occurred and is continuing, Borrower reserves the right to, and shall be
entitled to, use and possess the Collateral and exercise all of its right,
title and interest in, to and under the Collateral, including under the LLC
Agreements and to receive and use (subject to the terms of the Financing
Agreement) all income, profit and other distributions in respect of the
Collateral.  Provided that no Event of
Default shall have occurred and be continuing, Borrower shall be permitted to
exploit, use, enjoy, protect, license, sublicense, assign, sell, dispose of or
take other actions with respect to the Intellectual Property of the Project
Companies in the ordinary course of its business to the extent permitted by the
Financing Agreement and the other Operative Documents.


 


Section 6. Remedies.


 


(a)                                  Subject to the terms of the Financing
Documents, if any Event of Default has occurred and is continuing, Security
Agent shall have the right, at its election and at the direction of the
Required Applicable Lenders, but not the obligation, to do any of the
following:


 


(i)                                             declare
any or all amounts payable by Borrower under the Financing Documents to be due
and payable immediately, and thereupon the same shall become immediately due
and payable;


 


(ii)                                          subject
to Section 10, vote or exercise any and all of Borrower’s rights or
powers under the LLC Agreements including 


 


15

















 


any of
Borrower’s rights or powers to manage or control the Project Companies;


 


(iii)                                       demand,
sue for, collect or receive any money or property at any time payable to or
receivable by Borrower on account of or in exchange for all or any part of the
Collateral;


 


(iv)                                      cause
any action at law or suit in equity or other proceeding to be instituted and
prosecuted to collect any Collateral or enforce any Obligation or rights
hereunder or included in the Collateral, including specific enforcement of any
covenant or agreement contained herein or in the LLC Agreements, or to
foreclose or enforce the security interest in all or any part of the Collateral
granted herein, or to enforce any other legal or equitable right vested in it
by this Agreement or by law;


 


(v)                                         sell
or otherwise dispose of any or all of the Collateral or cause any or all of the
Collateral to be sold or otherwise disposed of in one or more sales or
transactions, at such prices as Security Agent may deem commercially
reasonable, and for cash or on credit or for future delivery, without
assumption of any credit risk, at any broker’s board or at public or private
sale, without demand of performance or notice of intention to sell or of time
or place of sale (except such notice which under applicable law cannot be
waived, in which case such notice shall be in accordance with the provisions
hereof to the extent permitted by applicable law), it being agreed that
Security Agent may be a purchaser on behalf of the Secured Parties or on its
own behalf at any such sale and that Security Agent, any Secured Party or any
other Person who may be a bona fide purchaser for value of any or all of the Collateral
without notice of any claims on any or all of the Collateral so sold shall
thereafter hold the same absolutely free from any claim or right of whatsoever
kind, including any equity of redemption, of Borrower or any Project Company,
any such demand, notice or right and equity being hereby expressly waived and
released;


 


(vi)                                      incur
reasonable expenses, including reasonable attorneys’ fees, consultants’ fees,
and other costs appropriate to the exercise of any right or power under this
Agreement;


 


(vii)                                   perform
any obligation of Borrower hereunder, under any other Financing Document, under
the LLC Agreements or the Assigned Agreements, and make payments, purchase,
contest or compromise any encumbrance, charge, or lien, and pay taxes and
expenses, without, however, any obligation to do so;


 


16

















 


(viii)                                secure
the appointment of a receiver for Borrower, of the Project or any part thereof
and/or the Collateral or any part thereof without prior notice to Borrower or
any Project Company;


 


(ix)                                        proceed
to protect and enforce the rights vested in it by this Agreement, including the
right to cause all revenues hereby pledged as security and all other moneys
pledged hereunder to be paid directly to it, and to enforce its rights
hereunder to such payments and all other rights hereunder by such appropriate
judicial proceedings as it shall deem most effective to protect and enforce any
of such rights, either at law or in equity or otherwise, whether for specific enforcement
of any covenant or agreement, or in aid of the exercise of any power therein or
herein granted, or for any foreclosure hereunder and sale under a judgment or
decree in any judicial proceeding, or to enforce any other legal or equitable
right vested in it by this Agreement or by law;


 


(x)                                           require
Borrower to assemble the Collateral at the expense of Borrower and (to the
extent moveable) make it available to Security Agent at a place to be
designated by Security Agent which is reasonably convenient to both parties;


 


(xi)                                        require
Borrower to take any actions that are necessary or requested by Security Agent
to preserve the value of the Collateral and the validity, perfection or
priority of the liens granted by this Agreement in any portion of the Collateral;


 


(xii)                                     take
possession of the Collateral (other than the membership Certificates that have
been delivered to Security Agent pursuant to Section 3) and render
it usable, and repair and renovate the same, without, however, any obligation
to do so, and enter upon the property of Borrower or any other location where
the same may be located for that purpose, control, manage, operate, rent and
lease the Collateral and apply the same in accordance with the the Financing
Documents; or


 


(xiii)                                  exercise
any other or additional rights or remedies granted to a secured party under the
UCC.


 


(b)                                 Minimum Notice Period.  If, pursuant to applicable law, prior notice
of any such action set forth above is required to be given to Borrower or any
Project Company, Borrower and applicable Project Company hereby acknowledge and
agree that the minimum time required by such applicable law, or if no minimum
is specified, of ten (10) Business Days, shall be deemed a reasonable
notice period.  Security Agent shall not
be obligated to make any sale of Collateral regardless of notice of sale having
been given.  Security Agent may adjourn
any public or private 


 


17

















 


sale
from time to time by announcement at the time and place fixed therefor, and
such sale may, without further notice, be made at the time and place to which
it was so adjourned.


 


(c)                                  Payment of Costs.  Borrower agrees to pay to Security Agent,
within five (5) Business Days of its demand therefor, all reasonable
out-of-pocket costs and expenses (including reasonable and reasonably
documented attorneys’ fees and expenses) incident to its enforcement,
protection and preservation of any of its rights and claims under this
Agreement.  Any amount required to be
paid by Borrower pursuant to the terms hereof shall bear interest at the
Default Rate or the maximum rate permitted by law, whichever is less, from the
date due until payment, and shall constitute additional indebtedness secured by
this Agreement.


 


(d)                                 Application of Proceeds.  The proceeds of any sale of, or other
realization upon, all or any part of the Collateral shall be applied in
accordance with the Financing Documents. 
In the event that the proceeds of any sale or other realization upon the
Collateral by Security Agent are insufficient to pay all Obligations, Borrower
shall be liable for the deficiency as calculated in accordance with the the
Financing Documents.  Any excess proceeds
after full satisfaction of the Obligations shall be returned promptly to
Borrower.


 


Section 7. Remedies Cumulative; Delay Not Waiver.


 


(a)                                  No right, power or remedy herein conferred
upon or reserved to Security Agent or the Secured Parties is intended to be
exclusive of any other right, power or remedy, and every such right, power and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right, power and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. 
The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.


 


(b)                                 No delay or omission of Security Agent to
exercise any right or power accruing upon the occurrence and during the
continuation of any Event of Default shall impair any such right or power of
Security Agent, nor shall it be construed as a waiver of any such Event of
Default or an acquiescence therein. 
Every power and remedy given by this Agreement may be exercised from
time to time, and as often as shall be deemed expedient, by Security Agent upon
the occurrence and during the continuation of an Event of Default.  Each and every default by Borrower in payment
hereunder shall give rise to a separate cause of action hereunder, and Security
Agent may enforce its security interest in concurrent or successive actions and
in one or several consolidated or 


 


18

















 


independent
judicial actions or lawfully taken nonjudicial proceedings, or both.


 


(c)                                  Security Agent may perform any of its
rights and duties hereunder by or through agents and is entitled to retain
counsel and to act in reliance upon the advice of such counsel concerning all
matters pertaining to its rights and duties hereunder.


 


Section 8. Representations and Warranties of Borrower.


 


Borrower represents and warrants, as of the date hereof, to Security
Agent and the Secured Parties as follows:


 


(a)                                  Borrower has not assigned any of its rights
under the LLC Agreements, the Assigned Agreements or any of the Collateral
except as provided in this Agreement and the other Financing Documents.


 


(b)                                 Borrower is the legal and equitable owner
of the Collateral (including the Membership Interest in each Project Company),
subject to no mortgages, liens, charges, or encumbrances of any kind other than
Liens granted pursuant to the Financing Documents and Permitted Liens set forth
in clauses (b), (c) and (f) of the definition thereof, and has full
power and lawful authority to pledge, assign and grant a security interest in
the Collateral hereunder.


 


(c)                                  Borrower has not executed and is not aware
of any effective financing statement, security agreement or other instrument
similar in effect covering all or any part of the Collateral on file in any
recording office or any agreement or instrument granting an interest in the
Collateral that is capable of being so recorded, except such as may have been
filed pursuant to this Agreement and the other Financing Documents, or pursuant
to the documents evidencing Permitted Liens.


 


(d)                                 Borrower (i) is a duly formed and
validly existing limited liability company in good standing under the laws of
Delaware; (ii) is authorized to do business in each jurisdiction where the
character of its properties or the nature of its activities makes such
qualification necessary, except where the failure to do so would not reasonably
be expected to result in a Material Adverse Effect; and (iii) has the
power and authority to own its property and assets and to transact the business
in which it is engaged.


 


(e)                                  Borrower (i) has the power and
authority to execute, deliver and perform its obligations under the Financing
Documents, the Assigned Agreements, the LLC Agreements and this Agreement, and
to pledge and assign the Collateral; (ii) has taken all necessary action
to authorize the execution, delivery and performance of the Financing
Documents, the Assigned Agreements, the LLC Agreements and this Agreement;


 


19














 


and (iii) has
duly executed and delivered the Financing Documents, the Assigned Agreements,
the LLC Agreements and this Agreement. 
The Financing Documents, the Assigned Agreements, the LLC Agreements and
this Agreement constitute the legal, valid and binding obligations of Borrower,
enforceable in accordance with their respective terms, except as the
enforceability thereof may be limited by applicable bankruptcy, insolvency,
moratorium, reorganization or other similar laws affecting the enforcement of creditors’
rights and subject to general equitable principles.


 


(f)                                    The LLC Agreements and the Assigned
Agreements have not been amended since the date of their execution, except as
otherwise disclosed to Security Agent, and are in full force and effect.  There exists no default, or event that with
the passage of time, the giving of notice or both would become a default by
Borrower under the LLC Agreements or the Assigned Agreements.


 


(g)                                 The execution and delivery of, and
performance by Borrower under, this Agreement, and the consummation of the
transactions contemplated herein, will not (i) violate any provision of
any material agreement to which Borrower is a party or any of its property or
assets is bound, including the LLC Agreements and the Assigned Agreements, or (ii) conflict
with any material law, order, rule or regulation applicable to Borrower,
of any court or any federal or state government, regulatory body or
administrative agency, or any other governmental body having jurisdiction over
Borrower or any of its properties.


 


(h)                                 Other than the Financing Documents, there
is no existing agreement, option, right or privilege capable of becoming an
agreement, option or right pursuant to which Borrower could be required to sell
or otherwise dispose of all or a part of the Membership Interest.


 


(i)                                     No consent of any Governmental Authority is
required for the transfer of the Membership Interest except as may be required
by applicable laws affecting the offering and sale of securities generally or
the regulation of ownership or operation of utility assets under the laws of
the State of New York, the FPA, PUHCA and any other Federal regulation
regarding EWG’s.


 


(j)                                     [Intentionally Omitted]


 


(k)                                  Perfection of Security Interest. 
The security interests granted to Security Agent, for the benefit of
Secured Parties, pursuant to this Agreement, in the Collateral (a) upon
filing of appropriate financing statements, constitute as to personal property
included in the Collateral and, with respect to subsequently acquired personal
property included in the Collateral, will constitute, a perfected security
interest under the UCC to 


 


20

















 


the
extent a security interest can be perfected by filing or, in the case of the
Membership Certificates (such certificates being Certificated Securities), by
possession by or on behalf of the secured party and (b) are, and, with
respect to such subsequently acquired personal property, will be, as to the
Collateral perfected under the UCC as aforesaid, superior and prior to the
rights of all third Persons now existing or hereafter arising whether by way of
mortgage, lien, security interests, encumbrance, assignment or otherwise (other
than Permitted Liens that, pursuant to applicable law,
are entitled to a higher priority than the liens granted by this
Agreement).  Except to the extent possession of portions
of such Collateral is required for perfection, all such action as is necessary
has been taken to establish and perfect Security Agent’s, for the benefit of
Secured Parties, rights in and to such Collateral to the extent Security Agent’s
security interest (for the benefit of the Secured Parties) can be perfected by
filing, including any recording, filing, registration, giving of notice or
other similar action.  No filing,
recordation, re-filing or re-recording other than those listed on Schedule A
hereto (as the same may be supplemented from time to time) is necessary to
perfect and maintain the perfection of the Liens created by this Agreement on
the Collateral, and all such filings or recordings will have been made to the
extent Security Agent’s, for the benefit of Secured Parties, security interest
can be perfected by filing (except to the extent that such filings or
recordings are, by their nature, filings or recordings to be made at a later
date).  Borrower has properly delivered
or caused to be delivered to Security Agent all such Collateral that requires
perfection of the Lien and security interest described above by possession.


 


(l)                                     Place of Business. 
Borrower’s principal place of business and chief executive office is
located at 179 Lincoln Street, Suite 500, Boston, MA 02111.  Borrower has not changed its location (as
defined in Section 9-307 of the UCC) or previously changed its name.


 


(m)                               After-Acquired Collateral. 
It is understood and agreed that the foregoing representations and
warranties shall apply only to the Collateral delivered on the date hereof and
that, with respect to Collateral delivered thereafter, Borrower shall, upon the
written request of Security Agent, be required to make representations and
warranties in form and substance substantially similar to the foregoing in
supplements hereto and that such representations and warranties contained in
such supplements hereto shall be applicable to such Collateral hereafter
delivered.


 


(n)                                 Pledged Interests. 
The Membership Interest in each Project Company is duly authorized,
validly existing, fully paid and nonassessable, and such Membership Interest is
not subject to any contractual restriction, or any restriction under the
organizational documents of any Project Company 


 


21

















 


or
Borrower upon the transfer of such Membership Interest (except for any such
restriction contained in any Financing Document).  Such Membership Interest exists in a
certificated form.  No Person other than
Borrower is the registered owner of the Membership Interest in each Project Company.


 


Section 9. Covenants of Borrower.


 


Borrower covenants to and in favor of Security Agent
and the other the Secured Parties as follows:


 


(a)           Borrower shall maintain its existence
as a Delaware limited liability company and all material rights, privileges,
and franchises necessary to perform its obligations hereunder.


 


(b)                                 Borrower shall perform and comply, in all
material respects, with all obligations and conditions on its part to be
performed hereunder, under the LLC Agreements, the Assigned Agreements, the
Financing Documents and with respect to the Collateral.


 


(c)                                  Borrower will, so long as any Obligations
shall be outstanding, warrant and defend its title to the Collateral and the
interest of Security Agent in the Collateral against any claim or demand of any
Persons (except for Permitted Liens).


 


(d)                                 Borrower shall not directly or indirectly
create, incur, assume or suffer to exist any liens on or with respect to any
part of the Collateral (other than Liens granted pursuant to the Financing
Documents or clauses (b), (f), (l) and (m) of the definition of
Permitted Liens).  Borrower will at its
own cost and expense promptly take such action as may be necessary to discharge
any such liens.


 


(e)                                  Without the prior written consent of
Security Agent, such consent not to be unreasonably withheld, Borrower will not
file or authorize to be filed in any jurisdiction any financing statements
under the UCC or any like statement with respect to the Collateral, in which
Security Agent is not named as the sole secured party for the benefit of the
Secured Parties.


 


(f)                                    Borrower will not cause, suffer or permit
the sale, assignment, conveyance or other transfer of all or any portion of
Borrower’s Membership Interest in any Project Company other than in accordance
with Sections 8.2 and 8.17 of the Financing Agreement and the Energy Hedge.


 


(g)                                 Without the prior written consent of
Security Agent, such consent in respect to modification or amendment not to be
unreasonably withheld, or except as otherwise permitted by the Financing
Agreement, Borrower 


 


22

















 


shall
not terminate, modify or amend the LLC Agreements or the Assigned Agreements.


 


(h)                                 Borrower shall give to Security Agent
prompt notice of (i) each demand or notice received by it relating to the
LLC Agreements or the Assigned Agreements; and (ii) any default, event of
default or event which with the giving of notice or the passage of time or both
might reasonably be expected to become a default under the LLC Agreements or
the Assigned Agreements, whether by any Project Company, Borrower or any other
Person, of which Borrower has knowledge or as to which Borrower has received
notice.


 


(i)                                     If Borrower in its capacity as a member
of each Project Company receives any income or distribution of money or
property of any kind from any Project Company while an Event of Default has
occurred and is continuing (other than as permitted hereby or under the
Financing Agreement), Borrower shall hold such income or distribution as
trustee for and shall deliver the same to Security Agent.


 


(j)                                     Borrower will, at all times, keep
accurate and complete records of the Collateral.  Upon three Business Days’ prior notice,
Borrower shall permit representatives of Security Agent at any time during
normal business hours of Borrower to inspect and make abstracts from Borrower’s
books and records pertaining to the Collateral. 
Upon the occurrence and continuance of any Event of Default, at Security
Agent’s request, Borrower shall promptly deliver copies (or, where requested by
Security Agent, and where available, originals) of any and all such records to
Security Agent.


 


(k)                                  Borrower shall not cause, consent to, or
permit any termination, material amendment or modification to, or waiver of
timely compliance with any material terms or conditions of the LLC Agreements
without the prior written consent of Administrative Agent (with the consent of
the Required Applicable Lenders, acting reasonably).


 


(l)                                     Borrower shall give Security Agent at
least 10 Business Days’ notice of a change in location of its place of business
and chief executive office and shall, at the expense of Borrower, execute and
deliver such instruments and documents as may be required by Security Agent to
maintain the security interest in the Collateral created hereunder.


 


(m)                               Any indebtedness owed to Borrower by any
Project Company shall be subordinated pursuant to the terms of Exhibit M
of the Financing Agreement (the terms of which are incorporated herein by
reference).


 


(n)                                 Except as otherwise permitted under the
Financing Agreement, Borrower will not make any assignment of its rights under
the LLC 


 


23

















 


Agreements
or the Assigned Agreements other than any assignment pursuant to this Agreement
or any other Financing Document.


 


Section 10. Voting Rights.


 


(a)                                  Unless an Event of Default has occurred
and is continuing (and not waived by Administrative Agent or Security Agent),
Borrower shall be entitled to exercise all the rights and powers of a holder of
such interest, including the right to vote from time to time exercisable in
respect of the Membership Interest in each Project Company and to give proxies,
consents and waivers in respect thereof. 
No such action may be taken if such action would violate or be
inconsistent with the Financing Agreement, any Financing Document or this
Agreement.


 


(b)                                 Upon the occurrence and continuance of an
Event of Default that has not been waived, Security Agent may give Borrower a
notice prohibiting Borrower from exercising the rights and powers of a holder
of the Membership Interest in each Project Company, including the right to vote
such Membership Interest, at which time (and until such time that such Event of
Default has been cured or waived), all such rights of Borrower will cease
immediately and Security Agent will have the right to exercise the rights and
powers related to such Membership Interest, including the right to vote.


 


(c)                                  Upon the occurrence and continuance of an
Event of Default that has not been waived, and whether or not Security Agent
exercises any available right to declare any Obligation due and payable or seek
or pursue any other right, remedy, power or privilege available to it under
applicable law, this Agreement or any other Financing Document, all dividends
and other distributions on all Securities included in the Collateral shall be
paid directly to a Collateral Account designated by Security Agent and retained
by it in such account as part of the Collateral, subject to the terms of this
Agreement and the other Financing Documents, and, if Security Agent so requests,
Borrower shall execute and deliver to Security Agent appropriate additional
dividend, distribution and other orders and instruments to that end, provided
that if such Event of Default is cured, any such dividend or distribution paid
to Security Agent prior to its cure shall, upon request of Borrower (except to
the extent applied to the Obligations), be returned by Security Agent to
Borrower.


 


Section 11. Certain Consents and Waivers.


 


(a)                                  Borrower hereby waives, to the maximum
extent permitted by law, and only while this Agreement is in effect (subject to
Section 25 below), (i) all rights and remedies afforded to
guarantors, sureties and other Persons under applicable law, including
limitations on the recovery of a deficiency under an obligation secured by a
deed of trust on real 


 


24

















 


property
if the real property is sold under a power of sale contained in the deed of
trust, including specifically, the rights and remedies available under the laws
of the State of New York, and all defenses based on any loss, whether as a
result of any such sale or otherwise, of Borrower’s right to recover any amount
from any Project Company, whether by right of subrogation or otherwise; (ii) all
rights under any law to require Security Agent to pursue any Project Company or
any other Person, or to proceed against or exhaust any security held by
Security Agent, or to pursue any other remedy before proceeding against
Borrower; (iii) all rights of reimbursement or subrogation, including the
rights and protections under the laws of the State of New York, all rights to
enforce any remedy that Security Agent or the Secured Parties may have against
any Project Company, and all rights to participate in any security held by
Security Agent until the Obligations have been satisfied in full; (iv) all
rights to require Security Agent to give any notices of any kind, including
notices of nonpayment, nonperformance, notice of intent to accelerate, notice
of acceleration, protest, dishonor, default, delinquency or acceleration, or to
make any presentments, demands or protests, except as expressly provided in the
Financing Documents; (v) all rights to assert the bankruptcy or insolvency
of Borrower or any Project Company as a defense hereunder or as the basis for
rescission hereof; (vi) all rights under any law purporting to reduce
Borrower’s Obligations hereunder if any Project Company’s Obligations under any
Financing Document are reduced; (vii) all defenses based on the disability
or lack of authority of Borrower, any Project Company or any Person, the
repudiation of the Financing Documents by Borrower, any Project Company or any
Person, or the failure by Security Agent or the Secured Parties to enforce any
claim against Borrower or any Project Company, or the unenforceability in whole
or in part of any Financing Documents; and (viii) all suretyship and
guarantor’s defenses generally.  Borrower
further agrees that upon an Event of Default with respect to any Project
Company, Security Agent may elect to exercise any remedy against Borrower or
any security or any guarantor under the Financing Documents and this Agreement,
even if the effect of that action is to deprive Borrower of the right to
collect reimbursement from any Project Company for any sums paid by Borrower to
Security Agent or any Secured Party.


 


Section 12. Project Companies’ Consent and Covenant.


 


Each Project Company hereby consents to the assignment and grant of a
security interest in the Collateral to Security Agent and to the exercise by
Security Agent of all rights and powers assigned or delegated to Security Agent
by Borrower hereunder, including the right of Security Agent upon and during
the continuance of an Event of Default to exercise Borrower’s voting rights and
other rights under each LLC Agreement to manage or control each Project Company
as provided therein.  Each Project
Company 


 


25

















 


further agrees to perform all covenants and
obligations herein which, by their terms, are to be performed by each Project
Company.


 


Section 13. Attorney-in-Fact.


 


(a)                                  Attorney-in-Fact. 
Upon the occurrence and during the continuation of an Event of Default,
Borrower hereby irrevocably constitutes and appoints Security Agent, acting for
and on behalf of itself and all Secured Parties and each successor or assign of
Security Agent and the Secured Parties, its true and lawful attorney-in-fact
with full power (in the name of Borrower or otherwise) to enforce all rights,
interests and remedies of Borrower with respect to the Collateral, including
the right:


 


(i)                                                             to ask, require, demand,
receive, compound and give acquittance for any and all moneys and claims for
money due and to become due under or arising out of the Assigned Agreements or
any of the other Collateral;


 


(ii)                                                          to elect remedies thereunder
and to endorse any checks, documents or other instruments or orders in
connection therewith;


 


(iii)                  to vote as provided herein, demand,
receive and enforce Borrower’s rights with respect to the Collateral;


 


(iv)                  to give appropriate receipts, releases
and satisfactions for and on behalf of and in the name of Borrower or, at the
option of Security Agent, in the name of Security Agent, with the same force
and effect as Borrower could do if this Agreement had not been made;


 


(v)                   to file any claims or take any action or
institute any proceedings in connection therewith which Security Agent may
reasonably deem to be necessary or advisable;


 


(vi)                  to pay, settle or compromise all bills
and claims which may be or become liens or security interests against any or
all of the Collateral, or any part thereof, unless a bond or other security
satisfactory to Security Agent has been provided;


 


(vii)                 upon foreclosure, to do any and every
act which Borrower may do on its behalf with respect to the Collateral or any
part thereof and to exercise any or all of Borrower’s rights and remedies under
any or all of the Assigned Agreements;


 


(viii)                to preserve the validity, perfection and
priority of the liens granted by this Agreement;


 


26

















 


(ix)                                                        to, in the name of the
Borrower or its own name, or otherwise, take possession of, receive and indorse
and collect any check, Account, Chattel Paper, draft, note, acceptance or other
Instrument for the payment of moneys due under any Account or General
Intangible;


 


(x)                    to execute, in connection with any sale
or disposition of the Collateral under Section 6, any endorsements,
assignments, bills of sale or other instruments of conveyance or transfer with
respect to all or any part of the Collateral;


 


(xi)                   in the case of any Intellectual
Property, to execute and deliver, and to have recorded, any agreement,
instrument, document or paper as Security Agent may request to evidence
Security Agent’s security interest in such Intellectual Property and the
goodwill and General Intangibles of Borrower relating thereto or represented
thereby;


 


(xii)                  to pay or discharge taxes and liens
levied or placed on or threatened against the Collateral, effect any repair or
pay or discharge any insurance called for by the terms of this Agreement
(including all or any part of the premiums therefor and the costs thereof);


 


(xiii)                 to execute, in connection with any sale
provided for in Section 6, any endorsement, assignment or other instrument
of conveyance or transfer with respect to the Collateral; and


 


(xiv)                to (A) direct any party liable for
any payment under any Collateral to make payment of any moneys due or to become
due thereunder directly to Security Agent or as Security Agent shall direct, (B) ask
or demand for, collect, and receive payment of and receipt for, any moneys,
claims and other amounts due or to become due at any time in respect of or
arising out of any Collateral, (C) sign and indorse any invoice, freight
or express bill, bill of lading, storage or warehouse receipt, draft against
debtors, assignment, verification, notice and other document in connection with
any Collateral, (D) commence and prosecute any suit, action or proceeding
at law or in equity in any court of competent jurisdiction to collect any
Collateral and to enforce any other right in respect of any Collateral, (E) defend
any suit, action or proceeding brought against Borrower with respect to any
Collateral, (F) settle, compromise or adjust any such suit, action or
proceeding and, in connection therewith, give such discharges or releases as Security
Agent may deem appropriate, (G) assign any Intellectual Property, to the
extent assignable, throughout the world for such term or terms, on such
conditions, and in such manner as 


 


27

















 


Security
Agent shall in its sole discretion determine, including
the execution and filing of any document necessary to effectuate or record such
assignment; and (H) generally, sell, transfer, pledge and make any
agreement with respect to or otherwise deal with any Collateral as fully and
completely as though Security Agent were the
absolute owner thereof for all purposes, and do, at Security Agent’s option and
Borrower’s expense, at any time, or from time to time, all acts and things that
Security
Agent deems necessary to protect, preserve or realize
upon the Collateral and Security Agent’s and the other
Secured Parties’ security interests therein and to effect the intent of this
Agreement, all as fully and effectively as Borrower might do;


 


provided, however, that Security Agent shall not
exercise any such right unless an Event of Default has occurred and is
continuing.  This power of attorney is a
power coupled with an interest and shall be irrevocable.


 


(b)                                 Motor Vehicles. 
Without limiting the rights and powers of Security Agent under Section 13(a),
Borrower hereby appoints Security Agent as its attorney-in-fact, effective the
date of this Agreement and terminating upon the termination of this Agreement,
for the purpose of, upon the occurrence and during the continuation of an Event
of Default, (i) executing on behalf of Borrower title or ownership
applications for filing with appropriate state agencies to enable Motor
Vehicles now owned or in the future acquired by Borrower to be retitled and
Security Agent to be listed as lien holder as to such Motor Vehicles, (ii) filing
such applications with such state agencies, and (iii) executing such other
documents and instruments on behalf of, and taking such other action in the
name of, Borrower as Security Agent may deem necessary or advisable to
accomplish the purposes of this Agreement (including the purpose of creating in
favor of Security Agent a perfected lien on such Motor Vehicles and exercising
the rights, remedies, powers and privileges of Security Agent under Section 4).  This appointment as attorney-in-fact is
irrevocable and coupled with an interest.


 


(c)                                  Expenses.  The expenses of Security Agent incurred in connection with
actions undertaken as provided in this Section 13, together with
interest thereon at a rate per annum equal to the rate per annum at which
interest would then be payable on past due Loans that are Base Rate Loans under
the Financing Agreement, from the date of payment by Security Agent to the date reimbursed by
Borrower, shall be payable by Borrower to Security Agent on demand and shall
constitute Obligations and be secured by the Liens of the Collateral Documents.


 


(d)                                 Ratification; Powers Coupled With
Interests.  Borrower hereby ratifies all that said
attorneys shall lawfully, in compliance with the terms of the Financing
Documents, and not otherwise acting with gross negligence or 


 


28

















 


willful
misconduct, 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.


 


Section 14. Perfection; Further Assurances.


 


(a)                                  Perfection.  Borrower
agrees that from time to time, Borrower shall promptly execute and deliver all
instruments and documents, and take all action, that may be reasonably
necessary, or that Security Agent may reasonably request, in order to perfect
and protect the assignment and security interest granted or intended to be
granted hereby, or to enable Security Agent to exercise and enforce its rights
and remedies hereunder with respect to any Collateral in accordance with the
terms hereof.  Without limiting the
generality of the foregoing, Borrower shall (i) deliver the Collateral or
any part thereof to Security Agent for the benefit of the Secured Parties as
Security Agent may request, duly endorsed or accompanied by such duly executed
instruments of transfer or assignment, as Security Agent may request, and in
form and substance satisfactory to Security Agent; (ii) deliver to
Security Agent any and all Instruments, endorsed or accompanied by such
instruments of assignment and transfer in such form and substance as Security
Agent may reasonably request; (iii) cooperate with Security Agent in
obtaining, and take such other actions as are necessary or that Security Agent
may reasonably request in order for them to obtain Control (as defined in the
UCC) with respect to all Deposit Accounts, Investment Property, Electronic
Chattel Paper and Letter-of-Credit Rights included in the Collateral, including
(to the extent reasonably requested by Security Agent) (A) in the case of
any Deposit Account for which Security Agent is not the Bank (as defined in the
UCC) at which that Deposit Account is maintained, using commercially reasonable
efforts to cause the Bank to enter into an agreement in such form as Security
Agent may in its reasonable discretion accept and (B) in the case of any
Security Entitlement, using commercially reasonable efforts to cause the
relevant Securities Intermediary to enter into an agreement in such form as
Security Agent may in its reasonable discretion accept; (iv) cause
Security Agent (to the extent reasonably requested by Security Agent) to be
listed as the lienholder on all certificates of title or ownership relating to
Motor Vehicles in the name of Borrower and deliver to Security Agent originals
of all such certificates of title or ownership for such Motor Vehicles together
with the odometer statements for each respective Motor Vehicle; (v) cause
Security Agent to be listed as the lienholder on any certificate of title or
ownership for any other Equipment covered by a certificate of title or
ownership; and (vi) execute and file such financing or continuation
statements, or amendments thereto, including financing statements describing
the Collateral as “all assets now owned or hereafter acquired”, and such


 


29














 


other
instruments, endorsements or notices, as may be reasonably necessary or as
Security Agent may reasonably request, in order to perfect and preserve the
assignments and security interests granted or purported to be granted hereby.


 


(b)                                 Filing of Financing Statement. 
Borrower hereby authorizes Security Agent to file one or more financing
or continuation statements, and amendments thereto, relative to all or any part
of the Collateral, including financing statements describing the Collateral as “all
assets now owned or hereafter acquired”, without the signature of Borrower
where permitted by law, provided, that Security Agent delivers to
Borrower and Project Companies a copy of any such statement or amendment.


 


(c)                                  Filing Costs. 
Borrower or any Project Company shall pay all filing, registration and
recording fees and all refiling, re-registration and re-recording fees, and all
reasonable out-of-pocket expenses incident to the execution and acknowledgment
of this Agreement, and all federal, state, county and municipal stamp taxes and
other taxes, duties, imports, assessments and charges arising out of or in
connection with the execution and delivery of this Agreement, any agreement
supplemental hereto, any financing statements, and any instruments of further
assurance, except as may otherwise be provided in the Financing Agreement.


 


Section 15. Notices.


 


All notices required or permitted under the terms and provisions hereof
shall be in writing and any such notice shall be effective if given in
accordance with the provisions of Section 14.1 of the Financing
Agreement.  Notices to each Project
Company may be given at the address of each Project Company set forth in such Section 14.1
of the Financing Agreement.  Notices to
Borrower may be given at the following address:


 


	
   

  	
  Stetson Holdings, LLC

  
	
   

  	
  c/o First Wind Energy, LLC

  
	
   

  	
  179 Lincoln Street, Suite 500

  
	
   

  	
  Boston, MA 92111

  
	
   

  	
  Attention:
  

  	
  Secretary

  
	
   

  	
  Facsimile:
  

  	
  (617)
  960-2889

  



 


Section 16. Continuing Assignment and Security Interest; Transfer
of Notes.


 


This Agreement shall create a continuing pledge and assignment of and
security interest in the Collateral and shall (a) remain in full force and
effect until the Discharge of Obligations, (b) be binding upon each
Project Company and Borrower, and their respective successors and assigns and (c) inure,
together with the rights and remedies of Security Agent, to the benefit of
Security Agent, the Secured Parties and their respective 


 


30

















 


successors, transferees and permitted assigns.  Without limiting the generality of the
foregoing, Security Agent or any Secured Party may assign or otherwise transfer
all or any part of or interest in the Notes, the Commitments or other evidence
of the Obligations owed to them to any other Person to the extent permitted by
and in accordance with the Financing Agreement and such other Person shall
thereupon become vested with all or an appropriate part of the benefits in
respect thereof granted to the Secured Parties herein.  The release of the security interest in any
or all of the Collateral, the taking or acceptance of additional security, or
the resort by Security Agent to any security it may have in any order it may
deem appropriate, shall not affect the liability of any Person on the
indebtedness secured hereby.


 


Section 17. Termination of Security Interest.


 


Upon the Discharge of Obligations, the security interest granted hereby
shall terminate and all rights to the Collateral shall automatically revert to
Borrower.  Upon any such termination,
Security Agent will return promptly all certificates evidencing Borrower’s
ownership interest in each Project Company, and all ownership powers executed
hereunder, to Borrower, and will, at Borrower’s expense, execute and deliver to
Borrower such documents (including UCC-3 termination statements) as Borrower
shall reasonably request to evidence such termination.  If this Agreement shall be terminated or
revoked by operation of law, Borrower will indemnify and hold Security Agent
and the other Secured Parties harmless from any loss, cost or expense which may
be suffered or incurred by Security Agent and the Secured Parties in acting
hereunder in good faith prior to the receipt by Security Agent, its successors,
transferees or assigns, of notice of such termination or revocation.


 


Section 18. 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.


 


Section 19. Successors and Assigns.


 


This Agreement shall be binding upon, and inure to the benefit of, the
parties hereto and their respective successors and permitted assigns, provided
however, that none of Borrower nor any Project Company may assign its rights or
obligations hereunder without the prior written consent of Security Agent
unless such an assignment is in connection with a transfer of the Membership
Interest permitted under Section 9(f) or otherwise not in
violation of the Financing Agreement


 


Section 20. No Amendment, Modification.


 


This Agreement may only be amended or modified by an instrument in
writing signed by Borrower, Project Companies and Security Agent, both for
itself and on behalf of any other parties to be charged in accordance with the
terms of this Agreement.


 


31

















 


Section 21. Headings.


 


The table of contents and headings of the various sections herein are
for convenience of reference only and shall not define or limit any of the
terms or provisions hereof.


 


Section 22. Liability.


 


The scope of liability of Borrower and the Non-Recourse Parties (as
defined in Article 11 of the Financing Agreement) shall be as set forth in
Article 11 of the Financing Agreement, which is incorporated herein by
this reference.


 


Section 23. References to Other Documents.


 


Subject to the Financing Agreement, all defined terms used in this
Agreement which refer to other documents shall be deemed to refer to such other
documents as they may be amended, supplemented or replaced from time to time,
provided such documents were not amended in breach of a covenant contained in
any agreement to which Borrower, any Project Company or Security Agent is a
party.


 


Section 24. Governing Law.


 


THIS AGREEMENT, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE AND MATTERS RELATING TO THE CREATION, VALIDITY, ENFORCEMENT OR
PRIORITY OF THE LIEN OF, AND SECURITY INTERESTS CREATED BY, THIS AGREEMENT IN
OR UPON THE COLLATERAL, SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REFERENCE TO THE CONFLICTS OF LAW RULES THEREOF (OTHER THAN SECTION 5-1401
AND SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW), EXCEPT AS
REQUIRED BY MANDATORY PROVISIONS OF LAW AND EXCEPT TO THE EXTENT THAT THE
VALIDITY OR PERFECTION OF THE LIEN AND SECURITY INTEREST HEREUNDER, OR REMEDIES
HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF
A JURISDICTION OTHER THAN THE STATE OF NEW YORK.


 


Section 25. Execution in Counterparts.


 


This Agreement may be executed in one or more duplicate counterparts, and
when executed and delivered by all the parties hereto, shall constitute a
single binding agreement.


 


Section 26. Reinstatement.


 


This Agreement and the continuing security interest in, and the lien
on, the Collateral created hereunder shall automatically be reinstated, to the
extent permitted by applicable law, if and to the extent that for any reason
any payment by or on behalf of Borrower or any Project Company in respect of
the Obligations is rescinded or must 


 


32

















 


otherwise be restored by any holder of the
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise.


 


Section 27. Third Party Rights.


 


Nothing in this Agreement, expressed or implied, is
intended or shall be construed to confer upon, or give to any Person, other
than Borrower, Project Companies, Security Agent and the Secured Parties, any
security, rights, remedies or claims, legal or equitable, under or by reason
hereof, or any covenant or condition hereof; and this Agreement and the
covenants and agreements herein contained are and shall be held to be for the
sole and exclusive benefit of Borrower, Project Companies, Security Agent and
the Secured Parties.


 


Section 28. Conflict Among Agreements.


 


In the event of any
conflict between the terms and provisions of this Agreement, the Financing
Agreement, the terms and conditions of the Financing Agreement shall prevail.


 


Section 29. Waiver of Jury Trial.


 


THE PARTIES TO THIS AGREEMENT HEREBY KNOWINGLY, VOLUNTARILY, AND
INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION
WITH, THIS AGREEMENT OR ANY OTHER OPERATIVE DOCUMENT, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF
SECURITY AGENT, THE SECURED PARTIES, BORROWER OR ANY PROJECT COMPANY.  THIS PROVISION IS A MATERIAL INDUCEMENT FOR
SECURITY AGENT TO ENTER INTO THIS AGREEMENT.


 


[SIGNATURES
FOLLOW]


 


33

















 


IN WITNESS WHEREOF, the parties hereto have caused this Pledge and
Security Agreement to be duly executed by their members and officers thereunto
duly authorized, as of the day and year first above written.


 


	
   

  	
  STETSON HOLDINGS, LLC,

  
	
   

  	
  a Delaware limited liability company, as Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  EVERGREEN WIND POWER V, LLC,

  
	
   

  	
  a Delaware limited
  liability company, as a Project Company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


	
   

  	
  STETSON WIND II, LLC, a Delaware limited liability company,
  as a Project Company 

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  BNP
  PARIBAS,

  
	
   

  	
  as Security Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


Exhibit A


 


List of
assigned agreements and documents


 


(i)                               Energy Hedge;


 


(ii)                            LLC Agreement of Evergreen Wind Power V,
LLC;


 


(iii)                         LLC Agreement of Stetson Wind II, LLC;


 


(iv)                        the insurance policies maintained or
required to be maintained by Borrower or any other Person (to the extent of
Borrower’s right, title and interest therein) under the Financing Agreement,
including any such policies insuring against loss of revenues by reason of
interruption of the operation of the Project and all loss proceeds and other
amounts payable to Borrower thereunder and all Eminent Domain Proceeds;


 


(v)                           to the extent assignable, all other
agreements, including vendor warranties, running to Borrower or assigned to
Borrower relating to the construction, maintenance, improvement, operation or
acquisition of the Project or any part thereof, or transport of material, equipment
and other parts of the Project or any part thereof;


 


(vi)                        any lease or sublease agreements or
easement agreements, including the easement agreements, relating to the Project
or any part thereof or any ancillary facilities, to which Borrower may be or
become a party;


 


(vii)                     and any other agreements to which
Borrower may be or become a party relating to the construction or operation of
the Project or any part thereof;


 


(viii)                  each and every performance bond or
guaranty and similar other document relating to the performance by any party of
any of the Assigned Agreements;


 


(ix)                          all rights of Borrower to receive moneys
due and to become due under or pursuant to the Assigned Agreements and all
claims of Borrower for damages arising out of or for breach of or under the
Assigned Agreements;


 


(x)                             all amendments, modifications,
supplements, restatements, substitutions and renewals to any of the Assigned
Agreements; and


 


(xi)                          all Applicable Permits, including those
described on Exhibit H-2B to the Financing Agreement, except for any such
permit which would be breached or terminated solely by virtue of a security
interest being granted;


 


 


E-1

















 


Annex A


 


List of
Pledged Interests


 


1.               Evergreen Wind Power V, LLC Certificate
of Interest No. [    ], issued on
[                ],
certifying that Stetson Holdings, LLC is the owner of the Certificate of
Interest representing a 100% membership interest in Evergreen Wind Power V,
LLC, subject to the terms of the First Amended and Restated Limited Liability
Company Agreement of Evergreen Wind Power 
V, LLC, dated as of April 2, 2007, as amended by that certain First
Amendment to First Amended and Restated Limited Liability Company Agreement of
Evergreen Wind Power V, LLC, dated as of December 11, 2008, as modified by
that certain Membership Interest Transfer Agreement of Evergreen Wind Power V,
LLC, dated as of July 17, 2009, as further amended by that certain Second
Amendment to First Amended and Restated Limited Liability Company Agreement of
Evergreen Wind Power V, LLC, dated as of July 17, 2009, and as further
amended by that certain Third Amendment to First Amended and Restated Limited
Liability Company Agreement of Evergreen Wind Power V, LLC, dated as of the
date hereof (as amended, amended and restated, supplemented or otherwise
modified from time to time).


 


2.               Stetson Wind II, LLC Certificate of
Interest No. [    ], issued on
[                ],
certifying that Stetson Holdings, LLC is the owner of the Certificate of Interest
representing a 100% membership interest in Stetson Wind II, LLC Limited
Liability Company Agreement of Stetson Wind II, LLC, dated July 3, 2007,
as amended by that certain First Amendment to Limited Liability Company
Agreement of Stetson Wind II, LLC, dated December 11, 2008, and as further
amended by that certain Second Amendment to Limited Liability Company Agreement
of Stetson Wind II, LLC, dated as of the date hereof (as amended, amended and
restated, supplemented or otherwise modified from time to time).


 


 


A-1

















 


Schedule
A


 


List of
Required Filings


 


1.               UCC-1 Financing Statement naming Stetson
Holdings, LLC, as Debtor and BNP Paribas, in its capacity as Security Agent, as
Secured Party, to be filed with the Secretary of State of the State of
Delaware.


 


 


S-1






 










 


EXHIBIT
E-3


to
Financing Agreement


 


FORM OF
GUARANTY AND SECURITY AGREEMENT


 


(See Tab      )


 

















 


EXECUTION
FORM


	
   

  



 


GUARANTY
AND SECURITY AGREEMENT


 


between


 


BNP
PARIBAS,

as Security Agent


 


and


 


STETSON
WIND II, LLC

as Guarantor


 


and


 


STETSON
HOLDINGS, LLC

as Borrower


 


Dated
as of December [    ], 2009


 


	
   

  


















 


TABLE OF
CONTENTS


 


	
   

  	
   

  	
  Page

  
	
  Section 1.

  	
  Definitions

  	
  1

  
	
  Section 2.

  	
  Guarantee

  	
  2

  
	
  Section 3.

  	
  Pledge
  and Grant of Security Interest

  	
  8

  
	
  Section 4.

  	
  Obligations
  Secured

  	
  13

  
	
  Section 5.

  	
  Use of
  Collateral

  	
  14

  
	
  Section 6.

  	
  Remedies

  	
  14

  
	
  Section 7.

  	
  Remedies
  Cumulative; Delay Not Waiver

  	
  16

  
	
  Section 8.

  	
  Representations
  and Warranties

  	
  17

  
	
  Section 9.

  	
  Covenants

  	
  19

  
	
  Section 10.

  	
  INTENTIONALLY
  OMITTED

  	
  20

  
	
  Section 11.

  	
  Borrower’s
  Consent and Covenant

  	
  20

  
	
  Section 12.

  	
  Attorney-In-Fact

  	
  20

  
	
  Section 13.

  	
  Perfection;
  Further Assurances

  	
  23

  
	
  Section 14.

  	
  Notices

  	
  24

  
	
  Section 15.

  	
  Continuing
  Assignment and Security Interest; Transfer of Notes

  	
  25

  
	
  Section 16.

  	
  Termination
  of Security Interest

  	
  25

  
	
  Section 17.

  	
  Severability

  	
  26

  
	
  Section 18.

  	
  Successors
  and Assigns

  	
  26

  
	
  Section 19.

  	
  No
  Amendment, Modification

  	
  26

  
	
  Section 20.

  	
  Headings

  	
  26

  
	
  Section 21.

  	
  Liability

  	
  26

  
	
  Section 22.

  	
  Governing
  Law

  	
  26

  
	
  Section 23.

  	
  References
  to Other Documents

  	
  27

  
	
  Section 24.

  	
  Execution
  in Counterparts

  	
  27

  
	
  Section 25.

  	
  Third
  Party Rights

  	
  27

  
	
  Section 26.

  	
  Conflict
  Among Agreements

  	
  27

  
	
  Section 27.

  	
  Waiver
  of Jury Trial

  	
  27

  
	
  Section 28.

  	
  Reinstatement

  	
  27

  



 

















 


GUARANTY
AND SECURITY AGREEMENT


 


This
GUARANTY AND SECURITY AGREEMENT (this “Agreement”), dated as of December [    ],
2009, is entered into by and among STETSON WIND II, LLC, a Delaware limited
liability company (“Guarantor”), STETSON HOLDINGS, LLC, a Delaware
limited liability company (“Borrower”), and BNP PARIBAS, as Security
Agent (together with its successors and assigns in such capacity, “Security
Agent”) for each of the Secured Parties.


 


RECITALS


 


A.                                   Borrower has entered into that certain
Financing Agreement, dated as of the date hereof (as amended, amended and
restated, supplemented or otherwise modified from time to time, the “Financing
Agreement”), among Borrower, the financial institutions from time to time
parties thereto (collectively, “Lenders”), the Security Agent, BNP
Paribas, as joint Lead Arranger, Joint Bookrunner, Administrative Agent for the
Lenders, and Issuing Bank and HSH Nordbank AG, New York Branch, as Joint Lead
Arranger, Joint Bookrunner and as Co-Syndication Agent, pursuant to which the
Lenders and the Issuing Bank have agreed to extend credit to Borrower in the
amounts specified and on the terms and subject to the conditions set forth
therein.


 


B.                                     Borrower is the sole member and owns 100%
of all issued and outstanding membership interests in Guarantor.  The proceeds of the Loans will be used, among
other purposes, for the ownership and operation of certain wind electricity
generating assets in Maine by Guarantor. 
Guarantor agrees to guarantee the obligations of Borrower under the
Financing Agreement and the other Financing Documents and to provide a security
interest in the collateral described in this Agreement.


 


C.                                     Guarantor acknowledges that it will
benefit if the Lenders and the Issuing Bank extend credit to Borrower pursuant
to the Financing Agreement.


 


D.                                    As a condition precedent to the
effectiveness of the Financing Agreement, Guarantor shall have executed this
Agreement.


 


AGREEMENT


 


In
consideration of the foregoing premises and to induce the Lenders and the
Issuing Bank to extend credit pursuant to the Financing Agreement, and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, Guarantor hereby agrees with Security Agent for the
benefit of the Secured Parties as follows:


 


Section 1.                                            Definitions.


 


(a)                                  Defined Terms. 
Unless otherwise defined herein or unless the context otherwise
requires, all capitalized terms used in this Agreement, including its preamble
and recitals, shall have the same meaning provided in Exhibit A to the
Financing Agreement, or, if not defined therein, shall have the 


 


1

















 


meaning provided in the Uniform Commercial Code, as
the same from time to time shall be in effect in the State of New York (the “UCC”);
provided, however, in the event that, by reason of mandatory
provisions of law, any or all of the perfection or priority of the security
interest in any Collateral (as defined below) is governed by the Uniform
Commercial Code as in effect in a jurisdiction other than the State of New
York, the term “UCC” shall mean the Uniform Commercial Code as in effect in
such other jurisdiction for purposes of the provisions hereof relating to such
perfection or priority and for purposes of definitions related to such
provisions.  The Rules of
Interpretation contained in Exhibit A to the Financing Agreement shall
apply to this Agreement.


 


(i)                                     Certain Uniform Commercial Code Terms.  As used herein, the terms “Accession”,
“Account”, “As-Extracted Collateral”, “Chattel Paper”, “Commodity
Account”, “Commodity Contract”, “Deposit  Account”, “Commercial
Tort Claim”, “Document”, “Electronic Chattel Paper”, “Equipment”,
“Fixture”, “General Intangible”, “Goods”, “Instrument”,
“Inventory”, “Investment Property”, “Letter-of-Credit Right”,
“Motor Vehicle”, “Payment Intangible”, “Proceeds”, “Promissory
Note” and “Software” have the respective meanings set forth in Article 9
of the UCC, and the terms “Certificated Security”, “Financial Asset”,
“Securities Account”, “Securities Intermediary”, “Security”,
“Security Entitlement” and “Software” have the respective
meanings set forth in Article 8 of the UCC.


 


Section 2.                                            Guarantee.


 


(a)                                  Guarantee.  Guarantor
hereby guarantees to Security Agent the timely payment in full when due
(whether at stated maturity, by acceleration or otherwise) and performance of
the Obligations in accordance with their terms. 
Guarantor hereby further agrees that if Borrower fails to pay in full
when due (whether at stated maturity, by acceleration or otherwise) all or any
part of the Obligations, Guarantor will immediately pay the same, upon demand,
and that, in the case of any extension of time of payment or renewal of all or
any part of the Obligations, it will timely pay the same in full when due
(whether at extended maturity, by acceleration or otherwise) in accordance with
the terms of that extension or renewal. 
This Agreement is irrevocable and unconditional in nature and is made
with respect to any Obligations now existing or in the future arising.  The liability of Guarantor under this
Agreement shall continue until the full satisfaction of all Obligations.  This Agreement is a guarantee of due and
punctual payment and performance and is not merely a guarantee of collection.


 


(b)                                 Obligations Unconditional. 
The obligations of Guarantor under this Agreement shall be continuing,
irrevocable, absolute and unconditional 


 


2

















 


irrespective of the value, genuineness, validity,
regularity or enforceability of any Financing Document or any other agreement
or instrument referred to therein or herein, or any substitution, release or
exchange of any guarantee of or security for any of the Obligations, and, to
the fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor (other than payment in full of
the Obligations, subject to Section 2(d)), it being the intent of
this Section 2(b) that the obligations of Guarantor hereunder
shall be absolute and unconditional under any and all circumstances.  Without limiting the generality of the
foregoing, it is agreed that the occurrence of any one or more of the following
shall not alter or impair the liability of Guarantor hereunder, which shall
remain absolute and unconditional as described above without regard to and not
be released, discharged or in any way affected (whether in full or in part) by:


 


(i)                                     at any time or from time to time, without
notice to Guarantor, the time for any performance of or compliance with any of
the Obligations shall be extended, or such performance or compliance shall be
waived;


 


(ii)                                  any of the acts mentioned in any of the
provisions of any Financing Document shall have occurred;


 


(iii)                               the maturity of any of the Obligations
shall be accelerated, or any of the Obligations shall be modified, supplemented
or amended in any respect, or any right under any Financing Document or any
other agreement or instrument referred to therein or herein shall be waived or
any guarantee of any of the Obligations or any security therefor shall be
released or exchanged in whole or in part or otherwise dealt with;


 


(iv)                              any lien granted to, or in favor of,
Security Agent as security for any of the Obligations shall fail to be
perfected; or


 


(v)                                 any bankruptcy, insolvency, reorganization,
arrangement, readjustment of debt, liquidation or dissolution proceeding
commenced by or against Security Agent, Borrower, Guarantor or any other
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.


 


Should, at any
time, any money due or owing under this Agreement not be recoverable from
Guarantor for any reason, whether by operation of law or otherwise, then, in
any such case, such money shall nevertheless be recoverable by Security Agent
from the proceeds of the Collateral (as 


 


3

















 


defined below)
as though Guarantor were the principal debtor in respect thereof and not merely
a pledgor hereunder.


 


(c)                                  Waiver.


 


(i)                                     Guarantor hereby expressly waives, to the
fullest extent permitted by law, promptness, diligence, presentment, demand for
payment or performance and protest; filing of claims with any court; any
proceeding to enforce any provision of the Financing Documents; notice of
acceptance of and reliance on this Agreement by the Secured Parties, notice of
the creation of any Obligations, and any other notice whatsoever (other than
notices specifically provided under the Financing Documents); any requirement that
Security Agent exhaust any right, power or remedy or proceed or take any other
action against Borrower or any other Person under any Financing Document to
which it is a party or any lien or encumbrance on, or any claim of payment
against, any property of Borrower or any other agreement or instrument referred
to therein, or any other Person under any guarantee of, or lien securing, or
claim for payment of, any of the Obligations, any right to require a proceeding
by Security Agent first against Borrower or any other Person whether to marshal
any assets or to exhaust any right or take any action against Borrower or any
other Person or any collateral or otherwise, any diligence in collection or
protection for realization upon any Obligation; any obligation hereunder or any
collateral security for any of the foregoing; any right of protest,
presentment, notice or demand whatsoever, and any claims of waiver, release,
surrender, alteration or compromise and all defenses, set-offs, counterclaims,
recoupments, reductions, limitations, impairments or terminations, whether
arising hereunder or otherwise. 
Guarantor further waives (A) any requirement that any other Person
be joined as a party to any proceeding for the enforcement by Security Agent of
any Obligation and (B) the filing of claims by Security Agent in the event
of the receivership or bankruptcy of Borrower or any other guarantor.  Security Agent shall have the right to bring
suit directly against Guarantor with respect to the obligations owed to
Security Agent hereunder either prior to or concurrently with any lawsuit
against, or without bringing any suit against Borrower, any other guarantor or
any other Person.


 


(ii)                                  The enforceability and effectiveness of
this Agreement and the liability of Guarantor, and the rights, remedies, powers
and privileges of Security Agent, under this Agreement shall not be affected,
limited, reduced, discharged or terminated, and Guarantor hereby expressly
waives to the fullest extent permitted by law any defense now or in the future
arising by reason of:


 


4

















 


A.                                   the illegality, invalidity or
unenforceability of all or any part of the Obligations, any Financing Document
or any agreement, security document, guarantee or other instrument relating to
all or any part of the Obligations;


 


B.                                     any disability or other defense with
respect to all or any part of the Obligations of Borrower or Guarantor,
including the effect of any statute of limitations that may bar the enforcement
of all or any part of the Obligations;


 


C.                                     the illegality, invalidity or
unenforceability of any security or guarantee for all or any part of the
Obligations or the lack of perfection or continuing perfection or failure of
the priority of any lien or encumbrance on any collateral for all or any part
of the Obligations;


 


D.                                    the cessation, for any cause whatsoever, of
the liability of Borrower in respect of all or any part of the Obligations
(other than, subject to Section 2(d), by reason of the full payment
and performance of all Obligations);


 


E.                                      other than notice expressly required under
this Agreement, any failure of Security Agent to give notice of sale or other
disposition of any collateral (including any notice of any judicial or
nonjudicial foreclosure or sale of any interest in real property serving as
collateral for all or any part of the Obligations) for all or any part of the
Obligations to Borrower, Guarantor or any other Person or any defect in, or any
failure by Borrower, Guarantor or any other Person to receive, any notice that
may be given in connection with any sale or disposition of any collateral for
all or any part of the Obligations;


 


F.                                      any failure of Security Agent to comply
with applicable laws in connection with the sale or other disposition of any
collateral (other than the Collateral) for all or any part of the Obligations;


 


G.                                     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 Borrower or Guarantor or may preclude Borrower
or Guarantor from obtaining reimbursement, contribution, indemnification or
other recovery from any other Guarantor, Borrower or any other Person and even
though


 


5

















 


Borrower
or Guarantor may not, as a result of such foreclosure, sale or election of
remedies, be liable for any deficiency;


 


H.                                    any act or omission of Security Agent or
any other Person that directly or indirectly results in or aids the discharge
or release of Borrower 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;


 


I.                                         any law which provides that the obligation
of a surety or guarantor must neither be larger in amount nor in other respects
more burdensome than that of the principal or which reduces a surety’s or
guarantor’s obligation in proportion to the principal obligation;


 


J.                                        any counterclaim, set-off or other claim
which Borrower has or alleges to have with respect to all or any part of the
Obligations;


 


K.                                    any failure of Security Agent to file or enforce
a claim in any bankruptcy or other proceeding with respect to any Person;


 


L.                                      the election by Security Agent, in any
bankruptcy proceeding of any Person, of the application or non-application of Section 1111(b)(2) of
the United States Bankruptcy Code;


 


M.                                 any extension of credit or the grant of any
lien or encumbrance under Section 364 of the United States Bankruptcy
Code;


 


N.                                    any use of cash collateral under Section 363
of the United States Bankruptcy Code;


 


O.                                    any agreement or stipulation with respect
to the provision of adequate protection in any bankruptcy proceeding of any
Person;


 


P.                                      the avoidance of any lien or encumbrance in
favor of Security Agent for any reason;


 


Q.                                    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


 


6

















 


part of
the Obligations (or any interest on all or any part of the Obligations) in or
as a result of any such proceeding;


 


R.                                     any action taken by Security Agent that is
authorized by this Section 2(c) or otherwise in this Agreement
or by any other provision of any Financing Document or any omission to take any
such action; or


 


S.                                      any other circumstance whatsoever that
might otherwise constitute a legal or equitable discharge or defense of a
surety or Guarantor.


 


(d)                                 Reinstatement. 
This Agreement, the security interest in, and the lien on, the
Collateral (as defined below), and the obligations of Guarantor under this
Agreement, shall be automatically reinstated if and to the extent that for any
reason any payment  by or on behalf of
Guarantor or Borrower in respect of the Obligations is rescinded or must be otherwise
restored by any holder of any of the Obligations, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise.  Guarantor agrees that it will indemnify
Security Agent on demand for all reasonable costs and expenses (including
reasonable and reasonably documented fees of counsel) incurred by Security
Agent in connection with such rescission or restoration, including any such
costs and expenses incurred in defending against any claim alleging that such
payment constituted a preference, fraudulent transfer or similar payment under
any bankruptcy, insolvency or similar law.


 


(e)                                  Subrogation. 
Guarantor hereby waives any right of subrogation or contribution,
whether arising by contract or operation of law (including, without limitation,
any such right arising under any bankruptcy, insolvency or other similar law)
or otherwise by reason of any payment by it pursuant to the provisions of this
Agreement until the Obligations shall have been paid and performed in full.  If any amount shall be paid to Guarantor on
account of such subrogation rights at any time prior to the indefeasible and
unconditional payment, discharge or performance in full of the Obligations,
such amount shall be held in trust for the benefit of Security Agent (if applicable)
and shall forthwith be paid to Security Agent to be credited and applied upon
and against the Obligations, to the extent then matured, in accordance with the
terms of the relevant Financing Documents or, to the extent not then matured or
existing, be held by Security Agent as collateral security for the Obligations.


 


(f)                                    Remedies.  Guarantor
agrees that, as between Guarantor and Security Agent, any Obligations of
Borrower to the Secured Parties under any of the Financing Documents to which
Borrower is a party may be declared to be forthwith due and payable
notwithstanding any stay, injunction or other prohibition preventing such
declaration (or such Obligations from


 


7














 


becoming
automatically due and payable) as against Borrower and that, in the event of
such declaration (or such Obligations being deemed to have become automatically
due and payable), such Obligations (whether or not due and payable by Borrower)
shall forthwith be deemed to have become due and payable by Guarantor for
purposes of this Agreement.  For the
avoidance of doubt, it is understood and agreed that any amount paid by
Guarantor pursuant to the immediately preceding sentence may be applied to the
payment or prepayment (as the case may be) of the Obligations of Borrower.  Each of the obligations of Guarantor under
this Agreement is separate and independent of each other obligation of
Guarantor hereunder and separate and independent of the Obligations, and
Guarantor agrees that a separate action or actions may be brought and
prosecuted by Security Agent against Guarantor to enforce this Agreement,
irrespective of whether any action is brought by Security Agent against
Borrower or any other guarantor under any relevant Financing Document or
whether Borrower or any other guarantor is joined in any such action or
actions.


 


(g)           Continuing Obligation. 
The obligations of Guarantor provided in this Section 2 are
continuing obligations and shall apply to all Obligations whenever arising.


 


(h)           Subordination of Indebtedness of Borrower.  Guarantor agrees that any Debt now or in the
future owed to it by Borrower or by any other guarantor is hereby subordinated
in right of payment to their prior payment in full in cash of the
Obligations.  Without limiting the
generality of the foregoing, if the Security Agent so requests, any such Debt
shall be collected, enforced and received by Guarantor as trustee for the
Secured Parties and shall be paid over to the Security Agent (for the benefit
of the Secured Parties) in kind on account of the Obligations, upon the
occurrence and during the continuation of an Event of Default.  If, after request by the Security Agent, upon
the occurrence and during the continuation of an Event of Default, Guarantor
fails to collect or enforce any such indebtedness or to pay the proceeds of
that indebtedness to the Security Agent, the Security Agent as Guarantor’s
attorney-in-fact may, upon the occurrence and during the continuation of an
Event of Default, do such acts and sign such documents in Guarantor’s name and
on Guarantor’s behalf as the Security Agent considers necessary or desirable to
effect that collection, enforcement or payment, the Security Agent being hereby
appointed Guarantor’s attorney-in-fact for that purpose (and such appointment
is irrevocable and is coupled with an interest) and in accordance with Section 12
of this Agreement.


 


Section 3.               Pledge and Grant of Security Interest.


 


(a)           Granting Clause.  To
secure the timely payment and performance of the Obligations, Guarantor does
hereby assign, grant and pledge to Security Agent, on behalf of and for the
benefit of the Secured Parties, a continuing 


 


8

















 


security
interest in all estate, right, title and interest of Guarantor in, to and under
all assets of Guarantor, whether now owned or hereafter existing or acquired,
including all estate, right, title and interest of Guarantor in, to and under
the following (collectively, the “Collateral”):


 


(i)                    each of the agreements and documents listed on Exhibit A,
in each case, as amended, amended and restated, supplemented or otherwise
modified from time to time (each, an “Assigned Agreement” and
collectively, the “Assigned Agreements”) and all of Guarantor’s rights
thereunder;


 


(ii)                   all Accounts;


 


(iii)                  all As-Extracted Collateral;


 


(iv)                  all Chattel Paper (including Electronic Chattel
Paper);


 


(v)                   all Deposit Accounts;


 


(vi)                  all Documents;


 


(vii)                 all Equipment (including, for the avoidance of doubt,
all wind turbines);


 


(viii)                all Fixtures;


 


(ix)                   all General Intangibles;


 


(x)                    all Goods not covered by the other clauses of this Section 3,
if any;


 


(xi)                   all Instruments, including all Promissory Notes;


 


(xii)                  all inventions, processes, production methods,
proprietary information (including operating data and wind resource data
related to the Stetson II Project), know how, maps, plans, specifications,
architectural, engineering, construction or shop drawings, route surveys,
engineering reports, manuals and similar materials in which Guarantor has an
interest, and all payment and performance bonds or warranties or guaranties
relating to the Stetson II Project and all of Guarantor’s rights under and in
patents, patent licenses, copyrights, trademarks and trade names, trade secrets
and any replacements, renewals or substitutions for any of the foregoing
(collectively, “Intellectual Property”);


 


(xiii)                 all Inventory;


 


(xiv)                all Motor Vehicles;


 


9

















 


(xv)                 all Investment Property not covered by other clauses
of this Section 3, including all Securities, all Securities
Accounts and all Security Entitlements with respect thereto and Financial
Assets carried therein, and all Commodity Accounts and Commodity Contracts;


 


(xvi)                all Letter-of-Credit Rights;


 


(xvii)               Payment Intangibles;


 


(xviii)              Software;


 


(xix)                 all Commercial Tort Claims arising out of, relating to
or in connection with all or any part of the Inventory, Equipment or Documents
of Borrower;


 


(xx)                  all cash and cash instruments;


 


(xxi)                 all other tangible and intangible personal property
whatsoever of the Guarantor; and


 


(xxii)                all claims of Guarantor for damages arising out of or
for breach of or default relating to the Collateral; and


 


(xxiii)               all Proceeds of any of the Collateral, all Accessions
to and substitutions and replacements for, any of the Collateral, and all
offspring, rents, profits and products of any of the Collateral.


 


The foregoing notwithstanding, the term “Collateral” shall not include (i) contracts
and agreements which by their terms or by operation of law prohibit or do not
allow assignment or which would become void solely by virtue of a security
interest being granted therein, in each case only for so long as such restriction
is in place and no such restriction was agreed with the intent to undermine the
security interest granted therein, or (ii) any Applicable Permits or other
permits or any insurance policies that by their terms or by operation of law
would become void, voidable, terminable or revocable or in respect of which
Guarantor would be deemed to be in breach or default thereunder if pledged or
assigned hereunder or if a security interest therein were granted hereunder, to
the extent necessary to avoid such voidness, voidability, revocability, breach
or default.


 


(b)           Delivery of Agreements. 
Guarantor has heretofore delivered or concurrently with the delivery
hereof is delivering to Security Agent, an executed counterpart or certified
copy of each of the Assigned Agreements in existence on the date hereof.  Guarantor will likewise, to the extent
required under the Financing Agreement deliver to Security Agent a copy of an
executed counterpart or certified copy of each 


 


10

















 


Additional
Project Document and each future lease or future easement relating to the
Stetson II Project or any part thereof and amendments and supplements to the
foregoing, included in the Collateral, as they are entered into by Guarantor
promptly upon the execution thereof. 
Notwithstanding anything to the contrary contained herein, no such
Additional Project Document, or material future lease, or other material
agreement related to the Stetson II Project may be entered into by Guarantor
without the prior written approval of Security Agent, except as otherwise
permitted under the Financing Agreement.


 


(c)           Continuing Liability Under Assigned Agreements.  Notwithstanding anything to the contrary
contained herein, (a) Guarantor shall remain liable under each of the
Assigned Agreements to which it is a party to perform all of the obligations
undertaken by it thereunder, all in accordance with and pursuant to the terms
and provisions thereof, and (b) Security Agent shall have no obligation or
liability under any of such Assigned Agreements by reason of or arising out of
this Agreement, nor shall Security Agent be required or obligated in any manner
to perform or fulfill any obligations of Guarantor thereunder or to make any
payment or inquiry as to the nature or sufficiency of any payment received by
it, or present or file any claim, or take any action to collect or enforce the
payment of any amounts which may have been assigned to it or to which it may be
entitled at any time.


 


(d)           Defaults Under Assigned Agreements.  If a default by Guarantor under any of the
Assigned Agreements shall occur and be continuing, and if such default could
reasonably be expected to result in a Material Adverse Effect as determined by
Administrative Agent (with consent of Required Applicable Lenders), then, upon
ten (10) Business Days’ notice to Guarantor (or, if the applicable
Assigned Agreement has a cure period of less than twenty (20) days with respect
to defaults, then such ten (10) Business Days notice period shall be reduced
to the number of days which is half of the number of days provided to cure any
such default under such Assigned Agreement), Security Agent shall, at its
option, be permitted (but not obligated) to remedy any such default either
pursuant to the terms of any Consent in respect of such Assigned Agreement or
otherwise by giving written notice of such intent to Guarantor and to the
parties to the Assigned Agreement or Assigned Agreements for which Security
Agent intends to remedy the default. 
After giving such notice of its intent to cure such default and upon the
commencement thereof, Security Agent will proceed to cure such default.  Any cure by Security Agent of Guarantor’s
default under any of the Assigned Agreements shall not be construed as an
assumption by Security Agent or any other Secured Party of any obligations,
covenants or agreements of Guarantor under such Assigned Agreement or any other
Assigned Agreement, and neither Security Agent nor any other Secured Party
shall be liable to Guarantor or any other Person as a result 


 


11

















 


of any
actions undertaken by Security Agent in curing or attempting to cure any such
default, except as otherwise set forth in the Financing Agreement or any
applicable Consent.  This Agreement shall
not be deemed to release or to affect in any way the obligations of Guarantor
under the Assigned Agreements.


 


(e)           Intellectual Property. 
For the purpose of enabling Security Agent to exercise its rights,
remedies, powers and privileges under Section 6 at that time or
times as Security Agent is lawfully entitled to exercise those rights,
remedies, powers and privileges, and for no other purpose, Guarantor hereby
grants to Security Agent, to the extent assignable or licensable in a manner
consistent with this Agreement and without payment of any royalty or
compensation, an irrevocable, nonexclusive license (exercisable without payment
of royalty or other compensation to Guarantor) to use, assign, license or
sublicense any of the Intellectual Property of Guarantor, together with
reasonable access to all media in which any of the licensed items may be
recorded or stored and to all computer programs used for the compilation or
printout of those items.


 


(f)            Preservation of Security Interests.  Guarantor shall:


 


(i)            upon the acquisition after the date of this Agreement
by Guarantor of any Certificated Securities, Instruments, Deposit Accounts,
other Investment Property, Electronic Chattel Paper, Letter-of Credit Rights,
Motor Vehicles or other Equipment covered by a certificate of title or
ownership promptly (x) take such action with respect to that Collateral as
is specified for that type of Collateral in Section 13 and (y) take
all such other actions, and authenticate or sign and file or record such other
records or instruments, as are necessary or as Security Agent may reasonably
request to create, perfect and establish the priority of the liens granted by
this Agreement in any and all of the Collateral, to preserve the validity,
perfection or priority of the liens granted by this Agreement in any and all of
the Collateral or to enable Security Agent to exercise its remedies, rights,
powers and privileges under this Agreement.


 


(ii)           upon Guarantor’s acquiring, or otherwise becoming
entitled to the benefits of, any Intellectual Property or upon or prior to
Guarantor’s filing, either directly or through Security Agent, any licensee or
any other designee, of any application with any Governmental Authority for any
Intellectual Property, in each case after the date of this Agreement, execute
and deliver such contracts, agreements and other instruments as Security Agent
may reasonably request to create, perfect and establish the priority of the
liens granted by this Agreement in that Intellectual Property.


 


12

















 


(iii)          whether with respect to Collateral as of the date of
this Agreement or Collateral in which Guarantor acquires rights in the future,
authorize, give, authenticate, execute, deliver, file or record any and all
financing statements, notices, contracts, agreements or other records or
instruments, obtain any and all Applicable Permits, and take all such other
actions, as are necessary or as Security Agent may reasonably request to
create, perfect and establish the priority of the liens granted by this
Agreement in any and all of the Collateral, to preserve the validity,
perfection or priority of the liens granted by this Agreement in any and all of
the Collateral or to enable Security Agent to exercise and enforce its
remedies, rights, powers and privileges under this Agreement.


 


(iv)          furnish to Security Agent from time to time statements
and schedules further identifying and describing the Collateral pledged by
Guarantor hereunder and such other reports in connection with the Collateral
pledged by Guarantor hereunder as Security Agent may reasonably request, all in
reasonable detail.


 


(g)           Commercial Tort Claims. 
Guarantor agrees that, if it shall acquire any interest in any
Commercial Tort Claim (whether from another Person or because such Commercial
Tort Claim shall have come into existence), (i) Guarantor shall,
immediately upon such acquisition, deliver to Security Agent, in each case in
form and substance reasonably satisfactory to Security Agent, a notice of the
existence and nature of such Commercial Tort Claim containing a reasonably
specific description of such Commercial Tort Claim, certified by Guarantor as
true, correct and complete, (ii) the provisions of Section 3  shall apply to such Commercial Tort Claim
(and Guarantor authorizes Security Agent to supplement this Agreement with a
description of such Commercial Tort Claim if Guarantor fails to deliver the
supplement described in clause (i)), and (iii) Guarantor shall execute and
deliver to Security Agent, in each case in form and substance reasonably
satisfactory to Security Agent, any certificate, agreement and other document,
and take all other action, deemed by Security Agent to be reasonably necessary
or appropriate for Security Agent to obtain, on behalf of the Secured Parties,
a first-priority, perfected security interest in all such Commercial Tort
Claims.


 


Section 4.               Obligations Secured.


 


This Agreement and all of the Collateral hereunder
assigned to Security Agent, for the benefit of Secured Parties, secure the
payment and performance when due of all Obligations to Security Agent and the
other Secured Parties under the Financing Documents.


 


13

















 


Section 5.               Use of Collateral.


 


So long as no Event of Default has occurred and is
continuing, Guarantor reserves the right to, and shall be entitled to, use and
possess the Collateral and exercise all of its right, title and interest in, to
and under the Collateral, including under the Assigned Agreements and to
receive and use (subject to the terms of the Financing Agreement) all income,
profit and other distributions in respect of the Collateral.  Provided that no Event of Default shall have
occurred and be continuing, Guarantor shall be permitted to exploit, use,
enjoy, protect, license, sublicense, assign, sell, dispose of or take other
actions with respect to the Intellectual Property of Borrower in the ordinary
course of its business to the extent permitted by the Financing Agreement and the
other Operative Documents.


 


Section 6.               Remedies.


 


(a)           Remedies Upon Event of Default.  Subject to the terms of the Financing
Documents, if an Event of Default has occurred and is continuing, Security
Agent shall have the right, at its election and at the direction of the
Required Applicable Lenders, but not the obligation, to do any of the
following:


 


(i)            demand, sue for, collect or receive any money or
property at any time payable to or receivable by Guarantor on account of or in
exchange for all or any part of the Collateral;


 


(ii)           proceed to protect and enforce the rights vested in it
by this Agreement, including the right to cause all revenues hereby pledged as
security and all other moneys pledged hereunder to be paid directly to it, and
to enforce its rights hereunder to such payments and all other rights hereunder
by such appropriate judicial proceedings as it shall deem most effective to
protect and enforce any of such rights, either at law or in equity or
otherwise, whether for specific enforcement of any covenant or agreement, or in
aid of the exercise of any power therein or herein granted, or for any
foreclosure hereunder and sale under a judgment or decree in any judicial
proceeding, or to enforce any other legal or equitable right vested in it by
this Agreement or by law;


 


(iii)          cause any action at law or suit in equity or other
proceeding to be instituted and prosecuted to collect any Collateral or enforce
any Obligation or rights hereunder or included in the Collateral, including
specific enforcement of any covenant or agreement contained herein or in any
Assigned Agreement, or to foreclose or enforce the security interest in all or
any part of the Collateral granted herein, or to enforce any other legal or
equitable right vested in it by this Agreement or by law;


 


(iv)          sell or otherwise dispose of any or all of the
Collateral or cause all or any part of the Collateral to be sold or otherwise
disposed of in 


 


14

















 


one or
more sales or transactions, at such prices as Security Agent may deem
commercially reasonable, and for cash or on credit or for future delivery,
without assumption of any credit risk, at any broker’s board or at public or
private sale, without demand of performance or notice of intention to sell or
of time or place of sale (except such notice as is required by applicable
statute and cannot be waived, in which case such notice shall be in accordance
with the provisions hereof to extent permitted by applicable law), it being
agreed that Security Agent may be a purchaser on behalf of the Secured Parties
or on its own behalf at any such sale and that Security Agent, any Secured
Party or any other Person who may be a bona fide purchaser for value of any or
all of the Collateral without notice of any claims of any or all of the
Collateral so sold shall thereafter hold the same absolutely, free from any
claim or right of whatsoever kind, including any equity of redemption, of
Guarantor, any such demand, notice or right and equity being hereby expressly
waived and released;


 


(v)           incur reasonable expenses, including reasonable
attorneys’ fees, consultants’ fees, and other costs appropriate to the exercise
of any right or power under this Agreement;


 


(vi)          perform any obligation of Guarantor hereunder or under
any other Financing Document or Assigned Agreement, and make payments,
purchase, contest or compromise any encumbrance, charge, or lien, and pay taxes
and expenses, without, however, any obligation to do so;


 


(vii)         take possession of the Collateral and render it
usable, and repair and renovate the same, without, however, any obligation to
do so, and enter upon the Project Site or any other location where the same may
be located for that purpose, control, manage, operate, rent and lease the Collateral,
either separately or in conjunction with the Stetson II Project, collect all
rents and income from the Collateral and apply the same in accordance with the
Financing Documents;


 


(viii)        secure the appointment of a receiver for Guarantor or Borrower and/or
the Collateral or any part thereof without any prior notice to Borrower or
Guarantor;


 


(ix)           require Guarantor to assemble the Collateral at the
expense of Guarantor and (to the extent moveable) make it available to Security
Agent at a place to be designated by Security Agent which is reasonably
convenient to both parties;


 


15

















 


(x)            require Guarantor to take any actions that are
necessary or requested by Security Agent to preserve the value of the Collateral
and the validity, perfection or priority of the liens granted by this Agreement
in any portion of the Collateral; or


 


(xi)           exercise any other or additional rights or remedies
granted to a secured party under the UCC.


 


(b)           Minimum Notice Period. 
If, pursuant to applicable law, prior notice of any such action is
required to be given to Guarantor, Guarantor hereby acknowledges that the
minimum time required by such applicable law, or ten (10) Business Days if
no minimum is specified, shall be deemed a reasonable notice period.  Security Agent shall not be obligated to make
any sale of Collateral regardless of notice of sale having been given.  Security Agent may adjourn any public or
private sale from time to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made at the time and
place to which it was so adjourned.


 


(c)           Payment of Costs. 
The costs and expenses of Security Agent incurred in
connection with actions undertaken to enforce, protect and preserve any of its
rights and claims under this Agreement, shall be payable as provided in the
Financing Documents.


 


(d)           Application of Proceeds. 
Subject to the terms of the the other Financing Documents, Security
Agent shall apply the net proceeds of any sale or other realization of all or
any part of the Collateral in accordance with the Financing Agreement.  In the event that the proceeds of any sale or
other realization upon the Collateral by Security Agent are insufficient to pay
all Obligations, Guarantor shall be liable for the deficiency as calculated in
accordance with the the other Financing Documents.  Any excess proceeds after full satisfaction
of the Obligations shall be returned promptly to Guarantor.


 


Section 7.               Remedies Cumulative; Delay Not Waiver.


 


(a)           Remedies Cumulative.  No
right, power or remedy herein conferred upon or reserved to Security Agent or
the Secured Parties is intended to be exclusive of any other right, power or
remedy, and every such right, power and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right, power and remedy
given hereunder or now or hereafter existing at law or in equity or
otherwise.  The assertion or employment
of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.


 


16

















 


(b)           No Waiver.  No
delay or omission of Security Agent to exercise any right or power accruing
upon the occurrence and during the continuation of an Event of Default shall
impair any such right or power of Security Agent, nor shall it be construed to
be a waiver of any such Event of Default or an acquiescence therein.  Every power and remedy given by this
Agreement may be exercised from time to time, and as often as shall be deemed
expedient, by Security Agent upon the occurrence and during the continuation of
an Event of Default. Each and every default by Guarantor in payment hereunder
shall give rise to a separate cause of action hereunder, and Security Agent may
enforce its security interest in concurrent or successive actions and in one or
several consolidated or independent judicial actions or lawfully taken
nonjudicial proceedings, or both.


 


(c)           Use of Agents.  Security
Agent may perform any of its rights and duties hereunder by or through agents
and is entitled to retain counsel and to act in reliance upon the advice of
such counsel concerning all matters pertaining to its rights and duties
hereunder.


 


Section 8.               Representations and Warranties.


 


(a)           Guarantor has not assigned any of its rights under the
Assigned Agreements or any of the Collateral except as provided in this
Agreement and the other Financing Documents.


 


(b)           The Assigned Agreements have not been amended
since the date of their execution, except as otherwise disclosed to Security
Agent, and are in full force and effect. 
There exists no default, or event that with the passage of time, the
giving of notice or both would become a default by Guarantor under the Assigned
Agreements.


 


(c)           Guarantor (i) has the power and authority to
execute, deliver and perform its obligations under the Financing Documents, the
Assigned Agreements and this Agreement, and to pledge and assign the
Collateral; (ii) has taken all necessary action to authorize the
execution, delivery and performance of the Financing Documents, the Assigned
Agreements and this Agreement; and (iii) has duly executed and delivered
the Financing Documents, the Assigned Agreements and this Agreement.  The Financing Documents, the Assigned
Agreements and this Agreement constitute the legal, valid and binding
obligations of Guarantor, enforceable in accordance with their respective
terms, except as the enforceability thereof may be limited by applicable bankruptcy,
insolvency, moratorium, reorganization or other similar laws affecting the
enforcement of creditors’ rights and subject to general equitable principles.


 


(d)           The representations and warranties contained in Article 8
of the Financing Agreement are hereby incorporated herein by reference in this
Agreement


 


17














 


mutatis mutandis as a direct representation
and warranty of Guarantor with respect to itself and the Stetson II Project and such representations and
warranties are true and correct as of the date hereof.


 


(e)           The security interests granted to Security Agent, for
the benefit of Secured Parties, pursuant to this Agreement, in the Collateral (a) upon
filing of appropriate financing statements, constitute as to personal property
included in the Collateral and, with respect to subsequently acquired personal
property included in the Collateral, will constitute, a perfected security
interest under the UCC to the extent a security interest can be perfected by
filing or by possession by or on behalf of the secured party and (b) are,
and, with respect to such subsequently acquired personal property, will be, as
to the Collateral perfected under the UCC as aforesaid, superior and prior to
the rights of all third Persons now existing or hereafter arising whether by
way of mortgage, lien, security interests, encumbrance, assignment or otherwise
(other than Permitted Liens that, pursuant to applicable law,
are entitled to a higher priority than the liens granted by this Agreement).  Except to the extent possession of portions
of such Collateral is required for perfection, all such action as is necessary
has been taken to establish and perfect Security Agent’s, for the benefit of
Secured Parties, rights in and to such Collateral to the extent Security Agent’s
security interest (for the benefit of the Secured Parties) can be perfected by
filing, including any recording, filing, registration, giving of notice or
other similar action.  No filing,
recordation, re-filing or re-recording other than those listed on Exhibit B
hereto (as the same may be supplemented from time to time) is necessary to
perfect and maintain the perfection of the Liens created by this Agreement on
the Collateral, and all such filings or recording will have been made to the
extent Security Agent’s, for the benefit of Secured Parties, security interest
can be perfected by filing (except to the extent that such filings or
recordings are, by their nature, filings or recordings to be made at a later
date).  Guarantor has properly delivered
or caused to be delivered to Security Agent all such Collateral that requires
perfection of the Lien and security interest described above by possession.


 


(f)            Guarantor’s principal place of business and chief
executive office is located at 85 Wells Avenue, Suite 305, Newton, MA
02459.  Guarantor has not changed its
location (as defined in Section 9-307 of the UCC) or previously changed
its name.


 


(g)           It is understood and agreed that the foregoing
representations and warranties shall apply only to the Collateral delivered on
the date hereof and that, with respect to Collateral delivered thereafter,
Guarantor shall, upon the written request of Security Agent, be required to
make representations and warranties in form and substance substantially similar
to the foregoing in supplements hereto and that such representations and 


 


18

















 


warranties
contained in such supplements hereto shall be applicable to such Collateral
hereafter delivered.


 


Section 9.               Covenants.


 


(a)           Guarantor shall perform and comply, in all material
respects, with all obligations and conditions on its part to be performed
hereunder, under the Assigned Agreements, the Financing Documents and with
respect to the Collateral.


 


(b)           Guarantor shall not directly or indirectly create,
incur, assume or suffer to exist any liens on or with respect to any part of
the Collateral (other than Liens granted pursuant to the Financing Documents or
clauses (b), (c), (f), (l) and (m) of the definition of Permitted
Liens (such term being used herein with the reference to “Borrower” in clause (b) of
such definition contained in the Financing Agreement being deemed to be a
reference to “Guarantor” for purposes of this Agreement).  Guarantor will at its own cost and expense
promptly take such action as may be necessary to discharge any such liens.


 


(c)           Without the prior written consent of Security Agent,
such consent in respect to modification or amendment not to be unreasonably
withheld, or except as otherwise permitted by the Financing Agreement or the
other Financing Documents, Guarantor shall not terminate, modify or amend the
Assigned Agreements.


 


(d)           Guarantor shall give to Security Agent prompt notice
of (i) each demand or notice received by it relating to the Assigned
Agreements; and (ii) any default, event of default or event which with the
giving of notice or the passage of time or both might reasonably be expected to
become a default under the Assigned Agreements, whether by Guarantor, Borrower
or any other Person, of which Guarantor has knowledge or as to which Guarantor
has received notice.


 


(e)           Guarantor shall give Security Agent at least 10
Business Days’ notice of a change in location of its place of business and
chief executive office and shall, at the expense of Guarantor, execute and
deliver such instruments and documents as may be required by Security Agent to
maintain the security interest in the Collateral created hereunder.


 


(f)            Except as otherwise permitted under the Financing
Agreement, Guarantor will not make any assignment of its rights under the
Assigned Agreements other than any assignment pursuant to this Agreement or any
other Financing Document.


 


(g)           With respect to each and every covenant and agreement
of Borrower set forth in the Financing Documents that relates to Borrower
causing (or not permitting) the Guarantor to take action or to refrain from
taking any 


 


19

















 


action
is hereby incorporated by reference in this Agreement mutatis mutandis as a direct obligation,
covenant and agreement of Guarantor with respect to itself and the Stetson II
Project, and Guarantor agrees to perform and observe each such covenant and
agreement as it relates to it and the Stetson II Project so long as any
Obligations shall be outstanding, to and in favor of Security Agent and the
other Secured Parties.


 


(h)           Guarantor will defend its title to the Collateral and
the interest of Security Agent in the Collateral against any claim or demand of
any Persons (other than the Permitted Liens set out in subsections (b), (c),
(d), (g), and (i) of such definition).


 


(i)            Without the prior written consent of Security Agent,
such consent not to be unreasonably withheld, Guarantor will not file or
authorize to be filed in any jurisdiction any financing statements under the
UCC or any like statement with respect to the Collateral, in which Security
Agent is not named as the sole secured party for the benefit of the Secured
Parties.


 


Section 10.             INTENTIONALLY OMITTED


 


Section 11.             Borrower’s Consent and Covenant.


 


Borrower hereby consents to the assignment and grant of a security
interest in the Collateral to Security Agent and to the exercise by Security
Agent of all rights and powers assigned or delegated to Security Agent by
Guarantor hereunder.  Borrower further
agrees to perform all covenants and obligations herein which, by their terms,
are to be performed by Borrower.


 


Section 12.             Attorney-In-Fact.


 


(a)           Attorney-In-Fact. 
Guarantor hereby constitutes and appoints Security Agent, acting for and
on behalf of itself and all Secured Parties and each successor or assign of
Security Agent and the Secured Parties, the true and lawful attorney-in-fact of
Guarantor, with full power and authority in the place and stead of such
Guarantor and in the name of Guarantor, Security Agent or otherwise after the
occurrence and during the continuation of an Event of Default, to enforce all
rights, interests and remedies of Guarantor with respect to the Collateral,
including the rights:


 


(i)            to ask, require, demand, receive, compound and give
acquittance for any and all moneys and claims for moneys due and to become due
under or arising out of the Assigned Agreements or any of the other Collateral,
including any insurance policies;


 


(ii)           to elect remedies thereunder and to endorse any
checks, documents or other instruments or orders in connection therewith;


 


20

















 


(iii)          to give appropriate receipts, releases and
satisfactions for and on behalf of and in the name of Guarantor or, at the
option of Security Agent, in the name of Security Agent, with the same force
and effect as Guarantor could do if this Agreement had not been made;


 


(iv)          to file any claims or take any action or institute any
proceedings in connection therewith which Security Agent may reasonably deem to
be necessary or advisable;


 


(v)           to pay, settle or compromise all bills and claims
which may be or become liens or security interests against any or all of the
Collateral, or any part thereof, unless a bond or other security satisfactory
to Security Agent has been provided;


 


(vi)          upon foreclosure, to do any and every act which
Guarantor may do on its behalf with respect to the Collateral or any part
thereof and to exercise any or all of Guarantor’s rights and remedies under any
or all of the Assigned Agreements;


 


(vii)         to preserve the validity, perfection and priority of
the liens granted by this Agreement;


 


(viii)        to, in the name of Guarantor or its own name, or otherwise, take
possession of, receive and indorse and collect any check, Account, Chattel
Paper, draft, note, acceptance or other Instrument for the payment of moneys
due under any Account or General Intangible;


 


(ix)           to execute, in connection with any sale or disposition
of the Collateral under Section 6, any endorsements, assignments,
bills of sale or other instruments of conveyance or transfer with respect to
all or any part of the Collateral;


 


(x)            in the case of any Intellectual Property, to execute
and deliver, and to have recorded, any agreement, instrument, document or paper
as Security Agent may request to evidence Security Agent’s security interest in
such Intellectual Property and the goodwill and General Intangibles of
Guarantor relating thereto or represented thereby;


 


(xi)           to pay or discharge taxes and liens levied or placed
on or threatened against the Collateral, effect any repair or pay or discharge
any insurance called for by the terms of this Agreement (including all or any
part of the premiums therefor and the costs thereof);


 


(xii)          to execute, in connection with any sale provided for
in Section 6, any endorsement, assignment or other instrument of
conveyance or transfer with respect to the Collateral; and


 


21

















 


(xiii)         to (A) direct any party
liable for any payment under any Collateral to make payment of any moneys due
or to become due thereunder directly to Security Agent or as Security Agent shall
direct, (B) ask or demand for, collect, and receive
payment of and receipt for, any moneys, claims and other amounts due or to
become due at any time in respect of or arising out of any Collateral, (C) sign
and indorse any invoice, freight or express bill, bill of lading, storage or
warehouse receipt, draft against debtors, assignment, verification, notice and
other document in connection with any Collateral, (D) commence and
prosecute any suit, action or proceeding at law or in equity in any court of
competent jurisdiction to collect any Collateral and to enforce any other right
in respect of any Collateral, (E) defend any suit, action or proceeding
brought against Guarantor with respect to any Collateral, (F) settle,
compromise or adjust any such suit, action or proceeding and, in connection
therewith, give such discharges or releases as Security Agent may deem
appropriate, (G) assign any Intellectual Property, to the extent
assignable, throughout the world for such term or terms, on such conditions,
and in such manner as Security Agent shall in its
sole discretion determine, including the execution and filing of any document
necessary to effectuate or record such assignment; and (H) generally,
sell, transfer, pledge and make any agreement with respect to or otherwise deal
with any Collateral as fully and completely as though Security Agent
were the absolute owner thereof for all purposes, and do, at Security Agent’s
option and Guarantor’s expense, at any time, or from time to time, all acts and
things that Security
Agent deems necessary to protect, preserve or realize
upon the Collateral and Security Agent’s and the other
Secured Parties’ security interests therein and to effect the intent of this
Agreement, all as fully and effectively as Guarantor might do;


 


provided, however,
that Security Agent shall not exercise any such rights or remedies unless an
Event of Default has occurred and is continuing.  This power of attorney is a power coupled
with an interest and shall be irrevocable.


 


(b)           Motor Vehicles. 
Without limiting the rights and powers of Security Agent under Section 12(a),
Guarantor hereby appoints Security Agent as its attorney-in-fact, effective the
date of this Agreement and terminating upon the termination of this Agreement,
for the purpose of, upon the occurrence and during the continuation of an Event
of Default, (i) executing on behalf of Guarantor title or ownership
applications for filing with appropriate state agencies to enable Motor
Vehicles now owned or in the future acquired by Guarantor to be retitled and
Security Agent to be listed as lien holder as to those Motor Vehicles, (ii) filing
such applications with such state agencies, and (iii) executing such other
documents and instruments on behalf of, and taking such other action in the
name of, Guarantor as 


 


22

















 


Security
Agent may deem necessary or advisable to accomplish the purposes of this Agreement
(including the purpose of creating in favor of Security Agent a perfected lien
on such Motor Vehicles and exercising the rights, remedies, powers and
privileges of Security Agent under Section 6).  This appointment as attorney-in-fact is
irrevocable and coupled with an interest.


 


(c)           Expenses. 
The expenses of Security Agent incurred in
connection with actions undertaken as provided in this Section 12,
together with interest thereon at a rate per annum equal to the rate per annum
at which interest would then be payable on past due Loans that are Base Rate
Loans under the Financing Agreement, from the date of payment by Security Agent to
the date reimbursed by Guarantor, shall be payable by Guarantor to Security Agent on
demand and shall constitute Obligations and be secured by the Liens of the
Collateral Documents.


 


(d)           Ratification; Powers Coupled With Interests.  Guarantor hereby ratifies all that said
attorneys shall lawfully, in compliance with the terms of the Financing
Documents, and not otherwise acting with gross negligence or willful
misconduct, 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.


 


Section 13.             Perfection; Further Assurances.


 


(a)           Perfection. 
Guarantor agrees that from time to time, Guarantor shall promptly
execute and deliver all instruments and documents, and take all action, that
may be reasonably necessary, or that Security Agent may reasonably request, in
order to perfect and protect the assignment and security interest granted or
intended to be granted hereby, or to enable Security Agent to exercise and
enforce its rights and remedies hereunder with respect to any Collateral in
accordance with the terms hereof. 
Without limiting the generality of the foregoing, Guarantor shall (i) deliver
the Collateral or any part thereof to Security Agent for the benefit of the
Secured Parties as Security Agent may request, duly endorsed or accompanied by
such duly executed instruments of transfer or assignment, as Security Agent may
request, and in form and substance satisfactory to Security Agent; (ii) deliver
to Security Agent any and all Instruments, endorsed or accompanied by such
instruments of assignment and transfer in such form and substance as Security
Agent may reasonably request; (iii) cooperate with Security Agent in
obtaining, and take such other actions as are necessary or that Security Agent
may reasonably request in order for them to obtain Control (as defined in the
UCC) with respect to all Deposit Accounts, Investment Property, Electronic
Chattel Paper and Letter-of-Credit Rights included in the Collateral, including
(to the extent reasonably requested by Security Agent) (A) in the case of
any Deposit 


 


23

















 


Account
for which Security Agent is not the Bank (as defined in the UCC) at which that
Deposit Account is maintained, using commercially reasonable efforts to cause
the Bank to enter into an agreement in such form as Security Agent may in its
reasonable discretion accept and (B) in the case of any Security
Entitlement, using commercially reasonable efforts to cause the relevant Securities
Intermediary to enter into an agreement in such form as Security Agent may in
its reasonable discretion accept; (iv) cause Security Agent (to the extent
reasonably requested by Security Agent) to be listed as the lienholder on all
certificates of title or ownership relating to Motor Vehicles in the name of
Guarantor and deliver to Security Agent originals of all such certificates of
title or ownership for such Motor Vehicles together with the odometer
statements for each such respective Motor Vehicle; (v) cause Security
Agent to be listed as the lienholder on any certificate of title or ownership
for any other Equipment covered by a certificate of title or ownership; and (vi) execute
and file such financing or continuation statements, or amendments thereto,
including financing statements describing the Collateral as “all assets now
owned or hereafter acquired”, and such other instruments, endorsements or
notices, as may be reasonably necessary or as Security Agent may reasonably
request, in order to perfect and preserve the assignments and security
interests granted or purported to be granted hereby.


 


(b)           Filing of Financing Statements.  Guarantor hereby authorizes Security Agent to
file one or more financing or continuation statements, and amendments thereto,
relative to all or any part of the Collateral, including financing statements
describing the Collateral as “all assets now owned or hereafter acquired”,
without the signature of Guarantor where permitted by law.  Except for filings on the Closing Date,
Security Agent shall notify Guarantor promptly after any such filing.


 


(c)           Payment of Fees. 
Guarantor shall pay all filing, registration and recording fees and all
refiling, re-registration and re-recording fees, and all reasonable
out-of-pocket expenses incident to the execution and acknowledgement of this
Agreement, and all federal, state, county and municipal stamp taxes and other
taxes, duties, imports, assessments and charges arising out of or in connection
with the execution and delivery of this Agreement, any agreement supplemental
hereto, any financing statements, and any instruments of further assurance,
except as may otherwise be provided in the Financing Agreement.


 


Section 14.             Notices.


 


All notices required or permitted under the terms and
provisions hereof shall be in writing and any such notice shall be effective if
given in accordance with the provisions of Section 14.1 of the Financing
Agreement.  Notices to Security Agent may



 


24

















 


be given at the address of Security Agent set forth in
such Section 14.1 of the Financing Agreement.  Notices to Guarantor may be given at the
following addresses:


 


Stetson Wind II, LLC


c/o First Wind Energy,
LLC


179 Lincoln Street, Suite 500


Boston, MA 02111


Attention:  Secretary

Fax:  (619) 960-2889


 


Section 15.             Continuing Assignment and Security
Interest; Transfer of Notes.


 


This Agreement shall create a continuing pledge and
assignment of and security interest in the Collateral and shall (a) remain
in full force and effect until the Discharge of Obligations; (b) be
binding upon Guarantor, and its respective successors and assigns; and (c) inure,
together with the rights and remedies of Security Agent, to the benefit of
Security Agent, the Secured Parties and their respective successors,
transferees and permitted assigns. 
Without limiting the generality of the foregoing, Security Agent or any
Secured Party may assign or otherwise transfer all or any part of or interest
in the Notes, the Commitments or other evidence of the Obligations owed to them
to any other Person to the extent permitted by and in accordance with the
Financing Agreement, and such other Person shall thereupon become vested with
all or an appropriate part of the benefits in respect thereof granted to the
Secured Parties herein.  The release of
the security interest in any or all of the Collateral, the taking or acceptance
of additional security, or the resort by Security Agent to any security it may
have in any order it may deem appropriate, shall not affect the liability of
any Person on the indebtedness secured hereby.


 


Section 16.             Termination of Security Interest.


 


Upon the Discharge of
Obligations, this Agreement and the security interest granted hereby shall
terminate and all rights to the Collateral shall automatically revert to
Guarantor.  Upon any such termination,
Security Agent will, at Guarantor’s expense, execute and deliver to Guarantor
such documents (including UCC-3 termination statements) as Guarantor shall
reasonably request to evidence such termination.  The release of the security interest in any
or all of the Collateral, the taking or acceptance of additional security, or
the resort by Security Agent to any security it may have in any order it may
deem appropriate, shall not affect the liability of any Person on the
indebtedness secured hereby.  If this
Agreement shall be terminated or revoked by operation of law, Guarantor will
indemnify and hold Security Agent and the other Secured Parties harmless from
any loss, cost or expense which may be suffered or incurred by Security Agent
and the Secured Parties in acting hereunder in good faith prior to the receipt
by Security Agent, its successors, transferees, or assigns, of notice of such
termination or revocation.


 


25

















 


Section 17.             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.


 


Section 18.             Successors and Assigns.


 


This Agreement shall be binding upon, and inure to the
benefit of, the parties hereto and their respective successors and permitted
assigns; provided however that Guarantor may not assign its rights or
obligations hereunder.


 


Section 19.             No Amendment, Modification.


 


This Agreement may only be amended or modified by an
instrument in writing signed by Guarantor, Borrower and Security Agent, both
for itself and on behalf of any other parties to be charged in accordance with
the terms of this Agreement.


 


Section 20.             Headings.


 


The headings of the various sections herein are for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof.


 


Section 21.             Liability.


 


The scope of liability of Guarantor hereunder shall be
as set forth in Article 11 (Scope of Liability) of the Financing
Agreement, which Article 11 is incorporated herein by this reference.


 


Section 22.             Governing Law.


 


THIS AGREEMENT, INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE AND MATTERS RELATING TO THE CREATION, VALIDITY,
ENFORCEMENT OR PRIORITY OF THE LIEN OF, AND SECURITY INTERESTS CREATED BY, THIS
AGREEMENT IN OR UPON THE COLLATERAL, SHALL BE GOVERNED BY THE LAWS OF THE STATE
OF NEW YORK, WITHOUT REFERENCE TO THE CONFLICTS OF LAW RULES (OTHER THAN SECTION 5-1401
AND SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW), EXCEPT AS
REQUIRED BY MANDATORY PROVISIONS OF LAW AND EXCEPT TO THE EXTENT THAT THE
VALIDITY OR PERFECTION OF THE LIEN AND SECURITY INTEREST HEREUNDER, OR REMEDIES
HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF
A JURISDICTION OTHER THAN THE STATE OF NEW YORK.


 


26

















 


Section 23.             References to Other Documents.


 


Subject to the Financing Agreement, all defined terms
used in this Agreement which refer to other documents shall be deemed to refer
to such other documents as they may be amended, supplemented or replaced from
time to time, provided such documents were not amended in breach of a covenant
contained in any agreement to which Borrower, Guarantor or Security Agent is a
party.


 


Section 24.             Execution in Counterparts.


 


This Agreement may be executed in one or more
duplicate counterparts, and when executed and delivered by all the parties
hereto, shall constitute a single binding agreement.


 


Section 25.             Third Party Rights.


 


Nothing in this Agreement, expressed or implied, is
intended or shall be construed to confer upon, or give to any Person, other
than Guarantor, Security Agent and the Secured Parties, any security, rights,
remedies or claims, legal or equitable, under or by reason hereof, or any
covenant or condition hereof; and this Agreement and the covenants and
agreements herein contained are and shall be held to be for the sole and
exclusive benefit of Guarantor, Security Agent and the Secured Parties.


 


Section 26.     Conflict Among Agreements.


 


In the event of any
conflict between the terms and provisions of this Agreement, the Financing
Agreement, the terms and conditions of the Financing Agreement shall prevail.


 


Section 27.             Waiver of Jury Trial.


 


THE PARTIES TO THIS AGREEMENT HEREBY KNOWINGLY,
VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR
IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER OPERATIVE DOCUMENT, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN),
OR ACTIONS OF SECURITY AGENT, THE SECURED PARTIES, BORROWER OR GUARANTOR.  THIS PROVISION IS A MATERIAL INDUCEMENT FOR
SECURITY AGENT TO ENTER INTO THIS AGREEMENT.


 


Section 28.     Reinstatement.


 


This Agreement and the continuing security interest in, and the lien
on, the Collateral created hereunder shall automatically be reinstated, to the
extent permitted by applicable law, if and to the extent that for any reason
any payment by or on behalf of Borrower or Guarantor in respect of the
Obligations is rescinded or must otherwise be


 


27














 


restored by any holder of the Obligations, whether as
a result of any proceedings in bankruptcy or reorganization or otherwise.


 


[SIGNATURES FOLLOW]


 


28

















 


IN
WITNESS WHEREOF, the parties hereto have caused this Guaranty and Security
Agreement to be duly executed and delivered by their members and officers,
respectively, thereunto duly authorized, as of the day and year first above
written.


 


	
   

  	
  STETSON WIND II, LLC

  
	
   

  	
  a Delaware limited
  liability company, as Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  STETSON HOLDINGS, LLC

  
	
   

  	
  a Delaware limited liability company, as Borrower

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  BNP PARIBAS

  
	
   

  	
  as Security Agent 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


Exhibit A


 


List of
assigned agreements and documents


 


(i)          Stetson Wind II LLC Agreement;


 


(ii)         PPA;


 


(iii)        the BOP Agreement to which it is a party;


 


(iv)        the Turbine Supply Agreement to which it
is a party;


 


(v)         the Interconnection Agreement to which it
is a party;


 


(vi)        the insurance policies maintained or
required to be maintained by Guarantor or any other Person (to the extent of
Guarantor’s right, title and interest therein) under the Financing Agreement,
including any such policies insuring against loss of revenues by reason of
interruption of the operation of the Stetson II Project and all loss proceeds
and other amounts payable to Guarantor thereunder and all applicable Eminent
Domain Proceeds;


 


(vii)       to the extent assignable, all other agreements,
including vendor warranties, running to Guarantor or assigned to Guarantor
relating to the construction, maintenance, improvement, operation or
acquisition of the Stetson II Project or any part thereof, or transport of
material, equipment and other parts of the Stetson II Project or any part
thereof;


 


(viii)      any lease or sublease agreements or
easement agreements, including the easement agreements, relating to the Stetson
II Project or any part thereof or any ancillary facilities, to which Guarantor
may be or become a party;


 


(ix)         each Material Project Document and any
other agreements to which Guarantor may be or become a party relating to the
construction or operation of the Stetson II Project or any part thereof;


 


(x)          each and every performance bond or
guaranty and similar other document relating to the performance by any party of
any of the Assigned Agreements;


 


(xi)         all rights of Guarantor to receive moneys
due and to become due under or pursuant to the Assigned Agreements and all
claims of Guarantor for damages arising out of or for breach of or under the
Assigned Agreements;


 


(xii)        all amendments, modifications,
supplements, restatements, substitutions and renewals to any of the Assigned
Agreements; and


 

















 


(xiii)       all Applicable Permits, including those
described on Exhibit H-2B to the Financing Agreement, except for any such
permit which would be breached or terminated solely by virtue of a security
interest being granted;


 

















 


Exhibit B


 


List of
UCC Filings


 


1.             UCC-1 Financing Statement naming Stetson
Wind II, LLC, as Debtor and BNP Paribas, in its capacity as Security Agreement,
as Secured Party, to be filed with the Secretary of State of the State of
Delaware.


 

















 


Execution
Version


 


EXHIBIT
E-4


to
Financing Agreement


 


FORM OF
ACCOUNT CONTROL AGREEMENT


 


(See Tab      )


 

















 


ACCOUNT CONTROL AGREEMENT


 


This ACCOUNT CONTROL
AGREEMENT (this “Agreement”), dated as of December 22, 2009, is
made among STETSON HOLDINGS, LLC, a Delaware
limited liability company (“Borrower”), BNP PARIBAS,
in its capacity as security agent (with its successors and permitted assigns,
the “Security Agent”) under that certain Financing Agreement (as defined
below) for the benefit of the Secured Parties (as defined in the Financing
Agreement) and SunTrust Bank, a Georgia banking corporation, in its capacity as
a “securities intermediary” as defined in Section 8-102 of the UCC (in
such capacity, with its successors and permitted assigns, the “Securities
Intermediary”).


 


A.            Pursuant to the Financing Agreement, Borrower is required
to arrange for the establishment of the Collateral Accounts (as defined below)
and to deposit, or arrange for the deposit of, cash and other property into the
Collateral Accounts as set forth in the Financing Agreement and this Agreement
and, pursuant to the Borrower Security and Pledge Agreement, Borrower has
granted to the Security Agent a security interest in Borrower’s right, title
and interest in and to the Collateral Accounts and the property credited
thereto.


 


B.            In order to perfect the Security Agent’s security
interest in the Collateral Accounts and the property credited thereto,
Borrower, the Security Agent and Securities Intermediary have agreed to enter
into this Agreement.


 


NOW, THEREFORE, for good
and valuable consideration, the receipt of which is hereby acknowledged, the
parties to this Agreement agree as follows:


 


Section 1.               Definitions.  Terms defined
in the Financing Agreement and used herein have the respective meaning assigned
thereto in Exhibit A of the Financing Agreement and, unless defined
therein or herein, terms defined in Articles 8 and 9 of the Uniform Commercial
Code as in effect in New York are used herein as therein defined.  In addition, as used herein:


 


“Book-Entry
Security” shall mean a security maintained in the form of entries
(including, without limitation the security entitlements in, and the financial
assets based on, such security) in the commercial book-entry system of the
Federal Reserve System.


 


“Distribution
Test” shall mean, in respect of any distribution to Member, each of the
following conditions tested as of the Payment Date on which any such
distribution is to be made:  (i) the
certification of the Minimum Debt Service Coverage Ratio; (ii) all Reserve
Accounts have been fully funded as required under Section 6; (iii) no
LC Loan shall be outstanding; (iv) no event, condition or circumstance
that could be reasonably expected to have a Material Adverse Effect shall have
occurred and be continuing as of such Payment Date or will result after giving
effect to the proposed distribution; and (v) No Event of Default or
Inchoate Default with respect to any Affiliated Participant has occurred and is
continuing as of such Payment Date or will result after giving effect to the
proposed distribution.


 


“Federal
Book-Entry Regulations” shall mean (a) the federal regulations
contained in Subpart B (“Treasury/Reserve Automated Debt Entry System
(TRADES)” governing Book-Entry Securities consisting of U.S. Treasury bonds,
notes and bills) and Subpart D (“Additional Provisions”) of 31 C.F.R. Part 357,
31 C.F.R. § 357.10 through § 357.14 and § 357.41 through
§ 357.44 (including related defined terms in 31 C.F.R. 


 


2

















 


§ 357.2); and (b) to
the extent substantially identical to the federal regulations referred to in
clause (a) above (as in effect from time to time), the federal regulations
governing other Book-Entry Securities.


 


“Financing
Agreement” shall mean the Financing Agreement, dated as of December 22,
2009, is entered into by and among Borrower, the lenders from time to time
parties thereto (collectively, the “Lenders” and each individually, a “Lender”),
BNP Paribas, in its separate capacities as a joint lead arranger, the
administrative agent, the security agent and the issuing bank, and HSH Nordbank
AG, New York Branch, as a joint lead arranger.


 


“Gen
Lead Distribution Test” shall mean, in respect of any distribution to
Member pursuant to Section 6(j) hereunder, each of the
following conditions tested as of the date on which any such distribution is to
be made:  (i) all Reserve Accounts
have been fully funded as required under Section 6; (ii) no LC
Loan shall be outstanding; (iii) no event, condition or circumstance that
could be reasonably expected to have a Material Adverse Effect shall have
occurred and be continuing as of such date or will result after giving effect
to the proposed distribution; and (iv) No Event of Default or Inchoate
Default with respect to any Affiliated Participant has occurred and is
continuing as of such date or will result after giving effect to the proposed
distribution.


 


“UCC”
shall mean the Uniform Commercial Code as in effect in the State of New York
from time to time.


 


Section 2.               The Collateral Accounts.


 


(a)           Establishment of Collateral Accounts. 
Securities Intermediary acknowledges and agrees that: (i) it has
established and is maintaining on its books
and records the accounts identified on the attached Schedule 1
(each such account, together with any replacements thereof or substitutions
therefor, the “Collateral Account” and such accounts, collectively, the “Collateral
Accounts”) in the name of the Borrower; (ii) each Collateral Account
is a “securities account” (within the
meaning of Section 8-501(a) of the UCC) in respect of which
Securities Intermediary is a “securities intermediary” (within the meaning of Section 8-102(a)(14)
of the UCC and, with respect to any Book-Entry Security, within the meaning of
Federal Book-Entry Regulations) and the Security Agent is the “entitlement
holder” (within the meaning of Section 8-102(a)(7) of the UCC); provided,
however, that if, notwithstanding the intention of the parties hereto,
all or any portion of the Collateral Account is determined to be a “deposit
account” (within the meaning of Section 9-102 of the UCC) rather than a “securities
account,” then the Securities Intermediary represents, warrants, covenants and
agrees that it is a “bank” (as defined in Section 9-102(a)(8) of the
UCC) and will treat the Borrower as its customer (within the meaning of Section 9-104(a)(3) of
the UCC) with respect to the Collateral Accounts (or portion thereof);  (iii) all property
delivered, or to be delivered, to Securities Intermediary pursuant to this
Agreement is, and will be, promptly credited to the Collateral Accounts; (iv) it
does not know of any claim to or interest in any Collateral Account or any
assets or funds therein, except for claims and interests of the parties to this
Agreement as set forth herein; and (v) it shall not change the name or
account number of any Collateral Account without the prior written consent of
the Security Agent.  Except as provided
in Section 2(b), Securities Intermediary agrees that it shall not
take “entitlement orders” (as defined in Section 8-102(a)(8) of the
UCC) or “instructions” (within the meaning of Section 9-104(a)(2) of
the UCC)


 


3














 


with respect to the Collateral Accounts or any assets or funds therein from any Person other than the
Security Agent.


 


(b)                                 Reliance Upon Instructions of Security
Agent.  It is agreed and understood that the
Collateral Accounts will be administered by Securities Intermediary according
to instructions given to it by the Security Agent, including, but not limited
to, instructions concerning the investment and disposition of funds held in the
Collateral Accounts; provided, however, that so long as the
Security Agent has not advised Securities Intermediary that any Default or
Event of Default has occurred and is continuing, Borrower may instruct
Securities Intermediary to invest any amounts in the Collateral Accounts in
Permitted Investments.  As to all matters
concerning administration of the Collateral Accounts, Securities Intermediary
shall be entitled, in its reasonable discretion, to request and receive
direction from the Security Agent. 
Securities Intermediary shall be entitled to conclusively presume that
any direction given to it by the Security Agent is in accordance with the
Collateral Documents.  Securities
Intermediary shall be entitled to conclusively presume that any investment
direction given to it by the Borrower is in accordance with the Financing
Agreement, the Energy Hedge and this Agreement.


 


(c)                                  Treatment of Account Balances as “Financial
Assets.”  Securities Intermediary hereby agrees that
each item of property (whether cash, a security, an instrument or any other
property whatsoever (including, without limitation, Permitted Investments))
credited to the Collateral Accounts shall be treated as a “financial asset”
under Article 8 of the UCC.


 


(d)                                 Registration of Securities, Etc. 
All securities and other financial assets credited to the Collateral
Accounts that are in registered form or that are payable to or to order shall
be (i) registered in the name of, or payable to or to the order of,
Securities Intermediary, (ii) indorsed to or to the order of Securities
Intermediary or in blank or (iii) credited to another securities account
maintained in the name of Securities Intermediary; and in no case will any
financial asset credited to the Collateral Accounts be registered in the name
of, or payable to or to the order of, Borrower or indorsed to or to the order
of Borrower, except to the extent the foregoing have been specially indorsed to
or to the order of Securities Intermediary or in blank.


 


(e)                                  Securities Intermediary’s Jurisdiction. 
Securities Intermediary agrees that its “securities intermediary’s
jurisdiction” (within the meaning of Section 8-110(e) of the UCC) or
its “bank’s jurisdiction” (within the meaning of Section 9-304(b) of
the UCC) is the State of New York.


 


(f)                                    Control of Collateral Accounts. 
If at any time the Securities Intermediary shall receive from the
Security Agent any entitlement order or any instruction originated by the
Security Agent directing transfer or redemption of any financial asset relating
to the Collateral Accounts, the disposition of funds in the Collateral Accounts
or any other action or inaction, the Securities Intermediary shall comply with
such entitlement order or instruction without further consent of the Borrower
or any other party.


 


(g)                                 Conflict between Agreements. 
Borrower, the Security Agent and Securities Intermediary agree that, if
there is any conflict between this Agreement and any other agreement relating
to the Collateral Accounts, the provisions of this Agreement shall control.


 


Section 3.                                            Duties of
Securities Intermediary.


 


(a)                                  Subordination of
Liens in Favor of Securities Intermediary, Etc. 
Securities Intermediary hereby subordinates to the extent it may
lawfully do so, any lien including, but not limited to (i) any and all
contractual rights of set-off, lien or compensation, (ii) any and all statutory
or regulatory rights of pledge, lien, set-off or compensation, (iii) any
and all 


 


4

















 


statutory,
regulatory, contractual or other rights to put on hold, block transfers from or
fail to honor instructions of the Security Agent with respect to the Collateral Accounts, and (iv) any and all statutory or other rights to prohibit
or otherwise limit the pledge, assignment, collateral assignment or granting of
any type of security interest in the Collateral Accounts, to the security interest of the Security Agent in the Collateral
Accounts, all property credited thereto,
all security entitlements with respect to such property and financial assets
and any and all statutory, regulatory, contractual or other rights now or
hereafter existing in favor of Securities Intermediary over or with respect to
the Collateral Accounts.


 


(b)                                 Account Statements.  Securities Intermediary will send copies of
all statements and confirmations for the Collateral Accounts
simultaneously to Borrower and the Security Agent.


 


(c)                                  No Liabilities of
Securities Intermediary or Officers, Etc. 
Neither Securities Intermediary nor any of its officers, directors,
employees, agents or attorneys-in-fact shall be liable for any action lawfully
taken or omitted to be taken by it or such person under or in connection with
this Agreement, except that neither Securities Intermediary nor any such person
shall be relieved of any liability arising out of (i) its or such person’s
willful failure to follow written directions delivered to it in
accordance with this Agreement or (ii) its or such person’s own gross
negligence or willful misconduct or unlawful acts.  Securities Intermediary shall have no
liability for making any investment or reinvestment of any cash balance in the Collateral Accounts pursuant to an investment instruction given to it by the
Security Agent or the Borrower.  Unless
otherwise directed by the Security Agent, any net investment earnings or losses
realized on any investments held in a Collateral Account shall be credited to
or debited from that Collateral Account. The Securities Intermediary assumes no responsibility for,
nor will it be liable for,
any loss arising from an  investment authorized under this Agreement,
including any loss arising from the sale of an investment to fund a
disbursement requested by the Security Agent hereunder.  The liabilities of Securities
Intermediary shall be limited to those expressly set forth in this
Agreement.  With the exception of this
Agreement, Securities Intermediary is not responsible for or chargeable with
knowledge of any terms or conditions contained in any agreement referred to
herein.  Securities Intermediary may
rely, and shall be protected in acting or refraining from acting, upon any written
notice, instruction or request furnished to it under this Agreement and
believed by it in good faith to be genuine and to have been signed or presented
by the proper party.  The Securities Intermediary shall in no
event incur any liability with respect to any action taken or omitted in good
faith upon advice of legal counsel, which may be counsel to any party hereto,
given with respect to any question relating to the duties and responsibilities
of the Securities Intermediary hereunder.


 


(d)                                 Degree of Care.  Securities Intermediary shall exercise the
same degree of care in administering the funds held in the Collateral Accounts
and the investments purchased from such funds in accordance with the terms of this Agreement
as Securities Intermediary exercises in the ordinary course of its day-to-day
business in administering other funds and investments for its own account and
as required by applicable law. 
Securities Intermediary shall perform its obligations hereunder in
accordance with generally accepted banking industry standards.


 


Section 4.                                            Indemnity;
Expenses; Fees.


 


(a)                                  Indemnification by
Borrower.  Borrower will
indemnify and defend Securities Intermediary and its officers, directors,
employees and agents, from and against any 


 


5

















 


and
all claims, losses and liabilities, including the reasonable costs of its
counsel, resulting from this Agreement (including, without limitation,
enforcement of this Agreement), but excluding any such claims, losses or liabilities
resulting from the gross negligence or willful misconduct or unlawful acts of
Securities Intermediary or any of its officers, directors, employees and
agents, or any willful failure of Securities Intermediary or any of its
officers, directors, employees and agents to follow written directions
delivered to Securities Intermediary in accordance with this Agreement.  The obligation of the Borrower to provide
such indemnification to the Securities Intermediary and its directors,
officers, employees and agents shall survive the termination of this Agreement
and the resignation or removal of the Securities Intermediary.


 


(b)                                 Costs and Expenses.  Borrower shall be responsible for, and hereby
agrees to pay all reasonable, documented costs and expenses incurred by
Securities Intermediary in connection with the establishment and maintenance of
the Collateral Accounts, including, without limitation, (i) Securities
Intermediary’s customary service charges, transfer fees and account maintenance
fees, (ii) any reasonable costs or expenses incurred by Securities
Intermediary as a result of conflicting claims or notices involving the parties
hereto, including, without limitation, the reasonable, documented fees and
expenses of its external legal counsel, and (iii) all other reasonable,
documented costs and expenses incurred in connection with the execution,
administration or enforcement of this Agreement including, but not limited to,
reasonable, documented attorneys’ fees and costs, whether or not such
enforcement includes the filing of a lawsuit (collectively, “Fees”). All
such Fees shall constitute O&M Costs and Securities Intermediary is hereby
authorized to pay such Fees from the Collateral Accounts if Borrower fails to pay such amounts when due; provided, that Securities
Intermediary shall provide a statement of such accrued Fees to Borrower and the
Security Agent simultaneously with such payment.  Except as otherwise expressly permitted in
this Agreement, Securities Intermediary hereby agrees that Securities Intermediary
will not exercise or claim any banker’s lien against the Collateral Accounts,
all property credited thereto, all security entitlements with respect to such
property and financial assets.


 


Section 5.                                            Event of Default.


 


(a)                                  Upon the occurrence and during the
continuation of an Event of Default, the Security Agent shall have the right to
instruct Securities Intermediary (i) not to release, withdraw, distribute,
transfer or otherwise make available any funds in or from any of the Collateral
Accounts except to the Security Agent and (ii) to take such action or
refrain from taking such action the Security Agent specifies.


 


(b)                                 Upon the receipt of notice of occurrence
of any Event of Default from the Security Agent, the Securities Intermediary
shall render an accounting to the Security Agent and the Borrower of all monies
in the Collateral Accounts as of the date of such Event of Default.  The Security Agent shall have the right to
exercise such remedies as are then available to it, including, without limitation,
under this Agreement, the Borrower Security Agreement and any applicable law,
and the Security Agent shall apply any funds on deposit in the Collateral
Accounts in accordance with Section 9.3 of the Financing Agreement.


 


Section 6.                                            Accounts.


 


(a)                                  Disbursement Account. 
The Borrower and the Security Agent have established with the Securities
Intermediary an account entitled the “Stetson Disbursement Account” (account
number 7931044) (the “Disbursement Account”).  All 


 


6

















 


proceeds of the Term
Loans and Bridge Loans shall be deposited in the Disbursement Account and shall
be applied in accordance with Section 7.1 of the Financing Agreement and
the Notice of Borrowing.


 


(b)                                 Revenue Account. 
The Borrower and the Security Agent have established with the Securities
Intermediary an account entitled the “Stetson Revenue Account” (account number
7931046) (the “Revenue Account”). 
Except as otherwise set forth in this Agreement, the Borrower shall (and
the Borrower shall cause each Project Company to) deposit in the Revenue
Account all cash amounts held by or paid to the Borrower (and each Project
Company), including without limitation, (i) any and all distributions and
other payments to which the Borrower is entitled under the Borrower LLC
Agreement, (ii) all Project Revenues paid to the Borrower or any Project
Company under any Project Documents or otherwise, (iii) all proceeds of
any equity contribution funded by all Affiliated Participants, (iv) all
proceeds of any business interruption insurance received by the Borrower or any
Project Company or otherwise in respect of the Projects, and (v) transfers
from other Collateral Accounts in accordance with this Section 6; provided,
however, that (x) all Government Grant proceeds received from the
Governmental Authority shall be deposited in the Government Grant Proceeds
Account pursuant to Section 6(g), (y) all proceeds of
insurance (other than proceeds of business interruption insurance) shall be
deposited in the Loss Proceeds Account pursuant to Section 6(f),
and (z) all proceeds paid to the Borrower or any Project Company related
to the Permitted Transmission Line Transfer shall be deposited in the Gen Lead
Account pursuant to Section 6(j). 
So long as no Event of Default has occurred and is continuing or will
occur upon giving effect to the application described below, funds in the
Revenue Account shall be applied by internal account transfer by the Securities
Intermediary at the direction of the Security Agent and the Borrower, in each
case at the following times and in the following order of priority:


 


(1)          First, on each Monthly Transfer Date, to the
Operating Account in an amount sufficient for the payment of O&M Costs that
are or will become due and payable either in the calendar month in which such
Monthly Transfer Date occurs or the next succeeding calendar month, in each
case to the extent that such O&M Costs are included in the Base Case
Project Projections;


 


(2)          Second, on each Payment Date and any other date
on which the following amounts may be due and payable, to the extent there are
funds remaining in the Revenue Account as of such date after application of
payments set forth in Section 6(b)(1), on a pro rata
basis, to the payment of any and all fees, costs and expenses due and payable
to the Agents, Lenders and Issuing Bank in connection with the Financing
Agreement and the other Financing Documents;


 


(3)          Third, on each Payment Date and any other date
on which the following amounts may be due and payable, to the extent there are
funds remaining in the Revenue Account as of such date after application of
payments set forth in Sections 6(b)(1)-(2), on a pro rata
basis, to the payment of (A) amounts due and payable to the Lenders with
respect to accrued interest on all outstanding Term Loans due and payable
hereunder, (B) amounts due and payable to the Lenders with respect to
accrued interest on all outstanding Bridge Loans due and payable hereunder, (C) amounts
due and payable to the Lenders with respect to accrued 


 


7

















 


interim interest pursuant to Section 2.2(d)(vii) of the
Financing Agreement, (D) amounts due and payable to the Lenders with
respect to accrued interest on all outstanding LC Loans due and payable hereunder,
and (E) all amounts, if any, then due and payable to the counterparties to
the Interest Rate Agreements or scheduled to become due and payable on such
Payment Date;


 


(4)          Fourth, on each Payment Date and any other date
on which the following amounts may be due and payable, to the extent there are
funds remaining in the Revenue Account as of such date after application of
payments set forth in Sections 6(b)(1)-(3), on a pro rata
basis, to the payment of (A) any outstanding principal of the Term Loans in
an amount up to the then required Scheduled Repayment Amount as of such date,
and (B) Reimbursement Obligations, if elected by Borrower or otherwise
required to be repaid pursuant to Section 2.2(d) of the Financing
Agreement;


 


(5)          Fifth, on each Payment Date, to the extent
there are funds remaining in the Revenue Account as of such date after
application of payments set forth in Sections 6(b)(1)-(4), to the
O&M Reserve Account, up to the O&M Reserve Requirement less any amount
of the O&M Reserve Requirement supported by the O&M Reserve LC;


 


(6)          Sixth, on each Payment Date, to the extent
there are funds remaining in the Revenue Account as of such date after
application of payments set forth in Sections 6(b)(1)-(5), to the
funding of the Debt Service Reserve Account up to the Debt Service Reserve
Requirement less any amount of the Debt Service Reserve Requirement supported
by the Debt Service Reserve LC;


 


(7)          Seventh, on each Payment Date and any other date
on which the following amounts may be due and payable, to the extent there are
funds remaining in the Revenue Account as of such date after application of
payments set forth in Sections 6(b)(1)-(6), to the prepayment of any
outstanding principal of LC Loans; and


 


(8)          Eighth, on each Payment Date and any other date
on which the following amounts may be due and payable, to the extent there are
funds remaining in the Revenue Account as of such date after application of
payments set forth in Sections 6(b)(1)-(7), to the prepayment of Loans
pursuant to Section 3.2 of the Financing Agreement or the payment of the
AIMCO Prepayment if so requested by the Borrower;


 


(9)          Ninth, on each Payment Date and prior to the
creation of an Energy Hedge Lien, to the extent there are funds remaining in
the Revenue Account as of such date after application of payments set forth in Sections
6(b)(1)-(8), to the funding of the Energy Hedge Reserve Account to the
extent the Hedge LC Margin is less than $2,500,000 pursuant to Section 7.3(q) of
the Financing Agreement; provided, that amounts on deposit in the Energy
Hedge Deposit Account shall never exceed $5,000,000 at any given time; and


 


(10) Tenth, on each
Payment Date, to the extent there are funds remaining in the Revenue Account as
of such date after application of payments set forth in Sections 6(b)(1)-(9),
to the Distribution Reserve Account for application pursuant to Section 6(i).


 


8

















 


(c)                                  Operating Account. 
The Borrower and the Security Agent have established with the Securities
Intermediary an account entitled the “Stetson Operating Account” (account
number 7931045) (the “Operating Account”). 
Funds on deposit in the Operating Account shall be transferred, after
giving effect to any deposits to the Operating Account pursuant to Sections
6(b)(1), to the extent of available funds, for the payment from time to
time of O&M Costs in accordance with the Base Case Project Projections that
are then due and payable.


 


(d)                                 Debt Service Reserve Account. 
The Borrower and the Security Agent have established with the Securities
Intermediary an account entitled the “Stetson Debt Service Reserve Account”
(account number 7931047) (the “Debt Service Reserve Account”).  Unless an Event of Default exists and is
continuing, Administrative Agent, as beneficiary under the Debt Service Reserve
LC, shall make a draw under the Debt Service Reserve LC to the to the extent
necessary in the event that the amounts on deposit in the Revenue Account are
at any applicable time insufficient for the purpose set forth in Sections
6(b)(3) and (4).  All
proceeds of Drawing Payments in respect of the Debt Service Reserve LC shall be
deposited in the Debt Service Reserve Account. 
Funds on deposit in the Debt Service Reserve Account shall be used as
and to the extent necessary in the event that the amounts on deposit in the
Revenue Account are at any applicable time insufficient for the purpose set
forth in Section 6(b)(3) and (4).  In the event that upon the repayment of any
Debt Service Reserve LC Loan and reinstatement of the Stated Amount of the Debt
Service Reserve LC, the effect of which is that the aggregate sum of such
reinstated Stated Amount and amount of funds on deposit in the Debt Service
Reserve Account exceeds the Debt Service Reserve Requirement, then such excess
amount shall be transferred to the Revenue Account to be applied pursuant to Section 6(b).  Funds on deposit in the Debt Service Reserve
Account may be transferred at Borrower’s request to be applied as an Optional
Prepayment in connection with an AIMCO Prepayment.


 


(e)                                  O&M Reserve Account. 
The Borrower and the Security Agent have established with the Securities
Intermediary an account entitled the “Stetson O&M Reserve Account” (account
number 7931048) (the “O&M Reserve Account”).  Unless an Event of Default exists and is
continuing, Administrative Agent, as beneficiary under the O&M Reserve LC,
shall make a draw under the O&M Reserve LC to the extent necessary in the
event that the amounts on deposit in the Revenue Account are at any applicable
time insufficient for the purpose set forth in Section 6(b)(1).  All proceeds of Drawing Payments in respect
of the O&M Reserve LC shall be deposited in the O&M Reserve
Account.  Funds on deposit in the O&M
Reserve Account shall be used as and to the extent necessary in the event that
the amounts on deposit in the Revenue Account are at any time insufficient for
the purpose set forth in Section 6(b)(1).  In the event that upon the repayment of any
O&M Reserve LC Loan and reinstatement of the Stated Amount of the O&M
Reserve LC, the effect of which is that the aggregate sum of such reinstated
Stated Amount and amount of funds on deposit in the Debt Service Reserve
Account exceeds the O&M Reserve Requirement, then such excess amount shall
be transferred to the Revenue Account to be applied pursuant to Section 6(b).  Funds on deposit in the O&M Reserve
Account may be transferred at Borrower’s request to be applied as an Optional
Prepayment in connection with an AIMCO Prepayment.


 


9

















 


(f)                              Loss Proceeds Account. 
The Borrower and the Security Agent have established with the Securities
Intermediary an account entitled the “Stetson Loss Proceeds Account” (account
number 7931050) (the “Loss Proceeds Account”). 
All Loss Proceeds paid or payable to or for the account of the Borrower
or any Project Company under any insurance policies maintained by the Borrower
or any Project Company or otherwise shall be deposited in the Loss Proceeds
Account, except for any such Loss Proceeds that the Security Agent determines
the Borrower is entitled to pursuant to the proviso set forth in the definition
of Restoration Conditions in the Financing Agreement, which shall be paid to an
unrestricted account directed by the Borrower. 
If the amount of Loss Proceeds received for a single event is $1,500,000
or less and Borrower and the Independent Engineer certify to the satisfaction
of the Security Agent, that repair or restoration of the affected portion of
the Project is technically and economically feasible prior to the Maturity Date
under the Financing Agreement (or, to the extent applicable, such shorter
period during which Insurance Proceeds are available under the business
interruption insurance maintained by or on behalf of Borrower or any Project
Company), and Borrower demonstrates to the Security Agent and the Independent
Engineer that a sufficient amount of funds are available to Borrower in the
Loss Proceeds Account to make such repairs and restorations, such funds on
deposit in the Loss Proceeds Account shall be transferred to the Borrower from
time to time to rebuild, repair, restore or replace the affected portion of the
Project.  If the Borrower elects to
satisfy the Restoration Conditions with respect to a single event for Loss
Proceeds paid to the Borrower in excess of $1,500,000 and such Restoration
Conditions are satisfied, such funds on deposit in the Loss Proceeds Account
shall be transferred to the Borrower from time to time to rebuild, repair,
restore or replace the affected portion of the Project.  If the Borrower elects not to satisfy the
Restoration Conditions (or if the Restoration Conditions are not otherwise
satisfied) with respect to a single event for Loss Proceeds paid to the
Borrower or any Project Company in excess of $1,500,000, such funds on deposit
in the Loss Proceeds Account shall be transferred to the Revenue Account to be
applied pursuant to Section 6(b).


 


(g)                                 Government Grant Proceeds Account. 
The Borrower and the Security Agent have established with the Securities
Intermediary an account entitled the “Stetson Government Grant Proceeds Account”
(account number 7931051) (the “Government Grant Proceeds Account”).  All proceeds of any Government Grant paid or
payable to or for the account of the Borrower or any Project Company or
otherwise received by any Affiliate of the Borrower in connection with the
Stetson II Project shall be deposited in the Government Grant Proceeds
Account.  The funds deposited in the
Government Grant Proceeds Account shall be promptly applied (A) to the
prepayment of all outstanding Bridge Loans, including all accrued interest and
any other fees and costs payable in connection therewith, and (B) to
the extent of any remainder, to the Revenue Account to be applied pursuant to Section 6(b).


 


(h)                                 Stetson I Holding Account. 
The Borrower and the Security Agent have established with the Securities
Intermediary an account entitled the “Stetson I Holding Account” (account
number 7931049) (the “Stetson I Holding Account”).  On the Closing Date, Borrower shall deposit
or cause to be deposited in the Stetson I Holding Account an amount equal to
$3,000,000 in accordance with Section 5.1(mm) of the Financing 


 


10

















 


Agreement.  The funds on deposit in the Stetson I Holding
Account shall be transferred to the prepayment of Term Loans pursuant to Section 3.2(c) of
the Financing Agreement.


 


(i)                                     Distribution Reserve Account. 
The Borrower and the Security Agent have established with the Securities
Intermediary an account entitled the “Stetson Distribution Reserve Account”
(account number 7931052) (the “Distribution Reserve Account”).


 


(i)                                     On any Payment Date after, or concurrent
with, the repayment in full of the Bridge Loans, after all transfers and
distributions required to be made pursuant to Sections 6(b)(1) – (8) and
in each case upon the satisfaction of all of the Distribution Test conditions,
which shall remain satisfied after giving effect to any proposed distribution,
the funds on deposit in the Distribution Reserve Account may be transferred to
Member as a distribution.


 


(ii)                                  If for two (2) consecutive Payment
Dates after the repayment in full of the Bridge Loans the conditions set forth
in clause (i) above are not satisfied, the amounts on deposit in the
Distribution Reserve Account shall be deposited into the Revenue Account to be
applied pursuant to Section 6(b).


 


(iii)                               Funds on deposit in the Distribution
Reserve Account may be transferred at Borrower’s request to be applied as an
Optional Prepayment in connection with an AIMCO Prepayment.


 


(j)                                     Gen Lead Account. 
The Borrower and the Security Agent have established with the Securities
Intermediary an account entitled the “Stetson Gen Lead Account” (account number
7933134) (the “Gen Lead Account”).  All
proceeds paid or payable to or for the account of the Borrower or any Project
Company or otherwise received by any Affiliate of the Borrower in connection
with the Permitted Transmission Lien Transfer shall be deposited in the Gen
Lead Account.  Immediately, but in no
event no later than the following Business Day after the Gen Lead Distribution
Test conditions have been satisfied, which shall remain satisfied after giving
effect to any proposed distribution, the funds on deposit in the Gen Lead
Account shall be transferred to Member, or any other Affiliate designated by
Borrower, as a distribution.


 


(k)                                  Energy Hedge Reserve Account. 
The Borrower and the Security Agent have established with the Securities
Intermediary an account entitled the “Stetson Energy Hedge Reserve Account”
(account number 7933154) (the “Energy Hedge Reserve Account”).  Funds on deposit in the Energy Hedge Reserve
Account may be transferred (1) in support of Borrower’s credit support
obligations pursuant to the Energy Hedge, upon appropriate certification from
Borrower that additional collateral is required with respect thereto; (2) as
an Optional Prepayment in connection with an AIMCO Prepayment; and (3) in
the event that on any Payment Date the Hedge LC Margin is greater than
$2,500,000, all amounts on deposit in the Energy Hedge Reserve Account shall be
deposited into the Revenue Account to be applied pursuant to Section 6(b).


 


Section 7.                                            Miscellaneous.


 


(a)                                  Waiver.  No failure on the part of Securities
Intermediary or the Security Agent to exercise and no delay in exercising, and
no course of dealing with respect to, any right, remedy, power or privilege
under this Agreement shall operate as a waiver of such right, remedy, power or
privilege, nor shall any single or partial exercise of any right, remedy, power
or privilege under this Agreement preclude any other or further exercise of any
such right, remedy, power or privilege or the exercise of any other right,
remedy, power or privilege.  The rights, 


 


11

















 


remedies,
powers and privileges provided in this Agreement are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.  No waiver of any provision of this Agreement and no
consent to any departure from the terms of this Agreement shall be effective
except in the specific instance and for the purpose for which given.


 


(b)                                 Notices.  All notices, requests and other communications
provided for in this Agreement shall be given or made in writing and delivered
by hand or courier service, mailed by certified or registered mail or sent by
facsimile or electronic mail (e-mail) to the intended recipient as specified
below in this Section 7(b) or, as to any party, at such other
address as is designated by that party in a notice to each other party.  All such communications shall be deemed to
have been duly given when transmitted by facsimile or electronic mail (e-mail)
(with electronic confirmation of transmission) or personally delivered or, in
the case of a communication that was mailed or sent by a courier service, upon
receipt.


 


To Borrower:


Stetson Holdings, LLC


c/o First Wind Energy,
LLC


179 Lincoln Street, Suite 500


Boston, MA  02111


Attention:             Secretary


Telephone:           (617)
960-2888


Facsimile:            (617)
960-2889


 


With a copy to:


 


First Wind Energy, LLC


179 Lincoln Street, Suite 500


Boston, MA 02111


Attention:       
     General Counsel


Telephone:           (617)
960-2888


Facsimile:            (617)
960-2889


 


To the Security
Agent:


 


BNP Paribas


787 Seventh Avenue


New York, NY  10019


Attention:  Project Finance & Utilities


Tel:   (212) 841-2000


Fax:  (212) 841-2146


 


12

















 


To Securities
Intermediary:


SunTrust
Bank


919
East Main Street, 7th Floor


Richmond,
Virginia  23219


Attention:
Escrow Services – Emily Hare


Telephone:  (804) 782-5400


Facsimile:  (804) 782-7855


 


(c)                                  Automatic Succession.  Any bank or corporation into which Securities
Intermediary may be merged or with which it may be consolidated, or any bank or
corporation (with a comparable asset base and level of experience in carrying
out the functions to be performed by Securities Intermediary) to whom
Securities Intermediary may transfer a majority of its escrow business, shall
be deemed the successor to Securities Intermediary upon delivery of notice of
such merger, consolidation or transfer to the Security Agent and Borrower,
without execution or filing of any other paper and without any further act on
the part of any of the parties to this Agreement.


 


(d)                                 Successors and Assigns.  This Agreement shall be binding upon and
inure to the benefit of Borrower, the Security Agent and Securities
Intermediary and their respective successors and permitted assigns.  Except as otherwise provided herein, no party
may assign or transfer its rights or obligations under this Agreement without
the prior written consent of the Security Agent; provided, however,
that Securities Intermediary shall not be obligated to comply with any
instructions or entitlement orders of any assignee or transferee of the
Security Agent until such assignee or transferee has provided Securities
Intermediary such evidence of its succession to the rights and powers of the
Security Agent as Securities Intermediary reasonably may require.


 


(e)                                  Resignation or Removal of Securities Intermediary. 
Securities Intermediary may resign as Securities Intermediary upon
thirty (30) days’ prior written notice to the Secured Parties and Borrower, and
may be removed at any time with or without cause by the Security Agent (acting
at the direction of the Secured Parties), with any such resignation or removal
to become effective only upon the appointment of a successor Securities
Intermediary under this Section 7(e).  If Securities Intermediary shall resign or be
removed as Securities Intermediary, then the Security Agent and the Secured
Parties shall (and if no such successor shall have been appointed within thirty
(30) days of Securities Intermediary’s resignation or removal, the Security
Agent may) appoint a successor intermediary for the Secured Parties, which
successor shall be reasonably acceptable to Borrower whereupon such successor
shall succeed to the rights, powers and duties of Securities Intermediary, and
the term “Securities Intermediary” shall mean such successor effective upon its
appointment, and the former Securities Intermediary’s rights, powers and duties
as Securities Intermediary shall be terminated, without any other or further
act or deed on the part of such former Securities Intermediary (except that the
former Securities Intermediary shall deliver all Collateral then in its
possession to the successor Securities Intermediary) or any of the other
Secured Parties.  After resignation or
removal hereunder as Securities Intermediary, the provisions of this Agreement
shall inure to, and continue to be binding upon, the former Securities
Intermediary’s benefit as to any actions taken or omitted to be taken by it
while it was Securities Intermediary.


 


(f)                                    Survival.  All representations and warranties made in
this Agreement or in


 


13














 


any
certificate or other document delivered pursuant to or in connection with this
Agreement shall survive the execution and delivery of this Agreement or such
certificate or other document (as the case may be) or any deemed repetition of
any such representation or warranty.


 


(g)                                 Severability.  Any provision of this Agreement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity, illegality or unenforceability
without affecting the validity, legality and enforceability of the remaining
provisions of this Agreement; and the invalidity of a particular provision in a
particular jurisdiction shall not invalidate such provision in any other
jurisdiction.


 


(h)                                 Captions.  The captions and section headings appearing
in this Agreement are included solely for convenience of reference and are not
intended to affect the interpretation of any provision of this Agreement.


 


(i)                                     Counterparts.  This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties to this Agreement may execute this Agreement
by signing any such counterpart.  Delivery of an executed counterpart of a
signature page to the Agreement by hand or by facsimile shall be as
effective as the delivery of a fully executed counterpart of this Agreement.


 


(j)                                     Agreement for Benefit of Parties
Hereto.  Except for the Secured Parties
and their respective successors and permitted assigns, nothing in this
Agreement, express or implied, is intended or shall be construed to confer
upon, or to give to, any Person other than the parties hereto and their
respective successors and permitted assigns, and Persons for whom the parties
hereto are acting as agents or representatives, any right, remedy or claim
under or by reason of this Agreement or any covenant, condition or stipulation
in this Agreement; and the covenants, stipulations and agreements contained in
this Agreement are and shall be for the sole and exclusive benefit of the
parties hereto and their respective successors and permitted assigns and
Persons for whom the parties hereto are acting as agents or representatives.


 


(k)                                  Special Exculpation.  To the extent permitted by applicable law, no
claim may be made by any party hereto or any other person against any other
party hereto or the affiliates, directors, officers, employees, attorneys or
agents of any of them for any special, indirect, consequential or punitive
damages in respect of any claim for breach of contract or any other theory of
liability arising out of or relating to this Agreement or the transactions
contemplated hereby, or any act, omission or event occurring in connection
therewith and the parties hereto hereby waive, release and agree not to sue
upon any claim for any such damages, whether or not accrued and whether or not
known or suspected to exist in its favor.


 


14

















 


(l)                                     Governing Law; Submission to
Jurisdiction.  THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK
WITHOUT REFERENCE TO CONFLICT OF LAWS PROVISIONS THEREOF (OTHER THAN SECTION 5-1401
AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).  EACH PARTY TO THIS AGREEMENT 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 OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.  EACH PARTY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR IN
THE FUTURE HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN
ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN ANY SUCH COURT
HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.


 


(m)                               Waiver of Jury Trial.  EACH OF BORROWER, SECURITY
AGENT AND SECURITIES INTERMEDIARY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.


 


(n)                                 Amendment; Waiver.  No amendment or waiver of any provision of
this Agreement shall be effective unless the same shall be in writing and
signed by all parties hereto, and any such waiver or amendment shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that the amendment of Section 6
hereunder shall be effective upon written consent of the Borrower and Security
Agent.


 


(o)                                 Termination of Agreement.  Except as provided herein, this Agreement
shall remain in full force and effect until the date upon which the Discharge of Obligations
occurs.


 


(p)                                 Compliance with Patriot Act.  In accordance with the
requirements of the Patriot Act, all parties to this Agreement must provide the
Securities Intermediary with a fully executed IRS Form W-9 upon execution
of this Agreement.  Each party agrees to
provide to the Securities Intermediary from time to time upon its request such
other documentation as would show proper authorization for such party to enter
into this Agreement and to evidence compliance with the Patriot Act.


 


[SIGNATURES TO FOLLOW]


 


15

















 


IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and
delivered as of the day and year first above written.


 


	
   

  	
  STETSON HOLDINGS, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  BNP PARIBAS,

  
	
   

  	
  as the Security Agent
  for the Secured Parties

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  SUNTRUST
  BANK,

  
	
   

  	
  as Securities
  Intermediary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


Schedule 1 to Account Control Agreement


 


STETSON
HOLDINGS, LLC ACCOUNTS


 


	
  7931044

  	
  - Stetson Disbursement
  Account

  
	
  7931045

  	
  - Stetson Operating
  Account

  
	
  7931046

  	
  - Stetson Revenue
  Account

  
	
  7931047

  	
  - Stetson Debt Service
  Reserve Account

  
	
  7931048

  	
  - Stetson O&M
  Reserve Account

  
	
  7931050

  	
  - Stetson Loss Proceeds
  Account

  
	
  7931051

  	
  - Stetson Government
  Grant Proceeds Account

  
	
  7931049

  	
  - Stetson I Holding
  Account

  
	
  7931052

  	
  - Stetson Distribution
  Reserve Account

  
	
  7933134

  	
  - Stetson Gen Lead
  Account

  
	
  7933154

  	
  - Stetson Energy Hedge Reserve Account

  



 


Exhibit E-4


 


1

















 


EXHIBIT
E-5


to
Financing Agreement


 


SCHEDULE
OF PERMITTED ENCUMBRANCES


 


Stetson
Mountain Wind I


 


1.               Non-exclusive easement for roadways
contained in Reciprocal Road Easement dated December 1, 1999 and recorded
on December 6, 1999 in Book 2395, Page 117 of Washington County
Registry of Deeds between John Hancock Mutual Life Ins. Co. and Lakeville
Shores, Inc. and rerecorded on January 26, 2000 in Book 2405, Page 254
of the Washington County Registry of Deeds.


 


2.               Provision of the Maine Tree Growth Tax
Law, Title 36, M.R.S.A, Section 571-5S4A.


 


3.               Maine Commercial Forestry Excise Tax,
Title 36, M.R.SA. Section 2721, 2727.


 


4.               Terms
and conditions of Land
Lease Agreement dated October 12, 2006, First Amendment to Land Lease
Agreement dated March 30, 2007 and Second Amendment to Land Lease
Agreement dated August 17, 2007, all as evidenced by Memorandum of Lease
dated October 13, 2008, by and between Lakeville Shores Inc., as Lessor,
and Evergreen Wind Power V, LLC, as Lessee, recorded on October 17, 2008
in Book 3462, Page 292, Document No. 11448, Register of Deeds,
Washington County, Maine.


 


5.               Rights to cross and recross reserved in the Trustee’s
Deed from Edward D. Leonard III, as Trustee of Land Exchange Trust, under
Declaration of Trust dated November 1, 1991 to Herbert C. Haynes, Inc.
dated May 28, 1998 and recorded in Book 2246, Page 137 of Washington
County Registry of Deeds.


 


6.               Terms and conditions of Shared Facilities and Sublease
Agreement as evidenced by Memorandum of Shared Facilities and Sublease
Agreement dated December     , 2009 by and between
Evergreen Wind Power V, LLC and Stetson Wind II, LLC recorded on December     ,
2009 in Book         , Page           ,
Document No.                   ,
Register of Deeds, Washington County, Maine.


 


Exhibit E-5


 


1

















 


Stetson Mountain Wind Line 56


 


The Permits, Routes, and Sections referred to herein are the same as
those Permits, Routes, and Sections referred to in the Stetson Mountain Wind
Line 56 loan policy issued by Stewart Title Guaranty Company in connection with
the closing under this Agreement.


 


Permits


 


a.               Terms and conditions of
Permit by and between Evergreen Wind Power V LLC/UPC Wind and Department of
Environmental Protection dated March 18, 2008 and filed in the Penobscot
County Registry of Deeds on April 2, 2008 in Book 11345, Page 249.


 


Section R1/R3.


Routes 1 and 3; SGC File
No: CHES-13-3; T&B File No: 07-1568AR


 


R1/3. a.                                           Terms of Supplemental Indenture from
Bangor Hydro-Electric Company to JP Morgan Chase Bank, N.A. dated as of May 13,
2005, recorded in Penobscot Registry of Deeds in Book 9879, Page 134 in
the original principal amount of $126,000,000.00 (supplementing an earlier
indenture [mortgage] on other property) [as to Exhibit A-R1/3].


 


R1/3. b.                                          Non-exclusive right of way for ingress and egress
described in a deed from Rodney Savage and Beatrice Savage to Robert Harmon, Sr.
dated December 7, 1974, recorded in Penobscot Registry of Deeds in Book
2612, Page 39 [as to Exhibit A-R1/3].


 


R1/3. c.                                           Non-exclusive easements for pole lines
contained in Deed of Pole Line Easements from Rodney L. Savage to Maine
Electric Power Company, Inc. dated September 16, 1969, recorded in
Penobscot Registry of Deeds in Book 2169, Page 405 [as to Exhibit A-R1/3].


 


R1/3. d.                                          Non-exclusive easement for anchor guys contained in
instrument from Rodney L. Savage to Maine Electric Power Company, Inc.
dated February 18, 1970, recorded in Penobscot Registry of Deeds in Book
2179, Page 623 [as to Exhibit A-R1/3].


 


R1/3. e.Terms and provisions of Generator Lead
Easement Agreement and Right of First Refusal between Bangor Hydro-Electric
Company and Evergreen Wind Power V, LLC dated October 10, 2008 recorded October 17,
2008 in Penobscot Registry of Deeds in Book 11563, Page 77 [as to Exhibit A-R1/3].


 


R1/3. f.                                             Mortgage from Carlton W. Aylward, et als.
to Northeast Bank of Lincoln, dated December 9, 1977 and recorded in
Penobscot Registry of Deeds in Book 2822, Page 119 in the original amount
of $25,000.00.  [as to Exhibit A-R1/3].


 


R1/3. g.                                          Second Mortgage from The Lincoln Company to George E.
Edwards, et al., recorded January 3, 1986 and recorded in Penobscot
Registry of Deeds in Book 3768, Page 105 in the original amount of
$14,758.83, as assigned to Norstar Bank of Maine by Assignment of Mortgage
instrument dated January 20, 1986 and recorded in Penobscot Registry of
Deeds in Book 3775, Page 227.  [as
to Exhibit A-R1/3].


 


Exhibit E-5


 

















 


R1/3. i. A Non-exclusive; easement for
electricity and communication purposes from Gardner Land Company, Inc. to
Bangor Hydro-Electric Company dated November 8, 2002, recorded in
Penobscot Registry of Deeds in Book 8488, Page 103.


 


Section R4/5.


Routes 4 and 5; SGC File
No:  CHES-10-2/CHES-12-01; T&B File
No:  07-1658AR


 


R4/5. a                                           NON-EXCLUSIVE EASEMENT FOR
ELECTRIC/COMMUNICATION LINES CONTAINED IN EASEMENT DEED FROM LAKEVILLE SHORES,
INC. TO BANGOR HYDRO-ELECTRIC COMPANY DATED DECEMBER 3, 2002, RECORDED IN
PENOBSCOT REGISTRY OF DEEDS IN BOOK 8509, PAGE 127 [AS TO EXHIBIT A-R4/5].


 


R4/5. b. TERMS AND PROVISIONS OF GENERATOR LEAD
EASEMENT AGREEMENT AND RIGHT OF FIRST REFUSAL BETWEEN BANGOR HYDRO-ELECTRIC
COMPANY AND EVERGREEN WIND POWER V, LLC RECORDED OCTOBER 17, 2008 IN PENOBSCOT
REGISTRY OF DEEDS IN BOOK 11563, PAGE 77 [AS TO EXHIBIT A-1/3].


 


Section R6.


Route 6; SGC File
No:  CHES-10-14; T&B File No:  07-1533AR


 


R6. a.      Terms and conditions of non-exclusive
easement to install, operate and maintain an electric transmission line
contained in Crossing Easement Agreement granted by Evergreen Wind Power V, LLC
to Bangor Hydro Electric Company dated October 10, 2008 and recorded October 17,
2008 in the Penobscot County Registry of Deeds in Book 11563, Page 59 [as
to Exhibit A-R6].


 


Section R7.


Route 7; SGC File
No:  CHES-10-7; T&B File No:  07-1175AR


 


R7. a.      Reservation of
right to enter to remove materials for railway in favor of the Atlantic and
Northwest Rail company and the Canadian Pacific Railway Company contained in an
instrument from Arden H. Lancaster, Ronald K. Lancaster and Elizabeth Lancaster
to 


 


Exhibit E-5


 

















 


Donald Morin and Elizabeth A. Morin dated January 13, 1981,
recorded in Penobscot Registry of Deeds in Book 3158, Page 59.


 


Section R8.


Route 8; SGC File
No:  CHES-10-11; T&B File No:  07-1176AR


 


R8. a.      Terms
of Memorandum of Temporary Easement for Construction Access and Laydown Area
between Evergreen Wind Power V, LLC and Loren A. Hale and Joyce M. Hale dated July 8,
2008, recorded in Penobscot Registry of Deeds in Book 11456, Page 145.  NOTE: 
This exception will no longer apply after the date of its stated
expiration (June 30, 2010) [as to Exhibit A-R8].


 


Section R9


R9a.        (Pea Ridge Road) Terms and conditions of unrecorded
Grant of Utility Location Permit issued by the Town of Chester to Evergreen
Wind Power V, LLC for crossing the Pea Ridge Road.


 


Section R10.


Route 10; SGC File
No:  CHES-10-12; T&B File No:  07-1177AR


 


a.


 


b.                                      R10. a. Non-exclusive easement for utility purposes from Donald L. Whitney to Bangor Hydro Electric Company dated June 25,
1993, recorded in Penobscot Registry of Deeds in Book 5377, Page 82 [as to
Exhibit A-R10].


 


c.                                       R10. c. Terms
and conditions of non-exclusive pole line easement contained in Pole
Line Easement from Donald L. Whitney to
Bangor Hydro Electric Company dated November 3, 1959, recorded in Penobscot Registry of
Deeds in Book 1700, Page 335, said rights subject to a Consent Agreement
between Bangor Hydro-Electric Company and Evergreen Wind Power V, LLC dated October 10,
2008, recorded in Book 11563, Page 41 [as to Exhibit A-R10].


 


Section R12.


Route 12; SGC File
No:  CHES-11-2; T&B File No:  07-1484AR


 


R12.
a. Income tax lien against Penny L. Hurd and Sean W. Hurd in favor of the
State of Maine dated September 18, 2008, recorded in Penobscot Registry of
Deeds in Book 11536, Page 337 in the original amount of $591.76 (to be
discharged) [as to Exhibit A-R12].


 


Section R15/R19.


Routes 15 & 19;
SGC File No:  CHES-09-04; T&B File
No:  07-1174AR


 


Exhibit E-5


 














 


d.


 


e.                                       R15/19. a. Non-exclusive highway easement contained in instrument from Edward J. Whitney, Sr. to the State of Maine dated May 29,
1963, recorded in Penobscot Registry of Deeds in Book 1897, Page 32 [as to
Exhibit A-R15/19].


 


R15/19.
b.  Terms of Memorandum of Temporary
Easement for Construction Laydown Area between Evergreen Wind Power V, LLC and
The Gerrity Family Limited Partnership dated August 5, 2008, recorded in
Penobscot Registry of Deeds in Book 11514, Page 205.  NOTE: 
This exception will no longer apply after the date of its stated
expiration (June 30, 2010) [as to Exhibit A-R15/19].


 


R15/19. c. Terms and provisions of Transmission Line
Easement Deed by and between Evergreen Wind Power V, LLC to Maine Electric
Power Company, Inc. dated October 2, 2008, recorded October 7,
2008 in Penobscot Registry of Deeds in Book 11553, Page 18. [as to Exhibit A-R15/19].


 


Section R16
(Highway Route 116).Terms and conditions of unrecorded Permit Record No
51818, issued by the State of Maine Department of Transportation to Evergreen
Wind Power V, LLC, dated January 31, 2008, for crossing of State Route 116


 


Section R20.


 


f.              Route 20; SGC File No:  CHES-18-01; T&B File No:  07-1178AR


 


R20.
a.  Non-exclusive pole line easements
contained in Deed of Pole Line Easements from Harlan H. Whitney and Pauline D.
Whitney to Bangor Hydro Electric Company dated October 9, 1967, recorded
in Penobscot Registry of Deeds in Book 2117, Page 543 [as to Exhibit A-R20].


 


R20.
b.  Terms and provisions of Transmission
Line Easement Deed by and between Evergreen Wind Power V, LLC to Maine Electric
Power Company, Inc. dated October 2, 2008, recorded October 7,
2008 in Penobscot Registry of Deeds in Book 11553, Page 18. [as to Exhibit A-R20].


 


Section R21.


Route 21; SGC File
No:  CHES-04-03; T&B File No:  07-1611AR


 


R21.
a.   Non-exclusive easement to install,
maintain and operate electric wires contained in an instrument from St. Regis
Paper Company, et al. to Bangor Hydro-Electric Company dated October 17,
1968, recorded in Penobscot Registry of Deeds in Book 2147, Page 832 [as
to Exhibit A-R21].


 


R21.
b.  Terms and provisions of Transmission
Line Easement Deed by and between Evergreen Wind Power V, LLC to Maine Electric
Power Company, Inc. dated October 2, 2008, 


 


Exhibit E-5


 

















 


recorded October 7,
2008 in Penobscot Registry of Deeds in Book 11553, Page 18. [as to Exhibit A-R21].


 


Section R24/25.


Routes 24 and 25; SGC
File No:  CHES-18-9 and CHES-18-11;
T&B File No:  07-1180AR and 07-1181AR


 


R24/25.
a.  Non-exclusive easement for ingress
and egress contained in Easement instrument from Everett Harmon to Donald
DeWitt dated December 1, 1965, recorded in Penobscot Registry of Deeds in
Book 2062, Page 173 [as to Exhibit A-R25 only].


 


Section R26.


Route 26; SGC File
No:  CHES-18-13; T&B File No:  07-1485AR


 


R26.
a.  Non-exclusive right of way contained
in instrument from Robert L. Harmon to Herbert C. Haynes dated August 30,
1973 recorded at said Registry in Book 2402, Page 114 [as to Exhibit A-R26].


 


R26.
b.  Non-exclusive right of way for
ingress and egress contained in an instrument from Robert Harmon to Donald
DeWitt contained in a deed dated December 7, 1965 recorded at said
Registry in Book 2062, Page 170 [as to Exhibit A-R26].


 


Section R30.


Route 30; SGC File
No:  CHES-5-2.6; T&B File No:  07-1173AR


 


R30.
a.  Non-exclusive 50 foot wide access
right of way described in Warranty Deed from Herbert C. Haynes, Inc. to
Albert S. Ring and Linda M. Ring dated July 27, 1981, recorded in Penobscot Registry of Deeds in Book 3219, Page 174
[as to Exhibit A-R30].


 


R30.
b. Terms and provisions of Memorandum of Temporary Easement For Construction
Access & Laydown Area between Evergreen Wind Power V, LLC and Albert
S. Ring and Linda M. Ring dated July 5, 2008, recorded in Penobscot
Registry of Deeds in Book 11457, Page 227 [as to Exhibit A-R30].  NOTE: 
This exception will no longer apply after the date of its stated
expiration (June 30, 2010).


 


Section R31.


Route 31; SGC File
No:  CHES-5-2.3; T&B File No:  07-1172AR


 


R31.
a.  Non-exclusive 50 foot wide access
right of way described in an instrument from Herbert C. Haynes, Inc to Prentiss &
Carlisle Company, Inc., et al. dated September 19, 1984, recorded in
Penobscot Registry of Deeds in Book 3612, Page 324 [as to Exhibit A-R31].


 


Exhibit E-5


 

















 


R31. b.  Non-exclusive right of way for ingress and
egress contained in Warranty Deed from Herbert C. Haynes, Inc. to Edward
F. Sargent, Jr. dated November 1, 1988, recorded in Penobscot
Registry of Deeds in Book 4377, Page 229 [as to Exhibit A-R31].


 


Section R31.5.


 


R31.5 a. 
Non-exclusive right of way contained in Warranty Deed from H.C. Haynes, Inc.
to Richard W. Maheux, recorded in Penobscot Registry of Deeds in Book 3957, Page 300.


 


R31.5 b. 
Non-exclusive right of way for ingress or egress contained in Warranty
Deed from Herbert C. Haynes, Inc. to William Sirigos, dated March 3,
1994, recorded in Penobscot Registry of Deeds in Book 6626, Page 146.


 


R31.5 c. 
Non-exclusive right of way contained in Warranty Deed from Herbert C.
Haynes, Inc. to William H. Winslow and Donald C. Cartonio, Sr., dated
April 1, 1987, recorded in Penobscot Registry of Deeds in Book 4028, Page 174.


 


R31.5 d. 
Non-exclusive right of way contained in Warranty Deed from Herbert C.
Haynes, Inc. to B.M.W. Realty Co., dated May 1, 1987, recorded in
Penobscot Registry of Deeds in Book 4056, Page 297.


 


R31.5 e. 
Non-exclusive 50 foot wide access right of way and non-exclusive 50 foot
wide right of way for all purposes of a way contained in Warranty Deed from
Herbert C. Haynes, Inc. to B.M.W. Realty Co., dated May 1, 1987,
recorded in Penobscot Registry of Deeds in Book 4067, Page 226


 


R31.5 f. 
Non-exclusive right of way for ingress and egress contained in Warranty
Deed from Herbert C. Haynes, Inc. to Edward F. Sargent, Jr., dated November 1,
1988, recorded in Penobscot Registry of Deeds in Book 4377, Page 229.


 


R31.5 g. 
Non-exclusive right of way for ingress and egress contained in Warranty
Deed from Herbert C. Haynes, Inc. to Edward F. Sargent and Geraldine E.
Sargent, dated November 1, 1988, recorded in Penobscot Registry of Deeds
in Book 4378, Page 335.


 


R31.5 h. 
Non-exclusive right of way for ingress and egress contained in Warranty
Deed from Herbert C. Haynes, Inc. to Joseph T. Giansanti, dated January 1,
1989, recorded in Penobscot Registry of Deeds in Book 4398, Page 81.


 


R31.5 i. 
Non-exclusive right of way for all purposes of a way, including
utilities purposes and ingress and egress, contained in Warranty Deed from
Herbert C. Haynes, Inc. to Donald C. Cartonio, Sr., Patrick A.
Cartonio, Joseph F. Cartonio, and Donald C. Cartonio, Jr., dated January 1,
1990, recorded in Penobscot Registry of Deeds in Book 4600, Page 265.


 


Exhibit E-5


 

















 


Section R36
(Butterfield Ridge Road)


 


R36. a                Terms and conditions of Unrecorded Grant of Utility Location Permit by the Town of Woodville to
Evergreen Wind Power V, LLC, dated May 12, 2008 for crossing the
Butterfield Ridge Road.


 


Section R38.


Route 38; SGC File
No:  WOOD-2-10; T&B File No:  07-1734AR


 


Section 38
(Eastern Maine Railway Company) Terms and conditions of  Overhead Wire
Agreement from Eastern Maine Railway Company dated May 01, 2008, a
memorandum of which was dated May 1, 2008 and recorded July 29, 2008
in the Penobscot County Registry of Deeds in Book 11478, Page 169.


 


Section R39.


Route 39; SGC File
No:  WOOD-2-4B; T&B File No:  07-1310AR


 


R39. a.  TERMS CONTAINED IN SUPPLEMENTAL FINAL ORDER AND JUDGMENT RECORDED
AUGUST 27, 2007, IN PENOBSCOT REGISTRY OF DEEDS IN BOOK 11100, PAGE 1, AS SUCH
TERMS ARE MODIFIED BY AND SUBJECT TO RIGHTS CONTAINED IN AND TERMS OF A CONSENT
AGREEMENT BETWEEN AT&T CORP. AND ROYAL M. SCHOONOVER AND VANESSA V.
SCHOONOVER DATED APRIL 22, 2008, RECORDED IN PENOBSCOT REGISTRY OF DEEDS IN
BOOK 11385, PAGE 40 [AS TO EXHIBIT A-R39].


 


Section R40.


Route 40; SGC File
No:  WOOD-2-8; T&B File No:  07-1534AR


 


R40.
a.  Reservation from International Paper
Company to IP Maine Forests L.L.C. for mineral rights in, on or under any of
the Grantor’s land.  [as to Exhibit A-R40].


 


Section R41.


Route 41; SGC File
No:  WOOD-2-9; T&B File No:  07-1608AR


 


R41.
a.  A survey plan prepared for Prentiss &
Carlisle Company, Inc. dated June 23, 1988 prepared by Gilbert S.
Viitala, Land Surveyor for Prentiss & Carlisle Co., Inc.
Engineers and recorded Penobscot Registry of Deeds in Map File D 121-88,
depicts the U.S. Government pipeline running to Loring, crossing the insured
property, not withstanding the fact that the pipeline easement is located
outside the area of any improvements proposed or constructed [as to Exhibit A-R41].


 


Exhibit E-5


 

















 


Section R42.


Route 42; SGC File
No:  WOOD-2-3; T&B File No:  07-1535AR


 


R42.
a.  Reservation from International Paper
Company to IP Maine Forests L.L.C. for mineral rights in, on or under any of
the Grantor’s land [as to Exhibit A-R42].


 


Section R43/45.


Routes 43/45; SGC File
No:  WOOD-2-14; T&B File No:  07-1186AR


 


R43/45
a.  Non-exclusive easement to construct,
maintain and operate a line of poles and wires and transmit electricity and
voice contained in instrument from Vernon F. Robichaud to Bangor Hydro-Electric
Company dated November 8, 1962, recorded in Penobscot Registry of Deeds in
Book 1868, Page 55 [as to Exhibit A-R43/45].


 


R43/45.
b.  Non-exclusive pipeline easement
contained in instrument from Jacob Robichaud to the United States of America
dated April 8, 1953, and recorded at said Registry in Book 1386, Page 143.
[as to Exhibit A-R43/45].  ].  [as to Exhibit A-R44].


 


R43/45.
c.  Subject to any existing non-exclusive
rights of the public in and to any and all public roads or highways across the
same. [as to Exhibit A-R43/45].


 


Section R46.


Route 46; SGC File
No:  WOOD-2-15.1; T&B File No:  07-1187AR


 


R46.
a.  Non-exclusive easement to construct,
maintain and operate an electricity line contained in an instrument from Floyd
Welch to Bangor Hydro-Electric Company dated October 3, 1963, recorded in
Penobscot Registry of Deeds in Book 1918, Page 293, as modified by a
Consent Agreement between Bangor Hydro-Electric Company and Evergreen Wind
Power V, LLC dated October 17, 2008, recorded in Book 11563, Page 37
[as to Exhibit A-R46].


 


R46.
b.  Non-exclusive right of way for all
purposes of a way described in a Warranty Deed from Wellington O. Hicks, Jr.
and Anna D. Hicks to Hayden P. McCarthy dated May 25, 1995, recorded in
Penobscot Registry of Deeds in Book 5869, Page 68 [as to Exhibit A-R46].


 


Sections
R47 (River Road)


 


R47.
a.  Terms and conditions of unrecorded
Grant of Utility Location Permit issued by the Town of Woodville to Evergreen
Wind Power V, LLC, dated May 12, 2008, for crossing River Road.


 


Section R50.


Route 50; SGC File
No:  MATT-U4-12; T&B File No:  07-1730AR


 


R50. A. 
NON-EXCLUSIVE RIGHT OF WAY FOR INGRESS AND EGRESS AND NON-EXCLUSIVE


 


Exhibit E-5


 

















 


PIPELINE
EASEMENT SET FORTH IN A DEED FROM JOHN R. ESTES TO L.D. BEARCE COMPANY DATED
JUNE 8, 1936, RECORDED IN PENOBSCOT REGISTRY OF DEEDS IN BOOK 1108, PAGE 497
[AS TO EXHIBIT A-R50].


 


R50. B. 
NON-EXCLUSIVE EASEMENT FOR VEHICULAR AND PEDESTRIAN INGRESS AND EGRESS
ASSIGNED FROM EVERGREEN WIND POWER V, LLC TO NORTHERN TIMBERS, INC. IN ASSIGNMENT
OF EASEMENT RIGHTS DATED MARCH 14, 2008, AND RECORDED ON MARCH 28,
2008 IN PENOBSCOT REGISTRY OF DEEDS IN BOOK 11338, PAGE 149 [AS TO EXHIBIT
A-R50].


 


Route 51
(Route 2)


 


R51.
a.  Terms and conditions of Permit Record
No. 51814, issued by State of Maine Department of Transportation to
Evergreen Wind Power V, LLC, dated January 31, 2008, for crossing US Route
2.


 


Route 52
(Eastern Maine Railway)


 


R52.
a.  Terms and conditions of an Overhead
Wire Agreement from Eastern Maine Railway Company, a memorandum of which was
dated May 1, 2008 and recorded July 29, 2008 in the Penobscot County
Registry of Deeds in Book 11478, page 166.


 


Route 53


 


R53.
a.  Terms and conditions of an Overhead
Wire Agreement from Maine Central Railroad Company dated May 15, 2008, a
memorandum of which was recorded June 4, 2008, in the Penobscot County
Registry of Deeds in Book 11414, Page 332.


 


Section R55.


Route 55; SGC File
No:  MATT-U3-7; T&B File No:  07-1189AR


 


R55.
a.  Terms and conditions of Memorandum of
Option Agreement between Richard A. Delaite and David W. Delaite to Evergreen
Wind Power III, LLC dated July 17, 2008, recorded in Penobscot Registry of
Deeds in Book 11467, Page 253.


 


Exhibit E-5


 

















 


R55. B. 
TERMS AND CONDITIONS OF EASEMENT FOR RIGHT OF WAY ACCESS ROAD FROM RICHARD
A. DELAITE AND DAVID W. DELAITE TO EVERGREEN WIND POWER V, LLC DATED MAY 2,
2008, RECORDED IN PENOBSCOT REGISTRY OF DEEDS IN BOOK 11384, PAGE 323.


 


Section R56.


Route 56; SGC File
No:  MATT-R1-2A; T&B File No:  07-1190AR


 


R56.
a.  Non-exclusive easement for purpose of
ingress and egress contained in Warranty Deed from Hayden P. McCarthy to Bion
Tolman dated May 14, 1998, recorded in Penobscot Registry of Deeds in Book
6691, Page 75 [as to Exhibit A-R56].


 


Section R57.


Route 57; SGC File
No:  MATT-U5-10; T&B File No:  07-1478AR


 


R57.
a.  Terms and conditions of Transmission
Line Right of Way Easement from Forster Manufacturing Company, Inc. to
Kingman Electric Cooperative recorded in the Penobscot County Registry of Deeds
in Book 1546, page 252, said easement rights having been assigned by Deed
and Bill of Sale from Kingman Electric Cooperative, Inc. to Eastern Maine
Electric Cooperative, Inc., dated May 13, 1964, recorded in Book
1949, page 5, as further assigned by Assignment and Assumption of Property
Rights Agreement between Eastern Maine Electric Cooperative, Inc. and
Evergreen Wind Power V. LLC dated June 6, 2008, recorded in Book 11420, Page 179
[as to Exhibit A-R57].  The grant of
easement contained herein extends to the tread of the Mattawamkeag River.  This easement, described as R57 in Schedule A
hereto, abuts the easement granted to Evergreen Wind Power V, LLC described as
R60/62 in Schedule A hereto.


 


R57.
b.  Terms of Notice of Landfill Closure
from Forster, Inc. dated January 10, 1995, recorded in Penobscot
Registry of Deeds in Book 5805, Page 227 as affected by Corrective Notice
of Landfill Closure from Forster, Inc. dated February 9, 1995,
recorded in Penobscot Registry of Deeds in Book 5806, Page 294 [as to Exhibit A-R57].


 


R57.
d.  Reservation of non-exclusive easement
for purposes of ingress and egress and performing environmental remediation
contained in Quitclaim Deed with Covenant from Forster, Inc. to Aroostook
and Bangor Resources, Inc. dated February 9, 1995, recorded in
Penobscot Registry of Deeds in Book 5815, Page 92 [as to Exhibit A-R57].


 


Section R58.


Route 58; SGC File
No:  MATT-R1-02; T&B File No:  07-1532R


 


Exhibit E-5


 

















 


R58.
a.  Non-exclusive rights of the public
and other to so much of the premises as lies within the bed or bottom of the
Mattawamkeag River and Mattakeunk Stream, their arms, branches or tributaries
by whatever name called [as to Exhibit A-R58].


 


R58.
b.  Reservation of non-exclusive mineral
rights contained in Quit Claim Deed with Covenant from International Paper
Company to IP Timberlands Operating Company, LTD dated March 14, 1985,
recorded in Volume 3712, Page 223 [as to Exhibit A-R58].


 


Section R60/62.


Routes 60/62; SGC File
No:  MATT-R1-24; T&B File No:  07-1482AR


 


R60/62.
a.  Non-exclusive easement for access to
Mattawamkeag River for purpose of launching canoes contained in instrument from
Melvin L. Vicaire to Penobscot Reservation Tribal Council dated March 26,
1975, recorded in Penobscot Registry of Deeds in Book 2535, Page 134 [as
to Exhibit A-R60/62].


 


R60/62.
b. Terms and provisions of Transmission Line Right of Way Easement from Bert J.
and Margaret Libbey to Kingman Electric Cooperative dated September 16,
1952, recorded in Penobscot Registry of Deeds in Book 1546, Page 253, said
right of way easement assigned from Kingman Electric Cooperative to Eastern
Maine Electric Cooperative, Inc. in Deed and Bill of Sale dated May 13,
1964 recorded in Book 1949, Page 5 and said easement rights having been
further assigned by Assignment and Assumption of Property Rights Agreement
between Eastern Maine Electric Cooperative, Inc. and Evergreen Wind Power
V, LLC dated June 6, 2008, recorded in Book 11420, Page 179 as to Exhibit A-R60/62.
– (EA) [as to Exhibit A-R60/62].


 


Section R61
(River Road)


 


R61. b Unrecorded Grant of
Utility Location Permit issued by Town of Mattawamkeag to Evergreen Wind Power
V, LLC, dated May 22, 2008 for crossing River Road.


 


Section R63.


Route 63; SGC File
No:  MATT-R1-26; T&B File No:  07-1481AR


 


R63. A. 
TERMS AND PROVISIONS OF TRANSMISSION LINE RIGHT OF WAY EASEMENT FROM
VERNON PHILBRICK AND MILDRED PHILBRICK TO KINGMAN ELECTRIC COOPERATIVE DATED
DECEMBER 5, 1951, RECORDED IN PENOBSCOT REGISTRY OF DEEDS IN BOOK 1546, PAGE
254, SAID RIGHT OF WAY EASEMENT ASSIGNED FROM KINGMAN ELECTRIC COOPERATIVE TO
EASTERN MAINE ELECTRIC COOPERATIVE, INC. IN DEED AND BILL OF SALE DATED MAY 13,
1964 RECORDED IN BOOK 1949, PAGE 5 AND SAID EASEMENT 


 


Exhibit E-5


 

















 


RIGHTS
HAVING BEEN FURTHER ASSIGNED BY ASSIGNMENT AND ASSUMPTION OF PROPERTY RIGHTS
AGREEMENT BETWEEN EASTERN MAINE ELECTRIC COOPERATIVE, INC. AND EVERGREEN WIND
POWER V, LLC DATED JUNE 6, 2008, RECORDED IN BOOK 11420, PAGE 179 [AS TO
EXHIBIT A-R63].


 


Section R66.


Route 66; SGC File
No:  MATT-R2-03-16; T&B File No:  07-1420AR


 


R66.
a.  Terms and provisions of Transmission
Line Right of Way Easement from George W. and Ethel S. Pettengill to Kingman
Electric Cooperative dated September 17, 1952 and recorded in Penobscot
Registry of Deeds in Book 1546, Page 256, said right of way easement
assigned from Kingman Electric Cooperative to Eastern Maine Electric
Cooperative, Inc. in Deed and Bill of Sale dated May 13, 1964
recorded in Book 1949, Page 5 and said easement rights having been further
assigned by Assignment and Assumption of Property Rights Agreement between
Eastern Maine Electric Cooperative, Inc. and Evergreen Wind Power V, LLC
dated June 6, 2008, recorded in Book 11420, Page 179  [as to Exhibit A-R66].


 


Section R67.


Route 67; SGC File
No:  MATT-R2-03-17; T&B File No:  07-1419AR


 


R67.
a.  Terms and provisions of Transmission
Line Right of Way Easement from George and Ethel Pettengill to Kingman Electric
Cooperative dated September 17, 1952, recorded in Penobscot Registry of
Deeds in Book 1546, Page 256, said right of way easement assigned from
Kingman Electric Cooperative to Eastern Maine Electric Cooperative, Inc.
in Deed and Bill of Sale dated May 13, 1964 recorded in Book 1949, Page 5
and said easement rights having been further assigned by Assignment and
Assumption of Property Rights Agreement between Eastern Maine Electric
Cooperative, Inc. and Evergreen Wind Power V, LLC dated June 6, 2008,
recorded in Book 11420, Page 179 [as to Exhibit A-R67].


 


Section R68/69/70.


Routes 68, 69 and 70; SGC
File No:  MATT-R2-03-18 and R2-03-19;
T&B File No:  07-1421AR


 


R68/69/70.  a. 
Terms and provisions of Transmission Line Right of Way Easement from
George W. and Ethel S. Pettengill to the Kingman Electric Cooperative dated September 17,
1952 and recorded in Penobscot Registry of Deeds in Book 1546, Page 256,
said right of way easement assigned from Kingman Electric Cooperative to
Eastern Maine Electric Cooperative, Inc. in Deed and Bill of Sale dated May 13,
1964 recorded in Book 1949, Page 5 and said easement rights having been 


 


Exhibit E-5


 

















 


further assigned by Assignment and
Assumption of Property Rights Agreement between Eastern Maine Electric
Cooperative, Inc. and Evergreen Wind Power V, LLC dated June 6, 2008,
recorded in Book 11420, Page 179. This easement being a 100-foot wide
strip on the south side of the railroad and running across the insured property
[as to Exhibit A-R68/69/70]


 


Section R71/72.


Routes 71 and 72; SGC
File No:  MATT-R2-03-21 and R2-03-22;
T&B File No:  07-1514AR


 


R71/72. a.  Terms and provisions of Transmission Line
Right of Way Easement from George W. and Ethel S. Pettengill to the Kingman
Electric Cooperative dated September 17, 1952 and recorded in Penobscot
Registry of Deeds in Book 1546, Page 256, said right of way easement
assigned from Kingman Electric Cooperative to Eastern Maine Electric
Cooperative, Inc. in Deed and Bill of Sale dated May 13, 1964
recorded in Book 1949, Page 5 and said easement rights having been further
assigned by Assignment and Assumption of Property Rights Agreement between
Eastern Maine Electric Cooperative, Inc. and Evergreen Wind Power V, LLC
dated June 6, 2008, recorded in Book 11420, Page 179 [as to Exhibit A-R71/72].


 


R71/72.
b.  Reservation of non-exclusive 50 foot
wide right of way for all purposes of way contained in Warranty Deed from Herbert
C. Haynes, Inc. to Bruce Campbell dated January 13, 1992, recorded February 9,
2000 in Penobscot Registry of Deeds in Book 7288, Page 241 [as to Exhibit A-R71/72].


 


Section R73/74.


Routes 73 and 74; SGC
File No:  MATT-R2-03-12 and R2-03-13;
T&B File No:  07-1515AR


 


R73/74.
a.  Terms and provisions of Transmission
Line Right of Way Easement from George W. and Ethel S. Pettengill to Kingman
Electric Cooperative dated September 17, 1952 and recorded in Penobscot
Registry of Deeds in Book 1546, Page 256, said right of way easement
assigned from Kingman Electric Cooperative to Eastern Maine Electric
Cooperative, Inc. in Deed and Bill of Sale dated May 13, 1964
recorded in Book 1949, Page 5 and said easement rights having been further
assigned by Assignment and Assumption of Property Rights Agreement between
Eastern Maine Electric Cooperative, Inc. and Evergreen Wind Power V, LLC
dated June 6, 2008, recorded in Book 11420, Page 179. This being a
100 foot wide transmission line easement on the south side of the railroad over
lot 126 (and others) and across the insured property [as to Exhibit A-R73/74].


 


R73/74.
b.  Reservation of non-exclusive 50 foot
wide right of way for all purposes of way contained in Warranty Deed from
Herbert C. Haynes, Inc. to Jamie Lee Steeves dated October 16, 2001,
recorded January 3, 2002 in Penobscot Registry of Deeds in Book 8017, Page 117.
[as to Exhibit A-R73/74].


 


Section 75


Route 75; SGC File
No:  MATT-R4-1; T&B File No:  07-1606AR


 


Exhibit E-5


 














 


R75.
a.  Non-exclusive flowage rights
contained in an Indenture between American Realty Company and Winn Water &
Power Company dated March 16, 1932, recorded in Penobscot Registry of
Deeds, Volume 1059, Page 329. NOTE: 
This policy insures against loss or damage sustained by the insured by
reason of damage to the improvements constructed on the land after the date of
the policy arising out of the future exercise of any water privileges or rights
created or reserved by said instrument and existing as of the date of the
policy [as to Exhibit A-R75].


 


R75.
b.  Reservation of water privileges and
rights in an instrument by P. McCullough to the American Realty Company dated June 14,
1901, and recorded in Penobscot Registry of Deeds in Book 708, Page 175
[as to Exhibit A-R75].


 


R75.
c.  Covenants, conditions and
restrictions contained in Memorandum of Agreement between International Paper
Company, Osito Logging, Inc., and Kennebec West Forest LLC, dated December 31,
2004, and recorded in Penobscot Registry of Deeds in Book 9702, Page 326,
as affected by an Amendment to Memorandum of Agreement, effective January 21,
2005, and recorded in Book 9778, Page 216 [as to Exhibit A-R75].


 


R75. e. 
Terms and provisions of Easement Deed and Agreement between Penobscot
Forest, LLC and Evergreen Wind Power V, LLC recorded July 23, 2008,
recorded in Penobscot Registry of Deeds in Book 11473, Page 276 [as to Exhibit A-R75].


 


Section R79.


Route 79; SGC File
No:  KING-1-31-1; T&B File No:  07-1192AR


 


R79.
b.  Terms and conditions of Transmission
Line Right of Way Easement from Annie Brown to Kingman Electric Cooperative
dated June 18, 1953 and recorded at said Registry in Book 1409, Page 249,
said easement rights having been assigned by Deed and Bill of Sale from Kingman
Electric Cooperative Eastern Maine Electric Cooperative, Inc., dated May 13,
1964, recorded in Book 1949, Page 5, as further assigned by Assignment and
Assumption of Property Rights Agreement between Eastern Maine Electric
Cooperative, Inc. and Evergreen Wind Power V, LLC dated June 6, 2008,
recorded in Book 11420, Page 179. [as to Exhibit A-R79].


 


R79.
c.  Terms and conditions of Non-exclusive
easement for electric transmission line contained in Transmission Line Right of
Way Easement from Claude Gibbs and Ruth Gibbs to 


 


Exhibit E-5


 

















 


Kingman Electric
Cooperative dated June 18, 1953 and recorded at said Registry in Book
1409, Page 250, said easement rights having been assigned by Deed and Bill
of Sale from Kingman Electric Cooperative Eastern Maine Electric Cooperative, Inc.,
dated May 13, 1964, recorded in Book 1949, Page 5, as further
assigned by Assignment and Assumption of Property Rights Agreement between
Eastern Maine Electric Cooperative, Inc. and Evergreen Wind Power V, LLC
dated June 6, 2008, recorded in Book 11420, Page 179. [as to Exhibit A-R79].


 


Section R80.


Route 80; SGC File
No:  KING-1-31-2; T&B File No:  07-1487AR


 


R80.  a. 
Terms and provisions of Transmission Line Right of Way Easement from
Ernest W. Oliver to Kingman Electric Cooperative dated June 18, 1953,
recorded in Penobscot Registry of Deeds in Book 1546, Page 257, said
easement rights having been assigned by Deed and Bill of Sale from Kingman
Electric Cooperative to Eastern Maine Electric Cooperative, Inc., dated May 13,
1964, recorded in Book 1949, Page 5, as further assigned by Assignment and
Assumption of Property Rights Agreement between Eastern Maine Electric
Cooperative and Evergreen Wind Power V, LLC dated June 6, 2008, recorded
in Penobscot Registry of Deeds in Book 11420, Page 179 [as to Exhibit A-R80].


 


R80.  b. 
Terms and provisions of Crossing Agreement between Eastern Maine
Electric Cooperative and Evergreen Wind Power V, LLC dated June 6, 2008,
recorded June 9, 2008 in Penobscot Registry of Deeds in Book 11420, Page 198
[as to Exhibit A-R80].


 


Section R81.


Route 81; SGC File
No:  KING-01-32; T&B File No:  07-1488AR


 


R81.
a.  Terms and provisions of Transmission
Line Right of Way Easement from Ernest W. Oliver to Kingman Electric
Cooperative dated June 18, 1953, recorded in Penobscot Registry of Deeds
in Book 1546, Page 257; said easement rights having been assigned by Deed
and Bill of Sale from Kingman Electric Cooperative to Eastern Maine Electric
Cooperative, Inc., dated May 13, 1964, recorded in Book 1949, Page 5,
as further assigned by Assignment and Assumption of Property Rights Agreement
between Eastern Maine Electric Cooperative and Evergreen Wind Power V, LLC
dated June 6, 2008, recorded in Penobscot Registry of Deeds in Book 11420,
Page 179 [as to Exhibit A-R81].


 


R81.
b.  Terms and provisions of Crossing
Agreement between Eastern Maine Electric Cooperative and Evergreen Wind Power
V, LLC dated June 6, 2008, recorded June 9, 2008 in Penobscot
Registry of Deeds in Book 11420, Page 198 [as to Exhibit A-R81].


 


Section R82.


Route 82; SGC File
No:  KING-01-05; T&B File No:  07-1489AR


 


Exhibit E-5


 

















 


R82.
a.  Terms and provisions of Transmission
Line Right of Way Easement from Otto Clark and Nellie Clark to Kingman Electric
Cooperative dated December 12, 1951, recorded in Penobscot Registry of
Deeds in Book 1546, Page 258; said easement rights having been assigned by
Deed and Bill of Sale from Kingman Electric Cooperative to Eastern Maine
Electric Cooperative, Inc., dated May 13, 1964, recorded in Book
1949, Page 5, as further assigned by Assignment and Assumption of Property
Rights Agreement between Eastern Maine Electric Cooperative and Evergreen Wind
Power V, LLC dated June 6, 2008, recorded in Penobscot Registry of Deeds
in Book 11420, Page 179 [as to Exhibit A-R82].


 


R82.
b.  Terms and provisions of Crossing
Agreement between Eastern Maine Electric Cooperative and Evergreen Wind Power
V, LLC dated June 6, 2008, recorded June 9, 2008 in Penobscot
Registry of Deeds in Book 11420, Page 198 [as to Exhibit A-R82].


 


Section R83.


Route 83; SGC File
No:  KING-01-07-02; T&B File No:  07-1490AR


 


R83.
a.  Terms and provisions of Transmission
Line Right of Way Easement from Otto Clark and Nellie Clark to Kingman Electric
Cooperative dated December 12, 1951, recorded in Penobscot Registry of Deeds
in Book 1546, Page 258; said easement rights having been assigned by Deed
and Bill of Sale from Kingman Electric Cooperative to Eastern Maine Electric
Cooperative, Inc., dated May 13, 1964, recorded in Book 1949, Page 5,
as further assigned by Assignment and Assumption of Property Rights Agreement
between Eastern Maine Electric Cooperative and Evergreen Wind Power V, LLC
dated June 6, 2008, recorded in Penobscot Registry of Deeds in Book 11420,
Page 179 [as to Exhibit A-R83].


 


R83.
b.  Terms and provisions of Crossing
Agreement between Eastern Maine Electric Cooperative and Evergreen Wind Power
V, LLC dated June 6, 2008, recorded June 9, 2008 in Penobscot
Registry of Deeds in Book 11420, Page 198 [as to Exhibit A-R83].


 


Section R84.


Route 84; SGC File No:  KING-01-09-01; T&B File No:  07-1491AR


 


R84.
a.  Terms and provisions of Transmission
Line Right of Way Easement from Ralph Worster and Isabelle Worster to Kingman
Electric Cooperative dated December 12, 1951, recorded in Penobscot
Registry of Deeds in Book 1546, Page 259, said easement rights having been
assigned by Deed and Bill of Sale from Kingman Electric Cooperative to Eastern
Maine Electric Cooperative, Inc., dated May 13, 1964, recorded in
Book 1949, Page 5, as further assigned by Assignment and Assumption of
Property Rights Agreement between Eastern Maine Electric Cooperative and
Evergreen Wind Power V, LLC dated June 6, 2008, recorded in Penobscot
Registry of Deeds in Book 11420, Page 179 [as to Exhibit A-R84].


 


Exhibit E-5


 

















 


R84.
b.  Terms and provisions of Crossing
Agreement between Eastern Maine Electric Cooperative and Evergreen Wind Power
V, LLC dated June 6, 2008, recorded June 9, 2008 in Penobscot
Registry of Deeds in Book 11420, Page 198 [as to Exhibit A-R84].


 


Section R85.


Route 85; SGC File
No:  KING-01-11-02; T&B File No:  07-1492AR


 


R85.
a.  Terms and provisions of Transmission
Line Right of Way Easement from Grace Osnoe and Laurence Osnoe to Kingman
Electric Cooperative dated January 22, 1954, recorded in Penobscot
Registry of Deeds in Book 1550, Page 114, said easement rights having been
assigned by Deed and Bill of Sale from Kingman Electric Cooperative to Eastern
Maine Electric Cooperative, Inc., dated May 13, 1964, recorded in
Book 1949, Page 5, as further assigned by Assignment and Assumption of
Property Rights Agreement between Eastern Maine Electric Cooperative and
Evergreen Wind Power V, LLC dated June 6, 2008, recorded in Penobscot
Registry of Deeds in Book 11420, Page 179 [as to Exhibit A-R85].


 


R85.
b.  Terms and provisions of Crossing
Agreement between Eastern Maine Electric Cooperative and Evergreen Wind Power
V, LLC dated June 6, 2008, recorded June 9, 2008 in Penobscot
Registry of Deeds in Book 11420, Page 198 [as to Exhibit A-R85].


 


Section R86.


Route 86; SGC File No:  KING-01-11-01; T&B File No:  07-1493AR


 


R86.
a.  Terms and provisions of Transmission
Line Right of Way Easement from Grace Osnoe and Laurence Osnoe to Kingman
Electric Cooperative dated January 22, 1954, recorded in Penobscot
Registry of Deeds in Book 1550, Page 114, said easement rights having been
assigned by Deed and Bill of Sale from Kingman Electric Cooperative to Eastern
Maine Electric Cooperative, Inc., dated May 13, 1964, recorded in
Book 1949, Page 5, as further assigned by Assignment and Assumption of
Property Rights Agreement between Eastern Maine Electric Cooperative and
Evergreen Wind Power V, LLC dated June 6, 2008, recorded in Penobscot
Registry of Deeds in Book 11420, Page 179 [as to Exhibit A-R86].


 


R86.
b.  Terms and provisions of Crossing
Agreement between Eastern Maine Electric Cooperative and Evergreen Wind Power
V, LLC dated June 6, 2008, recorded June 9, 2008 in Penobscot
Registry of Deeds in Book 11420, Page 198 
[as to Exhibit A-R86].


 


Section R87.


Route 87; SGC File
No:  KING-01-11-03; T&B File No:  07-1494AR


 


R87.
a.  Terms and provisions of Transmission
Line Right of Way Easement from Grace Osnoe and Laurence Osnoe to Kingman
Electric Cooperative dated January 22, 1954, recorded 


 


Exhibit E-5


 

















 


in Penobscot Registry of
Deeds in Book 1550, Page 114, said easement rights having been assigned by
Deed and Bill of Sale from Kingman Electric Cooperative to Eastern Maine
Electric Cooperative, Inc., dated May 13, 1964, recorded in Book
1949, Page 5, as further assigned by Assignment and Assumption of Property
Rights Agreement between Eastern Maine Electric Cooperative and Evergreen Wind
Power V, LLC dated June 6, 2008, recorded in Penobscot Registry of Deeds
in Book 11420, Page 179 [as to Exhibit A-R87].


 


R87.
b.  Terms and provisions of Crossing
Agreement between Eastern Maine Electric Cooperative and Evergreen Wind Power
V, LLC dated June 6, 2008, recorded June 9, 2008 in Penobscot
Registry of Deeds in Book 11420, Page 198 
[as to Exhibit A-R87].


 


Section R88.


Route 88; SGC File
No:  KING-01-13; T&B File No:  07-1495AR


 


R88.
a.  Terms and provisions of Transmission
Line Right of Way Easement from Grace Osnoe and Laurence Osnoe to Kingman
Electric Cooperative dated January 22, 1954, recorded in Penobscot
Registry of Deeds in Book 1550, Page 114, said easement rights having been
assigned by Deed and Bill of Sale from Kingman Electric Cooperative to Eastern
Maine Electric Cooperative, Inc., dated May 13, 1964, recorded in
Book 1949, Page 5, as further assigned by Assignment and Assumption of Property
Rights Agreement between Eastern Maine Electric Cooperative and Evergreen Wind
Power V, LLC dated June 6, 2008, recorded in Penobscot Registry of Deeds
in Book 11420, Page 179 [as to Exhibit A-R88].


 


R88.
b.  Terms and provisions of Crossing
Agreement between Eastern Maine Electric Cooperative and Evergreen Wind Power
V, LLC dated June 6, 2008, recorded June 9, 2008 in Penobscot
Registry of Deeds in Book 11420, Page 198 
[as to Exhibit A-R88].


 


Section R89
(Highway Route 170).


 


R89. a.  Terms and conditions of unrecorded Permit
Record No. 51816, issued by the State of Maine Department of
Transportation to Evergreen Wind Power V, LLC, dated January 31, 2008, for
crossing State Route 170.


 


Section R90.


Route 90; SGC File
No:  KING-01-14-21; T&B File No:  07-1496AR


 


R90.
a.  Terms and provisions of Transmission
Line Right of Way Easement from John Westgate and Dennie Westgate to Kingman
Electric Cooperative dated December 12, 1951, recorded in Penobscot
Registry of Deeds in Book 1546, Page 260; said easement rights having
assigned by Deed and Bill of Sale from Kingman Electric Cooperative to Eastern
Maine Electric Cooperative, Inc., dated May 13, 1964, recorded in
Book 1949, Page 5, as 


 


Exhibit E-5


 

















 


further been assigned by
Assignment and Assumption of Property Rights Agreement between Eastern Maine
Electric Cooperative and Evergreen Wind Power V, LLC dated June 6, 2008,
recorded in Penobscot Registry of Deeds in Book 11420, Page 179 [as to Exhibit A-R90].


 


R90.
b.  Terms and provisions of Crossing Agreement
between Eastern Maine Electric Cooperative and Evergreen Wind Power V, LLC
dated June 6, 2008, recorded June 9, 2008 in Penobscot Registry of
Deeds in Book 11420, Page 198  [as
to Exhibit A-R90].


 


Section R91.


Route 91; SGC File
No:  KING-01-16; T&B File No:  07-1497AR


 


R91.
a.  Terms and provisions of Transmission
Line Right of Way Easement from Mabel Vinson to Kingman Electric Cooperative
dated October 14, 1952, recorded in Penobscot Registry of Deeds in Book
1546, Page 263; said easement rights having been assigned by Deed and Bill
of Sale from Kingman Electric Cooperative to Eastern Maine Elective Cooperative, Inc.,
dated May 13, 1964 recorded in Book 1949, Page 5 and further assigned
by Assignment and Assumption of Property Rights Agreement between Eastern Maine
Electric Cooperative and Evergreen Wind Power V, LLC dated June 6, 2008,
recorded in Penobscot Registry of Deeds in Book 11420, Page 179 [as to Exhibit A-R91].


 


R91.
c.  Terms and provisions of Crossing
Agreement between Eastern Maine Electric Cooperative and Evergreen Wind Power
V, LLC dated June 6, 2008, recorded June 9, 2008 in Penobscot
Registry of Deeds in Book 11420, Page 198.


 


Section R92/93.


Routes 92 and 93; SGC
File No:  KING-01-18-03 and 01-18-01;
T&B File No:  07-1498AR


 


R92/93.
a.  Terms and provisions of Transmission
Line Right of Way Easement from Orland Severance and Lena Severance to Kingman
Electric Cooperative dated December 14, 1951, recorded in Penobscot
Registry of Deeds in Book 1546, Page 262; said easement rights having been
assigned by Deed and Bill of Sale from Kingman Electric Cooperative to Eastern
Maine Electric Cooperative, Inc., dated May 13, 1964, recorded in
Book 1949, Page 5, as further assigned by Assignment and Assumption of
Property Rights Agreement between Eastern Maine Electric Cooperative and
Evergreen Wind Power V, LLC dated June 6, 2008, recorded in Penobscot
Registry of Deeds in Book 11420, Page 179 [as to Exhibit A-R92/93].


 


R92/93.
b.  Terms and provisions of Crossing
Agreement between Eastern Maine Electric Cooperative and Evergreen Wind Power
V, LLC dated June 6, 2008, recorded June 9, 2008 in Penobscot
Registry of Deeds in Book 11420, Page 198 
[as to Exhibit A-R92/93].


 


Section R96.


Route 96; SGC File
No:  WEBS-01-05; T&B File No:  07-1607AR


 


Exhibit E-5


 

















 


R96.
a.  Restrictions stating that all
property along and adjacent to the Mattagodus Stream, Webster Plantation,
Maine, shall forever be held as a wildlife management area managed under a plan
meant to ensure the protection of plant, vertebrate and invertebrate species
considered rare, threatened, or endangered, contained in a Quitclaim Deed with
Covenant from Diamond Occidental Forest, Inc. to State of Maine,
Department of Inland Fisheries and Wildlife, recorded in Penobscot Registry of
Deeds in Book 4733, Page 365. [as to Exhibit A-R96].


 


Section R97/99/101.


Routes 97, 99 and 101;
SGC File No:  PREN-08-1; PREN-06-24;
PREN-6-23; T&B File No:  07-1579AR


 


R97/99/101. a. 
The right to cross and recross the property reserved in Partition Deed
with Quitclaim Covenant from Andre Emerson Cushing Corp., Greentrees Inc.,
McCrillis Timberland LLC, and Prentiss & Carlisle Company, Inc.
to Lakeville Shores, Inc., recorded December 15, 2006 in Book 10763, Page 199
in the Penobscot Registry of Deeds, Partition Deed with Quitclaim Covenant from
The Cushing Family Corporation to Lakeville Shores, Inc., dated December 6,
2006, recorded December 15,2006 in Book 10763, Page 246 in said
Registry, Partition Deed with Quitclaim Covenant from Lange Timber LLC and Webber
Timber LLC to Lakeville Shores, Inc., dated December 7, 2006,
recorded December 15,2006 in Book 10763, Page 286 in said Registry,
and Trustee’s Deed from Edward D. Leonard III as Trustee of Land Exchange Trust
under Declaration of Trust dated November 1, 1991 to John M. Webber, dated
September 29, 2000 and recorded September 9, 2000 in Book 7488, Page 301
in said Registry.


 


Section R98.


Route 98; SGC File
No:  PREN-02-26-01; T&B File No:  07-1463AR


 


R98.
a.  Terms and conditions of Non-exclusive
easement for electric transmission line contained in Transmission Line Right of
Way Easement from Leroy Porter and Axie Porter to Kingman Electric Cooperative
dated September 2, 1952 and recorded at said Registry in Book 1546, Page 267;
said easement rights having been assigned by Deed and Bill of Sale from Kingman
Electric Cooperative to Eastern Maine Electric Cooperative, Inc., dated May 13,
1964, recorded in Book 1949, Page 5, as further assigned by Assignment and
Assumption of Property Rights Agreement between Eastern Main Electric
Cooperative and Evergreen Wind Power V, LLC dated June 6, 2008, recorded
in Penobscot Registry of Deeds in Book 11420, page 179. [as to Exhibit A-R98].


 


Section R100
(Highway Route 170)


 


R100. a.  Terms and conditions of unrecorded Permit No. 51824,
issued by the State of Maine Department of Transportation to Evergreen Wind
Power V, LLC, dated January 31, 2008, for crossing State Route 170.


 


Exhibit E-5


 

















 


Section 103.


Route 103; SGC File
No:  07-1499AR; T&B File No:  07-1499AR


 


R103.
a.  Terms and conditions of Transmission
Line Right of Way Easement from Clair Worster and Hattie Worster to Kingman
Electric Cooperative dated March 4, 1954, recorded in Penobscot Registry
of Deeds in Book 1546, Page 265; 
said easement rights having been assigned by Deed and Bill of Sale from
Kingman Electric Cooperative to Eastern Maine Electric Cooperative, Inc.,
dated May 13, 1964, recorded in Book 1949, Page 5, as further
assigned by Assignment and Assumption of Property Rights Agreement between Eastern
Main Electric Cooperative and Evergreen Wind Power V, LLC dated June 6,
2008, recorded in Penobscot Registry of Deeds in Book 11420, page 179 [as
to Exhibit A-R103].


 


Section 104.


Route 104; SGC File
No:  PREN-6-17.1; T&B File No:  07-1383AR


 


R104.
a.  Terms and conditions of Non-exclusive
easement for electric transmission line contained in Transmission Line Right of
Way Easement from Clair Worster and Hattie Worster to Kingman Electric
Cooperative dated March 4, 1954, recorded in Penobscot Registry of Deeds
in Book 1546, Page 265; said easement rights having been assigned by Deed
and Bill of Sale from Kingman Electric Cooperative to Eastern Maine Electric
Cooperative, Inc., dated May 13, 1964, recorded in Book 1949, Page 5,
as further assigned by Assignment and Assumption of Property Rights Agreement
between Eastern Main Electric Cooperative and Evergreen Wind Power V, LLC dated
June 6, 2008, recorded in Penobscot Registry of Deeds in Book 11420, page 179
[as to Exhibit A-R104].


 


Section 105
(State Route 170).


 


R105.
a.  Terms and conditions of unrecorded
Permit Record No 51822 issued by the State of Maine Department of
transportation to Evergreen Wind Power V, LLC, dated February 13, 2009,
for crossing State Route 170.


 


Section R106/108.


Routes 106/108; SGC File
No:  PREN-04-54 and PREN-06-13; T&B
File No:  07-1351AR


 


R106/108. b.  Terms of Memorandum of Temporary Easement for
Construction Access and Laydown Area between Evergreen Wind Power V, LLC and
John Osgood and Susan Osgood dated July 15, 2008, recorded in Penobscot
Registry of Deeds in Book 11474, Page 336. 
NOTE:  This easement will no
longer apply after the date of its stated expiration (June 30, 2010) [as
to Exhibit A-R106/108].


 


Exhibit E-5


 

















 


Route
107 (Osgood Road)


 


R107.
a.  Terms and conditions of unrecorded
Letter from County of Penobscot Court of County Commissioners, dated February 12,
2008, approving the crossing of Osgood Road in Prentiss Township


 


Section R111/113.


Routes 111/113; SGC File
No:  PREN-04-29 and PREN-04-05.1; T&B
File No:  07-1513AR


 


R111/113.
a.  Reservation of a thirty-five (35%)
percent undivided interest in and to the minerals within the lands conveyed
referred to in Quitclaim Deed with Covenant from the Penobscot Indian Nation to
Herbert C. Haynes, Inc. recorded in Penobscot Registry of Deeds in Book
5863, Page 240.


 


R111/113.
b.  TERMS AND PROVISIONS OF
MEMORANDUM OF TEMPORARY EASEMENT FOR CONSTRUCTION ACCESS AND LAYDOWN AREA
BETWEEN EVERGREEN WIND POWER V, LLC AND THOMAS E. LINSCOTT AND KAREN B.
LINSCOTT DATED JULY 15, 2008, RECORDED JULY 24, 2008 IN PENOBSCOT REGISTRY OF
DEEDS IN BOOK 11474, PAGE 339. 
NOTE:  THIS EXCEPTION WILL NO
LONGER APPLY AFTER THE DATE OF ITS STATED EXPIRATION (JUNE 30, 2010) [AS TO
EXHIBIT A-R111/113].


 


Section R112
(Tar Ridge Road)


 


R112. a.  Terms and conditions of unrecorded Letter
from the County of Penobscot Court of County Commissioners, dated February 12,
2008, approving the crossing of Tar Ridge Road in Prentiss Township


 


Section R117
(Highway Route 169)


 


R117. a.  Terms and provisions of unrecorded Permit
Record No. 51820 issued by the State of Maine Department of Transportation
to Evergreen Wind Power V, LLC, dated January 31, 2008, for crossing State
Route 169


 


Section R118.


Route 118; SGC File
No:  PREN-02-12; T&B File No:  07-1194AR


 


R118.
a.  Non-exclusive easement for electric
distribution and communication lines contained in an instrument from Fred and
Mae Kimball to Eastern Maine Electrical Cooperative and 


 


Exhibit E-5


 

















 


New England Telephone and
Telegraph Company dated April 12, 1977, recorded in Penobscot Registry of
Deeds in Book 2829, Page 217 [as to Exhibit A-R118].


 


Section R119.


Route 119; SGC File
No:  CARR-01-03; T&B File No:  07-1542AR


 


R119.
a.  Reservation of a thirty-five (35%)
percent undivided interest in and to the minerals within the lands conveyed
referred to in Quitclaim Deed with Covenant dated August 20, 1986  recorded in Penobscot Registry of Deeds in
Book 3883, Page 352.


 


Section R122
(North Road)


 


R122. a.                                         Terms and
conditions of  unrecorded Grant of Utility Location Permit issued by
Carroll Plantation to Evergreen Wind Power V, LLC, dated April 28, 2008,
for crossing in North Road.


 


Section R124.


Route 124; SGC File
No:  CARR-01-04; T&B File No:  07-1539AR


 


R124. a.  Mortgage from Gardner Land Company, Inc.
to Farm Credit of Maine, ACA, dated and recorded November 17, 2000 in
Penobscot Registry of Deeds in Book 7533, Page 40, in the original
principal amount of $16,000,000.00, modified by a consent accommodating the
insured easement recorded in Book 11329, Page 286 [as to Exhibit A-R124].


 


Section R125.


Route 125; SGC File
No:  PREN-01-11.6; T&B File No:  07-1305AR


 


R125
a.  Non-exclusive right of way contained
in Trustee’s Deed from Mary B. Gregor, Trustee of Meadows and Mountains Trust
to Jason Uriah Mully dated February 11, 1998, recorded in Penobscot
Registry of Deeds in Book 6600, Page 67 [as to Exhibit A-R125].


 


Washington
County:


 


Township 8 Ranges 3 and 4


 


a.                             Non-exclusive roadway easements contained
in Reciprocal Road Easement between John Hancock Mutual Life Ins. Co. and
Lakeville Shores, Inc. dated December 1, 1999 and


 


Exhibit E-5


 














 


rerecorded on January 26,
2000 in Book 2405, Page 254 of the Washington County Registry of Deeds.


 


b.                                      Provision of the Maine Tree Growth Tax
Law, Title 36, M.R.S.A, Section 571-5S4A.


 


c.                                       Maine Commercial Forestry Excise Tax,
Title 36, M.R.SA. Section 2721, 2727.


 


d.                                      Intentionally
Deleted.


 


e.                                       Reservation of the non-exclusive right to
cross and recross contained in the Trustee’s Deed from Edward D. Leonard III,
Trustee of Land Exchange Trust, under Declaration of Trust dated November 1,
1991 to Herbert C. Haynes, Inc. dated May 28, 1998 and recorded in
Book 2246, Page 137 of Washington County Registry of Deeds.


 


f.                                         Non-exclusive roadway easements contained
in Reciprocal Road Easement between John Hancock Mutual Life Insurance Company
and Lakeville Shores, Inc., dated December 1, 1999 and recorded on December 6,
1999 in the Washington County Register of Deeds in Book 2395, Page 117.


 


Exhibit E-5


 

















 


Stetson II


 


The Tracts referred to herein are the same as those Tracts referred to
in the Stetson II loan policy issued by Stewart Title Guaranty Company in
connection with the closing under this Agreement.


 


1.               Standard Exceptions –


 


a.               Rights or claims of parties in possession
not shown by the public records.  Affects
Tract 2 only.


 


b.              Easements, or claims of easements, not
shown by the public records. .  Affects
Tract 2 only.


 


c.               Encroachments, overlaps, boundary line
disputes, or other matters which would be disclosed by an accurate survey and
inspection of the premises.  Affects
Tract 2 only.


 


d.              Any lien, or right to a lien, for
services, labor, or material hereto or hereafter furnished, imposed by law and
not shown by the public records. . 
Affects Tract 2 only.


 


e.               titles or rights asserted by anyone
including but not limited to persons, corporations, governments or other
entities, to tide lands, or lands comprising the shores or bottoms of navigable
rivers, lakes, bays, oceans or gulf, or lands beyond the line of the harbor or
bulkhead lines as established or changed by the United States Government or
water rights, if any. .  Affects Tract 2
only.


 


TRACTS 1 and 2


 


1.               Terms and conditions of Memorandum of
Lease between Lakeville Shores, Inc. and Stetson Wind II, LLC recorded in
Book 3482, Page 141, as amended by First Amendment to Amended and Restated
Leand Lease Agreement recorded in Book 3543, page 234.


 


2.               .                                             Non-exclusive easement for electric and
telephone lines contained in Easement given by G. Pierce Webber, as agent for
Webber Timberlands to Eastern Maine Electric Cooperative and New England
Telephone and Telegraph Company, dated August 6, 1969, and recorded in the
Washington County Registry of Deeds in Book 679, Page 302.  Affects Tract 2 only, does not affect Tract 1


 


3.               Non-exclusive easement for public highway
contained in Easement given by G. Peirce Webber, as agent for Webber
Timberlands, to the State of Maine, dated April 27, 1972, recorded in the
Washington County Registry of Deeds in Book 752, Page 194.  Affects Tract 2 only, does not affect Tract 1


 


4.               Non-exclusive easement for slopes and
drainage along State Route 169 contained in Easement given by G. Peirce Webber,
as agent for Webber Timberlands, to the State of Maine, dated September 8,
1978, recorded in the Washington County Registry of Deeds in Book 1031, Page 182.  Affects Tract 2 only, does not affect Tract 1


 


Exhibit E-5


 

















 


5.               Rights to cross and recross reserved in
Trustee’s Deed from Edward D. Leonard III, as Trustee of Land Exchange Trust
under Declaration of Trust dated November 1, 1991, to Charles P. Webber
and Eleanor H. Webber, as Trustees of the Eleanor H. and Charles Pl Webber
Revocable Trust dated August 8, 1982, dated May 28, 1998, and
recorded in Washington County Registry of Deeds in Book 2246, Page 212.  Affects Tract 2 only, does not affect Tract 1


 


6.               Rights to cross and recross reserved in
the 16 individual deeds from Edward D. Leonard III, Trustee of Land Exchange
Trust under Declaration of Trust dated November 1, 1991 to Lange Timber
Limited Liability Company dated September 29, 2000 and recorded in the
Washington County Registry of Deeds in Book 2463, Pages 120 through 340,
inclusive.


 


7.               Non-exclusive rights of tenants, as
tenants only,  under unrecorded leases to
use roads crossing the property for access to leased lots.  Tract 1 does not have any unrecorded leases
and the Jimmey Mountain Access Road is not subject to any access or other
rights of tenants.


 


TRACT 3


 


8.               Non-exclusive easements for roadways
contained in Reciprocal Road Easement dated December 1, 1999 and recorded
on December 6, 1999 in Book 2395, Page 117 of the Washington County
Registry of Deeds between John Hancock Mutual Life Ins. Co. and Lakeville
Shores, Inc. and rerecorded on January 26, 2000 in Book 2405, Page 254
of the Washington County Registry of Deeds.


 


9.               Terms
and conditions of Land
Lease Agreement dated October 12, 2006, First Amendment to Land Lease
Agreement dated March 30, 2007 and Second Amendment to Land Lease
Agreement dated August 17, 2007, all as evidenced by Memorandum of Lease
dated October 13, 2008, by and between Lakeville Shores Inc., as Lessor,
and Evergreen Wind Power V, LLC, as Lessee, recorded on October 17, 2008
in Book 3462, Page 292, Document No. 11448, Register of Deeds,
Washington County, Maine.


 


10.         Rights to cross and recross reserved in Trustee’s Deed
from Edward D. Leonard III, as Trustee of Land Exchange Trust, under
Declaration of Trust dated November 1, 1991 to Herbert C. Haynes, Inc.
dated May 28, 1998 and recorded in Book 2246, Page 137 of Washington
County Registry of Deeds.


 


TRACT 4


 


11.         Terms and conditions of unrecorded Permit
Record No. 56861 issued by the State of Maine Department of Transportation
to Evergreen Wind Power V, LLC, dated March 25, 2009, for crossing Route
169.


 


Exhibit E-5


 

















 


TRACT 5


 


12.         Mortgage between Dellis Huff Jr. and
Jessica P. Huff and Machias Savings Bank, dated May 4, 2009 and recorded
in the Washington County Registry in Book 3540 Page 181, modified by a
consent to Granting of Lease from Machias Savings Bank dated September 18,
2009 and recorded on September 28, 2009 in Book 3574, Page 159,
Washington County, Maine.


 


Company insures the Insured against loss or damage sustained by the
Insured in the event that the Mortgage referenced immediately above is not
subordinate to the lease between Owner and the Insured of the Tract referenced immediately
above, which lease is more particularly described in Schedule A.  Without limiting the generality of the
foregoing, Company agrees to provide defense to the Insured in accordance with
the terms of this Policy if suit is brought against the Insured to enforce any
such claim.


 


Tract 6


 


13.         Non-exclusive easement for roadways
contained in Reciprocal Road Easement dated December 1, 1999 and recorded
on December 6, 1999 in Book 2395, Page 117 of Washington County
Registry of Deeds between John Hancock Mutual Life Ins. Co. and Lakeville
Shores, Inc. and rerecorded on January 26, 2000 in Book 2405, Page 254
of the Washington County Registry of Deeds.


 


14.         Provision of the Maine Tree Growth Tax
Law, Title 36, M.R.S.A, Section 571-5S4A.


 


15.         Maine Commercial Forestry Excise Tax,
Title 36, M.R.SA. Section 2721, 2727.


 


16.         Terms
and conditions of Land
Lease Agreement dated October 12, 2006, First Amendment to Land Lease
Agreement dated March 30, 2007 and Second Amendment to Land Lease
Agreement dated August 17, 2007, all as evidenced by Memorandum of Lease
dated October 13, 2008, by and between Lakeville Shores Inc., as Lessor,
and Evergreen Wind Power V, LLC, as Lessee, recorded on October 17, 2008
in Book 3462, Page 292, Document No. 11448, Register of Deeds,
Washington County, Maine.


 


17.         Rights to cross and recross reserved in the Trustee’s
Deed from Edward D. Leonard III, as Trustee of Land Exchange Trust, under
Declaration of Trust dated November 1, 1991 to Herbert C. Haynes, Inc.
dated May 28, 1998 and recorded in Book 2246, Page 137 of Washington
County Registry of Deeds.


 


18.         Terms and conditions of Shared Facilities
and , Sublease Agreement as evidenced by Memorandum of Shared Facilities and
Sublease Agreement dated December 22, 2009 by and between Evergreen Wind
Power V, LLC and Stetson Wind II, LLC recorded on 


 


Exhibit E-5


 

















 


December     , 2009 in Book
        , Page           ,
Document No.                   ,
Register of Deeds, Washington County, Maine.


 


Exhibit E-5


 

















 


EXHIBIT
E-6


to
Financing Agreement


 


SCHEDULE
OF SECURITY FILINGS


 


1.                                       UCC-1 Financing Statement naming Member
as Debtor and Security Agent as Secured Party, for filing with the Secretary of
State of Delaware, and any continuation statements to such financing statement
necessary to maintain the perfection and priority of the interest, title and
Liens in Section 6.21.


 


2.                                       UCC-1 Financing Statement naming Borrower
as Debtor and Security Agent as Secured Party, for filing with the Secretary of
State of Delaware, and any continuation statements to such financing statement
necessary to maintain the perfection and priority of the interest, title and
Liens in Section 6.21.


 


3.                                       UCC-1 Financing Statement naming Stetson
Wind II, LLC as Debtor and as Secured Party, for filing with the Secretary of
State of Delaware, and any continuation statements to such financing statement
necessary to maintain the perfection and priority of the interest, title and
Liens in Section 6.21.


 


4.                                       UCC-1 Financing Statement naming
Evergreen Wind Power V, LLC as Debtor and as Secured Party, for filing with the
Secretary of State of Delaware, and any continuation statements to such
financing statement necessary to maintain the perfection and priority of the
interest, title and Liens in Section 6.21.


 


5.                                       UCC-3 Financing Statement Termination
naming Evergreen Wind Power V, LLC as Debtor and HSH Nordbank AG, New York
Branch as Secured Party, for filing with the Secretary of State of Delaware.


 


6.                                       UCC-3 Financing Statement Termination
naming Stetson Wind II, LLC as Debtor and HSH Nordbank AG, New York Branch as
Secured Party, for filing with the Secretary of State of Delaware.


 


7.                                       UCC-3 Financing Statement Termination
naming Stetson Holdings, LLC, LLC as Debtor and HSH Nordbank AG, New York
Branch as Secured Party, for filing with the Secretary of State of Delaware


 


8.                                       UCC-3 Financing Statement Amendment
removing Stetson Wind II, LLC from the collateral pledged in the UCC-1
Financing Statement naming First Wind Maine Holdings, LLC as Debtor and HSH
Nordbank AG, New York Branch as Secured Party, for filing with the Secretary of
State of Delaware.


 


Exhibit E-6


 


1

















 


EXECUTION FORM


 


EXHIBIT
E-7


to
Financing Agreement


 


FORM OF
MEMBER PLEDGE AND SECURITY AGREEMENT


 


(See Tab      )


 



















 





 


PLEDGE
AND SECURITY AGREEMENT


 


among


 


CSSW STETSON
HOLDINGS, LLC,


as Member


 


and


 


STETSON HOLDINGS,
LLC,


as Borrower


 


and


 


BNP PARIBAS,


as Security Agent


 


Dated as of December [    ],
2009




 





 

















 


TABLE OF CONTENTS


 


	
  Section 1.

  	
  Definitions

  	
  2

  
	
  Section 2.

  	
  Pledge
  and Grant of Security Interest

  	
  2

  
	
  Section 3.

  	
  Delivery
  of Collateral

  	
  10

  
	
  Section 4.

  	
  Obligations
  Secured

  	
  11

  
	
  Section 5.

  	
  Use of
  Collateral

  	
  11

  
	
  Section 6.

  	
  Remedies

  	
  11

  
	
  Section 7.

  	
  Remedies
  Cumulative; Delay Not Waiver

  	
  13

  
	
  Section 8.

  	
  Representations
  and Warranties of Member

  	
  14

  
	
  Section 9.

  	
  Covenants
  of Member

  	
  17

  
	
  Section 10.

  	
  Voting
  Rights

  	
  19

  
	
  Section 11.

  	
  Certain
  Consents and Waivers

  	
  19

  
	
  Section 12.

  	
  Borrower’s
  Consent and Covenant

  	
  20

  
	
  Section 13.

  	
  Attorney-in-Fact

  	
  21

  
	
  Section 14.

  	
  Perfection;
  Further Assurances

  	
  22

  
	
  Section 15.

  	
  Notices

  	
  23

  
	
  Section 16.

  	
  Continuing
  Assignment and Security Interest; Transfer of Notes

  	
  23

  
	
  Section 17.

  	
  Termination
  of Security Interest

  	
  23

  
	
  Section 18.

  	
  Severability

  	
  24

  
	
  Section 19.

  	
  Successors
  and Assigns

  	
  24

  
	
  Section 20.

  	
  Headings

  	
  24

  
	
  Section 21.

  	
  Liability

  	
  24

  
	
  Section 22.

  	
  References
  to Other Documents

  	
  24

  
	
  Section 23.

  	
  Governing
  Law

  	
  24

  
	
  Section 24.

  	
  Execution
  in Counterparts

  	
  25

  
	
  Section 25.

  	
  No
  Amendment, Modification

  	
  25

  
	
  Section 26.

  	
  Third
  Party Rights

  	
  25

  
	
  Section 27.

  	
  Reinstatement

  	
  25

  
	
  Section 28.

  	
  Conflict
  Among Agreements

  	
  25

  
	
  Section 29.

  	
  Waiver of Jury Trial

  	
  25

  



 


i

















 


PLEDGE
AND SECURITY AGREEMENT


 


This PLEDGE AND SECURITY AGREEMENT (as amended, amended and restated,
supplemented or otherwise modified from time to time, this “Agreement”),
is entered into as of December [    ], 2009, by and
among CSSW STETSON HOLDINGS, LLC, a Delaware limited liability company (“Member”),
STETSON HOLDINGS, LLC, a Delaware limited liability company (“Borrower”),
and BNP PARIBAS, as Security Agent (together with its
successors and assigns in such capacity, “Security Agent”) for each of
the Secured Parties.


 


RECITALS


 


A.                                   Borrower
has entered into that certain Financing Agreement, dated as of the date hereof
(as amended, amended and restated, supplemented or otherwise modified from time
to time, the “Financing Agreement”), among Borrower, the financial
institutions from time to time parties thereto (collectively, “Lenders”),
the Security Agent, BNP Paribas, as joint Lead Arranger, Joint Bookrunner,
Administrative Agent for the Lenders, and Issuing Bank and HSH Nordbank AG, New
York Branch, as Joint Lead Arranger, Joint Bookrunner and as Co-Syndication
Agent, pursuant to which the Lenders and the Issuing Bank have agreed to extend
credit to Borrower in the amounts specified and on the terms and subject to the
conditions set forth therein.


 


B.                                     Member
is the sole member of Borrower and owns one hundred percent (100%) of all
issued and outstanding membership interests in Borrower (the “Membership
Interest”), pursuant to that certain Limited Liability Company Agreement of
Stetson Holdings, LLC, dated as of May 27, 2008, as modified by that
certain Membership Interest Transfer Agreement of Stetson Holdings, LLC, dated
as of July 17, 2009, as further amended by that certain First Amendment to
Limited Liability Company Agreement of Stetson Holdings, LLC, dated as of July 17,
2009, and as further amended by that certain Second Amendment to Limited
Liability Company Agreement, dated as of the date hereof (as amended, amended
and restated, supplemented or otherwise modified from time to time, the “LLC
Agreement”).


 


C.                                     Borrower
is the sole member of each of Evergreen Wind Power V, LLC, a Delaware limited
liability company and Stetson Wind II, LLC, a Delaware limited liability
company (each a “Project Company”, and collectively “Project
Companies”) and owns one hundred percent (100%) of all issued and
outstanding membership interests in each Project Company, with respect to
Evergreen Wind Power V, LLC, pursuant to that certain First Amended and
Restated Limited Liability Company Agreement of Evergreen Wind Power V, LLC,
dated as of April 2, 2007, as amended by that certain First Amendment to
First Amended and Restated Limited Liability Company Agreement of Evergreen
Wind Power V, LLC, dated as of December 11, 2008, as modified by that
certain Membership Interest Transfer Agreement of Evergreen Wind Power V, LLC,
dated as of July 17, 2009, as further amended by that certain Second
Amendment to First Amended and Restated Limited Liability Company Agreement of
Evergreen Wind Power V, LLC, dated as of July 17, 2009, and as further
amended by that certain Third Amendment to First Amended and Restated Limited
Liability


 


1














 


Company Agreement of Evergreen Wind Power V,
LLC, dated as of the date hereof; and with respect to Stetson Wind II, LLC,
pursuant to that certain Limited Liability Company Agreement of Stetson Wind
II, LLC, dated July 3, 2007, as amended by that certain First Amendment to
Limited Liability Company Agreement of Stetson Wind II, LLC, dated December 11,
2008, and as further amended by that certain Second Amendment to Limited
Liability Company Agreement of Stetson Wind II, LLC, dated as of the date
hereof.


 


D.            Member will gain
an economic benefit from the extension of credit to be made under the Financing
Agreement and desires that the Lenders and the Issuing Bank enter into the
Financing Agreement.


 


E.             It is a condition
precedent to the effectiveness of the Financing Agreement that the parties
hereto shall have executed and delivered this Agreement.


 


AGREEMENT


 


NOW THEREFORE, in consideration of the foregoing premises, and in order
to induce the Lenders and the Issuing Bank to enter into the Financing
Agreement and to make the Loans and extension of credit contemplated by the
Financing Agreement and for other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, Member and Borrower hereby agree
with Security Agent, for the benefit of Security Agent and the Secured Parties,
as follows:


 


Section 1. Definitions.


 


Unless otherwise defined herein, all capitalized terms
used in this Agreement (including the preamble and recitals), shall have the
meanings provided in Exhibit A to the Financing Agreement, and if not
defined therein, shall have the meanings provided in the Uniform Commercial
Code, as the same from time to time shall be in effect in the State of New York
(the “UCC”); provided, however, in the event that, by
reason of mandatory provisions of law, any or all of the perfection or priority
of the security interest in any Collateral (as defined below) is governed by
the Uniform Commercial Code as in effect in a jurisdiction other than the State
of New York, the term “UCC” shall mean the Uniform Commercial Code as in effect
in such other jurisdiction for purposes of the provisions hereof relating to
such perfection or priority and for purposes of definitions related to such
provisions.  The Rules of
Interpretation contained in Exhibit A to the Financing Agreement shall
apply to this Agreement.


 


Section 2. Pledge and Grant of Security
Interest.


 


(a)           Granting Clause.  To
secure the timely payment and performance of the Obligations, Member does
hereby assign and pledge to Security Agent, for the benefit of the Secured
Parties, and grants to Security Agent, for the benefit of the Secured Parties,
a continuing security interest in all estate, right, title and interest of
Member, now owned or hereafter acquired, in, to and under any and all of the
following (collectively, the “Collateral”):


 


2

















 


(i)            the Membership Interest and
any and all certificates representing the Membership Interest (“Membership
Certificates”) as listed on Annex A attached hereto, and all
dividends, cash, options, warrants, instruments, chattel paper, other rights
and property or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for the Membership Interest;


 


(ii)           all additional membership
interests, shares of stock or other equity interest of Member in Borrower, at
any time acquired by Member in any manner, and the certificates representing
such additional membership interests, shares or other equity interest of Member
in Borrower (any such additional membership interests, shares or other equity
interest of Member in Borrower shall constitute part of the Membership
Interest), and all dividends, cash, options, warrants, instruments, chattel
paper, other rights and property or proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
of such membership interests, shares or other equity interest of Member in
Borrower;


 


(iii)          all of Member’s rights to
receive income, gain, profit, loss or other items allocated or distributed to
Member under the LLC Agreement;


 


(iv)          all rights to receive all
distributions of any nature whatsoever from Borrower with respect to such
Membership Interest, if any;


 


(v)           all of Member’s capital or
ownership interest, including capital accounts, in Borrower, and all accounts,
deposits or credits of any kind with Borrower related to or required in
connection with the Membership Interest;


 


(vi)          all of Member’s voting rights
in (if any), or rights to control or direct the affairs (if any), of Borrower;


 


(vii)         all of Member’s right, title
and interest, as a member of Borrower, in or to any and all of Borrower’s
assets or properties;


 


(viii)        all other right, title and
interest in or to Borrower, and all rights to receive income, profit or other
distributions from Borrower, of any nature whatsoever, in each case, as such
rights are derived from Member’s Membership Interest in Borrower;


 


(ix)           all claims of Member for
damages arising out of or for breach of or default relating to the LLC
Agreement;


 


3

















 


(x)            all rights of Member to terminate, amend,
supplement, modify or waive performance under the LLC Agreement, to perform
thereunder and to compel performance and otherwise exercise all remedies
thereunder;


 


(xi)           without affecting
the obligations under any provision prohibiting that action under any Financing
Document, in the event of any consolidation or merger involving Borrower in
which Borrower is not the surviving entity, (i) all shares, securities,
membership, partnership or ownership interests of the successor entity formed
by or resulting from that consolidation or merger, and (ii) all other
consideration (including all personal property, tangible or intangible)
received in exchange for such Collateral;


 


(xii)          all of Member’s
interests in the Applicable Permits, if any, to the extent permitted by
applicable Governmental Rule;


 


(xiii)         all of Member’s
right, title and interest in and under the LLC Agreement; and


 


(xiv)        all proceeds of any of the above.


 


(b)           Nature of Security Interest.  The granting of the foregoing security
interest does not make Security Agent or any Secured Party a successor to
Member as a member in Borrower, and none of Security Agent, any Secured Party
or any of their successors or assigns hereunder shall be deemed to have become
a member in Borrower by accepting this Agreement or exercising any right
granted herein unless and until such time, if any, when Security Agent, any
Secured Party or any such successor or assign expressly becomes a member in
Borrower after a foreclosure upon the Collateral.  Notwithstanding anything herein to the
contrary, none of Security Agent, the Secured Parties, or any of their
successors or assigns shall be deemed to have assumed or otherwise become
liable for any debts or obligations of Borrower or of Member by virtue of the
security interest granted hereunder (except to the extent, if any, that
Security Agent, any Secured Party or any of their successors or assigns
hereafter expressly becomes a member in Borrower).


 


(c)           Delivery of Agreements. 
Member has heretofore delivered or concurrently with the delivery hereof
is delivering to Security Agent, an executed counterpart or certified copy of
the LLC Agreement.


 


(d)           Continuing Liability Under Agreements.  Notwithstanding anything to the contrary
contained herein, (a) Member shall remain liable under the LLC Agreement
to perform all of the obligations undertaken by it thereunder, all in
accordance with and pursuant to the terms and provisions thereof, and (b) Security
Agent shall have no obligation or liability under any of 


 


4

















 


such
agreements by reason of or arising out of this Agreement, nor shall Security Agent
be required or obligated in any manner to perform or fulfill any obligations of
Member thereunder or to make any payment or inquiry as to the nature or
sufficiency of any payment received by it, or present or file any claim, or
take any action to collect or enforce the payment of any amounts which may have
been assigned to it or to which it may be entitled at any time.


 


(e)           Consent to Transfer: 
Member, as the sole member of the Borrower, hereby irrevocably consents
(for all purposes under the LLC Agreement) to the transfer of the Membership
Interest to any Person upon exercise by the Security Agent of its remedies in
accordance with the provisions of Section 6.


 


(f)            Obligations Unconditional.  The obligations of Member under this
Agreement shall be continuing, irrevocable, absolute and unconditional
irrespective of the value, genuineness, validity, regularity or enforceability
of any Financing Document or any other agreement or instrument referred to
therein, or any substitution, release or exchange of any guarantee of or
security for any of the Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor (other than payment in full of the Obligations, subject to Section 2(h)),
it being the intent of this Section 2(e) that the obligations
of Member hereunder shall be absolute and unconditional under any and all
circumstances.  Without limiting the generality
of the foregoing, it is agreed that the occurrence of any one or more of the
following shall not alter or impair the liability of Member hereunder, which
shall remain absolute and unconditional as described above without regard to
and not be released, discharged or in any way affected (whether in full or in
part) by:


 


(i)            at any time or from time to time, without
notice to Member, the time for any performance of or compliance with any of the
Obligations shall be extended, or such performance or compliance shall be
waived;


 


(ii)           any of the acts mentioned in any of the
provisions of any Financing Document shall have occurred;


 


(iii)          the maturity of any of the Obligations
shall be accelerated, or any of the Obligations shall be modified, supplemented
or amended in any respect, or any right under any Financing Document or any
other agreement or instrument referred to therein shall be waived or any
guarantee of any of the Obligations or any security therefor shall be released
or exchanged in whole or in part or otherwise dealt with;


 


5

















 


(iv)          any lien granted to, or in favor of,
Security Agent as security for any of the Obligations shall fail to be
perfected; or


 


(v)           any bankruptcy, insolvency, reorganization,
arrangement, readjustment of debt, liquidation or dissolution proceeding
commenced by or against Security Agent, the Member, Borrower, Project Companies
or any other 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.


 


Should, after
the occurrence and during the continuation of an Event of Default, any money
due or owing under this Agreement not be recoverable from Member for any
reason, whether by operation of law or otherwise, then, in any such case, such
money shall nevertheless be recoverable by Security Agent from the proceeds of
the Collateral as though Member were the principal debtor in respect thereof
and not merely a pledgor hereunder.


 


(g)           Waiver.


 


(i)            Member hereby expressly waives promptness,
diligence, presentment, demand for payment or performance and protest; filing
of claims with any court; any proceeding to enforce any provision of the Financing
Documents; notice of acceptance of and reliance on this Agreement by the
Secured Parties, notice of the creation of any Obligations of Borrower, and any
other notice whatsoever (other than those specifically provided under the
Financing Documents); any requirement that Security Agent exhaust any right,
power or remedy or proceed or take any other action against Borrower under any
Financing Document to which it is a party or any lien or encumbrance on, or any
claim of payment against, any property of Borrower or any other agreement or
instrument referred to therein, or any other Person under any guarantee of, or
lien securing, or claim for payment of, any of the Obligations; any right to
require a proceeding by Security Agent first against Borrower whether to
marshal any assets or to exhaust any right or take any action against Borrower
or any other Person or any collateral or otherwise, any diligence in collection
or protection for realization upon any Obligation, any obligation hereunder or
any collateral security for any of the foregoing; any right of protest,
presentment, notice or demand whatsoever, and any claims of waiver, release,
surrender, alteration or compromise and all defenses, set-offs, counterclaims,
recoupments, reductions, limitations, impairments or terminations, whether
arising hereunder or otherwise.  Member
further waives (A) any requirement that any other Person be joined as a
party to any 


 


6

















 


proceeding for
the enforcement by Security Agent of any Obligation and (B) the filing of
claims by Security Agent in the event of the receivership or bankruptcy of
Borrower.  Security Agent shall have the
right to bring suit directly against Member with respect to the obligations
owed to Security Agent hereunder either prior to or concurrently with any
lawsuit against, or without bringing any suit against Member, Borrower or any
other Person.


 


(ii)           The enforceability and effectiveness of
this Agreement and the liability of Member, and the rights, remedies, powers
and privileges of Security Agent, under this Agreement shall not be affected,
limited, reduced, discharged or terminated, and Member hereby expressly waives
to the fullest extent permitted by law any defense now or in the future arising
by reason of:


 


A.            the illegality, invalidity or unenforceability of all
or any part of the Obligations, any Financing Document or any agreement,
security document, guarantee or other instrument relating to all or any part of
the Obligations;


 


B.            any disability or other defense with respect to all or
any part of the Obligations of Borrower or Member, including the effect of any
statute of limitations that may bar the enforcement of all or any part of the
Obligations;


 


C.            the illegality, invalidity or unenforceability of any
security or guarantee for all or any part of the Obligations or the lack of
perfection or continuing perfection or failure of the priority of any lien or
encumbrance on any collateral for all or any part of the Obligations;


 


D.            the cessation, for any cause whatsoever, of the
liability of Borrower or any Project Company that is a guarantor of all or any
part of the Obligations (other than, subject to Section 2(h), by
reason of the full payment and performance of all Obligations);


 


E.             other than notice expressly required under this
Agreement, any failure of Security Agent to give notice of sale or other
disposition of any collateral (including any notice of any judicial or
nonjudicial foreclosure or sale of any interest in real property serving as collateral
for all or any part of the Obligations) for all or any part of the Obligations
to Borrower, Member or any other Person or any defect in, or any failure by
Borrower, Member or any other Person to receive, any notice that may be given
in connection with 


 


7

















 


any
sale or disposition of any collateral for all or any part of the Obligations;


 


F.             any failure of Security Agent to comply with
applicable laws in connection with the sale or other disposition of any
collateral (other than the Collateral) for all or any part of the Obligations;


 


G.            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 Borrower or Member or may preclude Borrower or Member
from obtaining reimbursement, contribution, indemnification or other recovery
from Member, Borrower or any other Person and even though Borrower or Member
may not, as a result of such foreclosure, sale or election of remedies, be
liable for any deficiency;


 


H.            any act or omission of Security Agent or any other
Person that directly or indirectly results in or aids the discharge or release
of Borrower 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;


 


I.              any law which provides that the obligation of a surety
or guarantor must neither be larger in amount nor in other respects more
burdensome than that of the principal or which reduces a surety’s or guarantor’s
obligation in proportion to the principal obligation;


 


J.             any counterclaim, set-off or other claim which
Borrower has or alleges to have with respect to all or any part of the
Obligations;


 


K.            any failure of Security Agent to file or enforce a
claim in any bankruptcy or other proceeding with respect to any Person;


 


L.             the election by Security Agent, in any bankruptcy
proceeding of any Person, of the application or non-application of Section 1111(b)(2) of
the United States Bankruptcy Code;


 


8

















 


M.           any extension of credit or the grant of any lien or
encumbrance under Section 364 of the United States Bankruptcy Code;


 


N.            any use of cash collateral under Section 363 of
the United States Bankruptcy Code;


 


O.            any agreement or stipulation with respect to the
provision of adequate protection in any bankruptcy proceeding of any Person;


 


P.             the avoidance of any lien or encumbrance in favor of
Security Agent for any reason;


 


Q.            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


 


R.            any action taken by Security Agent that is authorized
by this Section 2(g)or otherwise in this Agreement or by any other
provision of any Financing Document or any omission to take any such action.


 


(h)           Reinstatement. 
The obligations of Member under this Section 2 shall be
automatically reinstated if and to the extent that for any reason any payment
by or on behalf of Member in respect of the Obligations is rescinded or must be
otherwise restored by any holder of any of the Obligations, whether as a result
of any proceedings in bankruptcy or reorganization or otherwise.  Member agrees that it will indemnify Security
Agent on demand for all reasonable costs and expenses (including reasonable and
reasonably documented fees of counsel) incurred by Security Agent in connection
with such rescission or restoration, including any such costs and expenses
incurred in defending against any claim alleging that such payment constituted
a preference, fraudulent transfer or similar payment under any bankruptcy, insolvency
or similar law.


 


(i)            Subrogation. 
Member hereby waives all rights of subrogation or contribution, whether
arising by contract or operation of law (including, without limitation, any
such right arising under any bankruptcy, insolvency or other similar law) or
otherwise by reason of any payment by it pursuant to the provisions of this Section 2
and further agrees for the benefit of Security Agent that any such payment by
it shall be characterized as a contribution of capital by Member to Borrower
(or an 


 


9

















 


investment
in the equity capital of Borrower by Member). 
If any amount shall be paid to Member on account of such subrogation
rights at any time prior to the indefeasible and unconditional payment, discharge
or performance in full of the Obligations, such amount shall be held in trust
for the benefit of Security Agent (if applicable) and shall forthwith be paid
to Security Agent to be credited and applied upon and against the Obligations,
to the extent then matured, in accordance with the terms of the relevant
Financing Documents or, to the extent not then matured or existing, be held by
Security Agent as collateral security for the Obligations.


 


(j)            Remedies. 
Member agrees that, as between Member and Security Agent, any
Obligations of Member to the Secured Parties under any of the Financing
Documents to which it is a party may be declared to be forthwith due and
payable notwithstanding any stay, injunction or other prohibition preventing
such declaration (or such Obligations from becoming automatically due and
payable) as against Borrower or Project Companies, and that, in the event of
such declaration (or such Obligations being deemed to have become automatically
due and payable), such Obligations (whether or not due and payable by Borrower
or Project Companies) shall forthwith become due and payable by Member for
purposes of this Agreement.  For the
avoidance of doubt, it is understood and agreed that any amount payable by
Member pursuant to the immediately preceding sentence may be applied to the
payment or prepayment (as the case may be) of the Obligations of Borrower or
Project Companies, as applicable (whether or not due and payable).  Each of the obligations of Member under this
Agreement is separate and independent of each other obligation of Member
hereunder and separate and independent of the Obligations, and Member agrees
that a separate action or actions may be brought and prosecuted by Security
Agent against Member to enforce this Agreement, irrespective of whether any
action is brought by Security Agent against Borrower or Project Companies under
any relevant Financing Document or whether Borrower is or Project Companies are
joined in any such action or actions.


 


(k)           Continuing Obligation.  The
obligations of Member provided in this Section 2 are continuing
obligations and shall apply to all Obligations whenever arising.


 


Section 3. Delivery of Collateral.


 


All Membership Certificates, instruments or other documents
representing or evidencing the Membership Interest, if any, shall be endorsed
for transfer or accompanied by duly executed instruments of transfer or
assignments in blank, all in a form satisfactory to Security Agent, and shall
be delivered promptly to Security Agent or its nominee upon execution of this
Agreement.  Security Agent shall have the
right, at any time in its discretion and without prior notice to Member, but
only following the 


 


10

















 


occurrence and during the continuance of an Event of
Default, to transfer to or register in the name of Security Agent or its
nominee, any or all such certificates, instruments or other documents, provided,
that Security Agent shall promptly notify Member and Borrower of such transfer
or registration.  Such certificates,
instruments and other documents representing the Membership Interest shall be
returned to Member promptly upon satisfaction of the Obligations.


 


Section 4. Obligations Secured.


 


This Agreement and all of the Collateral hereunder assigned to Security
Agent, for the benefit of the Secured Parties, secures the payment and
performance when due of all Obligations to Security Agent and the other Secured
Parties under the Financing Documents.


 


Section 5. Use of Collateral.


 


Except for the Membership Certificates, so long as no Event of Default
has occurred and is continuing, Member reserves the right to, and shall be
entitled to, use and possess the Collateral and exercise all of its right,
title and interest in, to and under the Collateral, including under the LLC
Agreement and to receive and use (subject to the terms of the Financing
Agreement) all income, profit and other distributions in respect of the
Collateral.  Provided that no Event of
Default shall have occurred and be continuing, Member shall be permitted to
exploit, use, enjoy, protect, license, sublicense, assign, sell, dispose of or
take other actions with respect to the intellectual property of Borrower in the
ordinary course of its business to the extent permitted by the Financing
Agreement and the other Operative Documents.


 


Section 6. Remedies.


 


(a)           Subject to the terms of the Financing Agreement and
the other Financing Documents, if any Event of Default has occurred and is
continuing, Security Agent shall have the right, at its election and at the
direction of the Required Applicable Lenders, but not the obligation, to do any
of the following:


 


(i)            subject to Section 10, vote or
exercise any and all of Member’s rights or powers under the LLC Agreement;


 


(ii)           demand, sue for, collect or receive any
money or property at any time payable to or receivable by Member on account of
or in exchange for all or any part of the Collateral;


 


(iii)          cause any action at law or suit in equity
or other proceeding to be instituted and prosecuted to collect or enforce any
Obligation or rights hereunder or included in the Collateral, including
specific enforcement of any covenant or agreement contained herein or in the
LLC Agreement, or to foreclose or enforce the security interest in all or any part
of the Collateral granted herein, or to enforce any


 


11














 


other legal or
equitable right vested in it by this Agreement or by law;


 


(iv)          sell or otherwise dispose of all or any
part of the Collateral or cause all or any part of the Collateral to be sold or
otherwise disposed of in one or more sales or transactions, at such prices as
Security Agent may deem commercially reasonable, and for cash or on credit or
for future delivery, without assumption of any credit risk, at any broker’s
board or at public or private sale, without demand of performance or notice of
intention to sell or of time or place of sale (except such notice which under
applicable law cannot be waived), it being agreed that Security Agent may be a
purchaser on behalf of the Secured Parties or on its own behalf at any such
sale and that Security Agent, any Secured Party or any other Person who may be
a bona fide purchaser for value of any or all of the Collateral without notice
of any claims on any or all of the Collateral so sold shall thereafter hold the
same absolutely free from any claim or right of whatsoever kind, including any
equity of redemption, of Member or Borrower, any such demand, notice or right
and equity being hereby expressly waived and released;


 


(v)           incur reasonable expenses, including
reasonable attorneys’ fees, consultants’ fees, and other costs appropriate to
the exercise of any right or power under this Agreement;


 


(vi)          perform any obligation of Member hereunder
or under the LLC Agreement;


 


(vii)         secure the appointment of a receiver for
Member or Borrower without prior notice to Borrower or Member;


 


(viii)        proceed to protect and enforce the rights
vested in it by this Agreement, including the right to cause all revenues
hereby pledged as security and all other moneys pledged hereunder to be paid
directly to it, and to enforce its rights hereunder to such payments and all
other rights hereunder by such appropriate judicial proceedings as it shall
deem most effective to protect and enforce any of such rights, either at law or
in equity or otherwise, whether for specific enforcement of any covenant or
agreement, or in aid of the exercise of any power therein or herein granted, or
for any foreclosure hereunder and sale under a judgment or decree in any
judicial proceeding, or to enforce any other legal or equitable right vested in
it by this Agreement or by law;


 


(ix)           take possession of the Collateral and
render it usable, and repair and renovate the same, without, however, any
obligation to do so, and enter upon the property of Member or any other
location 


 


12

















 


where the same
may be located for that purpose, control, manage, operate, rent and lease the
Collateral and apply the same in accordance with the Financing Documents; or


 


(x)            exercise any other or additional rights or
remedies granted to a secured party under the UCC.


 


(b)           Minimum Notice Period. 
If, pursuant to applicable law, prior notice of any such action set
forth above is required to be given to Member or Borrower, Member and Borrower
hereby acknowledge and agree that the minimum time required by such applicable
law, or if no minimum is specified, of ten (10) Business Days, shall be
deemed a reasonable notice period. 
Security Agent shall not be obligated to make any sale of Collateral
regardless of notice of sale having been given. 
Security Agent may adjourn any public or private sale from time to time
by announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was so
adjourned.


 


(c)           Payment of Costs. 
Borrower agrees to pay to Security Agent, within five (5) Business
Days of its demand therefor, all reasonable and reasonably documented
out-of-pocket costs and expenses (including reasonable and reasonably
documented attorneys’ fees and expenses) incident to its enforcement,
protection and preservation of any of its rights and claims under this
Agreement.  Any amount required to be
paid by Member pursuant to the terms hereof shall bear interest at the Default
Rate or the maximum rate permitted by law, whichever is less, from the date due
until payment, and shall constitute indebtedness secured by this Agreement.


 


(d)           Application of Proceeds. 
The proceeds of any sale of, or other realization upon, all or any part
of the Collateral shall be applied in accordance with the Financing
Documents.  Any excess after full
satisfaction of the Obligations shall be returned promptly to Member.


 


Section 7. Remedies Cumulative; Delay Not
Waiver.


 


(a)           No right, power or remedy herein conferred upon or
reserved to Security Agent or the Secured Parties is intended to be exclusive
of any other right, power or remedy, and every such right, power and remedy
shall, to the extent permitted by law, be cumulative and in addition to every
other right, power and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise.  The
assertion or employment of any right or remedy hereunder shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.


 


(b)           No delay or omission of Security Agent to exercise any
right or power accruing upon the occurrence and during the continuation of any
Event of Default shall impair any such right or power of Security Agent, nor
shall it 


 


13

















 


be
construed as a waiver of any such Event of Default or an acquiescence
therein.  Every power and remedy given by
this Agreement may be exercised from time to time, and as often as shall be
deemed expedient, by Security Agent upon the occurrence and during the
continuation of an Event of Default.


 


(c)           Security Agent may perform any of its rights and
duties hereunder by or through agents and is entitled to retain counsel and to
act in reliance upon the advice of such counsel concerning all matters pertaining
to its rights and duties hereunder.


 


Section 8. Representations and Warranties
of Member.


 


Member represents and warrants, as of the date hereof, to Security
Agent and the Secured Parties as follows:


 


(a)           Member (i) is a duly formed and validly existing
limited liability company in good standing under the laws of Delaware; (ii) is
authorized to do business in each jurisdiction where the character of its
properties or the nature of its activities makes such qualification necessary,
except where the failure to do so would not reasonably be expected to result in
a Material Adverse Effect; and (iii) has the power and authority to own
its property and assets and to transact the business in which it is engaged.


 


(b)           Member (i) has the power and authority to execute,
deliver and perform its obligations under the LLC Agreement and this Agreement,
and to pledge and assign the Collateral; (ii) has taken all necessary
action to authorize the execution, delivery and performance of the LLC
Agreement and this Agreement; and (iii) has duly executed and delivered
the LLC Agreement and this Agreement. 
The LLC Agreement and this Agreement constitute the legal, valid and
binding obligations of Member, enforceable in accordance with their respective
terms, except as the enforceability thereof may be limited by applicable
bankruptcy, insolvency, moratorium, reorganization or other similar laws
affecting the enforcement of creditors’ rights and subject to general equitable
principles.


 


(c)           The LLC Agreement has not been amended since the date
of its execution, except as otherwise disclosed to Security Agent, and is in
full force and effect.  There exists no
default, or event that with the passage of time, the giving of notice or both
would become a default by Member under the LLC Agreement.


 


(d)           The execution and delivery of, and performance by
Member under, this Agreement, and the consummation of the transactions
contemplated herein, will not (i) violate any provision of any material
agreement to which Member is a party or any of its property or assets is bound,
including the LLC Agreement, or (ii) conflict with any material law,
order, 


 


14

















 


rule or
regulation applicable to Member, of any court or any federal or state
government, regulatory body or administrative agency, or any other governmental
body having jurisdiction over Member or any of its properties.


 


(e)           Member is the legal and equitable owner of the
Membership Interest in Borrower, together with the other rights and interests
comprising the Collateral described above, subject to no mortgages, liens,
charges, or encumbrances of any kind other than Liens granted pursuant to the
Financing Documents and Permitted Liens set forth in clauses (b), (f) and (m) of
the definition thereof (such term being used herein with the reference to “Borrower”
in clause (b) of such definition contained in the Financing Agreement
being deemed to be a reference to “Member” for purposes of this Agreement), and
has full power and lawful authority to pledge, assign and grant a security
interest in the Collateral hereunder.


 


(f)            Other than the Financing Documents, there is no
existing agreement, option, right or privilege capable of becoming an
agreement, option or right pursuant to which Member could be required to sell
or otherwise dispose of all or a part of the Membership Interest.


 


(g)           No consent of any Governmental Rule is required
for the transfer of the Membership Interest except as may be required by
applicable laws affecting the offering and sale of securities generally or the
regulation of ownership or operation of utility assets under the laws of the
State of New York, the FPA, PUHCA and any other Federal regulation regarding
EWG’s.


 


(h)           Member has not assigned any of its rights under the
LLC Agreement or any of the Collateral except as provided in this Agreement and
the other Financing Documents.


 


(i)            Member has not executed and has no knowledge of any
effective financing statement, security agreement or other instrument similar
in effect covering all or any part of the Collateral on file in any recording
office, except such as may have been filed pursuant to this Agreement and the
other Financing Documents.


 


(j)            Member will not be, or cause Borrower to be or become
or to be deemed by any Governmental Authority to be, solely as a result of
ownership of Borrower, (1) an “electric utility” or a public utility under
the law of any state, (2) subject to, or not exempt from, regulation as a
public utility under the FPA, other than regulation pursuant to Section 203
thereof, or (3) an investment company or a company controlled by an
investment company within the meaning of the Investment Company Act of 1940, as
amended; and Member is not, and has not been, nor has Member caused Borrower to
be, determined by the Securities and Exchange Commission 


 


15

















 


or any
successor agency or other Governmental Authority with jurisdiction to be
subject to, or not exempt from, regulation under PUHCA other than (x) compliance
with Section 1265 of PUHCA and (y) regulation under PUHCA with
respect to any Affiliate of Borrower (including Member) that does not result in
a Material Adverse Effect.


 


(k)           Perfection of Security Interest.  The security interests granted to Security Agent,
for the benefit of Secured Parties, pursuant to this Agreement, in the
Collateral (a) upon filing of appropriate financing statements, constitute
as to personal property included in the Collateral and, with respect to
subsequently acquired personal property included in the Collateral, will
constitute, a perfected security interest under the UCC to the extent a
security interest can be perfected by filing or, in the case of the Membership
Certificates (such certificates being “certificated securities” as defined in Article 8
of the UCC), by possession by or on behalf of the secured party and (b) are,
and, with respect to such subsequently acquired personal property, will be, as
to the Collateral perfected under the UCC as aforesaid, superior and prior to
the rights of all third Persons now existing or hereafter arising whether by
way of mortgage, lien, security interests, encumbrance, assignment or otherwise
(other than Permitted Liens that, pursuant to applicable law,
are entitled to a higher priority than the liens granted by this Agreement).  Except to the extent possession of portions
of such Collateral is required for perfection, all such action as is necessary
has been taken to establish and perfect Security Agent’s, for the benefit of
Secured Parties, rights in and to such Collateral to the extent Security Agent’s
security interest (for the benefit of the Secured Parties) can be perfected by
filing, including any recording, filing, registration, giving of notice or
other similar action.  No filing,
recordation, re-filing or re-recording other than those listed on Schedule A
hereto (as the same may be supplemented from time to time) is necessary to
perfect and maintain the perfection of the Liens created by this Agreement on
the Collateral, and all such filings or recordings will have been made to the
extent Security Agent’s, for the benefit of Secured Parties, security interest
can be perfected by filing (except to the extent that such filings or
recordings are, by their nature, filings or recordings to be made at a later
date).  Member has properly delivered or
caused to be delivered to Security Agent all such Collateral that requires
perfection of the Lien and security interest described above by possession.


 


(l)            Place of Business. 
Member’s principal place of business and chief executive office is
located at 179 Lincoln Street, Suite 500, Boston, MA 02111.  Member has not changed its location (as
defined in Section 9-307 of the UCC) or previously changed its name.


 


(m)          After-Acquired Collateral.  It is understood and agreed that the
foregoing representations and warranties shall apply only to the Collateral
delivered on the date hereof and that, with respect to Collateral delivered
thereafter, 


 


16

















 


Member
shall, upon the written request of Security Agent, be required to make
representations and warranties in form and substance substantially similar to
the foregoing in supplements hereto and that such representations and
warranties contained in such supplements hereto shall be applicable to such
Collateral hereafter delivered.


 


(n)           Pledged Interests. 
The Membership Interest is duly authorized, validly existing, fully paid
and nonassessable, and the Membership Interest is not subject to any
contractual restriction, or any restriction under the organizational documents
of Borrower or Member upon the transfer of such Membership Interest (except for
any such restriction contained in any Financing Document).  Such Membership Interest exists in a
certificated form.  No Person other than
Member is the registered owner of the Membership Interest.


 


Section 9. Covenants of Member.


 


Member covenants to and in favor of the Secured
Parties as follows:


 


(a)           Member shall maintain its existence as a Delaware
limited liability company and all material rights, privileges, and franchises
necessary to perform its obligations hereunder.


 


(b)           Member shall perform and comply, in all material
respects, with all obligations and conditions on its part to be performed
hereunder, under the LLC Agreement and with respect to the Collateral.


 


(c)           Member will, so long as any Obligations shall be
outstanding, defend its title to the Collateral and the interest of Security
Agent in the Collateral against any claim or demand of any Persons (except for
Permitted Liens).


 


(d)           Member shall not directly or indirectly create, incur,
assume or suffer to exist any liens on or with respect to any part of the
Collateral (other than Liens granted pursuant to the Financing Documents or
clauses (b) and (f) of the definition of Permitted Liens as such term
is defined in Section 8(e) above).  Member will at its own cost and expense
promptly take such action as may be necessary to discharge any such liens.


 


(e)           Without the prior written consent of Security Agent,
such consent not to be unreasonably withheld, Member will not file or authorize
to be filed in any jurisdiction any financing statements under the UCC or any
like statement with respect to the Collateral, in which Security Agent is not
named as the sole secured party for the benefit of the Secured Parties.


 


(f)            Member will not cause, suffer or permit the sale,
assignment, conveyance or other transfer of all or any portion of Member’s
Membership Interest in Borrower other than in accordance with Section 8.17
of the Financing Agreement.


 


17

















 


(g)           Without the prior written consent of Security Agent,
such consent in respect to modification or amendment not to be unreasonably
withheld, or except as otherwise permitted by the Financing Agreement, shall
not terminate, modify or amend the LLC Agreement.


 


(h)           Member shall give to Security Agent prompt notice of (i) each
demand or notice received by it relating to the LLC Agreement; and (ii) any
default, event of default or event which with the giving of notice or the
passage of time or both might reasonably be expected to become a default under
the LLC Agreement, whether by Borrower, Member or any other Person, of which
Member has knowledge or has received notice.


 


(i)            If Member in its capacity as a member of Borrower
receives any income or distribution of money or property of any kind from
Borrower while an Event of Default has occurred and is continuing (other than
as permitted hereby or under the Financing Agreement), Member shall hold such
income or distribution as trustee for and shall deliver the same to Security
Agent.


 


(j)            Member will, at all times, keep accurate and complete
records of the Collateral.  Upon three
Business Days’ prior notice, Member shall permit representatives of Security
Agent during normal business hours of Member to inspect and make abstracts from
Member’s books and records pertaining to the Collateral.  Upon the occurrence and continuance of any
Event of Default, at Security Agent’s request, Member shall promptly deliver
copies (or, where requested by Security Agent, and where available, originals)
of any and all such records to Security Agent.


 


(k)           Member shall not cause, consent to, or permit any
termination, material amendment or modification to, or waiver of timely
compliance with any material terms or conditions of the LLC Agreement without
the prior written consent of the Administrative Agent (with the consent of the
Required Applicable Lenders, acting reasonably).


 


(l)            Member shall give Security Agent at least 10 Business
Days’ notice of a change in location of its place of business and chief
executive office and shall, at the expense of Borrower, execute and deliver
such instruments and documents as may be required by Security Agent to maintain
the security interest in the Collateral created hereunder.


 


(m)          Any indebtedness owed to Member by Borrower shall be
subordinated pursuant to the terms of Exhibit M of the Financing Agreement
(the terms of which are incorporated herein by reference).


 


(n)           Except as otherwise permitted under the Financing
Agreement, Member will not make any assignment of its rights under the LLC
Agreement other 


 


18

















 


than
any assignment pursuant to this Agreement or any other Financing Document.


 


Section 10. Voting Rights.


 


(a)           Unless an Event of Default has occurred and is
continuing (and not waived by Administrative Agent or Security Agent), Member
shall be entitled to exercise all the rights and powers of a holder of such
interest, including the right to vote from time to time exercisable in respect
of the Membership Interest and to give proxies, consents and waivers in respect
thereof.  No such action may be taken if
such action would violate or be inconsistent with the Financing Agreement, any
Financing Document or this Agreement.


 


(b)           Upon the occurrence and continuance of an Event of
Default that has not been waived, Security Agent may give Member a notice
prohibiting Member from exercising the rights and powers of a holder of the
Membership Interest, including the right to vote the Membership Interest, at
which time (and until such time that such Event of Default has been cured or
waived), all such rights of Member will cease immediately and Security Agent
will have the right to exercise the rights and powers related to the Membership
Interest, including the right to vote.


 


(c)           Upon the occurrence and continuance of an Event of
Default that has not been waived, and whether or not Security Agent exercises
any available right to declare any Obligation due and payable or seek or pursue
any other right, remedy, power or privilege available to it under applicable
law, this Agreement or any other Financing Document, all dividends and other
distributions on all Securities (as defined in the UCC) included in the
Collateral shall be paid directly to a Collateral Account designated by
Security Agent and retained by it in such account as part of the Collateral,
subject to the terms of this Agreement and the other Financing Documents, and,
if Security Agent so requests, Member shall execute and deliver to Security
Agent appropriate additional dividend, distribution and other orders and
instruments to that end, provided that if such Event of Default is cured, any
such dividend or distribution paid to Security Agent prior to its cure shall,
upon request of Member (except to the extent applied to the Obligations), be
returned by Security Agent to Member.


 


Section 11. Certain Consents and Waivers.


 


(a)           Member hereby waives, to the maximum extent permitted
by law, and only while this Agreement is in effect (subject to Section 25
below), (i) all rights and remedies afforded to guarantors, sureties and
other Persons under applicable law, including limitations on the recovery of a
deficiency under an obligation secured by a deed of trust on real property if
the real property is sold under a power of sale contained in the deed of trust,



 


19

















 


including
specifically, the rights and remedies available under the laws of the State of
New York, and all defenses based on any loss, whether as a result of any such
sale or otherwise, of Member’s right to recover any amount from Borrower,
whether by right of subrogation or otherwise; (ii) all rights under any
law to require Security Agent to pursue Borrower or any other Person, or to
proceed against or exhaust any security held by Security Agent, or to pursue
any other remedy before proceeding against Member; (iii) all rights of
reimbursement or subrogation, including the rights and protections under the
laws of the State of New York, all rights to enforce any remedy that Security
Agent or the Secured Parties may have against Borrower, and all rights to
participate in any security held by Security Agent until the Obligations have
been satisfied in full; (iv) all rights to require Security Agent to give
any notices of any kind, including notices of nonpayment, nonperformance,
notice of intent to accelerate, notice of acceleration, protest, dishonor,
default, delinquency or acceleration, or to make any presentments, demands or
protests, except as expressly provided in the Financing Documents; (v) all
rights to assert the bankruptcy or insolvency of Borrower or Project Companies
as a defense hereunder or as the basis for rescission hereof; (vi) all
rights under any law purporting to reduce Member’s Obligations hereunder if
Borrower’s Obligations under any Financing Document are reduced; (vii) all
defenses based on the disability or lack of authority of Borrower or any
Person, the repudiation of the Financing Documents by Borrower or any Person,
or the failure by Security Agent or the Secured Parties to enforce any claim
against Borrower, or the unenforceability in whole or in part of any Financing
Documents; and (viii) all suretyship and guarantor’s defenses
generally.  Member further agrees that
upon an Event of Default with respect to Borrower or Project Companies,
Security Agent may elect to exercise any remedy against Borrower or any
security or any guarantor under the Financing Documents and this Agreement,
even if the effect of that action is to deprive Member of the right to collect
reimbursement from Borrower or Project Companies for any sums paid by Member to
Security Agent or any Secured Party.


 


Section 12. Borrower’s Consent and
Covenant.


 


Borrower hereby consents to the assignment and grant of a security
interest in the Collateral to Security Agent and to the exercise by Security
Agent of all rights and powers assigned or delegated to Security Agent by Member
hereunder, including the right of Security Agent upon and during the
continuance of an Event of Default to exercise Member’s voting rights and other
rights under the LLC Agreement to manage or control Borrower as provided
herein.  Borrower further agrees to
perform all covenants and obligations herein which, by their terms, are to be
performed by Borrower.


 


20

















 


Section 13. Attorney-in-Fact.


 


Upon the occurrence and during the continuation of an Event of Default,
Member hereby irrevocably constitutes and appoints Security Agent its true and
lawful attorney-in-fact with full power (in the name of Member or otherwise) to
enforce all rights of Member with respect to the Collateral, including the
right:


 


(a)           to ask, require, demand, receive, compound and give
acquittance for any and all moneys and claims for money due and to become due
under or arising out of the Collateral;


 


(b)           to elect remedies thereunder, to endorse any checks or
other instruments or orders in connection therewith;


 


(c)           to vote as provided herein, demand, receive and
enforce Member’s rights with respect to the Collateral;


 


(d)           to give appropriate receipts, releases and
satisfactions for and on behalf of and in the name of Member or, at the option
of Security Agent, in the name of Security Agent, with the same force and
effect as Member could do if this Agreement had not been made;


 


(e)           to file any claims or take any action or institute any
proceedings in connection therewith which Security Agent may reasonably deem to
be necessary or advisable;


 


(f)            to preserve the validity, perfection and priority of
the liens granted by this Agreement;


 


(g)           to execute, in connection with any sale or disposition
of the Collateral under Section 6, any endorsements, assignments,
bills of sale or other instruments of conveyance or transfer with respect to
all or any part of the Collateral;


 


(h)           to pay or discharge taxes and liens levied or placed
on or threatened against the Collateral; and


 


(i)            to (A) direct any party
liable for any payment under any Collateral to make payment of any moneys due
or to become due thereunder directly to Security Agent or as Security Agent
shall direct, (B) ask or demand for, collect, and receive payment of and
receipt for, any moneys, claims and other amounts due or to become due at any
time in respect of or arising out of any Collateral, (C) commence and
prosecute any suit, action or proceeding at law or in equity in any court of
competent jurisdiction to collect any Collateral and to enforce any other right
in respect of any Collateral, (D) defend any suit, action or proceeding
brought against Member with respect to any Collateral, (E) settle,
compromise or adjust any such suit, action or proceeding and, in connection
therewith, give such


 


21














 


discharges or releases as Security Agent may
deem appropriate and (F) generally, sell, transfer, pledge and make any
agreement with respect to or otherwise deal with any Collateral as fully and
completely as though Security Agent were the
absolute owner thereof for all purposes, and do, at Security Agent’s option and
Member’s expense, at any time, or from time to time, all acts and things that Security Agent
deems necessary to protect, preserve or realize upon the Collateral and Security Agent’s
and the other Secured Parties’ security interests therein and to effect the
intent of this Agreement, all as fully and effectively as Member might do;


 


provided, however, that
Security Agent shall not exercise any such right unless an Event of Default has
occurred and is continuing.  This power
of attorney is a power coupled with an interest and shall be irrevocable.


 


Section 14. Perfection; Further
Assurances.


 


(a)           Perfection. 
Member agrees that from time to time, Member shall promptly execute and
deliver all instruments and documents, and take all action, that may be
reasonably necessary, or that Security Agent may reasonably request, in order
to perfect and protect the assignment and security interest granted or intended
to be granted hereby, or to enable Security Agent to exercise and enforce its
rights and remedies hereunder with respect to any Collateral in accordance with
the terms hereof.  Without limiting the
generality of the foregoing, Member shall (i) deliver the Collateral or
any part thereof to Security Agent for the benefit of the Secured Parties as
Security Agent may request, endorsed or accompanied by such duly executed
instruments of transfer or assignment, as Security Agent may request, and in
form and substance reasonably satisfactory to Security Agent; and (ii) execute
and file such financing or continuation statements, or amendments thereto, and
such other instruments, endorsements or notices, as may be reasonably necessary
or as Security Agent may reasonably request, in order to perfect and preserve
the assignments and security interests granted or purported to be granted
hereby.


 


(b)           Filing of Financing Statement.  Member hereby authorizes Security Agent to
file one or more financing or continuation statements, and amendments thereto,
relative to all or any part of the Collateral without the signature of Member
where permitted by law, provided, that Security Agent delivers to Member
and Borrower a copy of any such statement or amendment.


 


(c)           Filing Costs. 
Borrower or Member shall pay all filing, registration and recording fees
and all refiling, re-registration and re-recording fees, and all reasonable
out-of-pocket expenses incident to the execution and acknowledgment of this
Agreement, and all federal, state, county and municipal stamp taxes and other
taxes, duties, imports, assessments and charges arising out of or in connection
with the execution and delivery of 


 


22

















 


this
Agreement, any agreement supplemental hereto, any financing statements, and any
instruments of further assurance, except as may otherwise be provided in the
Financing Agreement.


 


Section 15. Notices.


 


All notices required or permitted under the terms and provisions hereof
shall be in writing and any such notice shall be effective if given in
accordance with the provisions of Section 14.1of the Financing
Agreement.  Notices to Borrower may be
given at the address of Borrower set forth in such Section 14.1 of the
Financing Agreement.  Notices to Member
may be given at the following address:


 


	
   

  	
  CSSW Stetson Holdings,
  LLC

  
	
   

  	
  c/o First Wind Energy, LLC

  
	
   

  	
  179 Lincoln Street, Suite 500

  
	
   

  	
  Boston, MA 02111

  
	
   

  	
  Attention:

  	
  Secretary

  
	
   

  	
  Facsimile:

  	
  (617) 960-2889

  



 


Section 16. Continuing Assignment and Security Interest; Transfer
of Notes.


 


This Agreement shall create a continuing pledge and assignment of and
security interest in the Collateral and shall (a) remain in full force and
effect until the Discharge of Obligations; (b) be binding upon Borrower
and Member, and their respective successors and assigns; and (c) inure,
together with the rights and remedies of Security Agent, to the benefit of
Security Agent, the Secured Parties and their respective successors,
transferees and permitted assigns. 
Without limiting the generality of the foregoing, Security Agent or any
Secured Party may assign or otherwise transfer all or any part of or interest
in the Notes, the Commitments or other evidence of the Obligations owed to them
to any other Person to the extent permitted by and in accordance with the Financing
Agreement, and such other Person shall thereupon become vested with all or an
appropriate part of the benefits in respect thereof granted to the Secured
Parties herein.  The release of the
security interest in any or all of the Collateral, the taking or acceptance of
additional security, or the resort by Security Agent to any security it may
have in any order it may deem appropriate, shall not affect the liability of
any Person on the indebtedness secured hereby.


 


Section 17. Termination of Security
Interest.


 


Upon the Discharge of Obligations, the security interest granted hereby
shall terminate and all rights to the Collateral shall automatically revert to
Member.  Upon any such termination,
Security Agent will return promptly all certificates evidencing Member’s
ownership interest in Borrower, and all ownership powers executed hereunder, to
Member, and will, at Member’s expense, execute and deliver to Member such
documents (including UCC-3 termination statements) as Borrower or Member shall
reasonably request to evidence such termination.  If this Agreement shall be terminated or
revoked by operation of law, Member will indemnify and hold Security Agent and
the 


 


23

















 


Secured Parties harmless from any loss, cost or
expense which may be suffered or incurred by Security Agent and the Secured
Parties in acting hereunder in good faith prior to the receipt by Security
Agent, its successors, transferees or assigns, of notice of such termination or
revocation.


 


Section 18. 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.


 


Section 19. Successors and Assigns.


 


All covenants and agreements contained herein shall be binding upon,
and inure to the benefit of, the parties hereto and their respective successors
and permitted assigns, provided however, that none of Member nor Borrower may
assign its rights or obligations hereunder without the prior written consent of
Security Agent unless such an assignment is in connection with a transfer of
the Membership Interest permitted under Section 9(f) or
otherwise not in violation of the Financing Agreement.


 


Section 20. Headings.


 


The table of contents and headings of the various sections herein are
for convenience of reference only and shall not define or limit any of the
terms or provisions hereof.


 


Section 21. Liability.


 


The scope of liability of Member and the Non-Recourse Parties (as
defined in Article 11 of the Financing Agreement) shall be as set forth in
such Article 11 of the Financing Agreement, which is incorporated herein
by this reference.


 


Section 22. References to Other Documents.


 


Subject to the Financing Agreement, all defined terms used in this
Agreement which refer to other documents shall be deemed to refer to such other
documents as they may be amended, supplemented or replaced from time to time,
provided such documents were not amended in breach of a covenant contained in
any agreement to which Member, Borrower, Project Companies or Security Agent is
a party.


 


Section 23. Governing Law.


 


THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REFERENCE TO THE CONFLICTS OF LAW RULES THEREOF (OTHER THAN SECTION 5-1401
AND SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW), EXCEPT AS
REQUIRED BY 


 


24

















 


MANDATORY PROVISIONS OF LAW AND EXCEPT TO THE EXTENT
THAT THE VALIDITY OR PERFECTION OF THE LIEN AND SECURITY INTEREST HEREUNDER, OR
REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE
LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK.


 


Section 24. Execution in Counterparts.


 


This Agreement may be executed in one or more duplicate counterparts,
and when executed and delivered by all the parties hereto, shall constitute a
single binding agreement.


 


Section 25. No Amendment, Modification.


 


This Agreement may only be amended or modified by an instrument in
writing signed by Member, Borrower and Security Agent, both for itself and on
behalf of any other parties to be charged in accordance with the terms of this
Agreement.


 


Section 26. Third Party Rights.


 


Nothing in this Agreement, expressed or implied, is
intended or shall be construed to confer upon, or give to any Person, other
than Member, Borrower, Security Agent and the Secured Parties, any security,
rights, remedies or claims, legal or equitable, under or by reason hereof, or
any covenant or condition hereof; and this Agreement and the covenants and agreements
herein contained are and shall be held to be for the sole and exclusive benefit
of Member, Borrower, Security Agent and the Secured Parties.


 


Section 27. Reinstatement.


 


This Agreement and the continuing security interest in the Collateral
created hereunder shall automatically be reinstated, to the extent permitted by
applicable law, if and to the extent that for any reason any payment by or on
behalf of Member or Borrower in respect of the Obligations is rescinded or must
otherwise be restored by any holder of the Obligations, whether as a result of
any proceedings in bankruptcy or reorganization or otherwise.


 


Section 28. Conflict Among Agreements.


 


In the event of any
conflict between the terms and provisions of this Agreement, and the Financing
Agreement, the terms and conditions of the Financing Agreement shall prevail.


 


Section 29. Waiver of Jury Trial.


 


THE PARTIES TO THIS AGREEMENT HEREBY KNOWINGLY, VOLUNTARILY, AND
INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION
WITH, THIS 


 


25

















 


AGREEMENT OR ANY OTHER OPERATIVE DOCUMENT, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN),
OR ACTIONS OF SECURITY AGENT, THE SECURED PARTIES, MEMBER OR BORROWER.  THIS PROVISION IS A MATERIAL INDUCEMENT FOR
SECURITY AGENT TO ENTER INTO THIS AGREEMENT.


 


[SIGNATURES
FOLLOW]


 


26

















 


IN WITNESS WHEREOF, the parties hereto have caused this Pledge and
Security Agreement to be duly executed by their members and officers thereunto
duly authorized, as of the day and year first above written.


 


	
   

  	
  CSSW
  STETSON HOLDINGS, LLC,

  
	
   

  	
  a Delaware limited liability company, as Member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  STETSON HOLDINGS, LLC,

  
	
   

  	
  a Delaware limited liability company, as Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  BNP PARIBAS,

  
	
   

  	
  as Security Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


Annex A


 


List of
Pledged Interests


 


1.     Stetson Holdings, LLC Certificate of Interest No. [    ],
issued on
[              ],
certifying that CSSW Stetson Holdings, LLC is the owner of the Certificate of
Interest representing a 100% membership interest in Stetson Holdings, LLC,
subject to the terms of the Limited Liability Company Agreement of Stetson
Holdings, LLC, dated as of May 27, 2008, as modified by that certain
Membership Interest Transfer Agreement of Stetson Holdings, LLC, dated as of July 17,
2009, as further amended by that certain First Amendment to Limited Liability
Company Agreement of Stetson Holdings, LLC, dated as of July 17, 2009, and
as further amended by that certain Second Amendment to Limited Liability
Company Agreement, dated as of the date hereof (as amended, amended and
restated, supplemented or otherwise modified from time to time).


 


A-1

















 


Schedule
A


 


List of
Required Filings


 


1.     UCC-1 Financing Statement naming CSSW Stetson
Holdings, LLC, as Debtor and BNP Paribas, in its capacity as Security Agent, as
Secured Party, to be filed with the Secretary of State of the State of
Delaware.


 


Exhibit E-7


 


S-1














 


EXHIBIT
F-2


to
Financing Agreement


 


FORM OF
CONSENT OF BOP CONTRACTOR


 


(See Tab      )


 

















 


This CONSENT AND AGREEMENT, dated as of December 22, 2009
(this “Consent”), is entered into by and among REED & REED,
INC., a corporation organized and
existing under the laws of the state of Maine (together with its
permitted successors and assigns, “Contracting Party”), EVERGREEN WIND POWER V, LLC, a Delaware
limited liability company (“EWP”), and BNP PARIBAS, as Security Agent (“Agent”)
for the Secured Parties (as defined in the Financing Agreement).


 


RECITALS


 


A.            In order to
finance the operation of a 57 MW wind energy project and a 25.5 MW wind energy project located
in Washington County, Maine (collectively, or individually, as the case may be,
the “Project”), Stetson Holdings, LLC has entered into that certain
Financing Agreement dated as of December 22, 2009 with BNP Paribas (“BNPP”)
as Joint Lead Arranger, Joint Bookrunner, Administrative Agent for the Lenders,
Security Agent and Issuing Bank, and HSH Nordbank AG, New York Branch (“HSHN”),
as Joint Lead Arranger, Joint Bookrunner and Co-Syndication Agent, and certain
other lenders (“Lenders”) party thereto (the “Financing Agreement”).  In connection with the Financing Agreement,
EWP and Agent have entered into a Guaranty and Security Agreement (the “Security
Agreement”), under which EWP has agreed to assign its interest under the
Assigned Agreement (as defined below) to Agent as collateral for certain
secured obligations under the Financing Agreement.


 


B.            Contracting
Party and EWP have entered into that certain Stetson Wind Power Project
Transmission Construction Works Contract No. EWPV-07-02, dated as of December 31,
2007, as amended by Change Order Number 001 dated as of August 15, 2008,
as further amended by Change Order Number 002 dated as of November 9,
2008, as amended by Change Order Number 003 dated as of November 11, 2008,
and as amended by
Change Order Number 004, dated as of January 28, 2009 (as
additionally amended, amended and restated, 


 

















 


supplemented or otherwise modified from time to time
in accordance with the terms thereof and hereof,  the
“Assigned Agreement”).


 


AGREEMENT


 


NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, and intending to be legally bound, the parties hereto hereby
agree, notwithstanding anything in the Assigned Agreement to the contrary, as
follows:


 


I.              ASSIGNMENT AND AGREEMENT.


 


A.            Consent
to Assignment.


 


Contracting Party consents to the collateral assignment under the
Security Agreement of all of EWP’s right, title and interest in, to and under
the Assigned Agreement (collectively, the “Assigned Interests”).  Contracting Party acknowledges the right of
Agent, in the exercise of Agent’s rights and remedies pursuant to the Security
Agreement, to make all demands, give all notices, take all actions and exercise
all rights of EWP under the Assigned Agreement.


 


B.            Subsequent
Owner.


 


1.             Contracting Party agrees that, if Agent
notifies Contracting Party in writing that, pursuant to the Security Agreement,
it has assigned, foreclosed or sold the Assigned Interests, then (i) Agent
or its successor, assignee and/or designee (a “Subsequent Owner”) shall
be substituted for EWP under the Assigned Agreement and (ii) Contracting
Party shall (1) recognize Agent or the Subsequent Owner, as the case may
be, as its counterparty under the Assigned Agreement and (2) continue to
perform its obligations under the Assigned Agreement in favor of Agent or the
Subsequent Owner, as the case may be; provided that Agent or such
Subsequent Owner, as the case may be, has assumed in writing all of EWP’s rights and obligations (including,
without limitation, the obligation to cure any then existing payment and
performance defaults, but excluding any obligation to cure any then existing
performance defaults which by their nature are incapable of being cured) under
the Assigned Agreement.


 


2.             Without limiting anything herein, the
warranties provided by Contracting Party under the Assigned Agreement shall
continue in full force and effect (until the expiration of the applicable
warranty periods set forth in the Assigned Agreement) in the event that Agent
or a Subsequent Owner succeeds to EWP’s right, title and interest in the Assigned Agreement.


 

















 


C.            Right
to Cure.


 


If EWP defaults in the performance of any of its obligations under the
Assigned Agreement, or upon the occurrence or non-occurrence of any event or
condition under the Assigned Agreement which would immediately or with the
passage of any applicable grace period or the giving of notice, or both, enable
Contracting Party to terminate or suspend its performance under the Assigned
Agreement (each hereinafter a “Default”), Contracting Party shall not terminate
or suspend its performance under the Assigned Agreement until it first gives
written notice of such Default to Agent and affords Agent a period of at least
30 days (this 30 day period, for the avoidance of doubt, being in addition to
any cure period granted to EWP to cure such Default under the Assigned
Agreement) or if such Default is a nonmonetary default, a period of 60 days
(this 60 day period, for the avoidance of doubt, being in addition to any cure
period granted to EWP to cure such Default under the Assigned Agreement) from
receipt of such notice to cure such Default.


 


D.            Delivery
of Notices.


 


Contracting Party shall deliver notice to Agent when there is a Default
by EWP under the Assigned Agreement.


 


E.             Termination.


 


In the event that
the Assigned Agreement is terminated by rejection, or otherwise, during a case
in which EWP is the
debtor under Title 11, United States Code, or other similar federal or state
statute, then, in the event that Agent
or its nominee or designee has commenced foreclosure proceedings on the assets
of EWP, Contracting
Party shall, at the option of Agent and so long as all existing payment
defaults by EWP under the Assigned Agreement are cured by Agent or its
nominee or designee, enter into a new agreement with Agent or (at the direction
of Agent) its nominee or designee having terms substantially identical to the
Assigned Agreement, 


 

















 


pursuant
to which Agent or its nominee or designee shall have all of the rights and
obligations of EWP under the Assigned Agreement.


 


II.            REPRESENTATIONS AND
WARRANTIES


 


Each of
Contracting Party, EWP and Agent hereby represents and warrants as of the
date hereof that it is duly organized, validly existing, and in good standing
under the laws of the commonwealth or state of its organization and is
qualified and in good standing in each other jurisdiction where the failure to
so qualify would have a material adverse effect upon its business or financial
condition, and it has all requisite power and authority to conduct its
business, to own its properties and to execute, deliver and perform its
obligations under this Consent.


 


III.           PAYMENTS UNDER THE
ASSIGNED AGREEMENT


 


Contracting Party
shall pay all amounts (if any) payable by it under the Assigned Agreement to EWP in the manner and as and when required by
the Assigned Agreement directly into the account specified from time to time by
Agent to Contracting Party in writing. 
Notwithstanding the foregoing, if any entity or person has become a
Subsequent Owner pursuant to the terms hereof, then Contracting Party shall pay
all such amounts directly to an account designated by Subsequent Owner.


 


IV.           MISCELLANEOUS.


 


A.            Notices.


 


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


 


	
  If to Contracting
  Party:

  	
   

  	
  If to EWP:

  
	
   

  	
   

  	
   

  
	
  Reed & Reed, Inc.

  	
   

  	
  Evergreen Wind Power V,
  LLC

  
	
  P.O. Box 370, Route 128

  	
   

  	
   

  
	
  Woolwich, ME 04579

  	
   

  	
  c/o First Wind Energy,
  LLC

  
	
  Facsimile: (207)
  443-2792

  	
   

  	
   

  



 

















 


	
  Attention: Pat Defilipp
  and Jack Parke

  	
   

  	
  179 Lincoln Street,
  Suite 500

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Boston, Massachusetts
  02111

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Facsimile: (617)
  960-2889

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attention: Secretary

  
	
   

  	
   

  	
   

  
	
  If to Agent:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  BNP Paribas

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  787 Seventh Avenue

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  New York, NY 10019

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Telephone: (212)
  841-2000

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Facsimile: (212)
  841-2146

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention: Project
  Finance & Utilities

  	
   

  	
   

  



 


All notices or other communications required or permitted to be given
hereunder shall be in writing and shall be considered as properly given (a) if
delivered in person, (b) if sent by overnight delivery service (including
Federal Express, UPS, DHL and other similar overnight delivery services), (c) in
the event overnight delivery services are not readily available, if mailed by
first class United States Mail, postage prepaid, registered or certified with
return receipt requested, (d) if sent by prepaid telegram or by facsimile
or (e) if sent by other electronic means (including electronic mail)
confirmed by facsimile or telephone.  Any
party may change its address for notice hereunder by giving of 30 days’ notice
to the other parties in the manner set forth herein.


 


B.            Counterparts.


 


This Consent 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.


 


C.            Amendment,
Waiver.


 


Neither this Consent nor any of the terms hereof may be terminated,
amended, supplemented, waived or modified except by an instrument in writing
signed by Contracting Party and Agent.


 


D.            Successors
and Assigns.


 


This Consent shall bind and benefit Contracting Party, Agent, and their
respective successors and assigns.


 


E.             Further
Assurances.


 


Contracting Party will, upon the reasonable written request of Agent,
execute and deliver such further documents and do such other acts and things
necessary to effectuate the purposes of this Consent.


 


F.             Governing
Law.


 


This Consent shall
be governed by the laws of the State of New York without reference to conflicts
of laws rules thereof (other than Section 5-1401 of the New York
General Obligations Law).


 


[signatures on the following pages]


 

















 


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


 


	
   

  	
  REED &
  REED, INC., a Maine Corporation, as Contracting Party

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  EVERGREEN
  WIND POWER V, LLC, a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:
  Evelyn Lim

  
	
   

  	
   

  	
  Title: Secretary

  



 

















 


	
  Accepted
  and Agreed to

  
	
  BNP
  PARIBAS, as Agent

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


Exhibit F-2


 


1














 


EXHIBIT
F-3


to
Financing Agreement


 


FORM OF
CONSENT OF ENERGY HEDGE PROVIDER


 


(See Tab      )


 

















 


CONSENT OF CONSTELLATION ENERGY COMMODITIES GROUP, INC.


 


This CONSENT AND
AGREEMENT (as amended, modified and supplemented from time to time, this “Consent”),
dated as of December 22, 2009, is executed by Constellation Energy
Commodities Group, Inc., a Delaware corporation (“Contracting Party”),
Stetson Holdings, LLC, a Delaware limited liability company (“Assignor”),
and BNP Paribas (“Agent”).


 


RECITALS


 


WHEREAS, Assignor owns and
operates a wind generating facility with a nameplate capacity of up to 57
megawatts and a wind generating facility with a nameplate capacity of up to
25.5 megawatts located in Washington and Penobscot Counties, Maine
(collectively, the “Project”);


 


WHEREAS, Assignor has
entered into with Contracting Party that certain (i) ISDA International
Swaps Dealers Association, Inc. Master Agreement, dated as of June 11,
2008, with Contracting Party (“Master Agreement” ), (ii) Schedule
to the Master Agreement, dated as of June 11, 2008, with Contracting Party
(“Schedule”), (iii) ISDA International Swaps and Derivatives
Association, Inc. Credit Support Annex to the Schedule to the Master
Agreement, dated as of June 11, 2008, with Contracting Party (“Credit
Support Annex”) and (iv) Confirmation to the Master Agreement, dated
as of June 11, 2008, with Contracting Party (“Confirmation”)
(together with the Master Agreement, Schedule, and Credit Support Annex, each
as amended in accordance with the terms hereof or as may be further amended,
amended and restated, supplemented or otherwise modified from time to time in
accordance with the terms thereof, the “Agreement”);


 


WHEREAS, pursuant to the Financing Agreement (as the
same may be amended, amended and restated, supplemented or otherwise modified
from time to time, the “Financing Agreement”), dated as of December 22, 2009,
by and among Assignor, as Borrower, the financial institutions from time to
time party thereto (the “Lenders”), BNP Paribas (“BNPP”) as Joint
Lead Arranger, Joint Bookrunner, Administrative Agent for the Lenders, Security
Agent and Issuing Bank, and HSH Nordbank AG, New York Branch (“HSHN”),
as Joint Lead Arranger, Joint Bookrunner, and Co-Syndication Agent, the Lenders
have agreed to extend financing to Assignor with respect to the operation and
maintenance of the Project;


 


WHEREAS, as a condition of the financing under the
Financing Agreement, Assignor is required to grant to Security Agent a
first-priority security interest in all of Assignor ‘s right, title and
interest in, to and under the Agreement (the “Assigned Interest”) as
collateral security for satisfaction of all obligations of Assignor to Security
Agent under a Pledge and Security Agreement and the other Loan Documents (as defined
in the Financing Agreement).


 


3

















 


WHEREAS, it is a requirement under the Financing
Agreement that Contracting Party and the other parties hereto shall have
executed this Consent.


 


NOW THEREFORE, in consideration of the foregoing and
the mutual agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto hereby agree as follows:


 


1.             Consent and Agreement.  Contracting
Party:


 


(a)           consents to the assignment of the
Assigned Interest as collateral security to Agent;


 


(b)           acknowledges the right (but not the
obligation) of Agent in the exercise of its rights and remedies under the
Financing Agreement to, upon notice to Contracting Party that an “Event of
Default” has occurred and is continuing under the Financing Agreement, make all
demands, give all notices, take all actions and exercise all rights of Assignor
under the Agreement, and agrees to accept any such exercise; provided, however,
that, insofar as Agent exercises any of its rights under the Agreement or makes
any claims with respect to payments or other obligations under the Agreement,
the terms and conditions of the Agreement applicable to such exercise of rights
or claims shall apply to Agent to the same extent as to Assignor, provided,
further, that Agent or its designee, as the case may be, assumes in
writing all of Assignor’s obligations under the Agreement and notifies
Contracting Party of such assumption;


 


(c)           agrees not to (i) terminate the
Agreement or suspend performance of its services thereunder, except as provided in the Agreement or
to the extent permitted by law and, in any event with respect to a termination
of the Agreement, in accordance with Section 4 of this Consent; (ii) consent
to any termination of the Agreement by Assignor without the prior written
consent of Agent (such consent not to be unreasonably withheld or delayed),
except as provided in the Agreement and in accordance with Section 4
of this Consent; or (iii) except as provided in the Agreement (but in any
event subject to the assignee or transferee entering into a consent and
agreement substantially similar to this Consent), sell, assign or otherwise dispose (by operation of
law or otherwise) of any part of its right, title or interest in the Agreement,
in each case without the prior written consent of Agent (such consent not to be
unreasonably withheld or delayed);


 


(d)           agrees not to amend, supplement or modify
the Agreement in any material respect (excluding routine or immaterial change
orders or amendments), without the prior written consent of Agent (such consent
not to be unreasonably withheld or delayed) unless Contracting Party receives
confirmation from Assignor that such amendment, supplement or modification is  expressly permitted under the Financing Agreement;
and


 


(e)           agrees to promptly deliver to Agent
duplicates or copies of all notices of or with respect to default, suspension
or termination delivered under or pursuant to the Agreement.


 


2.             Assignor’s Acknowledgement. 
Assignor acknowledges and agrees that Contracting Party is permitted to
perform its obligations under the Agreement upon Agent’s exercise of Assignor’s
rights in accordance with this Consent, and that Contracting Party shall 


 


4

















 


bear no liability to Assignor solely as a result of
performing its obligations under the Agreement upon such exercise by Agent.


 


3.             Subsequent Transferee. 
Contracting Party agrees that, if Agent shall notify Contracting Party
in writing that an “Event of Default” under the Financing Agreement has
occurred and is continuing and that Agent has elected to exercise its rights
and remedies pursuant to the Financing Agreement with respect to the
foreclosure (whether judicial or nonjudicial) or sale of the Assigned Interest
(or any portion thereof), then Agent or any other purchaser, successor,
assignee or designee of the Assigned Interest (as the case may be, in each
case, a “Subsequent Transferee”) shall be substituted for Assignor under
the Agreement and Contracting Party shall (a) recognize the Subsequent
Transferee as its counterparty under the Agreement and (b) continue to
perform its obligations under the Agreement in favor of the Subsequent
Transferee; provided, however, that such Subsequent Transferee: (i) has
elected in writing to assume all of Assignor’s rights and obligations  under the Agreement, (ii) has cured any then-existing payment defaults under
the Agreement, (iii) has provided credit support and collateral to the
extent and in the manner required under the Agreement, (iv) has acquired all of Assignor’s right, title and
interest in the Project and (v) is a Permitted Assignee.  “Permitted Assignee” shall mean a Person
having at least five (5) years experience in the operation and maintenance
of electrical generation facilities similar to the Project, which Person shall
be reasonably acceptable to Contracting Party. 
The Subsequent Transferee shall have the right to assign all of its
interest in the Agreement to any Person as permitted and under the terms set
forth in the Agreement.  “Person”
means any natural person, corporation, partnership, trust, joint venture,
limited liability company, firm, association, Governmental Authority or any
other entity whether acting in an individual, fiduciary or other capacity.


 


4.             Right to Cure. 
In the event of a default or breach by Assignor in the performance of
any of its obligations under the Agreement, or upon the occurrence or non-occurrence
of any event or condition under the Agreement which would immediately or with
the passage of any applicable grace period or the giving of notice, or both,
enable Contracting Party to terminate the Agreement (hereinafter, a “Default”),
Contracting Party shall not terminate the Agreement until it first gives
written notice of such Default to Agent (concurrently with the notice of such
Default to Assignor) and affords Agent (a) a period of thirty (30) days
from receipt of such notice to cure such Default if such Default is the failure
to pay amounts to Contracting Party which are due and payable under the
Agreement or (b) with respect to any other Default, a reasonable
opportunity, but no longer than  ninety (90)
days from receipt of such notice, to cure such non-payment Default (provided
that during such cure period Agent or Assignor continues to perform each of
Assignor’s other obligations under the Agreement).  Notwithstanding anything to the contrary
herein, if the Default is peculiar to Assignor and not curable by Agent, such
as the insolvency, bankruptcy, general assignment for the benefit of the Agent,
or appointment of a receiver, trustee, custodian or liquidator of Assignor or
its properties, then, notwithstanding any right that Contracting Party may have
to terminate the Agreement, Agent shall be entitled to assume the rights and
obligations of Assignor under the Agreement in accordance with Section 3
within the cure period provided in clause (b) above, and provided such
assumption has occurred within such period, Contracting Party shall not be
entitled to terminate the Agreement as a result of such Default.  If possession of the Project is necessary to
cure such Default, and Agent or its successor(s), assignee(s) and/or
designee(s) declares an Event of Default under the Financing Agreement and
commences foreclosure proceedings or any other proceedings necessary to take 


 


5

















 


possession of the Project, Agent or its successors(s),
assignee(s) and/or designee(s) will be allowed a reasonable period to
complete such proceedings, provided that, once commenced, Agent or its
successor(s), assignee(s) and/or designee(s) shall pursue such
proceedings with due dispatch.  After
taking possession of the Project, Agent or its successor(s), assignee(s) and/or
designee(s) shall commence curing such Default within fifteen (15) days
after having possession of the Project and thereafter diligently pursue such
cure to completion within ninety (90) days after obtaining possession of the
Project or such later date, if any, permitted under the terms of the Agreement,
as applicable, for the performance of a cure of a Default.  If Agent or its successor(s), assignee(s) and/or
designee(s) is prohibited by any court order or bankruptcy or insolvency
proceedings of Assignor from curing the Default or from commencing or
prosecuting such proceedings, the foregoing time periods shall be extended by
the period of such prohibition.


 


5.             Replacement Agreement. 
In the event that the Agreement is rejected or terminated as a result of
any bankruptcy or insolvency proceeding, or the Agreement is terminated for any
reason other than a Default which could have been cured by Agent as provided in
Section 4, Contracting Party shall, at the option of Agent
exercised within forty-five (45) days after such rejection or termination,
enter into a new agreement with Agent having terms that are the same in all
material respects to those in  the
Agreement (subject to any conforming changes necessitated by the substitution
of parties and other changes as the parties may mutually agree, the “Replacement
Agreement”), provided that the term under such Replacement Agreement shall
be no longer than the remaining balance of the term specified in the
Agreement.  Agent shall have the right to
assign all of its interest in the Replacement Agreement to any Person in
accordance with and subject to Section 3.  Upon such assignment, Agent (including its
agents and employees) shall be released from any further liability thereunder
to the extent of its interest under the Replacement Agreement.


 


6.             No Liability. 
Contracting Party acknowledges and agrees that Agent (and any
successor(s), assignee(s), designee(s) other representative of Agent)
shall not have any liability or obligation under the Agreement as a result of
exercising its rights under this Consent or the Financing Agreement, nor shall
Agent (nor any successor(s), assignee(s), designee(s) or other
representative of Agent), be obligated or required to perform any of Assignor’s
obligations under the Agreement or to take any action to collect or enforce any
claim for payment assigned under any document executed in connection with the
Financing Agreement, except as provided in Section 1(b) or
during any period in which such Person has elected to become a Subsequent
Transferee pursuant to Section 3 or counterparty to a Replacement
Agreement pursuant to Section 5, in which case such Subsequent
Transferee shall assume all of Assignor’s rights and obligations under the
Agreement in accordance with Section 3, or, if such Person is a
counterparty to a Replacement Agreement, shall cure any Defaults for failure to
pay amounts owed under the Agreement but shall not otherwise be required to
perform or be subject to any defenses or offsets by reason of any of Assignor’s
other obligations under the Agreement that were unperformed at such time unless
expressly agreed to in writing by such counterparty.    Without limiting the
generality of the foregoing, under no circumstance shall Agent or its
successor(s), assignee(s) or designee(s), be liable to Contracting Party
for any action taken by it or on its behalf in good faith during the cure
period provided for in Section 4, notwithstanding such
action may prove to be in whole or in part, inadequate or invalid; provided
however the parties hereto acknowledge and agree that to the extent any such
action increases the Losses (as defined in the Agreement) of Contracting Party
resulting from a default or breach of the 


 


6

















 


Agreement by Assignor, then
such Losses shall be taken into account in determining any payments due under
the Agreement as a result of such default or breach.


 


7.             Payment of Monies. 
Commencing when Agent notifies Contracting Party in writing that Agent
has established an account for the deposit of funds, and has directed
Contracting Party to make all payments required to be made by it under the
Agreement to such account, and so long as the Financing Agreement remains in
effect, Contracting Party hereby agrees to make all payments required to be
made by it under the Agreement in U.S. dollars, or, if Contracting Party has
been notified that an “Event of Default” under the Financing Agreement has
occurred and is continuing, to such other Person and/or at such other address
or account as the Agent may from time to time specify in writing to Contracting
Party and all payments made by Contracting Party shall be accompanied by a
statement stating that such payments are made under the Agreement.  Assignor hereby instructs Contracting Party,
and Contracting Party accepts such instructions, to make all payments due and
payable to Assignor under the Agreement as set forth in the immediately
preceding sentence.


 


8.             Representations and Warranties.  Contracting
Party hereby represents and warrants to Assignor and Agent as of the date of
this Consent that:


 


(a)           Contracting Party is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
formation/incorporation and has all requisite power and authority to execute,
deliver and perform its obligations under the Agreement and this Consent;


 


(b)           The execution, delivery and performance
by Contracting Party of the Agreement and this Consent have been duly
authorized by all necessary corporate action, and do not and will not require
any further consents or approvals which have not been obtained, or violate any
provision of any law, regulation, order, judgment, injunction or similar
matters or breach in any material respect any agreement presently in effect
with respect to or binding on Contracting Party;


 


(c)           All government approvals necessary for
the execution, delivery and performance by Contracting Party of its obligations
under the Agreement have been obtained and are in full force and effect, except
those governmental approvals routinely obtained during the ordinary course of
business during the execution of the Project;


 


(d)           This Consent and the Agreement are legal,
valid and binding obligations of Contracting Party, enforceable against
Contracting Party in accordance with their respective terms except as
enforceability may be limited by bankruptcy, reorganization, insolvency,
moratorium and other laws affecting creditors’ rights in general and except to
the extent that the availability of equitable remedies is subject to the
discretion of the court before which any proceeding therefor may be brought;


 


(e)           Assuming the due authorization, execution
and delivery by, and the binding effect on, Assignor, the Agreement is in full
force and effect and has not been amended, supplemented or modified since the
date of execution of the Agreement;


 


(f)            To the best of Contracting Party’s
knowledge, Assignor has fulfilled all of its obligations under the Agreement,
and there are no breaches, Defaults or unsatisfied conditions 


 


7

















 


presently existing (or which would exist after the
passage of time and/or giving of notice) that would allow Contracting Party to
terminate the Agreement;


 


(g)           There are no disputes or legal
proceedings between Contracting Party and Assignor; and


 


(h)           The
representations and warranties of Contracting Party contained in the Agreement
are true and correct on the date hereof.


 


9.             Notices.  Any
communications between the parties hereto or notices provided herein to be
given, may be given to the following addresses:


 


	
  If to Contracting
  Party:

  	
  Constellation Energy
  Commodities Group, Inc.

  
	
   

  	
  111 Market Place, Suite
  500

  
	
   

  	
  Baltimore, MD 21202

  
	
   

  	
  Attn: Contract
  Administration

  
	
   

  	
  Telephone: (410)
  470-3738

  
	
   

  	
  Facsimile: (443)
  213-3556

  
	
   

  	
   

  
	
   

  	
  with a copy to:

  
	
   

  	
   

  
	
   

  	
  Constellation Energy
  Commodities Group, Inc.

  
	
   

  	
  111 Market Place, Suite
  500

  
	
   

  	
  Baltimore, MD 21202

  
	
   

  	
  Attention: General
  Counsel

  
	
   

  	
  Facsimile No. : (443-)
  213-3556

  
	
   

  	
   

  
	
  If to Agent:

  	
  BNP PARIBAS

  
	
   

  	
  787 Seventh Avenue

  
	
   

  	
  New York, NY 10019

  
	
   

  	
  Attention:

  	
  Project Finance &
  Utilities

  
	
   

  	
  Telephone:

  	
  (212) 841-2000

  
	
   

  	
  Facsimile:

  	
  (212) 841-2146

  
	
   

  	
   

  
	
  If to Assignor:

  	
  Stetson Holdings, LLC

  
	
   

  	
  c/o First Wind Energy,
  LLC

  
	
   

  	
  179 Lincoln Street,
  Suite 500

  
	
   

  	
  Boston, MA 02111

  
	
   

  	
  Attention: President

  
	
   

  	
  Facsimile: (617)
  960-2889

  
	
   

  	
   

  
	
   

  	
  with a copy to:

  
	
   

  	
   

  
	
   

  	
  First Wind Energy, LLC

  
	
   

  	
  179 Lincoln Street,
  Suite 500

  
	
   

  	
  Boston, MA 02111

  
	
   

  	
  Attention: General
  Counsel

  



 


8

















 


	
   

  	
  Facsimile: (617)
  960-2889

  



 


All notices or other communications required or permitted to be given
hereunder shall be in writing and shall be considered as properly given (a) if
delivered in person, (b) if sent by overnight delivery service, (c) in
the event overnight delivery services are not readily available, if mailed by
first class mail, postage prepaid, registered or certified with return receipt
requested or (d) if sent by prepaid telegram, or by telecopy, confirmed by
telephone.  Notice so given shall be
effective upon receipt by the addressee, except that communication or notice so
transmitted by telecopy or other direct written electronic means shall be
deemed to have been validly and effectively given on the day (if a business day
and, if not, on the next following business day) on which it is transmitted if
transmitted before 4 p.m., recipient’s time, and if transmitted after that
time, on the next following business day; provided, however, that if any notice
is tendered to an addressee and the delivery thereof is refused by such
addressee, such notice shall be effective upon such tender.  Any party shall have the right to change its
address for notice hereunder by giving of thirty (30) days’ written notice to
the other parties in the manner set forth herein above.


 


10.           Binding Effect;
Amendments; Confirmation.  This Consent shall be binding upon and
benefit the successors and assigns of Contracting Party, Assignor, Agent and
their respective successors, transferees and permitted assigns (including without
limitation, any entity that refinances all or any portion of Assignor’s
obligations under the Financing Agreement). 
No termination, amendment, variation or waiver of any provisions of this
Consent shall be effective unless in writing and signed by Contracting Party,
Agent and Assignor; provided that all rights and obligations of Agent hereunder
shall terminate upon payment in full of the obligations of Assignor under the
Financing Agreement without the requirement for any such writing.


 


11.           Governing Law. 
This Consent shall be governed by the laws of the State of New York
without reference to conflicts of laws rules thereof (other than Section 5-1401
of the New York General Obligations Law). 
CONTRACTING PARTY, ASSIGNOR, AND AGENT HEREBY
SUBMIT 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 CONSENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.  EACH OF CONTRACTING PARTY, ASSIGNOR AND AGENT
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
IT MAY 


 


9

















 


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.


 


EACH OF CONTRACTING PARTY, ASSIGNOR AND AGENT HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS CONSENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.


 


12.           Severability. 
Any provision of this Consent 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.


 


13.           Counterparts. 
This Consent may be executed in one or more duplicate counterparts, and
when executed and delivered by all the parties listed below, shall constitute a
single binding agreement.


 


14.           Interpretation. 
All references in this Consent to any document, instrument or agreement (a) shall
include all contract variations, change orders, exhibits, schedules and other
attachments thereto, and (b) shall include all documents, instruments or
agreements issued or executed in replacement or as predecessor thereto, as
amended, modified and supplemented from time to time and in effect at any given
time.


 


[SIGNATURES FOLLOW]


 


10

















 


IN WITNESS WHEREOF,
the undersigned, by its officer thereunto duly authorized, has duly executed
this Consent as of the date first above written.


 


 


	
   

  	
  CONSTELLATION
  ENERGY COMMODITIES GROUP, INC.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 














 


	
  Accepted
  and agreed:

  	
   

  
	
   

  	
   

  
	
  BNP
  PARIBAS,

  	
   

  
	
  as
  Agent

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 

















 


	
  Accepted
  and agreed:

  	
   

  
	
   

  	
   

  
	
  STETSON
  HOLDINGS, LLC,

  	
   

  
	
  a
  Delaware limited liability company

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
  Evelyn Lim

  	
   

  
	
  Title:

  	
  Secretary

  	
   

  



 


Exhibit F-3


 


1

















 


EXHIBIT
F-4


to
Financing Agreement


 


FORM OF
CONSENT OF ENERGY HEDGE GUARANTOR


 


(See Tab      )


 

















 


CONSENT
OF CONTRACTING PARTY


 


This CONSENT AND
AGREEMENT (as amended, modified and supplemented from time to time, this “Consent”),
dated as of December 22, 2009, is executed by Constellation Energy Group, Inc., a Maryland corporation (“Contracting
Party”), Stetson Holdings, LLC, a Delaware limited liability company (“Assignor”),
and BNP Paribas (“Agent”).


 


RECITALS


 


WHEREAS, pursuant to the
Financing Agreement (as the same may be amended, amended and restated,
supplemented or otherwise modified from time to time, the “Financing
Agreement”), dated as of December 22, 2009, by and among Assignor,
as Borrower, the financial institutions from time to time party thereto (the “Lenders”),
BNP Paribas (“BNPP”) as Joint Lead Arranger, Joint Bookrunner,
Administrative Agent for the Lenders, Security Agent and Issuing Bank, and HSH
Nordbank AG, New York Branch (“HSHN”), as Joint Lead Arranger, Joint
Bookrunner and Co-Syndication Agent, the Lenders have agreed to extend
financing to Assignor with respect to the operation and maintenance of a wind
generating facility with a nameplate capacity of up to 57 megawatts and a wind
generating facility with a nameplate capacity of up to 25.5 megawatts located
in Washington and Penobscot Counties, Maine (collectively, the “Project”).


 


WHEREAS, Constellation Energy Commodities Group, Inc.,
an affiliate of Contracting Party, has entered into that certain (i) ISDA
International Swaps Dealers Association, Inc. Master Agreement, dated as
of June 11, 2008, with Contracting Party (“Master Agreement”), (ii) Schedule
to the Master Agreement, dated as of June 11, 2008, with Assignor (“Schedule”),
(iii) ISDA International Swaps and Derivatives Association, Inc.
Credit Support Annex to the Schedule to the Master Agreement, dated as of June 11,
2008, with Assignor (“Credit Support Annex”) and (iv) Confirmation
to the Master Agreement, dated as of June 11, 2008, with Assignor (“Confirmation”;
together with the Master Agreement, Schedule, and Credit Support Annex, each as
amended in accordance with the terms hereof or as may be further amended,
amended and restated, supplemented or otherwise modified from time to time in
accordance with the terms thereof, the “Agreement”).


 


WHEREAS, Contracting Party has entered into that
certain Guaranty with respect to the Agreement, dated as of February 9,
2009 for the benefit of Assignor (as amended in accordance with the terms
hereof or as may be further amended, modified and supplemented from time to
time in accordance with the terms hereof, the “Guaranty”).


 


WHEREAS, as a condition of the financing under the
Financing Agreement, Assignor is required to grant to Agent a first-priority
security interest in all of Assignor’s right, title and interest in, to and
under the Guaranty (the “Assigned Interest”) as collateral security for
satisfaction of all obligations of Assignor to Agent under a Pledge and
Security Agreement and the Loan Documents.


 


3

















 


WHEREAS, it is a
requirement under the Financing Agreement that Contracting Party and the other
parties hereto shall have executed this Consent.


 


NOW THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:


 


1.             Consent and Agreement. 
Contracting Party acknowledges and consents to the assignment of the
Assigned Interest as collateral security to Agent.


 


2.             Representations and Warranties. 
Contracting Party hereby represents and warrants to Assignor and Agent
as of the date of this Consent that:


 


(a)           Contracting Party is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
formation/incorporation and has all requisite power and authority to execute,
deliver and perform its obligations under the Guaranty and this Consent; and


 


(b)           The execution, delivery and performance
by Contracting Party of the Guaranty and this Consent have been duly authorized
by all necessary corporate action, and do not and will not require any further
consents or approvals which have not been obtained, or violate any provision of
any law, regulation, order, judgment, injunction or similar matters or breach
any agreement presently in effect with respect to or binding on Contracting
Party.


 


3.             Notification. 
The notification requirements pursuant to Section 11 of the
Guaranty shall be deemed satisfied by this Consent.


 


4.             Notices.  Any
communications between the parties hereto or notices provided herein to be
given, may be given to the following addresses:


 


4

















 


	
  If to Contracting
  Party:

  	
  Constellation Energy
  Group, Inc.

  
	
   

  	
  100 Constellation Way,
  Suite 1600P

  
	
   

  	
  Baltimore, MD 21202

  
	
   

  	
  Attention: Treasurer

  
	
   

  	
  Facsimile: 410-470-5680

  
	
   

  	
   

  
	
   

  	
  with a copy to:

  
	
   

  	
   

  
	
   

  	
  Constellation Energy Commodities
  Group, Inc.

  
	
   

  	
  111 Market Place, Suite
  500

  
	
   

  	
  Baltimore, MD 21202

  
	
   

  	
  Attention: Credit
  Department

  
	
   

  	
  Telephone: 410-470-2389

  
	
   

  	
  Facsimile: 410-468-3828

  
	
   

  	
   

  
	
  If to Agent:

  	
  BNP PARIBAS

  
	
   

  	
  787 Seventh Avenue

  
	
   

  	
  New York, NY 10019

  
	
   

  	
  Attention:

  	
  Project Finance &
  Utilities

  
	
   

  	
  Telephone:

  	
  (212) 841-2000

  
	
   

  	
  Facsimile:

  	
  (212) 841-2146

  
	
   

  	
   

  
	
  If to Assignor:

  	
  Stetson Holdings, LLC

  
	
   

  	
  c/o First Wind Energy,
  LLC

  
	
   

  	
  179 Lincoln Street,
  Suite 500

  
	
   

  	
  Boston, MA 02111

  
	
   

  	
  Attention: General
  Counsel

  
	
   

  	
  Facsimile: 617-960-2889

  



 


All notices or
other communications required or permitted to be given hereunder shall be in
writing and shall be considered as properly given (a) if delivered in
person, (b) if sent by overnight delivery service, (c) in the event
overnight delivery services are not readily available, if mailed by first class
mail, postage prepaid, registered or certified with return receipt requested or
(d) if sent by prepaid telegram, or by telecopy, confirmed by
telephone.  Notice so given shall be
effective upon receipt by the addressee, except that communication or notice so
transmitted by telecopy or other direct written electronic means shall be
deemed to have been validly and effectively given on the day (if a business day
and, if not, on the next following business day) on which it is transmitted if
transmitted before 4 p.m., recipient’s time, and if transmitted after that



 


5

















 


time, on the next
following business day; provided, however, that if any notice is tendered to an
addressee and the delivery thereof is refused by such addressee, such notice
shall be effective upon such tender.  Any
party shall have the right to change its address for notice hereunder by giving
of thirty (30) days’ written notice to the other parties in the manner set
forth herein above.


 


5.             Binding Effect; Amendments; Confirmation. 
No termination, amendment, variation or waiver of any provisions of this
Consent shall be effective unless in writing and signed by Contracting Party,
Agent and Assignor; provided that all rights and obligations of Agent hereunder
shall terminate upon payment in full of the obligations of Assignor under the
Financing Agreement without the requirement for any such writing.


 


6.             Governing Law. 
This Consent shall be governed by the laws of the State of New York
without reference to conflicts of laws rules thereof (other than Section 5-1401
of the New York General Obligations Law). 
CONTRACTING PARTY, ASSIGNOR, AND AGENT HEREBY
SUBMIT 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 CONSENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.  EACH OF CONTRACTING PARTY, ASSIGNOR AND AGENT
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY 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.


 


EACH OF CONTRACTING PARTY, ASSIGNOR AND AGENT
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS CONSENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.


 


7.             Severability. 
Any provision of this Consent 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.             Counterparts. 
This Consent may be executed in one or more duplicate counterparts, and
when executed and delivered by all the parties listed below, shall constitute a
single binding agreement.


 


6

















 


9.             Interpretation. 
All references in this Consent to any document, instrument or agreement (a) shall
include all contract variations, change orders, exhibits, schedules and other
attachments thereto, and (b) shall include all documents, instruments or
agreements issued or executed in replacement or as predecessor thereto, as
amended, modified and supplemented from time to time and in effect at any given
time.


 


[SIGNATURES FOLLOW]


 


7

















 


IN WITNESS
WHEREOF, the undersigned, by its officer thereunto duly authorized, has duly
executed this Consent as of the date first above written.


 


 


	
   

  	
  CONSTELLATION
  ENERGY GROUP, INC.,

  
	
   

  	
  a Maryland corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 

















 


	
  Accepted
  and agreed:

  	
   

  
	
   

  	
   

  
	
  BNP
  PARIBAS,

  	
   

  
	
  as
  Agent

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 














 


	
  Accepted
  and agreed:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Stetson Holdings, LLC,

  	
   

  	
   

  
	
  a Delaware limited liability company 

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:  Evelyn Lim

  	
   

  	
   

  
	
   

  	
  Title:    Secretary

  	
   

  	
   

  



 


Exhibit F-4


 


1

















 


EXHIBIT
F-6


to
Financing Agreement


 


FORM OF
CONSENT OF LANDOWNER ESTOPPEL


 


(See Tab      )


 


Exhibit F-6


 


1

















 


ESTOPPEL
CERTIFICATE


 


To:                              BNP PARIBAS, as Joint Lead Arranger,
Joint Bookrunner, Administrative Agent for the Lenders, Security Agent for the
Secured Parties and as Issuing Bank; and HSH NORDBANK AG, New York Branch as a
Joint Lead Arranger, Joint Bookrunner, and Co-syndication Agent; and such other
party or parties that may provide financing for the development of the project
(the “Project”) described in the below defined Land Agreement (each such party
a “Lender”);


 


Evergreen Wind Power V,
LLC (“Project Company);


 


Stewart Title Insurance
Company (the “Title Company”)


 


RE:                              Land Lease Agreement dated as of October 12,
2006, between Lakeville Shores, Inc., as Landowner, and Project Company as
amended by that certain First Amendment to Land Lease Agreement dated as of March 30,
2007 and that certain Second Amendment to Land Lease Agreement dated as of August 17,
2007 (collectively, the “Land Agreement”). 
A Memorandum of Lease being filed in the Washington County Registry of
Deeds on October 17, 2008 in Book 3462, Page 292.


 


Each capitalized term
used and not otherwise defined herein shall have the meaning assigned to such
term Land Agreement.


 


Landowner hereby makes
the following consent, and certifies and represents to each of the, Project
Company, Title Company and any Lender, as to the following matters, with the
knowledge that this Estoppel (the “Estoppel”) will be relied upon by the
Project Company with respect to the development of the Project, by the Title
Company in connection with in connection with issuing title insurance
concerning the Land Agreement, and by Lender in making loans to the Project
Company.


 


1.                                       Complete
Agreement.  Attached to this Estoppel as Exhibit A
is a true, complete and correct copy of the Land Agreement and constitutes the
complete agreement between Landowner and Project Company with respect to the
Land Agreement and the property that is subject to the Land Agreement (the “Property”).


 


2.                                       Valid Title. 
Landowner holds fee title to the Property, has all right, title and
interest necessary to grant the Land Agreement and has not sold, assigned or
otherwise encumbered its interest in the Land Agreement.  There are no adverse claims to title to the
Property that would impair Project Company from exercising its rights under the
Land Agreement.  The Land Agreement does
not violate any agreements to which Landowner is a party.


 


3.                                       No Defaults. 
All payments or other charges that are due by Project Company to
Landowner under the Land Agreement have been paid as of the date of this
Estoppel.  Neither Landowner nor Project
Company is in default of any of the terms and provisions 


 

















 


of the Land
Agreement nor is there now any fact or condition which, with notice or lapse of
time or both, will become a default by Landowner or Project Company under the
Land Agreement.


 


4.                                       No Claims. 
As of the date of this Estoppel, Landowner has no defenses, offsets,
credits or counterclaims to the enforcement of the Land Agreement.  Landowner has not received any notice from or
on behalf of Project Company of any defenses, offsets, credits or counterclaims
to the enforcement of the Land Agreement.


 


5.                                       No Actions. 
Landowner is not insolvent and has no expectations to file for
bankruptcy or reorganization.  Landowner
has received no notice nor has any knowledge that:


 


(a)                                  Landowner or Project Company is in
violation of any law or regulation applicable to the Property.


 


(b)                                 Any pending eminent domain proceedings or
other government actions or any judicial actions of any kind relating to the
Land Agreement or the Property exist.


 


(c)                                  Any pending or threatened litigation
against Landowner exists, and there are no actions, whether voluntary or otherwise,
pending against Landowner under any bankruptcy, reorganization, arrangement,
moratorium or similar laws.


 


6.                                       Acknowledgment of Lender
as Leasehold Mortgagee. Landowner expressly acknowledges and affirms the
rights of Lender as a Leasehold Mortgagee under Section 19 of the Land
Agreement.  Landowner will provide all
notices of default to Lender at the address


 


BNP Paribas


The Equitable Tower


787 Seventh Avenue


New York, NY 10019


Attention:       General
Counsel


 


The individual executing
this Estoppel on behalf of Landowner represents and warrants that she/he has
the power and the authority to execute this Estoppel on behalf of Landowner.


 


IN WITNESS WHEREOF, the
undersigned has executed this Estoppel as of the [      ] day of [                               ], 2009.


 

















 


	
   

  	
  LANDOWNER:

  
	
   

  	
   

  
	
   

  	
  LAKEVILLE SHORES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 

















 


Exhibit A


to Land Agreement
Estoppel


 


Land Agreement


 


[To be attached.]


 

















 


EXHIBIT
F-7


to
Financing Agreement


 


FORM OF
CONSENT OF CONTRACTING PARTY


 


(See Tab      )


 

















 


CONSENT AND AGREEMENT


 


This CONSENT AND AGREEMENT,
dated as of December 22, 2009 (this “Consent”), is entered
into by and among FIRST WIND O&M, LLC, a limited liability company organized and existing under the laws of the state
of Delaware (together with its permitted successors and assigns, “Contracting
Party”), STETSON WIND II, LLC, a Delaware limited liability company (“Assignor”),
and BNP PARIBAS, as Security Agent (“Agent”) for the Secured Parties (as
defined in the Financing Agreement).


 


RECITALS


 


A.                                    In
order to finance the operation of a 57 MW wind energy project and a 25.5
MW wind energy project located in Washington County, Maine (collectively, or
individually, as the case may be, the “Project”), Stetson Holdings, LLC has
entered into that certain Financing Agreement dated as of December 22,
2009 with BNP Paribas, as Joint Lead Arranger, Joint Bookrunner, Administrative
Agent, Issuing Bank and Security Agent for the Secured Parties, and HSH
Nordbank AG, New York Branch, as Joint Lead Arranger, Joint Bookrunner, and
Co-Syndication Agent and certain lenders (“Lenders”) party thereto (the “Financing
Agreement”).  In connection with the
Financing Agreement, Assignor, Stetson Holdings, LLC and Agent have entered
into a Guaranty and Security Agreement (the “Security Agreement”), under
which Assignor has agreed to assign its interest under the Assigned Agreement
(as defined below) to Agent as collateral for certain secured obligations under
the Financing Agreement.


 


B.                                    Contracting
Party and Assignor have entered into that certain Project O&M Agreement,
dated as of December 22, 2009 (as amended, amended and restated,
supplemented or otherwise modified from time to time in accordance with the
terms thereof and hereof, the “Assigned Agreement”).


 


AGREEMENT


 


NOW, THEREFORE, in consideration of the
foregoing, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, and intending to be legally bound,
the parties hereto hereby agree, notwithstanding anything in the Assigned
Agreement to the contrary, as follows:


 


II.                                     ASSIGNMENT AND AGREEMENT


 


A.                                    Consent
to Assignment.


 


Contracting Party consents to the collateral
assignment under the Security Agreement of all of Assignor’s right, title and
interest in, to and under the Assigned Agreement (collectively, the “Assigned
Interest”).  Contracting Party
acknowledges the right of Agent, in the exercise of Agent’s rights and remedies
pursuant to the Security Agreement, to make all demands, give all notices, take
all actions and exercise all rights of Assignor under the Assigned Agreement.


 

















 


B.                                    Subsequent
Owner.


 


1.                                       Contracting Party agrees that, if Agent
notifies Contracting Party in writing that, pursuant to the Security Agreement, it has assigned, foreclosed or
sold the Assigned Interests, then (i) Agent or its successor, assignee
and/or designee (a “Subsequent Owner”) shall be substituted for Assignor
under the Assigned Agreement and (ii) Contracting Party shall (1) recognize
Agent or the Subsequent Owner, as the case may be, as its counterparty under
the Assigned Agreement and (2) continue to perform its obligations under
the Assigned Agreement in favor of Agent or the Subsequent Owner, as the case
may be; provided that Agent or such Subsequent Owner, as the case may
be, has assumed in writing all of Assignor’s rights and obligations (including,
without limitation, the obligation to cure any then existing payment and
performance defaults, but excluding any obligation to cure any then existing
performance defaults which by their nature are incapable of being cured) under
the Assigned Agreement.


 


2.                                       Without limiting anything herein, the
warranties provided by Contracting Party under the Assigned Agreement shall
continue in full force and effect (until the expiration of the applicable
warranty periods set forth in the Assigned Agreement) in the event that Agent
or a Subsequent Owner succeeds to Assignor’s right, title and interest in the Assigned Agreement.


 


C.                                    Right
to Cure.


 


If Assignor defaults in the performance of
any of its obligations under the Assigned Agreement, or upon the occurrence or
non-occurrence of any event or condition under the Assigned Agreement which
would immediately or with the passage of any applicable grace period or the
giving of notice, or both, enable Contracting Party to terminate or suspend its
performance under the Assigned Agreement (each hereinafter a “Default”),
Contracting Party shall not terminate or suspend its performance under the
Assigned Agreement until it first gives written notice of such Default to Agent
and affords Agent a period of at least 30 days (this 30 day period, for the
avoidance of doubt, being in addition to any cure period granted to Assignor to
cure such Default under the Assigned Agreement) or if such Default is a
nonmonetary default, a period of 60 days (this 60 day period, for the avoidance
of doubt, being in addition to any cure period granted to Assignor to cure such
Default under the Assigned Agreement) from receipt of such notice to cure such Default.


 


D.                                    Delivery
of Notices.


 


Contracting Party shall deliver notice to
Agent when there is a Default by Assignor under the Assigned Agreement.


 


E.                                      Termination.


 


In the event that
the Assigned Agreement is terminated by rejection, or otherwise, during a case
in which Assignor is the debtor under Title 11, United States Code, or other
similar federal or state statute, then,
in the event
that Agent or its nominee or designee has commenced foreclosure proceedings on
the assets of Assignor, Contracting
Party shall, at the option of Agent and so long as all existing payment
defaults by Assignor under the Assigned Agreement are cured by Agent or its
nominee or designee, enter into a new agreement with Agent or (at the 


 

















 


direction of Agent) its
nominee or designee having terms substantially identical to the Assigned
Agreement, pursuant to which Agent or its nominee or designee shall have all of
the rights and obligations of Assignor under the Assigned Agreement.


 


III.                                 REPRESENTATIONS AND
WARRANTIES


 


Each of Contracting Party, Assignor and Agent
hereby represents and warrants as of the date hereof that it is duly organized,
validly existing, and in good standing under the laws of the commonwealth or
state of its organization and is qualified and in good standing in each other
jurisdiction where the failure to so qualify would have a material adverse
effect upon its business or financial condition, and it has all requisite power
and authority to conduct its business, to own its properties and to execute,
deliver and perform its obligations under this Consent.


 


IV.                                MISCELLANEOUS


 


A.                                    Notices.


 


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


 


	
  If
  to Contracting Party:

  	
   

  	
  If to Assignor:

  
	
   

  	
   

  	
   

  
	
  First Wind O&M, LLC

  	
   

  	
  Stetson Wind II, LLC

  
	
   

  	
   

  	
   

  
	
  c/o First Wind Energy,
  LLC

  	
   

  	
  c/o First Wind Energy,
  LLC

  
	
   

  	
   

  	
   

  
	
  179 Lincoln Street,
  Suite 500

  	
   

  	
  179 Lincoln Street,
  Suite 500

  
	
   

  	
   

  	
   

  
	
  Boston, Massachusetts
  02111

  	
   

  	
  Boston, Massachusetts
  02111

  
	
   

  	
   

  	
   

  
	
  Facsimile: (617) 960-2889

  	
   

  	
  Facsimile: (617)
  960-2889

  
	
   

  	
   

  	
   

  
	
  Attention: Secretary

  	
   

  	
  Attention: Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  If to Agent:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  BNP Paribas

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  787 Seventh Avenue

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  New York, New York
  10019

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Facsimile: (212)
  841-2146

  	
   

  	
   

  



 














 


Attention:  Project Finance & Utilities


 


All notices or other communications required
or permitted to be given hereunder shall be in writing and shall be considered
as properly given (a) if delivered in person, (b) if sent by
overnight delivery service (including Federal Express, UPS, DHL and other
similar overnight delivery services), (c) in the event overnight delivery
services are not readily available, if mailed by first class United States
Mail, postage prepaid, registered or certified with return receipt requested, (d) if
sent by prepaid telegram or by facsimile or (e) if sent by other
electronic means (including electronic mail) confirmed by facsimile or
telephone.  Any party may change its
address for notice hereunder by giving of 30 days’ notice to the other parties
in the manner set forth herein.


 


B.                                    Counterparts.


 


This Consent 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.


 


C.                                    Amendment,
Waiver.


 


Neither this Consent nor any of the terms
hereof may be terminated, amended, supplemented, waived or modified except by
an instrument in writing signed by Contracting Party and Agent.


 


D.                                    Successors
and Assigns.


 


This Consent shall bind and benefit
Contracting Party, Agent, and their respective successors and assigns.


 


E.                                      Further
Assurances.


 


Contracting Party will,
upon the reasonable written request of Collateral Agent, execute and deliver
such further documents and do
such other acts and things necessary to effectuate the purposes of this
Consent.


 


F.                                      Governing
Law.


 


This Consent shall be governed by the laws of
the State of New York without reference to conflicts of laws rules thereof
(other than Section 5-1401 of the New York General Obligations Law).


 


[signatures on the following pages]


 

















 


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


 


	
   

  	
  FIRST WIND O&M, LLC, 

  
	
   

  	
  a Delaware limited
  liability company, as Contracting Party

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  Elizabeth Weir

  
	
   

  	
  Title:

  	
  Assistant
  Secretary

  



 

















 


	
   

  	
  STETSON WIND II, LLC, 

  
	
   

  	
  a Delaware limited
  liability company, as Assignor

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  Elizabeth Weir

  
	
   

  	
  Title:

  	
  Assistant
  Secretary

  



 

















 


	
  Accepted
  and Agreed to

  	
   

  
	
   

  	
   

  
	
  BNP
  PARIBAS, 

  	
   

  
	
  as
  Agent

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  



 


Exhibit F-7


 


1

















 


EXHIBIT
F-8


to
Financing Agreement


 


FORM OF
CONSENT OF TURBINE SUPPLIER AND TURBINE OPERATOR


 


(See Tab      )


 

















 


CONSENT AND AGREEMENT

GENERAL ELECTRIC COMPANY


 










 


This CONSENT AND AGREEMENT (as amended,
modified or supplemented from time to time, this “Consent”), dated as of
December 22, 2009, is executed by GENERAL ELECTRIC COMPANY,
a New York corporation (“GE”), EVERGREEN WIND POWER V,
LLC, a Delaware limited liability company (“EWP” or the “Assignor”),
and BNP PARIBAS, as Security Agent
(“Security Agent”).


 


RECITALS


 


A.                                   Stetson Holdings, LLC (“Borrower”) has
entered into that certain Financing Agreement, dated as of the date hereof (as
amended, amended and restated, supplemented or otherwise modified from time to
time, the “Financing Agreement”) with the financial institutions from time to
time party thereto as lenders, BNP Paribas (“BNPP”) as Joint Lead Arranger,
Joint Bookrunner, Administrative Agent for the Lenders, Security Agent and
Issuing Bank, and HSH Nordbank AG, New York Branch (“HSHN”), as Joint Lead
Arranger, Joint Bookrunner, and Co-Syndication Agent;


 


B.                                     EWP, as assignee of First Wind
Acquisition, LLC (f/k/a UPC Wind Acquisition, LLC) has entered into that
certain Contract for the Sale of Power Generation Equipment and Related
Services, dated as of June 4, 2007, as amended by Scope Change Order Form 01,
dated as of August 14, 2007, as further amended by Scope Change Order Form 02,
dated as of September 7, 2007, as further amended by that certain “In/Out”
letter agreement, dated as of May 28, 2008, as further amended by and as
further amended by Change Order No. A, dated as of July 3, 2008, as further
amended by Stetson External Change Order Proposal No. 03, dated as of June 10,
2008, and as further amended by Stetson External Change Order Proposal No. 04,
dated as of July 22, 2008, as amended by that External Change Order No. 4,
Revision No. 1, dated as of the 8th day of August, 2008, as amended by External
Change Order No. 5, dated as of July 14, 2009 (as amended, modified or
supplemented from time to time, the “Assigned Agreement”) with GE for the
purchase of thirty-eight (38) wind generation turbines and other ancillary
equipment and related services;


 


C.                                     EWP has entered into that certain
Guaranty and Security Agreement, dated as of the date hereof (as amended,
amended and restated, supplemented or otherwise modified from time to time, the
“Security Agreement “) with BNP Paribas as Security Agent;


 


D.                                    As collateral security for all
obligations of Assignor to Security Agent under the Security Agreement and
related documents, Assignor has granted to Security Agent a first-priority
security interest in all of its right, title and interest in, to and under the
Assigned Agreement (the “Assigned Interest”) pursuant to the Security
Agreement; and


 


3

















 


E.                                      It is a requirement under the Financing
Agreement that GE and the other parties hereto shall have executed this
Consent.


 


AGREEMENT


 


NOW THEREFORE, the parties hereto hereby
agree as follows:


 


1.                                       Consent and Agreement. 
GE:


 


(a)                                  consents to the assignment as collateral
security to Security Agent, of the Assigned Interest;


 


(b)                                 acknowledges the right (but not the
obligation) of Security Agent in the exercise of its rights and remedies under
the Security Agreement to, upon notice to GE that an Event of Default has
occurred and continuing under the Financing Agreement, make all demands, give
all notices, take all actions and exercise all rights of Assignor under the
Assigned Agreement and agrees to accept any such exercise; provided, however,
that, insofar as Security Agent exercises any of its rights under the Assigned
Agreement or makes any claims with respect to payments or other obligations
under the Assigned Agreement, the terms and conditions of the Assigned
Agreement applicable to such exercise of rights or claims shall apply to
Security Agent to the same extent as to Assignor; provided, further,
that Security Agent or its designee, as the case may be, assumes in writing all
of Assignor’s obligations under the Assigned Agreement, as applicable, and
notifies GE of such assumption;


 


(c)                                  agrees not to (i) cancel or
terminate the Assigned Agreement or suspend performance of its services thereunder,
except as provided in the Assigned Agreement or by operation of law and, in any
event, except as in accordance with Section (e); (ii) consent to or
accept any cancellation or termination of any of the Assigned Agreements by
Assignor without the prior written consent of Security Agent; or (iii) sell,
assign or otherwise dispose (by operation of law or otherwise) of any part of
its right, title or interest in the Assigned Agreement (other than the right to
receive payment thereunder), in each case without the prior written consent of
Security Agent (such consent not to be unreasonably withheld);


 


(d)                                 agrees to promptly deliver to Security
Agent duplicates or copies of all notices of or with respect to default,
suspension or termination delivered under or pursuant to the Assigned
Agreement.


 


2.                                       Assignor’s Acknowledgement. 
Assignor acknowledges and agrees that GE is authorized to perform its
obligations under the Assigned Agreement pursuant to Security Agent’s exercise
of Assignor’s rights in accordance with this Consent, and that GE shall bear no
liability to Assignor in connection therewith.


 


3.                                       Subsequent Transferee.


 


(a)                                  GE agrees that, if Security Agent shall
notify GE in writing that an Event of Default under the Financing Agreement has
occurred and is continuing and that Security Agent has elected to exercise its
rights and remedies pursuant to the Security Agreement with respect to the
foreclosure (whether judicial or nonjudicial) or sale of the Assigned Interest
(or 


 


4

















 


any portion thereof), then Security Agent or any other
purchaser, successor, assignee or designee of the Assigned Interest (as the
case may be, in each ease, a “Subsequent Transferee”) shall be
substituted for Assignor under the Assigned Agreement and GE shall (i) recognize
the Subsequent Transferee as its counterparty under the Assigned Agreement and (ii) continue
to perform its obligations under the Assigned Agreement in favor of the
Subsequent Transferee; provided, however, that such Subsequent
Transferee has elected in writing to assume all of such Assignor’s rights and
obligations (including the obligation to cure any then existing payment
defaults within the time permitted in the Assigned Agreement subject to Section (d))
under the Assigned Agreement, and has the ability to perform under the Assigned
Agreement.  The Subsequent Transferee
shall have the right to assign all of its interest in the Assigned Agreement to
any Person, provided such assignee assumes in writing all obligations of the
Subsequent Transferee under the Assigned Agreement, and has the ability to
perform thereunder.  Upon such
assignment, the Subsequent Transferee (including its agents and employees)
shall be released from any further liability thereunder to the extent of its
interest under the Assigned Agreement.


 


(b)                                 Without limiting anything herein, the
warranties provided by GE under the Assigned Agreement shall continue in full
force and effect (until the expiration of the warranty period set forth in the
Assigned Agreement, in accordance with the terms in the Assigned Agreement) for
the benefit of Security Agent or a Subsequent Transferee, as the case may be,
in the event that Security Agent or a Subsequent Transferee succeeds to
Assignor’s right, title and interest in the Assigned Agreement.


 


4.                                       Right to Cure. 
In the event of a default or breach by Assignor in the performance of
any of its obligations under the Assigned Agreement, or upon the occurrence or
non-occurrence of any event or condition under the Assigned Agreement which
would immediately or with the passage of any applicable grace period or the
giving of notice, or both, enable GE to terminate the Assigned Agreement
(hereinafter, a “Default”), GE shall not terminate the Assigned
Agreement until it first gives written notice of such Default to Security Agent
(concurrently with the notice of such Default to Assignor) and affords Security
Agent (a) a period of thirty (30) days from receipt of such notice to cure
such Default if such Default is the failure to pay amounts to GE which are due
and payable under the Assigned Agreement or (b) with respect to any other
Default, a reasonable opportunity, but no more than ninety (90) days from
receipt of such notice, to cure such non-payment Default (provided, that
during such cure period Security Agent or such Assignor continues to perform
Assignor’s other obligations under the Assigned Agreement).  Notwithstanding anything to the contrary
herein, if the Default is peculiar to Assignor and not curable by Security
Agent, such as the insolvency, bankruptcy, general assignment for the benefit
of the Lender, or appointment of a receiver, trustee, custodian or liquidator
of Assignor or its properties, then, notwithstanding any right that GE may have
to terminate the Assigned Agreement, Security Agent shall be entitled to assume
the rights and obligations of Assignor under the Assigned Agreement within the
cure period provided in clause (b) above and provided such assumption
has occurred within such period, GE shall not be entitled to terminate the
Assigned Agreement as a result of such Default. 
If possession of the Turbines is necessary to cure such breach or
Default, and Security Agent or its successor(s), assignee(s) and/or
designee(s) declares an Event of Default under the Financing Agreement and
commences foreclosure proceedings or any other proceedings necessary to take
possession of the Turbines, Security Agent or its successor(s), assignee(s) and/or
designee(s) will be allowed a reasonable period to complete such
proceedings; provided that, once commenced, Security 


 


5

















 


Agent or its successor(s), assignee(s) and/or
designee(s) shall pursue such proceedings with due dispatch.  After taking possession of the Turbines,
Security Agent or its successor(s), assignee(s) and/or designee(s) shall
commence curing such breach or Default within fifteen (15) days after having
possession of the Turbines and thereafter diligently pursue such cure to
completion within ninety (90) days after obtaining possession of the Turbines
or such later date, if any, permitted under the terms of the Assigned
Agreement, for the performance of a cure of a breach or Default.  If Security Agent or its successor(s),
assignee(s) and/or designee(s) is prohibited by any court order or
bankruptcy or insolvency proceedings of such Assignor from curing the Default
or from commencing or prosecuting such proceedings, the foregoing time periods
shall be extended by the period of such prohibition.


 


5.                                       Replacement Agreement. 
In the event that the Assigned Agreement is rejected or terminated as a
result of any bankruptcy or insolvency proceeding, or the Assigned Agreement is
terminated for any reason other than a Default which could have been cured by
Security Agent as provided in Section (d), GE shall, at the option of
Security Agent exercised within sixty (60) days after such rejection or
termination, enter into a new agreement with Security Agent having identical
terms as the Assigned Agreement (subject to any conforming changes necessitated
by the passage of time, substitution of parties and other changes as the
parties may mutually agree, the “Replacement Agreement”); provided
that the term under the Replacement Agreement shall be no longer than the
remaining balance of the term specified in the Assigned Agreement.  Security Agent shall have the right to assign
all of its interest in the Replacement Agreement to any Person, provided such
assignee assumes in writing all obligations of Security Agent under the
Replacement Agreement.  Upon such
assignment, Security Agent (including its agents and employees) shall be
released from any further liability thereunder to the extent of its interest
under the Replacement Agreement.


 


6.                                       No Liability. 
GE acknowledges and agrees that Security Agent (nor any successor(s),
assignee(s), designee(s) other representative of Security Agent) shall
have any liability or obligation under the Assigned Agreement as a result of
exercising its rights under this Consent, the Security Agreement or the
Financing Agreement, nor shall Security Agent (nor any successor(s),
assignee(s), designee(s) or other representative of Security Agent), be
obligated or required to perform any of Assignor’s obligations under the
Assigned Agreement or to take any action to collect or enforce any claim for
payment assigned under the Financing Agreement, except during any period in
which such Person has elected to become a Subsequent Transferee pursuant to Section (c) or
counterparty to a Replacement Agreement pursuant to Section (e), in which
case such Subsequent Transferee shall assume all of Assignor’s rights and
obligations under the Assigned Agreement in accordance with Section (c),
or, if such Person is a counterparty to a Replacement Agreement, shall cure any
Defaults for failure to pay amounts owed under the Assigned Agreement but shall
not otherwise be required to perform or be subject to any defenses or offsets
by reason of any of Assignor’s other obligations under the Assigned Agreement
that were unperformed at such time unless expressly agreed to in writing by
such counterparty.  Notwithstanding
anything to the contrary herein, the sole recourse of GE in seeking the
enforcement of any obligations under this Consent, the Assigned Agreement or a
Replacement Agreement shall be to any such Subsequent Transferee’s or
Replacement Agreement counterparty’s right, title and interest in the Turbines.


 


6

















 


7.                                       Representations and Warranties. 
GE hereby represents and warrants to Assignor and Security Agent, as of
the date of this Consent that:


 


(a)                                  GE is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation
and has all requisite power and authority to execute, deliver and perform its
obligations under the Assigned Agreement and this Consent;


 


(b)                                 The execution, delivery and performance
by GE of the Assigned Agreement and this Consent have been duly authorized by
all necessary corporate action, and do not and will not require any further
consents or approvals which have not been obtained, or violate any provision of
any law, regulation, order, judgment, injunction or similar matters or breach
any agreement presently in effect with respect to or binding on GE;


 


(c)                                  All government approvals necessary for
the execution, delivery and performance by GE of its obligations under the
Assigned Agreement have been obtained and are in full force and effect, except
those governmental approvals routinely obtained during the ordinary course of
business;


 


(d)                                 This Consent and the Assigned Agreement
are legal, valid and binding obligations of GE enforceable against GE in
accordance with their respective terms except as may be limited by bankruptcy,
reorganization, insolvency, moratorium and other laws affecting creditors’
rights in general and except to the extent that the availability of equitable
remedies is subject to the discretion of the court before which any proceeding
therefor may be brought;


 


(e)                                  The Assigned Agreement is in full force
and effect and has not been amended, supplemented or modified since the date of
execution of the Assigned Agreement;


 


(f)                                    To the best of GE’s knowledge, Assignor
has fulfilled all of its obligations under the Assigned Agreement, and there
are no breaches, Defaults or unsatisfied conditions presently existing (or
which would exist after the passage of time and/or giving of notice) that would
allow GE to terminate the Assigned Agreement;


 


(g)                                 There are no disputes or legal
proceedings between GE and Assignor;


 


(h)                                 The representations and warranties of GE
contained in the Assigned Agreement are true and correct on the date hereof;
and


 


(i)                                     Except pursuant to this Consent and
except as expressly provided in the Assigned Agreement, GE has not consented to
any pledge, assignment or other transfer of any interest in the Assigned
Agreement.


 


8.                                       Covenants.  Security
Agent shall promptly provide to GE copies of any notices of default issued by
it to Assignor under the Financing Agreement; provided, however,
that any failure by Security Agent to provide any such notice in a timely
manner shall not affect its substantive rights under this Consent.


 


9.                                       Notices.  Any
communications between the parties hereto or notices provided herein to be
given may be given to the following addresses:


 


7














 


	
  If
  to GE:

  	
  General Electric
  Company

  
	
   

  	
  One River Road

  
	
   

  	
  Schenectady, New York
  12345

  
	
   

  	
  Attention: Dylan Davis

  
	
   

  	
  Fax:

  	
  (518) 385-7850

  
	
   

  	
  Attention: Scott
  Stalica

  
	
   

  	
  Fax:

  	
  (518) 385-5128

  
	
   

  	
   

  
	
  If to Security Agent:

  	
  BNP PARIBAS

  
	
   

  	
  787 Seventh Avenue

  
	
   

  	
  New York, NY 10019

  
	
   

  	
  Attention:

  	
  Project Finance &
  Utilities

  
	
   

  	
  Telephone:

  	
  (212) 841-2000

  
	
   

  	
  Facsimile:

  	
  (212) 841-2146

  
	
   

  	
   

  
	
  If to Assignor:

  	
  Evergreen Wind Power V,
  LLC

  
	
   

  	
  c/o First Wind Energy,
  LLC

  
	
   

  	
  179 Lincoln Street
  Suite 500

  
	
   

  	
  Boston MA 02111

  
	
   

  	
  Attention: General
  Counsel

  
	
   

  	
  Fax:

  	
  (617) 960-2889

  
				



 


All notices or
other communications required or permitted to be given hereunder shall be in
writing and shall be considered as properly given (a) if delivered in
person, (b) if sent by overnight delivery service, (c) in the event
overnight delivery services are not readily available, if mailed by first class
mail, postage prepaid, registered or certified with return receipt requested or
(d) if sent by prepaid telegram, or by telecopy confirmed by
telephone.  Notice so given shall be effective
upon receipt by the addressee, except that communication or notice so
transmitted by telecopy or other direct written electronic means shall be
deemed to have been validly and effectively given on the day (if a Business Day
and, if not, on the next following Business Day) on which it is transmitted if
transmitted before 4 p.m., recipient’s time, and if transmitted after that
time, on the next following Business Day; provided, however, that if any
notice is tendered to an addressee and the delivery thereof is refused by such
addressee, such notice shall be effective upon such tender.  Any party shall have the right to change its
address 


 


8

















 


for
notice hereunder by giving of thirty (30) days’ written notice to the other
parties in the manner set forth herein above.


 


10.           Binding Effect; Amendments.  This Consent shall be binding upon and
benefit GE, Assignor, Security Agent and the Lenders and their respective
successors, transferees and permitted assigns. 
GE agrees to confirm such continuing obligation in writing upon the
reasonable request of Assignor, Security Agent, the Lenders or any of their
respective successors, transferees or permitted assigns.  No termination, amendment, variation or
waiver of any provisions of this Consent shall be effective unless in writing
and signed by GE, Security Agent, and Assignor; provided that all rights and
obligations of Security Agent and the Lenders hereunder shall terminate upon
payment in full of the obligations of Assignor under the Security Agreement
without the requirement for any such writing.


 


11.           Governing Law.  This Consent shall be governed by the laws of
the State of New York without reference to conflicts of laws rules thereof
(other than Section 5-1401 of the New York General Obligations Law).  GE, ASSIGNOR AND SECURITY
AGENT HEREBY SUBMIT 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 CONSENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.  EACH OF THE PARTIES HERETO
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY 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.


 


EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT
TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
CONSENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.


 


12.           Severability.  Any provision of this Consent 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.


 


13.           Counterparts.  This Consent may be executed in one or more
duplicate counterparts, and when executed and delivered by all the parties
listed below, shall constitute a single binding agreement.


 


14.           Interpretation.  All references in this Consent to any
document, instrument or agreement (a) shall include all contract
variations, change orders, exhibits, schedules and other attachments thereto, (b) shall
include all documents, instruments or agreements issued or 


 


9

















 


executed in replacement or predecessor thereto, as
amended, modified and supplemented from time to time and in effect at any given
time.


 


[SIGNATURES
FOLLOW]


 


10

















 


IN WITNESS WHEREOF, the undersigned by its
officer thereunto duly authorized, has duly executed this CONSENT AND AGREEMENT
as of the date first above written.


 


	
   

  	
  GENERAL ELECTRIC COMPANY,

  
	
   

  	
   

  
	
   

  	
  a New York corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  



 

















 


	
  Accepted
  and agreed:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  BNP PARIBAS,

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  as Security Agent

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 

















 


	
  Accepted
  and agreed:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EVERGREEN WIND POWER V, LLC,

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  a Delaware limited
  liability company

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name: Evelyn Lim

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title: Secretary

  	
   

  	
   

  
				



 


Exhibit F-8


 


1

















 


EXHIBIT
F-9


to
Financing Agreement


 


[Reserved]


 


Exhibit F-9


 














 


EXHIBIT F-10


to Financing Agreement


 


FORM OF CONSENT OF OPERATOR


 


(See Tab      )


 


Exhibit F-10


 


1

















 


CONSENT AND AGREEMENT


 


This CONSENT AND AGREEMENT,
dated as of December 22, 2009 (this “Consent”), is entered
into by and among FIRST WIND O&M, LLC, a limited liability company organized and existing under the laws of the
state of Delaware (together with its permitted successors and assigns, “Contracting
Party”), EVERGREEN WIND POWER V, LLC, a Delaware limited liability company
(“Assignor”), and BNP PARIBAS, as Security Agent (“Agent”) for
the Secured Parties (as defined in the Financing Agreement).


 


RECITALS


 


A.            In
order to finance the operation of a 57 MW wind energy project and a 25.5
MW wind energy project located in Washington County, Maine (collectively, or
individually, as the case may be, the “Project”), Stetson Holdings, LLC has
entered into that certain Financing Agreement dated as of December 22,
2009 with BNP Paribas, as Joint Lead Arranger, Joint Bookrunner, Administrative
Agent, Issuing Bank and Security Agent for the Secured Parties, and HSH
Nordbank AG, New York Branch, as Joint Lead Arranger, Joint Bookrunner, and Co-Syndication
Agent and certain lenders (“Lenders”) party thereto (the “Financing Agreement”).  In connection with the Financing Agreement,
Assignor, Stetson Holdings, LLC and Agent have entered into a Guaranty and
Security Agreement (the “Security Agreement”), under which Assignor has
agreed to assign its interest under the Assigned Agreement (as defined below)
to Agent as collateral for certain secured obligations under the Financing
Agreement.


 


B.            Contracting
Party and Assignor have entered into that certain Project O&M Agreement,
dated as of November 17, 2008 (as amended, amended and restated,
supplemented or otherwise modified from time to time in accordance with the
terms thereof and hereof, the “Assigned Agreement”).


 


AGREEMENT


 


NOW, THEREFORE, in consideration of the
foregoing, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, and intending to be legally bound,
the parties hereto hereby agree, notwithstanding anything in the Assigned
Agreement to the contrary, as follows:


 


II.                                     ASSIGNMENT
AND AGREEMENT


 


A.            Consent to Assignment.


 


Contracting Party consents to the collateral
assignment under the Security Agreement of all of Assignor’s right, title and
interest in, to and under the Assigned Agreement (collectively, the “Assigned
Interest”).  Contracting Party
acknowledges the right of Agent, in the exercise of Agent’s rights and remedies
pursuant to the Security Agreement, to make all demands, give all notices, take
all actions and exercise all rights of Assignor under the Assigned Agreement.


 


Consent
to Collateral Assignment (EWP Project O&M Agreement)


Stetson


 

















 


B.            Subsequent Owner.


 


1.             Contracting
Party agrees that, if Agent notifies Contracting Party in writing that,
pursuant to the Security Agreement, it has assigned, foreclosed or sold the
Assigned Interests, then (i) Agent or its successor, assignee and/or
designee (a “Subsequent Owner”) shall be substituted for Assignor under
the Assigned Agreement and (ii) Contracting Party shall (1) recognize
Agent or the Subsequent Owner, as the case may be, as its counterparty under
the Assigned Agreement and (2) continue to perform its obligations under
the Assigned Agreement in favor of Agent or the Subsequent Owner, as the case
may be; provided that Agent or such Subsequent Owner, as the case may
be, has assumed in writing all of Assignor’s rights and obligations (including,
without limitation, the obligation to cure any then existing payment and
performance defaults, but excluding any obligation to cure any then existing
performance defaults which by their nature are incapable of being cured) under
the Assigned Agreement.


 


2.             Without
limiting anything herein, the warranties provided by Contracting Party under
the Assigned Agreement shall continue in full force and effect (until the
expiration of the applicable warranty periods set forth in the Assigned
Agreement) in the event that Agent or a Subsequent Owner succeeds to Assignor’s
right, title and interest in the
Assigned Agreement.


 


C.            Right to Cure.


 


If Assignor defaults in the performance of
any of its obligations under the Assigned Agreement, or upon the occurrence or
non-occurrence of any event or condition under the Assigned Agreement which
would immediately or with the passage of any applicable grace period or the
giving of notice, or both, enable Contracting Party to terminate or suspend its
performance under the Assigned Agreement (each hereinafter a “Default”),
Contracting Party shall not terminate or suspend its performance under the
Assigned Agreement until it first gives written notice of such Default to Agent
and affords Agent a period of at least 30 days (this 30 day period, for the
avoidance of doubt, being in addition to any cure period granted to Assignor to
cure such Default under the Assigned Agreement) or if such Default is a
nonmonetary default, a period of 60 days (this 60 day period, for the avoidance
of doubt, being in addition to any cure period granted to Assignor to cure such
Default under the Assigned Agreement) from receipt of such notice to cure such
Default.


 


D.            Delivery of Notices.


 


Contracting Party shall deliver notice to
Agent when there is a Default by Assignor under the Assigned Agreement.


 


E.             Termination.


 


In the event that
the Assigned Agreement is terminated by rejection, or otherwise, during a case
in which Assignor is the debtor under Title 11, United States Code, or other
similar federal or state statute, then,
in the event
that Agent or its nominee or designee has commenced foreclosure proceedings on
the assets of Assignor, Contracting
Party shall, at the option of Agent and so long as all existing payment
defaults by Assignor under the Assigned Agreement are cured by Agent or its
nominee or designee, enter into a new agreement with Agent or (at the 


 

















 


direction of Agent) its
nominee or designee having terms substantially identical to the Assigned Agreement,
pursuant to which Agent or its nominee or designee shall have all of the rights
and obligations of Assignor under the Assigned Agreement.


 


III.                                 REPRESENTATIONS
AND WARRANTIES


 


Each of Contracting Party, Assignor and Agent
hereby represents and warrants as of the date hereof that it is duly organized,
validly existing, and in good standing under the laws of the commonwealth or
state of its organization and is qualified and in good standing in each other
jurisdiction where the failure to so qualify would have a material adverse
effect upon its business or financial condition, and it has all requisite power
and authority to conduct its business, to own its properties and to execute,
deliver and perform its obligations under this Consent.


 


IV.                                MISCELLANEOUS


 


A.            Notices.


 


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


 


	
  If to Contracting
  Party:

  	
  If
  to Assignor:

  
	
   

  	
   

  
	
  First
  Wind O&M, LLC

  	
  Evergreen
  Wind Power V, LLC

  
	
  c/o
  First Wind Energy, LLC

  	
  c/o
  First Wind Energy, LLC

  
	
  179
  Lincoln Street, Suite 500

  	
  179
  Lincoln Street, Suite 500

  
	
  Boston,
  Massachusetts 02111

  	
  Boston,
  Massachusetts 02111

  
	
  Facsimile:
  (617) 960-2889

  	
  Facsimile:
  (617) 960-2889

  
	
  Attention:
  Secretary

  	
  Attention:
  Secretary

  
	
   

  	
   

  
	
  If
  to Agent:

  	
   

  
	
   

  	
   

  
	
  BNP
  Paribas

  	
   

  
	
  787
  Seventh Avenue

  	
   

  
	
  New
  York, New York 10019

  	
   

  
	
  Facsimile:
  (212) 841-2146

  	
   

  
	
  Attention: Project Finance & Utilities

  	
   

  



 


All notices or other communications required
or permitted to be given hereunder shall be in writing and shall be considered
as properly given (a) if delivered in person, (b) if sent by
overnight delivery service (including Federal Express, UPS, DHL and other
similar overnight delivery services), (c) in the event overnight delivery
services are not readily available, if mailed by first class United States
Mail, postage prepaid, registered or certified with return receipt requested, (d) if
sent by prepaid telegram or by facsimile or (e) if sent by other
electronic means (including electronic mail) confirmed by facsimile or
telephone.  Any party may change its
address for notice hereunder by giving of 30 days’ notice to the other parties
in the manner set forth herein.


 

















 


B.            Counterparts.


 


This Consent 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.


 


C.            Amendment, Waiver.


 


Neither this Consent nor any of the terms
hereof may be terminated, amended, supplemented, waived or modified except by
an instrument in writing signed by Contracting Party and Agent.


 


D.            Successors and Assigns.


 


This Consent shall bind and benefit
Contracting Party, Agent, and their respective successors and assigns.


 


E.             Further Assurances.


 


Contracting Party will,
upon the reasonable written request of Collateral Agent, execute and deliver
such further documents and do
such other acts and things necessary to effectuate the purposes of this
Consent.


 


F.             Governing Law.


 


This Consent shall be governed by the laws of
the State of New York without reference to conflicts of laws rules thereof
(other than Section 5-1401 of the New York General Obligations Law).


 


 


[signatures
on the following pages]


 

















 


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


 


 


	
   

  	
  FIRST
  WIND O&M, LLC,

  
	
   

  	
  a
  Delaware limited liability company, as Contracting Party

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  Elizabeth
  Weir

  
	
   

  	
  Title:

  	
  Assistant
  Secretary

  



 

















 


	
   

  	
  EVERGREEN
  WIND POWER V, LLC,

  
	
   

  	
  a
  Delaware limited liability company, as Assignor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  Evelyn
  Lim

  
	
   

  	
  Title:

  	
  Secretary

  



 

















 


	
  Accepted and Agreed to

  	
   

  
	
   

  	
   

  
	
  BNP PARIBAS,

  	
   

  
	
  as Agent

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 














 


EXHIBIT F-11


to Financing Agreement


 


FORM OF SHARED FACILITIES CONSENT


 


(See Tab      )


 


Exhibit F-11


 


1

















 


This CONSENT AND AGREEMENT, dated as of December 22, 2009
(this “Consent”), is entered into by and among EVERGREEN WIND POWER V,
LLC (“EWP V”), a Delaware limited liability company and STETSON
WIND II, LLC (“SW II”), a Delaware limited liability company, and BNP
PARIBAS, as Security Agent (“Agent”) for the Secured Parties (as defined
in the Financing Agreement).


 


RECITALS


 


A.            In
order to finance the operation of a 57 MW wind energy project and a 25.5
MW wind energy project located in Washington County, Maine (collectively, or
individually, as the case may be, the “Project”), Stetson Holdings, LLC has
entered into that certain Financing Agreement dated as of December 22,
2009 with BNP Paribas, as Joint Lead Arranger, Joint Bookrunner, Administrative
Agent, Issuing Bank and Security Agent for the Secured Parties, and HSH
Nordbank AG, New York Branch, as Joint Lead Arranger, Joint Bookrunner, and
Co-Syndication Agent and certain lenders (“Lenders”) party thereto (the “Financing
Agreement”).  Each of EWP V and SW II
and Agent have also entered into a guaranty and security agreement in
connection with the Financing Agreement (each, a “Guaranty and  Security
Agreement”; and collectively, the “Guaranty and Security Agreements”)),
under which each of EWP V and SW II has agreed to assign its interest (each, in
such capacity, an “Assignor”) under the Assigned Agreement (as defined
below) to Agent as collateral for certain secured obligations under the
Financing Agreement.


 


B.            EWP
V and SW II (each, in such capacity, a “Contracting Party”) have entered
into that certain Shared Facilities Agreement, dated as of December 22, 2009 (as
amended, amended and restated, supplemented or otherwise modified from time to
time in accordance with the terms thereof and hereof,  the
“Assigned Agreement”).


 


AGREEMENT


 


NOW, THEREFORE, in consideration of the
foregoing, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, and intending to be legally bound,
the parties hereto hereby agree, notwithstanding anything in the Assigned
Agreement to the contrary, as follows:


 


I.                                         ASSIGNMENT
AND AGREEMENT.


 


A.            Consent
to Assignment.


 


1.             EWP
V consents to the collateral assignment under the Guaranty and Security
Agreement of all of SW II’s right, title and interest in, to and under the
Assigned Agreement (collectively, the “Assigned Interests”).  EWP V acknowledges the right of Agent, in the
exercise of Agent’s rights and remedies pursuant to the Guaranty and Security Agreement,
to make all demands, give all notices, take all actions and exercise all rights
of SW II under the Assigned Agreement.


 


2.             SW II consents
to the collateral assignment under the Guaranty and Security Agreement of all
of EWP V’s right, title and interest in, to and under the Assigned Agreement
(collectively, the “Assigned Interests”).  SW II acknowledges the right of Agent, in the
exercise 


 


Consent
to Collateral Assignment (Shared Facilities Agreement)


Stetson
Financing


 

















 


of Agent’s rights and
remedies pursuant to the Guaranty and Security Agreement, to make all demands,
give all notices, take all actions and exercise all rights of EWP V under the
Assigned Agreement.


 


B.            Subsequent
Owner.


 


1.             Each
Contracting Party agrees that, if Agent notifies such Contracting Party in
writing that, pursuant to the Guaranty and Security Agreements, it has assigned,
foreclosed or sold the Assigned Interests, then (i) Agent or its
successor, assignee and/or designee (a “Subsequent Owner”) shall be
substituted for such Assignor under the Assigned Agreement and (ii) such
Contracting Party shall (1) recognize Agent or the Subsequent Owner, as
the case may be, as its counterparty under the Assigned Agreement and (2) continue
to perform its obligations under the Assigned Agreement in favor of Agent or
the Subsequent Owner, as the case may be; provided that Agent or such
Subsequent Owner, as the case may be, has assumed in writing all of such
Assignor’s rights and obligations (including, without limitation, the
obligation to cure any then existing payment and performance defaults, but
excluding any obligation to cure any then existing performance defaults which
by their nature are incapable of being cured) under the Assigned Agreement.


 


2.             Without
limiting anything herein, the warranties provided by such Contracting Party
under the Assigned Agreement shall continue in full force and effect (until the
expiration of the applicable warranty periods set forth in the Assigned
Agreement) in the event that Agent or a Subsequent Owner succeeds to such
Assignor’s right, title and interest in the
Assigned Agreement.


 


C.            Right
to Cure.  If any Assignor defaults in the performance
of any of its obligations under the Assigned Agreement, or upon the occurrence or non-occurrence of any event or
condition under the Assigned Agreement which would immediately or with the
passage of any applicable grace period or the giving of notice, or both, enable
such Contracting Party to terminate or suspend its performance under the
Assigned Agreement (each hereinafter a “Default”), such Contracting Party shall
not terminate or suspend its performance under the Assigned Agreement until it
first gives written notice of such Default to Agent and affords Agent a period
of at least 30 days (this 30 day period, for the avoidance of doubt, being in
addition to any cure period granted to such Assignor to cure such Default under
the Assigned Agreement) or if such Default is a nonmonetary default, a period
of 60 days (this 60 day period, for the avoidance of doubt, being in addition
to any cure period granted to such Assignor to cure such Default under the
Assigned Agreement) from receipt of such notice to cure such Default.


 


D.            Delivery
of Notices.  Each Contracting Party shall deliver notice to Agent when there
is a Default by any Assignor under the Assigned Agreement.


 


E.             Termination.  In  the
event that the Assigned Agreement is terminated by rejection, or otherwise,
during a case in which any Assignor is the debtor under Title 11, United States
Code, or other similar federal or state statute, then, in the event that Agent or its nominee or designee has commenced
foreclosure proceedings on the assets of such Assignor, such Contracting Party shall, at the
option of Agent and so long as all existing payment defaults by such Assignor
under the Assigned Agreement are cured by Agent or its nominee or designee, 


 

















 


enter into a new agreement with Agent or (at the
direction of Agent) its nominee or designee having terms substantially
identical to the Assigned Agreement, pursuant to which Agent or its nominee or
designee shall have all of the rights and obligations of such Assignor under
the Assigned Agreement.


 


II.                                     REPRESENTATIONS
AND WARRANTIES


 


Each Contracting Party, each Assignor and
Agent hereby represents and warrants as of the date hereof that it is duly
organized, validly existing, and in good standing under the laws of the
commonwealth or state of its organization and is qualified and in good standing
in each other jurisdiction where the failure to so qualify would have a
material adverse effect upon its business or financial condition, and it has
all requisite power and authority to conduct its business, to own its
properties and to execute, deliver and perform its obligations under this
Consent.


 


III.                                 MISCELLANEOUS.


 


A.            Notices. 
Any communications between the parties hereto or notices provided herein
to be given may be given to the following addresses:


 


	
  If to Contracting
  Parties:

  	
  If
  to Assignors:

  
	
   

  	
   

  
	
  Evergreen
  Wind Power V, LLC

  	
  Evergreen
  Wind Power V, LLC

  
	
  Stetson
  Wind II, LLC

  	
  Stetson
  Wind II, LLC

  
	
  c/o
  First Wind Energy, LLC

  	
  c/o
  First Wind Energy, LLC

  
	
  179
  Lincoln Street, Suite 500

  	
  179
  Lincoln Street, Suite 500

  
	
  Boston,
  Massachusetts 02111

  	
  Boston,
  Massachusetts 02111

  
	
  Facsimile:
  (617) 960-2889

  	
  Facsimile:
  (617) 960-2889

  
	
  Attention:
  Secretary

  	
  Attention:
  Secretary

  
	
   

  	
   

  
	
  If
  to Agent:

  	
   

  
	
   

  	
   

  
	
  BNP
  Paribas

  	
   

  
	
  787
  Seventh Avenue

  	
   

  
	
  New
  York, New York 10019

  	
   

  
	
  Facsimile:
  (212) 841-2146

  	
   

  
	
  Attention: Project Finance & Utilities

  	
   

  



 


All notices or other communications required
or permitted to be given hereunder shall be in writing and shall be considered as properly
given (a) if delivered in person, (b) if sent by overnight delivery
service (including Federal Express, UPS, DHL and other similar overnight
delivery services), (c) in the event overnight delivery services are not
readily available, if mailed by first class United States Mail, postage
prepaid, registered or certified with return receipt requested, (d) if
sent by prepaid telegram or by facsimile or (e) if sent by other
electronic means (including electronic mail) confirmed by facsimile or
telephone.  Any party may change its
address for notice hereunder by giving of 30 days’ notice to the other parties
in the manner set forth herein.


 

















 


B.            Counterparts. 
This Consent 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.


 


C.            Amendment,
Waiver.  Neither this Consent nor any of the terms hereof may
be terminated, amended, supplemented, waived or modified except by an
instrument in writing signed by each Contracting Party and Agent.


 


D.            Successors
and Assigns.  This Consent shall
bind and benefit each Contracting Party, Agent, and their respective successors
and assigns.


 


E.             Further Assurances.  Each Contracting Party will, upon the
reasonable written request of Collateral Agent, execute and deliver such
further documents and do such other acts and things necessary to effectuate the
purposes of this Consent.


 


F.             Governing
Law.  This Consent shall be governed by the laws of
the State of New York without reference to conflicts of laws rules thereof
(other than Section 5-1401 of the New York General Obligations Law).


 


[signatures
on the following pages]


 

















 


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


 


	
   

  	
  EVERGREEN
  WIND POWER V, LLC, a

  
	
   

  	
  Delaware
  limited liability company, as an Assignor 

  and a Contracting Party

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:
   Evelyn Lim

  
	
   

  	
   

  	
  Title:
   Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  STETSON
  WIND II, LLC, a Delaware limited 

  liability company, as an Assignor and a Contracting 

  Party

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:  Elizabeth Weir

  
	
   

  	
   

  	
  Title:    Assistant Secretary

  



 

















 


	
  Accepted and Agreed to

  	
   

  
	
   

  	
   

  
	
  BNP PARIBAS, as Agent

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 














 


EXHIBIT F-12


 


to Financing Agreement


 


FORM OF PROJECT ADMINISTRATION AGREEMENT CONSENT


 


(See Tab      )


 


Exhibit F-12


 


2

















 


CONSENT AND AGREEMENT


 


This
CONSENT AND AGREEMENT, dated as of December 22, 2009 (this “Consent”),
is entered into by and among FIRST WIND ENERGY, LLC, a Delaware limited liability company (together
with its permitted successors and assigns, “Contracting Party”), EVERGREEN
WIND POWER V, LLC, a Delaware limited liability company (“Assignor”),
and BNP PARIBAS, as Security Agent (“Agent”) for the Secured Parties (as
defined in the Financing Agreement).


 


RECITALS


 


A.            In order to finance the operation of
a 57 MW wind energy project and a 25.5 MW wind energy project located in
Washington County, Maine (collectively, or individually, as the case may be,
the “Project”), Stetson Holdings, LLC has entered into that certain
Financing Agreement dated as of December 22, 2009 with BNP Paribas, as
Joint Lead Arranger, Joint Bookrunner, Administrative Agent, Issuing Bank and
Security Agent for the Secured Parties, and HSH Nordbank AG, New York Branch, as
Joint Lead Arranger, Joint Bookrunner, and Co-Syndication Agent and certain
lenders (“Lenders”) party thereto (the “Financing Agreement”).  In connection with the Financing Agreement, Assignor,
Stetson Holdings, LLC and Agent have entered into a Guaranty and Security
Agreement (the “Security Agreement”), under which Assignor has agreed to
assign its interest under the Assigned Agreement (as defined below) to Agent as
collateral for certain secured obligations under the Financing Agreement.


 


B.            Contracting Party and Assignor have
entered into that certain Management Services Agreement, dated as of July 17,
2009 (as amended, amended and restated, supplemented or otherwise modified from
time to time in accordance with the terms thereof and hereof,  the “Assigned Agreement”).


 


AGREEMENT


 


NOW,
THEREFORE, in consideration of the foregoing, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, and
intending to be legally bound, the parties hereto hereby agree, notwithstanding
anything in the Assigned Agreement to the contrary, as follows:


 


I.              ASSIGNMENT
AND AGREEMENT


 


A.            Consent
to Assignment.


 


Contracting
Party consents to the collateral assignment under the Security Agreement of all
of Assignor’s right, title and interest in, to and under the Assigned Agreement
(collectively, the “Assigned Interests”).  Contracting Party acknowledges the right of
Agent, in the exercise of Agent’s rights and remedies pursuant to the Security
Agreement, to make all demands, give all notices, take all actions and exercise
all rights of Assignor under the Assigned Agreement.


 


Consent
to Collateral Assignment (EWP Project Administration Agreement)


Stetson
Financing


 

















 


B.            Subsequent Owner.


 


1.             Contracting
Party agrees that, if Agent notifies Contracting Party in writing that,
pursuant to the Security Agreement, it has assigned, foreclosed or sold the
Assigned Interests, then (i) Agent or its successor, assignee and/or
designee (a “Subsequent Owner”) shall be substituted for Assignor under
the Assigned Agreement and (ii) Contracting Party shall (1) recognize
Agent or the Subsequent Owner, as the case may be, as its counterparty under
the Assigned Agreement and (2) continue to perform its obligations under
the Assigned Agreement in favor of Agent or the Subsequent Owner, as the case
may be; provided that Agent or such Subsequent Owner, as the case may
be, has assumed in writing all of Assignor’s rights and obligations (including,
without limitation, the obligation to cure any then existing payment and
performance defaults, but excluding any obligation to cure any then existing
performance defaults which by their nature are incapable of being cured) under
the Assigned Agreement.


 


2.             Without
limiting anything herein, the warranties provided by Contracting Party under
the Assigned Agreement shall continue in full force and effect (until the
expiration of the applicable warranty periods set forth in the Assigned
Agreement) in the event that Agent or a Subsequent Owner succeeds to Assignor’s
right, title and interest in the
Assigned Agreement.


 


C.            Right
to Cure.


 


If Assignor defaults in the performance of any of its
obligations under the Assigned Agreement, or upon the occurrence or
non-occurrence of any event or condition under the Assigned Agreement which
would immediately or with the passage of any applicable grace period or the
giving of notice, or both, enable Contracting Party to terminate or suspend its
performance under the Assigned Agreement (each hereinafter a “Default”),
Contracting Party shall not terminate or suspend its performance under the
Assigned Agreement until it first gives written notice of such Default to Agent
and affords Agent a period of at least 30 days (this 30 day period, for the
avoidance of doubt, being in addition to any cure period granted to Assignor to
cure such Default under the Assigned Agreement) or if such Default is a
nonmonetary default, a period of 60 days (this 60 day period, for the avoidance
of doubt, being in addition to any cure period granted to Assignor to cure such
Default under the Assigned Agreement) from receipt of such notice to cure such
Default.


 


D.            Delivery
of Notices.


 


Contracting
Party shall deliver notice to Agent when there is a Default by Assignor under
the Assigned Agreement.


 


E.             Termination.


 


In the
event that the Assigned Agreement is terminated by rejection, or otherwise,
during a case in which Assignor is the debtor under Title 11, United States
Code, or other similar federal or state statute, then Assignor, Contracting
Party shall, at the option of Agent and so long as all existing payment
defaults by Assignor under the Assigned Agreement are cured by Agent or its
nominee or designee, enter into a new agreement with Agent or (at the direction
of Agent) its nominee or designee having terms substantially identical to the
Assigned Agreement, 


 


2

















 


pursuant to which Agent or its nominee or designee
shall have all of the rights and obligations of Assignor under the Assigned
Agreement.


 


II.            REPRESENTATIONS
AND WARRANTIES AND CERTAIN COVENANTS


 


1.             Each
of Contracting Party, Assignor and Agent hereby represents and warrants as of
the date hereof that it is duly organized, validly existing, and in good
standing under the laws of the commonwealth or state of its organization and is
qualified and in good standing in each other jurisdiction where the failure to
so qualify would have a material adverse effect upon its business or financial
condition, and it has all requisite power and authority to conduct its
business, to own its properties and to execute, deliver and perform its
obligations under this Consent.


 


2.             Further,
Contracting Party hereby represents and warrants, as of the date hereof, that (a) to
Contracting Party’s knowledge, Assignor has fulfilled all of its material
obligations under the Assigned Agreement, and there are no breaches, defaults
or unsatisfied conditions presently existing (or which would exist after the
passage of time and/or giving of notice) that would allow Contracting Party to
terminate the Assigned Agreement and (b) Contracting Party has not filed
or threatened any legal proceedings or claims against Assignor.


 


3.             Further,
Contracting Party hereby represents and warrants that it has received a copy of
the Financing Agreement and acknowledges the limitations imposed therein with
respect to the performance of its obligations under the Assigned Agreement.  Each of the Contracting Party and the
Assignor hereby acknowledge and agree that the Contracting Party will perform
its obligations under the Assigned Agreement in accordance with the
restrictions set forth in the Financing Agreement.


 


III.           PAYMENTS
UNDER THE ASSIGNED AGREEMENT


 


Contracting
Party shall pay all amounts (if any) payable by it under the Assigned Agreement
to Assignor in the manner and as and when required by the Assigned Agreement
directly into the account specified from time to time by Agent to Contracting
Party in writing.  Notwithstanding the
foregoing, if any entity or person has become a Subsequent Owner pursuant to
the terms hereof, then Contracting Party shall pay all such amounts directly to
an account designated by Subsequent Owner.


 


3

















 


IV.           MISCELLANEOUS


 


A.            Notices.


 


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


 




	
  If
  to Contracting Party:

  First
  Wind Energy, LLC

  179 Lincoln Street, Suite 500

  Boston, Massachusetts 02111

  Facsimile: (617) 960-2889

  Attention: Secretary



  	
   

  	
  If
  to Assignor:

  Evergreen
  Wind Power V, LLC

  c/o First Wind Energy, LLC

  179 Lincoln Street, Suite 500

  Boston, Massachusetts 02111

  Facsimile: (617) 960-2889

  Attention: Secretary

  






 


If to Agent:


 


BNP Paribas


787 Seventh Avenue


New York, NY 
10019


Telephone:  (212) 841-2000


Facsimile:   (212) 841-2146


Attention:   Project Finance &
Utilities


 


All
notices or other communications required or permitted to be given hereunder
shall be in writing and shall be considered as properly given (a) if
delivered in person, (b) if sent by overnight delivery service (including
Federal Express, UPS, DHL and other similar overnight delivery services), (c) in
the event overnight delivery services are not readily available, if mailed by
first class United States Mail, postage prepaid, registered or certified with
return receipt requested, (d) if sent by prepaid telegram or by facsimile
or (e) if sent by other electronic means (including electronic mail)
confirmed by facsimile or telephone.  Any
party may change its address for notice hereunder by giving of 30 days’ notice
to the other parties in the manner set forth herein.


 


B.            Counterparts.


 


This
Consent 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.


 


C.            Amendment,
Waiver.


 


Neither
this Consent nor any of the terms hereof may be terminated, amended,
supplemented, waived or modified except by an instrument in writing signed by
Contracting Party and Agent.


 


4

















 


D.            Successors
and Assigns.


 


This
Consent shall bind and benefit Contracting Party, Agent, and their respective
successors and assigns.


 


E.             Further Assurances.


 


Contracting Party will, upon the reasonable written request
of Agent, execute and deliver such further documents and
do such other acts and things necessary to effectuate the purposes of this
Consent.


 


F.             Governing
Law.


 


This
Consent shall be governed by the laws of the State of New York without
reference to conflicts of laws rules thereof (other than Sections 5-1401
and 5-1402 of the New York General Obligations Law).


 


[Signature pages follow]


 


5

















 


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


 


	
   

  	
  FIRST
  WIND ENERGY, LLC,

  
	
   

  	
  a
  Delaware limited liability company,

  
	
   

  	
   

  
	
   

  	
  as
  Contracting Party

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Elizabeth
  Weir

  
	
   

  	
   

  	
  Title:

  	
  Assistant Secretary

  



 

















 


	
   

  	
  EVERGREEN
  WIND POWER V, LLC,

  
	
   

  	
  a
  Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:
  

  	
  Evelyn
  Lim

  
	
   

  	
   

  	
  Title:
  

  	
  Secretary

  
	
   

  	
   

  	
   

  	
   

  



 

















 




	
  Accepted and Agreed to:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  BNP PARIBAS, as Agent

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  






 














 


EXHIBIT
G-1


to
Financing Agreement


 


FORM OF
BORROWER’S CLOSING CERTIFICATE


 


Stetson
Holdings, LLC


 


OFFICER’S
CERTIFICATE


 


December       ,
2009


 


THIS OFFICER’S
CERTIFICATE is delivered pursuant to the terms of that certain Financing
Agreement, dated as of December       , 2009
(as amended, modified or supplemented from time to time, the “Financing
Agreement”), by and among Stetson Holdings, LLC, (“Borrower”), BNP Paribas, as
Joint Lead Arranger, Joint Bookrunner, Administrative Agent, Issuing Bank and
Security Agent for the Secured Parties, and HSH Nordbank AG, New York Branch,
as Joint Lead Arranger, Joint Bookrunner, and Co-Syndication Agent and certain
lenders party thereto.  Capitalized terms defined in the Financing
Agreement, used herein and not otherwise defined herein, shall have the
meanings given to them in the Financing Agreement.


 


The undersigned, being the duly authorized officer
of the Borrower, DOES HEREBY CERTIFY, in the name and on behalf of the
Borrower, both immediately prior to the making of the Loans under the Financing
Agreement with respect to the Project and also after giving effect thereto, and
to the intended use of, that Loans:


 


1.                                       In accordance with Section 5.1
(b) of the Financing Agreement, that each representation and warranty set
forth in Article 6 of the Financing Agreement is true and correct in all
material respects as of the date hereof (unless such representation or warranty
relates solely to an earlier date, in which case it is true and correct in all
material respects as of such earlier date).


 


2.                                       In accordance with Section 5.1(c) of
the Financing Agreement, that no Event of Default or Inchoate Default with
respect to any Affiliated Participant has occurred and is continuing as of the
date hereof, and to the knowledge of Borrower, no Inchoate Default with respect
to any Major Project Participant that is not an Affiliated Participant has
occurred and is continuing as of the date hereof.


 


3.                                       In accordance with Section 5.1(l) of
the Financing Agreement, that each Financing Document, Material Project
Document and Applicable Permit is in full force and effect in accordance with
its terms and, to the knowledge of Borrower, no material defaults have occurred
thereunder.


 


Exhibit G-1


 


1

















 


4.                                       In accordance with Section 5.1(w) of
the Financing Agreement, that Insurance complying with Section 7.20 of the
Financing Agreement is in full force and effect as of the date hereof and
attached hereto is a list identifying underwriters, type of insurance,
insurance limits and policy terms, and listing the special provisions required
as set forth in Section 7.20 of the Financing Agreement.  All premiums due thereon have been paid and,
in my opinion, such insurance complies with Section 7.20 of the Financing
Agreement.


 


5.                                       In accordance with Section 5.1(x) of
the Financing Agreement, that all Applicable Permits listed on Exhibit H-2B
to the Financing Agreement have been obtained and are in full force and effect
and are not subject to appeal, further procedures or any unsatisfied
conditions, except as provided in Exhibit H-2B, that may allow material
modification or revocation.


 


6.                                       In accordance with Section 5.1(z) of
the Financing Agreement, that no action, suit, proceeding or investigation has
been instituted, or to the knowledge of Borrower, threatened, nor has any rule,
regulation, order, judgment or decree have been issued or proposed to be issued
by any Governmental Authority that, solely as a result of the ownership or
operation of the Project, the generation or sale of electricity therefrom or
the entering into of any Operative Document or any transaction contemplated
thereby, would cause or deem (i) Administrative Agent, Issuing Bank,
Security Agent, or the Lenders or any Affiliate of any of them to be subject
to, or not exempted from, regulation under PUHCA, any financial, organizational
or rate regulation as a “public utility” or “electric utility” or terms of
similar effect under Maine law, or under any other state laws and regulations
respecting the rates or the financial or organizational regulation of electric
utilities; or (ii) Borrower, any Project Company or the Member to be
subject to, or not exempted from, regulation (A) under any financial,
organizational or rate regulation as a “public utility” or “electric utility”
or terms of similar effect under Maine law, (B) under any other state laws
and regulations respecting the rates or the financial or organizational
regulation of electric utilities except, with respect to the Member, any such
state laws or regulations that could not be reasonably expected to have a
Material Adverse Effect, and (C) under PUHCA, other than (x) compliance
with Section 1265 of PUHCA required with respect to Borrower, any Project
Company or the Member; and (y) regulation under PUHCA with respect to any
Affiliate of Borrower (including Member and the Project Companies) if such
regulation could not be reasonably expected to have a Material Adverse Effect.


 


7.                                       In accordance with Section 5.1(gg)
of the Financing Agreement, that (i) each Project Company is an “exempt
wholesale generator” and has previously delivered to Administrative Agent a
copy of (A) in respect of the Stetson I Project, the FERC notice
Acknowledging Effectiveness of Borrower’s Exempt Wholesale Generator Status,
dated May 27, 2009; and  the FERC
Order Granting Market-Based Rate Authority to Borrower, dated January 15,
2009, and (B) in respect of the Stetson II Project, a copy of the Notice
of Self-Certification of Exempt Wholesale Generator Status with respect to
Stetson Wind II, LLC, 


 


Exhibit G-1


 


2

















 


properly filed with FERC and any responsive orders issued by FERC or
the FERC staff, acting under delegated authority, copies of all applications
for market-based rate authorization with respect to Stetson Wind II, LLC,
properly filed with FERC pursuant to Section 205 of the FPA, and any
responsive orders issued by FERC, or the FERC staff acting under delegated
authority, granting such authorizations.


 


8.                                       In accordance with Section 5.1(ii) of
the Financing Agreement, that the output of the Projects have qualified for
RECs.


 


9.                                       In accordance with Section 5.1(mm),
all work that has been performed as of the date hereof at the Stetson II
Project requiring inspection by any Governmental Authorities having
jurisdiction has been duly inspected and approved by such authorities and all
certificates or notices required to be issued in connection therewith have been
issued by such Governmental Authorities, all parties performing such work have
been paid for such work and no mechanics’ or materialmen’s liens or
applications therefore have been filed, and either lien waivers have been
obtained or all applicable filing periods for such mechanic’s and/or
materialmen’s liens have expired.


 


[SIGNATURE PAGE FOLLOWS]


 


Exhibit G-1


 


3

















 


IN WITNESS WHEREOF, the undersigned has executed and
delivered this Officer’s Certificate as of the date first written above.


 


	
   

  	
  STETSON HOLDINGS, LLC,

  
	
   

  	
  a Delaware limited
  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:  

  	
  Evelyn Lim

  
	
   

  	
  Title:

  	
  Secretary

  



 


Exhibit G-1


 


4

















 


EXHIBIT
G-2


to
Financing Agreement


 


FORM OF INSURANCE CONSULTANT
CERTIFICATE


 


(See Tab      )


 


Exhibit G-2


 


1

















 


INSURANCE CONSULTANT CERTIFICATE


 


Dated as of December       ,
2009


 


BNP Paribas


as Administrative Agent


The Equitable Tower


787 Seventh Avenue


New York, NY 10019


 


Ladies and Gentlemen:


 


The undersigned, a duly authorized representative of Moore-McNeil, LLC
as insurance consultant (“Insurance Consultant”) under the Financing
Agreement (as defined below), hereby provides this letter with respect to the
Project (as defined below) in accordance with Section 5.1(n) of the
Financing Agreement, dated as of December     , 2009
(as amended, amended and restated, supplemented or otherwise modified from time
to time, the “Financing Agreement”), by and among Stetson Holdings, LLC,
a Delaware limited liability company (“Borrower”), the financial
institutions from time to time parties thereto (the “Lenders”), BNP
Paribas (“BNPP”) , as a Joint Lead Arranger, Joint Bookrunner,
Administrative Agent for the Lenders (the “Administrative Agent “),
Security Agent for the Secured Parties (the “Security Agent”), and as
Issuing Bank, and HSH Nordbank AG, New York Branch (“HSHN”), as a Joint
Lead Arranger, Joint Bookrunner, and Co-syndication Agent.


 


Insurance Consultant
acknowledges that pursuant to the Financing Agreement, (i) BNPP in its
capacity as a Joint Lead Arranger, Joint Bookrunner, Administrative Agent,
Security Agent, and Issuing Bank, (ii) HSHN, in its capacity as a Joint
Lead Arranger, Joint Bookrunner, and Co-syndication Agent, and (iii) the
Lenders party to the Financing Agreement will be relying on this certificate
and the Insurance Consultant’s report, dated as of
                                ,
2009 and attached hereto as Exhibit A.  Insurance Consultant has reviewed Section 7.20
of the Financing Agreement and is familiar with the insurance requirements
stated therein.  It is the Insurance
Consultant’s opinion that the types and amounts of insurance required by Section 7.20
of the Financing Agreement are reasonable and adequate for a project of the
size and scope of the approximately 57 megawatt nameplate capacity wind
generation project and the approximately 25 megawatt nameplate capacity
generation project located in Penobscot and Washington Counties, Maine, as more
particularly described in the Financing Agreement (collectively, and
individually, as the case may be, the “Project”).


 


Attached hereto as Schedule A is a true, correct and complete
list of the insurance coverages which have been obtained in connection with the
Project.  Upon delivery of the original
certificates of insurance to Administrative Agent, copies of which are attached
to Schedule A, Borrower will have provided satisfactory evidence of
compliance with the provisions of Section 7.20 of the Financing Agreement.


 


Exhibit G-2


 

















 


It is the Insurance Consultant’s opinion that (i) all required
insurance policies are in full force and effect, are not subject to
cancellation without prior thirty (30) days’ notice and otherwise conform with
the requirements set forth in the Financing Documents and the Material Project
Documents reviewed and summarized within the Insurance Consultant’s report and (ii) since
the date of the aforementioned Insurance Consultant’s report, nothing (outside
of the information contained in any updated or supplemental reports attached
thereto) has come to Insurance Consultant’s attention which would cause it to
change its report.


 


 


	
   

  	
  Respectfully submitted,

  
	
   

  	
  MOORE-MCNEIL, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name: 

  	
   

  
	
   

  	
  Title:

  	
   

  



 


Exhibit G-2


 

















 


EXHIBIT
A


Insurance Consultant’s Report


 


(SEE ATTACHED)


 


Exhibit G-2


 

















 


Schedule A


 


Certificates
of Insurance


 


(SEE ATTACHED)


 


Exhibit G-2


 

















 


EXHIBIT
G-3


to
Financing Agreement


 


FORM OF ENVIRONMENTAL CONSULTANT’S
CERTIFICATE


 


(See
Tab      )


 














 


December       ,
2009


 


BNP Paribas


as Administrative Agent


The Equitable Tower


787 Seventh Avenue


New York, NY 10019


 


Re:                               Phase I Environmental Assessment Stetson
II, T8 R4 NBPP, Washington County, Maine, dated May 13, 2009 (the “Report”),
prepared by Acadia Environmental Technology. (the “Consultant”).


 


Ladies and Gentlemen:


 


This reliance
letter is provided pursuant to that
certain Financing Agreement, dated as of December       ,
2009, made by and
among Stetson Holdings, LLC, a Delaware limited liability company (“Borrower”),
the financial institutions from time to time parties thereto (the “Lenders”),
BNP Paribas (“BNPP”) , as a Joint Lead Arranger, Joint Bookrunner,
Administrative Agent for the Lenders (the “Administrative Agent “),
Security Agent for the Secured Parties (the “Security Agent”), and as
Issuing Bank, and HSH Nordbank AG, New York Branch (“HSHN”), as a Joint
Lead Arranger, Joint Bookrunner, and Co-syndication Agent (as amended, amended
and restated, supplemented or otherwise modified from time to time, the “Financing
Agreement”).


 


The Consultant
prepared the Report as of the date noted above. 
Consultant hereby authorizes (i) BNPP in its capacity as a Joint
Lead Arranger, Joint Bookrunner, Administrative Agent, Security Agent, and
Issuing Bank, and as a Lender, and (ii) HSHN, in its capacity as a Joint
Lead Arranger, Joint Bookrunner, and Co-syndication Agent, and as a Lender, to
rely on the Report referenced in this letter.


 


[signature on the following page]


 

















 


	
  Sincerely,

  	
   

  
	
   

  	
   

  
	
  Acadia Environmental
  Technology

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:  

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
			



 


Attachment A — Report


 


Exhibit G-3


 


1

















 


ATTACHMENT
A


 


Exhibit G-3


 

















 


EXHIBIT
G-4


to
Financing Agreement


 


FORM OF INDEPENDENT ENGINEER’S
CLOSING CERTIFICATE AND REPORT


 


(See
Tab      )


 

















 


INDEPENDENT ENGINEER’S CERTIFICATE AND REPORT


 


Dated as of December       ,
2009


 


BNP Paribas,


as Administrative Agent


The Equitable Tower


787 Seventh Avenue


New York, NY 10019


 


Alberta Investment Management Company


PIP3PX FirstWind Debt Ltd.


PIP3GV FirstWind Debt Ltd.


340 Terrace Building, 9515 - 107 Street 


Edmonton, AB  T5K 2C3 , Canada


Tel: 780.427.6468 


Fax: 780.422.0257


Attn:      William McKenzie


 


Re: Stetson Wind Project


 


Ladies and Gentlemen:


 


The
undersigned, a duly authorized representative of Garrad Hassan America, Inc.,
in its capacity as independent engineer (“Independent Engineer”) to the
Administrative Agent (defined below), hereby provides this letter with respect
to the Project (as defined below) in accordance with: (i) Section 5.1(p) of
the Financing Agreement, dated as of December       ,
2009 (as amended, amended and restated, supplemented or otherwise modified from
time to time, the “Stetson  Financing
Agreement”), by and among Stetson Holdings, LLC, a Delaware limited
liability company (“Borrower”), the financial institutions from time to
time parties thereto (the “Stetson Lenders”), BNP Paribas (“BNPP”),
as a Joint Lead Arranger, Joint Bookrunner, Administrative Agent for the
Lenders (the “Administrative Agent”), Security Agent for the Secured
Parties, and as Issuing Bank, and HSH Nordbank AG, New York Branch (“HSHN”),
as a Joint Lead Arranger, Joint Bookrunner, and Co-syndication Agent and (ii) Section 3.3(k) of
the Amended and Restated Credit Agreement, dated as of December       ,
2009 (as amended, amended and restated, supplemented or otherwise modified from
time to time, the “AIMCO  Credit
Agreement”), by and among CSSW, LLC, CSSW Holdings, LLC, Wells Fargo Bank,
National Association (“Wells Fargo”), as Administrative Agent for the
Lenders and Collateral Agent for the Secured Parties, and the lenders from time
to time party thereto (the “AIMCO Lenders”; and together with the
Stetson Lenders, BNPP, HSHN, .and Wells Fargo, the “Financing Parties”)


 


Independent Engineer acknowledges that pursuant to
the Stetson Financing Agreement, the Stetson Lenders will be providing
financing to Borrower for the ownership and operation of the approximately
57 megawatt nameplate capacity wind generation project and the approximately
25.5 megawatt nameplate capacity wind generation project located in Penobscot
and Washington 


 

















 


Counties, Maine (collectively, and individually, as
the case may be, the “Project”), and, in so doing, will be relying on
this certificate and the Independent Engineer reports attached hereto
(collectively, the “Reports”). 
Independent Engineer certifies to the Financing Parties (and their
permitted successors and assigns) that: (1) attached hereto as Exhibits A
and B are true, correct and complete copies of Independent Engineer’s
Reports and such Reports represent Independent Engineer’s professional opinion
with regard to the Project as of the  dates thereof;
and (2) since the date of the aforementioned Independent Engineer’s
Reports, nothing has come to Independent Engineer’s attention which would cause
it to change its Reports.


 


Consultant disclaims any obligation to update this
letter after the date hereof.  This
letter is not intended to be, and may not be, relied upon by any parties other
than the Financing Parties.  The
Financing Parties, each by its receipt of and reliance on this letter hereby
agrees to the limitations on Consultant’s liability as set forth in Section 7
of the Framework Agreement, dated May 8, 2007.


 


[signature on the following page]


 

















 


	
   

  	
  Sincerely,

  
	
   

  	
   

  
	
   

  	
  GARRAD HASSAN AMERICA,
  INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:  
  

  	
  Eric Tufts

  
	
   

  	
  Title:
  

  	
  Senior Project Manager

  



 

















 


EXHIBIT A


 


(SEE ATTACHED)


 


Exhibit G-4


 


1

















 


EXHIBIT B


 


(SEE ATTACHED)


 


Exhibit F-4


 


2

















 


EXHIBIT
H-1


to
Financing Agreement


 


[Reserved]


 


Exhibit H-1


 


1














 


EXHIBIT
H-2A


to
Financing Agreement


 


SCHEDULE OF BORROWER PERMIT EXCEPTIONS-
ENVIRONMENTAL, PERMITTING, REAL PROPERTY, MAINE REGULATORY MATTERS AND FERC


 


Stetson I Project


 


None


 


Transmission Line


 


None


 


Stetson II Project


 


1.                                       Minor Change Approval to Development
Permit 4788 dated November 17, 2009, for changes to the portion of the
Project located within the D-PD subdistrict subject to DP 4788.


 


Exhibit H-2A


 


1

















 


EXHIBIT
H-2B


to
Financing Agreement


 


SCHEDULE OF APPLICABLE PERMITS- ENVIRONMENTAL,
PERMITTING, REAL PROPERTY, MAINE REGULATORY MATTERS AND FERC


 


PART I


 


Stetson I Project Federal
Aviation Administration Permits


 


1.                                       (a)                                  Federal Aviation Administration Determination of No
Hazard to Air Navigation 2007-ANE-1979-OE, February 6, 2008


 


(b)                                 Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2007-ANE-1979-OE


 


2.                                       (a)                                  Federal Aviation Administration Determination of No
Hazard to Air Navigation 2007-ANE-1980-OE, April 6, 2008


 


(b)                                 Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2007-ANE-1980-OE


 


3.                                       (a)                                  Federal Aviation Administration Determination of No
Hazard to Air Navigation 2007-ANE-1981-OE, April 6, 2008


 


(b)                                 Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2007-ANE-1981-OE


 


4.                                       (a)                                  Federal Aviation Administration Determination of No
Hazard to Air Navigation 2007-ANE-1982-OE, February 6, 2008


 


(b)                                 Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2007-ANE-1982-OE


 


5.                                       (a)                                  Federal Aviation Administration Determination of No
Hazard to Air Navigation 2007-ANE-1983-OE, April 6, 2008


 


(b)                                 Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2007-ANE-1983-OE


 


6.                                       (a)                                  Federal Aviation Administration Determination of No
Hazard to Air Navigation 2007-ANE-1984-OE, April 6, 2008


 


Exhibit H-2B


 


1

















 


(b)                                 Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2007-ANE-1984-OE


 


7.                                       (a)                                  Federal Aviation Administration Determination of No
Hazard to Air Navigation 2007-ANE-1985-OE, February 6, 2008


 


(b)                                 Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2007-ANE-1985-OE


 


8.                                       (a)                                  Federal Aviation Administration Determination of No
Hazard to Air Navigation 2007-ANE-1986-OE, February 6, 2008


 


(b)                                 Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2007-ANE-1986-OE


 


9.                                       (a)                                  Federal Aviation Administration Determination of No
Hazard to Air Navigation 2007-ANE-1987-OE, February 6, 2008


 


(b)                                 Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2007-ANE-1987-OE


 


10.                                 (a)                                  Federal Aviation Administration Determination of No
Hazard to Air Navigation 2007-ANE-1988-OE, February 6, 2008


 


(b)                                 Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2007-ANE-1988-OE


 


11.                                 (a)                                  Federal Aviation Administration Determination of No
Hazard to Air Navigation 2007-ANE-1989-OE, February 6, 2008


 


(b)                                 Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2007-ANE-1989-OE


 


12.                                 (a)                                  Federal Aviation Administration Determination of No
Hazard to Air Navigation 2007-ANE-1990-OE, February 6, 2008


 


(b)                                 Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2007-AEA-2544-OE


 


13.                                 (a)                                  Federal Aviation Administration Determination of No
Hazard to Air Navigation 2007-ANE-1991-OE, February 6, 2008


 


(b)                                 Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2007-ANE-1991-OE


 


14.                                 (a)                                  Federal Aviation Administration Determination of No
Hazard to Air Navigation 2007-ANE-1992-OE, February 6, 2008


 


Exhibit H-2B


 


2

















 


(b)                                 Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2007-ANE-1992-OE


 


15.                                 (a)                                  Federal Aviation Administration Determination of No
Hazard to Air Navigation 2007-ANE-1993-OE, February 6, 2008


 


(b)                                 Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2007-ANE-1993-OE


 


16.                                 (a)                                  Federal Aviation Administration Determination of No
Hazard to Air Navigation 2007-ANE-1994-OE, February 6, 2008


 


(b)                                 Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2007-ANE-1994-OE


 


17.                                 (a)                                  Federal Aviation Administration Determination of No
Hazard to Air Navigation 2007-ANE-1995-OE, February 6, 2008


 


(b)                                 Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2007-ANE-1995-OE


 


18.                                 (a)                                  Federal Aviation Administration Determination of No
Hazard to Air Navigation 2007-ANE-1996-OE, February 6, 2008


 


(b)                                 Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2007-ANE-1996-OE


 


19.                                 (a)                                  Federal Aviation Administration Determination of No
Hazard to Air Navigation 2007-ANE-1997-OE, February 6, 2008


 


(b)                                 Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2007-ANE-1997-OE


 


20.                                 (a)                                  Federal Aviation Administration Determination of No
Hazard to Air Navigation 2007-ANE-1998-OE, February 6, 2008


 


(b)                                 Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2007-ANE-1998-OE


 


21.                                 (a)                                  Federal Aviation Administration Determination of No
Hazard to Air Navigation 2007-ANE-1999-OE, February 6, 2008


 


(b)                                 Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2007-ANE-1999-OE


 


22.                                 (a)                                  Federal Aviation Administration Determination of No
Hazard to Air Navigation 2007-ANE-2000-OE, February 6, 2008


 


Exhibit H-2B


 


3

















 


(b)                                 Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2007-ANE-2000-OE


 


23.                                 (a)                                  Federal Aviation Administration Determination of No
Hazard to Air Navigation 2007-ANE-2001-OE, February 6, 2008


 


(b)                                 Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2007-ANE-2001-OE


 


24.                                 (a)                                  Federal Aviation Administration Determination of No
Hazard to Air Navigation 2007-ANE-2002-OE, February 6, 2008


 


(b)                                 Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2007-ANE-2002-OE


 


25.                                 (a)                                  Federal Aviation Administration Determination of No
Hazard to Air Navigation 2007-ANE-2003-OE, February 6, 2008


 


(b)                                 Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2007-ANE-2003-OE


 


26.                                 (a)                                  Federal Aviation Administration Determination of No
Hazard to Air Navigation 2007-ANE-2004-OE, February 6, 2008


 


(b)                                 Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2007-ANE-2004-OE


 


27.                                 (a)                                  Federal Aviation Administration Determination of No
Hazard to Air Navigation 2007-ANE-2005-OE, February 6, 2008


 


(b)                                 Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2007-ANE-2005-OE


 


28.                                 (a)                                  Federal Aviation Administration Determination of No
Hazard to Air Navigation 2007-ANE-2006-OE, February 6, 2008


 


(b)                                 Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2007-ANE-2006-OE


 


29.                                 (a)                                  Federal Aviation Administration Determination of No
Hazard to Air Navigation 2007-ANE-2007-OE, February 6, 2008


 


(b)                                 Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2007-ANE-2007-OE


 


30.                                 (a)                                  Federal Aviation Administration Determination of No
Hazard to Air Navigation 2007-ANE-2008-OE, February 6, 2008


 


Exhibit H-2B


 


4

















 


(b)                                 Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2007-ANE-2008-OE


 


31.                                 (a)                                  Federal Aviation Administration Determination of No
Hazard to Air Navigation 2007-ANE-2009-OE, February 6, 2008


 


(b)                                 Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2007-ANE-2009-OE


 


32.                                 (a)                                  Federal Aviation Administration Determination of No
Hazard to Air Navigation 2007-ANE-2010-OE, February 6, 2008


 


(b)                                 Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2007-ANE-2010-OE


 


33.                                 (a)                                  Federal Aviation Administration Determination of No
Hazard to Air Navigation 2007-ANE-2011-OE, February 6, 2008


 


(b)                                 Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2007-ANE-2011-OE


 


34.                                 (a)                                  Federal Aviation Administration Determination of No
Hazard to Air Navigation 2007-ANE-2012-OE, February 6, 2008


 


(b)                                 Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study
No2007-ANE-2012-OE


 


35.                                 (a)                                  Federal Aviation Administration Determination of No
Hazard to Air Navigation 2007-ANE-2013-OE, February 6, 2008


 


(b)                                 Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2007-ANE-2013-OE


 


36.                                 (a)                                  Federal Aviation Administration Determination of No
Hazard to Air Navigation 2007-ANE-2014-OE, February 6, 2008


 


(b)                                 Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2007-ANE-2014-OE


 


37.                                 (a)                                  Federal Aviation Administration Determination of No
Hazard to Air Navigation 2007-ANE-2015-OE, February 6, 2008


 


(b)                                 Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2007-ANE-2015-OE


 


38.                                 (a)                                  Federal Aviation Administration Determination of No
Hazard to Air Navigation 2007-ANE-2016-OE, February 6, 2008


 


Exhibit H-2B


 


5

















 


(b)                                 Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2007-ANE-2016-OE


 


39.                                 Federal Aviation Administration Determination
of No Hazard to Air Navigation 2007-ANE-576-OE, April 30, 2007


 


40.                                 Federal Aviation Administration
Determination of No Hazard to Air Navigation 2007-ANE-577-OE, April 30,
2007


 


41.                                 Federal Aviation Administration
Determination of No Hazard to Air Navigation 2007-ANE-578-OE, April 30,
2007


 


42.                                 Federal Aviation Administration
Determination of No Hazard to Air Navigation 2007-ANE-579-OE, April 30,
2007


 


Stetson I Project FERC Permits


 


43.                                 Federal Energy Regulatory Commission
Notice in Docket No. EG09-24-000 Acknowledging Effectiveness of Borrower’s
Exempt Wholesale Generator Status, Hay Canyon Wind LLC, et al., Notice
in Docket Nos. EG09-19-000, et al. (May 27, 2009).


 


44.                                 Order of the Federal Energy Regulatory
Commission Granting the Application of Evergreen Wind Power V, LLC, for Order
Accepting Initial Market-Based Rate Tariff, Waiving Regulations, and Granting
Blanket Approvals, Unpublished Letter Order in Docket Nos. ER09-174-000 and
ER09-174-001 (January 15, 2009).


 


Stetson I Project — Other Federal
Permits


 


1.                                       U.S. Army Corps of Engineers Permit,
issued May 15, 2008 (appeal period runs May 15, 2013).


 


Stetson I Project — State of
Maine Permits


 


1.                                       Approved LURC Zoning Petition ZP 713 and
Preliminary Development Plan, T8 R3 NBPP and T8 R4 NBPP, Washington County,
issued November 7, 2007.


 


2.                                       Approved LURC Final Development Plan
Permit DP 4788, T8 R3 NBPP and T8 R4 NBPP, Washington County, issued January 2,
2008.


 


3.                                       Approved LURC Amendment A to Final
Development Plan Permit DP 4788, T8 R3 NBPP and T8 R4 NBPP, Washington County,
issued March 11, 2008.


 


4.                                       Correction to Final Development Plan
Permit DP 4788, T8 R3 NBPP and T8 R4 NBPP, Washington County, issued July 22,
2008.


 


5.                                       Maine Department of Environmental
Protection Site Location of Development Act, Natural Resources Protection Act
Permit and Water Quality Certificate, issued March 18, 2008.


 


Exhibit H-2B


 


6

















 


6.                                       LURC Staff clarified Condition #12A of
the Final Development Plan Permit, dated May 22, 2008.


 


7.                                       Notice of Intent to Comply with Maine
Construction General Permit (LURC), dated December 13, 2007.


 


8.                                       Notice of Intent to Comply with Maine
Construction General Permit (DEP).


 


Exhibit H-2B


 


7

















 


Stetson I Project — Municipal Permits


 


1.                                       Town of Woodville Shoreland Zoning
Permit, issued April 16, 2008.


 


2.                                       Town of Chester Shoreland Zoning Permit,
issued April 23, 2008.


 


3.                                       Town of Mattawamkeag Shoreland Zoning
Permit, issued April 25, 2008.


 


4.                                       Town of Chester Flood Hazard Development
Permit, issued October 20, 2008.


 


5.                                       Town of Mattawamkeag Flood Hazard
Development Permit, issued October 12, 2008.


 


Exhibit H-2B


 


8

















 


GENERATOR LEAD PERMITS


 


1.                                       Department of Environmental Protection
Site Order dated March 18, 2008 and filed in the Penobscot County Registry
of Deeds in Book 11345, Page 249.


 


2.                                       Town of Chester Utility Location Permit
for crossing the Pea Ridge Road.


 


3.                                       Town of Mattawamkeag Utility Location
Permit dated May 22, 2008 for crossing the River Road.


 


4.                                       Town of Woodville Utility Location Permit
dated May 12, 2008 for crossing the Butterfield Ridge Road and the River
Road.


 


5.                                       Carroll Plantation Utility Location
Permit dated April 28, 2008 for crossing the North Road


 


6.                                       State of Maine
Utility Location Permits for multiple crossings all dated February 7, 2008
for Route 116, Chester, Route 2, Mattawamkeag, Route 169, Prentiss and two
crossings of Route 170 Prentiss.


 


Exhibit H-2B


 


9














 


Stetson II Project Federal
Aviation Administration Permits


 


1.             (a)           Federal
Aviation Administration Determination of No Hazard to Air Navigation
2009-WTE-1346-OE, April 9, 2009


 


(b)           Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2009-WTE-1346-OE


 


2.             (a)           Federal
Aviation Administration Determination of No Hazard to Air Navigation
2009-WTE-1347-OE, April 9, 2009


 


(b)           Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2009-WTE-1347-OE


 


3.             (a)           Federal
Aviation Administration Determination of No Hazard to Air Navigation
2009-WTE-1348-OE, April 9, 2009


 


(b)           Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2009-WTE-1348-OE


 


4.             (a)           Federal
Aviation Administration Determination of No Hazard to Air Navigation
2008-WTE-1385-OE, October 7, 2008


 


(b)           Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2008-WTE-1385-OE


 


5.             (a)           Federal
Aviation Administration Determination of No Hazard to Air Navigation
2008-WTE-1386-OE, October 7, 2008


 


(b)           Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2008-WTE-1386-OE


 


6.             (a)           Federal
Aviation Administration Determination of No Hazard to Air Navigation
2008-WTE-1387-OE, October 7, 2008


 


(b)           Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2008-WTE-1387-OE


 


7.             (a)           Federal
Aviation Administration Determination of No Hazard to Air Navigation
2008-WTE-1388-OE, October 7, 2008


 


(b)           Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2008-WTE-1388-OE


 


8.             (a)           Federal
Aviation Administration Determination of No Hazard to Air Navigation
2008-WTE-1389-OE, October 7, 2008


 


Exhibit H-2B


 


10

















 


(b)           Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2008-WTE-1389-OE


 


9.             (a)           Federal
Aviation Administration Determination of No Hazard to Air Navigation
2008-WTE-1390-OE, October 7, 2008


 


(b)           Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2008-WTE-1390-OE


 


10.           (a)           Federal
Aviation Administration Determination of No Hazard to Air Navigation
2008-WTE-1391-OE, October 7, 2008


 


(b)           Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2008-WTE-1391-OE


 


11.           (a)           Federal
Aviation Administration Determination of No Hazard to Air Navigation
2008-WTE-1392-OE, October 7, 2008


 


(b)           Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2008-WTE-1392-OE


 


12.           (a)           Federal
Aviation Administration Determination of No Hazard to Air Navigation
2008-WTE-1393-OE, October 7, 2008


 


(b)           Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2008-WTE-1393-OE


 


13.           (a)           Federal
Aviation Administration Determination of No Hazard to Air Navigation
2008-WTE-1394-OE, October 7, 2008


 


(b)           Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2008-WTE-1394-OE


 


14.           (a)           Federal
Aviation Administration Determination of No Hazard to Air Navigation
2008-WTE-1395-OE, October 7, 2008


 


(b)           Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2008-WTE-1395-OE


 


15.           (a)           Federal
Aviation Administration Determination of No Hazard to Air Navigation
2008-WTE-1396-OE, October 7, 2008


 


(b)           Form 7460-2, Federal Aviation Administration
Notice of Actual Construction or Alteration, Aeronautical Study No. 2008-WTE-1396-OE


 


Exhibit H-2B


 


11

















 


16.           (a)           Federal
Aviation Administration Determination of No Hazard to Air Navigation 2008-WTE-1397-OE,
October 7, 2008


 


(b)           Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2008-WTE-1397-OE


 


17.           (a)           Federal
Aviation Administration Determination of No Hazard to Air Navigation 2008-WTE-1398-OE,
October 7, 2008


 


(b)           Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2008-WTE-1398-OE


 


18.           (a)           Federal
Aviation Administration Determination of No Hazard to Air Navigation 2008-WTE-1399-OE,
October 7, 2008


 


(b)           Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2008-WTE-1399-OE


 


19.           (a)           Federal
Aviation Administration Determination of No Hazard to Air Navigation 2008-WTE-1400-OE,
October 7, 2008


 


(b)           Form 7460-2, Federal Aviation
Administration Notice of Actual Construction or Alteration, Aeronautical Study No. 2008-WTE-1400-OE


 


20.           (a)           Federal
Aviation Administration Determination of No Hazard to Air Navigation 2008-WTE-1401-OE,
October 7, 2008


 


(b)           Form 7460-2, Federal Aviation Administration
Notice of Actual Construction or    Alteration,
Aeronautical Study No. 2008-WTE-1401-OE


 


Stetson II Project FERC Permits


 


1.             Stetson Wind II’s Notice of
Self-Certification as an Exempt Wholesale Generator, Notice in Docket No. EG10-13-000
(December 16, 2009).


 


2.             Stetson Wind II’s Application for Order
Accepting Initial Market-Based Tariff, Waiving Regulations, and Granting
Blanket Approvals, Application in Docket No. ER10-426-000 (December 16,
2009).


 


Exhibit H-2B


 


12

















 


Stetson II Project — State of
Maine Permits


 


1.             Approved LURC Stetson Wind II, LLC
Development Permit DP 4818, T8 R4 NBPP, Washington County, issued March, 4,
2009.


 


2.             Approved LURC Amendment B to Final
Development Plan Permit DP 4788, T8 R4 NBPP, Washington County, issued March 6,
2009.


 


3.             State of Maine, Department of
Transportation, Special Opening Permit to Stetson Wind II, LLC for the
construction of road widening for wind turbine transport.


 


4.             Maine Department of Transportation,
Driveway/Entrance Permit, Number 8924, issued March 9, 2009.


 


5.             Maine Department of Transportation,
Driveway/Entrance Permit, Number 8927, issued March 9, 2009.


 


6.             Maine Department of Transportation,
Driveway/Entrance Permit, Number 8958, issued April 15, 2009.


 


7.             State of Maine, Department of
Transportation, Highway Opening Permit No. R5-0809-029, issued March 25,
2009.


 


8.             State of Maine, Department of
Transportation, Location Permit, Permit Record Number 56861, issued March 25,
2009.


 


9.             Approved LURC Stetson Wind II, LLC
Development Permit DP 4786, T8 R4 NBPP, Washington County, issued December 5,
2007.


 


10.           Notice of Intent to Comply with Maine
Construction General Permit (DEP), accepted March 26, 2009.


 


11.           Application for a Department of
Environmental Protection Stormwater Permit By Rule dated October 27,
2008.


 


Exhibit H-2B


 


13

















 


EXHIBIT
H-3


to
Financing Agreement


 


GOVERNMENTAL REGULATIONS


 


None.


 


Exhibit H-3


 


1

















 


EXHIBIT
H-4


to
Financing Agreement


 


[Reserved]


 


Exhibit H-4


 


1

















 


EXHIBIT
H-5


to
Financing Agreement


 


PENDING LITIGATION


 


1.             PowerTel Utilities Contractors Limited (“PowerTel”)
has asserted claims for additional compensation against Evergreen Wind Power V,
LLC, arising from the construction of a 38 mile electricity transmission line
from the Project to Bangor Hydro’s Keene Road Switching Station (“Line 56
Project”).   Specifically, PowerTel, as
the general contractor on the Line 56 Project, has asserted claims for
additional compensation in excess of $2 million arising from alleged
impacts to PowerTel’s work caused by certain unforeseen conditions and lost
productivity


 


Exhibit H-5


 


1

















 


EXHIBIT
H-6


to
Financing Agreement


 


ENVIRONMENTAL
MATTERS DISCLOSURE


 


None.


 


Exhibit H-6


 


1

















 


EXHIBIT
H-7


to
Financing Agreement


 


CHIEF
EXECUTIVE OFFICE OF BORROWER


 


Stetson Holdings, LLC


 


c/o First Wind Energy, LLC


 


179 Lincoln Street, Suite 500


 


Boston, Massachusetts, 02111


 






 


Evergreen Wind Power V, LLC


 


c/o First Wind Energy, LLC


 


179 Lincoln Street, Suite 500


 


Boston, Massachusetts, 02111


 






 


Stetson Wind II, LLC


 


c/o First Wind Energy, LLC


 


179 Lincoln Street, Suite 500


 


Boston, Massachusetts, 02111


 


Exhibit H-7


 


1














 


EXHIBIT
H-8A


to
Financing Agreement


 


DESCRIPTION
OF STETSON I REAL PROPERTY INTERESTS


 


LEASE


 


	
  Stetson
  Tax

  Map/Lot Nos.

  	
   

  	
  Leases

  	
   

  	
  Property

  (described in Memorandum of 

  Lease recorded as follows at the 

  Washington County Registry of 

  Deeds)

  
	
  p/o Lot 1, Map WA23;
  

  p/o Lot 11, Map WA26

  	
   

  	
  Land Lease Agreement
  from Lakeville Shores, Inc. dated
  October 12, 2006

  	
   

  	
  Memorandum recorded
  October 17, 2008 in Bk 3462 Pg 292

  



 


AGREEMENTS


 


Shared Facilities and Sublease Agreement
between Evergreen Wind Power V, LLC and Stetson Wind II, LLC, as evidenced by
Memorandum of Shared Facilities and Sublease Agreement dated as of the date of
this Financing Agreement, to be recorded in the Washington County Registry of
Deeds.


 


Exhibit H-8A


 


1

















 


EXHIBIT
H-8B


to
Financing Agreement


 


DESCRIPTION
OF STETSON II REAL PROPERTY INTERESTS


 


LAND AND EASEMENT RIGHTS


 


Leasehold
Rights:


 


Lease as evidenced by
Memorandum of Lease dated December 26, 2008 by and between Lakeville
Shores, Inc. and Stetson Wind II, LLC recorded on December 30, 2008
in Book 3482, Page 141, Washington County, Maine, and as amended by First
Amendment to Amended and Restated Land Lease Agreement dated June 12,
2009, recorded on June 30, 2009 in Book 3543, Page 234, Washington
County, Maine.


 


Easement Rights:


 


Easement as evidenced by
Grant of Easements dated June 12, 2009, recorded on June 30, 2009 in
Book 3543, Page 249, Washington County, Maine.


 


LAYDOWN LEASE


 


Lease as
evidenced by Memorandum of Lease dated June 12, 2009 by and between Dellis
J. Huff, Jessica P. Huff and Stetson Wind II, LLC recorded on June 15,
2009 in Book 3549, Page 49, Washington County, Maine


 


ANCILLARY RIGHTS AND PROPERTIES


 


Agreements


 


Shared Facilities and Sublease Agreement between Evergreen Wind Power
V, LLC and Stetson Wind II, LLC, as evidenced by Memorandum of Shared
Facilities and Sublease Agreement dated as of the date of this Financing
Agreement, to be recorded in the Washington County Registry of Deeds.


 


Road Crossing Permit


 


Unrecorded Utility
Location Permit Record No. 56861 issued by the State of Maine Department
of Transportation to Stetson Wind II, LLC, dated March 25, 2009, for
crossing Route 169.


 


Exhibit H-8B


 


1

















 


EXHIBIT
H-9


to
Financing Agreement


 


DESCRIPTION
OF TRANSMISSION LINE REAL PROPERTY INTERESTS


 


Deeds Conveying
Land to Mortgagor


 


 


	
  1.

  	
   

  	
  Deed dated as of
  April 28, 2008 between Evergreen Wind Power V, LLC, and Donald Morin and
  Elizabeth A. Morin and recorded in the Penobscot County Registry of Deeds in
  Book 11379, Page 121.

  
	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Deed dated as of
  May 22, 2008 between Evergreen Wind Power V, LLC, and Huber Timer, LLC
  and recorded in the Penobscot County Registry of Deeds in Book 11403,
  Page 237.

  
	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Deed
  dated as of May 12, 2008 between Evergreen Wind Power V, LLC, and
  Prentiss & Carlisle Co. and recorded in the Penobscot County
  Registry of Deeds in Book 11424, Page 100.

  
	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  Deed
  dated as of June 14, 2007 between Evergreen Wind Power V, LLC, and Ricky
  Deloge, Sr. and recorded in the Penobscot County Registry of Deeds in
  Book 11012, Page 347.

  
	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Deed dated as of
  March 26, 2008 between Evergreen Wind Power V, LLC, and Harlan H.
  Whitney and Pauline D. Whitney and recorded in the Penobscot County Registry
  of Deeds in Book 11338. Page 154.

  
	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  Deed
  dated as of June 24, 2008 between Evergreen Wind Power V, LLC, and
  Harlan H. Whitney and Pauline D. Whitney and recorded in the Penobscot County
  Registry of Deeds in Book 11444, Page 114.

  
	
   

  	
   

  	
   

  
	
  7.

  	
   

  	
  Deed
  dated as of May 12, 2008 between Evergreen Wind Power V, LLC, and
  Prentiss & Carlisle Co. and recorded in the Penobscot County
  Registry of Deeds in Book 11424, Page 116.

  
	
   

  	
   

  	
   

  
	
  8.

  	
   

  	
  Deed
  dated as of June 24, 2008 between Evergreen Wind Power V, LLC, and
  Donald L. Whitney and recorded in the Penobscot County Registry of Deeds in
  Book 11444, Page 112.

  
	
   

  	
   

  	
   

  
	
  9.

  	
   

  	
  Deed
  dated as of March, 11 2008 between Evergreen Wind Power V, LLC, and Donald L.
  Whitney and recorded in the Penobscot County Registry of Deeds in
  Book 11322, Page 275. Said deed being corrected by document dated
  June 24, 2008 and recorded in said Registry of Deeds in Book 11444,
  Page 110.

  
	
   

  	
   

  	
   

  
	
  10.

  	
   

  	
  Deed
  dated as of March 22, 2008 between Evergreen Wind Power V, LLC, and John
  R. Whitney and Deborah M. Whitney and recorded in the Penobscot County
  Registry of Deeds in Book 11332, Page 340.

  
	
   

  	
   

  	
   

  
	
  11.

  	
   

  	
  Deed dated as of May 14, 2008
  between Evergreen Wind Power V, LLC, and Robert Harmon, Jr. and recorded
  in the Penobscot County Registry of Deeds in Book 11392, Page 109.

  



 


Exhibit H-9


 


1

















 


	
  12.

  	
   

  	
  Deed
  dated as of April 10, 2008 between Evergreen Wind Power V, LLC, and
  Andrew G. Edwards and recorded in the Penobscot County Registry of Deeds in
  Book 11354, Page 291.

  
	
   

  	
   

  	
   

  
	
  13.

  	
   

  	
  Deed dated as of
  March 13, 2008 between Evergreen Wind Power V, LLC, and Gary A. Fleming
  and Cynthia Fleming and recorded in the Penobscot County Registry of Deeds in
  Book 11330, Page 56.

  
	
   

  	
   

  	
   

  
	
  14.

  	
   

  	
  Deed dated as of
  October 24, 2007 between Evergreen Wind Power V, LLC, and H C
  Haynes, Inc. and recorded in the Penobscot County Registry of Deeds in
  Book 11226, Page 162.

  
	
   

  	
   

  	
   

  
	
  15.

  	
   

  	
  Deed dated as of
  October 30, 2004 between Evergreen Wind Power V, LLC, and Henry D.
  Provencher and recorded in the Penobscot County Registry of Deeds in Book
  11187, Page 311.

  
	
   

  	
   

  	
   

  
	
  16.

  	
   

  	
  Deed
  dated as of May 7, 2008 between Evergreen Wind Power V, LLC, and
  Prentiss & Carlisle Co. and recorded in the Penobscot County
  Registry of Deeds in Book 11386, Page 8.

  
	
   

  	
   

  	
   

  
	
  17.

  	
   

  	
  Deed
  dated as of May 9, 2008 between Evergreen Wind Power V, LLC, and
  Lakeville Shores, Inc. and recorded in the Penobscot County Registry of
  Deeds in Book 11392, Page 76.

  
	
   

  	
   

  	
   

  
	
  18.

  	
   

  	
  Deed
  dated as of April 21, 2008 between Evergreen Wind Power V, LLC, and
  Lakeville Shores, Inc. and recorded in the Penobscot County Registry of
  Deeds in Book 11367, Page 185.

  
	
   

  	
   

  	
   

  
	
  19.

  	
   

  	
  Deed
  dated as of March 11, 2008 between Evergreen Wind Power V, LLC, and
  Jamie Lee Steeves and recorded in the Penobscot County Registry of Deeds in
  Book 11320, Page 125.

  
	
   

  	
   

  	
   

  
	
  20.

  	
   

  	
  Deed dated as of
  November 6, 2007 between Evergreen Wind Power V, LLC, and Marjorie White
  Ghost and recorded in the Penobscot County Registry of Deeds in Book 11198,
  Page 46.

  
	
   

  	
   

  	
   

  
	
  21.

  	
   

  	
  Deed dated as of
  May 12, 2008 between Evergreen Wind Power V, LLC, and
  Prentiss & Carlisle Co., Inc. and McCrillis Timberlands, LLC
  and recorded in the Penobscot County Registry of Deeds in Book 11393,
  Page 96.

  
	
   

  	
   

  	
   

  
	
  22.

  	
   

  	
  Deed dated as of
  March 18, 2008 between Evergreen Wind Power V, LLC, and Thomas E.
  Linscott and Karen B. Linscott and recorded in the Penobscot County Registry
  of Deeds in Book 11329, Page 273.

  
	
   

  	
   

  	
   

  
	
  23.

  	
   

  	
  Deed dated as of
  July 3, 2008 between Evergreen Wind Power V, LLC, and J. Robert
  Hudson and recorded in the Penobscot County Registry of Deeds in
  Book 11474, Page 343.

  
	
   

  	
   

  	
   

  
	
  Instruments Conveying Easement Rights to Mortgagor

  
	
   

  	
   

  	
   

  
	
  1.

  	
   

  	
  Easement dated
  October 10, 2008 between Evergreen Wind Power V, LLC, and Bangor Hydro
  Electric Company and recorded in the Penobscot County Registry of Deeds in
  Book 11563, Page 77.

  



 


Exhibit H-8B


 


2

















 


	
  2.

  	
   

  	
  Easement dated as of
  October 2, 2008 between Evergreen Wind Power V, LLC, and Maine Electric
  Power Company and recorded in the Penobscot County Registry of Deeds in Book
  11553, Page 18.

  
	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Easement dated as of
  April 21, 2008 between Evergreen Wind Power V, LLC, and Lakeville
  Shores, Inc. and recorded in the Penobscot County Registry of Deeds in
  Book 11367, Page 187.

  
	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  Easement dated as of
  April 4, 2008 between Evergreen Wind Power V, LLC, and Loren A. Hale and
  Joyce M. Hale and recorded in the Penobscot County Registry of Deeds in Book
  11351, Page 117.

  
	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Easement
  dated as of March 13, 2008 between Evergreen Wind Power V, LLC, and
  Roscoe Tash and recorded in the Penobscot County Registry of Deeds in
  Book 11327, Page 236.

  
	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  Easement
  dated as of August 2, 2007 between Evergreen Wind Power V, LLC, and
  Elgin H. Turner and recorded in the Penobscot County Registry of Deeds in
  Book 11140, Page 1.

  
	
   

  	
   

  	
   

  
	
  7.

  	
   

  	
  Easement
  dated as of May 30, 2008 between Evergreen Wind Power V, LLC, and Edwin
  Tash, Sr. et al and recorded in the Penobscot County Registry of Deeds
  in Book 11418, Page 84.

  
	
   

  	
   

  	
   

  
	
  8.

  	
   

  	
  Easement
  dated April 15, 2008 between Evergreen Wind Power V, LLC, and The Gerrity
  Family Limited Partnership and recorded in the Penobscot County Registry of
  Deeds in Book 11360, Page 172.

  
	
   

  	
   

  	
   

  
	
  9.

  	
   

  	
  Easement dated as of
  March 4, 2008 between Evergreen Wind Power V, LLC, and Clayton J.
  McCarthy and recorded in the Penobscot County Registry of Deeds in Book
  11317, Page 56.

  
	
   

  	
   

  	
   

  
	
  10.

  	
   

  	
  Easement dated as of
  March 28, 2008 between Evergreen Wind Power V, LLC, and Elaine Reardon
  and recorded in the Penobscot County Registry of Deeds in Book 11360,
  Page 181.

  
	
   

  	
   

  	
   

  
	
  11.

  	
   

  	
  Easement dated as of February 28,
  2008 between Evergreen Wind Power V, LLC, and Albert S. Ring and Linda M.
  Ring and recorded in the Penobscot County Registry of Deeds in Book 11348,
  Page 235.

  
	
   

  	
   

  	
   

  
	
  12.

  	
   

  	
  Easement dated as of May 9, 2008 between
  Evergreen Wind Power V, LLC, and H C Haynes, Inc. and recorded in the
  Penobscot County Register of Deeds in Book 11392, Page 72.

  
	
   

  	
   

  	
   

  
	
  13.

  	
   

  	
  Easement dated as of March 2, 2008 between
  Evergreen Wind Power V, LLC, and Edward F. Sargent, Jr. and recorded in
  the Penobscot County Registry of Deeds in Book 11348, Page 239.

  



 


Exhibit H-8B


 


3

















 


	
  14.

  	
   

  	
  Easement
  dated as of February 25, 2008 between Evergreen Wind Power V, LLC, and
  Edward Whitney, III, AnneMarie B. Whitney, Scott E. Whitney, Mark J.
  Whitney and recorded in the Penobscot County Registry of Deeds in Book 11329,
  Page 275.

  
	
   

  	
   

  	
   

  
	
  15.

  	
   

  	
  Easement
  dated as of March 6, 2008 between Evergreen Wind Power V, LLC, and
  Shepard V. Sloane-Trustee and recorded in the Penobscot County Registry of
  Deeds in Book 11317, Page 46.

  
	
   

  	
   

  	
   

  
	
  16.

  	
   

  	
  Easement
  dated as of March 14, 2008 between Evergreen Wind Power V, LLC, and Royl
  M. Schoonover and Vanessa V. Schoonover and recorded in the Penobscot County
  Registry of Deeds in Book 11327, Page 239.

  
	
   

  	
   

  	
   

  
	
  17.

  	
   

  	
  Easement
  dated as of May 9, 2008 between Evergreen Wind Power V, LLC, and
  Lakeville Shores, Inc. and recorded in the Penobscot County Registry of
  Deeds in Book 11392, Page 68.

  
	
   

  	
   

  	
   

  
	
  18.

  	
   

  	
  Easement
  dated as of March 4, 2008 between Evergreen Wind Power V, LLC, and
  Clayton J. McCarthy and recorded in the Penobscot County Registry of Deeds in
  Book 11317, Page 51.

  
	
   

  	
   

  	
   

  
	
  19.

  	
   

  	
  Easement dated as of
  March 4, 2008 between Evergreen Wind Power V, LLC, and Hayden P.
  McCarthy and recorded in the Penobscot County Registry of Deeds in Book 11317,
  Page 60. Said easement being corrected by document dated June 26,
  2008 and recorded in said Registry of Deeds in Book 11450, Page 2.

  
	
   

  	
   

  	
   

  
	
  20.

  	
   

  	
  Easement dated as of
  March 26, 2008 between Evergreen Wind Power V, LLC, and Northern
  Timbers, Inc. and recorded in the Penobscot County Registry of Deeds in
  Book 11338, Page 146.

  
	
   

  	
   

  	
   

  
	
  21.

  	
   

  	
  Easement dated as of
  February 22, 2008 between Evergreen Wind Power V, LLC, and C N Brown
  Company and recorded in the Penobscot County Registry of Deeds in Book 11301,
  Page 268.

  
	
   

  	
   

  	
   

  
	
  22.

  	
   

  	
  Easement dated as of
  January 17, 2008 between Evergreen Wind Power V, LLC, and
  Aroostook & Bangor Resources and recorded in the Penobscot County
  Registry of Deeds in Book 11275, Page 109.

  
	
   

  	
   

  	
   

  
	
  23.

  	
   

  	
  Easement dated as of May 2, 2008 between Evergreen
  Wind Power V, LLC, and Richard A. Delaite and David W. Delaite and recorded
  in the Penobscot County Registry of Deeds in Book 11384, Page 320.

  
	
   

  	
   

  	
   

  
	
  24.

  	
   

  	
  Easement dated as of March 11, 2008 between
  Evergreen Wind Power V, LLC, and Bion Tolman and recorded in the Penobscot
  County Registry of Deeds in Book 11322, Page 280.

  



 


Exhibit H-8B


 


4

















 


	
  25.

  	
   

  	
  Easement dated as of June 10, 2008 between
  Evergreen Wind Power V, LLC, and Jeffrey B. Vicaire and Rhonda J. Vicaire and
  recorded in the Penobscot County Registry of Deeds in Book 11426,
  Page 317.

  
	
   

  	
   

  	
   

  
	
  26.

  	
   

  	
  Easement dated as of March 6, 2007 between
  Evergreen Wind Power V, LLC, and Joanne Adams and recorded in the Penobscot
  County Registry of Deeds in Book 11317, Page 64.

  
	
   

  	
   

  	
   

  
	
  27.

  	
   

  	
  Easement dated 2008 between Evergreen Wind Power V,
  LLC, and John M. Kyler and Joan E. H. Kyler and recorded in the Penobscot
  County Registry of Deeds in Book 11450, Page 21.

  
	
   

  	
   

  	
   

  
	
  28.

  	
   

  	
  Easement dated as of March 6, 2008 between
  Evergreen Wind Power V, LLC, and Melvin L. Vicaire and Lynn Vicaire and
  recorded in the Penobscot County Registry of Deeds in Book 11317,
  Page 68.

  
	
   

  	
   

  	
   

  
	
  29.

  	
   

  	
  Easement dated as of February 21, 2008 between
  Evergreen Wind Power V, LLC, and Thomas B. Kates, Jr. and Walter W.
  Hughes and recorded in the Penobscot County Registry of Deeds in Book 11301,
  Page 261.

  
	
   

  	
   

  	
   

  
	
  30.

  	
   

  	
  Easement dated as of February 25, 2008 between
  Evergreen Wind Power V, LLC, and William Ziehl and Rhonda Ziehl and recorded
  in the Penobscot County Registry of Deeds in Book 11311, Page 83.

  
	
   

  	
   

  	
   

  
	
  31.

  	
   

  	
  Easement recorded March 25, 2008 between
  Evergreen Wind Power V, LLC, and Lucy Campbell, Susan Fort, David B.
  Campbell, Sheila Jean, Alan Bruce, and Linda Lucian and recorded in the
  Penobscot County Registry of Deeds in Book 11333, Page 117.

  
	
   

  	
   

  	
   

  
	
  32.

  	
   

  	
  Easement between Evergreen Wind Power V, LLC, and
  Penobscot Forest, LLC and recorded in the Penobscot County Registry of Deeds
  in Book 11473, Page 276.

  
	
   

  	
   

  	
   

  
	
  33.

  	
   

  	
  Easement dated as of April 21, 2008 between
  Evergreen Wind Power V, LLC, and Lakeville Shores, Inc. and recorded in
  the Penobscot County Registry of Deeds in Book 11367, Page 191.

  
	
   

  	
   

  	
   

  
	
  34.

  	
   

  	
  Easement dated as of June 24, 2008 between
  Evergreen Wind Power V, LLC, and John Hagemeyer and Sylvia Hagemeyer and recorded
  in the Penobscot County Registry of Deeds in Book 11444, Page 105.

  
	
   

  	
   

  	
   

  
	
  35.

  	
   

  	
  Assignment and Assumption dated as of June 6,
  2008 between Evergreen Wind Power V, LLC, and Eastern Maine Electric
  Cooperative, Inc. and recorded in the Penobscot County Registry of Deeds
  in Book 11420, Page 179.

  



 


Exhibit H-8B


 


5

















 


	
  36.

  	
   

  	
  Easement dated as of June 20, 2008 between
  Evergreen Wind Power V, LLC, and Naturals Rod & Gun Club and
  recorded in the Penobscot County Registry of Deeds in Book 11450,
  Page 6.

  
	
   

  	
   

  	
   

  
	
  37.

  	
   

  	
  Easement dated as of September 19, 2008 between
  Evergreen Wind Power V, LLC, and State of Maine, Inland Fisheries and
  Wildlife and recorded in the Penobscot County Registry of Deeds in Book
  11537, Page 290.

  
	
   

  	
   

  	
   

  
	
  38.

  	
   

  	
  Easement dated as of May 9, 2008 between
  Evergreen Wind Power V, LLC, and Haynes Timberland, Inc. and recorded in
  the Penobscot County Registry of Deeds in Book 11392, Page 94.

  
	
   

  	
   

  	
   

  
	
  39.

  	
   

  	
  Easement dated as of April 17, 2008 between
  Evergreen Wind Power V, LLC, and Charles Alferes and Ethel Alferes-Trustees
  and recorded in the Penobscot County Registry of Deeds in Book 11367,
  Page 205.

  
	
   

  	
   

  	
   

  
	
  40.

  	
   

  	
  Easement dated as of May 9, 2008 between
  Evergreen Wind Power V, LLC, and Haynes Timberland, Inc. and recorded in
  the Penobscot County Registry of Deeds in Book 11392, Page 86.

  
	
   

  	
   

  	
   

  
	
  41.

  	
   

  	
  Easement dated as of May 9, 2008 between
  Evergreen Wind Power V, LLC, and Haynes Timberland, Inc. and recorded in
  the Penobscot County Registry of Deeds in Book 11392, Page 90.

  
	
   

  	
   

  	
   

  
	
  42.

  	
   

  	
  Easement dated as of May 9, 2008 between
  Evergreen Wind Power V, LLC, and Ginger Maxwell and recorded in the Penobscot
  County Registry of Deeds in Book 11392, Page 78, as corrected by
  Corrective Easement from Ginger Maxwell dated November 25, 2009 and
  recorded at said Registry in Book 11987, Page 189.

  
	
   

  	
   

  	
   

  
	
  43.

  	
   

  	
  Easement dated as of July 31, 2008 between
  Evergreen Wind Power V, LLC, and John A. Dudley, III and Debra Dudley
  and recorded in the Penobscot County Registry of Deeds in Book 11486,
  Page 2.

  
	
   

  	
   

  	
   

  
	
  44.

  	
   

  	
  Easement dated as of July 15, 2008 between
  Evergreen Wind Power V, LLC, and John E. Osgood and Susan Osgood and recorded
  in the Penobscot County Registry of Deeds in Book 11465, Page 80.

  
	
   

  	
   

  	
   

  
	
  45.

  	
   

  	
  Easement dated as of March 18, 2008 between
  Evergreen Wind Power V, LLC, and Kevin R. Tozier and recorded in the
  Penobscot County Registry of Deeds in Book 11329, Page 278.

  



 


Exhibit H-8B


 


6

















 


	
  46.

  	
   

  	
  Easement dated as of May 12, 2008 between
  Evergreen Wind Power V, LLC, and Prentiss & Carlisle Company and
  McCrillis Timberlands, LLC and recorded in the Penobscot County Registry of
  Deeds in Book 11392, Page 103.

  
	
   

  	
   

  	
   

  
	
  47.

  	
   

  	
  Easement dated as of February 21, 2008 between
  Evergreen Wind Power V, LLC, and Delia M. Parker and recorded in the
  Penobscot County Registry of Deeds in Book 11301, Page 264.

  
	
   

  	
   

  	
   

  
	
  48.

  	
   

  	
  Easement dated as of March 10, 2008 between
  Evergreen Wind Power V, LLC, and Junior L. Smith and Christine C. Goldsmith
  and recorded in the Penobscot County Registry of Deeds in Book 11322,
  Page 277.

  
	
   

  	
   

  	
   

  
	
  49.

  	
   

  	
  Easement dated as of May 9, 2008 between
  Evergreen Wind Power V, LLC, and Estate of Herbert Haynes, by Personal
  Representative and recorded in the Penobscot County Registry of Deeds in Book
  11392, Page 82.

  
	
   

  	
   

  	
   

  
	
  50.

  	
   

  	
  Easement dated as of January 15, 2008 between
  Evergreen Wind Power V, LLC, and Susan Claerbout and Kenneth Claerbout and
  recorded in the Penobscot County Registry of Deeds in Book 11284,
  Page 312.

  
	
   

  	
   

  	
   

  
	
  51.

  	
   

  	
  Easement dated as of April 21, 2008 between
  Evergreen Wind Power V, LLC, and Herbert C. Haynes, Jr. and recorded in
  the Penobscot County Registry of Deeds in Book 11367, Page 201.

  
	
   

  	
   

  	
   

  
	
  52.

  	
   

  	
  Easement dated as of April 21, 2008 between
  Evergreen Wind Power V, LLC, and Lakeville Shores, Inc. and recorded in
  the Penobscot County Registry of Deeds in Book 11367, Page 196.

  
	
   

  	
   

  	
   

  
	
  53.

  	
   

  	
  Easement dated as of February 15, 2008 between
  Evergreen Wind Power V, LLC, and Gardner Land Company, Inc. and recorded
  in the Penobscot County Registry of Deeds in Book 11329, Page 282.

  
	
   

  	
   

  	
   

  
	
  54.

  	
   

  	
  Easement dated as of March 21, 2008 between
  Evergreen Wind Power V, LLC, and Dennis Gould and Robert Yorks and recorded
  in the Penobscot County Registry of Deeds in Book 11332, Page 337.

  
	
   

  	
   

  	
   

  
	
  55.

  	
   

  	
  Easement dated as of March 20, 2008 between
  Evergreen Wind Power V, LLC, and Eileen Marie Beaulieu and recorded in the
  Penobscot County Registry of Deeds in Book 11332, Page 334.

  
	
   

  	
   

  	
   

  
	
  56.

  	
   

  	
  Easement dated as of August 28, 2008 between
  Evergreen Wind Power V, LLC, and Louis M. Coiro and Patricia R. Joyce Coiro
  and recorded in the Penobscot County Registry of Deeds in Book 11531,
  Page 217.

  



 


Exhibit H-8B


 


7

















 


	
  57.

  	
   

  	
  Easement
  dated as of March 26, 2008 between Evergreen Wind Power V, LLC, and
  Russell Brown and recorded in the Penobscot County Registry of Deeds in
  Book 11362, Page 184.

  
	
   

  	
   

  	
   

  
	
  58.

  	
   

  	
  Easement
  rights reserved in a Deed dated as of March 24, 2008 between Evergreen
  Wind Power V, LLC, and Louis M. Coiro and recorded in the Penobscot County
  Registry of Deeds in Book 11531, Page 220.

  
	
   

  	
   

  	
   

  
	
  59.

  	
   

  	
  Grant
  of Easements 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.

  
	
   

  	
   

  	
   

  
	
  Crossing Agreements

  
	
   

  	
   

  	
   

  
	
  1.

  	
   

  	
  Crossing
  Easement Agreement between Evergreen Wind Power V, LLC and Bangor Hydro
  Electric Company dated October 10, 2008 and recorded in the Penobscot
  County Registry of Deeds in Book 11563, Page 59.

  
	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Transmission
  Line Crossing Area Consent and Agreement between Evergreen Wind Power V, LLC
  and Bangor Hydro Electric Company dated October 10, 2008 and recorded in
  the Penobscot County Registry of Deeds in Book 11563, Page 41.

  
	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Overhead
  Wire Agreement dated May 1, 2008 between Evergreen Wind Power V, LLC,
  and Eastern Maine Railway Company and recorded in the Penobscot County
  Registry of Deeds in Book 11478, Page 169.

  
	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  Transmission
  Line Crossing Area Consent and Agreement between Evergreen Wind Power V, LLC,
  and Bangor Hydro Electric Company dated October 10, 2008 and recorded in
  the Penobscot County Registry of Deeds in Book 11563, Page 37.

  
	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Overhead
  Wire Agreement dated May 1, 2008 between Evergreen Wind Power V, LLC,
  and Eastern Maine Railway Company and recorded in the Penobscot County
  Registry of Deeds in Book 11478, Page 166.

  
	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  Overhead
  Wire Agreement dated May 15, 2008 between Evergreen Wind Power V, LLC,
  and Maine Central Railroad Company and recorded in the Penobscot County
  Registry of Deeds in Book 11414, Page 332.

  
	
   

  	
   

  	
   

  
	
  7.

  	
   

  	
  Crossing Agreement dated June 6,
  2008 between Evergreen Wind Power V, LLC, and Eastern Maine Electric
  Cooperative, Inc. and recorded in the Penobscot County Registry of Deeds
  in Book 11420, Page 198.

  



 


Exhibit H-8B


 


8

















 


	
  Access Easements

  
	
   

  	
   

  	
   

  
	
  1.

  	
   

  	
  Easement
  dated 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.

  
	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Easement
  dated May 12, 2008 between Evergreen Wind Power V, LLC, and
  Prentiss & Carlisle Co. and recorded in the Penobscot County
  Register of Deeds in Book 11392, Page 98.

  
	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Easement
  dated May 2, 2008 between Evergreen Wind Power V, LLC, and
  Richard A. Delaite and recorded in the Penobscot County Register of
  Deeds in Book 11384, Page 323.

  
	
   

  	
   

  	
   

  
	
  Permits

  
	
   

  	
   

  	
   

  
	
  1.

  	
   

  	
  Department
  of Environmental Protection Site Order dated March 18, 2008 and filed in
  the Penobscot County Registry of Deeds in Book 11345, Page 249.

  
	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  State
  of Maine Utility Location Permits for multiple crossings all dated
  February 7, 2008 (Maine DOT Permits 51818, 51814, 51816, 51824, and
  51820.

  
	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Town
  of Chester Utility Location Permit for crossing the Pea Ridge Road.

  
	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  Town
  of Woodville Utility Location Permit dated May 12, 2008 for crossing the
  Butterfield Ridge Road and the River Road.

  
	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Town
  of Mattawamkeag Utility Location Permit dated May 22, 2008 for crossing
  the River Road.

  
	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  Carroll Plantation Utility
  Location Permit dated April 28, 2008 for crossing in North Road.

  



 


Exhibit H-8B


 


9














 


EXHIBIT
I


to
Financing Agreement


 


LENDERS
/ LENDING OFFICES


 


HSH Nordbank AG, New York
Branch


230 Park Avenue


New York, NY 10169


 


BNP Paribas


787 Seventh Avenue


New York, NY 10019


 


Exhibit I


 


1

















 


EXHIBIT
J


to
Financing Agreement


 


SCHEDULE
OF LENDER PROPORTIONATE SHARES


 


	
  Lender

  	
   

  	
  Total Term Loan

  Commitment Proportionate

  Share

  	
   

  	
  Total Bridge

  Loan

  Commitment

  Proportionate

  Share

  	
   

  	
  Total LC

  Commitment

  Proportionate

  Share

  	
   

  	
  Amount

  	
   

  
	
  HSH Nordbank, AG, New York Branch

  	
   

  	
  50%

  	
   

  	
  50%

  	
   

  	
  0%

  	
   

  	
  $

  	
  44,816,445.58

  	
   

  
	
  BNP Paribas

  	
   

  	
  50%

  	
   

  	
  50%

  	
   

  	
  100%

  	
   

  	
  $

  	
  71,516,445.58

  	
   

  



 


Exhibit J


 


1

















 


EXHIBIT
K


to
Financing Agreement


 


TERM
LOAN AMORTIZATION SCHEDULE


 


	
  Period
  Ending

  	
   

  	
  Required Balance

  	
   

  	
  Required Principal

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  $

  	
  71,000,000.00

  	
   

  	
   

  	
   

  
	
  6/30/2010

  	
   

  	
  $

  	
  62,854,418.42

  	
   

  	
  $

  	
  8,145,581.58

  	
   

  
	
  12/31/2010

  	
   

  	
  $

  	
  60,335,761.24

  	
   

  	
  $

  	
  2,518,657.18

  	
   

  
	
  6/30/2011

  	
   

  	
  $

  	
  54,979,324.02

  	
   

  	
  $

  	
  5,356,437.22

  	
   

  
	
  12/31/2011

  	
   

  	
  $

  	
  52,274,910.39

  	
   

  	
  $

  	
  2,704,413.63

  	
   

  
	
  6/30/2012

  	
   

  	
  $

  	
  48,453,996.11

  	
   

  	
  $

  	
  3,820,914.28

  	
   

  
	
  12/31/2012

  	
   

  	
  $

  	
  46,834,932.14

  	
   

  	
  $

  	
  1,619,063.97

  	
   

  
	
  6/30/2013

  	
   

  	
  $

  	
  42,904,665.44

  	
   

  	
  $

  	
  3,930,266.70

  	
   

  
	
  12/31/2013

  	
   

  	
  $

  	
  41,044,938.50

  	
   

  	
  $

  	
  1,859,726.94

  	
   

  
	
  6/30/2014

  	
   

  	
  $

  	
  36,583,995.53

  	
   

  	
  $

  	
  4,460,942.97

  	
   

  
	
  12/31/2014

  	
   

  	
  $

  	
  34,606,452.94

  	
   

  	
  $

  	
  1,977,542.59

  	
   

  
	
  6/30/2015

  	
   

  	
  $

  	
  29,950,445.41

  	
   

  	
  $

  	
  4,656,007.53

  	
   

  
	
  12/31/2015

  	
   

  	
  $

  	
  27,810,463.99

  	
   

  	
  $

  	
  2,139,981.42

  	
   

  
	
  6/30/2016

  	
   

  	
  $

  	
  22,944,897.75

  	
   

  	
  $

  	
  4,865,566.24

  	
   

  
	
  12/22/2016

  	
   

  	
  $

  	
  0.00

  	
   

  	
  $

  	
  22,944,897.75

  	
   

  



 


Exhibit K


 


1

















 


EXHIBIT
L-1

To Financing Agreement




FORM OF WITHHOLDING CERTIFICATE
(TREATY)


 


Date:                     


 


Stetson Holdings, LLC, as Borrower


 


Attention: 
[                                ]


 


In connection with the Financing Agreement, dated as
of December [    ], 2009 (the “Financing Agreement”),
by and among, Stetson Holdings LLC (“Borrower”),  BNP Paribas as Joint Lead Arranger, Joint
Bookrunner, Administrative Agent, Security Agent, and Issuing Bank,
and HSH Nordbank AG, New York Branch as Joint Lead Arranger, Joint
Bookrunner, Co-Syndication Agent and the certain lenders
(“Lenders”) party thereto, the undersigned hereby certifies, represents
and warrants
that                          is
a                   and
is currently exempt from, or is subject to a reduced rate of
    % in lieu of, any U.S. Federal Withholding tax
otherwise imposed on amounts paid to it from United States sources under the
Financing Agreement, by virtue of compliance with the provisions of the Income
Tax Convention between the United States
and                              .


 


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


 


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


 


	
   

  	
  Yours
  faithfully,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


Enclosures


Exhibit L-1


 


1

















 


EXHIBIT L-2

To Financing Agreement




FORM OF WITHHOLDING
CERTIFICATE (EFFECTIVELY CONNECTED)


 


Date:                     


 


Stetson Holdings, LLC, as Borrower


 


Attention: 
[                                ]


 


In connection with the Financing Agreement, dated as of December [    ],
2009 (the “Financing Agreement”), by and among, Stetson Holdings LLC (“Borrower”),
 BNP Paribas as Joint Lead
Arranger, Joint Bookrunner, Administrative Agent, Security Agent,
and Issuing Bank, and HSH Nordbank AG, New York Branch as Joint Lead
Arranger, Joint Bookrunner, Co-Syndication Agent and the
certain lenders (“Lenders”) party thereto, the undersigned hereby
certifies, represents and warrants
that               is
entitled to exemption from withholding tax on payments to it under the
provisions of Section 1441(c)(1) or 1442 of the Internal Revenue Code
of 1986, as amended, of the United States of America, relating to income which
is effectively connected with the conduct of a trade or business within the
United States.


 


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


 


	
   

  	
  Yours faithfully,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


Enclosures


 


Exhibit L-2


 


1

















 


EXHIBIT
L-3

To Financing Agreement




FORM OF WITHHOLDING CERTIFICATE
(PORTFOLIO INTEREST)


 


Date:                     


 


Stetson Holdings,
LLC, as Borrower


 


Attention: 
[                                ]


 


In connection with the Financing Agreement, dated as of December [    ],
2009 (the “Financing Agreement”), by and among, Stetson Holdings LLC (“Borrower”),
 BNP Paribas as Joint Lead
Arranger, Joint Bookrunner, Administrative Agent, Security Agent,
and Issuing Bank, and HSH Nordbank AG, New York Branch as Joint Lead
Arranger, Joint Bookrunner, Co-Syndication Agent and the
certain lenders (“Lenders”) party thereto, the undersigned hereby
certifies, represents and warrants that the undersigned:  (a) is a corporation organized under the
laws
of                      whose
registered business is managed or controlled in
                                      ,
(b) does not have a permanent establishment or fixed base in the United States
or otherwise conduct a trade or business in the United States to which the
Financing Agreement or income therefrom is effectively connected, (c) is
the beneficial owner of the interest income which arises from its share of the
interest income arising from the Financing Agreement, (d) does not own an
equity interest in the Borrower of 10% or more, directly or indirectly, taking
into account the ownership rules specified in Section 871(h)(3)(B) and
(C) of the Internal Revenue Code of 1986, as amended (the “Code”), (e) is
not a related party to the Borrower, taking into account the rules of Section 864(d)(4) of
the Code, and (f) is not a bank that has entered into the Financing
Agreement in the ordinary course of its trade or business within the meaning of
Section 881(c)(3)(A) of the Code.


 


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


 


	
   

  	
  Yours faithfully,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Exhibit L-3


 


1

















 


EXHIBIT
M


 


to
Financing Agreement


 


FORM OF
SUBORDINATION AGREEMENT


 


This SUBORDINATION AGREEMENT (this “Agreement”),
dated as of
[                    ],
2009, is made by and among
[                                    ],
a
[                                      ]
(“Subordinated Creditor”), STETSON
HOLDINGS, LLC a Delaware limited liability company (“Borrower”),
and BNP PARIBAS, as Security Agent and Administrative Agent (“Agent”),
for the lenders (the “Lenders”) party to the Financing Agreement
described below.


 


A.                                   Borrower has entered into that certain
dated as of December [    ], 2009 (the “Financing
Agreement”), by and among, Stetson Holdings LLC (“Borrower”),  BNP Paribas as Joint Lead Arranger, Joint
Bookrunner, Administrative Agent, Security Agent, and Issuing Bank,
and HSH Nordbank AG, New York Branch as Joint Lead Arranger, Joint
Bookrunner, Co-Syndication Agent and the certain lenders
(“Lenders”) party thereto.  Each
capitalized term used and not otherwise defined herein shall have the meaning
assigned to such term in Exhibit A to the Financing Agreement.


 


B.                                     Subordinated Creditor and Borrower have
entered into [SUBORDINATED LOAN OR OTHER AGREEMENT] (as amended, modified and
supplemented and in effect from time to time, the “Subordinated Agreement”).


 


C.                                     The Financing Agreement permits Borrower
to incur [Subordinated Debt] (as defined in the Financing Agreement) only if
Subordinated Creditor shall execute this Agreement and shall subordinate, to
the extent and in the manner hereinafter set forth, all of the indebtedness and
other obligations of Borrower to Subordinated Creditor, including without
limitation, payment of principal, interest, fees, expenses and costs arising or
incurred under the Subordinated Agreement, direct or indirect, absolute or
contingent, due or to become due, now existing or hereafter arising by
operation of [Section [          ]
of] the Subordinated Agreement (for the purposes of this Agreement,
collectively referred to herein as the “Subordinated Obligation,” which
shall be considered Subordinated Debt), to all indebtedness or other
obligations of Borrower to Agent and the Lenders arising under the Financing
Agreement (herein called the “Obligations”) to the extent set forth in
this Agreement.


 


NOW THEREFORE, in consideration of the foregoing
premises and as an inducement to the Lenders to [continue to] grant financial
accommodations to Borrower and in consideration of the granting thereof, the
receipt and adequacy of which are hereby acknowledged, the parties to this
Agreement hereby agree as follows:


 


1.                                       Until all Obligations shall have been
paid and satisfied in full:


 


(a)                                  Borrower shall not, directly or indirectly,
make any payment of principal or interest or any other payment whatsoever on
account of, or transfer any collateral for the security of any part of, the
Subordinated Obligation until the Obligations have been indefeasible paid and
satisfied in full;


 


Exhibit M


 


1

















 


(b)                                 Subordinated Creditor shall not sue for, or
demand or accept from Borrower or any other Person any such payment or
collateral, nor take any other action to enforce or collect upon any such
payment or to enforce its rights in respect of the Subordinated Obligation, nor
cancel, set off or otherwise discharge any part of the Subordinated Obligation;
and


 


(c)                                  Subordinated Creditor shall not otherwise
take any action prejudicial to or inconsistent with the Lenders’ priority
position over Subordinated Creditor created by this Agreement.


 


2.                                       The Subordinated Agreement and each
instrument evidencing the Subordinated Obligation shall bear a legend providing
that payment of the Subordinated Obligation and the priority of any lien
thereon has been subordinated to prior payment and satisfaction of the
Obligations in the manner and to the extent set forth in this Agreement, and a
copy of this Agreement shall be attached to each such instrument.


 


3.                                       Subordinated Creditor shall not commence
or join with any other creditor or creditors of Borrower in commencing any
bankruptcy, reorganization or insolvency proceedings against Borrower.  At any general meeting of creditors of
Borrower or in the event of any proceeding, voluntary or involuntary, for the
distribution, division or application of all or part of the assets of Borrower
or the proceeds thereof, whether such proceeding be for the liquidation,
dissolution or winding up of Borrower or its business, a receivership,
insolvency or bankruptcy proceeding, an assignment for the benefit of creditors
or proceeding by or against Borrower for position or extension or otherwise, if
all Obligations have not been paid and satisfied in full at the time, Agent is
hereby irrevocably authorized at any such meeting or in any such proceeding:


 


(a)                                  To enforce claims comprising the
Subordinated Obligation in the name of Subordinated Creditor, by proof of debt,
proof of claim, suit or otherwise;


 


(b)                                 To collect any assets of Borrower
distributed, divided or applied by way of dividend or payment, or such
securities issued, on account of the Subordinated Obligation and apply the
same, or the proceeds of any realization upon the same that Agent in its
discretion elects to effect, to the Obligations until all the Obligations shall
have been paid and satisfied in full (Agent hereby agreeing to render any
surplus to Subordinated Creditor);


 


(c)                                  To vote claims comprising the Subordinated
Obligation to accept or reject any plan of partial or complete liquidation,
reorganization, arrangement, composition or extension; and


 


(d)                                 To take generally any action in connection
with any such meeting or proceeding to assert, defend or support the position
of Subordinated Creditor.


 


After the
commencement of any such bankruptcy, insolvency or reorganization proceeding,
Subordinated Creditor may inquire of Agent in writing whether Agent intends to
exercise the foregoing rights with respect to the Subordinated Obligation.  Should Agent fail within a reasonable time
after receipt of such inquiry (but in any event, 


 


Exhibit M


 


2

















 


no later than
thirty (30) days after receipt of such inquiry) either to file a proof of claim
with respect to the Subordinated Obligation and to furnish a copy thereof to
Subordinated Creditor, or to inform Subordinated Creditor in writing that Agent
intends to exercise its rights to assert the Subordinated Obligation in the
manner hereinabove provided, Subordinated Creditor may, but shall not be
required to, proceed to file a proof of claim with respect to the Subordinated
Obligation and take such further steps with respect thereto, not inconsistent
with this Agreement, as Subordinated Creditor may deem proper.


 


Subject to and
from and after the payment and satisfaction in full of all Obligations,
Subordinated Creditor shall be subrogated to the rights of the Lenders to
receive payments or distributions of cash, property or securities of Borrower
applicable to the Obligations until all amounts owing on the Subordinated
Obligation shall be paid in full, it being understood that the provisions of
this Agreement are and are intended solely for the purpose of defining the
relative rights of Subordinated Creditor and the Lenders.  Nothing contained in this Agreement is
intended to or shall impair, as between Borrower and its creditors other than
the Lenders and Subordinated Creditor, the obligation of Borrower, which is
absolute and unconditional, to pay to Subordinated Creditor the principal of
and the premium, if any, and the interest on the Subordinated Obligation as and
when the same shall become due and payable in accordance with its terms, or to
affect the relative rights of Subordinated Creditor and creditors of Borrower
other than the Lenders.


 


4.                                       Should any payment on account of, or
transfer of any collateral as security for any part of, the Subordinated
Obligation be received by Subordinated Creditor in violation of this Agreement,
such payment or collateral shall be delivered forthwith to Agent by the
recipient for application to the Obligations, in the form received.  Agent is irrevocably authorized to supply any
required endorsement or assignment which may have been omitted.  Until so delivered, any such payment or
collateral shall be held by Subordinated Creditor in trust for the Lenders and
shall not be commingled with other funds or property of Subordinated Creditor.


 


5.                                       Subordinated Creditor is the lawful owner
of the Subordinated Obligation and no part thereof has been assigned to or
subordinated or subjected to any other security interest in favor of anyone
other than the Lenders.  Subordinated
Creditor may not assign all or any portion of the Subordinated Obligation
without the prior written consent of the Lenders and only upon the execution
and delivery to the Lenders of an agreement by any such assignee to be bound by
the terms of this Agreement (including the provisions relating to assignment),
in form and substance reasonably satisfactory to Agent.


 


6.                                       Agent is hereby authorized to demand
specific performance of this Agreement, whether or not Borrower shall have
complied with the provisions hereof applicable to it, at any time when
Subordinated Creditor shall have failed to comply with any provision hereof
applicable to it.  Subordinated Creditor
hereby irrevocably waives any defense based on the adequacy of a remedy at law
which might be asserted as a bar to the remedy of specific performance hereof
in any action brought therefor by Agent. 
Subordinated Creditor further waives presentment, notice and protest in
connection with all negotiable instruments evidencing the Obligations or the
Subordinated Obligation to which


 


Exhibit M


 


3














 


Subordinated
Creditor may be a party, notice of the acceptance of this Agreement by Agent,
notice of any loan made, extension granted or other action taken in reliance
hereon, and all demands and notices of every kind in connection with this
Agreement, the Obligations or time of payment of the Obligations or the
Subordinated Obligation, hereby assents to any renewal, extension of
postponement of the time of payment of the Obligations or any other indulgence
with respect thereto, to any increase in the amount of the Obligations, to any
substitution, exchange or release of collateral therefor and to the addition or
release of any Person primarily or secondarily liable thereon, and assents to
the provisions of any instrument, security or other writing evidencing the
Obligations.


 


7.                                       Borrower and Subordinated Creditor shall
execute and deliver to Agent such further instruments and shall take such
further action as Agent may at any time reasonably request in order to carry
out the provisions and intent of this Agreement.


 


8.                                       The rights granted to the Lenders
hereunder are solely for their protection and nothing herein contained shall
impose on Agent or the Lenders any duties with respect to any property Borrower
or Subordinated Creditor received hereunder. 
Neither Agent nor the Lenders shall have any duty to preserve rights
against prior parties in any property of any kind received hereunder.


 


9.                                       Notwithstanding any provisions to the
contrary herein, the parties to this Agreement acknowledge and agree that all
of the covenants, representations, waivers and other provisions by or relating
to Subordinated Creditor hereunder shall apply and be effective to and in
respect of the Subordinated Obligation only, and shall not apply or be
effective to or in respect of any other obligations, due or to become due, now
existing or hereafter arising, by Borrower to Subordinated Creditor.


 


10.                                 This Agreement may be executed in any
number of counterparts, but all such counterparts shall together constitute one
agreement.  In making proof of this
Agreement, it shall not be necessary to produce or account for more than one
counterpart signed by each of the parties hereto.


 


11.                                 This Agreement is intended to take effect
as a sealed instrument, shall be binding upon Borrower, Subordinated Creditor,
and their respective executors, administrators, other legal representatives,
successors and assigns, and shall inure to the benefit of the Lenders, their
respective successors and assigns and shall be governed by the laws of the
State of New York, without reference to conflicts of laws (other than Sections
5-1401 and 5-1402 of the New York General Obligations Law).


 


12.                                 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.


 


Exhibit M


 


4

















 


13.                                 This Agreement shall terminate in its
entirety upon (a) the payment and satisfaction in full of all the
Obligations or (b) the termination or payment and satisfaction in full of
all the obligations under the Subordinated Agreement.


 


14.                                 The terms of subordination set forth in
this Agreement shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Obligations is rescinded or must
otherwise be returned by any of the Lenders or the Agent upon the insolvency,
bankruptcy or reorganization of Borrower or otherwise, all as though such
payment had not been made.


 


[SIGNATURES FOLLOW]


 


Exhibit M


 


5

















 


IN
WITNESS WHEREOF, the parties hereto have caused this Subordination Agreement to
be duly executed as of the date first above written.


 


	
   

  	
  [SUBORDINATED CREDITOR],

  
	
   

  	
  a
  [                        ]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BNP PARIBAS,
  as Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Exhibit M


 


6

















 


	
   

  	
  STETSON HOLDINGS, LLC,

  
	
   

  	
  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Exhibit M


 


7

















 


EXHIBIT
N


 


to
Financing Agreement


 


FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT


 


This
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of
[              ],
2009, is hereby entered into by and among
[                                            ],
a [                                  ],
as a Lender under the Financing Agreement (the “Assignor”),
[                                            ]
([the “Assignee)”] [collectively, the “Assignees)”]), and
consented to and acknowledged by Agent and Borrower (as amended, amended and
restated, supplemented or otherwise modified from time to time, this “Assignment
Agreement”).


 


W I T N E S S E T H:


 


A.    The
Assignor is party to that certain the Financing Agreement, dated as of December [    ],
2009 (the “Financing Agreement”), by and among, Stetson Holdings LLC (“Borrower”),
 BNP Paribas as Joint Lead
Arranger, Joint Bookrunner, Administrative Agent, Security Agent,
and Issuing Bank, and HSH Nordbank AG, New York Branch as Joint Lead
Arranger, Joint Bookrunner, Co-Syndication Agent and the
certain lenders (“Lenders”) party thereto.


 


B.    Pursuant to
and in accordance with Section 12.15 of the Financing Agreement, the
Assignor wishes to sell, assign and transfer to the Assignee[s], and the
Assignee[s] wish[es] to purchase and assume from the Assignor, a portion of the
Assignor’s Commitments and Loans and /or LC Commitment made thereunder under
the Financing Agreement, all on the terms and conditions of this Assignment
Agreement.


 


In consideration
of the foregoing and the mutual agreements contained herein, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:


 


1.                                       Definitions. 
Each capitalized term used but not defined herein shall have the meaning
assigned to that term in Exhibit A to the Financing Agreement (and the
principles of interpretation set forth Exhibit A to the Financing
Agreement shall apply to such definition and to this Assignment Agreement as if
set forth in this Assignment Agreement). 
In addition, as used herein, the following terms have the following
respective meanings:


 


Exhibit N


 


1

















 


“Effective
Date” shall mean the date on which all the conditions to effectiveness set
forth in Section 4 shall have been satisfied.


 


2.                                       Assignment.


 


(a)                                  On the terms and conditions set forth
herein, and in accordance with the requirements set forth in Section 12.15
of the Financing Agreement, the Assignor hereby sells, assigns and transfers to
the Assignee[s], and the Assignee[s] hereby purchase[s] and assume[s] from the
Assignor, such interests in Assignor’s rights and obligations under the
Financing Agreement (including, without limitation, the Loans and/or LC
Commitment which are outstanding on the Effective Date) as shall be necessary
in order to give effect to the reallocations of the Commitments (and Loans
and/or LC Commitment made thereunder) (as applicable), as set forth in Schedule
I attached hereto after giving effect to the other assignments executed as
of the date hereof.  Such sale,
assignment and transfer is without recourse and, except as expressly provided
in this Assignment Agreement, without representation or warranty.


 


(b)                                 The Assignor sells, assigns and transfers
to the Assignee[s], and the Assignee[s] hereby purchase[s] and assume[s] from
the Assignor the same percentage amount of its Proportionate Shares for each of
its Commitments (and Loans and/or LC Commitment made thereunder) and [each of]
the Assignee’s percentage level of its Proportionate Shares with respect to
each of the sold, assigned or transferred Commitments (and Loans and/or LC
Commitment made thereunder) shall be the same amount.


 


(c)                                  From and after the Effective Date, (a) [each
of] the Assignee[s] shall be a party to the Financing Agreement as a “Lender”
and shall have the rights and obligations of a Lender thereunder and [each of]
the Assignee[s] agrees, for the benefit of the Assignor and Borrower, that such
Assignee will, from and after the Effective Date, perform, observe and be bound
by all of the obligations applicable to a Lender under the Financing Agreement
in respect of the interests assigned and (b) the Assignor shall, to the
extent of the interests assigned and obligations assumed hereby, relinquish its
rights and be released from its obligations under the Financing Agreement and
the other Financing Documents.


 


3.                                       Payments.  The Assignor
and the Assignee[s] agree that (a) the Assignor shall be entitled to any
payments of principal with respect to the assigned interests in Loans and/or LC
Commitment made prior to the Effective Date, together with any interest and
fees with respect to such assigned interests accruing prior to the Effective
Date, (b) the Assignee[s] shall be entitled to any payments of principal
with respect to the assigned interests made from and after the Effective Date,
together with any interest and fees with respect to the assigned interests
accruing from and after the Effective Date and (c) the Agent is authorized
and instructed to allocate payments received by it in respect of any such
principal, interest or fees for account of the Assignor and the Assignee[s] as
provided in 


 


Exhibit N


 


2

















 


the foregoing clauses. 
Each party hereto agrees that it will hold any principal, interest, fees
or other amounts that it may receive to which an other party hereto shall be
entitled pursuant to the preceding sentence in trust and for account of such
other party and will pay, in like money and funds, any such amounts that it may
receive to such other party promptly upon receipt.


 


4.                                       Conditions to Effectiveness of Assignment. 
The effectiveness of the sale, assignment and transfer contemplated
pursuant to Section 2 is subject to (i) the due execution and
delivery of this Assignment Agreement by the Assignor and the Assignee[s] and (ii) receipt
by Assignor of payment from Assignee[s] of all amounts due in consideration for
the transfer and assignment provided herein.


 


5.                                       Representations, Warranties and
Disclaimers of the Assignor.


 


(a)                                  The Assignor represents and warrants to
[each of] the Assignee[s], as of the Effective Date, as follows:


 


(i)                                   the Assignor has full power and
authority, and has taken all action necessary, to execute and deliver this
Assignment Agreement and any and all other documents required or permitted to
be executed or delivered by it in connection with this Assignment Agreement and
to fulfill its obligations under, and to consummate the transactions
contemplated by, this Assignment Agreement;


 


(ii)                                this Assignment Agreement constitutes the
legal, valid and binding obligations of the Assignor enforceable against the
Assignor in accordance with its terms;


 


(iii)                             the making and performance by the
Assignor of this Assignment Agreement and any other documents required or
permitted to be executed or delivered by it in connection with this Assignment
Agreement do not and will not violate any law or regulation of the jurisdiction
of its organization or any other law or regulation applicable to it, any
provision of its charter or by-laws (or comparable constituent documents) or
any order of any court or regulatory body and will not result in the breach of,
or constitute a default, or require any consent, under any agreement,
instrument or document to which it is a party or by which it or any of its
property may be bound or affected;


 


(iv)                            all authorizations, consents, approvals,
and licenses of, all filings or registrations with and all actions by any Governmental
Authority necessary for the validity or enforceability of the obligations of
the Assignor under this Assignment Agreement have been obtained and no other
approvals or other authorizations are required in connection herewith; and


 


(v)                               the Assignor has good title to, and is
the sole legal and beneficial owner of, the interests assigned under this
Assignment Agreement, free and clear 


 


Exhibit N


 


3

















 


of all adverse claims, interests, participations or other charges or
encumbrances of any nature whatsoever.


 


(b)                                 Except as expressly provided in Section 5(a),
the Assignor makes no representation or warranty as to, and shall have no
responsibility to the Assignee[s] for:


 


(i)                                   the due authorization, execution or
delivery of the Financing Agreement or any other Financing Document by Borrower
or any other Person;


 


(ii)                                the legality, validity, binding effect or
enforceability of the Financing Agreement or any other Financing Document or
any of the terms, covenants or conditions contained therein or the existence,
value, perfection or priority of any collateral security for any extension of
credit thereunder;


 


(iii)                             any representation or warranty made by,
or the accuracy, completeness, currentness or sufficiency of any information
(or the validity, completeness or adequate disclosure of assumptions underlying
any estimates, forecasts or projections contained in such information) provided
(directly or indirectly through the Assignor) by Borrower or any other Person;


 


(iv)                            the performance or observance by Borrower
or any other Person other than the Assignor (at any time, whether prior to or
after the Effective Date) of any of the provisions of the Financing Agreement
or any other Financing Document (or any of Borrower’s or such other Person’s
other obligations in connection therewith);


 


(v)                               the financial or other condition of
Borrower or any other obligor or guarantor under the Financing Agreement or any
other Financing Document (including any Affiliates); or


 


(vi)                            (except as otherwise expressly provided
herein) any other matter relating to Borrower or any other Person, the assigned
interests, the Financing Agreement or any other Financing Document.


 


6.                                       Representations, Warranties and
Agreements of the Assignee[s].


 


(a)                                  [Each of the / The] Assignee[s] hereby
represents and warrants to the Assignor, as of the Effective Date, that:


 


(i)                                   it has full power and authority, and has
taken all action necessary, to execute and deliver this Assignment Agreement
and any and all other documents required or permitted to be executed or
delivered by it in connection with this Assignment Agreement and to fulfill its
obligations under, and to consummate the transactions contemplated by, this
Assignment Agreement;


 


Exhibit N


 


4

















 


(ii)                                this Assignment Agreement constitutes the
legal, valid and binding obligations of such Assignee enforceable against the
Assignee in accordance with its terms;


 


(iii)                             the making and performance by it of this
Assignment Agreement and any other documents required or permitted to be
executed or delivered by it in connection with this Assignment Agreement do not
and will not violate any law or regulation of the jurisdiction of its
organization or any other law or regulation applicable to it, any provision of
its charter or by-laws (or comparable constituent documents) or any order of
any court or regulatory body and will not result in the breach of, or
constitute a default, or require any consent, under any agreement, instrument
or document to which it is a party or by which it or any of its property may be
bound or affected;


 


(iv)                            all authorizations, consents, approvals,
and licenses of, all filings or registrations with and all actions by any
Governmental Authority necessary for the validity or enforceability of the
obligations of such Assignee under this Assignment Agreement have been obtained
and no other approvals or other authorizations are required in connection
herewith; and


 


(v)                               it has fully reviewed the terms of the
Financing Agreement and the other Financing Documents and has independently and
without reliance upon the Assignor or the Agent and based on such documents and
information as such Assignee has deemed appropriate made its own credit
analysis and decision to enter into this Assignment Agreement.


 


(b)                                 [Each of the / The] Assignee[s]:


 


(i)                                   agrees that it will, independently and
without reliance upon the Assignor or the Agent and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis and decisions in taking or not taking action under the
Financing Agreement and any other instruments or documents furnished pursuant
thereto;


 


(ii)                                appoints and authorizes the Agent on its
behalf and to exercise such powers under the Financing Agreement and other
instruments and documents furnished pursuant thereto as are delegated to the
Agent by the terms thereof, together with such powers as are reasonably
incidental thereto;


 


(iii)                             agrees to be bound by the confidentiality
provisions contained in Section 14.19 of the Financing Agreement; and


 


(iv)                            agrees that it will perform, in
accordance with the terms of the Financing Agreement, all of the obligations
that by the terms of the Financing Agreement are required to be performed by it
as a Lender.


 


Exhibit N


 


5

















 


7.                                       Further Assurances. 
The Assignor and the Assignee[s] hereby agree to execute and deliver
such other instruments, and take such other action, as either party may
reasonably request in connection with the transactions contemplated by this
Assignment Agreement.


 


8.                                       Expenses.  Each party
hereto shall bear its own expenses in connection with the execution, delivery
and performance of this Assignment Agreement.


 


9.                                       Existing Note and New Notes. 
Pursuant to Section 12.15 of the Financing Agreement, Borrower
shall deliver to the Assignee[s] and the Assignor duly authorized and executed
new Notes for [each of] the Assignee[s] and the Assignor, in each case in
principal amounts reflecting their Loans and/or LC Commitment as set forth in
the “Resulting Interest” column in Schedule I, and, promptly after the
delivery by Borrower of such new Notes and the occurrence of the Effective
Date, the Assignor shall deliver to Borrower the superseded Note of the
Assignor marked “cancelled and replaced.”


 


10.                                 Miscellaneous.


 


(a)                                  Notices.  All notices
and other communications provided for herein (including, without limitation,
any modifications of, or waivers or requests under, this Assignment Agreement)
shall be given or made in writing (including, without limitation, by facsimile)
to the addresses specified in Exhibit A attached hereto or at such
other address as shall be designated by any party to this Assignment Agreement
in a written notice to the other parties hereto.


 


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


 


(c)                                  Successors and Assigns. 
This Assignment Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and permitted
assigns.  The representations and
warranties and agreements made herein by the Assignee[s] are also made for the
benefit of the Agent and Borrower, and the Assignee[s] agree[s] that the Agent
and Borrower are entitled to rely upon such representations and warranties.


 


(d)                                 Amendments; Assignments. 
No party to this Assignment Agreement may amend or assign any of its
rights or obligations hereunder without the prior written consent of the other
parties hereto.


 


(e)                                  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 Assignment Agreement.


 


Exhibit N


 


6














 


(f)                                    Counterparts. 
This Assignment Agreement may be executed in any number of counterparts,
each of which shall constitute an original, but all of which, taken together,
shall constitute one and the same instrument, and each of the parties hereto
may execute this Assignment Agreement by signing any such counterpart.


 


(g)                                 GOVERNING LAW; SUBMISSION TO JURISDICTION. 
THIS ASSIGNMENT AGREEMENT, AND ANY INSTRUMENT OR AGREEMENT REQUIRED
HEREUNDER (TO THE EXTENT NOT EXPRESSLY PROVIDED FOR THEREIN), SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN SUCH STATE AND WITHOUT
REFERENCE TO CONFLICTS OF LAWS RULES THEREOF (OTHER THAN SECTIONS 5-1401 AND
5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).


 


(h)                                 WAIVER OF JURY TRIAL. 
EACH OF THE PARTIES HERETO HEREBY KNOWINGLY, VOLUNTARILY, AND
INTENTIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS ASSIGNMENT
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR ANY OTHER FINANCING
DOCUMENT, OPERATIVE DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF THE AGENT, BORROWER OR
THE PARTIES HERETO.  THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE ASSIGNOR AND ASSIGNEE[S] TO ENTER INTO THIS
ASSIGNMENT AGREEMENT.


 


(i)                                     Consent to Jurisdiction. 
The parties hereto agree that any legal action or proceeding by or
against Borrower or with respect to or arising out of this Assignment
Agreement, the Notes or any other Financing Document may be brought in or
removed to the courts of competent jurisdiction of the State of New York
sitting in The City of New York in New York County and of the United States of
America in and for the Southern District of New York, as the Agent may
elect.  By execution and delivery of the
Assignment Agreement, the parties hereto accept, for themselves and in respect
of their property, generally and unconditionally, the jurisdiction of the
aforesaid courts.  The parties hereto
irrevocably consent to the service of process out of any of the aforementioned
courts in any such action or proceeding by the mailing of copies thereof by
registered or certified airmail, postage prepaid, to the Assignor or
Assignee[s], as the case may be, at their respective addresses for notices as
specified herein and that such service shall be effective five (5) Business
Days after such mailing.  Nothing herein
shall affect the right to serve process in any other manner permitted by law or
the right of the Assignor or [any / the] Assignee to bring legal action or
proceedings in any other competent jurisdiction, including judicial or
non-judicial foreclosure of the Mortgage Documents.  The parties hereto further agree that the
aforesaid courts of the State of New York and of the United States 


 


Exhibit N


 


7

















 


of America shall have exclusive jurisdiction with
respect to any claim or counterclaim of Borrower based upon the assertion that
the rate of interest charged by the Assignor and Assignee[s] on or under this
Assignment Agreement, the Loans, the LC Commitment (if applicable) and/or the
other Financing Documents is usurious. 
The parties hereto hereby waive any right to stay or dismiss any action
or proceeding under or in connection with any or all of the Project, this
Assignment Agreement or any other Financing Document brought before the
foregoing courts on the basis of forum non-conveniens.


 


(j)                                     Severability. 
Any provision of this Assignment Agreement held to be invalid, illegal
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity, illegality or unenforceability
without affecting the validity, legality and enforceability of the remaining
provisions hereof; and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any other jurisdiction.


 


[SIGNATURES TO FOLLOW]


 


Exhibit N


 


8

















 


IN WITNESS WHEREOF, the
parties hereto have caused this Assignment Agreement to be executed and
delivered by their duly authorized representatives as of the date first above
written.


 


	
   

  	
  [                                              ], as Assignor

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Exhibit N


 


9

















 


	
   

  	
  [                                                        ],

  
	
   

  	
  as Assignee

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  [                                                        ],

  
	
   

  	
  as Assignee

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Exhibit N


 


10

















 


	
  CONSENTED
  TO AND ACKNOWLEDGED BY:

  	
   

  
	
   

  	
   

  
	
  BNP PARIBAS,

  	
   

  
	
  as Administrative Agent
  and Security Agent

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


Exhibit N


 


11

















 


	
  STETSON HOLDINGS, LLC,

  	
   

  
	
  a Delaware limited
  liability company

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


Exhibit N


 


12

















 


SCHEDULE
I

to Assignment Agreement


 


	
   

  	
   

  	
  Previous Interests:

  	
   

  	
  Resulting Interests:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [ASSIGNOR]

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total
  LC Commitment

  	
   

  	
  $

  	
  [                  ]

  	
   

  	
  $

  	
  [                  ]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total Term Loan
  Commitment

  	
   

  	
  $

  	
  [                  ]

  	
   

  	
  $

  	
  [                  ]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Term Loans

  	
   

  	
  $

  	
  [                  ]

  	
   

  	
  $

  	
  [                  ]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [ASSIGNEE]

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total
  LC Commitment

  	
   

  	
  $

  	
  [                  ]

  	
   

  	
  $

  	
  [                  ]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total Term Loan
  Commitment

  	
   

  	
  $

  	
  [                  ]

  	
   

  	
  $

  	
  [                  ]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Term Loans

  	
   

  	
  $

  	
  [                  ]

  	
   

  	
  $

  	
  [                  ]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total Bridge
  Loan Commitment

  	
   

  	
  $

  	
  [                  ]

  	
   

  	
  $

  	
  [                  ]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [ASSIGNEE]

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total
  LC Commitment

  	
   

  	
  $

  	
  [                  ]

  	
   

  	
  $

  	
  [                  ]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total Term Loan
  Commitment

  	
   

  	
  $

  	
  [                  ]

  	
   

  	
  $

  	
  [                  ]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Term Loans

  	
   

  	
  $

  	
  [                  ]

  	
   

  	
  $

  	
  [                  ]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total Bridge
  Loan Commitment

  	
   

  	
  $

  	
  [                  ]

  	
   

  	
  $

  	
  [                  ]

  	
   

  



 


Exhibit N


 


13

















 


EXHIBIT A

to Assignment Agreement


 


ADDRESS FOR NOTICES


 


[ASSIGNOR]

[ADDRESS]

Tel:
[                        ]

Fax:
[                        ]

Attn: 
[                        ]


 


 


[ASSIGNEE]

[ADDRESS]

Tel:
[                        ]

Fax:
[                        ]

Attn:  [                        ]


 


 


[ASSIGNEE]

[ADDRESS]

Tel:
[                        ]

Fax:
[                        ]

Attn: 
[                        ]


 


Exhibit N


 


14

















 


EXHIBIT
O


to
Financing Agreement


 


FORM OF
O&M LC


 


(See
Tab      )


 


Exhibit O


 


1

















 


EXHIBIT P


to
Financing Agreement


 


FORM OF
DEBT SERVICE RESERVE LC


 


(See
Tab      )


 


Exhibit P


 


1














 


EXHIBIT
Q-1


 


FORM OF
ENERGY HEDGE LC


 


(See
Tab      )


 


Exhibit Q-1


 


1

















 


EXHIBIT
Q-2


 


FORM OF
REC CONTRACT LC


 


(See
Tab      )


 


Exhibit Q-2


 


1

















 


EXHIBIT R


 


FORM OF
WORKING CAPITAL LC


 


(See
Tab      )


 


Exhibit R


 


1

















 


EXHIBIT S


 


FORM OF
NOTICE OF LC ACTIVITY LC


 





 


BNP Paribas


Trade Finance Services


787 7th Avenue


Equitable Building


New York, NY  10022


(201) 850-6573: (201) 850-4021  e-mail: NYTFSTANDBY@americas.bnpparibas.com       Standby
no.         (For Bank Use)


 


APPLICATION
FOR IRREVOCABLE STANDBY LETTER OF CREDIT (Page 1 of 104)


 


If using
this form electronically, you should tab between fields or DOUBLE-click
them with your mouse.  Check boxes can be
marked by hitting your space bar.  Please
see guidelines for completing this application on page 2.


 


Subject to our
Continuing Letter of Credit Agreement, Reimbursement Agreement or other
document in connection with the reimbursement of standby letters of credit, as
the same may be amended, supplemented or otherwise modified from time to time
in accordance with its terms, (the “Agreement”) with you, please issue an
Irrevocable Standby Letter of Credit (the “Standby”) substantially as set forth
below, and:


 


                    o send
the original Standby directly to the Beneficiary


                    o send
the original Standby to the Advising Bank/Foreign Bank indicated below (for
delivery to the Beneficiary) (2)


 


by       o
cable (SWIFT/telex/cablegram)          o courier             o other:


 


o      (Local Guarantee)
Please issue your Standby in an acceptable format(3) (as
a counter guarantee) in favor of the Foreign Bank indicated below (or your
affiliated office or correspondent bank, if none indicated) and request that
they issue a local guarantee/bond/standby substantially as set forth below
and/or in the attached specimen  .  We recognize and agree that we will pay all
charges imposed by this Foreign Bank for the local guarantee/bond/standby in
addition to your own charges for the Standby that you issue even if such bank
is chosen by you and even if such bank is an affiliated office of yours.


 


Please make the Standby
subject to: o Uniform Customs and Practices for
Documentary Credits (UCP)


                                                           o
the International Standby Practices (ISP)


 


	
  Advising Bank / Foreign
  Bank (full name, address and swift address)

  	
   

  	
  Applicant
  (name & address to appear in Standby) (4)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Beneficiary (full name
  and address) of Standby or Local Guarantee(5)

  	
   

  	
  Amount, in words (U.S.
  dollars unless otherwise indicated and approved by BNP Paribas)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Expiry Date of your
  Standby (month in words, day, year)

   

  Place of Expiry of your
  Standby, if not our offices:

  
	
   

  	
   

  	
   

  
	
  Attn:

  	
   

  	
  Expiry date of Local
  Guarantee/Bond/Standby(6)  

  



 


Exhibit S


 


1

















 


	
   

  	
   

  	
  (applicable only
  if Local Guarantee is required)

  



 


[Per
regulatory requirements, please provide below a general description of the
underlying transaction to enable proper classification of the Standby. This is
for bank use only and will not be part of the Standby text.]


 


The
purpose of this Standby is:




 





 


o      Format of Standby, documents required and other
instructions to be substantially per attachment(s), which form an integral part
of this application. (Note: All attachments should also be signed by the
Applicant.)


 


Payment to be
available to the Beneficiary against presentation of:


 


o  Beneficiary’s
signed and dated statement stating the amount claimed and reading as follows:


 


 


Other documents
(if any), specify issuer(s) and data content:




 





 


o                                    (Evergreen
/ auto-extension clause)  Please
include language in the Standby which causes the Expiry Date to automatically,
without amendment/notification, be extended for additional periods of                                 
( number of months) at a time unless you notify the Beneficiary (or Foreign
Bank) at least            
days prior to the then-current Expiry Date of your election not to allow
further automatic extensions.  Please
include an ultimate/final expiry date of                                               ,
and if such date is not scheduled to be the last day of any such additional
period, then unless you have given notice of your election not to allow any
further automatic extensions the final such additional period shall be for the
stub period shorter than the other additional periods and ending on such
ultimate/final expiry date (optional).


 


II.                                     ADDITIONAL CONDITIONS:


 


o Partial drawings are prohibited
(permitted if not marked)


 


o Multiple drawings are prohibited
(permitted if not marked)


 


o The Standby should be made transferable
(not transferable if not marked)


 


o All bank charges other than those of the
issuing bank are for the account of the Beneficiary (for Applicant if not
marked)


 


o Other


 


Confirmation of the
Standby:


o
not requested


o
requested


o
authorized if requested by Beneficiary


 


Original Standby to be delivered to (provide name,
address and attention party, if other than Beneficiary)(2):


 


 


Attn:


 


Exhibit S


 


2

















 


We
hereby request BNP Paribas to issue and process the Standby subject to the
terms and provisions of this Application. 
We hereby confirm that all of the representations and warranties
contained in the Agreement are true and correct on the date hereof, and will be
true and correct on the date of the issuance of the Standby requested hereby,
and that no default or event of default under the Agreement has occurred or
will have occurred and be continuing on such date.  If BNP Paribas agrees that the Standby be
subject to local law in the country or state of the Beneficiary (other subject
to the laws of any other jurisdiction other than New York), then, in addition
to (and not as a limitation of) our other obligations to BNP Paribas in respect
to the Standby, we agree (in addition to our reimbursement obligations and
indemnities under the Agreement) to further reimburse you, indemnify you, and
hold you harmless from and against any and all liabilities, claims, losses,
obligations, costs or expenses (including attorney’s fees and court costs) (the
foregoing amounts are collectively referred to as “Losses”) that arise or that
you incur in connection with such choice of law, including all Losses
associated with an obligation to make payment after the stated Expiry Date of
the Standby and/or the local guarantee. 
In the event we request and you agree that the Standby, or any part
thereof, be issued in a foreign language, then we agree to indemnify you from
any and all Losses associated with errors in translation of the Standby or any
documents presented thereunder. We agree that a fax of a signed Application
shall be as binding upon us as delivery of a signed original Application.


 


 


	
  Applicant’s Name:

  	
   

  	
   

  
	
  (party
  against whose Agreement the Standby is to be issued / the obligor)(4)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Authorized Signature                                                  Date

  	
   

  
	
  Name (in print)

  	
   

  
	
  Phone No.:                                             Fax
  No.:

  	
   

  



 






Instructions/Notes:


(1)          If the proper arrangements have been made,
applications and inquiries may be submitted by fax or e-mail to the addresses
listed.


(2)          Once issued, a standby letter of credit cannot be
cancelled without the agreement of the Beneficiary.


(3)          If the standby letter of credit requested is to act as
a counter-guarantee in favor of another bank with a request for that bank to
issue their local guarantee/bond/standby, the counter-guarantee standby may be
payable solely against the Foreign Bank’s simple demand stating that they have
been drawn upon by the ultimate Beneficiary under the local
guarantee/bond/standby that they issued.


(4)          If permitted by
BNP Paribas, the party referred to as “Applicant” in the Standby does not have
to be the party actually applying for the Standby.  The party signing the application for the
Standby must be the party who executed the Agreement and who is responsible for
reimbursing BNP Paribas for payments. 
For the Beneficiary’s reference, someone else may be called the “Applicant”
in the Standby. Where the party to be referred to as “Applicant” in the Standby
is not the party actually applying for the Standby, please furnish to BNP
Paribas a signed consent acceptable to BNP Paribas from such party consenting
to its being referred to in the Standby as “Applicant”.


(5)          To avoid delay
in delivery to the appropriate party and enable delivery by courier/messenger,
please provide the street address of the Beneficiary and an attention
party.  If you do not wish this
information to appear in the Standby or if delivery is to be to a different
address from that in the Standby, provide delivery instructions below the
Additional Conditions section.


(6)          The expiry date
of the local guarantee/bond/standby must be at least 15 days earlier than the expiry
of the counter-guarantee Standby. Circumstances vary and longer periods may be
required in certain countries.


 


Exhibit S


 


3