Exhibit 10.29


 


EXECUTION COPY


 


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


 


	
   

  



 


 


EQUITY CONTRIBUTION AND PURCHASE AGREEMENT


 


 


by and among


 


 


MILFORD NHC, LLC


 


MILFORD WIND
HOLDINGS, LLC


 


MILFORD WIND PARTNERS, LLC,


 


 


and


 


 


STANTON EQUITY TRADING DELAWARE LLC


 


 


dated as of September 28, 2009


 


	
   

  



 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 1

  	
   

  	
  DEFINED
  TERMS

  	
   

  	
  1

  
	
  1.1

  	
   

  	
  Defined
  Terms

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 2

  	
   

  	
  PURCHASE OF
  INTERESTS; INVESTMENT IN THE COMPANY

  	
   

  	
  1

  
	
  2.1

  	
   

  	
  Agreement to
  Purchase and Make Capital Contributions

  	
   

  	
  1

  
	
  2.2

  	
   

  	
  Purchase
  Price; Amounts of Capital Contributions by Investor and NHC

  	
   

  	
  2

  
	
  2.3

  	
   

  	
  Initial
  Closing

  	
   

  	
  2

  
	
  2.4

  	
   

  	
  Conditions
  Precedent to the Obligations of Investor at the Initial Closing

  	
   

  	
  3

  
	
  2.5

  	
   

  	
  Conditions
  Precedent to the Obligations of Holdings and NHC at the Initial Closing

  	
   

  	
  7

  
	
  2.6

  	
   

  	
  Second Equity
  Capital Contribution Closing

  	
   

  	
  9

  
	
  2.7

  	
   

  	
  Conditions
  Precedent to the Obligations of Investor at the Second Equity Capital
  Contribution Closing

  	
   

  	
  9

  
	
  2.8

  	
   

  	
  Conditions
  Precedent to the Obligations of NHC at the Second Equity Capital Contribution
  Closing

  	
   

  	
  11

  
	
  2.9

  	
   

  	
  Third Equity
  Capital Contribution Closing

  	
   

  	
  12

  
	
  2.10

  	
   

  	
  Conditions
  Precedent to the Obligations of Investor at the Third Equity Capital
  Contribution Closing

  	
   

  	
  12

  
	
  2.11

  	
   

  	
  Conditions
  Precedent to the Obligations of NHC at the Third Equity Capital Contribution
  Closing

  	
   

  	
  13

  
	
  2.12

  	
   

  	
  Use of
  Proceeds

  	
   

  	
  14

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 3

  	
   

  	
  REPRESENTATIONS
  AND WARRANTIES

  	
   

  	
  15

  
	
  3.1

  	
   

  	
  Representations
  and Warranties of Holdings and NHC

  	
   

  	
  15

  
	
  3.2

  	
   

  	
  Representations
  and Warranties of Investor

  	
   

  	
  23

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 4

  	
   

  	
  TERMINATION

  	
   

  	
  25

  
	
  4.1

  	
   

  	
  Termination

  	
   

  	
  25

  
	
  4.2

  	
   

  	
  Procedure
  and Effect of Termination

  	
   

  	
  26

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 5

  	
   

  	
  INDEMNIFICATION

  	
   

  	
  26

  
	
  5.1

  	
   

  	
  Indemnification

  	
   

  	
  26

  



 


i

















 


	
  TABLE OF CONTENTS

  
	
  (continued)

  
	
  5.2

  	
   

  	
  Direct
  Claims

  	
   

  	
  27

  
	
  5.3

  	
   

  	
  Third Party
  Claims

  	
   

  	
  27

  
	
  5.4

  	
   

  	
  After Tax
  Basis

  	
   

  	
  29

  
	
  5.5

  	
   

  	
  No
  Duplication

  	
   

  	
  29

  
	
  5.6

  	
   

  	
  Sole Remedy

  	
   

  	
  29

  
	
  5.7

  	
   

  	
  Survival

  	
   

  	
  29

  
	
  5.8

  	
   

  	
  Final Date
  for Assertion of Indemnity Claims

  	
   

  	
  30

  
	
  5.9

  	
   

  	
  Mitigation
  and Limitations on Indemnified Costs

  	
   

  	
  30

  
	
  5.10

  	
   

  	
  Payment of
  Indemnification Claims

  	
   

  	
  31

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 6

  	
   

  	
  GENERAL
  PROVISIONS

  	
   

  	
  31

  
	
  6.1

  	
   

  	
  Exhibits and
  Schedules

  	
   

  	
  31

  
	
  6.2

  	
   

  	
  Disclosure
  Schedules

  	
   

  	
  31

  
	
  6.3

  	
   

  	
  Amendment,
  Modification and Waiver

  	
   

  	
  31

  
	
  6.4

  	
   

  	
  Severability

  	
   

  	
  32

  
	
  6.5

  	
   

  	
  Parties in
  Interest

  	
   

  	
  32

  
	
  6.6

  	
   

  	
  Notices

  	
   

  	
  32

  
	
  6.7

  	
   

  	
  Confidentiality

  	
   

  	
  33

  
	
  6.8

  	
   

  	
  Counterparts

  	
   

  	
  35

  
	
  6.9

  	
   

  	
  Entire
  Agreement

  	
   

  	
  35

  
	
  6.10

  	
   

  	
  Governing
  Law; Choice of Forum; Waiver of Jury Trial

  	
   

  	
  35

  
	
  6.11

  	
   

  	
  Public
  Announcements

  	
   

  	
  36

  
	
  6.12

  	
   

  	
  Assignment

  	
   

  	
  36

  
	
  6.13

  	
   

  	
  Relationship
  of Parties

  	
   

  	
  36

  
	
  6.14

  	
   

  	
  No
  Solicitation

  	
   

  	
  36

  
	
  6.15

  	
   

  	
  No Agents

  	
   

  	
  37

  
	
  6.16

  	
   

  	
  Limitations
  of Liability

  	
   

  	
  37

  
	
  6.17

  	
   

  	
  Intention of
  the Parties

  	
   

  	
  37

  



 


ii

















 


	
  Annexes:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Annex I

  	
   

  	
  Definitions

  
	
  Annex II

  	
   

  	
  Investor
  Percentages

  
	
   

  	
   

  	
   

  
	
  Exhibits:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
   

  	
  Form of
  Company LLC Agreement

  
	
  Exhibit B

  	
   

  	
  Form of
  Investor Guaranty

  
	
  Exhibit C

  	
   

  	
  Form of
  Management Services Agreement

  
	
  Exhibit D

  	
   

  	
  Form of
  Assignment

  
	
  Exhibit E

  	
   

  	
  Form of
  Consent and Agreement

  
	
   

  	
   

  	
   

  
	
  Schedules:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule
  3.1(e)

  	
   

  	
  Membership
  Interests

  
	
  Schedule
  3.1(p)

  	
   

  	
  Real
  Property

  
	
  Schedule
  3.1(u)

  	
   

  	
  Material
  Contracts

  
	
  Schedule
  3.1(x)

  	
   

  	
  Affiliate
  Transactions

  



 


iii

















 


EQUITY CONTRIBUTION AND PURCHASE AGREEMENT


 


This Equity Contribution and Purchase Agreement (this “Contribution Agreement”)
is made and entered into as of September 28, 2009 (the “Effective Date”)
by and among Stanton Equity Trading Delaware LLC, a Delaware limited liability company
(“Investor”), Milford Wind Holdings, LLC, a Delaware limited liability
company (“Holdings”), Milford NHC, LLC, a Delaware limited liability
company (“NHC”), and Milford Wind Partners, LLC, a Delaware limited
liability company (the “Company”).


 


In consideration of the respective representations, warranties,
covenants, agreements, and conditions hereinafter set forth, and other good and
valuable consideration, the sufficiency of which is hereby acknowledged, the
parties to this Contribution Agreement hereby agree as follows:


 


ARTICLE 1


DEFINED TERMS


 


1.1                               Defined
Terms. Capitalized terms not otherwise defined in this Contribution
Agreement have the meanings given such terms in Annex I.


 


ARTICLE 2


PURCHASE OF INTERESTS; INVESTMENT IN THE
COMPANY


 


2.1                               Agreement
to Purchase and Make Capital Contributions.


 


Subject to the terms and conditions in this Contribution Agreement:


 


(a)                                  On the Initial
Closing Date (i) Investor will purchase from Holdings and Holdings will
sell to Investor all of the Class B Membership Interests in the Company
(such transaction being referred to herein as the “Purchase”) for the
Purchase Price, (ii) Investor will make an Initial Equity Capital
Contribution to the Company, provided that if the respective conditions to the
obligations of Investor, NHC and Holdings as provided in Sections 2.4
and 2.5 (other than the making of the actual Initial Equity Capital
Contribution) are satisfied on a non-Business Day or after 10:00 a.m. (Eastern
current time) on a Business Day, then Investor shall authorize payment of the
Initial Equity Capital Contribution via wire transfer on the Initial Closing
Date for receipt by the Company by the end of the next Business Day), and (iii) NHC
will contribute 100% of the membership interests in MWCI to the Company.


 


(b)                                 On the Second Equity
Capital Contribution Date, if any, Investor will make a Second Equity Capital
Contribution upon the satisfaction or waiver of the conditions set forth in Section 2.7.


 

















 


(c)                                  On the Third Equity
Capital Contribution Date, if any, Investor will make a Third Equity Capital
Contribution upon the satisfaction or waiver of the conditions set forth in Section 2.10.


 


2.2                               Purchase
Price; Amounts of Capital Contributions by Investor and NHC.


 


(a)                                  Purchase Price.
The purchase price (the “Purchase Price”) to be paid by Investor to
Holdings in connection with the Purchase shall be $500.


 


(b)                                 Initial Equity
Capital Contribution.


 


(i)                                     On the Initial
Closing Date (or following Business Day as provided in Section 2.1(a)),
the Investor will make the Initial Equity Capital Contribution in the Initial
Equity Capital Contribution Amount.


 


(ii)                                  On the Initial
Closing Date, NHC will contribute 100% of the membership interests in MWCI to
the Company.


 


(c)                                  Second Equity
Capital Contribution. The Second Equity Capital Contribution to be made by
the Investor upon the Second Equity Capital Contribution Date shall be in the
Second Equity Capital Contribution Amount. NHC shall notify Investor in writing
at the time and in the manner provided in Section 2.7 hereof as to (A) the
number and type of Turbines, and the nameplate rated capacity of such Turbines
in megawatts, that will be Placed in Service on or prior to the Second Equity
Capital Contribution Date, and (B) a computation of the Second Equity
Capital Contribution Amount.


 


(d)                                 Third Equity
Capital Contribution. If, as of the Second Equity Capital Contribution
Date, fewer than 100% of the Turbines have been Placed in Service, then, upon
the satisfaction or waiver of the conditions set forth in Section 2.8,
the Investor shall make a Third Equity Capital Contribution. Such Third Equity
Capital Contribution shall be in the amount of the Third Equity Capital
Contribution Amount.


 


2.3                               Initial
Closing. Subject to the termination rights in ARTICLE 4, the
making of the Initial Equity Capital Contribution by Investor, the contribution
by NHC to the Company of 100% of the membership interests in MWCI and the
consummation of the Purchase (the “Initial Closing”) will take place (i) at
the offices of Chadbourne & Parke LLP in New York City at 10:00 a.m.
(Eastern time) the date when all of the conditions in Sections 2.4 and 2.5
have either been satisfied or waived in writing by the Party entitled to the
benefit of such conditions, or (ii) at such other place and time as
Investor, Holdings and NHC may agree in writing (such date as determined under


 


2

















 


clause (i) or
(ii), the “Initial Closing Date”). Each of the documents to be delivered
pursuant to Section 2.4 and Section 2.5 shall be deemed
to be executed and delivered simultaneously, and no such document shall be of
any force or effect until all such documents are executed and delivered and the
Initial Closing is consummated. Subject to the terms and conditions in this
Contribution Agreement, on the Initial Closing Date, the following events shall
occur in the following order: (i) Investor shall deliver to Holdings, by
wire transfer to such account or accounts as Holdings may designate in a
written notice given to Investor no later than 3 Business Days before the
Initial Closing Date, an amount equal to the Purchase Price, (ii) Holdings
shall deliver to Investor the Assignment covering the Class B Membership
Interests, (iii) Holdings shall deliver or cause to be delivered to
Investor a certificate representing the Class B Membership Interests, and (iv) simultaneously
(A) Investor shall deliver to the Company, by wire transfer to such
account or accounts as NHC may designate in a written notice given to Investor
no later than 3 Business Days before the Initial Closing Date, an amount equal
to the Initial Equity Capital Contribution Amount and (B) NHC shall
contribute 100% of the membership interests in MWCI to the Company.


 


2.4                               Conditions
Precedent to the Obligations of Investor at the Initial Closing. The
obligation of Investor to consummate the Initial Closing will be subject to the
fulfillment by NHC and Holdings (and other Class A Investor Parties, as
applicable), on September 29, 2009, of each of the following conditions
(any or all of which may be waived in writing in whole or in part by Investor
in its sole discretion):


 


(a)                                  Investor shall have
received:


 


(i)                                     a
copy of the Forms 8832 filed with the IRS with respect to Holdings and NHC
showing that Holdings and NHC have elected to be treated as corporations for
federal income tax purposes;


 


(ii)                                  evidence
that NHC has contributed at least $600 to the Company prior to the consummation
of the Purchase;


 


(iii)                               evidence
that NHC has contributed 100% of the membership interests in MWCI to the
Company on the Initial Closing Date; and


 


(iv)                              evidence
that the Project Company has been released from its obligations under the
indebtedness of the Project Company to Affiliates reflected on the financial
statements of the Project Company given to Investor.


 


(b)                                 Prior to any Turbine
being Placed in Service (i) Milford shall have contributed to Holdings
100% of the membership interests in MWCI and (ii) thereafter,


 


3

















 


Holdings shall
have subsequently have contributed to NHC 100% of the membership interests in
MWCI.


 


(c)                                  All Governmental
Approvals required to be obtained or made by NHC or Holdings to execute,
deliver and perform the Transaction Documents relating to the Initial Closing
to which it is a party shall have been obtained or made and shall be in full
force and effect;


 


(d)                                 No action or
proceeding shall have been instituted or, to the Knowledge of NHC, threatened
in writing by any Governmental Authority against any of Holdings, NHC, the
Company, MWCI or the Project Company that seeks to impair, restrain, prohibit
or invalidate the transactions contemplated by this Contribution Agreement, the
other Transaction Documents or any Material Contract or regarding the
effectiveness or validity of any material Governmental Approvals relating the
Project except, in each case, to the extent such action or proceeding could not
reasonably be expected to have a Material Adverse Effect;


 


(e)                                  No default or event
of default shall have occurred and be continuing under any Material Contract
relating to the Project (other than the PPA or the Interconnection Agreement),
other than any such default or event of default that would not reasonably be
expected to result in a Material Adverse Effect;


 


(f)                                    (i) No default
or event of default of the Project Company or, to the Knowledge of NHC, any
default or event of default of the counterparty thereto shall have occurred and
be continuing under the PPA or the Interconnection Agreement and (ii) no
event of default of the Project Company shall have occurred and be continuing
under the Existing Financing Credit Agreement;


 


(g)                                 Each of Holdings and
NHC shall have delivered to Investor an officer’s certificate of an authorized
officer of such Person (i) certifying that each of the representations and
warranties made by it in Section 3.1 of this Contribution Agreement
is true and correct in all material respects as of such date (other than (A) those
qualified by a reference to materiality or Material Adverse Effect, which
representations and warranties shall be true and correct in all respects as of
the Initial Closing Date, and (B) those that expressly refer to an earlier
date, which representations and warranties shall be true and correct in all
material respects as of such earlier date); (ii) on the Initial Closing
Date only, (x) NHC shall attach (A) true, accurate and complete
copies of the organizational documents of each of NHC, the Company, MWCI and
the Project Company (and with respect to the operating agreement of the
Company, showing that NHC owns 100% of the Class A Membership Interests
and Holdings owns 100% of the Class B Membership Interests), (B) resolutions
of each of NHC and the Company authorizing the execution of the Transaction
Documents to which it is a party and the


 


4

















 


matters and
transactions contemplated by the Transaction Documents, and (C) good
standing or similar certificates of each of NHC, the Company, MWCI and the
Project Company issued by the Secretary of State in its jurisdiction of
formation and, in the case of the Project Company, in Utah; and (y) Holdings
shall attach (A) true, accurate and complete copies of the organizational
documents of Holdings, (B) resolutions of Holdings authorizing the
execution of the Transaction Documents to which it is a party and the matters
and transactions contemplated by the Transaction Documents, (C) good
standing or similar certificates of Holdings issued by the Secretary of State
in its jurisdiction of formation; and (D) officer’s certificate from NHC
regarding certain matters related to the PPA and certifying that the
assumptions made in certain legal opinions of counsel for the Class A
Investor Parties delivered at the Initial Closing Date are true and correct in
all material respects.


 


(h)                                 Each of NHC, Holdings
and the Company shall have delivered to Investor a certificate of incumbency
from its respective secretary or assistant secretary, who sign the Transaction
Documents on behalf of them;


 


(i)                                     The Company LLC
Agreement shall have been duly executed by NHC and delivered to Investor, and
NHC shall have delivered to Investor copies of the following irrevocable
letters of instruction, each effective upon the Initial Closing and each having
been delivered to the applicable officers: (i) irrevocable letter of
instruction from the Company, as the sole member of MWCI, signed by NHC as the
Company’s Managing Member, to each officer of MWCI instructing each of them
that MWCI shall not approve of or cause MWCI or the Project Company to take any
Major Decision without the prior approval of the Company, and (ii) irrevocable
letter of instruction from MWCI (signed by an officer of MWCI), as the sole
member of the Project Company, to each officer of the Project Company
instructing each of them that the Project Company shall not approve of or cause
Project Company, Manager, Administrator or the Affiliate Operator to take any
Major Decision without the prior approval of MWCI;


 


(j)                                     Each of NHC and
Holdings shall have delivered a duly executed affidavit of non-foreign status
that complies with section 1445 of the Code;


 


(k)                                  (i) The
Management Services Agreement shall have been duly executed by the Manager, the
Company and MWCI. (ii) All other Material Contracts identified on Schedule 3.1(u) shall be in full
force and effect (unless terminated in accordance with the terms of the Company
LLC Agreement). (iii) Any amendments to any Material Contracts entered
into prior to the Initial Closing Date shall be reasonably satisfactory to
Investor;


 


(l)                                     NHC shall have
delivered to Investor an opinion of (i) New York counsel to the Class A
Investor Parties, relating to the Transaction Documents to which


 


5

















 


they are a
party, and covering matters of New York State and federal law, including no
required Governmental Approvals, no conflicts with laws and enforceability of
Transaction Documents, (ii) counsel to the Class A Investor Parties
with respect to matters of Delaware law, relating to the Transaction Documents
to which they are a party and covering matters including existence, good
standing, and due authority, (iii) counsel to the Project Company
addressing federal regulatory matters relating to the Project, (iv) counsel
to the Class A Investor Parties as to no conflicts with Material Contracts
and (v) Utah counsel to the Project Company, relating to the Project and
to federal permitting matters of the Project, which may be the opinion of such
counsel delivered pursuant to the Existing Financing Credit Agreement, each of
which shall be in form and substance reasonably satisfactory to Investor;


 


(m)                               Investor shall have
received copies of a pre-construction survey and site plan of the Project site;


 


(n)                                 Investor shall have
received a report from the Independent Engineer, in form and substance
reasonably satisfactory to Investor, with a scope agreed-upon between NHC and
Investor, regarding the technical aspects of the Project;


 


(o)                                 Investor shall have
received a report from the Qualified Insurance Consultant, in form and
substance reasonably satisfactory to Investor, which shall indicate that all
insurance required to be in place pursuant to Section 8.4 of the
Company LLC Agreement as of the Initial Closing Date is in full force and
effect and all premiums relating thereto have been paid for the current period.


 


(p)                                 Investor shall have
received a report from the Appraiser, which shall be in form and substance
reasonably satisfactory to Investor;


 


(q)                                 Investor shall have
received a phase I site assessment report from the Environmental Consultant
with respect to the Project (with a bring-down letter from the Environmental
Consultant in the event such report is dated more than 6 months prior to the
Initial Closing Date);


 


(r)                                    Investor shall have
received a copy of the Base Case Model;


 


(s)                                  No material adverse
Tax Law Change shall have occurred;


 


(t)                                    All necessary
approvals under the Existing Financing Credit Agreement shall have been
obtained for (i) a Repayment Plan (as defined in the Existing Financing
Credit Agreement) which is consistent with the transactions contemplated hereby
and (ii) the Transaction Documents and the transactions contemplated
thereby;


 


6














 


(u)           The Project Company shall have provided to
SCPPA (with a copy to the Investor) a pre-commercial operation notice as
contemplated by the PPA, including a declaration of planned Contract Capacity
(as defined in the PPA) that, in accordance with the terms of the PPA, would
result in a calculation of the Prepayment Amount of at least $233.3 million;


 


(v)           each of the representations and warranties
made by NHC and Holdings in Section 3.1 of this Contribution
Agreement shall be true and correct in all material respects as of such date
(other than (A) those qualified by a reference to materiality or Material
Adverse Effect, which representations and warranties shall be true and correct
in all respects as of the Initial Closing Date, and (B) those that
expressly refer to an earlier date, which representations and warranties shall
be true and correct in all material respects as of such earlier date);


 


(w)          NHC shall have delivered to Investor
evidence, which shall be in form and substance reasonably satisfactory to
Investor, that no manufacturing, construction or production of any of the Bonus
Depreciation Property began prior to January 1, 2008;


 


(x)            Investor shall have received the Consent
and Agreement executed by all parties thereto;


 


(y)           Investor shall have received a report
covering the wind attributes of the Project from a nationally known wind
consultant, which report shall confirm the assumptions used in the Base Case
Model and the SCPPA Pre-COD Notice, reflect that Phase II will have no material
adverse impact to the Project, and be otherwise satisfactory to the Investor;
and


 


(z)            Investor shall have received the financial
statements and balance sheets referenced in Section 3.1(j).


 


2.5          Conditions Precedent
to the Obligations of Holdings and NHC at the Initial Closing. The
obligations of NHC and Holdings to consummate the Initial Closing will be
subject to the fulfillment by Investor, at or before the Initial Closing Date,
of each of the following conditions (any or all of which may be waived in
writing in whole or in part by NHC or Holdings, as applicable, in its sole
discretion):


 


(a)           The
Investor Guaranty shall have been duly executed by Investor Guarantor and
delivered to NHC, and shall be in full force and effect, it being understood
and agreed that Investor shall not be required to deliver an Investor Guaranty
pursuant to this Section 2.5 if Investor has the Required Ratings;


 


(b)           Investor shall have paid the Purchase Price
to Holdings by check;


 


7

















 


(c)           Investor shall have contributed the Initial
Equity Capital Contribution Amount to the Company in immediately available
funds;


 


(d)           Investor shall have delivered to Holdings
and NHC an officer’s certificate of an authorized officer of Investor (i) certifying
that each of the representations and warranties made by Investor in Section 3.2
of this Contribution Agreement is true and correct in all material respects as
of such date (other than (A) those qualified by a reference to materiality
or Material Adverse Effect, which representations and warranties shall be true
and correct in all respects as of the Initial Closing Date, and (B) those
that expressly refer to an earlier date, which representations and warranties
shall be true and correct in all material respects as of such date); and (ii) attaching
(A) true, accurate and complete copies of the organizational documents
Investor or Investor Guarantor, as applicable, (B) resolutions of each of
Investor or Investor Guarantor as applicable authorizing the execution of the
Transaction Documents to which it is a party and (C) good standing or
similar certificates of Investor or Investor Guarantor, as applicable, issued
by the Secretary of State in its jurisdiction of formation;


 


(e)           Investor shall have delivered to Holdings
and NHC certificates of incumbency from the secretary or assistant secretary of
Investor and Investor Guarantor as to the officers of Investor and Investor
Guarantor who sign the Transaction Documents on behalf of Investor and Investor
Guarantor;


 


(f)            the Company LLC Agreement shall have been
duly executed by Investor and delivered to NHC;


 


(g)           Holdings and NHC shall have received a legal
opinion of New York and Delaware counsel (which may be in house counsel) to
Investor and Investor Guarantor with respect to this Agreement, the Company LLC
Agreement and the Investor Guaranty to which they are a party, together
covering existence, good standing, due authority to enter into the Transaction
Documents to which such Persons are a party, no required Governmental
Approvals, no conflicts and enforceability of such Transaction Documents
against such Person, in form and substance reasonably satisfactory to Holdings
and NHC;


 


(h)           NHC shall have received a copy of the Base
Case Model;


 


(i)            each of the representations and warranties
made by Investor in Section 3.2 of this Contribution Agreement
shall be true and correct in all material respects as of such date (other than (A) those
qualified by a reference to materiality or Material Adverse Effect, which
representations and warranties shall be true and correct in all respects as of
the Initial Closing Date, and (B) those that expressly refer to an earlier


 


8

















 


date, which
representations and warranties shall be true and correct in all material
respects as of such earlier date);


 


(j)            all necessary approvals under the Existing
Financing Credit Agreement shall have been obtained for (i) a Repayment
Plan (as defined in the Existing Financing Credit Agreement) which is consistent
with the transactions contemplated hereby and (ii) the Transaction
Documents and the transactions contemplated thereby; and


 


(k)           the Consent and Agreement shall have been
executed and delivered by all parties thereto.


 


2.6          Second Equity Capital
Contribution Closing. Subject to the termination rights in Section 4.1(c),
the making of a second Capital Contribution to the Company by the Investor (the
“Second Equity Capital Contribution”) will take place (i) at the
offices of Chadbourne & Parke LLP in New York City at 10:00 a.m.
(Eastern time) on the date that is three (3) Business Days following the
date that all of the conditions in Section 2.7 and Section 2.8
have either been satisfied or waived in writing by the Party entitled to the
benefit of such conditions other than the actual making of the Second Equity
Capital Contribution, or (ii) at such other place and time as Investor and
NHC may agree in writing (such date as determined under clause (i) or
(ii), the “Second Equity Capital Contribution Date”). Each of the
documents to be delivered pursuant to Section 2.7 shall be deemed
to be delivered simultaneously, and no such document shall be of any force or
effect until all such documents are delivered and the Initial Closing is
consummated. Subject to the terms and conditions in this Contribution
Agreement, on the Second Equity Capital Contribution Date, Investor shall
deliver to the Company, by wire transfer to such account or accounts as NHC may
designate in a written notice given to Investor no later than 5 Business Days
before the Second Equity Capital Contribution Date, an amount equal to the
Second Equity Capital Contribution Amount.


 


2.7          Conditions Precedent
to the Obligations of Investor at the Second Equity Capital Contribution
Closing. The obligation of Investor to consummate a Second Equity
Capital Contribution will be subject to the fulfillment by NHC or the Company,
at or before any Second Equity Capital Contribution Date, of each of the
following conditions (any or all of which may be waived in writing in whole or
in part by Investor in its sole discretion) no later than January 31, 2010
(unless an earlier date is specified in any particular condition below):


 


(a)           the Independent Engineer shall have verified
in writing (i) that, on or before December 31, 2009, Turbines with an
aggregate generating capacity of at least 190 megawatts (or such lesser amount
as shall have been approved by the lenders under the Existing Financing Credit
Agreement but which shall not be less than 162


 


9

















 


megawatts)
shall have been Placed in Service and (ii) at least 5 Business Days prior
to the Second Equity Capital Contribution Date, the type and number of Turbines
Placed in Service, and their aggregate nominal rated capacity, prior to the
Second Equity Capital Contribution Date;


 


(b)           on or before December 31, 2009,
Commercial Operation shall have occurred under the PPA and NHC shall have
delivered a copy of the COD Notice, as defined in the PPA, evidencing that
Commercial Operation has occurred;


 


(c)           NHC shall have delivered to Investor an
officer’s certificate of an authorized officer of NHC certifying that legal
title and control over each Turbine that has been Placed in Service has been
transferred to the Project Company;


 


(d)           the conditions precedent set forth in Sections
2.4(c), 2.4(d) (other than with respect to Holdings), 2.4(e),
2.4(f), and 2.4(k)(ii) shall be satisfied as of the Second
Equity Capital Contribution Date;


 


(e)           Investor shall have received the Cost Segregation
Report prepared by an Accounting Firm at least 5 Business Days prior to the
Second Equity Capital Contribution Date;


 


(f)            Investor shall have received a date-down
endorsement to the Owners Title Insurance Policy, which date-down endorsement
shall be dated no more than 10 Business Days prior to the Second Equity Capital
Contribution Date and shall be in form and substance reasonably satisfactory to
Investor. The premiums for such endorsement will be paid with proceeds of the
Second Equity Capital Contribution;


 


(g)           each of the representations and warranties
made by NHC in Section 3.1 of this Contribution Agreement shall be
true and correct in all material respects as of the Second Equity Capital
Contribution Date (other than (A) those qualified by a reference to
materiality or Material Adverse Effect, which representations and warranties
shall be true and correct in all respects as of the Second Equity Capital
Contribution Date, and (B) those that expressly refer to an earlier date,
which representations and warranties shall be true and correct in all material
respects as of such earlier date);


 


(h)           NHC shall have delivered to Investor an
officer’s certificate of an authorized officer of NHC certifying that each of
the representations and warranties made by NHC in Section 3.1 of
this Contribution Agreement is true and correct in all material respects as of
such date (other than (i) those qualified by a reference to materiality or
Material Adverse Effect, which representations and warranties shall be true and
correct in all respects as of the Second Equity Capital Contribution Date, and (ii) those
that


 


10

















 


expressly
refer to an earlier date, which representations and warranties shall be true
and correct in all material respects as of such date);


 


(i)            none of the Company LLC Agreement, the
Project Company LLC Agreement or the MWCI LLC Agreement shall have been amended
since the date of the Initial Closing (other than ministerial amendments)
without the approval of Investor pursuant to a Class Majority Vote;


 


(j)            NHC shall not have intentionally made any
Major Decision, or permitted the Company, MWCI or the Project Company to make
any Major Decision, without a Class Majority Vote as provided for in the
Company LLC Agreement, unless the making of such Major Decision did not and
will not result in a material adverse effect on the Investor with respect to
its investment under the Company LLC Agreement; provided, that if Investor has
obtained actual knowledge of such action or omission and has not made any
assertion of non-compliance with this condition by delivering a written notice
to NHC on or before the earlier to occur of (x) the Commercial Operation
Date and (y) the date on which the administrative agent under the Existing
Financing Credit Agreement provides its written consent for the Project Company
to submit notice to SCPPA declaring Commercial Operation, each of the Parties
acknowledges and agrees that this condition shall be deemed satisfied; and


 


(k)           no material and intentional breach by NHC
shall have occurred that has not been cured or remedied under any of Section 2.12
(Use of Proceeds), ARTICLE 5 (Indemnification), Section 6.7
(Confidentiality), Section 6.11 (Public Announcements) or Section 6.12
(Assignment) of this Contribution Agreement.


 


2.8          Conditions Precedent
to the Obligations of NHC at the Second Equity Capital Contribution Closing.
The obligations of NHC to consummate the Second Equity Capital Contribution
will be subject to the fulfillment by Investor, at or before the Second Equity
Capital Contribution Date, of each of the following conditions (any or all of
which may be waived in writing in whole or in part by NHC in its sole
discretion):


 


(a)           Investor shall have delivered to NHC an
officer’s certificate of an authorized officer of Investor or Investor
Guarantor as applicable, certifying that each of the representations and
warranties made by Investor in Section 3.2 of this Contribution
Agreement and by Investor Guarantor in the Investor Guaranty is true and
correct in all material respects as of such date (other than (A) those
qualified by a reference to materiality or Material Adverse Effect, which
representations and warranties shall be true and correct in all respects as of
the Initial Closing Date, and (B) those that expressly refer to an earlier
date, which representations and warranties shall be true and correct in all
material respects as of such date);


 


11

















 


(b)           the condition precedent set forth in Section 2.5(a) shall
be satisfied; and


 


(c)           each of the representations and warranties
made by Investor in Section 3.2 of this Contribution Agreement
shall be true and correct in all material respects as of such date (other than (A) those
qualified by a reference to materiality or Material Adverse Effect, which
representations and warranties shall be true and correct in all respects as of
the Second Equity Capital Contribution Date, and (B) those that expressly
refer to an earlier date, which representations and warranties shall be true
and correct in all material respects as of such earlier date).


 


2.9          Third Equity Capital
Contribution Closing. Subject to the termination rights in Section 4.1(c),
the making of a third Capital Contribution to the Company by the Investor (the
“Third Equity Capital Contribution”) will take place (i) at the
offices of Chadbourne & Parke LLP in New York City at 10:00 a.m.
(Eastern time) on the date that is three (3) Business Days following the
date on which all of the conditions in Sections 2.10 and 2.11 have
either been satisfied or waived in writing by the Party entitled to the benefit
of such conditions other than the actual making of the Third Equity Capital
Contribution, or (ii) at such other place and time as Investor and NHC may
agree in writing (such date as determined under clause (i) or (ii), the “Third
Equity Capital Contribution Date”). Each of the documents to be delivered
pursuant to Section 2.10 shall be deemed to be delivered
simultaneously, and no such document shall be of any force or effect until all
such documents are delivered and the Third Equity Capital Contribution is
consummated. Subject to the terms and conditions in this Contribution
Agreement, on the Third Equity Capital Contribution Date, Investor shall
deliver to the Company, by wire transfer to such account or accounts as NHC may
designate in a written notice given to Investor no later than 3 Business Days
before the Third Equity Capital Contribution Date, an amount equal to the Third
Equity Capital Contribution Amount.


 


2.10        Conditions Precedent to
the Obligations of Investor at the Third Equity Capital Contribution Closing.
The obligation of Investor to consummate a Third Equity Capital Contribution
will be subject to the fulfillment by NHC or the Company at or before the date
150 days following the Commercial Operation Date, of each of the following
conditions (any or all of which may be waived in writing in whole or in part by
Investor in its sole discretion):


 


(a)           less than 100% of the Turbines in the
Project shall have been Placed in Service as of the Second Equity Capital
Contribution Date and some or all of the Remaining Turbines shall have reached
Commercial Operation within 90 days of the Commercial Operation Date as
contemplated by the PPA, or a later date if SCPPA permits the Project to
commence the supply of electrical energy under the PPA (or a


 


12

















 


replacement
power purchase agreement to SCPPA), as confirmed in writing by the Independent
Engineer.


 


(b)           the Company and the Project Company have
requested that Investor make a Third Equity Capital Contribution in the amount
of the Third Equity Capital Contribution Amount;


 


(c)           the conditions precedent set forth in Sections
2.4(c), 2.4(d) (other than with respect to Holdings), 2.4(e),
2.4(f), and 2.4(k)(ii) shall be satisfied as of the Third
Equity Capital Contribution Date;


 


(d)           each of the representations and warranties
made by NHC in Section 3.1 of this Contribution Agreement shall be
true and correct in all material respects as of the Third Equity Capital
Contribution Date (other than (A) those qualified by a reference to
materiality or Material Adverse Effect, which representations and warranties
shall be true and correct in all respects as of the Initial Closing Date, and (B) those
that expressly refer to an earlier date, which representations and warranties
shall be true and correct in all material respects as of such earlier date);


 


(e)           NHC shall have delivered to Investor an
officer’s certificate of an authorized officer of NHC certifying that each of
the representations and warranties made by NHC in Section 3.1 of
this Contribution Agreement is true and correct in all material respects as of
such date (other than (A) those qualified by a reference to materiality or
Material Adverse Effect, which representations and warranties shall be true and
correct in all respects as of the Third Equity Capital Contribution Date, and (B) those
that expressly refer to an earlier date, which representations and warranties
shall be true and correct in all material respects as of such date); and


 


(f)            no material and intentional breach by NHC
shall have occurred that has not been cured or remedied under any of Sections
2.12 (Use of Proceeds), Article 5 (Indemnification), Section 6.7
(Confidentiality), Section 6.11 (Public Notice) or Section 6.12
(Assignment) of this Contribution Agreement.


 


2.11        Conditions Precedent to
the Obligations of NHC at the Third Equity Capital Contribution Closing.
The obligations of NHC to consummate the Third Equity Capital Contribution will
be subject to the fulfillment by Investor, at or before the Third Equity
Capital Contribution Date, of each of the following conditions (any or all of
which may be waived in writing in whole or in part by NHC in its sole
discretion):


 


(a)           Investor shall have delivered to NHC an
officer’s certificate of an authorized officer of Investor or Investor
Guarantor as applicable, certifying that each of


 


13

















 


the
representations and warranties made by Investor in Section 3.2 of
this Contribution Agreement and by Investor Guarantor in the Investor Guaranty is
true and correct in all material respects as of such date (other than (A) those
qualified by a reference to materiality or Material Adverse Effect, which
representations and warranties shall be true and correct in all respects as of
the Initial Closing Date, and (B) those that expressly refer to an earlier
date, which representations and warranties shall be true and correct in all
material respects as of such date).


 


(b)           The condition precedent set forth in Section 2.5(a) shall
be satisfied; and


 


(c)           each of the representations and warranties
made by Investor in Section 3.2 of this Contribution Agreement
shall be true and correct in all material respects as of such date (other than (A) those
qualified by a reference to materiality or Material Adverse Effect, which
representations and warranties shall be true and correct in all respects as of
the Third Equity Capital Contribution Date, and (B) those that expressly
refer to an earlier date, which representations and warranties shall be true
and correct in all material respects as of such earlier date).


 


2.12        Use of Proceeds.
The Capital Contributions of the Investor at each of the Closings shall,
subject to the provisions of Section 6.1 of the Company LLC Agreement, be
applied as follows:


 


(a)           The Initial Equity Capital Contribution
shall be promptly contributed by the Company to MWCI and the Company shall cause
MWCI to promptly contribute the Initial Equity Capital Contribution to the
Project Company for deposit into the Construction Account (as defined in the
Existing Financing Credit Agreement), in order for the Project Company to use
such amount to repay the Existing Financing Obligations or to pay construction
costs of the Project.


 


(b)           The Second Equity Capital Contribution, if
any, shall be promptly contributed by the Company to MWCI and the Company shall
cause MWCI to promptly contribute the Second Equity Capital Contribution to the
Project Company, in order for the Project Company to use such amount, to (i) first, fund the Required Reserves as set
forth in Schedule 8.2(b) of
the Company LLC Agreement as well as fund any liquidity needs of the Project Company,
(ii) second, repay with all
remaining funds the Existing Financing Obligations and (iii) third, to the extent available, pay any
Transaction Expenses of the Project Company and then, to the extent available,
all remaining amounts shall be distributed, if permitted, and in accordance
with the provisions of the Company LLC Agreement.


 


14

















 


(c)           The Third Equity Capital Contribution, if
any, shall be promptly contributed by the Company to MWCI and the Company shall
cause MWCI to promptly contribute the Third Equity Capital Contribution to the
Project Company, in order for the Project Company to use such amount, to (i) fund
the Required Reserves as set forth in Schedule
8.2(b) of the Company LLC Agreement less any sums funded into the Required Reserves pursuant to Section 2.12(b) and
(ii) repay with all remaining funds the Existing Financing Obligations,
and (iii) to the extent available, pay any Transaction Expenses of the
Project Company (to the extent not previously repaid in full with proceeds of
the Second Equity Capital Contribution); to the extent available, all remaining
amounts shall be distributed, if permitted, and in accordance with the
provisions of the Company LLC Agreement.


 


ARTICLE 3


REPRESENTATIONS AND WARRANTIES


 


3.1          Representations and
Warranties of Holdings and NHC. On the Initial Closing Date, each of
NHC and Holdings represents and warrants to Investor as to themselves and,
where applicable, NHC represents and warrants to Investor as to the Company,
MWCI and the Project Company; and on the Second Equity Capital Contribution
Date and any Third Equity Capital Contribution Date, NHC represents and
warrants to Investor as to itself and, where applicable, the Company, MWCI and
the Project Company, as follows:


 


(a)           Organization, Good Standing, Etc.
Each of NHC, Holdings, the Company, MWCI and the Project Company is a limited
liability company duly formed, validly existing and in good standing under the
laws of its state of formation. Each of NHC, Holdings, the Company, MWCI and
the Project Company has the limited liability company power and authority to
own, lease and operate its properties and to carry on its business as being
conducted on the date hereof in each jurisdiction where the character of its
property or nature of its activities makes such a qualification necessary.


 


(b)           Authority. Each of NHC, Holdings,
MWCI, the Company and the Project Company has the limited liability company
power and authority to enter into the Transaction Documents to which it is
party, to perform its obligations under such agreements and to consummate the
transactions contemplated therein. The execution and delivery by NHC, Holdings,
MWCI, the Company and the Project Company of this Contribution Agreement and
each other Transaction Document to which it is a party, and the consummation by
each of them of the transactions contemplated hereunder and thereunder, have
been duly authorized by all necessary limited liability company action required
on their respective parts. Each of NHC, Holdings, MWCI, the Company and the
Project Company has duly executed and delivered each Transaction Document to
which it is a party. This Contribution Agreement (assuming due authorization,
execution and


 


15














 


delivery by Investor)
constitutes, and upon execution and delivery by each of NHC, Holdings, MWCI,
the Company and the Project Company of the other Transaction Documents to which
it is a party, such Transaction Documents will constitute, their respective valid
and binding obligations, enforceable against it in all material respects in
accordance with their respective terms, subject as to enforceability to
applicable bankruptcy, insolvency, reorganization, moratorium and similar laws
affecting enforcement of creditors’ rights and remedies generally and to
general principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity).


 


(c)           No Conflicts. The execution
and delivery of the Transaction Documents to which it is a party and the
performance by each of NHC, Holdings, MWCI, the Company and the Project Company
of its obligations thereunder will not (i) violate any Applicable Law to
which it is subject, (ii) conflict with or cause a breach of any provision
in its certificate of formation, limited liability company operating agreement
or other organizational document, (iii) cause a breach of, constitute a
default under, cause the acceleration of, create in any party the right to
accelerate, terminate, modify or cancel, or require any authorization, consent,
waiver or approval that has not already been obtained under any contract,
license, instrument, decree, judgment or other arrangement to which it is a
party or under which it is bound or to which any of its assets is subject (or
result in the imposition of a Lien upon any such assets, other than Permitted
Liens), except, in each such case, any such instances that would not reasonably
be expected to have a Material Adverse Effect.


 


(d)           Absence of
Litigation. None of NHC, Holdings, the Company, MWCI or the
Project Company is subject to any outstanding injunction, judgment, order,
decree, ruling or charge or, to the Knowledge of NHC, is threatened in writing
with being made a party to any action, suit, proceeding, hearing or investigation
of, in, or before any Governmental Authority or before any arbitrator, other
than any such instances that would not reasonably be expected to have a
Material Adverse Effect.


 


(e)           Ownership. Set forth in Schedule 3.1(e) is a complete and
accurate description of the authorized Membership Interests of the Company, by
class, and a description of the number of shares, interests, units or other
Membership Interests of each such class that are issued and outstanding and the
record owner or holder thereof immediately prior to the Initial Closing Date.
Immediately prior to the Initial Closing Date, NHC owns of record and
beneficially 100% of the Class A Membership Interests of the Company, and
Holdings owns of record and beneficially 100% of the Class B Membership
Interests of the Company. The Company owns of record and beneficially 100% of
the equity interests of the MWCI, and MWCI owns of record and beneficially 100%
of the equity interests of the Project Company. There are no outstanding
options, warrants, calls, puts, convertible securities or other contracts of
any nature obligating NHC, Holdings or the Company to issue, deliver or sell
Membership


 


16

















 


Interests or other
securities in the Company, except as provided in this Contribution Agreement,
or obligating the Company to issue, deliver or sell membership interests in
MWCI, or obligating MWCI to issue, deliver or sell membership interests in the
Project Company. The Manager is an Affiliate of NHC.


 


(f)            Valid Interests.


 


(i)            The membership interests in MWCI being contributed
by NHC to the Company on the Initial Closing Date are, on such date, conveyed
free and clear of any Liens except for obligations imposed on the members of
MWCI under the operating agreement for MWCI.


 


(ii)           The Class B Membership Interests being conveyed
by Holdings to Investor on the Initial Closing Date will constitute Membership
Interests in the Company, and on such date are being conveyed free and clear of
any Liens except for obligations imposed on members of the Company under the
Company LLC Agreement.


 


(g)           Taxes. As of the
Initial Closing Date, all Tax Returns required to be filed by or with respect
to NHC, Holdings, the Company, MWCI and the Project Company have been timely filed
(after giving effect to any extensions that have been requested by, and granted
to such party by the applicable Governmental Authority) and all Taxes required
to be paid by or with respect to NHC, Holdings, the Company, MWCI and the
Project Company, whether or not shown as due on such returns, have been paid
(other than those Taxes that it is contesting in good faith and by appropriate
proceedings and for which adequate reserves have been set aside in accordance
with GAAP). As of the Initial Closing Date, the amount of Taxes in the
aggregate being contested by the Company, MWCI and the Project Company does not
exceed $250,000. Except as otherwise provided in this Contribution Agreement
and the Company LLC Agreement, no representation is being made about the income
tax characteristics of the Project (including bonus depreciation allowances for
the Project and whether the Project qualifies for the Cash Grant).


 


(h)           Bonus
Depreciation. Any written binding contract entered into by
Project Company, NHC or any other First Wind Subsidiary to manufacture,
construct or produce the Bonus Depreciation Property was signed before
fabrication or construction of the property commenced. To the Knowledge of NHC,
after due inquiry, no manufacturing, construction or production of such Bonus
Depreciation Property began prior to January 1, 2008.


 


(i)            Grant
Application. To the Knowledge of NHC, after due inquiry, there
is no fact related to the equipment comprising the Project or the status of the


 


17

















 


Company that would
reasonably be expected to result in a denial of the Grant Application. For the
avoidance of doubt, this representation and warranty shall not be construed as
a representation as to the legal matters or legal conclusions (but shall be
construed as a representation as to factual matters), such as (but without
limitation) the date construction began or whether the Project has been Placed
in Service or what portion of the property comprising the Project’s wind farm
constitutes energy property, in each case, for purposes of the Code or the
American Recovery and Reinvestment Act of 2009.


 


(j)            Financial
Statements. As of the Initial Closing Date, the balance sheets
and income statements of the Project Company and the pro forma balance sheets
and income statements of the Company and MWCI, each of which has been delivered
to Investor by NHC, have been prepared as of the most recent fiscal quarter
(or, in the case of the Project Company, the most recent calendar month) for which
NHC has such statements. Such balance sheets and income statements have been
prepared in accordance with GAAP and present fairly in all material respects
the financial position of the Company, MWCI and the Project Company, as
applicable, as of such date and, as applicable, the results of operations for
the period then ended, subject to normal year-end audit adjustments and the
absence of footnotes. Since the date of the aforementioned balance sheets and
prior to the Initial Closing Date, neither of the Company nor MWCI has incurred
additional indebtedness in excess of $100,000.


 


(k)           Compliance with
Laws. Other than (i) non-compliance that would reasonably be expected
not to have a Material Adverse Effect, (ii) Environmental Laws (which are
addressed in Section 3.1(m)), and (iii) Tax matters (which are
addressed in Sections 3.1(g) and 3.1(z)), the Project
Company is in compliance with all Applicable Laws, and has not received written
notice from a Governmental Authority of an actual or potential violation of any
Applicable Laws.


 


(l)            Governmental
Approvals and Filings. No Governmental Approval is required to be
obtained or made by NHC, Holdings, the Company, MWCI or the Project Company for
the execution, delivery and performance by it of any Transaction Document to
which it is a party or the consummation of the transactions contemplated
therein other than any Governmental Approvals that have been obtained
(including approvals required under section 203 of the Federal Power Act) or
are ministerial in nature and can reasonably be expected to be obtained or made
in the ordinary course on commercially reasonable terms and conditions when
needed.


 


(m)          Environmental
Matters. To the Knowledge of NHC, (i) the Project Company is in
compliance with all Environmental Laws, other than any non-compliance that has
been cured or otherwise resolved and any failures to comply that would not
reasonably be expected to have a Material Adverse Effect, (ii) there are
no locations or premises used by the Project Company where Hazardous Substances
have been allowed


 


18

















 


into the soil or groundwater
in violation of Environmental Laws during the period the Project Company has
owned the Project that (A) the Project Company would be obligated to
remove, remediate or otherwise respond to releases of such Hazardous Substances
pursuant to any Environmental Laws or (B) would reasonably be expected to
result in a liability of the Project Company to any Person under any
Environmental Laws, in the case of each of clauses (ii)(A) and (B) that
would have a Material Adverse Effect, and (iii) the Project Company has
not received written notice from any Governmental Authority of an actual or
potential violation of any Environmental Laws that would reasonably be expected
to have a Material Adverse Effect.


 


(n)           Permits. The Project
Company has in full force and effect all Governmental Approvals necessary to
construct and operate the Project for its intended purpose, other than renewals
of existing permits, permits whose absence would not reasonably be expected to
have a Material Adverse Effect or that are solely ministerial in nature and
able to be obtained in the ordinary course on commercially reasonable terms and
conditions when needed, and the Project Company has not received written notice
from any Governmental Authority of an actual or potential violation of any
Governmental Approval that would reasonably be expected to have a Material
Adverse Effect. The Project Company has made an application for all authorizations
necessary, including under Section 205 of the Federal Power Act, to make
wholesale electric sales at market-based rates and has received all waivers of
regulations and blanket regulatory authorizations typically granted to entities
authorized to make wholesale electric sales at market-based rates, and to the
Knowledge of NHC there is no reason to believe that such authorizations will
not be issued in due course.


 


(o)           Insurance. All insurance
required to be in place at the time this representation is made, as provided in
Section 8.4 to the Company LLC Agreement, is in place. To the Knowledge of
NHC, no circumstances have rendered such insurance unenforceable.


 


(p)           Real Property. The Company
does not own or lease any real property. MWCI does not own or lease any real
property. All real property owned or leased by the Project Company or to which
the Project Company has rights under easements or rights of way is identified
on Schedule 3.1(p). The real
property owned or leased, or in which rights are held, by the Project Company
is sufficient to enable the Project Company to conduct its operations,
including providing adequate ingress and egress from the Project.


 


(q)           Personal
Property. The Company owns no personal property other than
the membership interests in MWCI. MWCI owns no personal property other than the
membership interests in the Project Company. The Project Company has good title
to, or contractual rights to use, all material equipment and facilities
currently used in the operations of the Project.


 


19

















 


(r)            Project
Property. The Project is located in its entirety in the
United States.


 


(s)           Access to
Utilities, Roads, etc. All utility services necessary for the
construction and the operation of the Project for its intended purposes are or,
prior to final completion, are reasonably expected to be available at the
Project site. All roads necessary for the construction and full utilization of
the Project for its intended purpose under the Transaction Documents have
either been completed or are reasonably expected to be completed prior to
Commercial Operation.


 


(t)            Liens. All assets
owned by the Company, MWCI and the Project Company, including the Project, are
free and clear of all Liens other than Permitted Liens.


 


(u)           Material
Contracts. Schedule 3.1(u) lists
all Material Contracts to which the Company, MWCI or the Project Company is a
party as of the date of the Initial Equity Capital Contribution. Each such
contract is in full force and effect and binding on the Company, MWCI or the
Project Company, as applicable, except as enforceability may be limited by
applicable bankruptcy and similar laws affecting the enforcement of creditors’
rights and general equitable principles. None of the Company, MWCI or the
Project Company, as applicable, or, to the Knowledge of NHC, any other party is
in default under any such Material Contract other than the PPA or the
Interconnection Agreement (following the expiration of the relevant cure period
without the default being cured), except where any such default could not
reasonably be expected to have a Material Adverse Effect and the Project
Company or, to the Knowledge of NHC, any other party is not in default under
the PPA or the Interconnection Agreement (following the expiration of the
relevant cure period without the default being cured). NHC has delivered true,
correct and complete copies of all Material Contracts to Investor.


 


(v)           Interconnection. The
Interconnection Agreement provides for the interconnection of no less than 200
megawatts of electrical generating capacity to the interconnection point for
the entire term of the Interconnection Agreement.


 


(w)          Employee
Matters. None of the Company, MWCI or the Project Company has any employees.
Neither of them has maintained, sponsored, administered or participated in any
employee benefit plan or arrangement, including any an “employee benefit plan”
(as such term is defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended).


 


(x)            Affiliate
Transactions. Except for the Transaction Documents, there are no
existing contracts between the Company, MWCI or the Project Company, on the one
hand, and NHC, Holdings, Sponsor or any other First Wind Subsidiary, on the
other 


 


20

















 


hand other than as
identified on Schedule 3.1(x) and
those entered into after the Initial Closing Date in accordance with the
Company LLC Agreement. Neither the Company, MWCI nor the Project Company has
any outstanding debt to another First Wind Subsidiary.


 


(y)           Status of
Investor. Neither Holdings nor NHC is a Tax-Exempt Person.


 


(z)            Tax Character.


 


(i)            Each of the Project Company and MWCI is a
“disregarded entity” for U.S. federal income tax purposes prior to the
Effective Date. No elections have been filed with the IRS to treat the Company,
MWCI or the Project Company or any subsidiary thereof as an association taxable
as a corporation for U.S. federal income tax purposes. None of the assets of
the Project Company are tax-exempt use property within the meaning of Section 168(h) of
the Code (assuming that Investor is not a tax-exempt entity and that each of
the Fixed Tax Assumptions listed in (b) through (g) of the definition
thereof is accurate). NHC and Holdings are not tax-exempt entities within the
meaning of Section 168(h) of the Code.


 


(ii)           Since its formation and until the Effective Date NHC
and Holdings have legally owned their respective Membership Interests in the
Company.


 


(iii)          Holdings and NHC have made valid elections to be
taxed as corporations for U.S. federal income tax purposes, effective on or
before August 31, 2009.


 


(aa)         Regulatory
Status. The Project has filed a “Notice of Self-Certification as an Exempt
Wholesale Generator” with the FERC.


 


(bb)         Public Utility
Holding Company. The Company is a “holding company” within the
meaning of section 1262(8) of PUHCA solely with respect to its ownership
of one or more “exempt wholesale generators” or “qualifying facilities” and is
not subject to regulation under PUHCA, except for regulation under section 1265
of PUHCA. MWCI is a “holding company” within the meaning of section 1262(8) of
PUHCA solely with respect to its ownership of one or more “exempt wholesale
generators” or “qualifying facilities” and is not subject to regulation under
PUHCA, except for regulation under section 1265 of PUHCA. The Project Company
is not a “holding company” under PUHCA, and the Project Company is subject to
regulation under PUHCA solely with respect to regulation relating to maintaining
exempt wholesale


 


21

















 


generator status and any
regulation as a “subsidiary company” or an “affiliate” of a “holding company”,
as such terms are used within the meaning of section 1262 of PUHCA.


 


(cc)         Disclosure. The factual
information with respect to the Company, MWCI and the Project Company furnished
in writing to the Investor by NHC and any First Wind Subsidiaries, when taken
as a whole, does not contain any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in light of
the circumstances under which they were made and at the time they were made,
not misleading in any material respect; provided that no representation or
warranty is made with respect to (i) any projections or other
forward-looking statements provided by or on behalf of NHC or any other First
Wind Subsidiary, including the Base Case Model (other than that such
projections and forward-looking statements were prepared in good faith), (ii) the
tax consequences to beneficial owners of Membership Interests in the Company,
and (iii) any written material prepared by any Persons other than NHC and
its Affiliates (including consultants’ reports or other experts’ materials; provided
that all material information supplied by NHC and any of other First Wind
Subsidiary to such consultants and experts in connection with such reports and
materials was true, correct and complete in all material respects when so
provided).


 


(dd)         No Other
Business. None of the Company, MWCI or the Project Company
has engaged in any business other than the ownership, development,
construction, operation and maintenance of the Project and the Gen Lead
Substation Assets and Transmission Line Assets or, in the case of the Company,
ownership of MWCI or, in the case of MWCI, ownership of the Project Company.


 


(ee)         Existing
Financing. As of September 28, 2009, the outstanding
principal and accrued, unpaid interest under the Existing Financing is
approximately $290,328,224. To the Knowledge of NHC, no default, event of
default or failure of a funding condition exists under the Existing Financing.


 


(ff)           SCPPA Pre-COD
Notice. NHC has delivered to Investor a true and correct copy of the SCPPA
Pre-COD Notice. The Project Company has not received any written notice from
SCPPA disputing such SCPPA Pre-COD Notice.


 


(gg)         Turbines. No Turbine
has been Placed in Service prior to the consummation of the transactions
described in Section 2.4 (b).


 


(hh)         Special Purpose
Entity. The Project Company has been, is and will be a “Special Purpose
Entity” (as defined in the PPA) in all material respects.


 


22

















 


3.2          Representations
and Warranties of Investor. Investor represents and
warrants to NHC, Holdings and the Company with respect to itself on the Initial
Closing Date, and represents and warrants to NHC and the Company with respect
to itself on the Second Equity Capital Contribution Date and Third Equity
Capital Contribution Date as follows:


 


(a)           Organization,
Good Standing, Etc. Investor is a limited liability company duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its formation, and it has the requisite power and authority to
own, lease and operate its properties and to carry on its business as now being
conducted.


 


(b)           Authority. Investor has
the limited liability company power and authority to enter into the Transaction
Documents to which it is a party, to perform its obligations under such
agreements, and to consummate the transactions contemplated therein. The
execution and delivery by it of each Transaction Document to which it is a
party, and the consummation by it of the transactions contemplated thereunder,
have been duly authorized by all necessary company action. Each such
Transaction Document has been duly executed and delivered by it. Each such
Transaction Document (assuming due authorization, execution and delivery by NHC
and the Company) constitutes, and upon execution and delivery it of the other Transaction
Documents to which it is a party, the other Transaction Documents will
constitute, its valid and binding obligations, enforceable against it in
accordance with their respective terms, subject as to enforceability to
applicable bankruptcy, insolvency, reorganization, moratorium and similar laws
affecting enforcement of creditors’ rights and remedies generally and to
general principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity).


 


(c)           No Conflicts. The execution
and delivery of the Transaction Documents to which it is a party do not, and
the performance by Investor of its obligations thereunder will not, (i) violate
any Applicable Law to which Investor is subject, (ii) conflict with or
cause a breach of any provision in the charter, bylaws or other organizational
documents of Investor, (iii) cause a breach of, constitute a default
under, cause the acceleration of, create in any party the right to accelerate,
terminate, modify or cancel, or require any authorization, consent, waiver or
approval under any contract, license, instrument, decree, judgment or other
arrangement to which Investor is a party or under which it is bound or to which
any of its assets is subject (or result in the imposition of a Lien upon any
such assets), except (in the case of this clause (iii)) for any that would not
reasonably be expected to have a Material Adverse Effect.


 


(d)           Absence of
Litigation. Investor is not subject to any outstanding
injunction, judgment, order, decree, ruling or charge and, to its knowledge is
not threatened with being made a party to any action, suit, proceeding, hearing
or


 


23

















 


investigation of, in, or
before any Governmental Authority or before any arbitrator that would affect
its ability to complete the transactions contemplated in the Transaction
Documents to which it is a party or could have a Material Adverse Effect.


 


(e)           Governmental
Approvals and Filings. No Governmental Approval is required to be
obtained or made by Investor for the execution, delivery and performance by it
of any Transaction Document to which it is a party or the consummation of the
transactions contemplated therein other than any other governmental approvals
or filings that have been obtained (including approvals required under section
203 of the Federal Power Act) or are ministerial in nature and can reasonably
be expected to be obtained or made in the ordinary course on commercially
reasonable terms and conditions when needed.


 


(f)            Accredited
Investor. Investor is an “Accredited Investor” as such term
is defined in Regulation D under the Securities Act of 1933, as amended (the “Securities
Act”). The Investor has had a reasonable opportunity to ask questions of
and receive answers from NHC and Holdings concerning the Company, the Class B
Membership Interests, MWCI and the Project Company, and all such questions have
been answered to the full satisfaction of the Investor. The Investor
understands that the Class B Membership Interests have not been registered
under the Securities Act in reliance on an exemption therefrom, and that the Class B
Membership Interests must be held indefinitely unless the sale thereof is
registered or qualified under the Securities Act and any State securities
Applicable Laws, or an exemption from registration or qualification is
available thereunder, and that NHC and Holdings are under no obligation to
register or qualify the Membership Interests. The Investor will not sell,
hypothecate or otherwise transfer the Class B Membership Interests without
registering or qualifying them under the Securities Act and applicable state
securities laws or any other Applicable Laws unless the transfer is exempted
from registration or qualification under such laws. The Investor is purchasing
the Membership Interests for its own account and not for the account of any
other person and not with a view to distribution or resale to others.


 


(g)           Information and
Investment Intent. The Investor recognizes that investment in the Class B
Membership Interests involves substantial risks. The Investor acknowledges that
any financial projections that may have been provided to it are based on
assumptions of future operating results and, therefore, represent an estimate
of future results based on assumptions about certain events (many of which are
beyond the control of NHC, Holdings, the Company, MWCI or the Project Company).
The Investor understands that no assurances or representations can be given
that the actual results of the operations of the Company, MWCI or the Project
Company will conform to the projected results for any period. The Investor has
relied solely on its own legal, tax and financial advisers for its evaluation
of an investment in the Class B Membership Interests


 


24














 


and not on the advice of
NHC, Holdings, the Company, MWCI or the Project Company or any of their
respective legal, tax or financial advisers.


 


(h)           Security
Interest. Investor has not pledged or otherwise encumbered
any right, title or interest in or to the Class B Membership Interests,
except as otherwise permitted by the Transaction Documents.


 


(i)            Acknowledgement. The Investor
acknowledges that, except with respect to the representations and warranties
expressly made by NHC, Holdings or the Company herein and in the Company LLC
Agreement, none of the Class A Investor Parties has made any other
representation or warranty, either express or implied, nor has the Investor
relied on any representation or warranty not expressly made herein or in the
Company LLC Agreement. Without limiting the foregoing, Investor specifically
acknowledges that no representation or warranty has been made about, and that
Investor has not relied on any representation or warranty about the accuracy
(as opposed to good faith preparation) of, any projections, estimates or
budgets, future revenues, future results from operations, future cash flows,
the future condition of the Project, the future condition of any assets of the
Project Company or the future financial condition of the Project Company
(collectively, the “Projections”), or about the accuracy or completeness
of any confidential information memorandum that it was shown in connection with
the transactions contemplated hereunder and under the other Transaction
Documents to which Investor is a party or any other information or documents,
including any tax memorandum prepared by Chadbourne & Parke LLP made
available to Investor or its counsel, accountants or other advisers.


 


(j)            Public Utility
Holding Company. Investor either is not a holding company under
PUHCA or is a holding company under PUHCA solely with respect to its ownership
of one or more “exempt wholesale generators,” “qualifying facilities” and/or
“foreign utility companies” and is not subject to regulation under PUHCA, except
for regulation under section 1265 of PUHCA.


 


(k)           Status of
Investor. The Investor is not (i) a Tax-Exempt Person,
or (ii) a tax-exempt entity as such term is defined in Section 168(h) of
the Code.


 


ARTICLE
4


TERMINATION


 


4.1          Termination. Without limiting
NHC’s, Holdings’ or Investor’s ability to exercise any right or remedy to which
it is entitled hereunder or under any of the Transaction Documents, this
Contribution Agreement shall be terminated (in the case of Section 4.1(a)),
and may be terminated (in the case of Sections 4.1(b) and (c)):


 


25

















 


(a)           by any of NHC,
Holdings or Investor upon delivery of written notice to the other parties
hereto, if the Initial Closing has not been consummated by the close of
business on the Termination Date;


 


(b)           at any time, by
the mutual written consent of both NHC and Investor (and if prior to the
Initial Closing Date, Holdings); or


 


(c)           at any time
prior to the Second Equity Capital Contribution Date, by NHC, by written notice
to the Investor, if the Investor or Investor Guarantor becomes subject to a
Bankruptcy; or by Investor, by written notice to NHC, if NHC or any of its
Subsidiaries becomes subject to a Bankruptcy.


 


4.2          Procedure
and Effect of Termination. (a) The Party
desiring to terminate this Contribution Agreement pursuant to Section 4.1
shall give written notice of such termination to the other Party in accordance
with Section 6.6, specifying the provision hereof pursuant to which
such termination is effected.


 


(b)           If this
Contribution Agreement is terminated by NHC, by Holdings, by Investor, or any
of them pursuant to Section 4.1, this Contribution Agreement shall
become void and of no effect with no liability on the part of any Party, except
that (i) the agreements contained in Section 2.12(a), this Section 4.2,
ARTICLE 5, and Section 6.10 shall survive the termination
and (ii) no such termination shall relieve any Party of any liability or
damages resulting from any breach or misrepresentation by that Party of this
Contribution Agreement or affect the rights of the other Party to
indemnification for such breach pursuant to ARTICLE 6 of this
Contribution Agreement (which shall survive termination hereof in the case of
any breach).


 


ARTICLE
5


INDEMNIFICATION


 


5.1          Indemnification. (a) NHC
agrees to indemnify, defend and hold harmless the Investor Indemnified Parties
from and against any and all Investor Indemnified Costs and Investor agrees to
indemnify, defend and hold harmless NHC Indemnified Parties from and against
any and all NHC Indemnified Costs.


 


(a)           No claim for
indemnification may be made with respect to any Indemnified Costs until the
aggregate amount of such costs for which indemnification is (or previously has
been) sought by the Indemnified Party under all Transaction Documents exceeds
$100,000 and once such threshold amount of claims has been reached, the
relevant Indemnified Party and its Affiliates shall have the right to be
indemnified only to the extent the amount of Indemnified Costs claimed exceed
such threshold amount. Claims for indemnification under this Contribution
Agreement and the


 


26

















 


other Transaction Documents
shall not be duplicative of one another and shall not allow for duplicative
recoveries.


 


5.2          Direct
Claims. In any case in which an Indemnified Party seeks
indemnification under Section 5.1 that is not subject to Section 5.3
because no Third Party Claim is involved, the Indemnified Party shall promptly
notify the Indemnifying Party in writing of any amounts that the Indemnified
Party claims are subject to indemnification under the terms of this ARTICLE
5. The failure of the Indemnified Party to exercise promptness in such
notification shall not amount to a waiver of such claim, except to the extent
the resulting delay materially and adversely prejudices the position of the
Indemnifying Party with respect to such claim.


 


5.3          Third Party
Claims. An Indemnified Party shall give written notice to
the Indemnifying Party within 10 days after it has actual knowledge of
commencement or assertion of any action, proceeding, demand or claim by a third
party (collectively, “Third Party Claims”) in respect of which the
Indemnified Party may seek indemnification under Section 5.1. Such
notice shall state the nature and basis of such Third Party Claim and the
events and the amounts thereof to the extent known. Any failure to so notify
the Indemnifying Party shall not relieve the Indemnifying Party from any
liability that the Indemnifying Party may have to the Indemnified Party under
this ARTICLE 5, except to the extent the failure to give such notice
materially and adversely prejudices the Indemnifying Party. In case any such
action, proceeding or claim is brought against an Indemnified Party, so long as
it has acknowledged in writing to the Indemnified Party that it is liable for
such Third Party Claim pursuant to this Section 5.3, the
Indemnifying Party shall be entitled to participate in and, unless in the
reasonable judgment of the Indemnified Party a conflict of interests between it
and the Indemnifying Party may exist in respect of such Third Party Claim or
such Third Party Claim entails a material risk of criminal penalties or civil
fines or non monetary sanctions being imposed on the Investor Indemnified Party
or a risk of materially adversely affecting the Indemnified Party’s business (a
“Third Party Penalty Claim”), to assume the defense thereof, with
counsel selected by the Indemnifying Party and reasonably satisfactory to the
Indemnified Party, and after notice from the Indemnifying Party to the
Indemnified Party of its election so to assume the defense thereof, the
Indemnifying Party shall not be liable to the Indemnified Party for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation or defending such
portion of such Third Party Penalty Claim; provided nothing contained
herein shall permit NHC to control or participate in any Tax contest or dispute
involving Investor or any Affiliate of Investor, or permit Investor to control
or participate in any Tax contest or dispute involving any Affiliate of NHC
other than the Company, MWCI and the Project Company; and, provided,
further, the Parties agree that the handling of any Tax contests involving the
Company will be governed by Section 7.6 of the Company LLC Agreement. In
the event that (i) the Indemnifying Party advises an


 


27

















 


Indemnified Party that the Indemnifying
Party will not contest a claim for indemnification hereunder, (ii) the
Indemnifying Party fails, within 30 days of receipt of any indemnification
notice to notify, in writing, such Indemnified Party of its election, to
defend, settle or compromise, at its sole cost and expense, any such Third
Party Claim (or discontinues its defense at any time after it commences such
defense) or (iii) in the reasonable judgment of the Indemnified Party, a
conflict of interests between it and the Indemnifying Party exists in respect
of such Third Party Claim or the action or claim is a Third Party Penalty
Claim, then the Indemnified Party may, at its option, defend, settle or
otherwise compromise or pay such action or claim or Third Party Claim in each
case, at the sole cost and expense of the Indemnifying Party. In any event,
unless and until the Indemnifying Party elects in writing to assume and does so
assume the defense of any such claim, proceeding or action, the Indemnifying
Party shall be liable for the Indemnified Party’s reasonable costs and expenses
arising out of the defense, settlement or compromise of any such action, claim
or proceeding. The Indemnified Party shall cooperate to the extent commercially
reasonable with the Indemnifying Party in connection with any negotiation or
defense of any such action or claim by the Indemnifying Party. The Indemnifying
Party shall keep the Indemnified Party fully apprised at all times as to the
status of the defense or any settlement negotiations with respect thereto. If
the Indemnifying Party elects to defend any such action or claim, then the
Indemnified Party shall be entitled to participate in such defense with counsel
of its choice at its sole cost and expense unless otherwise specified herein; provided
that any such participation of the Indemnified Party shall be at the
Indemnifying Party’s sole cost and expense to the extent such participation
relates to a Third Party Penalty Claim. If the Indemnifying Party does not
assume such defense, the Indemnified Party shall keep the Indemnifying Party
apprised at all times as to the status of the defense; provided,
however, that the failure to keep the Indemnifying Party so informed shall not
affect the obligations of the Indemnifying Party hereunder. The Indemnifying Party
shall not be liable for any settlement of any action, claim or proceeding
effected without its written consent; provided, however, that the
Indemnifying Party shall not unreasonably withhold, delay or condition any such
consent. Notwithstanding anything in this Section 5.3 to the
contrary, the Indemnifying Party shall not, without the Indemnified Party’s
prior written consent, (i) settle or compromise any claim or consent to
entry of judgment in respect thereof which involves any condition other than payment
of money by the Investor Indemnified Party, (ii) settle or compromise any
claim or consent to entry of judgment in respect thereof without first
demonstrating to Indemnified Party the ability to pay such claim or judgment,
or (iii) settle or compromise any claim or consent to entry of judgment in
respect thereof that does not include, as an unconditional term thereof, the
giving by the claimant or the plaintiff to the Investor Indemnified Party, a
full and complete release from all liability in respect of such claim.


 


28

















 


If the amount of any
Indemnified Costs, at any time after the making of an indemnity payment in
respect thereof, is reduced by recovery, settlement or otherwise under any
insurance coverage (excluding any proceeds from self insurance or flow through
insurance policies) or under any claim, recovery, settlement or payment by or
against any other entity, the amount of such reduction, less any costs,
expenses or premiums incurred in connection therewith, must promptly be repaid
by the Indemnified Party to the Indemnifying Party net of any Taxes imposed
upon the Indemnified Party in respect of such amounts, but taking into account
any Tax benefit the Indemnified Party receives as a result of such repayment.
Upon making any indemnity payment (other than any indemnity payment relating to
Taxes), the Indemnifying Party will, to the extent of such indemnity payment,
be subrogated to all rights of the Indemnified Party against any third party,
except third parties that provide insurance coverage to the Indemnified Party
or its Affiliates, in respect of the Indemnified Costs to which the indemnity
payment relates. Without limiting the generality or effect of any other
provision hereof, each such Indemnified Party and the Indemnifying Party shall
duly execute upon request all instruments reasonably necessary to evidence and
perfect the above described subrogation rights, and otherwise cooperate in the
prosecution of such claims at the direction of the Indemnifying Party. Nothing
in this Section 5.3 will be construed to require any Party to obtain or
maintain any insurance coverage.


 


5.4          After Tax
Basis. For tax reporting purposes, to the extent
permitted by the Code, each Party will agree to treat all amounts paid to the
Investor under any of the provisions of this ARTICLE 5 as an adjustment
to the Capital Contributions made by the Investor.


 


5.5          No
Duplication. Any liability for indemnification under this ARTICLE
5 shall be determined without duplication of recovery. Without limiting the
generality of the prior sentence, if a statement of facts, condition or event
constitutes a breach of more than one representation, warranty, covenant or
agreement which is subject to the indemnification obligation in Section 5.1,
only one recovery of Indemnified Costs per Indemnified Party shall be allowed.


 


5.6          Sole Remedy. Except in the
case of willful misconduct or failure to pay, the enforcement of the claims of
the Parties under this ARTICLE 5 are the sole and exclusive remedies
that a Party shall have under this Contribution Agreement for the recovery of
Losses with respect to any breach of any representation or warranty in this
Contribution Agreement.


 


5.7          Survival. All
representations, warranties, covenants and obligations made or undertaken by a
Party in this Contribution Agreement or in any Transaction Document are
material, have been relied upon by the other Parties and shall survive until


 


29

















 


the final date for any
assertion of claims as forth in Section 5.8, if and as applicable,
or as otherwise provided in the Transaction Documents.


 


5.8          Final Date
for Assertion of Indemnity Claims. All representations and
warranties in ARTICLE 3 shall survive for a period of 2 years following
the earlier of the Initial Closing Date or, if the Initial Closing Date has not
occurred, the Termination Date; provided, that notwithstanding the
foregoing, (i) the Tax Representations shall survive until that date which
is 60 days after the applicable statute of limitations expires, (ii) the
representations and warranties in Section 3.1(e) (Ownership)
and Section 3.1(f) (Valid Interests) shall survive forever,
and (iii) the representations and warranties in Section 3.1(hh)
Special Purpose Entity will not survive the Second Equity Capital Contribution
Date unless a Bankruptcy of the Sponsor has occurred prior to such date; provided,
further, that if written notice of a claim for indemnification has been given
by an Investor Indemnified Party on or prior to the last day of the respective
foregoing period, then the obligation of NHC to indemnify such Investor
Indemnified Party pursuant to this ARTICLE 5 shall survive with respect
to such claim until such claim is finally resolved.


 


5.9          Mitigation
and Limitations on Indemnified Costs. Notwithstanding anything
to the contrary contained herein:


 


(a)           Reasonable
Steps to Mitigate. Each Indemnified Party will take, at the
Indemnifying Party’s own reasonable cost and expense, all reasonable commercial
steps identified by Indemnifying Party to the Indemnified Parties to mitigate
all Indemnified Costs (other than any such Indemnified Costs that are Taxes),
which steps may include availing itself of any defenses, limitations, rights of
contribution, claims against third Persons and other rights at law or equity.
The Indemnified Parties will provide such evidence and documentation of the
nature and extent of the Indemnified Costs as may be reasonably requested by
the Indemnifying Party.


 


(b)           Net of
Insurance Benefits. All Indemnified Costs shall be limited to the
amount of actual out-of-pocket damages sustained by the Indemnified Party by
reason of any breach or nonperformance hereunder shall be net of insurance
recoveries from insurance policies of the Project Company (including under the
existing title policies) to the extent that any proceeds of such policies, less
any costs, expenses or premiums incurred by the Project Company in connection
therewith, are distributed by the Project Company to the Company and are in
turn distributed by the Company to the Indemnified Party; provided,
however, such amount shall account for any costs or expenses incurred by the
Indemnified Party in connection with obtaining insurance proceeds with respect
to any breach or nonperformance hereunder.


 


30

















 


(c)           No
Consequential Damages. Indemnified Costs shall not include, and
Indemnifying Party shall have no obligation to indemnify any Indemnified Party
for or in respect of, any punitive, consequential or exemplary damages of any
nature including but not limited to damages for lost profits or revenues or the
loss or use of such profits or revenue, loss by reason of plant shutdown or
inability to operate at rated capacity, increased operating expenses of plant
or equipment, increased costs of purchasing or providing equipment, materials,
labor, services, costs of replacement, power or capital, debt service fees or
penalties, inventory or use charges, damages to reputation, damages for lost
opportunities, or claims of the Project Company’s customers, members or
affiliates, regardless of whether said claim is based upon contract, warranty,
tort (including negligence and strict liability) or other theory of law unless
payable by such Investor Indemnified Party as part of a Third Party Claim.


 


5.10        Payment of
Indemnification Claims. All claims for
indemnification shall be paid by Indemnifying Party in immediately available
funds in U.S. dollars. Any undisputed portion of an indemnification claim shall
be paid promptly by the Indemnifying Party to the Indemnified Parties involved.
An Indemnifying Party may dispute any portion of an indemnification claim, provided,
however, that such disputed indemnification claim shall be paid promptly
by the Indemnifying Party to the Indemnified Party together with interest at a
market rate upon the final determination of the payable amount of the claim (if
any) by a court of competent jurisdiction.


 


ARTICLE 6


GENERAL PROVISIONS


 


6.1          Exhibits
and Schedules. All Exhibits and Schedules are incorporated herein
by reference.


 


6.2          Disclosure
Schedules. Any matter disclosed in any section of the
Schedules shall be deemed disclosed for all purposes and all sections of the
Schedules to the extent it is readily apparent from a reading of the disclosure
that such disclosure is applicable to such other purposes and sections. If a
Closing occurs following any such supplement or amendment to the Schedules,
then all matters disclosed pursuant to any such supplement or amendment shall
be waived and none of Investor nor any other Investor Indemnified Party shall
be entitled to make a claim thereon pursuant to the terms of this Contribution
Agreement or any other Transaction Document (for indemnification, breach or
otherwise).


 


6.3          Amendment,
Modification and Waiver. This Contribution
Agreement may not be amended or modified except by an instrument in writing
signed by the Party against which enforcement of such amendment or modification
is sought. Any failure of NHC, Holdings or Investor to comply with any
obligation, covenant,


 


31

















 


agreement, or condition
contained herein may be waived only if set forth in an instrument in writing
signed by the Party to be bound thereby, but such waiver or failure to insist
upon strict compliance with such obligation, covenant, agreement or condition
shall not operate as a waiver of, or estoppel with respect to, any other
failure.


 


6.4          Severability. If any term
or other provision of this Contribution Agreement is invalid, illegal, or
incapable of being enforced by any rule of Applicable Law, or public
policy, all other conditions and provisions of this Contribution Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated herein are not affected in any
manner materially adverse to any Party.


 


6.5          Parties in
Interest. This Contribution Agreement shall be binding upon
and, except as provided below, inure solely to the benefit of each Party and
its successors and permitted assigns, and nothing in this Contribution
Agreement, express or implied, is intended to confer upon any other Person
(other than the Indemnified Parties as provided in ARTICLE 5) any rights
or remedies of any nature whatsoever under or by reason of this Contribution
Agreement.


 


6.6          Notices. All notices
and other communications hereunder shall be in writing and shall be deemed
given if delivered personally, by a nationally recognized overnight courier, by
facsimile, or mailed by registered or certified mail (return receipt requested)
to the Parties at the following addresses (or at such other address for a Party
as shall be specified by like notice):


 


(a)           If to NHC, Holdings or the Company, to:


 


Milford NHC, LLC/MWCI Holdings, LLC/Milford Wind Partners, LLC


85 Wells Avenue, Suite 305


Newton, MA 02459


Attention: General Counsel


Telephone: 617-964-3340 


Fax: 617-964-3342


 


(b)           If to Investor, to:


 


Stanton Equity Trading Delaware LLC


11 Madison Avenue


New York, New York 10010 


*****


 


32

















 


*****


 


With
a copy to:


Credit
Suisse Securities (USA) LLC


11
Madison Avenue


New
York, New York 10010


Attention:
General Counsel-Americas.


*****


 


All notices and other
communications given in accordance herewith shall be deemed given (i) on
the date of delivery, if hand delivered, (ii) on the date of receipt, if
faxed (provided a hard copy of such transmission is dispatched by first class
mail within 48 hours), (iii) 3 Business Days after the date of mailing, if
mailed by registered or certified mail, return receipt requested, and (iv) one
Business Day after the date of sending, if sent by a nationally recognized
overnight courier; provided, that a notice given in accordance with this
Section 6.6 but received on any day other than a Business Day or
after business hours in the place of receipt, will be deemed given on the next
Business Day in that place.


 


6.7          Confidentiality. (a) No
Party will itself use or disclose (and no Party will permit the use or
disclosure by any of its Affiliates or any of its Representatives), directly or
indirectly, any of the Material Contracts or information furnished thereunder,
or this Contribution Agreement or information furnished hereunder, and will use
all reasonable efforts to have all such information kept confidential
(consistent with its own practices); provided that (i) any Party
and its Affiliates and Representatives may use, retain and disclose any such
information to any Governmental Authority as is required to comply with
Applicable Law, (ii) any Party and its Affiliates and Representatives may
use, retain and disclose any such information that has been publicly disclosed
(other than by such Party or any Affiliate or Representative thereof in breach
of this Section 6.7) or has come into the possession of such Party
or any Affiliate or Representative thereof other than from another Party hereto
or a Person acting on such other Party’s behalf and under circumstances not
involving, to the best of the such Party’s knowledge, any breach of any
confidentiality obligation, (iii) to the extent that any Party or any
Affiliate or Representative thereof may have received a subpoena or other
written demand under color of legal right for such information, such Party or
such Affiliate or Representative may disclose such information, but such Party
shall first, unless prohibited by applicable law, as soon as practicable upon
receipt of such demand, furnish a copy thereof to the other Parties and, if
practicable so long as such Party shall not be in violation of such subpoena or
demand or likely to become liable to any penalty or sanctions thereunder,
afford the other parties reasonable opportunity, at any other Party’s cost and
expense, to


 


33

















 


obtain a protective order or
other reasonably satisfactory assurance of confidential treatment for the
information required to be disclosed, shall cooperate with any reasonable
efforts of the other Party to obtain a protective order or other similar
relief, shall keep the other Party informed of any material developments with
respect to the compulsion or request for information, and shall disclose only
so much of the information as, in the opinion of its legal counsel, is legally
required, (iv) any Party and its Affiliates or Representatives may
disclose to lenders, potential lenders or other Persons providing financing to
the Company, MWCI or the Project Company or any member in the Company or the
Project Company and potential purchasers of equity interests in the Company or
other potential purchasers in connection with a Permitted Transfer, if such
Persons have agreed to abide by terms substantially similar to the obligations
of such Party under this Section 6.7, and entered into a written agreement
confirming the same (which may be in the Existing Financing Credit Agreement,
in the case of lenders to the Project Company), a copy of which must be
provided to the Company, (v) any Party and its Affiliates or
Representatives may disclose any such information, and make such filings, as
may be required by this Contribution Agreement or the Material Contracts, (vi) any
Party which is an insurance company or an Affiliate thereof may disclose such
information to the National Association of Insurance Commissioners and any
rating agency requiring access to its investment portfolio; (vii) any
Party and its Affiliates or Representatives may disclose to SCPPA information
required to be disclosed under the PPA, (viii) any Party and its
Affiliates or Representatives may disclose Material Contracts to contractors
for engineering, procurement and construction contracts, and (ix) any
Party and its Affiliates or Representatives may disclose to environmental
consultants and other advisors information necessary for their scope of work
and (x) NHC may make disclosures to the extent needed to develop and
operate any Expansion Projects if such Persons receiving such information have
agreed to abide by terms substantially similar to the obligations of such Party
under this Section 6.7. Notwithstanding anything herein to the
contrary, a Party may disclose information to its Affiliates and
Representatives in accordance with this Contribution Agreement if such Persons
have agreed to abide by terms substantially similar to the obligations of such
Party under this Section 6.7.


 


(b)           The foregoing
obligations shall not apply to the tax treatment or tax structure of the
transactions contemplated herein and each party hereto (and any Affiliate,
Representative or advisor of any party) may disclose to any and all Persons,
without limitation of any kind, the tax treatment and tax structure of the
transactions contemplated herein and all other materials of any kind (including
opinions or other tax analysis) that are provided to any party hereto relating
to such tax treatment and tax structure (all such information that may be so
disclosed hereunder is hereinafter referred to as the “Tax Information”).
However, any Tax Information is required to be kept confidential to the extent
necessary to comply with any applicable securities laws. This


 


34

















 


Section 6.7 is intended to
prevent such an investment in the Company from being treated as a “reportable
transaction” as a result of it being a transaction offered to a taxpayer under
conditions of confidentiality within the meaning of Sections 6011, 6111 and
6112 of the Code (or any successor provision) and the Treasury Regulations
thereunder and shall be construed in a manner consistent with such purpose.


 


(c)           The Parties
acknowledge and agree that remedies at law may be inadequate to protect it
against actual or threatened breach of this Contribution Agreement by the other
Party or its Affiliates or Representatives. Accordingly, the Parties agree that
the non-breaching Party shall be entitled, in addition to other remedies that
may be available to it, to seek immediate injunctive relief from any breach or
any threatened breach of any of the provisions of this Section 6.7
and to seek specific performance of their rights hereunder, as well as to any
other remedies available at law or in equity.


 


(d)           In the event of
a conflict between the terms of this Section 6.7 and the terms of
any other Confidentiality Agreement between the Parties related to the transactions
contemplated herein, the terms of this Section 6.7 shall prevail.
The obligations of the Parties under this Section 6.7 shall
terminate on the earlier of (i) the Effective Date under the Company LLC
Agreement and, thereafter, Section 12.12 of the Company LLC Agreement
shall apply and (ii) the third anniversary of the termination of this
Contribution Agreement.


 


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


 


6.9          Entire
Agreement. This Contribution Agreement (together with the
other Transaction Documents) constitutes the entire agreement of the Parties
and supersedes all prior agreements, letters of intent and understandings, both
written and oral, among the Parties with respect to the subject matters
expressly addressed herein.


 


6.10        Governing
Law; Choice of Forum; Waiver of Jury Trial. THIS CONTRIBUTION AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, APPLICABLE TO CONTRACTS
PERFORMED IN THAT STATE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW
(OTHER THAN SECTION 5 1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW,


 


35














 


WHICH
SHALL APPLY TO THIS CONTRIBUTION AGREEMENT). THE PARTIES HEREBY IRREVOCABLY
SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT IN NEW YORK
COUNTY, NEW YORK WITH RESPECT TO ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS CONTRIBUTION AGREEMENT. EACH PARTY HERETO IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING RELATING
TO A DISPUTE AND FOR ANY COUNTERCLAIM WITH RESPECT THERETO.


 


6.11    Public
Announcements. Except for statements made or press
releases issued (i) pursuant to the Securities Act or the Securities
Exchange Act of 1934, (ii) pursuant to any listing agreement with any
national securities exchange or the National Association of Securities Dealers, Inc.,
or (iii) as otherwise required by Applicable Law, neither NHC nor Investor
shall issue, or permit any of their respective Affiliates to issue, any press
release or otherwise make any public statements with respect to this
Contribution Agreement or the transactions contemplated hereby without the
prior written consent of the other Party. Subject to any requirements of
Applicable Law, NHC and Investor will be given the opportunity to review in
advance, upon the request of NHC or Investor, as the case may be, all
information relating to the transactions contemplated by the Transaction
Documents that appear in any filing made in connection with the transactions
contemplated hereby or thereby.


 


6.12    Assignment.
This Contribution Agreement and all of the provisions hereof will be binding
upon and inure to the benefit of the Parties and their respective successors
and permitted assigns. This Contribution Agreement may only be assigned to the
same extent (and only by and to the same Persons) that Membership Interests in
the Company are assignable pursuant to the terms of the Company LLC Agreement.
Any attempted assignment of this Contribution Agreement other than in strict
accordance with this Section and the terms of the Company LLC Agreement
shall be null and void and of no force or effect.


 


6.13    Relationship of
Parties. This Contribution Agreement does not
constitute a joint venture, association or partnership between the Parties. No
express or implied term, provision or condition of this Contribution Agreement
shall create, or shall be deemed to create, an agency, joint venture,
partnership or any fiduciary relationship between the Parties.


 


6.14    No Solicitation.
The transaction described in this Contribution Agreement has been discussed
with a limited number of prospective institutional equity investors. The
Investor may not solicit, directly or indirectly, whether through an agent or
otherwise, the participation of another investor without the prior approval of
NHC.


 


36

















 


6.15    No Agents.
No Party nor any Affiliate thereof has retained any broker, agent or finder or
incurred any liability or obligation for any brokerage fees, commissions or
finder fees with respect to this Contribution Agreement or the transactions
contemplated hereby.


 


6.16    Limitations of
Liability. (a) NO PARTY SHALL BE LIABLE
(WHETHER IN CONTRACT, TORT, WARRANTY, STRICT LIABILITY, EQUITY, OR OTHERWISE)
FOR ANY SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL
DAMAGES, WHETHER OR NOT FORESEEABLE, INCLUDING LOST PROFITS AND ANY OTHER
DAMAGES THAT CANNOT BE READILY ASCERTAINED AND QUANTIFIED, FOR ANY BREACH OF A
REPRESENTATION OR WARRANTY UNDER THIS CONTRIBUTION AGREEMENT, EXCEPT TO THE
EXTENT INCLUDED IN A THIRD PARTY CLAIM FOR WHICH A PARTY IS ENTITLED TO
INDEMNIFICATION HEREUNDER.


 


(b)     THE OBLIGATIONS OF THE PARTIES UNDER
THIS CONTRIBUTION AGREEMENT ARE OBLIGATIONS OF THE PARTIES ONLY, AND NO
RECOURSE SHALL BE AVAILABLE UNDER THIS CONTRIBUTION AGREEMENT AGAINST ANY
OFFICER, DIRECTOR, MANAGER, MEMBER, PARTNER, OR AFFILIATE OF ANY PARTY.


 


6.17    Intention of
the Parties. The Parties intend, for federal
income tax purposes, that the Purchase is an acquisition of the Class B
Interests by the Class B Members, the Initial Equity Capital Contribution
by the Class B Member is a contribution to the Company described in Section 721
of the Code and the Class A Member is contributing all of the assets of
the Project Company in a transaction described in Section 721 of the Code.


 


[Remainder of page intentionally left
blank. Signature pages to follow.]


 


37

















 


IN WITNESS WHEREOF, each Party hereto has caused this Equity
Contribution and Purchase Agreement to be signed on its behalf as of the date
first above written.


 


	
   

  	
  MILFORD WIND HOLDINGS,
  LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael U. Alvarez

  
	
   

  	
   

  	
  Name:

  	
  Michael U. Alvarez

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MILFORD NHC, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Evelyn Lim

  
	
   

  	
   

  	
  Name:

  	
  Evelyn Lim

  
	
   

  	
   

  	
  Title:

  	
  Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MILFORD WIND PARTNERS,
  LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul Gaynor

  
	
   

  	
   

  	
  Name:

  	
  Paul Gaynor

  
	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  STANTON EQUITY TRADING

  DELAWARE LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jerry L.
  Smith

  
	
   

  	
   

  	
  Name:

  	
  Jerry L.
  Smith

  
	
   

  	
   

  	
  Title:

  	
  President

  



 


[Signature Page to Equity Contribution and
Purchase Agreement]


 

















 


EXECUTION COPY


 


ANNEX I


 


DEFINITIONS


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Assets” means with respect to any Person, all right, title and
interest of such Person in land, properties, buildings, improvements, fixtures,
foundations, assets and rights of any kind, whether tangible or intangible,
real, personal or mixed, including contracts, equipment, systems, books and
records, proprietary rights, intellectual


 

















 


property,
governmental approvals, rights under or pursuant to all warranties,
representations and guarantees, cash, accounts receivable, deposits and prepaid
expenses.


 


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


 


“Bankruptcy” of a Person means the occurrence of any of the
following events: (i) the filing by such Person of a voluntary case or the
seeking of relief under any chapter of Title 11 of the United States Bankruptcy
Code, as now constituted or hereafter amended (the “Bankruptcy Code”), (ii) the
making by such Person of a general assignment for the benefit of its creditors,
(iii) the admission in writing by such Person of its inability to pay its
debts as they mature, (iv) the filing by such Person of an application
for, or consent to, the appointment of any receiver or a permanent or interim
trustee of such Person or of all or any portion of its property, including the
appointment or authorization of a trustee, receiver or agent under applicable
law or under a contract to take charge of its property for the purposes of
enforcing a lien against such property or for the purpose of general
administration of such property for the benefit of its creditors, (v) the
filing by such Person of a petition seeking a reorganization of its financial
affairs or to take advantage of any bankruptcy, reorganization, insolvency, readjustment
of debt, dissolution or liquidation law or statute, or an answer admitting the
material allegations of a petition filed against it in any proceeding under any
such law or statute, (vi) an involuntary case is commenced against such
Person by the filing of a petition under any chapter of Title 11 of the
Bankruptcy Code and (other than in the case of ARTICLE 4 of the
Contribution Agreement) within 60 days after the filing thereof either the
petition is not dismissed or the order for relief is not stayed or dismissed, (vii) an
order, judgment or decree is entered appointing a receiver or a permanent or
interim trustee of such Person or of all or any portion of its property,
including the entry of an order, judgment or decree appointing or authorizing a
trustee, receiver or agent to take charge of the property of such Person for
the purpose of enforcing a lien against such property or for the purpose of
general administration of such property for the benefit of the creditors of
such Person, and (other than in the case of ARTICLE 4 of the
Contribution Agreement) such order, judgment or decree shall continue unstayed
and in effect for a period of 60 days, or (viii) an order, judgment or
decree is entered, without the approval or consent of such Person, approving or
authorizing the reorganization, insolvency, readjustment of debt, dissolution
or liquidation of such Person under any such law or statute, and (other than in
the case of ARTICLE 4 of the Contribution Agreement) such order,
judgment or decree shall continue unstayed and in effect for a period of 60
days. The foregoing definition of “Bankruptcy” is intended to replace and shall
supersede the definition of “Bankruptcy” set forth in Sections 18-101(1) and
18-304 of the Act.


 


2

















 


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


 


“Bonus Depreciation Property” means equipment with a tax basis
that the Base Case Model treats as qualifying for bonus depreciation under
section 168(k) of the Code.


 


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


 


“Capital Contribution” means, with respect to any Member, the
amount of money and the initial Gross Asset Value of any property contributed
to the Company with respect to the Membership Interests in the Company held or
purchased by such Member (or by any predecessor of such Member).


 


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


 


“Claim” means any and all judgments, awards, claims, causes of
action, demands, lawsuits, suits, proceedings, Governmental Authority
investigations or audits, losses (including amounts paid in settlement of
claims), assessments, fines, penalties, administrative orders, injunctions, obligations,
costs, expenses, taxes, liabilities and damages (including any loss of profits,
consequential, punitive, incidental or special damages recovered by any Third
Party, but excluding loss of profits, consequential, punitive, incidental or
special damages asserted by any Member or an Affiliate, and including interest,
penalties, reasonable attorney’s fees, disbursements and costs of
investigations, deficiencies, levies, duties and imposts).


 


“Class A Investor Parties” means the Project Company, MWCI
and the Company.


 


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


 


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


 


3

















 


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


 


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


 


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


 


“Class Majority Vote” has the meaning provided in the
Company LLC Agreement.


 


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


 


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


 


“Closing Date” means the date of any Closing.


 


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


 


“Commercial Operation” is defined in the PPA.


 


“Commercial Operation Date” is defined in the PPA.


 


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


 


“Company LLC Agreement” means the Amended and Restated Limited
Liability Company Agreement of the Company, by and between NHC and Investor,
substantially in the form of Exhibit A to the Contribution Agreement and
dated as of the Initial Closing Date, as the same may be amended, supplemented
or replaced from time to time.


 


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


 


4

















 


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


 


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


 


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


 


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


 


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


 


“Cost Segregation Report” means (A) a report prepared by an
Accounting Firm that segregates the components comprising the Project into
their respective tax depreciation class lives, and, to the extent the Project
is not then fully completed, means (B) a draft report containing, with
respect to such components, (i) a statement as to (x) amounts paid as
of the date of the report and (y) known, non-contingent liabilities that
have been expended or incurred as of the date of the report; and (ii) an
estimate of contingent liabilities that have not yet been expended or incurred,
but that are reasonably likely to be expended or incurred after the date of the
report, in each case, segregated into their respective tax depreciation class
lives.


 


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


 


“Environmental Consultant” means CH2M Hill, Inc.


 


“Environmental Laws” means all Applicable Laws pertaining to the
environment, human health, safety and natural resources, including, but not
limited to, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980


 


5

















 


(42 U.S.C. §
9601 et seq.), and the Superfund
Amendments and Reauthorization Act of 1986, the Emergency Planning and
Community Right to Know Act (42 U.S.C. §§ 11001 et seq.), the Resource Conservation and Recovery Act of 1976
(42 U.S.C. §§ 6901 et seq.), and
the Hazardous and Solid Waste Amendments Act of 1984, the Clean Air Act (42
U.S.C. §§ 7401 et seq.), the
Federal Water Pollution Control Act (also known as the Clean Water Act) (33
U.S.C. §§ 1251 et seq.), the
Toxic Substances Control Act (15 U.S.C. §§ 2601 et seq.), the Safe Drinking Water Act (42 U.S.C. §§ 300f et seq.), the Endangered Species Act (16
U.S.C. §§ 1531 et seq.), the
Migratory Bird Treaty Act (16 U.S.C. §§ 703 et
seq.), the Bald Eagle Protection Act (16 U.S.C. §§ 668 et seq.), the Oil Pollution Act of 1990
(33 U.S.C. §§ 2701 et seq.), the
Hazardous Substances Transportation Act (49 U.S.C. §§ 1801 et seq.), and any similar or analogous
state and local statutes or regulations promulgated thereunder and decisional
law of any Governmental Authority, as each of the foregoing may amended or
supplemented from time to time in the future, in each case to the extent
applicable with respect to the property or operation to which application of
the term “Environmental Laws” relates.


 


“Estimated Cash Grant Amount” means as of any date of
determination, the projected amount of the Cash Grant that is expected to be
received by the Company determined by multiplying
(x) for all
Specified Energy Property which is Placed in Service as of the relevant Closing
Date, the sum of (i) the tax basis of such Specified Energy Property
expended as of such relevant Closing Date, and (ii) the projected tax
basis of such Specified Energy Property that is reasonably likely to be, but
has not yet been expended or incurred on or prior to such relevant Closing
Date) by (y) 30%. For the avoidance of doubt, the tax basis of any
Specified Energy Property for which a Cash Grant has previously been applied
for and received shall be deemed to be zero (0) for all purposes of this
definition.


 


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


 


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


 


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


 


“Existing Financing Credit Agreement” means the Credit
Agreement, dated April 22, 2009, among the Project Company, the lenders
party thereto, The Royal Bank of Scotland plc as Administrative Agent for the
lenders thereto, as Collateral Agent to the secured parties thereto and as
issuing bank for the letters of credit, RBS Securities Inc.


 


6






 










 


(f/k/a
Greenwich Capital Markets Inc.), as lead agent and bookrunner, Banco Espirito
Santo De Investmento SA, New York Branch, as syndication agent, joint
bookrunner and joint lead arranger, Banco Santander, S.A., New York Branch, BNP
Paribas, HSH Nordbank AG, New York Branch, Keybank National Association and
Société Générale as co-documentation agents, joint bookrunners and joint lead
arrangers, and Cobank, ACB as joint bookrunner and joint lead arranger, as such
credit agreement may be amended or restated from time to time.


 


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


 


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


 


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


 


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


 


“First Wind Subsidiary” means, with respect to any corporation,
partnership, limited liability company, joint venture or other entity of which
Sponsor owns, directly or indirectly, 50% or more of the stock or other equity
interests the holders of which are generally entitled to vote for the election
of the board of directors or other governing body of such corporation or other
legal entity.


 


“Fixed Tax Assumptions” has the meaning provided in the Company
LLC Agreement.


 


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


 


“Gen Lead Substation Assets” means that portion of the
substation owned by the Project Company at the Project site which may be sold
or transferred by the Project Company pursuant to the PPA.


 


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


 


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


 


7

















 


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


 


“Gross Asset Value” has the meaning provided in the Company LLC
Agreement.


 


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


 


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


 


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


 


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


 


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


 


“Indemnifying Party” means the Party indemnifying an Indemnified
Party.


 


“Independent Engineer” means Garrad Hassan America, Inc.


 


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


 


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


 


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


 


8

















 


“Initial Equity Capital Contribution Amount” means $2,500,000
minus the Purchase Price.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


9

















 


“Knowledge of NHC” means the actual knowledge of the senior
managers of NHC, any NHC Subsidiary, the Manager (so long as it is an Affiliate
of NHC), or the Administrative Services Provider (so long as it is an Affiliate
of NHC), or any NHC Subsidiary, including the actual knowledge of Steve
Schauer, Evelyn Lim, Michael Alvarez, Paul Gaynor and Jeffrey Levy with respect
to the areas of their respective experience.


 


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


 


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


 


“Major Decisions” has the meaning provided in the Company LLC
Agreement.


 


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


 


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


 


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


 


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


 


10

















 


Transaction
Document or (ii) the ability of any party to a Transaction Document to
perform its obligations thereunder.


 


“Material Contract” means any of the following, as the same may
be amended or modified, and any successor agreements thereto (i) the PPA
and the Interconnection Agreement and any other contract for the sale or
transmission of electric energy or transmission services of the Project for a
term of more than 1 year, (ii) any hedge agreement or other hedging
arrangements, which shall not be speculative in nature, off-take agreement or
renewable energy credit sale agreement and all associated documentation in
respect of the electric energy or renewable energy credits generated by the
Project, (iii) a contract, lease, indenture or security under which the
Company or Project Company (A) has created, incurred, assumed or
guaranteed any indebtedness for borrowed money in excess of $1,000,000 or
obligations under any lease that, in accordance with GAAP, should be
capitalized in excess of $1,000,000 or (B) has a reimbursement obligation
in respect of any letter of credit, guaranty, bond, or other credit or
collateral support arrangement required to be maintained by Project Company
under the terms of any contract referred to in clause (i) or (ii) above,
(iv) the Administrative Services Agreement, the Management Services
Agreement, the Affiliate O&M Agreement or other contract for management,
operation or maintenance of the Project, (v) a product warranty or repair
contract by or with a manufacturer or vendor of equipment owned or leased by
Project Company that covers equipment whose fair market value exceeds $1,000,000,
(vi) wind energy leases and (vii) any other contract that is expected
to require payments by the Company or the Project Company of more than
$1,000,000 per calendar year.


 


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


 


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


 


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


 


11

















 


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


 


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


 


“MWCI LLC Agreement” means the Amended and Restated Limited
Liability Company Agreement of MWCI dated as of August 31, 2009.


 


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


 


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


 


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


 


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


 


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


 


“Owners Title Insurance Policy” means the title insurance policy
issued by First American Title Insurance Company for the benefit of the Project
Company dated April 22, 2009 in the amount of $200,000,000.


 


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


 


“Permitted Liens” means (a) liens for taxes not yet due or
that are being contested in good faith by appropriate proceedings and for which
adequate reserves have been established in accordance with GAAP, (b) carriers’,
warehousemen’s, mechanics’, materialman’s, repairman’s, employees’,
contractors’, operators’ or other similar Liens or charges securing the payment
of expenses not yet due and payable that were incurred in


 


12

















 


the Ordinary
Course of Business of Project Company or for amounts being contested in good
faith and by appropriate proceedings, (c) trade contracts or other
obligations of a like nature incurred in the Ordinary Course of Business of
Project Company, (d) inchoate liens, obligations or duties to any
Governmental Authority arising in the Ordinary Course of Business (including
under licenses and permits held by Project Company and under all Applicable
Laws), (e) obligations or duties under easements, leases or other property
rights, (f) Liens arising out of judgments or awards so long as an appeal
or proceeding for review is being prosecuted in good faith and for the payment
of which (i) adequate reserves in accordance with GAAP or (ii) bonds
or other security reasonably satisfactory to Investor have been provided or (iii) are
fully covered by insurance, (g) easements of record, zoning and other land
use restrictions that in each such case do not impair the operation or value of
the Project, (h) security interests created by the credit support
obligations and margin requirements under any Project Company power purchase
agreement or hedge agreement or other hedging arrangements, which shall not be
speculative in nature, or any other Material Contract which does not cause a
default under the PPA, (i) prior to the repayment in full of the Existing
Financing Obligations, the liens and security interests securing the Existing
Financing Obligations, (j) the liens and security interests contemplated
by the PPA, (k) liens to secure the Working Capital Loans which does not
cause a default under the PPA, and (l) all other encumbrances and
exceptions that are incurred in the Ordinary Course of Business of the Project,
are not incurred for borrowed money and do not have a Material Adverse Effect.


 


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


 


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


 


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


 


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


 


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


 


13

















 


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


 


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


 


“Projections” is defined in Section 3.2(i) of the
Contribution Agreement. 


 


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


 


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


 


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


 


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


 


“Remaining Turbines” means the Turbines that are expected to
comprise the Project and which have not yet been Placed in Service as of the
Second Equity Capital Contribution Date.


 


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


 


“Required Reserves” means the amounts contemplated in Schedule 8.2(b) of the Company LLC Agreement, including
the Clipper Reserve and O&M Reserve.


 


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


 


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


 


14

















 


“SCPPA” means the Southern California Public Power Authority.


 


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


 


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


 


“Second Equity Capital Contribution Amount” means an amount
determined by taking the sum of (a) the Estimated Cash Grant Amount, plus (b) $102,100,000,
minus (c) the sum of the Purchase Price and the Initial Equity Capital
Contribution. In the event that fewer than 97 Turbines are Placed in Service as
of the Second Equity Capital Contribution Date, the number in clause (b) of
this definition shall be substituted with the product of (x) $102,100,000,
multiplied by a fraction where the numerator is the total megawatts of
installed capacity of the Turbines that have been) Placed In Service as of the
date 5 Business Days prior to the Second Equity Capital Contribution Date and
the denominator is 203.5.


 


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


 


“Securities Act” is defined in Section 3.2(f) of the
Contribution Agreement.


 


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


 


“Sponsor” means First Wind Holdings, LLC.


 


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


 


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


 


(a)   any taxes, customs, duties,
charges, fees, levies, penalties or other assessments, fees and other
governmental charges imposed by any Governmental Authority, including, but not
limited to, income, profits, gross receipts, net proceeds, windfall profit,
severance, property, personal property (tangible and intangible)


 


15

















 


production,
sales, use, leasing or lease, license, excise, duty, franchise, capital stock,
net worth, employment, occupation, payroll, withholding, social security (or
similar), unemployment, disability, payroll, fuel, excess profits,
occupational, premium, severance, estimated, alternative or add-on minimum, ad
valorem, value added, turnover, transfer, stamp, or environmental tax, or any
other tax, custom, duty, fee, levy or other like assessment or charge of any
kind whatsoever, together with any interest, penalty, addition to tax, or
additional amount attributable thereto; and


 


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


 


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


 


“Tax Law Change” means (i) a bill passed by either house of
Congress, (ii) a bill reported by the House Ways and Means Committee or
Senate Finance Committee, (iii) the issuance of proposed, temporary or
final Treasury Regulations, (iv) any change in the interpretation of the
Code or Treasury Regulations by a controlling decision of the United States Tax
Court, United States District Court, United States Court of Appeals or United
States Supreme Court or (v) any guidance, notice, announcement or
regulation issued by the Treasury, IRS or any other Governmental Authority in
connection with the Cash Grant program, Section 45 of the Code or Section 48
of the Code, in the case of each clause (i) through (v) after August 17,
2009.


 


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


 


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


 


“Tax Representation” means, collectively, the representations in
Sections 3.1(g), 3.1(h), 3.1(y) and 3.1(z) of the Contribution
Agreement.


 


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


 


16














 


Company, information return,
claim for refund, amended return or declaration of estimated Tax.


 


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


 


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


 


“Third
Equity Capital Contribution Amount” means an amount determined by taking
the sum of (a) the Estimated Cash Grant Amount, plus (b) $102,100,000,
minus (c) the sum of the Purchase Price, the Initial Equity Capital
Contribution, and the Second Equity Capital Contribution. In the event that
fewer than 97 Turbines are Placed in Service on the Third Equity Capital
Contribution Date (taking into account all Turbines previously Placed In
Service as of or prior to such date), the number in clause (b) of this
definition shall be substituted with the product of (x) $102,100,000,
multiplied by a fraction where the numerator is the total megawatts of
installed capacity of the Turbines that have been (or will be) Placed In
Service as of the date 5 Business Days prior to the Third Equity Capital
Contribution Date and the denominator is 203.5.


 


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


 


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


 


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


 


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


 


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


 


17

















 


the preparation of their
respective reports and (vi) such other amounts and expenses as are
mutually agreed by the parties.


 


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


 


“Transmission
Line Assets” means that portion of the 1,000 megawatts of an undivided
interest of transmission rights in the transmission line owned by the Project
Company which may be sold or transferred by the Project Company pursuant to the
PPA.


 


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


 


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


 


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


 


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


 


OTHER DEFINITIONAL PROVISIONS


 


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


 


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


 


18

















 


definitions contained in the
Contribution Agreement or the Company LLC Agreement or in any such certificate
or other document shall control.


 


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


 


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


 


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


 


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


 


All
Article and Section titles or captions contained in the Contribution
Agreement or the Company LLC Agreement, as applicable, or in any Exhibit or
Schedule referred to therein and the table of contents of the Contribution
Agreement and the Company LLC Agreement are for convenience only and shall not
be deemed a part of the Contribution Agreement or the Company LLC Agreement, as
the case may be, or affect the meaning or interpretation of the Contribution
Agreement or the Company LLC Agreement, as applicable. Unless otherwise
specified, all references in the Contribution Agreement or the Company LLC
Agreement to numbered Articles and Sections are to Articles and Sections of the
Contribution Agreement or the Company LLC Agreement, as applicable, and all
references herein to Schedules or Exhibits are to Schedules and Exhibits to the
Contribution Agreement or the Company LLC Agreement, as applicable.


 


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


 


19

















 


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


 


20

















 


ANNEX II


INVESTOR PERCENTAGE


 


	
  Investor

  	
   

  	
  Investor

  Percentage

  
	
   

  	
   

  	
   

  
	
  Stanton Equity Trading
  Delaware LLC

  	
   

  	
  100% Class B
  Membership Interests

  



 


II - 1

















 


Exhibit A


 


Form of Company  LLC  Agreement


 

















 


Filed
Separately


 














 


Exhibit B


 


Form of Investor Guaranty


 


See attached.


 


B-1

















 


Exhibit
B to Equity Contribution and Purchase Agreement


 


	
  *****

  	
  *****

  
	
   

  	
  New York, NY 10010

  



 


September 28,
2009


 


Milford
NHC, LLC


85
Wells Avenue, Suite 305


Newton,
MA 02459


 


Ladies
and Gentlemen:


 


In
consideration of that certain Equity Contribution and Purchase Agreement (the “Agreement”) dated as of September 28,
2009 by and among Stanton Equity Trading Delaware LLC, a Delaware limited
liability company (“Obligee”), Milford NHC, LLC, a
Delaware limited liability company (together with its assigns under the
Agreement and its successors, “NHC”), Milford Wind Holdings LLC, a
Delaware limited liability company, and Milford Wind Partners, LLC, Delaware limited
liability company, *****, a Delaware
corporation (“Guarantor”), hereby absolutely,
irrevocably and unconditionally guarantees to NHC, with effect from the date of
the Agreement, the due and punctual payment by Obligee under the Agreement of
each of the Purchase Price, the Initial Equity Capital Contribution, the Second
Equity Capital Contribution, and the Third Equity Capital Contribution at such
time, if any, when the same become due and payable by Obligee in accordance
with the terms of the Agreement. Upon failure of Obligee punctually to pay in
full any such amounts that become so due and payable, upon written demand by
NHC to Guarantor at its address set forth in the signature block of this
Guarantee (or to such other address as Guarantor may specify in writing to NHC
with at least 3 Business Days’ advance notice), Guarantor agrees to pay or
cause to be paid such due and payable amounts, together, if not paid in full
within 3 Business Days from the date of such demand, with reasonable attorneys’
fees and expenses of enforcing or obtaining or endeavouring to enforce or
obtain payment thereof (“Expenses”); provided that delay by NHC
in giving such demand shall in no event affect Guarantor’s obligations under
this Guarantee.


 


It
is understood that Guarantor’s total liability in respect of this Guarantee
shall not exceed US$***** (including
any Expenses due and payable hereunder, which shall not exceed US$*****). It is also understood
that this is a Guarantee of certain monetary obligations only, and in no event
will Guarantor be obligated to perform or cause to be performed any services or
performance obligations, other than the payment of the monetary obligations
guaranteed hereby.


 


Guarantor hereby agrees that this Guarantee
is a guarantee of payment, not of collection, and its obligations hereunder are
enforceable irrespective of any claim as to the Agreement’s validity,
regularity or enforceability or the lack of authority of Obligee to execute or
deliver the Agreement; or any waiver or consent by NHC with respect to any
provisions thereof; or the absence of any action to enforce the Agreement, or
the recovery of any judgment against Obligee or of any action to enforce a
judgment against Obligee under the Agreement; or any similar circumstance which
might otherwise constitute a legal or equitable discharge or defense of a


 


1

















 


guarantor
generally.


 


Guarantor
hereby waives diligence, presentment, demand on Obligee for payment or
otherwise (except as provided hereinabove), filing of claims, requirement of a
prior proceeding against Obligee and protest or notice, except for the notice
required under this Guarantee, with respect to amounts payable by Obligee. If
at any time payment under the Agreement is rescinded or must be otherwise
restored or returned by NHC upon the insolvency, bankruptcy, or reorganization
of Obligee or Guarantor or otherwise, Guarantor’s obligations hereunder with
respect to such payment shall be reinstated upon such restoration or return
being made by NHC.


 


Guarantor
represents to NHC as of the date hereof that:


 


(1)                                  it is duly
organized and validly existing under the laws of the jurisdiction of its
incorporation and has full power and legal right to execute and deliver this
Guarantee and to perform the provisions of this Guarantee on its part to be
performed;


 


(2)                                  its execution,
delivery and performance of this Guarantee have been and remain duly authorized
by all necessary corporate action and do not contravene any provision of its certificate
of incorporation or by-laws or any law, regulation or contractual restriction
binding on it or its assets;


 


(3)                                  all consents,
authorizations, approvals and clearances (including, without limitation, any
necessary exchange control approval) and notifications, reports and
registrations requisite for its due execution, delivery and performance of this
Guarantee have been obtained from or, as the case may be, filed with the
relevant governmental authorities having jurisdiction and remain in full force
and effect and all conditions thereof have been duly complied with and no other
action by, and no notice to or filing with, any governmental authority having
jurisdiction is required for such execution, delivery or performance; and


 


(4)                                  this Guarantee
is its legal, valid and binding obligation enforceable against it in accordance
with its terms except as enforcement hereof may be limited by applicable
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors’ rights or by general equity principles.


 


Provided
that all Expenses have been paid in full, notwithstanding any other provision
of this Guarantee, this Guarantee shall terminate on the earlier to occur of:


 


(i)   termination of the Agreement
pursuant to the terms thereof; including, without limitation, if the Initial
Closing has not been consummated by the Termination Date (other than due to
failure by Obligee to pay the Initial Equity Capital Contribution when all
conditions precedent to such obligation have been satisfied (or waived in
writing by Obligee));


 


(ii)  at 11:59 p.m. Eastern
Time on December 31, 2009 if the condition set forth under Section 2.7(b) of
the Agreement has not been satisfied (and has not been waived in writing by
Obligee);


 


(iii)    at 11:59 p.m.
Eastern Time on January 31, 2010 if all of the conditions precedent to
Obligee’s obligation to make the Second Equity Capital Contribution have not
been satisfied (and have not been waived in writing by Obligee);


 


(iv)    if all the Turbines were
Placed in Service on or before the Second Equity Capital Contribution Date,
upon payment by Obligee of the Second Equity Capital Contribution;


 


2

















 


or


 


(v) if
the Second Equity Capital Contribution Closing occurred but fewer than all the
Turbines were Placed in Service on or before such date then, upon the earlier
of (a) payment by Obligee of the Third Equity Capital Contribution, (b) no
additional Turbines have reached Commercial Operation within 90 days after the
Commercial Operation Date or such later date, if any, as SCPPA permits; or (c) at
11:59 p.m. Eastern Time on the date 150 days after the date on which
Commercial Operation is achieved if all of the conditions precedent to
Obligee’s obligation to make the Third Equity Capital Contribution have not
been satisfied by such time (and have not been waived in writing by Obligee).


 


The
Guarantor shall not be entitled and shall not seek, by reason of having made
any payment hereunder, to be subrogated to the rights of NHC against Obligee
with respect to such payment or otherwise to be reimbursed, indemnified or
exonerated by Obligee in respect thereof until all payment obligations
hereunder have been paid in full.


 


The
Guarantor may not assign any rights, interests, or obligations hereunder to any
other person without the prior written consent of NHC, such consent not being
unreasonably withheld if the proposed assignee has a long-term debt rating at
the date of such assignment of at least ***** by Standard &
Poor’s Corporation or ***** by Moody’s
Investor Service, Inc.; provided, however, that the
Guarantor may, without the consent of NHC, upon three (3) days’ prior
written notice to NHC, transfer all of its obligations hereunder to any
Affiliate of the Guarantor having a long-term debt rating at the date of such
transfer of at least ***** by Standard &
Poor’s Corporation or ***** by Moody’s
Investor Service, Inc. so long as (i) such affiliate transferee
agrees in writing to be bound by the terms of this Guarantee and (ii) such
affiliate transferee represents and warrants as to the matters set forth in
this Guarantee as of the date of such transfer.


 


NHC
may not assign any rights, interests, or obligations hereunder to any other
person without the prior written consent of the Guarantor, such consent not
being unreasonably withheld; provided that no such consent will be required if
NHC simultaneously assigns its rights, interests and obligations under the
Agreement and the Company LLC Agreement (including its membership interest in
the Company) to such assignee in accordance with the terms of such Agreement
and the Company LLC Agreement.


 


This
Guarantee shall be governed by and construed in accordance with the laws of the
State of New York without regard to principles of conflicts of law (other than Section 5
1401 of the New York General Obligations Law, which shall apply to this
Guarantee).


 


Both
the Guarantor and NHC hereby waive, to the fullest extent permitted under
applicable law, any right either the Guarantor or NHC may have to a trial by
jury in respect of any suit, action or proceeding relating to this Guarantee.


 


With
respect to any suit, action or proceeding relating to this Guarantee, both the
Guarantor and NHC (1) hereby irrevocably submit to the exclusive jurisdiction
of the courts of the State of New York and the United States District Court in
each case located in the Borough of Manhattan in New York City and (2) in
connection therewith, hereby waive any objection which it may have at any time
to the laying of venue for any such suit, action or proceeding relating to this
Guarantee, waive any claim that such suit, action or proceeding relating to
this Guarantee has been brought in an inconvenient forum, and further waive the
right to object, with respect to such suit, action or proceeding relating to
this Guarantee, that such court does not have jurisdiction over it.


 


3

















 


All
capitalized terms not otherwise defined herein shall have the respective
meanings assigned to them in the Agreement.


 


	
  *****

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  *****

  	
   

  	
   

  
	
  Name:
  

  	
  *****

  	
   

  	
   

  
	
  Title:

  	
  Managing
  Director and Treasurer 

  	
   

  	
   

  
	
  Address:

  	
  *****

  	
   

  	
   

  
	
   

  	
  New
  York, NY 10010

  	
   

  	
   

  
	
  Attention:

  	
  *****

  	
   

  	
   

  
	
  Fax
  No.:

  	
  *****

  	
   

  	
   

  
	
  Ph.
  No.:

  	
  *****

  	
   

  	
   

  
					



 


4

















 


Exhibit C


 


Form of Management Services Agreement


 


See attached


 


C-1














 


Exhibit C to Equity Contribution and Purchase
Agreement


 


	
   

  	
   

  	
   

  



 


MANAGEMENT SERVICES AGREEMENT


 


among


 


MILFORD WIND PARTNERS, LLC,


 


MWCI HOLDINGS, LLC,


 


and


 


FIRST WIND ENERGY, LLC


 


dated as of September 28, 2009


 


	
   

  	
   

  	
   

  



 

















 


MANAGEMENT SERVICES AGREEMENT


 


THIS
MANAGEMENT SERVICES AGREEMENT (this “Agreement”) is made as of September 28,
2009 (the “Effective Date”), among Milford Wind Partners, LLC, a
Delaware limited liability company (“Milford Wind”), MWCI Holdings, LLC,
a Delaware limited liability company (“MWCI”) (each of Milford Wind and
MWCI, a “Holding Company”, and together, the “Holding Companies”),
and First Wind Energy, LLC, a Delaware limited liability company (the “Manager”).
Each Holding Company and Manager are sometimes referred to, individually, as a “Party”
or, collectively, as the “Parties.”


 


Preliminary Statements


 


1.              WHEREAS,
Milford Wind owns 100% of the membership interests in MWCI; and


 


2.              WHEREAS,
MWCI owns 100% of the membership interests in Milford Wind Corridor Phase I,
LLC, a Utah limited liability company (the “Project Company”) and the
Project Company owns and is developing an approximately 203.5 megawatt wind
energy project and related transmission line near Milford, Utah; and


 


3.              WHEREAS,
Each Holding Company has agreed to enter into this Agreement to contract with
the Manager for day-to-day management of such Holding Companies; and


 


NOW,
THEREFORE, in consideration of the mutual covenants and agreements herein, the
Parties, intending to be legally bound, agree as follows:


 


ARTICLE I

DEFINITIONS AND USAGE


 


Section 1.1             Definitions. Unless the context requires
otherwise or this Agreement expressly provides otherwise, capitalized terms
used in this Agreement have the following meanings and capitalized terms not
defined in this Agreement have the meanings given to such terms in the Milford
Wind LLC Agreement:


 


“Agreement”
is defined in the preamble.


 


“Approved
Budget” means, a budget relating to Milford Wind, which has been approved
in accordance with Section 7.1 of the Milford Wind LLC Agreement.


 


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


 


“Consumer
Price Index” means the most recent revision of the Consumer Price Index as
computed and published by the United States Department of Labor, Bureau of
Labor Statistics.


 

















 


“Documentation” means all
written invoices, receipts, billing statements, payment notices, wire receipt
and payment notifications, bank statements and other similar written evidence
of (i) amounts paid or payable by any Holding Company to any Person and (ii) received
or receivable by any Holding Company from any Person, in each case in
connection with such Holding Company.


 


“Effective
Date” is defined in the preamble.


 


“Emergency
Expenditure” means an expense with respect to a Holding Company
that is not included in the Approved Budget for such Holding Company and which
is incurred, in the reasonable judgment of the Manager, to avoid or to mitigate
a risk of physical injury to any Person, or a financial loss or damage to such
Holding Company, or a violation of law and with respect to which there is not a
reasonable opportunity to convene a meeting of the members of the Holding
Company in order to obtain prior approval of the expense.


 


“Events
of Default” is defined in Section 8.1.


 


“Fiscal
Year” means the 12 month period ending on August 31st.


 


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


 


“Holding
Company” or “Holding Companies” is defined in
the preamble. 


 


“Indemnified
Party” is defined in Section 9.1(a).


 


“Initial
Term” means 20 years from the Effective Date.


 


“LLC
Agreement” means each of the Milford Wind LLC Agreement and
the MWCI LLC Agreement.


 


“Losses” is defined in Section 9.1(a).


 


“Management
Fee” is defined in Section 4.1(a).


 


“Manager” is defined in
the preamble.


 


“Manager
Cause” means the commission by the Manager, acting in its capacity as such,
of fraud, willful misconduct or gross negligence or the occurrence of an Event
of Default of the Manager pursuant to Section 8.1(a) or (c).


 


“Milford
Wind LLC Agreement” means that certain First Amended Limited Liability


 


2

















 


Company
Agreement, dated as of September 28, 2009, between Milford NHC, LLC, a
Delaware limited liability company, Stanton Equity Trading Delaware LLC, a
Delaware limited liability company.


 


“MWCI
LLC Agreement” means that certain Amended and Restated Limited
Liability Company Agreement, dated as of August 31, 2009, between Milford
Wind and MWCI.


 


“Person” means any
individual, corporation, partnership, limited liability company, association,
joint stock company, trust, unincorporated organization, joint venture,
government or political subdivision or agency thereof.


 


“Protected
Party” is defined in Section 9.1(b).


 


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


 


“Reference
Rate” means the rate published, from time to time, in The Wall Street Journal as the prime
lending rate or “prime rate” plus 1%. If the Reference Rate is no longer published
by The Wall Street Journal,  then
the Reference Rate shall mean the rate published by a national publication
selected by the Parties plus 1%.


 


“Renewal
Term” means a renewal permitted under Section 7.2.


 


“Service
Providers” means each third party hired by a Holding Company
or the Manager to perform services for a Holding Company, including, including
certified public accountants, tax return preparers, law firms and other
professional advisors and consultants.


 


“Services” means the
responsibilities of the Manager under ARTICLE II.


 


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


 


“Term” means the
Initial Term and any Renewal Term.


 


3

















 


ARTICLE II

RESPONSIBILITIES


 


Section 2.1           Manager’s
Responsibilities. During the Term, the Manager shall provide  the following
Services on behalf of each Holding Company, each in accordance with the Prudent
Operator Standard:


 


(a)           Supervise and
monitor the Service Providers with respect to their performance of services for
each Holding Company and (i) where necessary or desirable at such Holding
Company’s sole expense, taking of such actions as are necessary to enforce each
Service Provider’s, compliance with its obligations to such Holding Company,
and (ii) where necessary or desirable, at such Holding Company’s sole
expense, hiring, firing and/or replacing any Service Provider;


 


(b)           (i) Collect on
behalf of each Holding Company, or cause to be so collected, all payments due
to such Holding Company, (ii) prepare and promptly pay, or cause to be
paid, on behalf of each Holding Company, any amounts required to be paid by
such Holding Company, including all expenses incurred by such Holding Company
or that are due and payable under contracts to which such Holding Company is a
party (iii) promptly (but in no event later than the date such payment is
due and payable, unless there is a dispute as to payment) remit, or direct to
be remitted, from funds of each Holding Company amounts in payment of the
expenses of such Holding Company as contemplated by its respective Approved
Budgets (including authorized variances thereto), or that are required by law,
and (iv) maintain reserves for each Holding Company from time to time as
directed by, and upon terms established by, each Holding Company pursuant to
its respective LLC Agreement; provided that nothing herein shall imply
any duty of the Manager under any circumstances to expend its own funds in
payment of the expenses of any Holding Company; provided further that nothing
herein shall imply any guarantee by the Manager with respect to the collection
of amounts due to any Holding Company or the return on such investments;


 


(c)           Maintain complete
and accurate financial books and records of the operations of each Holding
Company in accordance with prudent business practices and GAAP and make such
books and records available for inspection and copying during normal business
hours on its premises, upon reasonable prior notice, by any member of any
Holding Company, any designee of a lender to any member of any Holding Company,
or any other Person authorized by any member of any Holding Company to inspect
or copy such books and records, in accordance with the LLC Agreement for each
Holding Company, subject to appropriate confidentiality safeguards;


 


(d)           Maintain at each
Holding Company’s principal office (i) true and full information regarding
the status of the financial condition of each such Holding Company, including
any financial statements that are available for the three most recent years, or
longer if required by such Company’s LLC Agreement; (ii) minutes of the
proceedings of the members of each


 


4

















 


Holding
Company (if any); (iii) copies of the federal, state, and local income tax
returns of each Holding Company for each year; (iv) a current list of the
name and last known business, residence or mailing address of each of the
members of each Holding Company and the Manager; (v) a copy of each
Holding Company’s LLC Agreement and such Holding Company’s certificate of
formation, and all amendments thereto, together with executed copies of any
written powers of attorney pursuant to which each such Holding Company’s LLC
Agreement and such certificate of formation and all amendments thereto were
executed; (vi) true and full information regarding the amount of cash and
a description and statement of the agreed value of any other property and
services contributed by the members of each Holding Company, and the date upon
which each became a member; (vii) copies of records that would enable each
member of each such Holding Company to determine such member’s relative share
of the applicable distributions and relative voting rights, and (viii) all
records related to the Cash Grant and the production and sale of electricity by
the Companies or the Project Company and the qualification of such sale for any
tax credit;


 


(e)           Perform on behalf of
each Holding Company all reporting and other routine management
responsibilities reasonably believed by the Manager to be required under
contracts to which such Holding Company is a party, including representing such
HoldingCompany in ordinary course business matters with third parties arising
thereunder and as directed by the managing member (if such Holding Company is
managed by a managing member) or the members (if such Holding Company is member
managed) of such Holding Company;


 


(f)            Perform on behalf
of each Holding Company all routine administrative services reasonably required
in connection with maintaining such Holding Company’s existence and operations,
such as the filing of limited liability company reports;


 


(g)           Notify the members
of each Holding Company of any material variance from the applicable Approved
Budget promptly after learning of such variance;


 


(h)           Provide such readily
available information to the members of each Holding Company as they may
reasonably request from time to time;


 


(i)            Advise each Holding
Company to engage additional Service Providers as reasonably believed by the
Manager to be necessary or desirable, or as instructed by the managing member
(if such Holding Company is managed by a managing member) or the members (if
such Holding Company is member managed) of each such Holding Company to
represent or perform services for such Holding Company; provided that
the Manager shall be entitled to request and rely upon instructions from the
managing member (if such Holding Company is managed by a managing member) or
the members (if such Holding Company is member managed) with respect to the
engagement of any Service Provider.


 


(j)            (i) Procure
and maintain, or cause to be procured and maintained, any required governmental
approvals and permits for each Holding Company; (ii) prepare and submit or
cause


 


5

















 


to
be prepared and submitted all filings of any nature that are required to be
made thereunder and represent each Holding Company in matters with Governmental
Authorities relating thereto; and (iii) prepare and submit, or cause to be
prepared and submitted, all filings of any nature that are required to be made
by such Holding Company under the terms of any permits held by any such Holding
Company or any laws, regulations or ordinances applicable to such Holding
Company;


 


(k)          Not take any affirmative action as
would cause any Holding Company in any material respect to violate any federal,
state or local laws and regulations, including environmental laws, and to the
extent that the Manager has knowledge of any such existing or prospective
violation take, or direct Service Providers to take, commercially reasonable
actions in accordance with the standards of performance in ARTICLE III,
at the sole expense of any such Holding Company (unless such existing or
prospective violation arises from breach of the Manager’s duties hereunder), to
redress or mitigate any such violation;


 


(1)          (i) Give prompt written notice to
the members of each Holding Company of any litigation, material disputes with
Governmental Authorities, material defaults or material force majeure events
under the contracts relating to each such Holding Company and material losses
suffered by any such Holding Company promptly after learning of the same, (ii) furnish
to the members of each Holding Company, or direct a Service Provider to
furnish, copies of all material documents furnished to such Holding Company or
the Manager by any Governmental Authority or furnished to any Governmental
Authority by each Holding Company and (iii) provide documents relating to
contracts relating to any Holding Company or the Manager’s responsibilities
hereunder reasonably requested by any third party providing financing to each
Holding Company or the members of each such Holding Company, subject to
compliance with any applicable confidentiality restrictions;


 


(m)          Perform and discharge
all responsibilities and functions assigned to the Manager under or pursuant to
each Holding Company’s LLC Agreement as in effect as of the date hereof in
accordance with the terms in such Holding Company’s LLC Agreement;


 


(n)           If directed by the
managing member (if such Holding Company is managed by a managing member) or
the members (if such Holding Company is member managed), Establish and
maintain, in the name and for the exclusive benefit of each Holding Company,
accounts at one or more banks or other financial institutions into and through
which the Manager shall promptly deposit all funds received by it on behalf of
each Holding Company during the term of this Agreement, and invest such funds
in accordance with the investment provisions of each Holding Company’s LLC
Agreement; provided that nothing herein shall imply any guarantee by the
Manager with respect to the collection of amounts due to any Holding Company or
the return on such investments;


 


(o)           (i) Prepare and
file or cause to be prepared and filed by an accounting firm on behalf of each
Holding Company, on a timely basis, all federal, state and local tax returns
and related information and filings required to be filed by each such Holding
Company or delivered


 


6

















 


to
its the members, including each member’s IRS Form K-1, in accordance with
the Milford Wind LLC Agreement, if any; and (ii) pay out of each Holding
Company’s funds all respective taxes and other governmental charges shown to be
due thereon before they become delinquent and make federal, state and local
income tax elections in accordance with the provisions of each Holding Company’s
LLC Agreement;


 


(p)           Promptly inform each
Holding Company and its members of any proposed decision that arises which
would, if taken, constitute a “Major Decision” under any of the Holding Company’s
LLC Agreements and the Manager shall not make any such decision (or take any
such action) without the required consent of the members of Milford Wind
Partners in accordance with the Milford Wind LLC Agreement;


 


(q)           Subject to and to
the extent in accordance with the provisions of the Milford Wind LLC Agreement,
(i) at the direction of the managing member of each Holding Company (if
such Holding Company is managed by a managing member) or the members of any
Holding Company (if such Holding Company is member managed), direct the defense
of any claims made by the IRS to the extent that such claims relate to the
adjustment of Holding Company items at each Holding Company level, (ii) promptly
deliver to each member a copy of all notices, communications, reports and
writings received from the IRS relating to or potentially resulting in an
adjustment of Holding Company items, (iii) promptly advise the managing
member of each Holding Company (if such Holding Company is managed by a
managing member) or the members of each Holding Company (if such Holding
Company is member managed) of the substance of any conversations with the IRS
in connection therewith and keep the members advised of all developments with
respect to any proposed adjustments that come to its attention; (iv) provide
each member with a draft copy of any correspondence or filing to be submitted
by each Holding Company in connection with any administrative or judicial
proceedings relating to the determination of Holding Company items at each
Holding Company level reasonably in advance of such submission; (v) incorporate
all reasonable changes or comments to such correspondence or filing requested
by any member to the extent required by the LLC Agreements; (vi) provide
each member with a final copy of correspondence or filing; and (vii) provide
each member with notice reasonably in advance of any meetings or conferences
with respect to any administrative or judicial proceedings relating to the determination
of Holding Company items at each Holding Company level (including any meetings
or conferences with counsel or advisors to each Holding Company with respect to
such proceedings);


 


(r)            On or prior to October 10
of each Fiscal Year (commencing with 2009), prepare, or cause to be prepared,
and submit to the members of Milford Wind a proposed Approved Budget for the
immediately following calendar year as provided in the Milford Wind LLC
Agreement;


 


(s)           Within 120 days
after the end of each Fiscal Year, cause Milford Wind’s accounting firm to
prepare, review and submit to the members of Milford Wind, annual audited
consolidated and consolidating financial statements for Milford Wind and its
Subsidiaries, in


 


7

















 


accordance
with the requirements of the Milford Wind LLC Agreement;


 


(t)            Within 60 days
after the end of each of the first three quarters of each Fiscal Year, prepare,
or cause to be prepared, and submit or cause to be submitted, to the members of
each Holding Company, the consolidated and consolidating unaudited financial
statements of the Milford Wind and its subsidiaries for such fiscal quarter,
including balance sheet as of the last day of such fiscal quarter, in a format
agreed to by the members thereof, that include project GAAP income allocations;


 


(u)           On a monthly basis,
and no later than 30 days after the end of each month, prepare, or cause to be
prepared, and submit and cause to be submitted to the members of Milford Wind,
the monthly operating report required under the Milford Wind LLC Agreement;


 


(v)           Assist the Managing
Member of Milford Wind in establishing an escrow account in accordance with Section 3.14
of the Milford Wind LLC Agreement and cooperate fully and promptly with the
escrow agent therefor in connection with any instructions from the escrow
agent, if any, to assist the same in fulfilling its duties under such
agreement;


 


(w)          Make distributions as
provided under the relevant provisions of each Holding Company’s LLC Agreement;


 


(x)            Cause each Holding
Company to obtain (to the extent not already purchased) and maintain all
commercially available insurance required by such Holding Company to be
maintained on behalf of such Holding Company in accordance with such Holding
Company’s LLC Agreement and, on an annual basis, provide its members with
certificates from the insurance broker verifying the insurance maintained with
respect to such Holding Company and setting forth the principal terms of all
active insurance policies in connection therewith;


 


(y)           Except for the
escrow account to be established in accordance with Section 3.14 of the
Milford Wind LLC Agreement, which shall be established thereby and administered
solely by the escrow agent thereof, administer any escrow arrangements to which
any Holding Company is a party, as well as any letters of credit, bonds or
other similar support instruments posted by any Holding Company;


 


(z)          Notify the members of each Holding
Company promptly of the receipt of any communication as to any deficiencies in
such Holding Company’s accounting practices from its accounting firm, or of the
resignation of its accounting firm;


 


(aa)                       Maintain a
register of membership interests of each Holding Company and record therein any
(i) transfers of membership interest made in accordance with the terms of
each Holding Company’s LLC Agreement and (ii) security interests of a
secured party pursuant to any security interest permitted under each Holding
Company’s LLC Agreement; and


 


8

















 


(bb)         Perform such other administrative tasks
as the managing member, or the members of any Holding Company having the right
to direct such action under the LLC Agreements may reasonably request from time
to time that are typically within the purview of a manager unless not otherwise
permitted.


 


Section 2.2             Separateness. The Manager
shall maintain its existence separate and distinct from any other Person,
including maintaining in full effect its existence, rights and franchises as a
limited liability company under the laws of Delaware and obtaining and
preserving its qualification to do business in each jurisdiction in which such
qualification is or will be necessary to protect the validity and
enforceability of this Agreement.


 


ARTICLE III

STANDARD OF PERFORMANCE


 


Section 3.1             Standard of Performance. The
Manager shall perform the Services, or shall cause the Services to be
performed, in accordance with the Prudent Operator Standard and applicable law;
provided that the Manager shall be deemed to have satisfied its duties (i) in
respect of supervision of Service Providers providing legal, accounting, tax
preparation, engineering, marketing, and advisory services, by diligent review
of the work product of such Service Providers, and without any duty to conduct
further investigation, verification or consultation, in the absence of actual
knowledge that such work product is incorrect or incomplete; and (ii) in
respect of any specific matter or circumstance requiring interpretation,
application, or enforcement of the contracts relating to each Holding Company,
by relying conclusively on the advice of qualified legal counsel and qualified
industry consultants engaged to advise such Holding Company with respect to
such matter or circumstance. It is understood and agreed by each Holding
Company and the Manager that the Manager is not guaranteeing or undertaking to
procure any financial or other outcome with respect to any Holding Company.


 


Section 3.2             No Liability.


 


(a)             The Manager shall
have no liability under this Agreement for (i) failure to take actions
that it is not obligated to take pursuant to this Agreement and as to which it
has requested the consent of the managing member (if such Holding Company is
managed by a managing member) or the members (if such Holding Company is member
managed) of the applicable Holding Company for the Manager to perform such
actions if such consent is not timely given (including actions requiring a
variance from an Approved Budget for which a request for variance by the
Manager has been made and not timely approved), or (ii) actions taken at
the direction of the members or the managing member, if applicable, of any
Holding Company, or (iii) failure to take actions requiring the
expenditure of any Holding Company funds in accordance with an Approved Budget
if such funds are not available (for reasons other than a failure of the
Manager to provide the Services in accordance with this Agreement).


 


(b)             The Manager shall
have no liability under this Agreement to the members or the


 


9

















 


managing
member, if applicable, of any Holding Company for actions, or decisions not to
act, taken with the approval of the members or managing member, if applicable
of such Holding Company for such action; provided that the
Manager shall not be excused from liability hereunder for such actions, or
decisions not to act, that are performed in a negligent manner


 


(c)           The Manager may make expenditures for
administrative services contemplated by the contracts relating to the Holdings
Companies and the relevant Approved Budget (including immaterial and approved
variances) and required by law or Emergency Expenditures and make payments to
the Service Providers without seeking further approval of the managing member
(if such Holding Company is managed by a managing member) or the members (if
such Holding Company is member managed) of such Holding Company. The Manager
will give prompt written notice to the managing member (if such Holding Company
is managed by a managing member) and the members of any Holding Company of any
Emergency Expenditure with respect to such Holding Company.


 


ARTICLE IV

COMPENSATION AND PAYMENT


 


Section 4.1
            Management Fee; Expenses. (a) Milford
Wind will pay the Manager an annual management fee (the “Management
Fee”) initially equal to $150,000 per calendar year, payable in equal
monthly installments on the 1st day of each month and prorated for the number
of months remaining in 2009. Commencing with 2010, the Management Fee shall be
adjusted annually on January 1 of each year of the Term to reflect changes
in the Consumer Price Index.


 


(b)           No additional fees for the
performance of the Services will be charged to any Holding Company in addition
to the Management Fee. If the Manager, at the request of the managing member of
Milford Wind, performs services not contemplated by this Agreement, the fee for
such additional services shall be such amounts payable at such times as the
Manager and the managing member of Milford Wind shall agree. It is understood
that all out-of-pocket expenses incurred in the administration and operation of
any Holding Company are solely for the account of such Holding Company, and may
be disbursed by the Manager from such Holding Company’s funds. The Manager
shall be reimbursed for all reasonable other expenses that the Manager incurs
in connection with performance of its obligations under this Agreement (not
including any cost of retaining Service Providers to perform Services).


 


Section 4.2             Billing and Payment. Within 15 days
following the Manager’s submission of an invoice to the managing member (if
such Holding Company is managed by a managing member) or the members (if such
Holding Company is member managed) of any Holding Company reflecting (i) with
respect to any Holding Company, any expenses due and payable by such Holding
Company (and including invoices and other material identifying and
substantiating, in reasonable detail, the nature of such expenses and the basis
for reimbursement thereof), and (ii) with respect to Milford Wind, the
monthly portion of the Management Fee due and payable by Milford Wind (and
including invoices and other material identifying and


 


10

















 


substantiating,
in reasonable detail, the nature of such costs and the basis for
reimbursement):


 


(a)             The managing
member (if the Holding Company is managed by a managing member) or members (if
the Holding Company is member managed) of each Holding Company shall approve
such payment to the Manager of the (i) expenses and (ii) with respect
to Milford Wind, the portion of the Management Fee specified in such invoice, less
any portion of such expenses and with respect to Milford Wind, the
Management Fee that is disputed in good faith by a member, provided that any
invoiced amount incurred in accordance with an Approved Budget shall be deemed
approved by the managing member (if such Holding Company is managed by a
managing member) or the members (if such Holding Company is member managed) of
the applicable Holding Company and shall be paid by the managing member (if
such Holding Company is managed by a managing member) or the members (if such
Holding Company is member managed) of such Holding Company unless the managing
member (if such Holding Company is managed by a managing member) or the members
(if such Holding Company is member managed) of such Holding Company shall
dispute in good faith such payment for reasons unrelated to the Approved
Budget.


 


(b)             The Parties shall
attempt to resolve any such disputed portion in accordance with ARTICLE VI and any amount
owed that remains unpaid more than 10 days after the date such amount is due
and payable under this Agreement shall accrue interest at the Reference Rate
beginning on the 1st day after such amount became due and payable.


 


Section 4.3
Records. The Manager shall retain copies of invoices
submitted by it under Section 4.2, and of any
third party invoices or other Documentation contained or reflected therein, for
a minimum period of 3 years or such longer period as required by applicable
law. Records maintained by the Manager pursuant to this Section 4.3 shall be the
property of the applicable Holding Company, as applicable, and shall not be
destroyed unless such Holding Company shall have consented to such destruction
in writing or declined in writing to accept possession of the records of such
Holding Company after the Manager has advised such Holding Company that the
records will be destroyed.


 


ARTICLE V

DELAYS


 


Section 5.1
Conditions. If the Manager becomes aware of any event or
circumstance that could prevent its performance of any of its obligations
hereunder, the Manager shall give prompt notice thereof to the managing member
(if the Holding Company is managed by a managing member) or members (if the Holding
Company is member managed) of the applicable Holding Company.


 


Section 5.2
Mitigation of Delay. The Manager shall attempt
in good faith to minimize any delay in performing its obligations under this
Agreement, provided, however, that the Manager
shall not be obligated to undertake or perform any actions that are prohibited
by


 


11














 


contract
or any applicable law or that would expose the Manager to any material risk of
liability or to any material expense that is not reasonably expected to be
promptly reimbursed or indemnified hereunder.


 


ARTICLE VI


DISPUTE RESOLUTION


 


Section 6.1                                                  Procedure.


 


(a)                                       The Parties
shall attempt, in good faith, to resolve or cure all disputes (including
disputes with respect to claimed Events of Default), controversies or claims
relating to this Agreement by mutual agreement in accordance with this ARTICLE
VI before initiating any legal action or attempting to enforce any rights
or remedies hereunder (including termination), at law or in equity (regardless
of whether this ARTICLE VI is referenced in the provision of this
Agreement which is the basis for any such dispute).


 


(b)                                      If a Party
believes that a dispute, controversy or claim under this Agreement has arisen,
such Party shall within 10 days after such dispute, controversy or claim
arises, give notice thereof to the other Party and the managing member (if such
Holding Company is managed by a managing member) or the members (if such
Holding Company is member managed) of each Holding Company, which notice shall
describe in reasonable detail the basis and specifics of the dispute,
controversy or claim. A meeting or conference call shall be held promptly, and
in no case later than 5 days following delivery of such notice, attended by
representatives of the Parties with decision-making authority regarding the
dispute, controversy or claim to attempt in good faith to negotiate a
resolution. If the Parties are unable to resolve the dispute, either Party may
pursue whatever rights it has available under this Agreement, at law or in
equity.


 


Section 6.2                                      Continuation of
Work. Pending final resolution of any dispute, the Parties shall continue to
fulfill their respective obligations under this Agreement; provided,
however, that each Holding Company may withhold any amount that is the subject
of dispute from any payment otherwise due hereunder during the pendency of any dispute
resolution proceeding. If the Manager prevails in such dispute, each applicable
Holding Company shall immediately pay to the Manager the unpaid amount in
dispute with interest thereon, which interest shall accrue, at the Reference
Rate, for each day from and including the date on which such amount was
originally due to, but excluding, the date of actual payment thereof.


 


ARTICLE VII


COMMENCEMENT AND TERMINATION


 


Section 7.1                                      Term. Except as
otherwise provided in this Agreement, this Agreement shall commence on the
Effective Date and remain in full force and effect until the 20th anniversary
of the Effective Date, subject to renewal upon agreement of the Parties.
Following any termination, the Manager shall be entitled to any accrued but
unpaid Management Fee (as


 


12

















 


well
as any other fees or reimbursement expenses that have been incurred in
accordance with this Agreement but remain unpaid) but shall not be entitled to
the Management Fee for the period after such termination.


 


Section 7.2                                      Renewals. Each Holding
Company and the Manager may mutually agree to renew this Agreement beyond the
Term, for additional terms that are to be agreed upon in a written agreement,
executed by all Parties and, once adopted, such agreement will become an
integral part of this Agreement. In connection with the expiration of the Term,
any Renewal Term, any termination pursuant to Section 7.3,  7.4, 8.3
or 8.4 or removal under Section 8.2, the Manager
shall cooperate with all reasonable requests of the applicable Holding Company
in connection with the transition of Services performed by Manager (including
the transferring of the records in Manager’s possession) to the entity selected
by such Holding Company to undertake the Services. The Manager shall be paid
per hour at a rate to be agreed by the Manager and such Holding Company plus
reimbursement for all costs incurred during such transition period for its
Services.


 


Section 7.3                                      Resignation of
Manager. The Manager may resign by giving written notice of such resignation to
each Holding Company, specifying a date (which date shall be not less than 30
days after the giving of such notice) upon which such resignation shall take
effect with respect to such Services. Manager’s resignation shall become
effective upon the appointment of a successor Manager pursuant to the terms of
each Holding Company’s LLC Agreement.


 


Section 7.4                                      Partial
Termination. Any Holding Company and the Manager may at
any time mutually agree to terminate this Agreement with respect to the
Services for that Holding Company only.


 


Section 7.5                                      Early
Termination. Subject to Section 7.1, Section 7.2 and Section 7.3, this Agreement
may not be terminated except:


 


(a)                                  by mutual
agreement of each of the Parties;


 


(b)                                 upon the sale
of both Holding Companies and the completion of all administrative duties
necessary or desirable in connection with the winding up of both Holding
Companies’ affairs;


 


(c)                                  upon removal of
the Manager for Manager Cause pursuant to Section 8.2 with respect
to both Holding Companies; or


 


(d)                                 pursuant to Section 8.2, Section 8.3 or Section 8.4 if all
Services to each Holding Company are terminated.


 


13

















 


ARTICLE VIII


DEFAULT


 


Section 8.1                                      Events of Default. Subject to the
provisions of ARTICLE VI, (Dispute Resolution), the
following events shall be events of default (“Events of Default”) under this
Agreement regardless of the pendency of any bankruptcy, reorganization,
receivership, insolvency or other proceeding that has or might have the effect
of preventing such Party from complying with the terms of this Agreement:


 


(a)                                  Failure by the
Manager to make any payment required to be made hereunder, if such failure
shall continue for 20 days after written notice thereof has been given to the
Manager;


 


(b)                                 Failure by any
Holding Company to make a payment to the Manager required to be made hereunder
if such failure shall continue for 20 days after written notice thereof has
been given to such Holding Company and its members; provided that, in the event
such Holding Company fails to make any such payment to the Manager within such
20 day period, the Manager shall provide the members of such Holding Company
with prompt notice thereof and may not terminate this Agreement unless its
members shall fail to pay all such amounts within 10 days of such notice;


 


(c)                                  (i) Any
failure by the Manager to comply in any material respect with any term,
provision or covenant of this Agreement (other than a failure addressed by
another paragraph of this Section 8.1), or (ii) a
gross dereliction by Manager of its duties under this Agreement, and such
failure or act described in clause (i) or (ii) continues for 30 days
after receipt by the Manager of written notice of such breach; or


 


(d)                                 Failure by any
Holding Company to comply in any material respect with any term, provision or
covenant of this Agreement (other than a failure addressed by another paragraph
of this Section 8.1), and such failure continues
for 10 days after receipt by each Holding Company of written notice of such
breach.


 


Section 8.2                                      Removal for
Manager Cause. The Manager may be removed as Manager of a
Holding Company, and the contractual relationship hereunder between the Manager
and such Holding Company will be terminated with respect to such Holding
Company, if the members of such Holding Company request termination of the
Manager’s services hereunder upon a determination that there is Manager Cause,
or otherwise as provided for in such Holding Company’s LLC Agreement. If the
Manager is so removed by both Holding Companies, this Agreement shall
automatically terminate.


 


Section 8.3                                      Bankruptcy.


 


(a)                                  Subject to the
rights or remedies it may have, any Holding Company shall have  the right to
terminate this Agreement with respect to the Manager’s Services provided to
such


 


14

















 


Holding
Company under this Agreement, effective immediately, if, at any time, the
Manager files a voluntary petition in bankruptcy, or is adjudicated bankrupt or
insolvent, or files any petition or answer seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any present or future statute or law relating to bankruptcy,
insolvency, or other relief for debtors, whether federal or state, or seeks,
consents to, or acquiesces in the appointment of any trustee, receiver,
conservator or liquidator of the Manager or of all or any substantial part of
its properties, or a court of competent jurisdiction enters an order, judgment
or decree approving a petition filed against the Manager seeking any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future statute or law
relating to bankruptcy, insolvency or other relief for debtors, whether federal
or state, and the Manager consents to or acquiesces in the entry of such order,
judgment or decree, or the same remains unvacated and unstayed for an aggregate
of 60 days from the date or entry thereof, or any trustee, receiver,
conservator or liquidator of the Manager or of all or any substantial part of
its properties is appointed without the consent of or acquiescence of the
Manager and such appointment remains unvacated and unstayed for an aggregate of
60 days.


 


(b)                                      Subject to the
rights or remedies it may have, the Manager shall have the right to terminate
the Services provided by the Manager to either or both Holding Companies under
this Agreement, effective immediately, if, at any time, any Holding Company
files a voluntary petition in bankruptcy, or is adjudicated bankrupt or
insolvent, or files any petition or answer seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any present or future statute or law relating to bankruptcy,
insolvency, or other relief for debtors, whether federal or state, or seeks,
consents to, or acquiesces in the appointment of any trustee, receiver,
conservator or liquidator of such Holding Company or of all or any substantial
part of its properties, or a court of competent jurisdiction enters an order,
judgment or decree approving a petition filed against such Holding Company
seeking any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future statute or law
relating to bankruptcy, insolvency or other relief for debtors, whether federal
or state, and such Holding Company consents to or acquiesces in the entry of
such order, judgment or decree, or the same remains unvacated and unstayed for
an aggregate of 60 days from the date or entry thereof, or any trustee,
receiver, conservator or liquidator of such Holding Company or of all or any
substantial part of its properties is appointed without the consent of or
acquiescence of such Holding Company and such appointment remains unvacated and
unstayed for an aggregate of 60 days.


 


(c)                                       The terms
“acquiesce” and “acquiescence”, as used in this Section 8.3, include, but
are not limited to, the failure to file a petition or motion to vacate or
discharge any order, judgment or decree providing for such appointment within
the time specified by law.


 


Section 8.4                                      Remedies. If an Event of
Default occurs and is continuing hereunder, then the Services under this
Agreement to any Holding Company may be terminated immediately by the
non-defaulting Party without obligation to or recourse by the defaulting Party.
In addition to


 


15

















 


the
termination right provided in Section 7.4, the non-defaulting Party
shall have all rights and remedies allowed at law or in equity, subject
however, to the specific limitations of liability in ARTICLE IX.


 


ARTICLE IX


INDEMNIFICATION AND LIMITATION OF DAMAGES


 


Section 9.1                                                          Indemnification.


 


(a)                                  To the extent
not otherwise covered by insurance and to the extent not prohibited by
applicable law, each Holding Company shall indemnify and hold harmless the
Manager, its officers, directors, employees and affiliates (each, an “Indemnified
Party”) from and against all losses, claims, demands, damages, costs,
expenses of any nature (including reasonable attorneys’ fees and disbursements)
or liabilities (or actions, suits or proceedings including any inquiry or
investigation or claims in respect thereof), judgments, fines, settlements and
other amounts arising from any and all claims, demands, actions, suits or
proceedings, whether civil, criminal, administrative, arbitral or investigative
not actually paid or reimbursed to the Manager under applicable insurance
policies (collectively, “Losses”) resulting from or arising out of the
Manager’s performance of its obligations owed to such Holding Company
hereunder; provided, however, that the Manager shall not have the right
to be so indemnified for Losses arising out of or relating to the gross
negligence or willful misconduct of the Manager or its subcontractors, or a
breach of its obligations under this Agreement. Any indemnity payment shall be
increased by the amount of any federal income tax required to be paid by the
Indemnified Party on the receipt or accrual of the indemnification payment,
including, for this purpose, the amount of any such tax required to be paid by
the Indemnified Party on the receipt or accrual of the additional amount
required to be added to such payment pursuant to this Section 9.1,
assuming full taxability and using an assumed tax rate of 35%. Any payment made
under this Section 9.1 shall be reduced by the present value of any
federal income tax benefit to be realized by the Indemnified Party by reason of
the facts and circumstances giving rise to such indemnification.


 


(b)                                 To the extent
not otherwise covered by insurance and to the extent not prohibited by law,
subject to the specific limitations of liability set forth in this ARTICLE
IX, the Manager shall indemnify and hold harmless the members of each
Holding Company and each of its officers, directors, employees and affiliates
(each a “Protected Party”) from and against all Losses resulting from or
arising out of such Protected Party’s performance of its obligations hereunder;
provided, however, that no Protected Party shall have the right to be so
indemnified for Losses arising out of or relating to the gross negligence or
willful misconduct of such Protected Party, or a breach of such Protected
Party’s obligations under this Agreement (for purposes of clarity, the Manager
shall not be deemed to be an affiliate of any Holding Company for the purposes
of this Section 9.1(b)).


 


Section 9.2                                      Exclusion of
Consequential Damages. Neither the Manager nor any Holding Company
nor any of their officers, members, employees or affiliates shall be liable for


 


16

















 


punitive,
consequential, special, indirect or exemplary damages of any nature, including
increased costs of purchasing or providing equipment, materials, labor,
services, costs of capital, debt service fees or penalties, inventory or use
charges, damages to reputation, damages for lost opportunities, or claims of
any of the customers, members or affiliates of any Holding Company, regardless
of whether said claim is based upon contract, warranty, tort (including
negligence and strict liability) or other theory of law.


 


Section 9.3                                      Aggregate
Liability. Except in the case of gross negligence, willful
misconduct or fraud of the Manager, the aggregate liability of the Manager
under this Agreement to any Holding Company shall be limited to the amount of
Management Fees actually paid to the Manager by such Holding Company. The
Parties further agree that the sole remedy for Manager’s failure to comply with
the separateness covenants in Section 2.2 shall be the termination
of this Agreement.


 


Section 9.4                                      Supremacy. The provisions
expressed in this ARTICLE IX shall prevail over any conflicting or inconsistent
provisions contained elsewhere in this Agreement and shall survive termination
of this Agreement.


 


ARTICLE X


REPRESENTATIONS AND WARRANTIES


 


Section 10.1                                Representations
and Warranties. Each Party represents and warrants, as of the date
hereof, as follows:


 


(a)                                  it is a limited
liability company duly organized, validly existing and in good standing under
the laws of the jurisdiction of its formation;


 


(b)                                 it has taken
all necessary action to authorize the execution and delivery of this Agreement and
the performance of its obligations hereunder;


 


(c)                                  this Agreement
constitutes its legal, valid and binding obligation enforceable against it in
accordance with its terms except as such enforceability may be limited by
(i) applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors’ rights and the enforcement of debtors’
obligations generally, and (ii) general principles of equity, regardless of
whether enforcement is pursuant to a proceeding in equity or at law;


 


(d)                                 the execution,
delivery and performance of this Agreement do not violate (i) its
constituent documents, (ii) any contract to which it is a party or to
which any of its properties are subject, or (iii) any law, rule,
regulation, order, writ, judgment, injunction, decree or determination to which
it is subject or by which its properties are bound;


 


(e)                                  no consent,
authorization, approval or other action by, and no notice to or filing with,
any Governmental Authority or any other Person is required for the due
execution, delivery or performance of this Agreement by such Party; and


 


17

















 


(f)                                    there is no
action, suit or proceeding at law or in equity or by or before any Governmental
Authority, arbitral tribunal or other body now pending or to its knowledge
threatened against or affecting it or its property, which would reasonably be
expected to have a material adverse effect on the transactions contemplated by
this Agreement.


 


ARTICLE XI

MISCELLANEOUS


 


Section 11.1                                Assignment.


 


(a)                                  The Manager may
not assign its rights and obligations under this Agreement to any third party
without the prior written consent of each Holding Company, which consent may
not be unreasonably withheld, except that the Manager may, without such
consent, assign its rights and obligations under this Agreement to an affiliate
of the Manager under common control with the Manager.


 


(b)                                 No Holding
Company may assign its rights and obligations under this Agreement to any third
party without the prior written consent of the Manager, which consent may not
be unreasonably withheld; provided, however, that any Holding Company
may assign all of its right, title, and interest in, or make a collateral
assignment of, this Agreement to one or more of its financing parties and/or
Holding Company’s surety without the consent of the Manager and the Manager
shall execute a consent to such collateral assignment in form and substance
reasonably satisfactory to such financing parties which consent shall include
additional periods to permit the financing parties to cure any Event of Default
by any Holding Company. The Manager shall provide estoppel certificates and
opinions as may be reasonably requested by the financing parties. The Manager
also agrees to cooperate with, and provide information to, independent
engineers engaged by any Holding Company’s financing parties.


 


Section 11.2                                Authorization. Except as
expressly authorized in writing by the managing member (if such Holding Company
is managed by a managing member) or the members (if such Holding Company is
member managed) of the applicable Holding Company, or contemplated under the
Services, the Manager shall not have the right or the obligation to create any
obligation or to make any representation on behalf of any Holding Company.


 


Section 11.3                                Governing Law,
Jurisdiction, Venue. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of New York without regard
to conflicts of law principles (except for Section 5-1401 of the New York
General Obligations Law).


 


Section 11.4                                Independent
Contractor. Nothing contained in this Agreement and no action
taken by any Party to this Agreement shall be (a) deemed to constitute any
Party or any of such Party’s employees, agents or representatives to be an
employee, agent or representative of the other Party; (b) deemed to create
any company, partnership, joint venture, association or


 


18

















 


syndicate
among or between the Parties; or (c) except as contemplated under the
Services, deemed to confer on any Party any expressed or implied right, power
or authority to enter into any agreement or commitment, express or implied, or
to incur any obligation or liability on behalf of the other Party, except as
expressly authorized in writing.


 


Section 11.5                                Notice. All notices,
requests, consents, demands and other communications (collectively “notices”)
required or permitted to be given under this Agreement shall be in writing
signed by the Party giving such notice and shall be given to each Party at its
address or fax number in this Section 11.5 or at such
other address or fax number as such Party may hereafter specify by notice to
the other Party and shall be either delivered personally or sent by fax or registered
or certified mail, return receipt requested, postage prepaid, or by a
nationally recognized overnight courier service. A notice shall be deemed to
have been given (i) when successfully transmitted if given by fax or
(ii) when delivered, if given by any other means. Notices shall be sent to
the following addresses:


 


To
the Manager:


 


First
Wind Energy, LLC


85
Wells Avenue, Suite 305 


Newton,
Massachusetts 02459 


Attention:
Secretary


Fax:
(617) 964-3342


 


To
the Holding Companies:


 


Milford
Wind Partners, LLC 


c/o
First Wind Energy, LLC 


85
Wells Avenue, Suite 305 


Newton,
Massachusetts 02459 


Attention:
Secretary


Fax:
(617) 964-3342


 


MWCI
Holdings, LLC


c/o
First Wind Energy, LLC 


85
Wells Avenue, Suite 305 


Newton,
Massachusetts 02459 


Attention:
Secretary


Fax:
(617) 964-3342


 


With
copies to:


 


19

















 


The
managing member (if such Holding Company is managed by a managing member) or
all of the members (if such Holding Company is member managed) at their
respective addresses as set forth in each such Company’s LLC Agreement.


 


Section 11.6                                Usage. This
Agreement shall be governed by the following rules of usage: (i) a
reference in this Agreement to a Person includes, unless the context otherwise
requires, such Person’s permitted assignees; (ii) a reference in this
Agreement to a law, license, or permit includes any amendment, modification or
replacement to such law, license or permit; (iii) accounting terms used in
this Agreement shall have the meanings assigned to them by GAAP; (iv) a
reference in this Agreement to an article, section, exhibit, schedule or
appendix is to an article, section, exhibit, schedule or appendix of this
Agreement unless otherwise stated; (v) a reference in this Agreement to
any document, instrument or agreement shall be deemed to include all
appendices, exhibits, schedules and other attachments thereto and all
documents, instruments or agreements issued or executed in substitution
thereof, and shall mean such document, instrument or agreement, or replacement
thereof, as amended, modified and supplemented from time to time in accordance
with its terms and as the same is in effect at any given time; (vi) unless
otherwise specified, the words “hereof,” “herein” and “hereunder” and words or
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; and (vii) the
words “include” and “including” and words of similar import used in this
Agreement are not limiting and shall be construed to be followed by the words
“without limitation”, whether or not they are in fact followed by such words.


 


Section 11.7                                Entire
Agreement. This Agreement (including all appendices and
exhibits thereto) constitutes the entire agreement and understanding of the
Parties with respect to the subject matter hereof and supersedes all prior
written and oral agreements and understandings with respect to such subject
matter.


 


Section 11.8                                Amendment. Neither this
Agreement nor any of the terms hereof may be terminated, amended, supplemented,
waived or modified orally, but only by a document in writing signed by the
Party against which the enforcement of such termination, amendment, supplement,
waiver or modification is sought.


 


Section 11.9                                Confidential
Information. Except as required by applicable law, no Party
shall, without the prior written consent of the other Party, disclose any
confidential information obtained from the other Party to any third parties,
other than to consultants or to employees who have agreed to keep such
information confidential as contemplated by this Agreement and who are
reasonably believed to need the information to assist such Party with the
exercise or performance of any rights and obligations provided to, or imposed
upon, such Party in such document.


 


Section 11.10                          Third Party
Beneficiaries. Except as otherwise expressly stated herein, this
Agreement is intended to be solely for the benefit of the Parties and their
permitted assignees


 


20

















 


and
is not intended to and shall not confer any rights or benefits to the general
public or any other third party not a signatory thereto; provided,
however, that the members of each Holding Company are intended beneficiaries of
this Agreement (subject to all the limitations hereof applicable to each
Holding Company, including ARTICLE III and ARTICLE IX hereof)
with the right to enforce claims against the Manager for breach of its
obligations hereunder.


 


Section 11.11                          Discharge of
Obligations. With respect to any duties or obligations
discharged hereunder by the Manager, the Manager may discharge such duties or
obligations through the personnel of an affiliate of the Manager; provided
that, notwithstanding the foregoing, the Manager shall remain fully liable
hereunder for such discharged duties and obligations.


 


Section 11.12                          Severability. Any provision
of this Agreement that shall be held to be invalid or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity 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. The Parties shall negotiate in good faith a replacement
provision or provisions that are valid and enforceable and that as closely as
possible correspond to the spirit and purpose of the invalid or unenforceable
provisions and this Agreement as a whole.


 


Section 11.13                          Binding Effect. The terms of
this Agreement shall be binding upon, and inure to the benefit of, the Parties
and their successors and permitted assigns. Subject to Section 11.10,
nothing in this Agreement, whether express or implied, shall be construed to give
any Person other than a Party any legal or equitable right, remedy or claim
under or in respect of this Agreement or any covenants, conditions or
provisions contained herein.


 


Section 11.14                          Counterparts. This
Agreement may be executed by the Parties in any number of counterparts, each of
which shall be an original but all of which together will constitute one
instrument, binding upon all parties hereto, notwithstanding that all of such
parties may not have executed the same counterpart. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy or portable
document format (“pdf”) shall be effective as delivery of a manually executed
counterpart of this Agreement.


 


[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]


 


21














 


IN
WITNESS WHEREOF, each Party hereto has caused this Management Services
Agreement to be signed as of the date first above written.


 


	
   

  	
   

  	
  MILFORD WIND PARTNERS, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Paul Gaynor

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Paul
  Gaynor

  
	
   

  	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  MWCI HOLDINGS, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Michael U. Alvarez

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Michael
  U. Alvarez

  
	
   

  	
   

  	
   

  	
  Title

  	
  Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  FIRST WIND ENERGY, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Evelyn Lim

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Evelyn Lim

  
	
   

  	
   

  	
   

  	
  Title

  	
  Secretary

  



 


[Signature Page to Management Services Agreement]


 

















 


Exhibit D


 


Form of Assignment




See attached


 


D-1

















 


Exhibit D to Equity Contribution


and Purchase Agreement


 


ASSIGNMENT OF MEMBERSHIP INTERESTS


 


This
ASSIGNMENT OF MEMBERSHIP INTERESTS, dated as of September 28, 2009 (the “Assignment
Agreement”), is by and among MILFORD WIND HOLDINGS, LLC, a Delaware limited
liability company (the “Transferor”), STANTON EQUITY TRADING DELAWARE
LLC, a Delaware limited liability company (the “Transferee”), and
MILFORD WIND PARTNERS, LLC, a Delaware limited liability company (the “Company”).


 


W I T N E S S E T H :


 


WHEREAS,
the Company was formed by virtue of its Certificate of Formation filed with the
Secretary of State of the State of Delaware on August 27, 2009 and, until
the date hereof, has been governed by the Limited Liability Company Agreement
of the Company, dated as of August 27, 2009, as amended (the “Original
Operating Agreement”), executed by the Transferor and Milford NHC, LLC, a
Delaware limited liability company (“NHC”);


 


WHEREAS,
pursuant to the Equity Contribution and Purchase Agreement dated as of
September 28, 2009 (the “Contribution Agreement “), among NHC, the
Transferor, the Company and the Transferee, the Transferor has agreed to sell
to the Transferee, and the Transferee has agreed to purchase from the
Transferor, on the terms and subject to the conditions set forth in the
Contribution Agreement, all of the Class B Membership Interests in the
Company identified on Annex A hereto (the “Transferred Interests”);


 


WHEREAS,
pursuant to the First Amended and Restated Limited Liability Company Agreement
of the Company, dated as of September 28, 2009 (the “Company LLC
Agreement”), by and between NHC and the Transferee, NHC and Transferee have
agreed to admit the Transferee as the only Class B Member of the Company
and for the Original Operating Agreement to be amended and restated as stated
therein; and


 


NOW,
THEREFORE, in consideration of the mutual covenants and agreements and other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the undersigned do hereby agree as follows:


 


1.             Defined Terms.
All capitalized terms not defined herein are used herein as defined in the
Contribution Agreement.


 


2.             Instructions to
Transfer. As of the date hereof, the Transferor hereby assigns and
transfers unto the Transferee complete record and beneficial ownership of


 

















 


the
Transferred Interests, together with all rights associated therewith. The
Transferor hereby irrevocably instructs the Company to register on the books of
the Company the transfer to the Transferees of complete record and beneficial
ownership of the Transferred Interests.


 


3.             Further
Assurances. Subject to the terms and conditions of the
Contribution Agreement, at any time, or from time to time after the date
hereof, the Transferor and Transferee shall, at the other’s reasonable request,
execute and deliver such instruments of transfer, conveyance, assignment and
assumption, in addition to this Assignment Agreement, and take such other
action as either of them may reasonably request in order to evidence the
transfer effected hereby.


 


4.             Successors and
Assigns. This Assignment Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns.


 


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


 


6.             Governing Law. This
Assignment Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York without reference to
principles of conflicts of laws (other than Section 5-1401 of the General
Obligations Law of the State of New York).


 


[Remainder of page intentionally left blank.
Signature page to follow.]


 

















 


IN
WITNESS WHEREOF, each Party hereto has caused this Assignment of Membership
Interests to be signed on its behalf as of the date first above written.


 


	
   

  	
   

  	
  MILFORD WIND HOLDINGS, LLC 

  as Transferor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Michael U. Alvarez

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Michael
  U. Alvarez

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  STANTON EQUITY TRADING DELAWARE LLC

  as
  Transferee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  MILFORD WIND PARTNERS, LLC

  as the Company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Paul Gaynor

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Paul Gaynor

  
	
   

  	
   

  	
   

  	
  Title:

  	
  President

  



 


[Signature Page to Assignment of Membership Interests]


 

















 


IN
WITNESS WHEREOF, each Party hereto has caused this Assignment of Membership
Interests to be signed on its behalf as of the date first above written.


 


	
   

  	
   

  	
  MILFORD WIND HOLDINGS, LLC 

  as Transferor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  STANTON EQUITY TRADING DELAWARE
  LLC

  as Transferee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Jerry L. Smith

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Jerry L. Smith

  
	
   

  	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  MILFORD WIND PARTNERS, LLC 

  as
  the Company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  



 


[Signature
Page to Assignment of Membership Interests]


 














 


Annex A


 


Transferred Interests


 


One hundred percent (100%) of the Class B Membership Interests in
the Company.


 

















 


Exhibit E


 


Form of Consent and Agreement


 


See attached.


 


E-1

















 


Exhibit E to Equity Contribution

and Purchase Agreement


 


CONSENT AND AGREEMENT


 


This
CONSENT AND AGREEMENT (as amended, modified or supplemented from time to time,
this “Consent”), dated as of September 28, 2009, is
executed by STANTON EQUITY TRADING DELAWARE
LLC, a Delaware limited liability company (“Investor”),  MILFORD NHC, LLC, a Delaware limited liability company (“NHC”), MILFORD WIND HOLDINGS, LLC, a Delaware limited liability company
(“Holdings” and, together with NHC, the “Obligors”), MILFORD WIND PARTNERS, LLC, a Delaware limited
liability company (“Company”), MWCI
HOLDINGS, LLC, a Delaware
limited liability company (“Pledgor”),  MILFORD WIND CORRIDOR PHASE I, LLC, a Delaware limited liability company
(“Borrower” and, together with NHC, Holdings, Company
and Pledgor, “the Milford Entities”), and THE ROYAL BANK OF SCOTLAND PLC,  as
Collateral Agent (“Collateral Agent”) for the
Secured Parties (as defined in the Credit Agreement).


 


RECITALS


 


A.                                   Borrower has
entered into the Credit Agreement, dated as of April 22, 2009, with The Royal
Bank of Scotland plc, as administrative agent, collateral agent and letter of
credit issuer and certain other lenders (the “Lenders”) and agents
party thereto (as may amended, restated, supplemented or modified from time to
time, the “Credit Agreement”; capitalized but undefined
terms shall have the meanings ascribed thereto in the Credit Agreement)
providing financing for the development and construction of a 203.5 MW wind
energy project and a 345 kV transmission line located in Beaver and Millard Counties,
Utah (the “Project”);


 


B.                                     Holdings owns
100% of the membership interests of NHC, prior to the events described in
Recital D below, NHC owns 100% of the class A membership interests of Company
(the “Class A Membership Interests”) and Holdings owns 100% of
the class B membership interests of Company (the “Class B Membership
Interests”), Company will own (after the events described in
Recital D below) 100% of the membership interests of Pledgor and Pledgor owns
100% of the membership interests of Borrower;


 


C.                                     As collateral
security for all obligations of Borrower to the Secured Parties under the
Credit Agreement and related documents, (i) Borrower has granted to
Collateral Agent a first-priority security interest in all of its right, title
and interest in substantially all of its assets pursuant to that certain
Security Agreement, dated as of April 22, 2009 (as amended, modified or
supplemented from time to time, the “Security Agreement”), made by
Borrower in favor of Collateral Agent for the benefit of the Secured Parties
and (ii) Pledgor has granted to Collateral Agent a first-priority security
interest in all of its right, title and interest in its ownership interests in
Borrower (among other related assets) pursuant to that certain Pledge and Security
Agreement, dated as of April 22, 2009 (as amended, modified or
supplemented from time to time, the “Pledge Agreement”), made by
Borrower in favor of Collateral Agent for the benefit of the Secured Parties;


 


D.                                    The Obligors,
Investor, and the Company have or simultaneously herewith will enter into that
certain Equity Contribution and Purchase Agreement, dated as of
September 28, 2009 (the “Agreement”), which requires
Investor to make cash capital contributions to the Company and to purchase from
Holdings the Class B Membership Interests


 

















 


and,
in connection therewith, NHC and Investor have or simultaneously herewith will
enter into an Amended and Restated Operating Agreement of the Company, dated as
of September 28, 2009 (the “Company Operating Agreement”);


 


E.                                      The parties
anticipate that (a) Company will apply for a cash grant (the “Cash
Grant”) from the US Treasury for 30% of qualified Project Costs,
(b) the Cash Grant application will be for approximately $124,000,000, and
(c) the Cash Grant would be received prior to repayment in full of the
obligations owed under the Credit Agreement;


 


F.                                      Under the
provisions of the Company Operating Agreement, (a) certain tax benefits
generated by the Project under the Internal Revenue Code of 1986, as amended,
are to be allocated to the Class B Membership Interests (the “Tax
Benefits”) and (b) Investor will be entitled to receive 100% of the
Cash Grant;


 


G.                                     In order to
protect its investment in the Class B Membership Interests, its receipt of
the Tax Benefits and share of the Cash Grant and, indirectly, its interest in
the Project, and to preserve the cash flow to the Project produced by the
Agreement, Investor has requested, and Collateral Agent has agreed, that
Collateral Agent shall, and shall cause the other Secured Parties to, provide
the Class B Member the rights under this Agreement on and subject to the
terms and conditions set forth herein; and


 


H.                                    It is a
requirement under the Credit Agreement that Investor and the other parties
hereto shall have executed this Consent.


AGREEMENT


 


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, notwithstanding anything in the Agreement to the contrary, as follows:


 


1.                                       Consent and
Agreement. Investor and each Milford Entity:


 


a.                                       agree that
Collateral Agent shall have the right (but not the obligation) upon occurrence
and continuation of an Event of Default to make all demands, give all notices,
take all actions and exercise all rights of the Obligors under the Agreement
(including any certificates that must be delivered by an officer of an
Obligor), and agrees to accept any such demands, notices, actions and
exercises; provided, however, that, insofar as Collateral
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 Collateral Agent to the same extent as to the applicable
Obligor;


 


b.                                      agree not to
(i) cancel or terminate the Agreement or suspend performance of its
obligations thereunder, except as provided in the Agreement (including with
respect to any date specific condition precedent in the Agreement) or by
operation of law and, in any event, except in accordance with Section 4
of this Consent; (ii) consent to or accept any cancellation or termination
of the Agreement by the Obligors or the Company without the prior


 


2

















 


written
consent of the Collateral Agent, except as provided in the Agreement and in
accordance with Section 4 of this Consent; or (iii) prior to
the Second Equity Capital Contribution (as such term is defined in the
Agreement), 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 Collateral Agent;


 


c.                                       agree not to
amend, supplement or modify the Agreement or the Company Operating Agreement in
any material respect, without the prior written consent of Collateral Agent
(such consent not to be unreasonably withheld or delayed) other than a waiver
by Investor of any condition precedent that is for Investor’s benefit in which
case no such consent shall be required;


 


d.                                      agree to
promptly deliver to Collateral Agent duplicates or copies of all notices of or
with respect to default, failure to reach conditions, suspension or termination
delivered under or pursuant to the Agreement;


 


2.                                       The Obligors’
Acknowledgement. The Obligors acknowledge and agree that Investor
is permitted to perform its obligations under the Agreement upon Collateral
Agent’s exercise of the Obligors’ rights in accordance with this Consent, and
that Investor shall bear no liability to the Milford Entities solely as a
result of performing its obligations under the Agreement upon such exercise by
Collateral Agent.


 


3.                                       Subsequent
Transferee. Investor agrees that if Collateral Agent shall
notify Investor in writing that Collateral Agent has elected to exercise its
rights and remedies with respect to foreclosure (whether judicial or
nonjudicial) or sale under the Security Agreement or Pledge Agreement, then any
purchaser, successor, assignee or designee (as the case may be, in each case, a
“Subsequent Transferee”) shall be substituted for the Collateral Agent
under this Consent.


 


4.                                       Right to Cure. In the event
of a default or breach by the Obligors in the performance of any of their
respective obligations under the Agreement, the failure by the Obligors to
satisfy any condition therein, 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
Investor to terminate the Agreement (hereinafter, a “Default”), Investor
shall not terminate the Agreement until it first gives written notice of such
Default to Collateral Agent (concurrently with the notice of such Default to
the applicable Obligor) and affords Collateral Agent (a) a period of 30
days (such 30 day period, for the avoidance of doubt, being in addition to any
cure period granted to the Borrower to cure the related Default under the
respective Agreement) from receipt of such notice to cure such Default if such
Default is the failure to pay amounts to Investor which are due and payable
under the Agreement or (b) with respect to any other Default, a reasonable
opportunity, but no more than 60 days (such 60 day period, for the avoidance of
doubt, being in addition to any cure period granted to the Obligors to cure the
related Default under the respective Agreement) from receipt of such notice, to
cure such Default (provided that during such cure period Collateral Agent or
the applicable Obligor continues to diligently attempt to cure such Default); provided, however,
that such additional cure periods shall not in any way amend or extend any date
specific condition precedent in the Agreement. Notwithstanding anything to the


 


3

















 


contrary
herein, if the Default is peculiar to the Obligors and not curable by
Collateral Agent, such as the insolvency, bankruptcy, general assignment for
the benefit of the creditors, or appointment of a receiver, trustee, custodian
or liquidator of the Obligors or their respective properties, then,
notwithstanding any right that Investor may have to terminate the Agreement,
Collateral Agent shall be entitled to assume the rights and obligations of the
Obligors under the Agreement within the cure period provided in clause
(b) above, and provided such assumption has occurred within such period,
Investor shall not be entitled to terminate the Agreement as a result of such
Default. If Collateral Agent or its successor(s), assignee(s) and/or
designee(s) is prohibited by any court order or bankruptcy or insolvency
proceedings involving the Obligors from curing the Default or from commencing
or prosecuting such proceedings, the foregoing time periods shall be extended
by the period of such prohibition; provided, however, that
such additional cure periods shall not in any way amend or extend any date
specific condition precedent in the Agreement.


 


5.                                       No Liability. Investor
acknowledges and agrees that Collateral Agent (and any successor(s),
assignee(s), designee(s) or other representative of Collateral Agent)
shall not have any liability or obligation under the Agreement as a result of
exercising its rights under this Consent, nor shall Collateral Agent (nor any
successor(s), assignee(s), designee(s) or other representative of
Collateral Agent), be obligated or required to perform any of the Obligors’
obligations under the Agreement.


 


6.                                       Payment of
Monies. So long as the Credit Agreement remains in effect, Investor hereby
agrees to make all Capital Contributions (as such term is defined in the
Agreement) required to be made by it under the Agreement in U.S. dollars and in
immediately available funds, for deposit as contemplated by Section 7
below. The Obligors hereby instruct Investor, and Investor accepts such
instructions, to make the specified payments due and payable to the Obligors or
the Company under the Agreement in accordance with Section 7 below.
All Capital Contributions required to be made by Investor under the Agreement
shall be made without any offset, recoupment, abatement, withholding, reduction
or defense whatsoever, other than those allowed by the terms of the Agreement.


 


7.                                       Covenants of
Milford Entities. The Milford Entities agree that:


 


a.                                       the proceeds of
the First Equity Capital Contribution, Second Equity Capital Contribution and
Third Equity Capital Contribution (each as defined in the Agreement) shall be
contributed from Company to Pledgor and from Pledgor to Borrower;


 


b.                                      the proceeds of
the Capital Contributions pursuant to the Agreement described in Section 7.a
shall be applied to repay the Obligations except (i) up to $2,500,000 of
the Initial Equity Capital Contribution, which shall be deposited in the
Construction Account, (ii) up to $12,000,000 of the Second Equity Capital
Contribution, which shall be deposited in the Clipper Account and (iii) up
to $15,000,000 of the Second Equity Capital Contribution, which shall be
deposited in the Liquidity Account.


 


c.                                       except as
contemplated in Section 7.d, no Milford Entity shall apply for the
Cash Grant prior to the receipt by the Borrower of the proceeds of the Second
Equity Capital Contribution and application thereof as contemplated by Section 7.b
above;


 


4














 


d.                                      if the Second
Equity Capital Contribution is not received by the Milford Entities,
contributed to the Borrower as set forth in Section 7.a and applied in
accordance with Section 7.b on or prior to
January 31, 2010, then (i) no Milford Entity other than Borrower
shall apply for the Grant, (ii) the Milford Entities shall take all steps
necessary and available to terminate and unwind the Agreement and
(iii) the Borrower shall apply for the Grant on or prior to
January 31, 2010; and


 


e.                                       failure to
comply with this Section 7 shall be an immediate Event
of Default under the Credit Agreement.


 


8.                                       Representations
and Warranties. Investor hereby represents and warrants to
the Milford Entities and Collateral Agent as of the date of this Consent that:


 


a.                                       Investor 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 Investor 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 any agreement presently in effect with respect to or
binding on Investor;


 


c.                                       All government
approvals necessary for the execution, delivery and performance by Investor 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 Investor,
enforceable against Investor 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.                                       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.                                         All conditions
and obligations to be performed by Investor under the Agreement and the Company
Operating Agreement to date have been satisfied. There is no existing default
by Investor under the Agreement or the Company Operating Agreement, and no
event has occurred which, with the passage of time or giving of notice or both,
would constitute an event of default of Investor thereunder.


 


g.                                      To the best of
Investor’s actual knowledge without investigation, the Obligors have fulfilled
all of their respective obligations under the 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
Investor to terminate the Agreement;


 


5

















 


h.                                      There is no
litigation, action, suit, proceeding or investigation pending or (to the best
of Investor’s actual knowledge without investigation) threatened against
Investor before or by any court, administrative agency, arbitrator or
governmental authority, body or agency which, if adversely determined,
individually or in the aggregate, (i) could adversely affect the
performance by Investor of its obligations hereunder or under the Agreement,
(ii) could have a material adverse effect on the condition (financial or
otherwise), business or operations of Investor or (iii) questions the
validity, binding effect or enforceability hereof or of the Agreement, any
action taken or to be taken pursuant hereto or thereto or any of the
transactions contemplated hereby or thereby;


 


i.                                          The Agreement
and the other agreements contemplated by the Agreement and this Consent are the
only agreements between the Milford Entities and Investor with respect to the
Project;


 


j.                                          There are no
amounts due and owing to the Investor as of the date hereof under the
Agreement;


 


k.                                       No excusable
delay has occurred or is continuing under the Agreement; and


 


1.                                       There are no
disputes or legal proceedings between Investor and the Milford Entities.


 


9.                                       Cash Grant. From and
after (a) the Second Equity Capital Contribution and (b) the
contribution of the proceeds of the Initial Equity Capital Contribution and the
Second Equity Capital Contribution in accordance with Section 7.a,
and notwithstanding anything else in this Agreement or the Credit Documents
(including the Pledge Agreement and the Security Agreement) to the contrary and
notwithstanding whether any Bankruptcy Event has occurred with respect to
Borrower, Company or any other Milford Entity: (1) Collateral Agent agrees
solely for the benefit of Investor, that Collateral Agent shall not, and shall
cause each other Secured Party to not exercise any of its remedies under the
Pledge Agreement and the Security Agreement with respect to the Cash Grant,
including without limitation seizing or holding the Cash Grant or preventing
the distribution of the Cash Grant to Investor, whether or not the Cash Grant
is deposited in any Account or is commingled with any other cash of Borrower,
Company or any other Milford Entity and (2) to the extent that Collateral
Agent or any of the Secured Parties are in control of Borrower or any
Bankruptcy Event has occurred with respect to Borrower, Company or any Milford
Entity, Collateral Agent agrees for itself and on behalf of the Secured Parties
to use all commercially reasonable efforts to cause the Cash Grant to be
distributed to Investor, including without limitation, proposing or consenting
to an order to the use of cash collateral for the purpose of making the
distribution of the Cash Grant to Investor.


 


10.                                 Cure of Certain
Defaults by Investor; Purchase Option. From and after the date
hereof, the Collateral Agent agrees solely for the benefit of the Investor that
the Collateral Agent shall provide the Investor with copies of any notice of
Default, Event of Default or acceleration delivered under the Credit Documents.
In addition, during the continuance of a Default or Event of Default, the
Investor shall have the right (but not the obligation):


 


6

















 


a.                                       to cure any
default by Borrower or any other party under the Credit Documents so long as
(i) the Investor provides Collateral Agent written notice of Investor’s
intent to do so not later than 10 days after Collateral Agent provides Investor
a notice of acceleration with respect to any such default that has become an
Event of Default and (ii) Investor cures the Event of Default underlying
such notice of acceleration (A) within five days with respect to an Event
of Default resulting from failure to make payments when due (other than any
payments accelerated as a results of the notice of acceleration) or
(B) within 30 days with respect to other types of Events of Default (provided,
that if (X) such Event of Default cannot be cured within such 30 day
period, (Y) such Event of Default is susceptible of cure within 90 days
and (Z) the Investor is proceeding with diligence and in good faith to
cure such Event of Default, then such 30 day cure period shall be extended to
such date, not to exceed a total of 90 days, as shall be necessary for Investor
to cure such Event of Default); and


 


b.                                      to purchase, or
designate its affiliate to purchase, at par (not including any default
interest) all, but not less than all, of the outstanding Obligations of the
Company owing to the Secured Parties; provided that nothing shall limit
the right of the Lenders to otherwise sell all or any portion of the
outstanding Obligations.


 


Nothing
in this Section 10 shall restrict Collateral Agent from exercising
its remedies under the Credit Documents.


 


11.                                 Notices. Any
communications between the parties hereto or notices


provided
herein to be given, may be given to the following addresses:


 


	
  If
  to Investor:

  	
   

  	
  Stanton
  Equity Trading Delaware LLC

  11
  Madison Avenue

  New
  York, New York 10010

  *****

   

  With
  a copy to:

   

  Credit
  Suisse Securities (USA) LLC

  11
  Madison Avenue

  New
  York, New York 10010

  *****

  



 


7

















 


	
  If
  to Collateral Agent:

  	
   

  	
  The
  Royal Bank of Scotland plc,

  RBS
  Global Banking & Markets

  600
  Washington Boulevard, Level 9

  Stamford,
  CT 06901

  Attention:
  Robert McClorey, Vice President

  Telephone:
  (203) 897-1408

  Fax:
  (203) 873-3364

  Email:
  Robert.McClorey@rbs.com

  
	
   

  	
   

  	
   

  
	
  If
  to the Milford Entities:

  	
   

  	
  c/o
  First Wind Energy, LLC

  85
  Wells Avenue, Suite 305

  Newton,
  MA 02459

  Attention:
  President

  Fax:
  (617) 964-3342

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with
  a copy to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  c/o
  First Wind Energy, LLC

  85Wells
  Avenue, Suite 305

  Newton,
  MA 02459

  Attention:
  General Counsel

  Fax:
  (617) 964-3342

  



 


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.


 


12.                                 Binding Effect;
Amendments; Confirmation. This Consent shall be binding upon and
benefit the successors and assigns of Investor, the Milford Entities and
Collateral Agent and their respective successors, transferees and permitted
assigns (including without limitation, any entity that refinances all or any
portion of the Milford Entities’s obligations under the Credit Agreement). No
termination, amendment, variation or waiver of any provisions of this Consent
shall be effective unless in writing and signed by Investor, Collateral Agent
and the Milford Entities; provided that all rights and obligations of
Collateral Agent hereunder shall terminate upon the indefeasible payment in
full of all obligations of the Borrower under the Credit Agreement.


 


8

















 


13.                                 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). INVESTOR,
MILFORD ENTITIES, AND COLLATERAL 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, MILFORD
ENTITIES AND COLLATERAL 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 INVESTOR, MILFORD ENTITIES AND COLLATERAL
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.


 


14.                                 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.


 


15.                                 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.


 


16.                                 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]


 


9

















 


IN
WITNESS WHEREOF. the undersigned, by its officer thereunto duly authorized, has
duly executed this Consent as of the date first above written.


 


 


	
   

  	
  STANTON
  EQUITY TRADING DELAWARE LLC,

  
	
   

  	
  a
  Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jerry L. Smith

  
	
   

  	
   

  	
  Name:
  Jerry L. Smith

  
	
   

  	
   

  	
  Title:
  President

  



 


S-1

















 


	
   

  	
  MILFORD
  WIND HOLDINGS, LLC,

  
	
   

  	
  a
  Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Robert S. Schaner

  
	
   

  	
   

  	
  Name:
  Robert S. Schaner

  
	
   

  	
   

  	
  Title:
  Assistant Treasurer

  
	
   

  	
   

  
	
   

  	
  MILFORD
  NHC, LLC,

  
	
   

  	
  a
  Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Robert S. Schaner

  
	
   

  	
   

  	
  Name:
  Robert S. Schaner

  
	
   

  	
   

  	
  Title:
  Assistant Treasurer

  
	
   

  	
   

  
	
   

  	
  MILFORD
  WIND PARTNERS, LLC,

  
	
   

  	
  a
  Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael Metzner

  
	
   

  	
   

  	
  Name:
  Michael Metzner

  
	
   

  	
   

  	
  Title:
  Treasurer

  
	
   

  	
   

  
	
   

  	
  MWCI
  HOLDINGS, LLC,

  
	
   

  	
  a
  Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Robert S. Schaner

  
	
   

  	
   

  	
  Name:
  Robert S. Schaner

  
	
   

  	
   

  	
  Title:
  Assistant Treasurer

  
	
   

  	
   

  
	
   

  	
  MILFORD
  WIND CORRIDOR PHASE I, LLC,

  
	
   

  	
  a
  Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Robert S. Schaner

  
	
   

  	
   

  	
  Name:
  Robert S. Schaner

  
	
   

  	
   

  	
  Title:
  Assistant Treasurer

  



 


S-2

















 


	
   

  	
  THE
  ROYAL BANK OF SCOTLAND PLC,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Simon Mockford

  
	
   

  	
   

  	
  Name:
  Simon Mockford

  
	
   

  	
   

  	
  Title:
  Managing Director

  



 


S-3














 


Schedule
3.1(e) to Equity Contribution and Purchase Agreement


 


Membership Interests


 


	
  Milford NHC, LLC

  	
   

  	
  100% of the Class A Membership Interests, comprising in the
  aggregate 95% of the issued and outstanding Membership Interests in the
  Company

  
	
   

  	
   

  	
   

  
	
  Milford Wind Holdings, LLC

  	
   

  	
  100% of the Class B Membership Interests, comprising in the
  aggregate 5% of the issued and outstanding Membership Interests in the
  Company

  



 

















 


Schedule 3.1(p) to Equity Contribution and Purchase Agreement


 


Real Property


 


1.             Amended and
Restated Special Use Lease Agreement No. 1599A between the State of Utah
acting by and through the School and Institutional Trust Lands Administration (“SITLA”) as Lessor, and
Milford Wind Corridor Phase I, LLC (the “Project Company”) as Lessee,
effective as of April 22, 2009. An Amended and Restated Memorandum of
Lease between SITLA and the Project Company was recorded on April 23,
2009, as Entry No. 239580, in Book 434 at Page 237 of official
records of Beaver County;


 


2.             Amended and
Restated Land Lease Agreement, between Circle Four LLC, a Delaware limited
liability company (“Circle Four”), as Lessor and the Project
Company, effective as of February 22, 2007 and executed as of
April 22, 2009. An Amended and Restated Memorandum of Lease was recorded
April 23, 2009, as Entry No. 239581, in Book 434, at Page 245 of
official records of Beaver County;


 


3.             Land Lease
Agreement, dated August 22, 2008, between Quick Financial
Management, Inc., a Nevada corporation as Lessor, and the Project Company
as Lessee. A Memorandum of Lease was recorded on October 21, 2008 as Entry
No. 238180, in Book 428, at Page 823 in official records, Beaver
County;


 


4.             Land Lease
Agreement, dated September 23, 2008, between Victor Esworthy, as Lessor
and the Project Company as Lessee. A Memorandum of Lease was recorded on
October 21, 2008 as Entry No. 238179, in Book 428, at Page 819
in official records, Beaver County;


 


5.             Land Lease
Agreement, dated May 14, 2008, between Unitarian Universalist Service
Committee, Inc., a Massachusetts not-for-profit corporation also known as
Unitarian Universalist Service Committee, as Lessor, and the Project Company as
Lessee as amended by that certain First Amendment to Land Lease, dated
May 14, 2008. A Memorandum of Lease was recorded on May 23, 2008 as
Entry No. 236658, in Book 422, at Page 209 in official records,
Beaver County, Utah. A First Amendment to Memorandum of Lease Agreement was
recorded on October 21, 2008, as Entry No. 238181, in Book 428, at
Page 827 in official records, Beaver County;


 


6.             Land Lease
Agreement, dated April 14, 2008, between Neil M. Bradshaw, as Lessor, and
the Project Company as Lessee. A Memorandum of Lease was recorded on
May 7, 2008 as Entry No. 2236548, in Book 421, at Page 669 in
official records, Beaver County;


 


7.             Land Lease,
dated August 22, 2007, between Scott J. Yardley, as Lessor and the Project
Company as Lessee. A Memorandum of Lease was recorded September 19, 2007,
as Entry No. 233722, in Book 412, at Page 456 in official records,
Beaver County;


 


1

















 


8.             Land Lease
Agreement, dated February 19, 2008, between A. Darrell Yardley and Geneal
G. Yardley, trustees or successor trustees of the Yardley Family Trust, as
Lessor, and the Project Company as Lessee. A Memorandum of Lease was recorded
on March 14, 2008 as Entry No. 236099, in Book 419, at Page 789
in official records, Beaver County;


 


9.             Lease, dated
April 22, 2009, by and between Milford Wind Corridor, LLC, as Lessor, and
the Project Company, as Lessee. A Memorandum of Lease was recorded on
April 23, 2009, as Entry No. 239582, in Book 434, at Page 255 of
official records of Beaver County;


 


10.           Storage Lease-Agreement, dated May 19, 2008,
between Michael L. Palmer and Carol C. Palmer, as Lessor, and the Project Company,
as Lessee, as amended by that certain First Amendment to Storage
Lease-Agreement dated March 30, 2009. A Memorandum of Lease was recorded
April 23, 2009, as Entry No. 00169400, in Book 502, at Page 046
of official records of Millard County;


 


11.           Storage and Staging Lease Agreement, by and between
Philippe Handschin, Enzo Battaglieri, and Stesen Gsell, as Lessor, and the
Project Company, as Lessee, dated May 23, 2008, as amended by that certain
Extension Agreement for Storage and Staging Lease Agreement through and
including June 30, 2010. A Memorandum of Lease was recorded April 23,
2009, as Entry No. 00169399, in Book 502, at Page 041 of official
records of Millard County;


 


12.           Grant of Easements, dated June 27, 2008, by and
between William Do, Ly Huong Tong, and Nhem Tong as Grantors, and the Project
Company as Grantee, recorded July 9, 2008, as Entry No. 00166571, in
Book 490 at Page 029 of official records of Millard County;


 


13.           Grant of Easements, dated July 23, 2008, by and
between Jesse S. Brown as Grantor and the Project Company as Grantee, recorded
August 8, 2008 as Entry No. 0166889, in Book 491 at Page 368 of
official records of Millard County;


 


14.           Grant of Easements, dated August 6, 2008, by
and between L B Ranch as Grantor and the Project Company as Grantee, recorded
August 28, 2008, as Entry No. 00167100, in Book 492, at Page 185
of official records of Millard County;


 


15.           Grant of Easements, dated August 6, 2008, by
and between Nancy Barney as Grantor and the Project Company as Grantee, recorded
August 28, 2008, as Entry No. 00167101, in Book 492, at Page 193
of official records of Millard County;


 


16.           Grant of Easements, dated August 7, 2008, by
and between Duva Properties, Ltd. as Grantor and the Project Company as
Grantee, recorded August 28, 2008 as Entry No. 00167102, in Book 492,
at Page 201 of official records of Millard County;


 


17.           Grant of Easements, dated August 7, 2008, by
and between Lloyd C. Carter as Grantor and the Project Company as Grantee,
recorded August 28, 2008, as Entry No. 00167103, in Book 492, at
Page 209 of official records of Millard County;


 


2

















 


18.           Grant of Easements, dated August 21, 2008, by
and between Delta Egg Farm, LLC as Grantor and the Project Company as Grantee,
recorded August 28, 2008, as Entry No. 00167104, in Book 492, at
Page 217 of official records of Millard County;


 


19.           Grant of Easements, dated July 28, 2008, by and
between Russell S. Harris as Grantor and the Project Company as Grantee,
recorded September 3, 2008, as Entry No. 00167176, in Book 492, at
Page 426 of official records of Millard County;


 


20.           Grant of Easements, dated August 2008, by and
between Marceline Ann Treat Wolfe and Barbara Aviani as Grantors and the
Project Company as Grantee, recorded September 3, 2008, as Entry
No. 00167177, in Book 492, at Page 435 of official records of Millard
County;


 


21.           Amended and Restated Grant of Easements, dated
April 20, 2009, by and between Shaun Pearson as Grantor and the Project
Company as Grantee, recorded April 23, 2009, as Entry No. 169401, in
Book 502, at Page 054 of official records of Millard County;


 


22.           Grant of Easements, dated August 26, 2008, by
and between Russell Warthen and Gail Warthen as Grantors and the Project
Company as Grantee, recorded September 26, 2008, as Entry
No. 00167365, in Book 493, at Page 242 of official records of Millard
County;


 


23.           Grant of Easements, dated August 26, 2008, by
and between Russell Warthen and Gail Warthen as Grantors and the Project
Company as Grantee, recorded September 26, 2008, as Entry
No. 00167367, in Book 493, at Page 261 of official records of Millard
County;


 


24.           Grant of Easements, by and between G. Kay Inc., and
Kia Fadel Hodgson, Kristen L. Fadel, Douglas K. Fadel, and Kara Fadel Burnett,
as trustees of Rock Manor Trust as Grantor and the Project Company as Grantee,
recorded September 26, 2008, as Entry No. 00167366, in Book 493, at
Page 250 of official records of Millard County;


 


25.           Grant of Easements, dated September 6, 2008, by
and between Charles W.P. McNeal as Grantor and the Project Company as Grantee,
recorded October 21, 2008, as Entry No. 00167666, in Book 494, at
Page 448 of official records of Millard County;


 


26.           Grant of Easements, dated September 22, 2008,
by and between Jetta Robinson and Shaun Pearson, as successor trustees of the
Ralph W. Pearson Family Living Trust dated March 19, 1996 as Grantor and
the Project Company as Grantee, recorded October 21, 2008, as Entry
No. 238178, in Book 428, at Page 812 of official records of Beaver
County;


 


27.           Grant of Easements, dated October 17, 2008, by
and between Robert Neil Smyth and Melene B. Smyth as Grantor and the Project
Company as Grantee, recorded October 24, 2008, as Entry No. 238213,
in Book 429, at Page 99 of official records of Beaver County;


 


28.           Permanent Nonexclusive
Easement Agreement, dated October 2008, by and between Intermountain Power
Agency, a political subdivision of the State of Utah and the Project Company,
recorded February 10, 2009, as Entry No. 00168678, in Book 498, at
Page 329 of official records of Millard County;


 


3














 


29.           Grant of Easements, dated February 23, 2009, by
and between KMJA, LLC, a Utah limited liability company as Grantor and the
Project Company as Grantee, recorded February 26, 2009, as Entry
No. 00168824, in Book 499, at Page 093 of official records of Millard
County;


 


30.           Easement No. 1280, by and between SITLA as
Grantor and the Project Company as Grantee, dated October 2008, recorded
February 26, 2009, as Entry No. 00168809, in Book 499, at
Page 28 of official records of Millard County, and recorded March 2,
2009, as Entry No. 239159, in Book 432, at Page 536 of official
records of Beaver County;


 


31.           Right-of-Way Grant/Temporary Use Permit Serial
Number UTU-82972, dated effective as of April 13, 2009, by and between
United Stated Department of Interior Bureau of Land Management (“US BLM”)
and the Project Company, recorded April 23, 2009, as Entry
No. 00169394, in Book 501, at Page 883 of official records of Millard
County and recorded April 23, 2009, as Entry 239576, in Book 434, at
Page 155 of official records of Beaver County;


 


32.           Right-of-Way Grant/Temporary Use Permit Serial
Number UTU-82973, dated effective as of April 13, 2009, by and between US
BLM and the Project Company, recorded April 23, 2009, as Entry
No. 00169395, in Book 501, at Page 893 of official records of Millard
County, and recorded April 23, 2009, as Entry No. 239577, in Book
434, at Page 163 of official records of Beaver County;


 


33.           Right-of-Way Grant/Temporary Use Permit Serial
Number UTU-82973-01, by and between US BLM and the Project Company, dated
effective as of April 13, 2009, recorded April 23, 2009, as Entry
No. 00169396, in Book 502, at Page 001 of official records of Millard
County, and recorded April 23, 2009, as Entry No. 239578, in Book 434,
at Page 192 of official records of Beaver County;


 


34.           Millard County Planning and Zoning Commission
Conditional Use Permit No. Z-2008-012, dated September 5, 2008, and
recorded December 23, 2008 as Entry No. 00168212, in Book 496, at
Page 572 of official records of Millard County;


 


35.           Beaver County Conditional Use Permit
No. 2006-06, Amended, dated March 16, 2009;


 


36.           Right of Entry Agreement No. 5193, dated
June 27, 2008, between State of Utah through SITLA as Permittor, and the
Project Company as Permittee, as amended by that certain Amendment No. 1
to Right of Entry dated April 22, 2009. A Memorandum of Right of Entry was
recorded April 23, 2009, as Entry No. 00169397, in Book 502, at
Page 029 of official records of Millard County;


 


37.           Right-of-Way Notice to Proceed authorized by US BLM
to the Project Company as Holder, dated April 13, 2009;


 


38.           Wireline Crossing Agreement, dated July 31,
2008, by and between Union Pacific Railroad Company, a Delaware corporation, as
Licensor, and the Project Company as Licensee;


 


4

















 


39.           Water Right Lease Agreement, between Circle Four as
Lessor and the Project Company as Lessee, effective as of September 25,
2008. An Order of the Utah State Engineer for Temporary Change Application
No. 71-3222 (t34873) was approved October 2, 2008;


 


40.           Amended and Restated Water Right Lease Agreement,
between Circle Four as Lessor and the Project Company as Lessee, effective as
of September 25, 2008 and executed as of April 22, 2009. A Memorandum
of Lease was recorded April 23, 2009, as Entry No. 00169398, in Book
502, at Page 035 of official records of Millard County;


 


41.           Water Right Lease Agreement, between Circle Four as
Lessor and the Project Company as Lessee, effective as of June 1, 2009 and
executed as of June 1, 2009. An Order of the Utah State Engineer for
Temporary Change Application No. 71-3222 (t35616) was approved
June 1, 2009;


 


42.           Water Right Lease Agreement, between Circle Four as
Lessor and the Project Company as Lessee, effective as of September 2,
2009 and executed as of September 2, 2009. An Order of the Utah State
Engineer for Temporary Change Application No. 71-3222 (t35858) was
approved August 27, 2009;


 


43.           Fee simple interest in land conveyed to Project
Company via General Warranty Deed dated October 23, 2008, recorded
December 22, 2008, as Entry No. 238608, in Book 430, at Page 442
of official records of Beaver County.


 


5

















 


Schedule 3.1(u) to Equity Contribution and
Purchase Agreement


 


Material Contracts


 


1.             Generator
Interconnection Agreement, dated as of May 7, 2008, between Intermountain
Power Agency and Milford Wind Corridor Phase I, LLC (the “Project
Company”);


 


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


 


3.             Power Purchase Agreement,
dated as of March 16, 2007, by and between Southern California Public
Power Authority and the Project Company, as amended by that certain First
Amendment to Power Purchase Agreement, dated as of January 16, 2009;


 


4.             General
Services Agreement, dated as of April 22, 2009, between First Wind Energy
and Power Engineers, Incorporated, an Idaho corporation, as assigned to the
Project Company pursuant to the Assignment and Assumption Agreement between
First Wind Energy and the Project Company, dated as of April 22, 2009;


 


5.             Balance of
Plant Construction Contract, dated as of March 18, 2009, between
RMT, Inc., a Wisconsin corporation, and the Project Company, as amended by
Change Order No. FW-CO001, dated April 14, 2009, as further amended
by Change Order No. FW-CO002, dated May 13, 2009, as further amended
by Change Order No. FW-CO003, dated June 18, 2009 and as further
amended by Change Order No. FW-CO004, dated June 18, 2009;


 


6.             ABB Switchyard
Construction and Installation Agreement, dated as of February 29, 2008,
between the Project Company and ABB, Inc., a Delaware corporation , as
amended by Change Order No. 1, dated as of April 17, 2009, as amended
by Change Order No. 2, dated as of July 29, 2009, and as amended by
Change Order No. 3, dated as of August 17, 2009;


 


7.             Motor Carrier
Agreement, dated as of December 10, 2008, between the Project Company and
ATS Specialized, Inc., d/b/a ATS Wind Energy Services, a Minnesota
corporation, as amended by Amendment, dated as of February 4, 2009 and as
further amended by Amendment No. 2, dated as of February 10, 2009, as
further amended by Amendment No. 3 dated as of June 18, 2009, and as
further amended by Amendment No. 4, dated as of September 10, 2009;


 


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8.             Project O&M
Agreement, dated as of April 22, 2009, between the Project Company and
First Wind O & M, LLC (“First Wind O &
M”);


 


9.             Operations
Support Agreement, dated as of March 15, 2009, between the Project Company
and General Electric International Inc., a Delaware corporation;


 


10.           Amended and Restated Turbine Operation, Maintenance
and Service Agreement, between First Wind O & M and Clipper Fleet
Services, Inc., a Delaware corporation, as amended by Amendment No. 1
to Amended and Restated Turbine Operation, Maintenance and Service Agreement,
dated as of April 22, 2009, as assigned to the Project Company pursuant to
the Assignment and Assumption Agreement, dated as of April 22, 2009,
between First Wind O & M and the Project Company;


 


11.           Amended & Restated Turbine Supply
Agreement, between First Wind Acquisition IV, LLC, a Delaware limited liability
company (“FWA IV”), and Clipper Turbine
Works, Inc., a Delaware corporation (“Clipper Turbine”), dated as of
December 31, 2007, as amended by Amendment No. 1 to Amended and
Restated Turbine Supply Agreement and Amended and Restated Warranty Agreement,
dated as of December 30, 2008, and as further amended by Amendment
No. 2 to Amended and Restated Turbine Supply Agreement and Amended and Restated
Warranty Agreement, dated as of April 22, 2009, as assigned to the Project
Company pursuant to the Assignment and Assumption Agreement, dated as of
April 22, 2009, between FWA IV and the Project Company;


 


12.           Amended & Restated Warranty Agreement,
between FWA IV and Clipper Turbine, dated as of December 31, 2007, as
amended by Amendment No. 1 to Amended and Restated Turbine Supply
Agreement and Amended and Restated Warranty Agreement, dated as of
December 30, 2008 and as further amended by Amendment No. 2 to
Amended and Restated Turbine Supply Agreement and Amended and Restated Warranty
Agreement, dated as of April 22, 2009, as assigned to the Project Company
pursuant to the Assignment and Assumption Agreement, dated as of April 22,
2009, between FWA IV and the Project Company;


 


13.           Contract for the Sale of Power Generation Equipment
and Related Services (2008 XLE Turbines), between General Electric Company, a
New York corporation (“GE”), and First Wind Acquisition LLC, a Delaware
limited liability company, dated as of September 20, 2007, as amended by
that External Change Order No. 1 dated April 18, 2008, as amended by
that Change Order No. A, dated July 3, 2008, as further amended by
that External Change Order No. 2 dated February 27, 2009, as assigned
to the Project Company pursuant to the Assignment and Assumption Agreement,
dated as of April 22, 2009, between FWA and the Project Company, as
further amended by that External Change Order No. 3 dated June 1,
2009, as further amended by that External Change Order No. 4 dated
June 1, 2009, and as further amended by that External Change Order
No. 5 dated August 21, 2009;


 


14.           Equipment Purchase Agreement, dated as of
May 15, 2008, between the Project Company and Alcan Cable, a division of
Alcan Products Corporation, a Texas corporation;


 


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15.           Equipment Purchase Agreement (Transformers), between
the Project Company and AREVA T&D Inc., a New York corporation (“AREVA”),
dated as of November 3, 2008 and effective as of December 3, 2007, as
amended by Change Order No. 001, dated as of February 6, 2009;


 


16.           Equipment Purchase Agreement (Breakers), between the
Project Company and AREVA, dated as of December 19, 2008 and effective as
of March 21, 2008;


 


17.           Equipment Purchase Agreement, dated as of
April 2, 2008, between the Project Company and Thomas & Betts
Corporation, a Tennessee corporation;


 


18.           Equipment Purchase Agreement, dated
November 26, 2008, between the Project Company and Wind Turbine and Energy
Cables Corp, a New Jersey corporation;


 


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


 


20.           Amended and Restated Special Use Lease Agreement
No. 1599A between the State of Utah acting by and through the School and
Institutional Trust Lands Administration (“SITLA”) as Lessor, and
Milford Wind Corridor Phase I, LLC (the “Project Company”) as Lessee,
effective as of April 22, 2009. An Amended and Restated Memorandum of
Lease between SITLA and the Project Company was recorded on April 23,
2009, as Entry No. 239580, in Book 434 at Page 237 of official
records of Beaver County;


 


21.           Amended and Restated Land Lease Agreement, between
Circle Four LLC, a Delaware limited liability company (“Circle Four”),
as Lessor and the Project Company, effective as of February 22, 2007 and
executed as of April 22, 2009. An Amended and Restated Memorandum of Lease
was recorded April 23, 2009, as Entry No. 239581, in Book 434, at
Page 245 of official records of Beaver County;


 


22.           Amended and Restated Water Right Lease Agreement,
between Circle Four as Lessor and the Project Company as Lessee, effective as
of September 25, 2008 and executed as of April 22, 2009. A Memorandum
of Lease was recorded April 23, 2009, as Entry No. 00169398, in Book
502, at Page 035 of official records of Millard County;


 


23.           Land Lease Agreement, dated August 22, 2008,
between Quick Financial Management Group, Inc., a Nevada corporation as
Lessor, and the Project Company as Lessee. A Memorandum of Lease was recorded
on October 21, 2008 as Entry No. 238180, in Book 428, at
Page 823 in official records, Beaver County;


 


24.           Land Lease Agreement, dated September 23, 2008,
between Victor Esworthy, as Lessor and the Project Company as Lessee. A
Memorandum of Lease was recorded on October 21, 2008 as Entry
No. 238179, in Book 428, at Page 819 in official records, Beaver
County;


 


25.           Land Lease Agreement, dated May 14, 2008,
between Unitarian Universalist Service Committee, Inc., a Massachusetts
not-for-profit corporation also known as Unitarian Universalist Service
Committee, as Lessor, and the Project Company as Lessee as


 


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amended
by that certain First Amendment to Land Lease, dated May 14, 2008. A
Memorandum of Lease was recorded on May 23, 2008 as Entry No. 236658,
in Book 422, at Page 209 in official records, Beaver County, Utah. A First
Amendment to Memorandum of Lease Agreement was recorded on October 21,
2008, as Entry No. 238181, in Book 428, at Page 827 in official
records, Beaver County;


 


26.           Land Lease Agreement, dated April 14, 2008,
between Neil M. Bradshaw, as Lessor, and the Project Company as Lessee. A
Memorandum of Lease was recorded on May 7, 2008 as Entry No. 236548,
in Book 421, at Page 669 in official records, Beaver County;


 


27.           Land Lease, dated August 22, 2007, between
Scott J. Yardley, as Lessor and the Project Company as Lessee. A Memorandum of
Lease was recorded September 19, 2007, as Entry No. 233722, in Book
412, at Page 456 in official records, Beaver County;


 


28.           Land Lease Agreement, dated February 19, 2008,
between A. Darrell Yardley and General G. Yardley, trustees or successor
trustees of the Yardley Family Trust, as Lessor, and the Project Company as
Lessee. A Memorandum of Lease was recorded on March 14, 2008 as Entry
No. 236099, in Book 419, at Page 789 in official records, Beaver
County;


 


29.           Lease, dated April 22, 2009, by and between
Milford Wind Corridor, LLC, as Lessor, and the Project Company, as Lessee. A
Memorandum of Lease was recorded on April 23, 2009, as Entry
No. 239582, in Book 434, at Page 255 of official records of Beaver
County;


 


30.           Right-of-Way Grant/Temporary Use Permit Serial
Number UTU-82972, dated effective as of April 13, 2009, by and between
United Stated Department of Interior Bureau of Land Management and the Project
Company, recorded April 23, 2009, as Entry No. 00169394, in Book 501,
at Page 883 of official records of Millard County and recorded
April 23, 2009, as Entry 239576, in Book 434, at Page 155 of official
records of Beaver County.


 


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Schedule 3.1(x) to Equity Contribution and
Purchase Agreement


 


Affiliate Transactions


 


Terms
used but not defined herein are as defined in the Contribution Agreement.


 


1.             Project O&M
Agreement, dated as of April 22, 2009, between the Project Company and
First Wind O & M, LLC;


 


2.             The
Administrative Services Agreement;


 


3.             Lease, dated
April 22, 2009, by and between Milford Wind Corridor, LLC, as Lessor, and
the Project Company, as Lessee; and


 


4.             The Management
Services Agreement to be executed upon the Initial Closing Date in
substantially the form of Exhibit C hereto.


 


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