Exhibit 10.4


 


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.


 


AMENDMENT
NO. 2


 


TO


 


AMENDED AND
RESTATED TURBINE SUPPLY AGREEMENT


 


and


 


AMENDED AND
RESTATED WARRANTY AGREEMENT


 


This
AMENDMENT NO. 2 TO AMENDED AND RESTATED TURBINE SUPPLY AGREEMENT and AMENDED
AND RESTATED WARRANTY AGREEMENT (the “Amendment”) is entered into and effective
as of April 22, 2009, by and between CLIPPER TURBINE WORKS, INC., a
Delaware corporation (“Supplier”), and FIRST WIND ACQUISITION IV, LLC, a
Delaware limited liability company, with a place of business c/o First Wind
Energy, LLC, 85 Wells Ave., Suite 305, Newton, MA 02459 (“Purchaser”).


 


RECITALS


 


A.  Purchaser and Supplier are parties to an Amended and Restated
Turbine Supply Agreement dated as of December 31, 2007 (as amended from
time to time, the “Turbine Supply Agreement”).


 


B.   Purchaser and Supplier are parties to an Amended and Restated
Warranty Agreement dated as of December 31, 2007 (as amended from time to
time, the “Warranty Agreement”, and together with the Turbine Supply Agreement,
the “Milford Agreements”).


 


C.    At Purchaser’s request, Supplier has re-routed twenty two (22)
Towers it was obligated to deliver under the Turbine Supply Agreement to the
Port of San Diego from the original destination of the Port of Houston, making
it necessary to increase the Purchase Price by $*****.


 


D.    The parties hereto desire to amend the Milford Agreements, all on
the terms and subject to the conditions of this Amendment.


 


NOW, THEREFORE, for good and
valuable consideration, the receipt and adequacy of which is hereby acknowledged,
Supplier and Purchaser, intending to be legally bound, hereby agree as follows:


 

















 


AGREEMENT


 


1.    Definitions.
Capitalized terms used but not defined in this Amendment shall have the
meanings assigned to such terms in the Turbine Supply Agreement.


 


2.    Agreements
and Amendments.


 


a.   Exhibits Bl and B2 to the Turbine Supply Agreement are hereby
deleted and replaced in full with the new Exhibits Bl and B2 attached hereto on
Schedule I.


 


b.   Exhibit L to the Turbine Supply Agreement is hereby deleted
and replaced in full with the new Exhibit L attached hereto on Schedule
II.


 


c.   The Recitals to the Turbine Supply Agreement are hereby deleted in
their entirety and replaced in full as follows:


 


“WHEREAS, the Parties
entered into a Turbine Supply Agreement dated as of October 18, 2006
pursuant to which Supplier was to sell and Purchaser was to purchase eighty
(80) Clipper Windpower 2.5 MW “C-99” series wind turbines (the “Original
Agreement”).


 


WHEREAS, the Parties have
agreed to amend and restate the Original Agreement as provided herein, and to (i) enter
into a separate turbine supply agreement for the purchase and sale of sixteen
(16) Clipper Windpower 2.5 MW “C-96” series wind turbines and (ii) enter
into a separate turbine supply agreement for the purchase and sale of six (6) Clipper
Windpower 2.5 MW wind turbines.


 


WHEREAS, Purchaser desires
to purchase, and Supplier desires to sell fifty eight (58) Clipper Windpower
2.5 MW “C-99” series wind turbine generators (each a “Turbine” and
collectively, the “Turbines”), each consisting of the major Turbine Components
and Ancillary Parts and Equipment (as set forth in Exhibit A
hereto). Additionally, Purchaser, in connection with its purchase of the
Turbines, desires to purchase and Supplier desires to provide the Commissioning
Work (as defined in Appendix I hereto), all on the terms and subject to
the conditions set forth herein.


 


WHEREAS, Purchaser shall
incorporate the Turbines into a 203.5 MW wind power project being developed by
Purchaser located in Milford, Utah (the “Project”).


 


NOW, THEREFORE, for good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, Supplier and Purchaser, intending to be legally bound, hereby
agree as follows:”


 


d.   Notwithstanding anything to the contrary in Section 6.11
of the Warranty Agreement or Section 2.1.2 (c) of the Turbine
Supply Agreement, the Parties hereby agree that, subject to completion of
applicable escrow documentation and the acceptance of such materials by the
Escrow Agent, within thirty (30) days of the date hereof, Supplier shall place
into escrow with the Escrow Agent, the ***** (as


 

















 


defined
in the Warranty Agreement) and the Spare Parts Drawings (as defined in the
Turbine Supply Agreement).


 


e.   The first sentence of Section 3.1 of the Turbine
Supply Agreement is hereby deleted and replaced in full as follows:


 


“For the Supply Items, SCADA System and
Services, Purchaser shall pay to Supplier ***** ($*****) (the “Purchase
Price”).


 


f.    Section 3.5 of the Turbine Supply Agreement is hereby
amended by adding the following as the last sentence thereto:


 


“Upon Purchaser providing
written confirmation from the agent to the Lenders ***** for the Project, the
Parties agree that the Guaranty shall terminate and Supplier agrees to execute
and deliver to Purchaser such other instruments and agreements and take such
other action as Purchaser may reasonably request so as to more effectively
evidence the termination of the Guaranty.”


 


g.   The second Recital in the Warranty Agreement is hereby deleted and
replaced in full as follows:


 


“WHEREAS, the Parties have
agreed to amend and restate the Original Agreement to provide warranty support
for a fifty eight (58) wind turbine project as provided herein, and to (i) enter
into a separate warranty agreement to provide warranty support for another
sixteen (16) wind turbine project and (ii) enter into a separate warranty
agreement to provide warranty support for an additional six (6) wind
turbines.”


 


h.   Each Milford Agreement is hereby amended and modified as follows:


 


All references to “sixty
four (64)” wind turbines in each of the Milford Agreements are hereby deleted
and replaced in each instance with a reference to “fifty eight (58)” wind
turbines, including, without limitation, the references to such terms in all
exhibits, appendices or schedules to each of the Milford Agreements.


 


3.    Miscellaneous.


 


(a)    Each Milford Agreement as hereby amended remains in full force
and effect.


 


(b)    The terms and provisions of this Amendment shall be governed by
and construed in accordance with the laws of the State of New York, without
regard to conflicts of law principles.


 

















 


(b)    This Amendment may be executed by the Parties in one or more
counterparts, all of which taken together, shall constitute one and the same
instrument.


 


[Signature page follows]


 

















 


IN WITNESS WHEREOF, this Amendment has been
executed and delivered by the duly authorized representatives of Purchaser and
Supplier as of the date first written above.


 


 


	
  CLIPPER TURBINE WORKS, INC.,

  	
   

  
	
  a
  Delaware corporation

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Robert Gates

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
  Robert
  Gates

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
  Sr.
  Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  FIRST WIND ACQUISITION IV, LLC,

  	
   

  
	
  a
  Delaware limited liability company

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Evelyn Lim

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 

















 


Schedule I


 


Exhibit B1 (Price) and

Exhibit B2 (Payment Schedule)


 


(attached)


 














 


EXHIBIT B1


PRICING  


 


Amendment 2 Milford TSA Pricing (58 WTG)


 


	
   

  	
  Milford, UT Pricing

  	
   

  



 


	
   

  	
  $

  	
  *****

  	
   

  	
  *****

  	
   

  
	
   

  	
  $

  	
  *****

  	
   

  	
  *****

  	
   

  
	
   

  	
  $

  	
  *****

  	
   

  	
  *****

  	
   

  
	
   

  	
  $

  	
  *****

  	
   

  	
  *****

  	
   

  
	
   

  	
  $

  	
  *****

  	
   

  	
  *****

  	
   

  
	
   

  	
  *****

  	
   

  	
  *****

  	
   

  
	
   

  	
  $

  	
  *****

  	
   

  	
  *****

  	
   

  
	
   

  	
  $

  	
  *****

  	
   

  	
  *****

  	
   

  
	
   

  	
  $

  	
  *****

  	
   

  	
  *****

  	
   

  
	
   

  	
  $

  	
  *****

  	
   

  	
  Purchase
  Price

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  $

  	
  *****

  	
   

  	
  Purchase
  Price per Turbine

  	
   

  



 















 


	
  Project and Turbine Size

  	
   

  	
  # of Turbines

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Purchase price

  (thousands)

  	
   

  	
  Notes

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Amendment 2 Milford TSA (58 WTG)

  	
   

  	
  58

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  *****

  	
   

  	
   

  	
   

  
															



 


	
  Milestone

  	
   

  	
  Approximate

  Months prior to

  Delivery of first

  Major Turbine

  Component

  	
   

  	
  Payment Due Date

  	
   

  	
  % of

  Purchase

  Price

  	
   

  	
  Cumulative % of

  Purchase Price

  	
   

  	
  Payment Amount

  (thousands)

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Down Payment

  	
   

  	
   

  	
   

  	
  Already
  paid

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
  *****

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Progress Payment #1

  	
   

  	
   

  	
   

  	
  Already
  paid

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
  *****

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Progress Payment #2

  	
   

  	
  6

  	
   

  	
  Already
  paid

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
  *****

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Progress Payment #3 - *****

  	
   

  	
   

  	
   

  	
  December 30,
  2008

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
  *****

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Progress Payment #4

  	
   

  	
   

  	
   

  	
  April 17,
  2009

  	
   

  	
  *****

  	
   

  	
   

  	
   

  	
  $

  	
  *****

  	
   

  	
  *****

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Progress Payment #5 - *****

  	
   

  	
   

  	
   

  	
  July 26,
  2009

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
  *****

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  *****

  	
   

  	
   

  	
   

  	
  August 30,
  2009

  	
   

  	
  *****

  	
   

  	
  *****

  	
   

  	
  $

  	
  *****

  	
   

  	
  *****

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Total

  	
   

  	
  *****

  	
   

  	
   

  	
   

  	
  $

  	
  *****

  	
   

  	
   

  	
   

  



 






 










 


Schedule II


 


Exhibit L


Delivery Schedule


(attached)


 















 


First
Wind - Milford Component Availability Schedule - 58
Turbines


 




	
   

  	
   

  	
   

  	
   

  	
  Oct-08

  	
   

  	
  November

  	
   

  	
  December

  	
   

  	
  January

  	
   

  
	
   

  	
   

  	
  Week #

  	
   

  	
  40

  	
   

  	
  41

  	
   

  	
  42

  	
   

  	
  43

  	
   

  	
  44

  	
   

  	
  45

  	
   

  	
  46

  	
   

  	
  47

  	
   

  	
  48

  	
   

  	
  49

  	
   

  	
  50

  	
   

  	
  51

  	
   

  	
  52

  	
   

  	
  1

  	
   

  	
  2

  	
   

  	
  3

  	
   

  	
  4

  	
   

  	
  5

  	
   

  
	
   

  	
   

  	
  Date

  	
   

  	
  9/29

  	
   

  	
  10/6

  	
   

  	
  10/13

  	
   

  	
  10/20

  	
   

  	
  10/27

  	
   

  	
  11/3

  	
   

  	
  11/10

  	
   

  	
  11/17

  	
   

  	
  11/24

  	
   

  	
  11/30

  	
   

  	
  12/7

  	
   

  	
  12/14

  	
   

  	
  12/21

  	
   

  	
  12/28

  	
   

  	
  1/4

  	
   

  	
  1/11

  	
   

  	
  1/18

  	
   

  	
  1/25

  	
   

  
	
  Blade US Arrival dates

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  2

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  7

  	
   

  	
   

  	
   

  	
  13

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  17

  	
   

  	
   

  	
   

  	
  22

  	
   

  
	
  Towers*                      *****

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  22

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ***** or *****

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Balance of Turbine**

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  6

  	
   

  	
  14

  	
   

  	
  22

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Blade sets are C99

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  






 


	
   

  	
   

  	
   

  	
   

  	
  February

  	
   

  	
  March

  	
   

  	
  April

  	
   

  	
  May

  	
   

  
	
   

  	
   

  	
  Week #

  	
   

  	
  6

  	
   

  	
  7

  	
   

  	
  8

  	
   

  	
  9

  	
   

  	
  10

  	
   

  	
  11

  	
   

  	
  12

  	
   

  	
  13

  	
   

  	
  14

  	
   

  	
  15

  	
   

  	
  16

  	
   

  	
  17

  	
   

  	
  18

  	
   

  	
  19

  	
   

  	
  20

  	
   

  	
  21

  	
   

  	
  22

  	
   

  
	
   

  	
   

  	
  Date

  	
   

  	
  2/1

  	
   

  	
  2/8

  	
   

  	
  2/15

  	
   

  	
  2/22

  	
   

  	
  3/1

  	
   

  	
  3/8

  	
   

  	
  3/15

  	
   

  	
  3/22

  	
   

  	
  3/29

  	
   

  	
  4/5

  	
   

  	
  4/12

  	
   

  	
  4/19

  	
   

  	
  4/26

  	
   

  	
  5/3

  	
   

  	
  5/10

  	
   

  	
  5/17

  	
   

  	
  5/24

  	
   

  
	
  Blade US Arrival dates

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  25

  	
   

  	
  30

  	
   

  	
   

  	
   

  	
  32

  	
   

  	
   

  	
   

  	
  36

  	
   

  	
   

  	
   

  	
  39

  	
   

  	
   

  	
   

  	
  45

  	
   

  	
   

  	
   

  	
  51

  	
   

  	
  55

  	
   

  	
  58

  	
   

  
	
  Towers*                      *****

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ***** or *****

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  25

  	
   

  	
  30

  	
   

  	
   

  	
   

  	
  32

  	
   

  	
   

  	
   

  	
  36

  	
   

  	
   

  	
   

  	
  39

  	
   

  	
   

  	
   

  	
  45

  	
   

  	
   

  	
   

  	
  51

  	
   

  	
  55

  	
   

  	
  58

  	
   

  
	
  Balance of Turbine**

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  25

  	
   

  	
  30

  	
   

  	
   

  	
   

  	
  32

  	
   

  	
   

  	
   

  	
  36

  	
   

  	
   

  	
   

  	
  39

  	
   

  	
   

  	
   

  	
  45

  	
   

  	
   

  	
   

  	
  51

  	
   

  	
  55

  	
   

  	
  58

  	
   

  
	
  Blade sets are C99

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 






*****