Exhibit 10.46


 


EXECUTION VERSION


 


AMENDMENT
AGREEMENT NO. 2


TO


UNIT
REDEMPTION AGREEMENT


 


This AMENDMENT AGREEMENT NO. 2 TO UNIT REDEMPTION AGREEMENT (this “Amendment”),
dated as of March 18, 2010 (the “Amendment Effective Date”), is entered
into by and between FIRST WIND HOLDINGS, LLC (the “Company”) and UPC
WIND PARTNERS II, LLC (“UPC Holding”).


 


RECITALS


 


WHEREAS, the Company and UPC Holding entered into that certain Unit
Redemption Agreement, dated April 28, 2006, as amended by that certain
Amendment Agreement to Unit Redemption Agreement, dated December 12, 2008
(the “Unit Redemption Agreement”); and


 


WHEREAS, the Company and UPC Holding wish to amend the Unit Redemption
Agreement to change certain terms relating to Contingent Payments.


 


NOW, THEREFORE, in consideration of the foregoing and mutual agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound hereby, agree as follows:


 


ARTICLE I


AMENDMENT
TO THE UNIT REDEMPTION AGREEMENT


 


Section 1.1                        Definitions. Capitalized
terms used and not otherwise defined in this Amendment shall have the meanings
assigned to such terms in the Unit Redemption Agreement.


 


Section 1.2                        Amendment to Unit Redemption
Agreement. The definition of “Release Event” in Section 1.3(a) is
hereby deleted in its entirety and replaced with the following:


 


“Release Event” means the occurrence
of all of the following: (i) the closing after March 2, 2010 of (A) one
or more corporate letter of credit facility(ies) the aggregate binding
commitment of which is $30,000,000 or more and each of which facility is
available for drawings of letters of credit for the benefit of all of First
Wind Holdings and its Affiliates (it being understood, however, that any letter
of credit facility that is solely available for specific projects or Affiliates
does not qualify under this clause (A), but a corporate letter of credit
facility that contains an availability sublimit with respect to certain
projects or Affiliates would qualify under this clause (A)) or (B) a
Subject Disposition or one or more equity or debt (junior to the Lenders, as
applicable to the borrowing entity, on terms substantially similar to those set
forth in the Parent Guaranty) financings resulting in Net Cash Proceeds of (I) prior
to repayment of the Corresponding Term Loans with respect to the Oakfield
Project (as defined in the FWA Note), $75,000,000 or more in the aggregate for
all such transactions and (II) on and after the repayment of the
Corresponding Term Loans with respect to the Oakfield Project, $30,000,000 or
more in the aggregate for all such transactions; provided that all Net
Cash Proceeds of such Subject Disposition,


 

















 


project financing, or equity or junior debt financing under this clause
(B) are (x) received by First Wind Holdings (or the resulting parent
entity pursuant to a reorganization entered into in connection with such
initial public offering), and (y) deposited into accounts of First Wind
Holdings, subject to the liens granted by the security agreements in respect of
the First Wind Holdings Loan Agreement; and (ii) the Administrative Agent
shall have received a repayment in respect of outstanding Corresponding Term
Loans under the FWA Note (as defined below) in an amount such that, after
giving effect to such repayment, the aggregate outstanding principal amount of
such Corresponding Term Loans for each Turbine thereunder is equal to or less
than the applicable maximum loan amount per kilowatt of capacity of each
Turbine that may be outstanding as of the immediately preceding applicable date
as set forth in the applicable column on Schedule 11 of the FWA Note, upon
which repayment the portion of the Term Loan Commitment shall be terminated pursuant
to Section 2.l(c)(ii) of the FWA Note. All capitalized terms used in
this definition of Release Event shall have the meaning assigned to such terms
in that certain Fourth Amended and Restated Promissory Note, dated as of July 17,
2009, by and among First Wind Acquisition, LLC, HSH Nordbank AG, New York
Branch, and the Lenders party thereto (as amended from time to time, the “FWA
Note”).


 


ARTICLE II


REPRESENTATIONS
AND WARRANTIES OF UPC HOLDING


 


UPC Holding represents and warrants as of the Amendment Effective Date
to the Company as follows:


 


Section 2.1                        Organization, Power and
Authority. UPC Holding is a limited liability company duly
formed, validly existing and in good standing under the laws of the
jurisdiction of its formation and has all requisite limited liability company
power and authority to execute and deliver this Amendment and to perform its
obligations hereunder, and the execution, delivery and performance by UPC
Holding of this Amendment have been duly authorized by all necessary action.


 


Section 2.2                        Authorization. UPC Holding
has all requisite limited liability company power and authority to execute and
deliver this Amendment and to carry out the provisions of this Amendment. All
limited liability company action on the part of UPC Holding and its officers,
managers and members necessary for the authorization, execution and delivery of
this Amendment, and the performance of all obligations of UPC Holding
hereunder, has been taken. This Amendment has been duly and validly executed
and delivered and constitutes, assuming this Amendment has been duly
authorized, executed and delivered by the other party hereto, valid and legally
binding obligations of UPC Holding, enforceable in accordance with its terms
except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other Laws of general application affecting
enforcement of creditors’ rights generally and (ii) as limited by Laws
relating to the availability of specific performance, injunctive relief or
other equitable remedies.


 


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Section 2.3                        No Conflicts. The
execution, delivery and performance by UPC Holding of this Amendment and the
transactions contemplated hereby will not (a) conflict with or result in,
with or without the passage of time or giving of notice or both, any breach,
default or loss of rights under, or acceleration of, or give rise to any right
of termination, rescission, acceleration or modification under, any mortgage,
indenture, contract, lease, agreement, charter document (including the Limited
Liability Company Agreement of UPC Holding), instrument, judgment, decree,
order, writ, statute, rule or regulation, license or permit or (b) result
in the creation of any Liens upon any of the properties or assets of UPC
Holding.


 


Section 2.4                        Litigation. There is no
action, suit, claim, proceeding, investigation or other legal, administrative
or arbitrational proceeding pending or, to the knowledge of UPC Holding,
threatened against UPC Holding or its affiliates, or against any officer,
manager or director of UPC Holding or its affiliates nor, to the knowledge of
UPC Holding, has there occurred any event nor does there exist any condition on
the basis of which any material litigation, proceeding or investigation might
properly be instituted, in each case related to the transactions contemplated
hereby. Neither UPC Holding nor any of its affiliates is a party or subject to
any order, writ, injunction, judgment or decree of any court or government
agency or instrumentality relating to the transactions contemplated hereby.


 


Section 2.5                        Acknowledgement. UPC Holding
acknowledges that it has made its own analysis of the fairness of the
transactions contemplated hereby and has not relied on any advice or
recommendation by the Company or its members, managers, officers or affiliates
with respect to its decision to enter into this Amendment and to consummate the
transactions contemplated hereby. UPC Holding has had sufficient opportunity to
investigate and review the business, management and financial affairs of the
Company, and has had sufficient access to management of the Company, before its
decision to enter into this Amendment. UPC Holding acknowledges that, in
connection with its entry into this Amendment and consummation of the
transactions contemplated hereby, (i) UPC Holding has not relied on any
representations or warranties of the Company, or any member, manager, officer,
affiliate or representative of the Company, except for the representations or
warranties of the Company set forth in Article III and (ii) UPC
Holding has made an independent decision regarding the agreements set forth
herein.


 


ARTICLE III


REPRESENTATIONS
AND WARRANTIES OF THE COMPANY


 


The Company represents and warrants to UPC Holding as of the Amendment
Effective Date as follows:


 


Section 3.1                        Organization, Power and
Authority. The Company is a limited liability company duly
formed, validly existing and in good standing under the laws of the
jurisdiction of its formation and has all requisite limited liability company
power and authority to execute and deliver this Amendment and to perform its
obligations hereunder, and the execution, delivery and performance by the
Company of this Amendment have been duly authorized by all necessary action.


 


Section 3.2                        Authorization. The Company
has all requisite limited liability company power and authority to execute and
deliver this Amendment and to carry out the provisions of


 


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this
Amendment. All limited liability company action on the part of the Company and
its officers, managers and members necessary for the authorization, execution
and delivery of this Amendment, and the performance of all obligations of the
Company hereunder, has been taken. This Amendment has been duly and validly
executed and delivered and constitutes, assuming this Amendment has been duly
authorized, executed and delivered by the other party hereto, valid and legally
binding obligations of the Company, enforceable in accordance with its terms
except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other Laws of general application affecting
enforcement of creditors’ rights generally and (ii) as limited by Laws
relating to the availability of specific performance, injunctive relief or
other equitable remedies.


 


Section 3.3                        No Conflicts. The
execution, delivery and performance by the Company of this Amendment and the
transactions contemplated hereby will not (a) conflict with or result in,
with or without the passage of time or giving of notice or both, any breach,
default or loss of rights under, or acceleration of, or give rise to any right
of termination, rescission, acceleration or modification under, any mortgage,
indenture, contract, lease, agreement, charter document (including the LLC
Agreement), instrument, judgment, decree, order, writ, statute, rule or
regulation, license or permit or (b) result in the creation of any Liens
upon any of the properties or assets of the Company.


 


Section 3.4                        Litigation. There is no
action, suit, claim, proceeding, investigation or other legal, administrative
or arbitrational proceeding pending or, to the knowledge of the Company,
threatened against the Company or its affiliates, or against any officer,
manager or director of the Company or its affiliates nor, to the knowledge of
the Company, has there occurred any event nor does there exist any condition on
the basis of which any material litigation, proceeding or investigation might
properly be instituted, in each case related to the transactions contemplated
hereby. Neither the Company nor any of its affiliates is a party or subject to
any order, writ, injunction, judgment or decree of any court or government
agency or instrumentality relating to the transactions contemplated hereby.


 


Section 3.5                        Acknowledgement. The Company
acknowledges that it has made its own analysis of the fairness of the
transactions contemplated hereby with respect to its decision to enter into
this Amendment and to consummate the transactions contemplated hereby. The
Company acknowledges that, in connection with its entry into this Amendment and
consummation of the transactions contemplated hereby, (i) the Company has
not relied on any representations or warranties of UPC Holding, or any member,
manager, officer, affiliate or representative of UPC Holding, except for the
representations or warranties of UPC Holding set forth in Article II
and (ii) the Company has made an independent decision regarding the
agreements set forth herein.


 


ARTICLE IV


SURVIVAL
AND REMEDIES


 


Section 4.1                            Survival. All
representations and warranties contained in this Amendment shall survive the
execution and delivery hereof.


 


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Section 4.2                        Remedies Cumulative. The remedies
provided for in this Article IV shall be cumulative and shall not
preclude assertion by the indemnified parties of any other rights or the
seeking of any other remedies against the indemnifying parties.


 


ARTICLE V


MISCELLANEOUS


 


Section 5.1                        Unit Redemption Agreement. All of the
terms and conditions of the Unit Redemption Agreement, including the
Non-Competition Agreement referred to therein, that are not expressly amended
by this Amendment shall remain in full force and effect.


 


Section 5.2                                      Conversion of
Ownership. UPC Holding covenants and agrees that upon request
by the Company in connection with, and upon the closing of, a Qualified Public
Offering (as defined in the LLC Agreement), UPC Holding will transfer all of
its Units and other Membership Interests it may hold at the time of such
request in the Company directly to Paul Gaynor and Tim Rosenzweig, pro rata to
their membership interests in UPC Holding and at par value of such Units and
Membership Interests.


 


Section 5.3                        Governing Law. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE
STATE OF DELAWARE, WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES OF SUCH
STATE.


 


Section 5.4                        Counterparts. This
Agreement may be executed in any number of counterparts (including facsimile counterparts),
all of which together shall constitute a single instrument.


 


Section 5.5                        Waiver and Release. The parties
hereto covenant and agree that this Amendment is entered into to resolve any
current or prior default by either party in connection with the payment of
Contingent Payments pursuant to the Unit Redemption Agreement and such parties
hereby release, discharge and covenant not to sue each other or their
respective affiliates, members, managers, officers, subsidiaries or successors
and each of their respective affiliates in respect to any matter relating to
payment or non-payment of a Contingent Payment that has arisen in whole or in
part prior to the date hereof.


 


[Signature pages follow.]


 


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IN WITNESS WHEREOF, UPC
Holdings and the Company have caused this Amendment to be duly executed and
delivered as of the date first set forth above.


 


	
   

  	
   

  
	
   

  	
  UPC
  WIND PARTNERS II, LLC, a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Brian Caffyn

  
	
   

  	
   

  	
  Name:

  	
  Brian
  Caffyn

  
	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FIRST
  WIND HOLDINGS, LLC, a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael U. Alvarez

  
	
   

  	
   

  	
  Name:

  	
  Michael
  U. Alvarez

  
	
   

  	
   

  	
  Title:

  	
  President/COO/CFO