FINANCING AGREEMENTFinancing Agreement • October 13th, 2010 • First Wind Holdings Inc. • Electric services • New York
This FINANCING AGREEMENT (this “Financing Agreement”), dated as of December 22, 2009, is entered into by and among STETSON HOLDINGS, LLC, a Delaware limited liability company, as Borrower; the financial institutions listed on Exhibit I or who later become a party hereto, as Lenders; BNP PARIBAS, as a Joint Lead Arranger, as Administrative Agent for the Lenders, Security Agent for the Secured Parties, and as Issuing Bank; and HSH NORDBANK AG, NEW YORK BRANCH, as a Joint Lead Arranger.
AMENDED AND RESTATED BYLAWS OF FIRST WIND HOLDINGS INC.First Wind Holdings Inc. • October 13th, 2010 • Electric services
AMENDMENT AGREEMENT TO UNIT REDEMPTION AGREEMENT a Delaware limited liability companyUnit Redemption Agreement • October 13th, 2010 • First Wind Holdings Inc. • Electric services • Delaware
This Amendment (the “Amendment”), dated December 12, 2008 (the “Amendment Effective Date”), of that certain Unit Redemption Agreement (the “Unit Redemption Agreement”), dated April 28, 2006, is by and between First Wind Holdings, LLC (formerly UPC Wind Partners, LLC and referred to herein as the “Company”) and UPC Wind Partners II, LLC (“UPC Holding”). Capitalized terms used, and not otherwise defined in this Amendment, shall have the meaning assigned to them in the Unit Redemption Agreement, or the LLC Agreement, as applicable.
FIRST AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT of MILFORD WIND PARTNERS, LLC dated as of September 28, 2009Limited Liability Company Agreement • October 13th, 2010 • First Wind Holdings Inc. • Electric services • Delaware
This First Amended and Restated Limited Liability Company Agreement (this “Company LLC Agreement”) of Milford Wind Partners, LLC, a Delaware limited liability company (the “Company”), dated as of September 28, 2009 (the “Effective Date”), is made and entered into by and between Milford NHC, LLC, a Delaware limited liability company (“NHC”) and Stanton Equity Trading Delaware LLC, a Delaware limited liability company (“Stanton” or the “Initial Non-Affiliated Class B Member”).
AGREEMENT AND PLAN OF MERGER among FIRST WIND HOLDINGS INC. FIRST WIND HOLDINGS, LLC and FIRST WIND MERGER, LLC Dated as of , 2010Agreement and Plan of Merger • October 13th, 2010 • First Wind Holdings Inc. • Electric services • Delaware
AGREEMENT AND PLAN OF MERGER, dated as of , 2010 (this “Agreement”), among First Wind Holdings Inc., a Delaware corporation (“WIND”), First Wind Holdings, LLC, a Delaware limited liability company (the “Company”) and First Wind Merger, LLC, a Delaware limited liability company (“Merger LLC”). Capitalized terms used but not simultaneously defined are defined in or by reference to Section 1.01.
SECOND AMENDED AND RESTATED SECURED PROMISSORY NOTEAppraisal Procedure • October 13th, 2010 • First Wind Holdings Inc. • Electric services • New York
For value received, FIRST WIND ACQUISITION IV, LLC, a Delaware limited liability company (the “Borrower”), hereby unconditionally promises to pay to the order of HSH NORDBANK AG, NEW YORK BRANCH (the “Lender” and together with any other lenders added from time to time, the “Lenders”), the aggregate principal amount of FORTY-THREE MILLION SIXTY-THREE THOUSAND SEVEN HUNDRED TWENTY U.S. DOLLARS ($43,063,720) (or such other amount as shall actually be advanced hereunder), together with all accrued and unpaid interest at the Interest Rate (as defined below), on or prior to the Maturity Date (as defined below) pursuant to the provisions of this Second Amended and Restated Secured Promissory Note (this “Note”).
ENERGY MANAGEMENT SERVICES AGREEMENT BY AND AMONG EVERGREEN WIND POWER, LLC AND NEW BRUNSWICK POWER GENERATION CORPORATIONEnergy Management Services Agreement • October 13th, 2010 • First Wind Holdings Inc. • Electric services • New York
This Energy Management Services Agreement is entered into as of the 31st day of July, 2006, by and between Evergreen Wind Power, LLC, a Delaware limited liability company with principal offices located c/o UPC Wind Management, LLC, 100 Wells Ave., Suite 201, Newton, MA, USA (“Seller”), and New Brunswick Power Generation Corporation, a corporation created under the Business Corporations Act of New Brunswick, having its head office at 515 King Street, P.O. Box 2040, Fredericton, New Brunswick, Canada (“Buyer”).
REGISTRATION RIGHTS AGREEMENT among FIRST WIND HOLDINGS INC. and THE STOCKHOLDERS NAMED HEREIN Dated as of , 2010Registration Rights Agreement • October 13th, 2010 • First Wind Holdings Inc. • Electric services • New York
REGISTRATION RIGHTS AGREEMENT, dated as of , 2010 (as amended from time to time, this “Agreement”), among First Wind Holdings Inc., a Delaware corporation (“WIND”), and each of the parties listed on Annex A (the “Initial Stockholders” and, as Annex A is updated and amended pursuant to Section 11(c), the “Stockholders”).
SECOND AMENDED AND RESTATED GUARANTYConfidential Treatment • October 13th, 2010 • First Wind Holdings Inc. • Electric services • New York
This Guaranty amends and restates in its entirety the Amended and Restated Guaranty dated as of December 12, 2008 made by the Guarantor in favor of the Lender.
LIMITED LIABILITY COMPANY AGREEMENT of FIRST WIND HOLDINGS, LLC upon and after the Effective Time referred to herein Dated as of , 2010Limited Liability Company Agreement • October 13th, 2010 • First Wind Holdings Inc. • Electric services • Delaware
This LIMITED LIABILITY COMPANY AGREEMENT of First Wind Merger, LLC, a Delaware limited liability company (“Merger LLC”), dated as of , 2010, is adopted, executed and agreed to, for good and valuable consideration, by First Wind Holdings Inc., a Delaware corporation (“WIND”), First Wind Holdings, LLC, a Delaware limited liability company (the “Company”) and the Members of the Company whose signatures appear hereon. As provided in Article 2, upon and after the Effective Time, this Agreement shall amend, restate and replace in its entirety the Fifth Amended and Restated Limited Liability Company Agreement of First Wind Holdings, LLC, dated as of July 17, 2009 (the “Prior LLC Agreement”) and become the limited liability company agreement of the Company. Capitalized terms used but not simultaneously defined are defined in or by reference to Section 1.01.
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF FIRST WIND HOLDINGS INC. Pursuant to the provisions of § 242 and § 245 of the General Corporation Law of the State of DelawareFirst Wind Holdings Inc. • October 13th, 2010 • Electric services
The present name of the corporation is First Wind Holdings Inc. (the “Corporation”). The Corporation was incorporated under the name “First Wind Holdings Inc.” by the filing of its original certificate of incorporation (the “Original Certificate of Incorporation”) with the Secretary of State of the State of Delaware on May 9, 2008. This Amended and Restated Certificate of Incorporation of the Corporation, which both restates and further amends the provisions of the Original Certificate of Incorporation, was duly adopted in accordance with the provisions of Sections 228, 242 and 245 of the General Corporation Law of the State of Delaware. This Amended and Restated Certificate of Incorporation shall become effective as of [ ], 2010. The Original Certificate of Incorporation of the Corporation is hereby amended and restated to read in its entirety as follows:
UNIT REDEMPTION AGREEMENTUnit Redemption Agreement • October 13th, 2010 • First Wind Holdings Inc. • Electric services • Delaware
This Unit Redemption Agreement, dated as of April 28, 2006, is by and between UPC Wind Partners II, LLC (“UPC Holding”) and UPC Wind Partners, LLC (the “Company”), each a Delaware limited liability company.
Fourth Amended and Restated Secured Promissory Note Dated as of July 17, 2009 by First Wind Acquisition, LLC, as Borrower For the benefit of HSH Nordbank AG, New York Branch, Lender, Collateral Agent and Administrative Agent and The Lenders party heretoConfidential Treatment • October 13th, 2010 • First Wind Holdings Inc. • Electric services • New York
For value received, FIRST WIND ACQUISITION, LLC, a Delaware limited liability company (“First Wind” or the “Borrower”), hereby unconditionally promises to pay to the order of HSH NORDBANK AG, NEW YORK BRANCH, (the “Lender”, and together with any other lenders added from time to time, the “Lenders”), the aggregate principal amount of TWO HUNDRED THIRTY-ONE MILLION, FOUR HUNDRED EIGHTY-TWO THOUSAND FIVE HUNDRED FORTY-THREE U.S. DOLLARS ($231,482,543) (or such other amount as shall actually be advanced hereunder), together with all accrued and unpaid interest at the Interest Rate (as defined below), on or prior to the applicable Maturity Date (as defined below) pursuant to the provisions of this Fourth Amended and Restated Secured Promissory Note (this “Note”).
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF UPC HAWAII WIND PARTNERS II, LLC a Delaware Limited Liability Company dated as of August 16, 2007Limited Liability Company Agreement • October 13th, 2010 • First Wind Holdings Inc. • Electric services • Delaware
Amended And Restated Limited Liability Company Agreement (this “Agreement”) of UPC Hawaii Wind Partners II, LLC, a Delaware limited liability company (the “Company”), dated as of August 16, 2007 (the “Effective Date”), by and among UPC Hawaii Wind Partners, LLC, a Delaware limited liability company (“UPC Hawaii”), JPM Capital Corporation, a Delaware corporation (“JPMCC”), JPM Wind Investments LLC, a Delaware limited liability company (“JPM Wind”, and together with JPMCC, the Purchasers”, and each, a Purchaser”).
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, 2009Land Lease Agreement • October 13th, 2010 • First Wind Holdings Inc. • Electric services • New York
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”).
AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED SECURED PROMISSORY NOTESecured Promissory Note • October 13th, 2010 • First Wind Holdings Inc. • Electric services • New York
This AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED SECURED PROMISSORY NOTE (this “Amendment”) dated as of March 2, 2010 is entered into by and between FIRST WIND ACQUISITION IV, LLC, a Delaware limited liability company (“Borrower”) and HSH NORDBANK AG, NEW YORK BRANCH, (“HSHN” and, in its capacities as lender (the “Lender”), as collateral agent (the “Collateral Agent”) and as the administrative agent (the “Administrative Agent”), as applicable).
2009 OMNIBUS AGREEMENTTurbine Supply Agreement • October 13th, 2010 • First Wind Holdings Inc. • Electric services • New York
THIS TURBINE SUPPLY AGREEMENT (the “Agreement” or the “Supply Agreement”) is made and entered into and effective as of December 31, 2007 by and between CLIPPER TURBINE WORKS, INC., a Delaware corporation (“Supplier”), and UPC WIND ACQUISITION V, LLC, a Delaware limited liability company with a place of business c/o UPC Wind Management, LLC, 85 Wells Ave., Suite 305, Newton, MA 02459 (“Purchaser”). Supplier and Purchaser are sometimes referred to, individually, as a “Party” or, collectively, as the “Parties”.
CONSENT AND AMENDMENT NO. 3 TO FOURTH AMENDMENT AND RESTATED SECURED PROMISSORY NOTEFirst Wind Holdings Inc. • October 13th, 2010 • Electric services • New York
This CONSENT AND AMENDMENT NO. 3 TO FOURTH AMENDED AND RESTATED SECURED PROMISSORY NOTE (this “Amendment”) dated as of March 2,2010 is entered into by and between FIRST WIND ACQUISITION, LLC, a Delaware limited liability company (“Borrower”) and HSH NORDBANK AG, NEW YORK BRANCH, (“HSHN” and, in its capacities as lender (the “Lender”), as collateral agent (the “Collateral Agent”) and as the administrative agent (the “Administrative Agent”), as applicable).
] Shares FIRST WIND HOLDINGS INC. Class A Common Stock UNDERWRITING AGREEMENTUnderwriting Agreement • October 13th, 2010 • First Wind Holdings Inc. • Electric services • New York
CREDIT SUISSE SECURITIES (USA) LLC MORGAN STANLEY & CO. INCORPORATED GOLDMAN, SACHS & CO. DEUTSCHE BANK SECURITIES INC. As Representatives of the Several Underwriters, c/o Credit Suisse Securities (USA) LLC, Eleven Madison Avenue, New York, N.Y. 10010-3629
COMMON AGREEMENT dated as of July 26, 2010 among KAHUKU WIND POWER, LLC, as Borrower U.S. DEPARTMENT OF ENERGY, as Guarantor and Loan Servicer, and MIDLAND LOAN SERVICES, INC., as Collateral Agent Kahuku Wind Project Oahu, HawaiiCommon Agreement • October 13th, 2010 • First Wind Holdings Inc. • Electric services • New York
This COMMON AGREEMENT (the “Common Agreement”), dated as of July 26, 2010, is by and among (i) KAHUKU WIND POWER, LLC, a limited liability company organized and existing under the laws of Delaware, as Borrower, (ii) the U.S. DEPARTMENT OF ENERGY, acting by and through the Secretary of Energy, for itself as a Credit Party and as guarantor of the Advances made under the DOE Credit Facility Documents (in such capacity, “DOE”), (iii) DOE, acting by and through the Secretary of Energy, as the Loan Servicer (in such capacity, the “Loan Servicer”), and (iv) MIDLAND LOAN SERVICES, INC., a corporation formed and existing under the laws of Delaware, as the Collateral Agent.
OPTION AGREEMENT UNDER THE FIRST WIND HOLDINGS INC. 2010 LONG TERM INCENTIVE PLANOption Agreement • October 13th, 2010 • First Wind Holdings Inc. • Electric services
OPTION AGREEMENT (this “Agreement”) granted effective as of [·], 2010, by First Wind Holdings Inc., a corporation organized under the laws of the State of Delaware (the “Company”), to (the “Grantee”), who has been designated as a participant under and in accordance with the terms of the First Wind Holdings Inc. 2010 Long Term Incentive Plan (such plan, as it may be amended from time to time, to be referenced as the “Plan”).
EQUITY FUNDING AGREEMENT dated as of July 26, 2010 among KAHUKU WIND POWER, LLC, as Borrower KAHUKU HOLDINGS, LLC, as Equity Investor as Guarantor and Loan Servicer and MIDLAND LOAN SERVICES, INC., as Collateral Agent Kahuku Wind Project Oahu, HawaiiEquity Funding Agreement • October 13th, 2010 • First Wind Holdings Inc. • Electric services • New York
This EQUITY FUNDING AGREEMENT (this “Agreement”), dated as of July 26, 2010, is by and among (i) KAHUKU WIND POWER, LLC, a limited liability company organized and existing under the laws of Delaware, as Borrower, (ii) KAHUKU HOLDINGS, LLC, a limited liability company organized and existing under the laws of Delaware, as the Equity Investor, (iii) the U.S. DEPARTMENT OF ENERGY, for itself as a Credit Party and as guarantor of the Advances made under the DOE Credit Facility Documents (in such capacity, “DOE”), (iv) DOE, acting through its Loan Guarantee Program Office, as the Loan Servicer, and (v) MIDLAND LOAN SERVICES, INC., a corporation formed and existing under the laws of Delaware, as the Collateral Agent.
NOMINATING AND VOTING AGREEMENT among FIRST WIND HOLDINGS INC.Nominating and Voting Agreement • October 13th, 2010 • First Wind Holdings Inc. • Electric services • Delaware
NOMINATING AND VOTING AGREEMENT, dated as of , 2010 (this “Agreement”), among First Wind Holdings Inc., a Delaware corporation (“WIND”), D. E. Shaw MWP Acquisition Holdings, L.L.C., a Delaware limited liability company (“MWP”), D. E. Shaw MWPH Acquisition Holdings, L.L.C., a Delaware limited liability company (“MWPH”, and together with MWP, “D. E. Shaw”), and Madison Dearborn Capital Partners IV, L.P., a Delaware limited partnership (“Madison Dearborn”).
AMENDMENT NO. 4 TO FOURTH AMENDED AND RESTATED SECURED PROMISSORY NOTESecured Promissory Note • October 13th, 2010 • First Wind Holdings Inc. • Electric services • New York
This AMENDMENT NO. 4 TO FOURTH AMENDED AND RESTATED SECURED PROMISSORY NOTE (this “Amendment”), dated as of June 30, 2010, is entered into by and between FIRST WIND ACQUISITION, LLC, a Delaware limited liability company (“Borrower”) and HSH NORDBANK AG, NEW YORK BRANCH, (“HSHN”, in its capacities as lender (the “Lender”), as collateral agent (the “Collateral Agent”) and as the administrative agent (the “Administrative Agent”), as applicable).
AMENDMENT NO.3 TO SECOND AMENDED AND RESTATED GUARANTYGuaranty • October 13th, 2010 • First Wind Holdings Inc. • Electric services • New York
This AMENDMENT NO.3 TO SECOND AMENDED AND RESTATED GUARANTY (this “Amendment”), dated as of March 2,2010, is entered into by and between First Wind Holdings, LLC, a Delaware limited liability company (“FWH”) and HSH Nordbank AG, New York Branch (“HSHN”).
FIRST WIND HOLDINGS INC. FORM OF INDEMNIFICATION AGREEMENTForm of Indemnification Agreement • October 13th, 2010 • First Wind Holdings Inc. • Electric services • Delaware
This Indemnification Agreement (this “Agreement”), is made and entered into as of the day of , 2010, by and between FIRST WIND HOLDINGS INC., a Delaware corporation (“WIND”) and (“Indemnitee”).
AMENDMENT NO. 4 TO SECOND AMENDED AND RESTATED GUARANTYGuaranty • October 13th, 2010 • First Wind Holdings Inc. • Electric services • New York
This AMENDMENT NO. 4 TO SECOND AMENDED AND RESTATED GUARANTY (this “Amendment”), dated as of March 23, 2010, is entered into by and between First Wind Holdings, LLC, a Delaware limited liability company (“FWH”) and HSH Nordbank AG, New York Branch (“HSHN”).
AMENDED AND RESTATED CREDIT AGREEMENT dated as of December 22, 2009 among CSSW, LLC, as Borrower, CSSW Holdings, LLC, as CSSW Parent, the Lenders from time to time party hereto, Wells Fargo Bank, National Association, as the Administrative Agent, and...Intercreditor Agreement • October 13th, 2010 • First Wind Holdings Inc. • Electric services • New York
This AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of December 22, 2009, by and among (i) CSSW, LLC, a Delaware limited liability company, as borrower (the “Borrower”), (ii) CSSW Holdings, LLC, a Delaware limited liability company (the “CSSW Parent”), (iii) the Lenders from time to time party hereto, (iv) Wells Fargo Bank, National Association, as the administrative agent for the Lenders from time to time party hereto (in such capacity, together with its successors in such capacity, the “Administrative Agent”), and (v) Wells Fargo Bank, National Association, as the collateral agent for the Secured Parties (in such capacity, together with its successors in such capacity, the “Collateral Agent”).
