EX-10.12 13 a2196381zex-10_12.htm EXHIBIT 10.12

Exhibit 10.12

 

EXECUTION VERSION

 

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

FOURTH AMENDED AND RESTATED SECURED PROMISSORY NOTE

 

This AMENDMENT NO. 2 TO FOURTH AMENDED AND RESTATED SECURED PROMISSORY NOTE (this “Amendment”), dated as of December 22, 2009, is entered into by and between First Wind Acquisition, LLC, a Delaware limited liability company, (“FWA”) and HSH Nordbank AG, New York Branch as Lender, Collateral Agent and Administrative Agent, (“HSHN”).

 

RECITALS

 

WHEREAS, FWA and HSHN entered into that certain Fourth Amended and Restated Secured Promissory Note, dated as of July 17, 2009 (the “FWA Note”);

 

WHEREAS, FWA and HSHN wish to amend the FWA Note as set forth herein;

 

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:

 

AGREEMENT

 

Section 1.                    Definitions. Capitalized terms used and not otherwise defined in this Amendment shall have the meanings assigned to such terms in the FWA Note, as applicable, and the principles of interpretation set forth in Section 1(b) of the FWA Note shall apply herein.

 

Section 2.                    Amendments to FWA Note. Effective on the date hereof, the FWA Note is hereby amended as follows:

 

(a)            The definition of “North Shore Loan Maturity Date” is hereby deleted in its entirety and replaced with the following:

 

“North Shore Loan Maturity Date” shall be the earlier to occur of: (a) any date on which the owner of the North Shore Parcel sells, transfers, hypothecates, pledges or otherwise disposes of the North Shore Parcel (other than a sale, transfer, hypothecation, pledge or disposition pursuant to a Permitted Lien), or (b) March 31, 2010.

 

(b)           The proviso in Section 2.5(b)(iii) is hereby deleted in its entirety and replaced with the following:

 

provided, that (A) in respect of the five (5) Turbines previously assigned to the Stetson II Project and erected at the site for the Stetson II Project, FWA shall no later than December 4, 2009 make a prepayment of the Corresponding Term Loans related to such Turbines and (B) in respect of the three (3) Turbines

 


 

previously assigned to the Stetson II Project and erected at the site for the Stetson II Project on December 21, 2009, FWA shall no later than December 23, 2009 make a prepayment of the Corresponding Term Loans related to such Turbines such that, after giving effect to such prepayments in clause (A) or (B), as applicable, the aggregate outstanding principal amount of the Corresponding Term Loans for each such Turbine is equal to or less than $***** per megawatt of capacity of such Turbine; provided, further, that any other Turbines assigned to the Stetson II Project may be erected at the site for the Stetson II Project upon or after receipt by HSHN of prepayment(s) such that, after giving effect to such prepayment(s), the aggregate outstanding principal amount of Corresponding Term Loans for each such Turbine is equal to or less than $***** per megawatt of capacity of such Turbine.

 

Section 3.                    Legal Effect. This Amendment shall become effective as of the date hereof. This Amendment constitutes the entire agreement between the parties hereto with respect to the matters dealt with herein. All previous documents, undertakings and agreements, whether verbal, written or otherwise, between the parties hereto with respect to the subject matter of the Amendment, are hereby cancelled and superseded and shall not affect or modify any of the terms or obligations set forth in this Amendment.

 

Section 4.                    Miscellaneous.

 

(a)           Reference to and Effect on the FWA Note and Other Basic Documents. Except as expressly set forth herein, the FWA Note shall remain unchanged and in full force and effect and are hereby ratified and confirmed. FWA acknowledges that this Amendment does not constitute any commitment to provide any additional loans or other extensions of credit, any future waiver or forbearance, or any additional extensions of time for the repayment of any debt. In consideration for the commitments and extensions of credit contained in the FWA Note as amended by this Amendment, FWA agrees and covenants that it will not claim that any current or prior action or course of conduct by HSHN with respect to any failure of FWA to repay Loans or other obligations by the Maturity Date, or any related Event of Default that has occurred or may hereafter occur, constitutes an agreement or obligation to continue such action or course of conduct in the future. FWA acknowledges that HSHN has not made any commitments, undertakings, waivers or amendments in respect of the Basic Documents, except as expressly set forth in this Amendment.

 

(b)           Governing Law, Etc. This Amendment shall be governed by, and construed in accordance with, the laws of the State of New York (without regard to conflict of laws provisions thereof other than Section 5-1401 of the New York General Obligations Law). FWA hereby irrevocably and unconditionally submits to the non-exclusive jurisdiction of any state or federal court sitting in the County of New York, State of New York over any suit, action or proceeding arising out of or relating to this Amendment. Service of process by HSHN in any such dispute shall be binding on FWA if sent to FWA by registered or certified mail, at the address specified on the signature page of this Amendment. FWA agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in any other jurisdiction.

 

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EACH PARTY WAIVES ANY RIGHT IT MAY HAVE TO JURY TRIAL IN ANY ACTION RELATED TO THIS AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

 

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

 

(c)           Counterparts and Facsimile or Electronic Mail Execution. This Amendment may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument and any of the parties hereto may execute this Amendment by signing any such counterpart. Delivery of an executed counterpart of this Amendment by facsimile or by electronic mail shall be equally as effective as delivery of an original executed counterpart of this Amendment. Any party delivering an executed counterpart of this Amendment by facsimile or by electronic mail also shall deliver an original executed counterpart of this Amendment, but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Amendment.

 

[Remainder of page intentionally left blank.]

 

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IN WITNESS WHEREOF, the Parties have caused this Amendment to be duly executed and delivered as of the day and year first above written.

 

 

FIRST WIND ACQUISITION, LLC,

 

a Delaware limited liability company

 

 

 

 

 

By:

/s/ Evelyn Lim

 

 

Name:

Evelyn Lim

 

 

Title:

Secretary

 

 

 

 

 

Address for Notices:

 

 

 

First Wind Acquisition, LLC

 

c/o First Wind Energy, LLC

 

179 Lincoln Street, Suite 500

 

Boston, MA 02111

 

Attention: President

 

Facsimile: (617) 960-2889

 

 

 

with a copy to:

 

 

 

First Wind Energy, LLC

 

179 Lincoln Street, Suite 500

 

Boston, MA 02111

 

Attention: General Counsel

 

Facsimile: (617) 960-2889

 

Amendment No. 2 to FWA Fourth Amended and

Restated Promissory Note

 


 

HSH NORDBANK AG, NEW YORK BRANCH,

as Lender, Collateral Agent and Administrative Agent

 

 

By:

/s/ David Watson

 

 

Name:

David Watson

 

 

Title:

Vice President

 

 

 

HSH Nordbank AG, New York Branch

 

 

 

 

 

 

By:

/s/ Sylvia Cheng

 

 

Name:

Sylvia Cheng

 

 

Title:

Senior Vice President

 

 

 

HSH Nordbank AG, New York Branch

 

 

 

 

HSH NORDBANK AG, NEW YORK BRANCH

 

230 Park Avenue

 

32nd Floor

 

New York, New York 10169-0005

 

Attention:

Energy - Portfolio Management

Telephone:

(212) 407-6044 (David Watson)

Facsimile:

(212) 407-6807

 

 

with a copy to:

 

 

 

HSH NORDBANK AG, NEW YORK BRANCH

 

230 Park Avenue

 

32nd Floor

 

New York, New York 10169-0005

 

Attention:

General Counsel

Telephone:

(212) 407-6142

Facsimile:

(212) 407-6811

 

Amendment No. 2 to FWA Fourth Amended and

Restated Promissory Note