CREDIT AGREEMENT dated as of October 20, 2010 among MILFORD WIND CORRIDOR PHASE II, LLC (as Borrower) RBS SECURITIES INC. (as Lead Arranger and Bookrunner) BANCO ESPÍRITO SANTO S.A. NEW YORK BRANCH, COBANK, ACB, SANTANDER INVESTMENT SECURITIES INC.,...

Exhibit 10.58

[Execution Version]

CREDIT AGREEMENT

dated as of October 20, 2010

among

MILFORD WIND CORRIDOR PHASE II, LLC

(as Borrower)

RBS SECURITIES INC.

(as Lead Arranger and Bookrunner)

BANCO ESPÍRITO SANTO S.A. NEW YORK BRANCH,

COBANK, ACB,

SANTANDER INVESTMENT SECURITIES INC., and

SG AMERICAS SECURITIES, LLC,

(as Co-Syndication Agents, Joint Bookrunners and Joint Lead Arrangers)

THE FINANCIAL INSTITUTIONS PARTIES HERETO

(as Lenders)

and

THE ROYAL BANK OF SCOTLAND PLC,

(as Administrative Agent, Collateral Agent and Lender)

102 Megawatt Facility and an undivided interest in the 345 kV generator lead line and substation
Beaver and ▇▇▇▇▇▇▇ Counties, Utah

TABLE OF CONTENTS

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Index of Exhibits

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This CREDIT AGREEMENT, dated as of October 20, 2010 (“Agreement”), among MILFORD WIND CORRIDOR PHASE II, LLC, a Delaware limited liability company, as borrower (“Borrower”), THE FINANCIAL INSTITUTIONS LISTED ON EXHIBIT H OR WHICH LATER BECOME A PARTY HERETO, (the financial institutions party to this Agreement being collectively referred to as the “Lenders”), THE ROYAL BANK OF SCOTLAND PLC, as administrative agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “Administrative Agent”), RBS SECURITIES INC., as lead arranger (in such capacity, together with its successors and assigns in such capacity, the “Lead Arranger”) and bookrunner (in such capacity, together with its successors and assigns in such capacity, the “Bookrunner”), THE ROYAL BANK OF SCOTLAND PLC, as collateral agent for the Secured Parties referred to herein (in such capacity, together with its successors and assigns in such capacity, “Collateral Agent”), BANCO ESPÍRITO SANTO S.A. NEW YORK BRANCH (“BESI”), COBANK, ACB (“CoBank”), SANTANDER INVESTMENT SECURITIES INC. (“Santander”), and SG AMERICAS SECURITIES, LLC (“SGAS”), as co-syndication agents (each in such capacity, together with its respective successors and assigns in such capacity, the a “Co-Syndication Agent” and, collectively, the “Co-Syndication Agents”), as joint bookrunners (each in such capacity, together with its respective successors and assigns in such capacity, a “Joint Bookrunner” and, collectively, the “Joint Bookrunners”) and as joint lead arrangers (each in such capacity, together with its respective successors and assigns in such capacity, a “Joint Lead Arranger” and, collectively, the “Joint Lead Arrangers”).

RECITALS

A.                                    Borrower desires to develop, construct, install, finance, own, operate and maintain the Project referred to herein to be located in ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ Counties, Utah, and, in connection therewith, Borrower has requested that the Lenders provide the credit facility described herein.

B.                                    The Lenders are willing to provide such credit facility upon the terms and subject to the conditions set forth herein and in the other Credit Documents.

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing and the agreements, covenants and promises set forth herein and in the other Credit Documents and in reliance upon the representations and warranties set forth herein and therein, the parties hereto agree as follows:

ARTICLE 1
DEFINITIONS

1.1                               DEFINITIONS.  For all purposes of the Credit Documents, except as otherwise expressly provided, capitalized terms used in the Credit Documents (including annexes, appendices, exhibits and schedules thereto) shall have the meanings given to such terms in Exhibit A.

1.2                               RULES OF INTERPRETATION.  Except as otherwise expressly provided, the “Rules of Interpretation” set forth in Exhibit A shall apply to the Credit Documents.

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1.3                               ACCOUNTING TERMS; GAAP.  Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time and as applied by the accounting entity to which they refer; provided, that if Borrower notifies Administrative Agent that Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if Administrative Agent notifies Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith.

ARTICLE 2
THE CREDIT FACILITY

2.1                               LOAN FACILITY.

2.1.1                     Loan Facility.

(a)                                 Availability.  Subject to the terms and conditions set forth in this Agreement and in reliance upon the representations and warranties of Borrower set forth herein, each Lender severally agrees to advance to Borrower from time to time during the Loan Availability Period such loans as Borrower may request pursuant to this Section 2.1.1 (individually, a “Loan” and, collectively, the “Loans”), in an aggregate principal amount which, when added to such Lender’s Proportionate Share of the aggregate principal amount of all prior Loans made by such Lender, does not exceed such Lender’s Loan Commitment.

(b)                                 Notice of Borrowing; Denominations, Etc.  Borrower shall request Loans by delivering to Administrative Agent a written notice in the form of Exhibit C-1, appropriately completed (“Notice of Borrowing”), which contains or specifies, among other things:

(i)                                     the portion of the requested Borrowing that will be Base Rate Loans and the portion that will be Eurodollar Loans;

(ii)                                  the aggregate principal amount of the requested Borrowing, which shall be in the minimum amount of $1,000,000 or an integral multiple of $100,000 in excess thereof; provided that such minimum amount shall not apply to the final Borrowing of Loans;

(iii)                               the proposed date of the requested Borrowing (which shall be a Business Day);

(iv)                              the initial Interest Period requested for a Borrowing of a Eurodollar Loan;

(v)                                 a certification by Borrower that the conditions set forth in Section 3.2 are satisfied as of the date of the Notice of Borrowing;

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(vi)                              a certification by Borrower that, as of the date such requested Loan is proposed to be made, the Loan proposed to be made on such date, when added with all other Loans, does not exceed the Total Loan Commitment; and

(vii)                           the itemization of the Project Costs to be paid with such Borrowing.

Notwithstanding any provision to the contrary in this section, Borrower (x) shall request no more than two Loan Borrowings per calendar month and (y) may not select Eurodollar Loans if the obligations of the Lenders to make Eurodollar Loans shall then be suspended pursuant to Section 2.6.  Borrower shall give each Notice of Borrowing to Administrative Agent with at least the Minimum Notice Period applicable to Loans of the Type requested.  Any Notice of Borrowing shall be irrevocable and binding on Borrower.

(c)                                  Address of Notice of Borrowing.  Each Notice of Borrowing shall be delivered to Administrative Agent as provided in Section 13.1; provided, however, that Borrower shall promptly deliver to Administrative Agent the original of any Notice of Borrowing initially delivered by facsimile or email.

(d)                                 Loan Principal Payments.  Borrower shall repay to Administrative Agent, for the account of each Lender, in full on the Maturity Date the unpaid principal amount of all Loans made by such Lender.  Borrower may not re-borrow the principal amount of any Loan repaid.

2.1.2                     Interest Provisions.

(a)                                 Interest Rate.  Subject to Section 2.4.3, Borrower shall pay interest on the unpaid principal amount of each Loan from the date of Borrowing of such Loan until the repayment thereof at either the Adjusted Eurodollar Rate for Eurodollar Loans or at the Base Rate for Base Rate Loans, plus in each case the applicable Rate Margin.

(b)                                 Changes of Loan Type.  The basis for determining the interest rate with respect to any Loan may be changed from time to time as specified in a Notice of Interest Terms delivered pursuant to Section 2.1.6.  If on any day a Loan is outstanding with respect to which notice has not been delivered to Administrative Agent in accordance with the terms of this Agreement specifying the applicable basis for determining the rate of interest, then for that day such Loan shall bear interest determined by reference to the Base Rate.

(c)                                  Interest Payment Dates.  Borrower shall pay accrued interest on the unpaid principal amount of each Loan (i) in the case of each Base Rate Loan, on the last Business Day of each March, June, September and December, (ii) in the case of each Eurodollar Loan, on the last day of each Interest Period related to such Eurodollar Loan and, with respect to Interest Periods longer than three months, the last Business Day of each third month in which such Eurodollar Loan is outstanding, (iii) in all cases, for any Loan upon its conversion from one Type of Loan to another Type of Loan, on the effective date of such conversion, and (iv) in all cases, upon the repayment or prepayment (whether at stated maturity or otherwise, and including any optional prepayments or Mandatory Prepayments) of any Loan on the date of payment thereof in full.  Each date on which any such interest payment is due is an “Interest Payment Date”.

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(d)                                 Eurodollar Loan Interest Periods.

(i)                                     Each Interest Period selected by Borrower for all Eurodollar Loans shall be one, two, three or six months; provided, however, that, (A) any Interest Period which would otherwise end on a day which is not a Business Day shall be extended to the next succeeding Business Day unless such next Business Day falls in another calendar month, in which case such Interest Period shall end on the immediately preceding Business Day; (B) any Interest Period which begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the last full calendar month of such Interest Period; (C) Borrower may not select Interest Periods which would leave a greater principal amount of Loans subject to Interest Periods ending after a date upon which Loans are or may be required to be repaid (including the Maturity Date) than the principal amount of Loans scheduled to be outstanding after such date; (D) Eurodollar Loans for each Interest Period shall be in the minimum amount of $1,000,000 or an integral multiple of $100,000 in excess thereof; (E) during the Initial Period, Borrower may not have selected Interest Periods of greater than one month; and (F) Borrower may not at any time have outstanding more than (x) during the period prior to Final Completion, six different Interest Period end-dates relating to Eurodollar Loans, and (y) during the period after Final Completion, three different Interest Period end-dates relating to Eurodollar Loans.

(ii)                                  Borrower may contact Administrative Agent at any time prior to the end of an Interest Period for an indicative quotation of Interest Rates in effect at such time for given Interest Periods and Administrative Agent shall promptly provide such quotation with the understanding that such quotation may change by the time Borrower formally requests a borrowing or continuation thereunder.  Borrower may, subject to Section 2.1.5, select to continue any Eurodollar Loan for any permissible Interest Period by communicating such selection to Administrative Agent by telephone or by email, which selection shall be irrevocable.  Borrower shall promptly confirm such telephonic or email notice to Administrative Agent within the time periods required by Section 2.1.6 by delivering to Administrative Agent by facsimile, an emailed pdf or hand-delivery of a Notice of Interest Terms, appropriately completed in accordance with the instructions contained in such form.  Borrower shall promptly deliver to Administrative Agent any original Notice of Interest Terms initially delivered by facsimile or email.  If Borrower fails to notify Administrative Agent of the next Interest Period for any Eurodollar Loans in accordance with this Section 2.1.2(d)(ii), such Loans shall automatically convert to Base Rate Loans on the last day of the current Interest Period therefor.  Administrative Agent shall as soon as practicable notify Borrower of each determination of the Interest Rate applicable to each Loan.

(e)                                  Interest Computations.  All computations of interest based on the Base Rate when calculated using the Prime Rate shall be based upon a year of 365 days or, in the case of a leap year, 366 days, shall be payable for the actual days elapsed (including the first day but excluding the last day) in the period for which such interest is payable, and shall be adjusted in accordance with any changes in the Base Rate to take effect on the beginning of the day of such change in the Base Rate.  All computations of interest based on the Eurodollar Rate and the Federal Funds Rate shall be based upon a year of 360 days and shall be payable for the actual days elapsed (including the first day but excluding the last day) in the period for which such

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interest or fees are payable.  Borrower agrees that all computations by Administrative Agent of interest shall be conclusive and binding in the absence of manifest error.

2.1.3                     [Reserved]

2.1.4                     Loan Funding.

(a)                                 Notice to Lenders.  Administrative Agent shall promptly notify each Lender of the contents of each Notice of Borrowing and Notice of Interest Terms.

(b)                                 Pro Rata Loans.  All Loans shall be made on a pro rata basis by the Lenders in accordance with their respective Proportionate Shares of such Loans, with each Borrowing to consist of a Loan by each Lender equal to such Lender’s Proportionate Share of such Loan.

(c)                                  Lender Funding.  Before 11:00 a.m. on the date of each Borrowing of a Eurodollar Loan and before 2:00 p.m. on the date of each Borrowing of a Base Rate Loan, each Lender shall make available to the account of Administrative Agent most recently designated by it for such purpose, by wire transfer, immediately available funds in Dollars, such Lender’s Proportionate Share of the Loan to be made on such date.  The failure of any Lender to make the Loan to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation hereunder to make its Loan on the date of such Loan.  No Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender on the date of any Borrowing.

(d)                                 Failure of Lender to Fund.  Unless Administrative Agent shall have been notified by any Lender prior to the applicable date of a Borrowing that such Lender does not intend to make available to Administrative Agent the amount of such Lender’s Proportionate Share of the Loan requested on such date, Administrative Agent may assume that such Lender has made such amount available to Administrative Agent on such date in accordance with the prior paragraph and Administrative Agent may, in its sole discretion and in reliance upon such assumption, make available to Borrower a corresponding amount on such date.  If such corresponding amount is not in fact made available to Administrative Agent by such Lender, Administrative Agent shall be entitled to recover such corresponding amount on demand (and, in any event, within two Business Days from the applicable date of such Borrowing) from such Lender together with interest thereon, for each day from the applicable date of such Borrowing until the date such amount is paid to Administrative Agent, at the Federal Funds Rate for the first two Business Days after such date.  If such Lender pays such amount to Administrative Agent, then such amount shall constitute such Lender’s Proportionate Share of such Loan.  If such Lender does not pay such corresponding amount forthwith upon Administrative Agent’s demand therefor or within two Business Days from the applicable date of such Borrowing, Administrative Agent shall promptly notify Borrower and Borrower shall immediately pay such corresponding amount to Administrative Agent together with interest thereon, for each day from the applicable date of such Borrowing until the date such amount is paid to Administrative Agent, at the rate then payable under this Agreement for Base Rate Loans.  Any amounts repaid by Borrower pursuant to this Section 2.1.4(d) shall be available for re-borrowing if (i) the non-funding Lender makes available to Administrative Agent the amount of such Lender’s

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Proportionate Share of the Loan requested, including interest thereon, or (ii) a substitute Lender advances such repaid amounts pursuant to Section 11.14.  Nothing in this Section 2.1.4(d) shall be deemed to relieve any Lender from its obligation to fulfill its obligations hereunder or to prejudice any rights that Borrower may have against any Lender as a result of any default by such Lender hereunder.

(e)                                  Construction Account.  No later than 2:00 p.m. on the date specified in each Notice of Borrowing, if the applicable conditions precedent listed in Article 3 have been satisfied or waived in accordance with the terms thereof and, subject to Section 2.1.4(d), to the extent Administrative Agent shall have received the appropriate funds from the Lenders, Administrative Agent shall make available the Loans requested in such Notice of Borrowing (or so much thereof as shall have been determined pursuant to Section 3.4) in Dollars and in immediately available funds, and shall deposit or cause to be deposited the proceeds of such Loans into the Construction Account.

2.1.5                     Conversion of Loan Type; Continuation of Eurodollar Loans.  Upon notice as provided in Section 2.1.6, Borrower may convert Loans from one Type to another Type or continue a Eurodollar Loan; provided, that:

(a)                                 any conversion of Eurodollar Loans into Base Rate Loans shall be made on, and only on, the first day after the last day of an Interest Period for such Eurodollar Loans; provided that such conversion may be made on another date so long as Borrower pays any applicable Eurodollar Breakage Costs;

(b)                                 Loans shall be converted into Eurodollar Loans only in amounts of $1,000,000 and increments of $100,000 in excess thereof;

(c)                                  any portion of a Loan maturing or required to be repaid in less than one month may not be converted into or continued as a Eurodollar Loan;

(d)                                 notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing, Administrative Agent or the Required Lenders may require, by notice to Borrower (provided that if such Event of Default is an Event of Default under Section 8.1.2 applicable to Borrower, then the following shall be automatic rather than following notice), that (i) no outstanding Loan may be converted to or continued as a Eurodollar Loan and (ii) unless repaid, each Eurodollar Loan shall be converted to a Base Rate Loan at the end of the Interest Period applicable thereto; and

(e)                                  any portion of a Eurodollar Loan that cannot be converted or continued as a Eurodollar Loan, or with respect to which Borrower fails to give a timely Notice of Interest Terms, appropriately completed in accordance with the instructions contained in such form, shall be converted at the end of an Interest Period then in effect for such Eurodollar Loan into a Base Rate Loan.

2.1.6                     Notice of Interest Terms.  Borrower shall request a Loan conversion or continuation, as the case may be, by delivering to Administrative Agent a Notice of Interest Terms in the form of Exhibit C-2, appropriately completed in accordance with the instructions contained in such form (a “Notice of Interest Terms”).  Borrower shall deliver each Notice of

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Interest Terms within the applicable Minimum Notice Period.  Any Notice of Interest Terms shall be irrevocable.

2.1.7                     Prepayments.

(a)                                 Terms of All Prepayments.

(i)                                     Upon the prepayment of any Loan (whether such prepayment is an optional prepayment under Section 2.1.7(b) or a Mandatory Prepayment), Borrower shall pay to Administrative Agent for the account of each Lender which made such Loan, (A) all accrued interest to the date of such prepayment on the amount of such Loan prepaid, (B) all accrued fees to the date of such prepayment relating to the amount of such Loan being prepaid, and (C) if such prepayment is the prepayment of a Eurodollar Loan on a day other than the last day of an Interest Period for such Eurodollar Loan, all Eurodollar Breakage Costs incurred by such Lender as a result of such prepayment.

(ii)                                  Notwithstanding the foregoing, but only in respect of any Mandatory Prepayment, Borrower shall have the right, by giving five Business Days’ notice to Administrative Agent, in lieu of prepaying a Eurodollar Loan on a day other than the last day of an Interest Period for such Eurodollar Loan, to deposit or cause Administrative Agent to deposit into the Repayment Account an amount equal to the Eurodollar Loans to be prepaid.  Such funds shall be held in the Repayment Account until the expiration of the Interest Period applicable to the Eurodollar Loan to be prepaid at which time such amount shall be used to prepay such Eurodollar Loan and any interest accrued on such amount shall be deposited into the Revenue Account.  The deposit of amounts into the Repayment Account shall be deemed to satisfy Borrower’s obligation to make the relevant Mandatory Prepayment on its due date, but shall not, however, constitute a prepayment of Loans and all Loans to be prepaid using the proceeds from the Repayment Account shall continue to accrue interest at the then applicable interest rate for such Loans until actually prepaid.  All amounts in the Repayment Account shall only be invested in Permitted Investments as directed in the sole discretion of Administrative Agent.  Borrower shall bear the expense and risk of any such investment.

(b)                                 Optional Prepayments.  Subject to Section 2.1.7(a), Borrower may, at its option and without premium or penalty, upon three Business Days’ notice to Administrative Agent, prepay any Loans in whole or from time to time in part in minimum principal amounts of $1,000,000 or an incremental multiple of $100,000 in excess thereof (provided, that such minimum amounts shall not apply to a prepayment of all outstanding Loans).

(c)                                  Mandatory Prepayments.  Borrower shall prepay Loans (i) to the extent required by Sections 7.4, 7.5 and 7.6, (ii) with the Net Cash Proceeds received in connection with the issuance of Debt (other than Debt permitted under the Credit Documents), (iii) with the Net Cash Proceeds of any Equity Issuance (including, but not limited to any tax equity contribution relating to Borrower or the Project), (iv) with the proceeds of any Grant unless the Tax Equity Contribution Conditions have been met, (v) with any Prepayment Amount, or (vi) as required under any other provision of the Credit Documents which requires such prepayment (each such prepayment, a “Mandatory Prepayment”).  The provisions of this Section 2.1.7(c) 

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shall not be deemed to be implied consent to any issuance, incurrence or sale otherwise prohibited by the terms and conditions of this Agreement.

(d)                                 Notice of Prepayment.  Borrower shall notify Administrative Agent by notice of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Loan, not later than 11:00 a.m. three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 11:00 a.m. two Business Days before the date of prepayment.  Each such notice shall be irrevocable.  Each such notice shall specify the prepayment date and the principal amount of each Loan or portion thereof to be prepaid and, in the case of a Mandatory Prepayment, a reasonably detailed calculation of the amount of such prepayment.  If any notice of prepayment is given, the amount specified in such notice shall be due and payable on the date specified therefor, together with accrued interest to the payment date on the principal amount to be prepaid.  Upon receipt of any notice of prepayment, Administrative Agent shall promptly advise the Lenders of the contents thereof.

(e)                                  Repayment Account.  All prepayments (whether optional prepayments or Mandatory Prepayments) shall be deposited in the Repayment Account for immediate application to the repayment of Loans (subject to Sections 2.1.7(a)(ii) and 2.7.1).

2.2                               TOTAL COMMITMENTS.

2.2.1                     Total Loan Commitment.  The aggregate principal amount of all Loans made by the Lenders shall not exceed $247,000,000, as such amount may be reduced pursuant to Section 2.2.2 (such amount, so reduced from time to time, the “Total Loan Commitment”).

2.2.2                     Reductions and Cancellations.

(a)                                 Voluntary Reductions and Cancellations.  Borrower may, from time to time upon five Business Days notice to Administrative Agent, permanently reduce (without premium or penalty), by an amount of $1,000,000 or an integral multiple of $100,000 in excess thereof or cancel in its entirety the Total Loan Commitment, subject to the provisions of Section 2.1.7(b) and this Section 2.2.2(a).  Borrower may not reduce or cancel the Total Loan Commitment if, after giving effect to such reduction or cancellation, (a) the aggregate principal amount of all Loans then outstanding would exceed the Total Loan Commitment, (b) the Available Construction Funds would not, in the reasonable judgment of Administrative Agent and the Independent Engineer, equal or exceed remaining Project Costs (including budgeted contingency (or the appropriate part thereof) and anticipated Eurodollar Breakage Costs, if any, arising from any prepayment related to such reduction or cancellation), or (c) such reduction or cancellation would cause a Default or Event of Default or have a Material Adverse Effect.

(b)                                 Mandatory Reduction.  In the event that there is an update to the Cost Segregation Report, as provided in Section 5.23, that anticipates a reduction in the expected amount of the Grant, as compared to the prior Cost Segregation Report, the Total Loan Commitment shall be provisionally reduced by an amount equal to the amount of such reduction multiplied by 95%.  Such reduction shall become permanent upon achievement of the Commercial Operation Date in the event that no update to the Cost Segregation Report at that

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time has restored the expected amount of the Grant (without taking into account any increase in the expected amount of the Grant resulting from expenditure of contingency).

(c)                                  Commitment Fee for Reductions and Cancellations.  Borrower shall pay to Administrative Agent any Commitment Fee then due in respect of the canceled or reduced portion of the Total Loan Commitment (if applicable) upon any cancellation or reduction and, from the effective date of any cancellation or reduction, the Commitment Fee shall be computed on the basis of the amount of the Total Loan Commitment as so canceled or reduced.  No such reduction shall apply to Total Loan Commitments that are only provisionally reduced pursuant to Section 2.2.2(b).

(d)                                 Increase or Reinstatement; Ratable Application.  Once reduced or canceled, the applicable Commitment may not be increased or reinstated.  Any reduction in the Total Loan Commitment pursuant to this Section 2.2.2 shall be applied ratably to each Lender’s Loan Commitments in accordance with Section 2.5.1.

2.3                               FEES.

2.3.1                     Administrative Agent Fees.  Borrower shall pay to Administrative Agent solely for Administrative Agent’s account the fees and other amounts described in the Fee Letter.

2.3.2                     Commitment Fee.  On the last Business Day in each calendar quarter and on and until the Maturity Date (or, if the Total Loan Commitment is canceled prior to such date, on the date of such cancellation), Borrower shall pay to Administrative Agent, for the benefit of the Lenders (other than any Defaulting Lender which becomes a Defaulting Lender by virtue of clause (a) of the definition of “Defaulting Lender”), accruing from the Closing Date or the first day of such quarter, as the case may be, a commitment fee for such quarter (or portion thereof) then ending equal to the product of (a) the daily average Available Loan Commitment (excluding any of the Available Loan Commitment of any such Defaulting Lender) for such quarter (or portion thereof), multiplied by (b) a fraction, the numerator of which is the number of days in such quarter (or portion thereof) and the denominator of which is the number of days in that calendar year (365 or 366, as the case may be), multiplied by (c) 0.75%.

2.3.3                     Arrangement Fees.  Borrower shall pay to the Lead Arranger, solely for the account of such Person in such capacity, the fees as described and in the manner set forth in the Fee Letter.

2.4                               OTHER PAYMENT TERMS.

2.4.1                     Place and Manner.  Except as otherwise provided in the Fee Letter or any other provision contained in any of the Credit Documents, Borrower shall make all payments due hereunder to Administrative Agent, to the account in the name of Milford Wind Corridor Phase II, Account No. 400931052, at JPMorgan Chase Bank, ABA No. ▇▇▇▇▇▇▇▇▇, or such other account as Administrative Agent shall notify Borrower from time to time, in Dollars and in immediately available funds not later than 12:00 noon on the date on which such payment is due.  Any payment made after such time on any day shall be deemed received on the Business Day after such payment is received.  Administrative Agent shall distribute to each Secured Party each such payment received by Administrative Agent for such Secured Party to be applied in accordance

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with the terms of this Agreement, such disbursement to occur on the day such payment is received if received by 12:00 noon or if otherwise reasonably possible, or otherwise on the next Business Day.  Upon its acceptance and recording in the Register of any Assignment and Assumption entered into under Section 13.17, from and after the effective date specified therein, Administrative Agent shall make all the payments hereunder in respect of this Agreement interest assigned thereby to the Lender assignee thereunder, and the parties to such Assignment and Assumption shall make all appropriate adjustments in such payments for periods prior to such effective date directly between themselves.

2.4.2                     Date.  Whenever any payment due hereunder shall fall due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall be included in the computation of interest or fees, as the case may be, without duplication of any interest or fees so paid in the next subsequent calculation of interest or fees payable; provided, however, that, if such extension would cause payment of interest on or principal of a Eurodollar Loan to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.

2.4.3                     Default Rate.  Notwithstanding anything to the contrary herein, upon the occurrence and during the continuation of any Event of Default, the outstanding principal amount of all Loans and, to the extent permitted by applicable Legal Requirements, any accrued but unpaid interest payments thereon and any accrued but unpaid fees and other amounts hereunder, shall thereafter bear interest (including post-petition interest in any proceeding under applicable Bankruptcy Laws) from the date of such Event of Default until the Event of Default is cured or waived, after as well as before judgment, payable upon demand at a rate that is (a) 2% per annum in excess of the interest rate then otherwise payable under this Agreement with respect to the applicable Loans or (b) in the case of any such fees and other amounts, at a rate that is 2% per annum in excess of the interest rate then otherwise payable under this Agreement for Base Rate Loans (the “Default Rate”).  Payment or acceptance of the increased rates of interest provided for in this Section is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of any Secured Party.

2.4.4                     Net of Taxes, Costs, Etc.

(a)                                 Taxes.  Any and all payments to or for the benefit of any Secured Party by Borrower under any Credit Document shall be made free and clear of and without deduction, set-off or counterclaim of any kind whatsoever and in such amounts as may be necessary in order that all such payments, after deduction for or on account of any present or future taxes, assessment, levies, imposts, duties, deductions, charges or withholdings, and all liabilities with respect thereto (excluding (i) income or franchise taxes imposed on or measured by the net income, net profits or capital of such Secured Party by any jurisdiction or any political subdivision or taxing authority thereof or therein as a result of a connection between such Secured Party and such jurisdiction or political subdivision, unless such connection results solely from such Secured Party’s executing, delivering or performing its obligations or receiving a payment under, or enforcing, this Agreement (such excluded taxes described in (i) being hereinafter referred to as “Excluded Lender Income Taxes”), and (ii) any withholding tax that is imposed on amounts payable to a Secured Party at the time it becomes a party to this Agreement,

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except to the extent that such Secured Party’s assignor was entitled to receive additional amounts from Borrower with respect to such withholding tax pursuant to this Section 2.4.4) (all such non-excluded taxes, assessment, levies, imposts, duties, deductions, charges or withholdings and liabilities being hereinafter referred to as “Taxes”), shall be equal to the amounts otherwise specified to be paid under the Credit Documents.  If Borrower shall be required by applicable Legal Requirements to withhold or deduct any Taxes from or in respect of any sum payable under any Credit Document to any Secured Party, (i) subject to such Secured Party’s compliance with Section 2.4.6, the sum payable shall be increased as may be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 2.4.4), such Secured Party receives an amount equal to the sum it would have received had no such deductions been made, (ii) Borrower shall make such deductions and (iii) Borrower shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable Legal Requirements.  In addition, Borrower agrees to pay any present or future stamp, recording or documentary taxes and any other excise or property taxes, charges or similar levies (not including Excluded Lender Income Taxes) that arise under the laws of the United States of America, the State of New York, the Project Jurisdiction, the state of Borrower’s formation or any other jurisdiction from any payment made under any Credit Document or from the execution or delivery or otherwise with respect to any Credit Document (hereinafter referred to as “Other Taxes”).

(b)                                 Tax Indemnity.  Borrower shall indemnify such Secured Party for and hold it harmless against the full amount of Taxes and Other Taxes (including any Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this Section 2.4.4) paid by any Secured Party, or any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, whether or not such Taxes or Other Taxes were correctly or legally asserted.  Payments by Borrower pursuant to this indemnification shall be made within 30 days from the date such Secured Party makes written demand therefor (submitted through Administrative Agent), which demand shall be accompanied by a certificate describing in reasonable detail the basis thereof; provided, that if such Secured Party procures the refund of any indemnified amount, such Secured Party shall pay the amount of such refund, net of costs and taxes incurred by such Secured Party as a result of such refund, to Borrower within 30 days after receipt of such refund amount, provided, however, that for the avoidance of doubt, this sentence shall not be construed to grant the Borrower any right to review the tax returns of such Secured Party.

(c)                                  Notice.  Within 30 days after the date of any payment of Taxes by Borrower, Borrower shall furnish to Administrative Agent, at its address referred to in Section 13.1.1, the original or a certified copy of a receipt evidencing payment thereof or, if such receipt is not obtainable, other evidence of such payment by Borrower reasonably satisfactory to Administrative Agent.  Borrower shall compensate each Secured Party for all reasonable losses and expenses sustained by such Secured Party as a result of any failure by Borrower to so furnish such copy of such receipt.  In the event of any payment hereunder by or on behalf of Borrower through an account or branch outside the United States or on behalf of Borrower by a payor that is not a United States person, if Borrower determines that no Taxes are payable in respect thereof, Borrower shall furnish, or cause such payor to furnish, to Administrative Agent an opinion of counsel reasonably acceptable to Administrative Agent stating that such payment is exempt from Taxes.  For purposes of this Section, the terms “United States” and “United States person” have the respective meanings specified in Section 7701 of the Code.

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2.4.5                     Application of Payments.  Except as otherwise expressly provided in any Credit Document, payments made under the Credit Documents and other amounts received by the Secured Parties under the Credit Documents shall first be applied to any fees, costs, charges or expenses payable to the Secured Parties under the Credit Documents, next to any accrued but unpaid interest then due and owing, then to outstanding principal then due and owing or otherwise to be prepaid, in each case, such application to be made on a pro rata basis among such applicable Persons.

2.4.6                     Withholding Exemption Certificates.  Administrative Agent on the Closing Date and each Lender upon becoming a Lender and each Person to which any Lender grants a participation (or otherwise transfers its interest in this Agreement) agree that such Lender or Person will deliver to Administrative Agent and Borrower either (a) if such Lender or Person is organized under the laws of the United States or any political subdivision thereof, an executed copy of a United States Internal Revenue Service Form W-9, or (b) if such Lender or Person is not organized under the laws of the United States or any political subdivision thereof two duly completed copies of United States Internal Revenue Service Form W-8BEN or W-8ECI or successor applicable form, as the case may be (certifying therein (i) in case such Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, an entitlement to a reduction in, or an exemption from, United States withholding taxes with respect to payments of interest, and (ii) otherwise, an entitlement to an exemption from United States withholding taxes) and, in case such Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a duly completed and executed non-bank certificate in the form of Exhibit I.  Each Lender which delivers to Borrower and Administrative Agent a Form W-8BEN or W-8ECI pursuant to the preceding sentence further undertakes to deliver to Borrower and Administrative Agent further copies of the Form W-8BEN or W-8ECI, or successor applicable forms, or other manner of certification or procedure, as the case may be, on or before the date that any such form expires or becomes obsolete or within a reasonable time after gaining knowledge of the occurrence of any event requiring a change in the most recent forms previously delivered by it to Borrower, and such extensions or renewals thereof as may reasonably be requested by Borrower, certifying in the case of a Form W-8BEN or W-8ECI that such Lender is entitled to receive payments under this Agreement without deduction or withholding of any United States federal income taxes, unless in any such cases any change in treaty, law or regulation has occurred prior to the date on which any such delivery would otherwise be required which renders such forms inapplicable or which would prevent a Lender from duly completing and delivering any such form with respect to it and such Lender advises Borrower that it is not capable of receiving payments without any deduction or withholding of United States federal income tax, and in the case of Form W-8BEN or W-8ECI, establishing an exemption from United States backup withholding tax.  Notwithstanding any other provision of this Section 2.4.6, a Lender shall not be required to deliver any form pursuant to this Section 2.4.6 that such Lender is not legally able to deliver.  Borrower shall not be obligated to pay any additional amounts in respect of United States federal income tax pursuant to Section 2.4.4 (or make an indemnification payment pursuant to Section 2.4.4) to any Lender (including any entity to which any Lender sells, assigns, grants a participation in, or otherwise transfers its rights under this Agreement) to the extent the obligation to pay such additional amounts (or such indemnification) would not have arisen but for a failure of such Lender to comply with its obligations under this Section 2.4.6.

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2.4.7                     Authorization.  Borrower hereby authorizes Administrative Agent and each Lender, if and to the extent payment owed to such Lender is not made when due, to charge from time to time against any or all of Borrower’s accounts with such Lender any amounts so due.

2.4.8                     Administrative Agent Assumption.  Unless Administrative Agent shall have been notified by Borrower prior to the date on which any payment from Borrower is due hereunder that Borrower does not intend to make such payment in full, Administrative Agent may assume that Borrower has made such payment in full to Administrative Agent on such date and Administrative Agent may, in its sole discretion and in reliance upon such assumption, cause to be distributed to each Secured Party on such due date an amount equal to the amount then due such Secured Party.  If and to the extent Borrower shall not have so made such payment in full to Administrative Agent, each Secured Party shall repay to Administrative Agent forthwith on demand such amount distributed to such Secured Party together with interest thereon, for each day from the date such amount is distributed to such Secured Party until the date such Secured Party repays such amount to Administrative Agent, at the Federal Funds Rate.

2.5                               PRO RATA TREATMENT.

2.5.1                     Borrowings, Commitment Reductions, Etc.  Except as otherwise provided herein, (a) each Borrowing and each reduction of the Total Loan Commitment shall be made or allocated among the Lenders pro rata according to their respective Proportionate Shares of the Loans or Loan Commitments, as the case may be and (b) each payment of principal of and interest on Loans shall be made or shared among the Lenders holding such Loans pro rata according to their respective unpaid principal amounts of such Loans held by such Lenders, and (c) each payment of Commitment Fee upon reduction of the Total Loan Commitment shall be shared among the Lenders pro rata according to (i) their respective Proportionate Shares of the Total Loan Commitment, and (ii) in the case of each Lender which becomes a party to this Agreement hereunder after the Closing Date, the date upon which such Lender so became a party hereunder.

2.5.2                     Sharing of Payments, Etc.  If any Secured Party shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on account of Loans owed to it, in excess of its Proportionate Share of payments on account of such Loans obtained by all Secured Parties entitled to such payments, such Secured Party shall forthwith purchase from the other Secured Parties such participation in the Loans as shall be necessary to cause such purchasing Secured Party to share the excess payment ratably with each of them; provided, that if all or any portion of such excess payment is thereafter recovered from such purchasing Secured Party, such purchase from such Secured Party shall be rescinded and each other Secured Party shall repay to the purchasing Secured Party the purchase price to the extent of such recovery together with an amount equal to such other Secured Party’s Proportionate Share (according to the proportion of (a) the amount of such other Secured Party’s required repayment to (b) the total amount so recovered from the purchasing Secured Party) of any interest or other amount paid or payable by the purchasing Secured Party in respect of the total amount so recovered.  Borrower agrees that any Secured Party so purchasing a participation from another Secured Party pursuant to this Section 2.5.2 may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of set-off) with respect to such

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participation as fully as if such Secured Party were the direct creditor of Borrower in the amount of such participation.

2.6                               CHANGE OF CIRCUMSTANCES.

2.6.1                     Inability to Determine Rates.  If, on or before the first day of any Interest Period for any Eurodollar Loans, (a) Administrative Agent determines that the Adjusted Eurodollar Rate for such Interest Period cannot be adequately and reasonably determined due to the unavailability of funds in or other circumstances affecting the London interbank market, or (b) Lenders holding aggregate Proportionate Shares of 25% or more of the Loan Commitments shall advise Administrative Agent that (i) the rates of interest for such Eurodollar Loans do not adequately and fairly reflect the cost to such Lenders of making or maintaining such Loans or (ii) deposits in Dollars in the London interbank market are not available to such Lenders (as conclusively certified by each such Lender in good faith to Administrative Agent and to Borrower) in the ordinary course of business in sufficient amounts to make and/or maintain their Eurodollar Loans, then Administrative Agent shall immediately give notice of such condition to Borrower and the Lenders.  After the giving of any such notice and until Administrative Agent shall otherwise notify Borrower and the Lenders that the circumstances giving rise to such condition no longer exist Borrower’s right to request the making of or conversion to, and the Lenders’ obligations to make or convert to, Eurodollar Loans shall be suspended and any Eurodollar Loans outstanding at the commencement of any such suspension shall be converted at the end of the then current Interest Period for such Loans into Base Rate Loans unless such suspension has then ended.  In the alternative, if clause (b)(i) has been triggered and Borrower so requests, Borrower’s right to request the making of or conversion to, and the Lenders’ obligations to make or convert to, Eurodollar Loans shall not be suspended and any Eurodollar Loans outstanding at the commencement of any such suspension need not be converted at the end of the then current Interest Period for such Loans into Base Rate Loans, and, until Administrative Agent shall otherwise notify Borrower and the Lenders that the circumstances giving rise to such condition no longer exist, Eurodollar Loans shall bear interest at a rate equal to the weighted average of the rates per annum (calculated on the basis of a year of 365 days) certified to Administrative Agent by each Lender as soon as practicable but, in any event, before interest is due to be paid in respect of such Interest Period, constituting the cost to such Lender of funding its participation in such Borrowing from whatever source it may reasonably select; provided that, in calculating such average the Administrative Agent shall ignore the highest and the lowest rate so certified and any Lender that does not respond (A) within 5 Business Days or (B) prior to interest being due in respect of such Interest Period shall be deemed to have certified the applicable Eurodollar Rate.

2.6.2                     Illegality.  If, after the date of this Agreement, the adoption of any Governmental Rule, any change in any Governmental Rule or the application or requirements thereof (whether such change occurs in accordance with the terms of such Governmental Rule as enacted, as a result of amendment, or otherwise), any change in the interpretation or administration of any Governmental Rule by any Governmental Authority, or compliance by any Lender or Borrower with any request or directive (whether or not having the force of law, but if not having the force of law, being of a type with which a Lender customarily complies) of any Governmental Authority (a “Change of Law”) shall make it unlawful or impossible for any Lender to make or maintain any Eurodollar Loan, then such Lender shall immediately notify

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Administrative Agent and Borrower of such Change of Law.  Upon receipt of such notice, (a) Borrower’s right to request the making of or conversion to, and the Lender’s obligations to make or convert to, Eurodollar Loans shall be suspended for so long as such condition shall exist, and (b) Borrower shall at its option, upon request of such Lender, either (i) pursuant to Section 2.1.5, convert any then outstanding Eurodollar Loans into Base Rate Loans, in accordance with such request, immediately or at the end of the current Interest Periods for such Loans, or (ii) prepay pursuant to Section 2.1.7 any then outstanding Eurodollar Loans.  Any conversion or prepayment of Eurodollar Loans made pursuant to the preceding sentence prior to the last day of an Interest Period for such Loans shall be deemed a prepayment thereof for purposes of Section 2.7.

2.6.3                     Increased Costs.  If, after the date of this Agreement, any Change of Law:

(a)                                 shall subject any Lender to any tax, duty or other charge with respect to any Eurodollar Loan or Commitment in respect thereof, or shall change the basis of taxation of payments by Borrower to any Lender on such a Loan or with respect to any such Commitment (except for Taxes, Other Taxes or changes in the rate of taxation of Excluded Lender Income Taxes); or

(b)                                 shall impose, modify or hold applicable any reserve, special deposit or similar requirement (without duplication of any reserve requirement included within the applicable Interest Rate through the definition of “Reserve Requirement”) against assets held by, deposits or other liabilities in or for the account of, advances or loans by, or any other acquisition of funds by any Lender for any Eurodollar Loan; or

(c)                                  shall impose on any Lender any other condition directly related to any Eurodollar Loan or Commitment in respect thereof;

and the effect of any of the foregoing is to increase the cost to such Lender of making, issuing, creating, renewing, participating in (subject to the limitations in Section 13.17.3) or maintaining any such Eurodollar Loan or Commitment in respect thereof or to reduce any amount receivable by such Lender hereunder, then Borrower shall from time to time, within 10 days after demand by such Lender, pay to such Lender additional amounts sufficient to reimburse such Lender for such increased costs or to compensate such Lender for such reduced amounts.  A certificate setting forth in reasonable detail the amount of such increased costs or reduced amounts and the basis for determination of such amount, submitted by such Lender to Borrower, shall, in the absence of manifest error, be conclusive and binding on Borrower for purposes of this Agreement.

2.6.4                     Capital Requirements.  If any Lender determines that (a) the adoption, effectiveness, phase-in or applicability after the date hereof of any law, rule or regulation (or any provision thereof) regarding capital adequacy, or any change therein or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof, or compliance by any Lender with any guideline, request or directive regarding capital adequacy (whether or not having the force of law) of any such Governmental Authority has or would have the effect of reducing the rate of return on the capital of such Lender, or the Lending Office of such Lender or any Person controlling such Lender (a “Capital Adequacy Requirement”) as a consequence of, or with reference to, such Lender’s Loans or

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Loan Commitments or other obligations hereunder to a level below that which such Lender or such Person could have achieved but for such adoption, effectiveness, phase-in, applicability, change or compliance (taking into consideration the policies of such Lender or such controlling Person with regard to capital adequacy), and (b) the amount of capital maintained by such Lender or such Person which is attributable to or based upon the Loans, the Commitments or this Agreement must be increased as a result of such Capital Adequacy Requirement (taking into account such Lender’s or such Person’s policies with respect to capital adequacy), then Borrower shall pay to such Lender or such Person, within 10 days after delivery of demand by such Lender or such Person, such amounts as such Lender or such Person shall reasonably determine are necessary to compensate such Lender or such Person for such reduced return or the increased costs to such Lender or such Person of such increased capital.  A certificate of such Lender or such Person, setting forth in reasonable detail the computation of any such increased costs, delivered to Borrower by such Lender or such Person shall, in the absence of manifest error, be conclusive and binding on Borrower for purposes of this Agreement.

2.6.5                     Notice.  Each Lender shall notify Borrower of any event occurring after the date of this Agreement that will entitle such Lender to compensation pursuant to this Section 2.6, as promptly as practicable, and in no event later than 180 days after the principal officer of such Lender responsible for administering this Agreement obtains knowledge thereof; provided, that any Lender’s failure to notify Borrower within such 180-day period shall not relieve Borrower of its obligation under this Section 2.6 with respect to claims arising prior to the end of such period, but shall relieve Borrower of its obligations under this Section 2.6 with respect to the time between the end of such period and such time as Borrower receives notice from the indemnitee as provided herein, except that if the event which entitles such Lender to compensation under this Section 2.6 shall be retroactive to a time prior to the commencement of such 180-day period, such period shall commence from such earlier date.  No Person purchasing from a Lender a participation in the Loan Commitment (as opposed to an assignment) shall be entitled to any payment from or on behalf of Borrower pursuant to Section 2.6.3 or Section 2.6.4 which would be in excess of the applicable proportionate amount (based on the portion of the Loan Commitment) which would then be payable to such Lender if such Lender had not sold a participation in that portion of the Loan Commitment.

2.7                               FUNDING LOSSES.

2.7.1                     Eurodollar Funding Costs.  If Borrower shall (a) repay or prepay any Eurodollar Loan on any day other than the last day of an Interest Period for such Loan (whether an optional prepayment or a Mandatory Prepayment), (b) fail to borrow any Eurodollar Loan in accordance with a Notice of Borrowing delivered to Administrative Agent (whether as a result of the failure to satisfy any applicable conditions or otherwise), (c) fail to convert any Loan into a Eurodollar Loan in accordance with a Notice of Interest Terms delivered to Administrative Agent (whether as a result of the failure to satisfy any applicable conditions or otherwise), (d) fail to continue any Eurodollar Loan in accordance with a Notice of Interest Terms delivered to Administrative Agent, (e) fail to make any prepayment in accordance with any notice of prepayment delivered to Administrative Agent, (f) fail to pay when due the principal amount of or interest on any Eurodollar Loan, or (g) convert a Eurodollar Loan to a Base Rate Loan on any date other than the last day of an Interest Period, then Borrower shall, within five days after demand by any Lender, indemnify such Lender and hold it harmless from any and all costs,

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expenses, losses and liabilities (collectively, the “Eurodollar Breakage Costs”) incurred by such Lender as a result of such repayment, prepayment, conversion or failure.  Borrower understands and agrees that Eurodollar Breakage Costs may include costs, expenses, losses and liabilities, but not loss of the Rate Margin, incurred by a Lender as a result of funding and other contracts entered into by such Lender to fund Eurodollar Loans or otherwise arising from the redeployment of funds obtained by it or from fees payable to terminate the deposits from which such funds are obtained.  If for any reason (other than final Maturity of the Loans or upon acceleration of the Loans upon the occurrence and during the continuation of an Event of Default) Borrower is required to repay a portion of the Loans pursuant to the terms of any Credit Document and such repayment would cause Eurodollar Breakage Costs, Administrative Agent agrees, at Borrower’s request, to hold any such funds and only apply such funds to the repayment of the Loans upon the last day of Interest Periods in order to minimize Eurodollar Breakage Costs; provided, that Borrower shall remain liable for any additional interest that accrues on such held funds.

2.7.2                     Calculation of Eurodollar Breakage Costs.  Each Lender demanding payment under this Section 2.7 shall deliver to Borrower a certificate setting forth in reasonable detail the basis for and the amount of costs, expenses and losses for which the demand is made.  Such certificate so delivered to Borrower shall, in the absence of manifest error, be conclusive and binding as to the payable amount for purposes of this Agreement.  For the purpose of calculation of any Eurodollar Breakage Costs each Lender shall be deemed to have actually funded its relevant Eurodollar Loan through the purchase of a deposit bearing interest at the Adjusted Eurodollar Rate in an amount equal to the amount of such Eurodollar Loan and having a maturity comparable to the relevant Interest Period, provided, however, that each Lender may fund each of its Eurodollar Loans in any manner it deems appropriate, and the foregoing assumption shall be utilized only for the calculation of amounts payable under Section 2.7.1.

2.8                               ALTERNATE OFFICE; MINIMIZATION OF COSTS.

2.8.1                     To the extent reasonably possible, each Lender shall designate an alternative Lending Office with respect to its Eurodollar Loans and otherwise take any reasonable actions to reduce any liability of Borrower to any Lender under Section 2.4.4, 2.6.3 or 2.6.4, to avoid triggering clause (b)(i) of Section 2.6.1 or to avoid the unavailability of any Type of Loans under Section 2.6.2 so long as (in the case of the designation of an alternative Lending Office) such Lender, in its sole discretion, determines that (a) such designation is not disadvantageous to such Lender and (b) such actions would eliminate or reduce a material liability to such Lender.  Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or actions within 10 Business Days of demand thereof to Borrower.

2.8.2                     If and with respect to each occasion that a Lender (a) makes a demand for compensation pursuant to Section 2.4.4, 2.6.3 or 2.6.4, (b) has notified Administrative Agent of a circumstance under clause (b)(i) of Section 2.6.1 or (c) is unable for a period of three consecutive months to fund Eurodollar Loans pursuant to Section 2.6.2 or such Lender is a Defaulting Lender then Borrower may, upon at least five Business Days’ prior irrevocable notice to each of such Lender and Administrative Agent, in whole permanently replace the Loans and Loan Commitments of such Lender; provided, that Borrower shall replace such Loans and Loan

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Commitments of such Lender with the Loans and Loan Commitments of a commercial bank reasonably satisfactory to Administrative Agent.  Such replacement Lender shall upon the effective date of replacement purchase the Obligations owed to such replaced Lender for the aggregate amount thereof and shall thereupon for all purposes become a “Lender” hereunder.  Such notice from Borrower shall specify an effective date for the replacement of such Lender’s Loans and Loan Commitments, which date shall not be later than the 14th day after the day such notice is given.  On the effective date of any replacement of such Lender’s Loans and Loan Commitments pursuant to this Section 2.8.2, Borrower shall pay to Administrative Agent for the account of such Lender (a) any fees due to such Lender to the date of such replacement, (b) the principal of and accrued interest on the principal amount of outstanding Loans held by such Lender to the date of such replacement (such amount to be represented and funded by the purchase of the Obligations of such replaced Lender by the replacing Lender and not as a prepayment of such Loans), and (c) the amount or amounts due to such Lender pursuant to each of Sections 2.4.4, 2.6.3 or 2.6.4, as applicable, and any other amount then payable hereunder to such Lender.  Borrower will remain liable to such replaced Lender for any Eurodollar Breakage Costs that such Lender sustains or incurs as a consequence of the purchase of such Lender’s Loans (unless such Lender has defaulted on its obligation to fund a Loan hereunder).  Upon the effective date of the purchase of any Lender’s Loans owed to such Lender and termination of such Lender’s Loan Commitments pursuant to this Section 2.8.2, such Lender shall cease to be a Lender hereunder.  No such termination of any such Lender’s Loan Commitments and the purchase of such Lender’s Loans pursuant to this Section 2.8.2 shall affect (i) any liability or obligation of Borrower or any other Lender to such terminated Lender, or any liability or obligation of such terminated Lender to Borrower or any other Lender, or any obligation under Section 5.10, which accrued on or prior to the date of such termination or (ii) such terminated Lender’s rights hereunder in respect of any such liability or obligation.

2.8.3                     Upon notice to Administrative Agent, any Lender may designate a Lending Office other than the Lending Office most recently designated to Administrative Agent and may assign all of its interests under the Credit Documents to such Lending Office; provided, that such designation and assignment do not at the time of such designation and assignment increase the reasonably foreseeable (a) liability of Borrower under Section 2.4.4, 2.6.3 or 2.6.4, (b) trigger clause (b)(i) of Section 2.6.1 or (c) make an Interest Rate option unavailable pursuant to Section 2.6.2.

2.9                               REGISTER.  Administrative Agent shall maintain a register at its offices (the “Register”) for the recordation of certain information hereunder from time to time.  The Register shall be available for inspection by Borrower or any Secured Party (as to its Commitment only) at any reasonable time and from time to time upon reasonable prior notice.  Administrative Agent shall record in the Register (a) the Loan Commitments and the Loans from time to time of each Lender, (b) the interest rates applicable to all Loans and the effective dates of all changes thereto, (c) the Interest Period for each Eurodollar Loan, (d) the date and amount of any principal or interest due and payable or to become due and payable from Borrower to each Lender hereunder, (e) each repayment or prepayment in respect of the principal amount of the Loans of each Lender, (f) the amount of any sum received by Administrative Agent hereunder for the account of the Secured Parties and each Secured Party’s share thereof, (g) a copy of each Assignment and Assumption, and (h) such other information as Administrative Agent may determine is necessary for the administering of the Loans and this Agreement.  Any such

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recording shall be conclusive and binding in the absence of manifest error; provided, that neither the failure to make any such recordation, nor any error in such recordation, shall affect any Lender’s Loan Commitment or the Obligations in respect of any applicable Loans or otherwise; and provided, further, that in the event of any inconsistency between the Register and any Secured Party’s records, the Register shall govern absent manifest error.

ARTICLE 3
CONDITIONS PRECEDENT

3.1                               CONDITIONS PRECEDENT TO THE CLOSING DATE.  The funding of the initial Borrowing hereunder is subject to the prior satisfaction of each of the following conditions unless waived by all Lenders (the date such conditions precedent are so satisfied or waived being referred to as the “Closing Date”):

3.1.1                     Resolutions.  Delivery to Administrative Agent and each Lender of a copy of one or more resolutions or other authorizations, in form and substance reasonably satisfactory to Administrative Agent and each Lender, of each Credit Party and each other Affiliate of Borrower that is a party to a Project Document (each such affiliate, together with the Credit Parties, the “Borrower Entities”) certified by a Responsible Officer of each such Borrower Entity as being true, complete, in full force and effect on the Closing Date and not amended, modified, revoked or rescinded, authorizing, as applicable and among other things, the Borrowings herein provided for, the granting of the Liens under the Collateral Documents, the provision of the guaranties, the contribution of equity to Borrower and the execution, delivery and performance of this Agreement, the other Operative Documents and any instruments or agreements required hereunder or thereunder to which such Borrower Entity is a party.

3.1.2                     Incumbency.  Delivery to Administrative Agent and each Lender of a certificate, in form and substance reasonably satisfactory to Administrative Agent and each Lender, from each Borrower Entity signed by the appropriate authorized officer or manager of each such Borrower Entity and dated as of the Closing Date, as to the incumbency and specimen signature of each natural Person authorized to execute and deliver this Agreement, the other Operative Documents and any instruments or agreements required hereunder or thereunder to which such Borrower Entity is a party, including various certificates to be delivered by such Borrower Entity pursuant to this Section 3.1.

3.1.3                     Governing Documents.  Delivery to Administrative Agent and each Lender, in each case certified by a Responsible Officer of such Borrower Entity as being true, correct and complete on the Closing Date, of (a) copies of the certificate of formation, charter or other state certified constituent documents of each Borrower Entity, certified as of a recent date by the secretary of state of such Borrower Entity’s state of organization, and (b) copies of the bylaws, limited liability company operating agreement, partnership agreement or other comparable operating documents, if applicable, of each Borrower Entity.

3.1.4                     Good Standing Certificates.  Delivery to Administrative Agent and each Lender of certificates (in so-called “long-form” if available) issued by (a) the secretary of state of the state in which each Borrower Entity and Major Project Participant (except SCPPA, BLM and ▇▇▇▇▇) is formed or incorporated, as applicable, and (b) in the case of Borrower and each Major

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Project Participant (except SCPPA, BLM, ▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ Corporation, a North Dakota corporation, and the Bailees), the Secretary of the State of Utah, in each case (i) dated a date reasonably close to the Closing Date and (ii) certifying that such Borrower Entity and Major Project Participant is in good standing and is qualified to do business in, and has paid all franchise taxes or similar taxes due to, such states.

3.1.5                     Third Party Approvals.  Except for the Permits listed in Part II of the Permit Schedule, Administrative Agent and each Lender shall have received all information and copies of all documents and copies of any consent or approval by any Person (including any Governmental Authority) reasonably required by any Borrower Entity or any other Major Project Participant as of the Closing Date in connection with any transaction contemplated in any Credit Document; provided that copies of documents, consents and approvals with respect to Major Project Participants other than the Borrower Entities must only be delivered to the extent such copies are obtainable by Borrower.

3.1.6                     Credit Documents and Project Documents.  Delivery to Administrative Agent and each Lender of (a) originals of each Credit Document other than any expressly contemplated hereby to be executed and delivered after the Closing Date, all of which shall (i) have been duly authorized, executed and delivered by the parties thereto and are in form and substance reasonably satisfactory to Administrative Agent and each Lender, and (ii) be in full force and effect and accompanied by a certificate of Borrower certifying to the foregoing in accordance with Section 3.1.7, and (b) a certified list of, and true, correct and complete copies of, each Project Document (other than any Project Document which is only incidental to the development, construction, leasing, ownership or operation of the Project) executed on or prior to the Closing Date, each in form and substance reasonably satisfactory to the Administrative Agent and each Lender, all of which shall (x) have been duly authorized, executed and delivered by the parties thereto, (y) be certified by Borrower as being true, complete and correct and in full force and effect on the Closing Date in accordance with Section 3.1.7, and (z) be in form and substance reasonably satisfactory to Administrative Agent and each Lender.

3.1.7                     Certificate of Borrower Entities.  Delivery to Administrative Agent and each Lender of a certificate, dated as of the Closing Date, duly executed by a Responsible Officer of Borrower, in substantially the form of Exhibit F-1, of Pledgor in substantially the form of Exhibit F-2, and of the other Borrower Entities, in substantially the form of Exhibit F-3.

3.1.8                     Legal Opinions.  Delivery to Administrative Agent and each Lender of legal opinions with respect to the transactions contemplated hereby of counsel to the Borrower Entities and each Major Project Participant as set forth on Exhibit E-3, in each case addressed to the Secured Parties and in form and substance reasonably satisfactory to Administrative Agent and each Lender.

3.1.9                     Certificate of Insurance Consultant.  Delivery to Administrative Agent and each Lender of the Insurance Consultant’s certificate, dated as of the Closing Date and in substantially the form of Exhibit F-4, together with the Insurance Consultant’s report that (i) summarizes the proposed insurance arrangements for the Project, (ii) concludes that such insurance is adequate and customary and (iii) is otherwise in form and substance reasonably satisfactory to Administrative Agent and each Lender, attached thereto.

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3.1.10              Insurance.  Insurance complying with terms and conditions set forth in Exhibit K shall be in full force and effect to the extent then required by such terms and conditions and Administrative Agent, each Lender and the Insurance Consultant shall have (i) received a certificate from Borrower’s insurance broker(s), dated as of the Closing Date and in form and substance reasonably satisfactory to Administrative Agent and each Lender, (a) identifying underwriters, type of insurance, insurance limits and policy terms, (b) listing the special provisions required as set forth in Exhibit K, (c) describing the insurance obtained and (d) stating that such insurance is in full force and effect and that all premiums then due thereon have been paid and that, in the opinion of such broker(s), such insurance complies with the terms and conditions set forth in Exhibit K, and (ii) certified copies of all policies evidencing such insurance (or a binder, commitment or certificates signed by the insurer or a broker authorized to bind the insurer), in form and substance reasonably satisfactory to Administrative Agent, each Lender and the Insurance Consultant.

3.1.11              Certificate of the Independent Engineer.  Delivery to Administrative Agent and each Lender of Independent Engineer’s certificate, dated as of the Closing Date and in substantially the form of Exhibit F-5, together with the Independent Engineer’s report (the “IE Report”), which (i) addresses the capital budget, construction plan and responsibilities, overall Project design (including the appropriateness of the turbine technology for the Project), turbine warranty, turbine output, turbine reliability, fleet history and design, availability and noise guaranties (if applicable), total Project Costs to complete, adequacy of all civil works (including the balance of plant contracts in relation to the Turbine Supply Agreement), electrical works, interconnection, transmission, overall wind farm and grid engineering and functionality, feasibility of the Project Schedule, equipment selection, probable performance and environmental matters, (ii) contains a construction budget in the form attached hereto as Exhibit G-2, and (iii) is in form and substance reasonably satisfactory to Administrative Agent and each Lender, attached thereto.

3.1.12              Reports of Borrower’s Environmental Consultant.  Delivery to Administrative Agent and each Lender of the Phase I Environmental Report along with a reliance letter, in form and substance reasonably satisfactory to Administrative Agent and each Lender, permitting the Secured Parties to rely on such Phase I Environmental Report.

3.1.13              Independent Wind Consultant Report.  Delivery to Administrative Agent and each Lender of the Wind Report along with a reliance letter, in form and substance reasonably satisfactory to Administrative Agent and each Lender.

3.1.14              Permit Schedule and Applicable Third Party Permits.

(a)                                 Delivery to Administrative Agent and each Lender of Exhibit G-1, the schedule of Permits (“Permit Schedule”), in form and substance reasonably satisfactory to Administrative Agent and each Lender, of which (i) Part I(A) shall be Permits which are Applicable Permits as of the Closing Date, (ii) Part I(B) shall be Permits which to Borrower’s knowledge are Applicable Third Party Permits as of the Closing Date, (iii) Part II(A) shall be Permits which are to Borrower’s knowledge expected to become Applicable Permits after the Closing Date, and (iv) Part II(B) shall be Permits which to Borrower’s knowledge are expected to become Applicable Third Party Permits after the Closing Date.  Borrower shall also deliver to

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Administrative Agent and each Lender copies of each Permit listed in Part I(A) and, to the extent obtainable, Part I(B), in form and substance reasonably satisfactory to Administrative Agent and each Lender.  The Permits listed in Part I(A) and Part I(B) shall in Administrative Agent’s and each Lender’s reasonable opinion comprise all of the Applicable Permits and Applicable Third Party Permits, respectively, as of the Closing Date.

(b)                                 Except as disclosed in the Permit Schedule, each Permit listed in Part I(A) shall (i) have been duly obtained or been assigned in Borrower’s name, (ii) be in full force and effect, (iii) not be subject to any current legal proceeding, and (iv) not be subject to any Unsatisfied Condition that could reasonably be expected to result in material modification or revocation of such Permit, and all applicable appeal periods with respect to each such Permit shall have expired.  Except as disclosed in the Permit Schedule, to Borrower’s knowledge each Permit listed in Part I(B) shall (A) have been duly obtained or have been assigned in the name of the applicable Major Project Participant or its contractor or subcontractor (B) be in full force and effect, (C) not be subject to any current legal proceeding and (D) not be subject to any Unsatisfied Condition that could reasonably be expected to result in material modification or revocation of such Permit, and all applicable appeal periods with respect to each such Permit shall have expired.

(c)                                  The Permits listed in Part II of the Permit Schedule shall, in Administrative Agent’s and each Lender’s reasonable opinion, be timely obtainable (i) on or before the date Borrower or the applicable other Person (as identified in the Permit Schedule) requires such Permit, (ii) without delay materially in excess of the time provided therefor in the Project Schedule (if applicable), and (iii) without expense materially in excess of the amounts provided therefor in the Project Budget by Borrower or such other Person.

(d)                                 No Permit listed in Part I of the Permit Schedule shall be subject to any restriction, condition, limitation or other provision which could reasonably be expected to have a Material Adverse Effect or result in the Project being operated in a manner substantially inconsistent with the assumptions underlying the Base Case Projections.

3.1.15              Absence of Litigation.  Except as set forth in Exhibit G-4, there are no actions, suits, investigations or proceedings by or before any Governmental Authority or arbitrator pending or, to Borrower’s knowledge, threatened in writing by or against Borrower, any Major Project Participant related to the Project or the Project.

3.1.16              Payment of Fees.  All taxes, fees and other costs payable in connection with the execution, delivery, title premiums, survey charges, recordation and filing of the documents and instruments referred to in this Section 3.1 and due on or before the Closing Date shall have been paid in full or, if and in the manner specifically approved by the Lenders, provided for.  Borrower shall have paid (or caused to be paid) or shall have made arrangements in the manner reasonably satisfactory to the payee for the payment from the proceeds of the initial disbursement of the Loans of all outstanding amounts due, as of the Closing Date, and owing to (a) the Secured Parties under any fee or other letter or otherwise pursuant to Section 2.3, and (b) the Secured Parties’ attorneys and consultants (including the Independent Consultants) and the Title Insurer for all services rendered and billed prior to the Closing Date.

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3.1.17              Financial Statements.  Delivery to Administrative Agent and each Lender of accurate and complete copies of audited annual financial statements or Form 10-K or equivalent of RMT Parent, SCPPA and Turbine Supplier, for the most recent fiscal year end for which such of such audited financial statements or Form 10-K or equivalent are available (it being acknowledged that such financial statements shall be deemed to be delivered if a Form 10-K or equivalent filed with the SEC for such Person is publicly available); provided, however, if any of the Turbine Supplier, RMT Parent or SCPPA does not have audited financial statements or a Form 10-K or equivalent, then Administrative Agent and each Lender shall have been provided with other materials relating to creditworthiness of such Person reasonably satisfactory to Administrative Agent and each Lender.

3.1.18              Collateral Requirements.  Delivery to Administrative Agent and each Lender of evidence reasonably satisfactory to Administrative Agent and each Lender, to the extent not otherwise satisfied pursuant to Section 3.1.24, that Borrower has taken or caused to be taken all such actions, executed and delivered or caused to be executed and delivered all such agreements, documents and instruments, and made or caused to be made all such filings and recordings that may be necessary or, in the opinion of Administrative Agent and each Lender, desirable in order to create in favor of Collateral Agent a valid and (upon such filing and recording) perfected first priority Lien in Borrower’s right, title and interest in and to the Collateral subject to Permitted Liens, Title Exceptions and CoBank’s Lien on the CoBank Equities.  Such actions shall include delivery to Administrative Agent and each Lender of:

(a)                                 The Pledge Agreement, the Security Agreement and the Depositary Agreement, duly executed by each Credit Party party thereto;

(b)                                 all pledged securities, including all certificates, agreements or instruments representing or evidencing such pledged securities, accompanied by instruments of transfer and membership interest powers undated and endorsed in blank to the extent such pledged interests are certificated;

(c)                                  all promissory notes or other instruments (duly endorsed, where appropriate, in a manner reasonably satisfactory to Administrative Agent and each Lender) evidencing any Collateral;

(d)                                 all other certificates, agreements, including control agreements, or instruments necessary to perfect Collateral Agent’s security interest in all Chattel Paper, all Instruments, all Deposit Accounts and all Investment Property of Borrower (as each such term is defined in the Security Agreement and to the extent required by the Security Agreement);

(e)                                  UCC financing statements in appropriate form for filing under the UCC, and, where appropriate, fixture filings, and such other documents under applicable Legal Requirements in each jurisdiction as may be necessary or appropriate or, in the opinion of Administrative Agent and each Lender, desirable to perfect the first priority Liens created, or purported to be created, by the Collateral Documents;

(f)                                   certified copies of UCC, tax and judgment lien searches, bankruptcy and pending lawsuit searches or equivalent reports or searches, each of a date no less recent than 10

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Business Days before the Closing Date or as otherwise acceptable to Administrative Agent and each Lender listing all effective financing statements, lien notices or comparable documents that name Borrower and Pledgor as debtor and that are filed in those state and county jurisdictions in which any property of such Person is located and the state and county jurisdictions in which any such Person is organized or maintains its principal place of business and such other searches that Administrative Agent and each Lender reasonably deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens) showing that upon due filing or recordation (assuming such filing or recordation occurred on the date of such respective reports), as the case may be, the security interests created under the Collateral Documents, with respect to the Collateral, will be prior to all other financing statements, fixture filings or other security documents wherein the security interest is perfected by filing or recording in respect of the Collateral,

(g)                                  UCC termination statements duly executed (if required) by all applicable Persons for filing in all applicable jurisdictions as may be necessary to terminate any effective UCC financing statements or fixture filings disclosed in such search (other than any such financing statements or fixture filings in respect of Liens permitted to remain outstanding pursuant to the terms of this Agreement);

(h)                                 an opinion of counsel (which counsel shall be reasonably satisfactory to Administrative Agent and each Lender) with respect to the perfection of the security interests in favor of Collateral Agent in personal or mixed property Collateral and such other matters governed by the laws of such jurisdiction regarding such security interests as Collateral Agent may reasonably request, in each case in form and substance reasonably satisfactory to Administrative Agent and each Lender; and

(i)                                     evidence reasonably satisfactory to Administrative Agent and each Lender of payment or arrangements for payment by Borrower of all applicable recording taxes, registration fees or charges, filing costs and other similar expenses, if any, required to be paid in connection with the execution, delivery, or filing of, or the perfection of any Operative Document or otherwise in connection with the Collateral.

3.1.19              Project Budget and Drawdown Schedule.  Delivery to Administrative Agent and each Lender of a budget and drawdown schedule in substantially the form of Exhibit G-2 (the “Project Budget”) for all anticipated costs to be incurred in connection with the development, construction, installation and start-up of the Project and schedule of Borrowings, which Project Budget shall be satisfactory to Administrative Agent and each Lender.

3.1.20              Base Case Projections.  Delivery to each Lender of the Base Case Projections.

3.1.21              No Material Adverse Effect.  Since the date of the most recent audited financial statements of each Major Project Participant delivered pursuant Section 3.1.17, no event, circumstance or condition shall have occurred and be continuing (and Administrative Agent or any Lender shall have become aware of no such facts or conditions not previously known) that constitutes or could reasonably be expected to result in a Material Adverse Effect.

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3.1.22              ALTA Surveys.  Administrative Agent and each Lender shall have received either (i) ALTA surveys of the Site (which surveys shall be reasonably current and in form and substance reasonably satisfactory to Administrative Agent, each Lender and the Title Insurer), certified to Borrower, Administrative Agent and the Title Insurer by ▇▇▇▇▇▇▇ Engineering, Inc., Westwood Professional Services, or such other licensed surveyor reasonably satisfactory to Administrative Agent and each Lender or (ii) a certificate from a licensed third-party engineering firm or surveyor confirming that the Easements provide contiguous real property interests, in each case showing such matters as shall be necessary for the Title Insurer to issue to the Secured Parties the Title Policy described in Section 3.1.23.

3.1.23              Title Policy.  Delivery to Administrative Agent and each Lender of a lender’s ALTA extended coverage policy of title insurance (2006 form) with any standard coverage exception reasonably acceptable to Administrative Agent and each Lender but without a mechanics’ and materialmen’s exception included therein (except where applicable Governmental Rules prevent the deletion of such exception, in which case Borrower shall provide the Title Insurer with any affidavits or indemnities (with respect to which Borrower shall have no reimbursement obligations) necessary to cause the Title Insurer to issue affirmative coverage for mechanics’ and materialmens’ liens in form and substance reasonably satisfactory to Administrative Agent and each Lender), together with such endorsements thereto (or where such endorsements are not available, opinions of special counsel, architects or other professionals reasonably acceptable to Administrative Agent and each Lender) as are reasonably requested by Administrative Agent or any Lender, or the unconditional and irrevocable commitment of the Title Insurer to issue such a policy, dated as of the Closing Date, in each case in a coverage amount equal to $247,000,000 (with such reinsurance as is reasonably satisfactory to Administrative Agent and each Lender) issued by the Title Insurer in form and substance satisfactory to Administrative Agent and each Lender.

3.1.24              Real Estate Requirements.  Delivery to Administrative Agent and each Lender of:

(a)                                 The Trust Deed encumbering the Mortgaged Property in favor of Collateral Agent, duly executed and acknowledged by Borrower, and otherwise in form for recording in the recording office of each applicable political subdivision where the Mortgaged Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a Lien of record under applicable law, and such financing statements, fixture filings any and any other instruments necessary to ▇▇▇▇▇ ▇ ▇▇▇▇ on Borrower’s right, title and interest in and to the Mortgaged Property under the laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory to Administrative Agent and each Lender;

(b)                                 with respect to the Mortgaged Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as are necessary to consummate the transactions hereunder contemplated or as shall reasonably be deemed necessary by Administrative Agent and the Lenders;

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(c)                                  with respect to the Mortgaged Property, such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the Title Insurer to issue the Title Policy;

(d)                                 evidence reasonably acceptable to Administrative Agent and each Lender of payment by Borrower of all Title Policy premiums, search and examination charges, and related charges, Trust Deed recording taxes, fees, charges, costs and expenses required for the recording of the Trust Deed and issuance of the Title Policy;

(e)                                  with respect to any Real Property in which Borrower holds possession by lease (other than for Real Property that is not necessary for the Project), both (i) any agreement by the fee owner to obtain a nondisturbance agreement from each lienholder against the fee interest in such Real Property, and (ii) a nondisturbance agreement from any such existing lienholder, in each case in form and substance reasonably satisfactory to Administrative Agent and each Lender;

(f)                                   copies of all leases or easements in which Borrower holds the lessor’s interest or other agreements relating to possessory interests, if any, in the Real Property.  To the extent any of the foregoing affect any Real Property, such agreement shall be subordinate to the Lien of the Trust Deed to be recorded against such Mortgaged Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement, and shall otherwise be acceptable to Administrative Agent and each Lender;

(g)                                  evidence reasonably acceptable to Administrative Agent and each Lender that Borrower and each other Major Project Participant have obtained and hold all easements or other possessory rights in real estate, together with necessary real property permits and crossing rights (collectively, “Rights of Way”) necessary for (i) performance in full of each such Person’s obligations under the Operative Documents and each Permit by which such Person or its assets is bound, and (ii) the development, leasing, construction and operation of the Project in accordance with the Base Case Projections.  The use of such Rights of Way shall not encroach on or interfere (except immaterial encroachments and interferences expressly permitted by the terms of the applicable Rights of Way) with property adjacent to such Rights of Way or existing easements or other rights (whether on, above or below ground) and the full length of the Rights of Way shall be continuous, without break, gap or interruption;

(h)                                 evidence reasonably acceptable to Administrative Agent and each Lender that Borrower has a good, marketable and insurable (i) fee or leasehold interest in the Site (other than the BLM Right of Way (Phase II), the BLM Right of Way (Generator Lead Line), the Site Common Facilities, the Circle Four Easements and the ▇▇▇▇▇ Right of Way), (ii) interest in the BLM Right of Way (Phase II) and the Circle Four Easements, (iii) undivided tenant in common interest in the Easements, the BLM Right of Way (Generator Lead Line), the ▇▇▇▇▇ Right of Way and the Site Common Facilities, and (iv) interest in any other Real Property (provided, however, that the title policy to be provided pursuant to this Section 3.1.24 shall not be required to include as part of the insured estate any such other Real Estate Interests which are permits or licenses not customarily insurable by title insurance, including the BLM Right of Way (Phase II) and the BLM Right of Way (Generator Lead Line)), in each case free and clear of Liens, encumbrances or other exceptions to title, other than (A) the Title Exceptions and (B) such

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Liens, encumbrances or other exceptions to title as are reasonably satisfactory to Administrative Agent and each Lender; and

(i)                                     evidence reasonably acceptable to Administrative Agent and each Lender that the Trust Deed is a valid first Lien on Borrower’s right, title and interest in the Mortgaged Property (including, without limitation, the Rights of Way), free and clear of all Liens, encumbrances and exceptions to title whatsoever, other than (i) the Title Exceptions and (ii) such Liens, encumbrances or other exceptions to title as are reasonably satisfactory to Administrative Agent and each Lender, and, in the case of the BLM Right of Way (Phase II), the BLM Right of Way (Generator Lead Line), the ▇▇▇▇▇ Lease, and the ▇▇▇▇▇ Right of Way, subject to applicable Governmental Rules limiting the enforceability of Liens therein.

3.1.25              [Reserved]

3.1.26              Establishment of Accounts.  The Accounts shall have been established to the satisfaction of Administrative Agent and each Lender.

3.1.27              Representations and Warranties.  Each representation and warranty of each Credit Party under the Credit Documents shall be true and correct as of the Closing Date (unless such representation and warranty refers to an earlier date, in which case such representation and warranty shall have been true and correct as of such earlier date) and Borrower shall have provided to Administrative Agent and each Lender a certificate of a Responsible Officer of Borrower that each representation and warranty of Borrower and Pledgor under the Credit Documents is true and correct as of the Closing Date (unless such representation and warranty refers to an earlier date, in which case such representation and warranty was true and correct as of such earlier date).

3.1.28              No Default.  Each Borrower Entity shall be in compliance in all material respects with all the terms and provisions set forth in each Credit Document and all material provisions of the Major Project Documents on its part to be observed or performed, and no Default or Event of Default exists or shall occur as a result of any of the transactions consummated as of the Closing Date.

3.1.29              Utilities.  Delivery to Administrative Agent and each Lender of reasonably satisfactory evidence that all potable water, sewer, telephone, electric and all other utility services necessary for the development, construction, ownership and operation of the Project are either contracted for, or readily available on commercially reasonable terms, at the Project.

3.1.30              Project Schedule.  Delivery to Administrative Agent and each Lender of the Project Schedule in substantially the form of Exhibit G-3, which Project Schedule shall be reasonably satisfactory to Administrative Agent and each Lender.

3.1.31              Consents.  Delivery to Administrative Agent and each Lender of executed Consents from each of the Major Project Participants as set forth on Exhibit E-3, which Consents shall be in substantially the form of Exhibit E-1 or, if approved by Administrative Agent in advance, Exhibit E-2, or otherwise reasonably satisfactory to Administrative Agent and each Lender.

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3.1.32              Use of Equity.  Borrower shall have certified to Administrative Agent and each Lender (in form and substance reasonably satisfactory to Administrative Agent and each Lender), and Administrative Agent and the Independent Engineer shall have confirmed, that in an aggregate amount not less than the Base Equity Requirement Borrower has (a)  applied the proceeds of cash equity contributions made by Sponsor to the payment of Project Costs, (b)  deposited into the Construction Account the proceeds of cash equity contributions made by Sponsor, and/or (c) otherwise received in-kind equity contributed by Sponsor or its Affiliates.

3.1.33              Assignment of Agreements.  All Project Documents pursuant to which Borrower is not party shall have been subleased or irrevocably assigned to Borrower.

3.1.34              Anti-Terrorism Compliance.  At least five days prior to the Closing Date, Administrative Agent and each Lender shall have received all documentation and other information requested by Administrative Agent or any Lender, which is required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.

3.1.35              Solvency Certificate.  Delivery to Administrative Agent and each Lender of a certificate in the form of Exhibit F-6 from the chief financial officer or treasurer of Borrower certifying that Borrower is Solvent after giving effect to the transactions contemplated hereby.

3.1.36              Legality.  No federal or state law or regulation, or any interpretation thereof, exists which would make any Loan, or the securing of any Loan by the Collateral, or any other aspect of the transactions contemplated herein, illegal, or which would subject the Lenders or any of their Affiliates to any penalties, sanctions or fines.

3.1.37              Utility Laws.  No federal, state or local law or regulation, or interpretation thereof, will then exist under which the Lenders would become an “electric utility,” “electric corporation,” “electrical company,” “public utility,” or “holding company,” or any similar Person under such law or regulation solely as a result of this transaction, except as a Lender may become an “electric utility,” “electric corporation,” “electrical company,” “public utility,” or “holding company” upon the exercise of remedies under the Credit Documents.

3.1.38              Repayment of Existing Debt.  Delivery to Administrative Agent and each Lender of evidence that the loans made with respect to the Turbine Supply Agreement under the Turbine Supply Financing have been repaid in full and that any liens related thereto have been released (or arrangements for such release satisfactory to Administrative Agent and each Lender shall have been made).

3.1.39              SCPPA Confirmation Letter.  SCPPA shall have delivered a letter to Borrower, in form and substance reasonably satisfactory to Administrative Agent and the Lenders.

3.1.40              Wind Study.  The Lenders shall have been provided evidence that SCPPA has received the wind study required to be provided pursuant to Section 7.1(f) of the PPA.

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3.1.41              Transmission Rights.  Borrower shall have unencumbered rights to an undivided tenant in common interest in adequate capacity on the Transmission Line to the point of delivery under the PPA, in form and substance satisfactory to the Lenders.

3.1.42              Cost Segregation Report.  The Cost Segregation Consultant shall have delivered a current Cost Segregation Report, in form and substance reasonably satisfactory to Administrative Agent and each Lender.

3.1.43              Grant Eligible.  Each Lender shall have been provided with all information as to Borrower and the Project being Grant Eligible.

3.1.44              Effective Date under the PPA.  The Effective Date under and defined in the PPA shall have occurred.

3.1.45              Other Documents and Proceedings.  Delivery to Administrative Agent and each Lender of such other documents and completion of such other proceedings as Administrative Agent or any Lender may reasonably request.

3.2                              CONDITIONS PRECEDENT TO EACH CREDIT EVENT.  The obligation of each Lender in respect of each Credit Event is subject to the occurrence of the Closing Date and prior satisfaction (or waiver by Administrative Agent with the consent of the Required Lenders) of each of the following conditions:

3.2.1                     Representations and Warranties.

(a)                                 Each representation and warranty of each Borrower Entity in any of the Operative Documents shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the date of such Credit Event, before and after giving effect to the applicable Borrowing, with the same effect as though made on and as of such date, unless such representation or warranty expressly relates solely to an earlier date.

(b)                                 To Borrower’s knowledge, each representation and warranty of each Major Project Participant (other than the Borrower Entities) contained in the Operative Documents shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” or the like shall be true and correct in all respects) on and as of the date of such Credit Event, before and after giving effect to the Credit Event, with the same effect as though made on and as of such date, unless such representation and warranty expressly relates solely to an earlier date, and except to the extent that the failure of such representations and warranties to be true and correct in all material respects could not reasonably be expected to have a Material Adverse Effect.

3.2.2                     No Default or Event of Default.  No Default or Event of Default shall have occurred and be continuing or will result from the relevant Credit Event.

3.2.3                     Additional Documentation.  With respect to Additional Project Documents entered into or obtained, transferred or required (whether because of the status of the development, construction or operation of the Project or otherwise) since the date of the most

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recent Credit Event, there shall be (a) redelivery of such matters as are described in Section 3.1.6(b) to the extent applicable to such Additional Project Documents, and (b) if reasonably requested by Administrative Agent, delivery of such matters as are described in Sections 3.1.1 and 3.1.8 from Borrower, and Section 3.1.8 and, to the extent required by Section 6.18, Section 3.1.31, from the counterparty to such Additional Project Document.

3.2.4                     Notice of Borrowing; Calculations.  Borrower shall have delivered a Notice of Borrowing to Administrative Agent in accordance with the procedures specified in Section 2.1.1(b).  To the extent that the proceeds of the requested Loan are intended to be used to reimburse Sponsor for certain equity contributions made by it as contemplated by Section 5.1.1, then Independent Engineer shall have verified the Project Costs previously paid by Sponsor.

3.2.5                     Drawdown Certificate and Independent Engineer’s Drawdown Certificate.

(a)                                 At least three Business Days prior to the submission of each Notice of Borrowing for each Credit Event, Borrower shall have provided Administrative Agent and the Independent Engineer with a duly executed copy of the Drawdown Certificate, dated the date of delivery of such certificate, setting forth the date of the proposed occurrence of such Credit Event and signed by a Responsible Officer of Borrower.

(b)                                 At least one Business Day prior to the submission of each Notice of Borrowing for each Credit Event, the Independent Engineer shall have provided Administrative Agent (with a copy to Borrower) with a certificate of the Independent Engineer, dated the date of delivery of such certificate, setting forth the date of the proposed occurrence of such Credit Event and signed by an authorized representative of the Independent Engineer, substantially in the form of Exhibit C-4 (the “Independent Engineer’s Drawdown Certificate”).

(c)                                  Borrower shall use all reasonable efforts to provide Administrative Agent and the Independent Engineer with drafts of any certificates and other materials to be delivered pursuant to this Section 3.2.5 in advance of the time frames listed above as reasonably requested by Administrative Agent.

3.2.6                     Amount.  The Loans shall be in such amounts as shall ensure that all Project Costs then due and owing for which the applicable Notice of Borrowing relates can be paid, taking into account uncommitted funds remaining in the Construction Account and the minimum denomination requirements of Section 2.1.1(b).

3.2.7                     Available Construction Funds.  After taking into consideration the requested Borrowing, Administrative Agent (based on consultation with Independent Engineer) shall have reasonably determined that Available Construction Funds will be sufficient to achieve Commercial Operation by the Date Certain in accordance with all Legal Requirements, the Construction Contract, each other Project Document pursuant to which construction work with respect to the Project is being performed and the Credit Documents and to pay or provide for all anticipated non-construction Project Costs, all as set forth in the then-current Project Budget.

3.2.8                     Title Policy Endorsements.  Borrower shall provide, or Administrative Agent shall be adequately assured, that the Title Insurer is committed at the time of each Credit

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Event to issue to Administrative Agent, a date-down endorsement of the Title Policy dated as of the date of such Credit Event, insuring the continuing first priority of the Trust Deed (subject only to (a) the Title Exceptions and (b) Permitted Liens described in clause (a), (b) or (j) of the definition thereof (to the extent the same are afforded priority over the Lien of the Trust Deed by operation of law)) and otherwise in form and substance reasonably satisfactory to Administrative Agent.

3.2.9                     Lien Releases.  Subject to Borrower’s right to contest Liens as described in the definition of “Permitted Liens,” Borrower shall have delivered (such delivery may be conditioned upon concurrent receipt of payment by the applicable Person), if applicable, to Administrative Agent duly executed Lien waivers relating to mechanics’ and materialmen’s Liens, substantially in the form attached to the relevant Major Project Document or otherwise in form and substance reasonably acceptable to Administrative Agent, from each supplier and Construction Contractor that has a statutory right to file a mechanics’ and/or materialmen’s Lien for all work, services and materials (including equipment and fixtures of all kinds, done, previously performed or furnished for the construction of the Project), for which the related Project Costs have been or will, from the proceeds of the requested Borrowing, be paid.

3.2.10              Acceptable Work; No Liens.  All work that has been done on the Project has been done in a good and workmanlike manner and in accordance with the Construction Contract, and in accordance with the standard of care set forth in the Construction Contract, and there shall not have been filed against any of the Collateral or otherwise filed with or served upon Borrower with respect to the Project or any part thereof, notice of any Lien, claim of Lien or attachment upon or claim (except any Notice of Commencement filed by the Construction Contractor and any Preliminary Notices filed by suppliers, or similar filings by the Construction Contractor’s subcontractors) affecting the right to receive payment of any of the moneys payable to any of the Persons named on such request which has not been released by payment or bonding or otherwise or which will not be released with the payment of such obligation out of such Loan or non-Loan proceeds, other than Permitted Liens.

3.2.11              Permits.  All Permits required for the stage of construction and development of the Project at the time of the requested Credit Event have been obtained in form satisfactory to Administrative Agent and Independent Engineer (and if the applicable statute, rule or regulation provides for a fixed period for judicial or administrative review thereof, such period has expired), and neither Borrower nor Independent Engineer has reason to expect that any other Permits customarily obtained at a later stage of construction, development or operation will not be obtained as and when required.

3.3                               NO APPROVAL OF WORK.  The making of any Loan hereunder shall in no event be deemed an approval or acceptance by any Secured Party of any work, labor, supplies, materials or equipment furnished or supplied with respect to the Project.

3.4                               ADJUSTMENT OF DRAWDOWN REQUESTS.  In the event Administrative Agent reasonably determines, in consultation with Independent Engineer, that an item or items listed in a Drawdown Certificate as a Project Cost is or are not properly included in such Drawdown Certificate, Administrative Agent may in its reasonable discretion cause to be made a Loan or Loans in the amount requested in such Drawdown Certificate less the amount of such

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item or items or may reduce the amount of Loans made pursuant to any subsequent Drawdown Certificate.  In the event that Borrower prevails in any dispute as to whether such Project Costs were properly included in such Drawdown Certificate, Loans in the amount requested but not initially made shall forthwith be made.

3.5                               DETERMINATIONS UNDER SECTION 3.1.  For purposes of determining satisfaction of the conditions set forth in Section 3.1, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless Administrative Agent shall have received notice from such Lender prior to the contemplated Closing Date, as notified by Borrower to the Lenders, specifying its objection thereto.  Administrative Agent shall promptly notify the Lenders of the actual occurrence of the Closing Date.

ARTICLE 4
REPRESENTATIONS AND WARRANTIES

Borrower makes the following representations and warranties to and in favor of the Secured Parties as of the Closing Date (unless such representation and warranty expressly relates solely to another time) and, to the extent set forth in Article 3, as of the date of each Credit Event (unless such representation and warranty relates solely to another time), all of which shall survive the execution and delivery of this Agreement, the Closing Date and the making of the Loans:

4.1                               ORGANIZATION.  Borrower is (a) a limited liability company duly organized, validly existing and in good standing under the laws of Delaware and (b) is duly qualified as a foreign limited liability company, and is in good standing, in each jurisdiction in which such qualification is required by law.  Borrower has all requisite power and authority to (i) own or hold under lease and operate the property it purports to own or hold under lease, (ii) carry on its business as now being conducted and as now proposed to be conducted in respect of the Project, (iii) execute, deliver and perform each Operative Document to which it is a party and (iv) take each action as may be necessary to consummate the transactions contemplated hereunder and thereunder.  Pledgor is the sole member of Borrower.

4.2                               AUTHORIZATION; NO CONFLICT.  The execution, delivery and performance by Borrower of the Operative Documents to which Borrower is a party are within Borrower’s power, authority and legal right and have been duly authorized by all necessary action.  Borrower has duly executed and delivered each Operative Document to which Borrower is a party (or such Operative Documents have been duly and validly assigned to Borrower and Borrower has authorized the assumption thereof, and has assumed the obligations of the assignor thereunder) and neither Borrower’s execution and delivery thereof nor its consummation of the transactions contemplated thereby nor its compliance with the terms thereof (a) does or will contravene the Governing Documents or any other Legal Requirement applicable to or binding on the Borrower Entities or any of their respective properties, (b) does or will contravene or result in any breach of or constitute any default under, or result in or require the creation of any Lien (other than Permitted Liens) upon any Borrower Entity’s property under, any agreement or instrument to which it is a party or by which it or any of its properties may be bound or affected,

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(c) does or will violate or result in a default under any indenture, credit agreement, loan, lease or other agreement or instrument binding upon the Borrower Entities or their respective properties, or (d) does or will require the consent or approval of any Person, and with respect to any Governmental Authority, does or will require any registration with, or notice to, or any other action of, with or by any applicable Governmental Authority, in each case which has not already been obtained and disclosed to Administrative Agent (except as set forth in Part II(A) of the Permit Schedule or otherwise provided in Sections 4.9.1 and 4.9.2).

4.3                               ENFORCEABILITY.  As of each date on which this representation and warranty is made or deemed made, each of the Operative Documents to which Borrower is a party is a legal, valid and binding obligation of Borrower and, to Borrower’s knowledge, each other Major Project Participant party thereto, enforceable against Borrower and, to Borrower’s knowledge, each other Major Project Participant party thereto in accordance with its terms.  None of the Operative Documents to which Borrower is a party has been amended or modified after the Closing Date except in accordance with this Agreement.

4.4                               COMPLIANCE WITH LAW.  There are no material violations by Borrower or, to Borrower’s knowledge, any Borrower Entity, of any Legal Requirement (including any Hazardous Substance Laws).  Except as otherwise have been delivered to Administrative Agent, no notices of any material violation of any Legal Requirement (including any Hazardous Substance Laws) relating to the Project or the Site have been issued, entered or received by Borrower or, to Borrower’s knowledge, any Borrower Entity or any Person that owns or operates (or has owned or operated) the Real Property.  None of the execution, delivery nor performance of any of the Operative Documents, nor the consummation of any of the transactions contemplated thereby, will (a) contravene or violate any applicable law or contractual obligation of Borrower or, to Borrower’s knowledge, any other Major Project Participant or other Operative Document, or (b) result in or require the creation or imposition of any Lien (other than Liens created or permitted under the Operative Documents) on any of the Collateral.

4.5                               SINGLE PURPOSE, DEBT, CONTRACTS, JOINT VENTURES, PROCEEDS, ETC.

4.5.1                     Borrower (a) has not conducted any business other (i) than the business contemplated by the Operative Documents or otherwise related to the development, construction, operation and financing of the Project, (b) does not have any outstanding Debt or other material liabilities other than pursuant to or allowed by the Operative Documents, and (c) is not a party to or bound by any material contract other than the Credit Documents and the Major Project Documents to which it is a party.

4.5.2                     Borrower is not a general partner or a limited partner in any general or limited partnership or a joint venturer in any joint venture.

4.5.3                     Borrower does not have any Subsidiaries.

4.5.4                     The proceeds of each Loan received by Borrower prior to, or concurrently with, the date on which this representation and warranty is made or deemed made has been or will be used solely in accordance with, and solely for the purposes contemplated by, Section 5.1.

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4.5.5                     Borrower has no obligation to any Person in respect of any finder’s, broker’s or investment banking fee with respect to the Operative Documents or the transactions contemplated thereby or under any other agreement, document or instrument with any Person, other than fees payable under this Agreement and the Fee Letter.

4.5.6                     No proceeds of any Loan will be used to acquire any equity security of a class that is registered pursuant to Section 12 of the Exchange Act.

4.6                               ADVERSE CHANGE.

4.6.1                     As of the Closing Date, there is no fact known to Borrower which has had or could reasonably be expected to have a Material Adverse Effect which has not been disclosed to Administrative Agent or the Lenders (as of such date) by or on behalf of Borrower on or prior to the Closing Date in connection with the transactions contemplated hereby.

4.6.2                     Since the Closing Date, no event, circumstance or condition shall have occurred and be continuing that constitutes or could reasonably be expected to result in a Material Adverse Effect.

4.7                               INVESTMENT COMPANY ACT.  No Borrower Entity is an “investment company” or a company “controlled by” an “investment company,” each within the meaning of, or subject to regulation under, the Investment Company Act of 1940, as amended.

4.8                               ERISA.  Either (a) there are no ERISA Plans or Multiemployer Plans for any Borrower Entity or any ERISA Affiliate or (b) (i) each Borrower Entity and each ERISA Affiliate has fulfilled its obligations (if any) under the applicable minimum funding standards of ERISA and the Code for each ERISA Plan, (ii) each such ERISA Plan is in compliance in all material respects with the currently applicable provisions of ERISA, the Code and other Governmental Rules, (iii) neither any Borrower Entity nor any ERISA Affiliate has incurred any material liability to the PBGC or an ERISA Plan or Multiemployer Plan under Title IV of ERISA (other than liability for premiums due in the ordinary course), (iv) each such ERISA Plan that is intended to qualify under Section 401(e) of the Code has received a favorable determination or opinion letter from the Internal Revenue Service, or the remedial amendment period with respect thereto has not yet expired, or an application for such letter is currently being processed by the Internal Revenue Service with respect thereto, and nothing has occurred which could reasonably be expected to cause the loss of such qualification, and (v) no Borrower Entity or any ERISA Affiliate has incurred, or reasonably expects to incur, any material liability (and no event has occurred which with the giving of notice under Section 4219 of ERISA, would result in such liability) under Section 4201 or 4243 of ERISA.  The Borrower’s assets do not constitute assets of an employee benefit plan within the meaning of 29 C.F.R. Section 2510.3-101.  Borrower does not maintain, nor has it at any point of its existence maintained, any employee-benefit plans that were subject to Title IV of ERISA.

4.9                               PERMITS.

4.9.1                     There are no Permits under the existing Legal Requirements with respect to the Project as it is currently designed that are or will become Applicable Permits other than the Permits listed in the Permit Schedule.  Except as disclosed in the Permit Schedule, all Applicable

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Permits and, to the knowledge of Borrower, Applicable Third Party Permits have been issued and are in full force and effect and not subject to current legal proceedings or to any Unsatisfied Condition that could reasonably be expected to result in material modification or revocation, all applicable appeal periods with respect thereto have expired, and the permittee thereunder is in compliance therewith.

4.9.2                     With respect to any of the Permits which are not yet Applicable Permits or, to the knowledge of Borrower, Applicable Third Party Permits, to Borrower’s knowledge, no fact or circumstance exists which makes it likely that any such Permit will not be obtainable by Borrower or the applicable Person identified in the Permit Schedule (a) prior to the time that it becomes an Applicable Permit or Applicable Third Party Permit, as applicable, (b) without delay materially in excess of the time periods thereof in the Project Schedule (if applicable) and (c) without expense materially in excess of the amounts provided therefor in the then-current Project Budget.

4.9.3                     Except as disclosed in the Permit Schedule, the Permits which have been obtained by Borrower or, to Borrower’s knowledge, any other person identified in the Permit Schedule are not and shall not be subject to any restriction, condition, limitation or other provision that could reasonably be expected to have a Material Adverse Effect.

4.10                        HAZARDOUS SUBSTANCES.

4.10.1              Except as set forth in Exhibit G-5:  (a) Borrower, with respect to the Real Property, is not and has not in the past received written notice that it has been in violation of any Hazardous Substance Law which violation could reasonably be expected (i) to result in a material liability to, or material Environmental Claims against, Borrower or its properties and assets, (ii) to result in an inability of Borrower to perform its obligations under the Operative Documents, (iii) to materially and adversely interfere with the continuing operation of the Project, or (iv) to materially and adversely impair the fair market value of any Mortgaged Property; (b) neither Borrower nor, to Borrower’s knowledge, any other Person has used, Released, threatened to Release, generated, manufactured, produced or stored in, on, under, or about the Real Property, or transported thereto or therefrom, any Hazardous Substances that could reasonably be expected to subject any Secured Party to liability, or Borrower to material liability, under any Hazardous Substance Law; (c) to Borrower’s knowledge, there are no underground tanks, whether operative or temporarily or permanently closed, located on the Real Property; (d) to Borrower’s knowledge, there are no Hazardous Substances used, stored or present at or on the Real Property, except in compliance with Hazardous Substance Laws and other Legal Requirements or as disclosed in the Phase I Environmental Report; (e) to Borrower’s knowledge, there are no Hazardous Substances that could reasonably be expected to migrate onto the Real Property, except as disclosed in the Phase I Environmental Report; and (f) to Borrower’s knowledge, there neither is nor has been any condition, circumstance, action, activity or event that could reasonably be expected to be, or result in, a material violation by Borrower of any Hazardous Substance Law, or to result in liability to any Secured Party or material liability to Borrower under any Hazardous Substance Law or any other material Environmental Claims against Borrower or any Secured Party.

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4.10.2              Except as set forth on Exhibit G-4 or Exhibit G-5, with respect to the Real Property, (a) as of the Closing Date, there is no pending or, threatened in writing or, to Borrower’s knowledge, contemplated, action, suit or proceeding under any Hazardous Substance Law by any Governmental Authority or any other Person which is not a Governmental Authority to which Borrower is or will be named as a party, and (b) thereafter, there is no pending or, threatened in writing or, to Borrower’s knowledge, contemplated, action, suit or proceeding by any Governmental Authority or any non-governmental third party under any Hazardous Substance Law which could reasonably be expected to have a Material Adverse Effect.

4.10.3              With respect to the Real Property, (a) there is no consent or other decree, consent order, administrative or other order, or other administrative or judicial requirement outstanding under any Hazardous Substance Law, and (b) Borrower has not received written notice and is not aware of any claim or notice of violation, alleged violation, non-compliance, liability or potential liability under any Hazardous Substance Law, nor does Borrower have knowledge or reason to believe that any such action is being contemplated, considered or threatened.

4.10.4              Except as set forth in the Phase I Environmental Report, to Borrower’s knowledge there are no past violations that have not been finally resolved or existing violations of any Hazardous Substances Laws by any Person affecting the Real Property.

4.10.5              As of the Closing Date, there are no environmental reports, investigations, studies, audits, reviews or other analyses conducted by or which are in the possession of or known to Borrower in relation to the use, storage or presence of Hazardous Substances at or on the Site other than the Phase I Environmental Report.

4.11                        LITIGATION.

4.11.1              As of the Closing Date, except as set forth on Exhibit G-4, no action, litigation, suit, proceeding or investigation before or by any court, arbitrator or other Governmental Authority is pending or, to Borrower’s knowledge, threatened in writing by or against Borrower, or any other Borrower Entity or Major Project Participant as relates to the Project, or any of their respective properties that relate to the Project.

4.11.2              As of the Closing Date, Borrower has no knowledge of any order, judgment or decree having been issued or proposed to be issued by any Governmental Authority that, as a result of the construction, development, ownership or operation of the Project by Borrower, the sale of electricity therefrom by Borrower or the entering into of any Operative Document or any transaction contemplated hereby or thereby, could reasonably be expected to cause or deem any Secured Party or Borrower or any Affiliate of any of them to be subject to, or not exempted from, regulation under PUHCA, or treated as a public utility under the laws of the Project Jurisdiction as presently constituted and as construed by the courts of the Project Jurisdiction, respecting the rates or the financial or organizational regulation of electric utilities.

4.11.3              After the Closing Date, except as set forth on Exhibit G-4, (a) there are no pending or, to Borrower’s knowledge, threatened action, litigation, suit, proceeding or investigation of any kind, including actions or proceedings of or before any Governmental Entity

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or arbitrator to which Borrower or any other Borrower Entity is a party, or by which any of them or any of their properties that relate to the Project are bound and (b) there are to Borrower’s knowledge, no pending or threatened action, litigation, suit, proceeding or investigation of any kind, including actions or proceedings of or before any Governmental Authority to which any Major Project Participant is a party, or by which any of them or any of their properties that relate to the Project are bound, which, in either case, have not been disclosed by Borrower to Administrative Agent in accordance with, and to the extent required by, Section 5.4, other than any such actions or proceedings which could not reasonably be expected to have a Material Adverse Effect.

4.12                        NO LABOR DISPUTES; FORCE MAJEURE.  Neither the business nor the properties of Borrower or, to Borrower’s knowledge, any other Major Project Participant are currently affected by any fire, explosion, accident, strike, “force majeure” (as defined in any Project Document), lockout or other labor dispute, drought, storm, hail, earthquake, embargo, act of God or of the public enemy, or other casualty (whether or not covered by insurance), which could reasonably be expected to have a Material Adverse Effect.

4.13                        OPERATIVE DOCUMENTS.

4.13.1              Copies of all of the Project Documents (other than any Project Document that is only incidental to the development, construction, leasing, ownership or operation of the Project) executed on or prior to such date have been delivered to Administrative Agent by Borrower.  Since the Closing Date, except as has been disclosed to Administrative Agent in writing and as permitted hereunder, as of such date, none of such Project Documents has been amended, modified or terminated (other than expiration thereof in accordance with its terms and the Credit Documents) and all such Project Documents are in full force and effect.

4.13.2              To Borrower’s knowledge, except as disclosed to Administrative Agent in writing at or prior to the time the representation and warranty in this Section 4.13.2 is being made, the representations and warranties of the Major Project Participants contained in the Operative Documents (other than this Agreement) are true and correct in all material respects.

4.14                        DISCLOSURE.  The information regarding the Project and any Borrower Entity included in this Agreement and the reports, financial statements, certificates, Notices of Borrowing, exhibits, schedules and other documents furnished to any Secured Party, or to the Independent Engineer, Insurance Consultant, Wind Consultant or Environmental Consultant, by or, to Borrower’s knowledge, on behalf of Borrower, taken as a whole, did not contain and do not contain any material misstatement of fact or omitted or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were or are made, taken as a whole, not misleading as of the date such information is dated or certified; provided, that to the extent any such information, report, financial statement, exhibit or schedule was based upon or constitutes a forecast or projection, Borrower represents only that it acted in good faith and utilized reasonable assumptions and due care in the preparation of such information, report, financial statement, exhibit or schedule.

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4.15                        TAXES.

4.15.1              All federal, state, local, and foreign tax returns, information statements and reports that are required to be filed by or with respect to Borrower have been timely filed, and all taxes (or, with respect to the item listed on Exhibit G-4 as of the Closing Date, the Project Budget includes a line-item for the maximum amount of taxes claimed by the applicable taxing authorities that is the subject of such contested tax), material assessments, utility charges, fees and other governmental charges required to be paid by or with respect to Borrower have been timely paid (other than those taxes, if any, that it is contesting in good faith and by appropriate proceedings in accordance with the requirements of Section 5.18).  Borrower knows of no proposed tax assessment against any Borrower Entity which could reasonably be expected to have a Material Adverse Effect.  In either case, to the extent such taxes, assessments, charges and fees are not due, the applicable Borrower Entity has established reserves that are adequate for the payment thereof in conformity with GAAP.

4.15.2              At all times since its formation, each of Pledgor and Borrower has been an entity with a single owner that is disregarded as separate from its owner for federal (and where applicable, state) tax purposes.  No IRS Form 8832 has ever been filed with respect to Pledgor or Borrower as other than a disregarded entity.

4.15.3              Borrower has no liability for the taxes of any Person (other than Borrower) (a) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign law), (b) as a transferee or successor, (c) by contract or (d) otherwise.

4.15.4              Borrower does not intend to treat the Loans (including the incurrence thereof) as being a “reportable transaction” (within the meaning of Treasury Regulation Section 1.6011-4).

4.16                        GOVERNMENTAL REGULATION.  None of Parent, Pledgor, Borrower or any Secured Party or any Affiliate of any of them will, solely as a result of the construction, ownership, leasing or operation of the Project, the sale of wholesale electric capacity, energy or ancillary services therefrom, the making of the Loans, or the entering into any Operative Document in respect of the Project or any transaction contemplated hereby or thereby, be subject to, or not exempt from, regulation under the FPA or PUHCA or under state laws and regulations respecting the rates or the financial regulation of electric utilities, except that (a) Borrower will be subject to the compliance requirements under PUHCA applicable to an Exempt Wholesale Generator and an owner of an Eligible Facility, (b) Borrower will be a “public utility” under the FPA with authority to sell wholesale electric capacity, energy and ancillary services at market-based rates and with all waivers of regulations and blanket authorizations as are customarily granted by FERC to a “public utility” that sells at wholesale electric power and ancillary services at market-based rates, and (c) the exercise of remedies, as provided for under the Credit Documents, may cause any such Persons to be subject to regulation (i) under the FPA (ii) under state laws and regulations respecting the financial or organizational regulation of electric utilities, (iii) to the extent the Project is no longer an Exempt Wholesale Generator, under PUHCA, and (iv) to the extent the Project sells at retail or otherwise furnishes electric capacity, energy, ancillary services, or transmission or distribution services to consumers for domestic, commercial, or industrial use, under state laws and regulations respecting the rates and the financial or organizational regulation of electric utilities.  Except to the extent provided in the first sentence of this Section 4.16, Borrower will not be deemed by any Governmental Authority

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having jurisdiction to be subject to, or not exempt from, financial or rate regulation as an “electric utility”, “electric corporation”, “electrical company”, “public utility”, or “holding company” or any similar Person under any applicable Governmental Rule then in effect.

4.17                        REGULATION U, ETC.  Borrower is not engaged principally, or as one of its principal or important activities, in the business of extending credit for the purpose of “buying,” “carrying” or “purchasing” any “margin stock” (each as defined in Regulations T, U or X of the Federal Reserve Board, each as now and from time to time hereafter in effect), and no part of the proceeds of the Loans or the Project Revenues will be used whether directly or indirectly, and whether immediately, incidentally or ultimately, for the purpose of “buying,” “carrying” or “purchasing” any such margin stock or for any other purpose that entails a violation of, or that is inconsistent with, the provisions of the regulations of the Federal Reserve Board, including Regulation T, U or X.  Pledgor’s pledge of the membership interests in Borrower pursuant to the Pledge Agreement does not violate such regulations.

4.18                        BUDGETS; PROJECTIONS.  Borrower has prepared the Project Budget and the Base Case Projections in good faith, is responsible for developing the assumptions on which the Project Budget and the Base Case Projects are based, and the Project Budget and Base Case Projections (a) as of the date delivered, updated or supplemented are based on reasonable assumptions (including as to all legal and factual matters material to the estimates set forth therein), (b) as of the date delivered, updated or supplemented are consistent in all material respects with the provisions of the Project Documents executed on or prior to such date, (c) as of the date delivered, updated or supplemented indicate that the estimated aggregate Project Costs will not exceed Available Construction Funds; and (d) disclose all material assumptions made in the preparation thereof, including assumptions with respect to general economic, financial and market conditions.

4.19                        FINANCIAL STATEMENTS.

4.19.1              In the case of each financial statement of Borrower and accompanying information delivered by Borrower under the Credit Documents, each such financial statement and information has been prepared in conformity with GAAP applied consistently throughout the relevant periods (except as otherwise approved and disclosed therein) and fairly presents, in all material respects, the financial position (on a consolidated and, where applicable, consolidating basis) of Borrower, described in such financial statements as at the respective dates thereof and the results of operations and cash flows (on a consolidated and, where applicable, consolidating basis) of Borrower described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments and the absence of footnote disclosure.

4.19.2              Except for the obligations under the Operative Documents to which it is a party, Borrower does not (and will not following the funding of the initial Loans) have any contingent obligations, undisclosed liabilities, unmatured liabilities, contingent liability or liability for taxes, long-term lease or forward or long-term commitment (including any interest rate or foreign currency swap or exchange transaction or other financial derivative) required to be shown under GAAP that are not reflected in the foregoing financial statements or the notes thereto and which in any such case are material in relation to the business, results of operations,

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properties or financial condition of Borrower, nor has a Material Adverse Effect occurred during such period.

4.19.3              There has been no sale, transfer or other disposition by Borrower of any material part of its business or property, including the Project, and no purchase or other acquisition of any business or property (including capital stock of any Person).

4.20                        NO DEFAULT.  No Default or Event of Default which has not been disclosed to Administrative Agent in writing has occurred and is continuing.

4.21                        ORGANIZATIONAL ID NUMBER; LOCATION OF TANGIBLE COLLATERAL.

4.21.1              Borrower’s organizational identification number is 4244523.

4.21.2              All of the tangible Collateral is, or when installed pursuant to the Project Documents will be, located on the Site, the Easements or at Borrower’s address set forth in Section 13.1.1; provided, that equipment may be temporarily removed from the Site and/or the Easements from time to time in the ordinary course of business.

4.22                        TITLE AND LIENS.Borrower has (a) good, marketable and insurable (i) fee or leasehold interest in the Site (other than the BLM Right of Way (Phase II), the BLM Right of Way (Generator Lead Line), the Site Common Facilities, the Circle Four Easements and the ▇▇▇▇▇ Right of Way), (ii) interests in the BLM Right of Way (Phase II) and Circle Four Easements, and (iii) an undivided tenant in common interest in the Easements, the BLM Right of Way (Generator Lead Line), the ▇▇▇▇▇ Right of Way and the Site Common Facilities, in each case free of all Liens other than the Title Exceptions, and (iv) interest in any other Real Property, and (b) good, legal and valid title to all other Collateral, free of all Liens other than Permitted Liens.

4.23                        INTELLECTUAL PROPERTY.

4.23.1              Borrower owns or has the right to use all licenses, permits, franchises, authorizations, patents, copyrights, service marks, trademarks and trade names, or rights thereto, that are necessary for the operation of its business, without known conflict with the rights of others.  No product of Borrower infringes in any material respect any license, permit, franchise, authorization, patent, copyright, service ▇▇▇▇, trademark, trade name or other right owned by any other Person;

4.23.3              To the knowledge of Borrower, there is no violation by any Person of any right of Borrower with respect to any patent, copyright, service ▇▇▇▇, trademark, trade name or other right owned or used by Borrower; and

4.23.4              There exists no pending or threatened in writing claim or litigation against or affecting Borrower contesting its right to sell or use any such product, process, method, substance, part or other material.

4.23.5              Borrower owns no registered patents, copyrights or trademarks, or applications therefor.

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4.24                        COLLATERAL.  The respective liens and security interests granted to Collateral Agent pursuant to the Collateral Documents (a) constitute as to personal property included in the Collateral a valid security interest under the applicable UCC and (b) constitute as to the Mortgaged Property included in the Collateral a valid lien and security interest in the Mortgaged Property under the laws of the State of Utah.  The security interest granted to Collateral Agent pursuant to the Collateral Documents in the Collateral consisting of personal property has been perfected (i) with respect to any property that can be perfected by filing, upon the filing of financing statements in the filing offices identified in Exhibit D-5 (provided that the recording of the Trust Deed shall fulfill this requirement with respect to fixtures described therein), (ii) with respect to any property that can be perfected by control, upon execution of the Depositary Agreement, and (iii) with respect to any property (if any) that can be perfected by possession, upon Collateral Agent receiving possession thereof, and in each case such security interest will be, as to Collateral perfected under the UCC or otherwise as aforesaid, superior and prior to the rights of all third Persons now existing or hereafter arising whether by way of Lien of any type, assignment or otherwise, except (I) Title Exceptions and Permitted Liens described in clauses (a) and (e) of the definition of “Permitted Liens” and (II) to the extent required by Governmental Rule, Permitted Liens described in the other clauses of the definition of “Permitted Liens.”  All such action as is necessary to establish and perfect Collateral Agent’s rights in and to existing Collateral has been taken to the extent Collateral Agent’s security interest can be perfected by filing, including any recording, filing, registration, giving of notice or other similar action.  As of the Closing Date, no filing, recordation, re-filing or re-recording other than those listed on Exhibit D-5 is necessary to perfect and maintain the perfection of the interest, title or Liens on the Collateral comprising personal property, and on the Closing Date all such filings or recordings will have been made to the extent Collateral Agent’s security interest can be perfected by filing.  Borrower has properly delivered or caused to be delivered, or provided control, to Collateral Agent or Depositary all Collateral that permits perfection of the Lien and security interest described above by possession or control.

4.25                        SUFFICIENCY OF PROJECT DOCUMENTS.

4.25.1              Other than those that can be reasonably expected to be commercially available when and as required, the services to be performed, the materials to be supplied and the real property interests, the Easements and other rights granted, or to be granted, pursuant to the Project Documents in effect as of such date:

(a)                                  comprise all of the property interests necessary to secure any right material to the acquisition, leasing, development, construction, installation, completion, operation and maintenance of the Project in material accordance with all Legal Requirements and in material accordance with the Project Schedule, all without reference to any proprietary information not owned by or available to Borrower;

(b)                                 are sufficient to enable the Project to be located, constructed, developed, owned, occupied, operated, maintained and used on the Site and the Easements; and

(c)                                  provide adequate ingress and egress from the Site for any reasonable purpose in connection with the construction and operation of the Project.

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4.25.2              There are no services, materials or rights required for the construction or operation of the Project in accordance with the Construction Contract, the other Major Project Documents and the assumptions that form the basis of the Base Case Projections, other than those (a) to be provided under the Project Documents or (b) that can reasonably be expected to be commercially available at or for delivery to the Site on commercially reasonable terms consistent with the then-current Project Budget and the then-current Annual Operating Budget and the Base Case Projections.

4.26                        UTILITIES.  All utility services necessary for the construction and the operation of the Project for its intended purposes are available at the Project or can reasonably be expected to be so available as and when required upon commercially reasonable terms substantially consistent with the then-current Project Budget, the Project Schedule and the then-current Annual Operating Budget and the Base Case Projections.

4.27                        OTHER FACILITIES.

4.27.1              All roads necessary for the construction and full utilization of the Project for its intended purposes have either been completed or Borrower possesses the necessary rights of way therefor, other than rights of way that can reasonably be expected to be available on commercially reasonable terms as and when needed.

4.27.2              Borrower possesses, or to Borrower’s knowledge the counterparties to the Major Project Documents pursuant to which interconnection facilities will be constructed and, if applicable, operated for the benefit of the Project, possess and are obligated, except for restrictions or limitations contained in the applicable Project Documents, to provide or make available to Borrower, all necessary easements, rights of way, licenses, agreements and other rights for the construction, interconnection and utilization of the interconnection facilities (including water, wastewater and electrical).

4.28                        FLOOD ZONE DISCLOSURE.  The Site and Easements do not and will not include improvements located in an area that has been identified by the Federal Emergency Management Agency as an area having special flood or mudslide hazards and in which flood insurance has been made available under the National Flood Insurance Act of 1968, as amended.

4.29                        INSURANCE.  All insurance policies then required to be maintained by Borrower and, to Borrower’s knowledge, each other Major Project Participant pursuant to the terms of any Operative Document are in full force and effect, and all premiums then due and payable have been paid.

4.30                        ANTI-TERRORISM LAW.

(a)                                  Neither Borrower nor, to the knowledge of Borrower, any other Credit Party or any Affiliate is in violation of (i) any of the foreign assets control regulations of the United States Treasury Department (31 C.F.R., Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto, (ii) Executive Order No. 13,224, 66 Fed. Reg. 49,079 (2001), issued by the President of the United States (Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit or Support Terrorism) (the “Executive Order”) or (iii) the anti-money laundering provisions of the

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Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act) Act of 2001, Public Law 107-56 (October 26, 2001) (the “Patriot Act”), amending the Bank Secrecy Act, 31 U.S.C. Section 5311 et seq., and any other laws relating to terrorism or money laundering (collectively, “Anti-Terrorism Laws”).

(b)                                 None of the Affiliates, brokers or other agents of any Credit Party acting or benefiting in any capacity in connection with the Loans is any of the following:  (i) a Person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order; (ii) a Person owned or controlled by, or acting for or on behalf of, any person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order; (iii) a Person with which any Lender is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law; (iv) a Person that commits, threatens or conspires to commit or supports “terrorism” as defined in the Executive Order; or (v) a Person that is named as a “specially designated national and blocked person” on the most current list published by OFAC at its official website or any replacement website or other replacement official publication of such list.

(c)                                  No broker or other agent of any Borrower Entity acting in any capacity in connection with the Loans (i) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any person described in paragraph (b) above, (ii) deals in, or otherwise engages in any transaction relating to, any property or interests in property blocked pursuant to the Executive Order, or (iii) engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law.

4.31                        INVESTMENTS.  Other than Permitted Investments, Borrower has not acquired an equity interest in, acquired all or substantially all of the assets of, loaned money, extended credit or made advances to, or made deposits with (other than deposits or advances in relation to the payment for goods and equipment in the ordinary course of business the making of which is expressly contemplated pursuant to the Operative Documents), any Person.

4.32                        NO RECORDATION, ETC.  Each Operative Document is in proper legal form under the respective governing laws selected in such Operative Document for the enforcement thereof in such jurisdictions against Borrower and each other party thereto without any further action on the part of Administrative Agent or other Secured Parties.  To ensure the legality, validity, enforceability, priority or admissibility in evidence of any such document it is not necessary that such document or any other document be filed, registered or recorded with, or executed or notarized before, any court or other authority in such jurisdiction or that any registration charge or stamp or similar tax be paid on or in respect of any such document, except for the recordation of Collateral Documents and filing and recordation of such other documents as specifically contemplated pursuant to this Agreement.

4.33                        ENTITLEMENT TO GRANT.  The Borrower and the Project meet the standards for applicant and property eligibility set forth in the Treasury Guidance.  The risk of recapture liability in respect of the Grant proceeds is limited to those circumstances described in the Treasury Guidance as of the Closing Date.  As of the Closing Date, the Borrower’s commercially reasonable estimate is that the proceeds of the Grant will be approximately $78,139,544.  Such estimate (a) is, as of the Closing Date, based on reasonable assumptions as to

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all legal and factual matters material to the estimates set forth therein, (b) as of the Closing Date, is consistent with the provisions of the Credit Documents, (c) has been calculated in good faith and with due care, (d) fairly represents the Borrower’s reasonable expectations as to the matters covered thereby as of their date and (e) is consistent with the Cost Segregation Report delivered hereunder.  There are no taxes, assessments or other governmental charges or levies imposed or payable on or with respect to the Grant.  As of the date upon which the Project is placed into service, Borrower is not a Disqualified Person and will have made every election that is necessary to claim and apply for the Grant in accordance with the Treasury Guidance and applicable law.

4.34                        NO OWNERSHIP BY DISQUALIFIED PERSONS.  None of Borrower, Pledgor or Parent is a Disqualified Person.  Parent is a corporation for tax purposes.

4.35                        SOLVENCY.  Borrower is Solvent both before and after taking into account the transactions contemplated by the Credit Documents.

4.36                        PPA.

4.36.1              Borrower has not requested early termination of the PPA.

4.36.2              Borrower is a “Special Purpose Entity” as such term is defined in the PPA.

4.36.3              Each of the Leases, the ▇▇▇▇▇ Right of Way, the BLM Right of Way (Phase II) and the BLM Right of Way (Generator Lead Line) have been approved by SCPPA.

4.36.4              Borrower has provided SCPPA each of the reports required under Section 3.3 of the PPA.

4.36.5              Borrower has enforced the Leases and the other Major Project Documents to which it is a party in accordance with their terms.

ARTICLE 5
AFFIRMATIVE COVENANTS

5.1                               USE OF PROCEEDS, EQUITY CONTRIBUTIONS AND PROJECT REVENUES.

5.1.1                     Proceeds and Equity Contributions.

(a)                                 Unless otherwise applied by Administrative Agent pursuant to any Credit Document, Borrower shall (i) deposit the proceeds of the Loans and any cash equity contributions in the Construction Account, (ii) hold such proceeds in trust until deposited in the Construction Account and (iii) subject to Section 5.1.1(b), use them solely to pay Project Costs.

(b)                                 Notwithstanding anything to the contrary herein, Borrower shall be permitted to: (i) use the proceeds of Loans made available on the initial borrowing date to reimburse Sponsor or its Affiliates for Project Costs previously incurred and paid by such Person; provided that (A) such Project Costs are verified by Independent Engineer and (B) such reimbursement does not exceed the difference between the aggregate amount of such Project

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Costs and the Base Equity Requirement; and (ii) use the Proceeds of the Loan to make the Performance LC Distribution.

5.1.2                     Revenues.  Unless otherwise applied by Administrative Agent or Collateral Agent pursuant to any Credit Document, Borrower shall apply any Project Revenues, equity contributions, Loan proceeds, Insurance Proceeds and damage payments solely for the purpose, and in the order and manner, provided for in Article 7.

5.1.3                     Misapplication of Funds.  Notwithstanding anything to the contrary herein, in the event that funds required to be deposited in one Account are erroneously deposited into another Account, it shall not be an Event of Default so long as Borrower issues an Account Withdrawal Request requesting Administrative Agent to issue Account Withdrawal Instructions correcting such misapplication within three Business Days after Borrower has actual knowledge of such misapplication.

5.2                               PAYMENT.

5.2.1                     Credit Documents.  Borrower shall pay all sums due under the Credit Documents to which it is a party according to the terms hereof and thereof.

5.2.2                     Other Obligations.  Borrower shall pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all of its obligations under the Project Documents and all of its other obligations of whatever nature and howsoever arising, except (a) such as may be contested in good faith or as to which a bona fide dispute may exist, provided, that adequate cash reserves have been established in conformity with GAAP, or Administrative Agent is satisfied in its reasonable discretion that non-payment of such obligation pending the resolution of such contest or dispute will not in any way endanger the Project or result in a Material Adverse Effect or that provision is made to the satisfaction of Administrative Agent in its reasonable discretion for the posting of security (other than the Collateral) for or the bonding of such obligations or the prompt payment thereof in the event that such obligation is payable and (b) Borrower’s trade payables which shall be paid in the ordinary course of business.

5.3                               MAINTENANCE OF PROPERTY.  Other than property disposed of in accordance with Section 6.4, Borrower shall maintain (a) a good, marketable and insurable (i) fee or leasehold interest in the Site (other than the BLM Right of Way (Phase II), the BLM Right of Way (Generator Lead Line), the Site Common Facilities, the Circle Four Easements and the ▇▇▇▇▇ Right of Way), (ii) interest in the BLM Right of Way (Phase II) and the Circle Four Easements, (iii) undivided tenant in common easement interest in the Easements, the BLM Right of Way (Generator Lead Line), the Site Common Facilities and the ▇▇▇▇▇ Right of Way, and (iv) interest in any other Real Property, and (b) good, legal and valid title to all of its other material properties and assets, in each case free and clear of all Liens other than Permitted Liens.  Borrower shall generally keep all property useful and necessary in its business in good working order and condition.

5.4                               NOTICES.  Borrower shall upon acquiring notice or giving notice (except as otherwise specified below), as the case may be, or obtaining knowledge thereof, promptly (and in any event, within 10 Business Days unless otherwise noted below) give notice (with copies of

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any underlying notices, papers, files or related documentation) to Administrative Agent, accompanied by a statement of a Responsible Officer setting forth details of the occurrence referred to therein and stating what action Borrower proposes to take with respect thereto, of:

5.4.1                     any litigation pending or, to Borrower’s knowledge, threatened in writing against Borrower involving claims against Borrower or the Project in excess of $1,000,000 individually or in the aggregate per calendar year or involving any injunctive, declaratory or other equitable relief, such notice to include, if requested in writing by Administrative Agent, copies of all papers filed in such litigation and to be given monthly if any such papers have been filed since the last notice given;

5.4.2                     any dispute or disputes for which written notice has been received by Borrower which may exist between Borrower or any holder of an Applicable Third Party Permit and any Governmental Authority and which involve (a) claims against Borrower which exceed $500,000 individually or in the aggregate per calendar year, (b) injunctive or declaratory relief, or (c) revocation, modification, failure to renew or the like of any Applicable Permit or Applicable Third Party Permit;

5.4.3                     within five days after a Responsible Officer having knowledge thereof, any Default or Event of Default;

5.4.4                     any casualty, damage or loss, whether or not insured, through fire, theft, other hazard or casualty, or any act or omission of (a) Borrower, its employees, agents, contractors or representatives in excess of $500,000 for any one event or in the aggregate in any calendar year, or (b) to Borrower’s knowledge, any other Material Project Participant if such casualty, damage or loss could reasonably be expected to have a material adverse effect on the business, costs or property of such Person or the ability of such Person to perform its obligations under the Operative Documents;

5.4.5                     within five Business Days, any cancellation, suspension or material change in the terms, coverage or amounts of any insurance described in Exhibit K;

5.4.6                     any contractual obligations incurred by Borrower exceeding $250,000 per year in the aggregate for the Project, not including any obligations incurred pursuant to the Credit Documents or the Project Documents or any obligation contemplated in the then-current Project Budget or the then-current Annual Operating Budget;

5.4.7                     any intentional withholding of compensation to, or any right to withhold compensation claimed by, any Major Project Participant or pursuant to any Major Project Document, other than retention provided by the express terms of any such contracts;

5.4.8                     any (a) termination (other than expiration in accordance with its terms and any applicable Consent) of, or material default of which Borrower has knowledge or written notice thereof under, any Major Project Document, (b) material Project Document Modification (with copies of all such Project Document Modifications whether or not requiring approval of Administrative Agent or the Required Lenders pursuant to Section 6.12) and (c) without duplication, any material dispute, relating to the Project, between Borrower and any Major Project Participant;

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5.4.9                     any written claim of events of force majeure, change orders in excess of $250,000, or Borrower caused delay under any Major Project Document (including claims therefor regardless of whether Borrower believes such claim has merit) and, to the extent requested by Administrative Agent, copies of invoices or statements which are reasonably available to Borrower under any Major Project Document, certified by an authorized representative of Borrower, together with a copy of any supporting documentation, schedule, data or affidavit delivered under such Major Project Document; provided, however, Borrower shall provide copies of any notices received under the PPA as promptly as practicable after the date of such receipt (and in any event within three Business Days after the date of such receipt);

5.4.10              any (a) material noncompliance with any Hazardous Substance Law or any material Release, or material threat of Release, of Hazardous Substances on or from the Real Property that has resulted or could reasonably be expected to result in personal injury or material property damage or to have a Material Adverse Effect or is required to be reported to any Governmental Authority under any Hazardous Substance Law, (b) pending or, to Borrower’s knowledge, threatened in writing, Environmental Claim against Borrower or, to Borrower’s knowledge, any of its Affiliates, contractors, lessees or any other Persons, arising in connection with their occupying or conducting operations on or at the Real Property which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (c) any condition, circumstance, occurrence or event that could reasonably be expected to result in a material liability under Hazardous Substance Laws or in the imposition of any Lien or any other restriction on the title, ownership or transferability of any Real Property, (d) any proposed action to be taken by Borrower that could reasonably be expected to subject it to any material additional or different requirements or liabilities under Hazardous Substance Laws, or (e) existence of any underground tank, whether operative or temporarily or permanently closed, located on the Real Property;

5.4.11              promptly, but in no event later than 15 days prior to the time any Person will become a member of Borrower or the occurrence of any other change in or transfer of ownership interests in Borrower or the Project, notice thereof, which notice shall identify such Person and such Person’s interest in Borrower or shall describe, in reasonable detail, such other change or transfer;

5.4.12              any material written notices, reports or information (including any notice that the Project has achieved mechanical completion, substantial completion and final completion (or any similar concepts) under the Construction Contract) delivered to or received by Borrower or any Operator from the parties to the Major Project Documents;

5.4.13              any proceeding or legislation by any Governmental Authority to confiscate, condemn, expropriate, nationalize or otherwise acquire compulsorily Borrower, all or any portion of the Collateral, or all or any portion of Borrower’s business or assets (whether or not constituting an Event of Default);

5.4.14              promptly, but in no event later than 30 days after the receipt thereof by Borrower, copies of (a) all Applicable Permits obtained by Borrower after the Closing Date, (b) any amendment, supplement or other modification to any Applicable Permit received by

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Borrower after the Closing Date and (c) all material notices relating to the Project received by Borrower from, or delivered by Borrower to, any Governmental Authority;

5.4.15              promptly, but in no event later than five days after occurrence thereof, (a) the scheduling of any substantial outage with an anticipated duration in excess of five days and (b) any substantial outage (scheduled or otherwise) with a duration in excess of five days;

5.4.16              within five Business Days of receipt thereof, copies of any recovery plan proposed by any Construction Contractor for review by Administrative Agent and the Independent Engineer;

5.4.17              any default or event of default under any contractual obligations of Borrower, which if not cured would have a Material Adverse Effect;

5.4.18              any Lien (other than a Permitted Lien) being granted or established or becoming enforceable over any portion of Collateral;

5.4.19              the occurrence of any event, condition, circumstance or change that has caused or evidences, individually or in the aggregate, the occurrence of any event having, a Material Adverse Effect;

5.4.20              (a) within 10 days prior to the occurrence of a Reportable Event with respect to any ERISA Plan; (b) promptly, but in no event later than 15 days, after the complete or partial withdrawal of any Credit Party or any ERISA Affiliate from a Multiemployer Plan or receipt by any Credit Party of notification that a Multiemployer Plan is in reorganization (within the meaning of Section 4241 of ERISA); (c) promptly, but in no event later than five days, after any Credit Party has knowledge that the PBGC has instituted any proceedings to terminate any ERISA Plan or Multiemployer Plan or has taken action to appoint a trustee of any ERISA Plan under Section 4042 of ERISA; (d) promptly, but in no event later than 10 days, after the occurrence of any event which could reasonably be expected to give rise to a lien in favor of the IRS or the PBGC under any ERISA Plan; (e) promptly, but in no event later than 30 days, after any Credit Party has knowledge that a Multiemployer Plan is in “critical” or “endangered” status within the meaning of Section 305 of ERISA, is insolvent or intends to terminate an ERISA Plan under Section 4041A of ERISA and (f) promptly, but in no event later than 10 days prior to the date any Credit Party or any ERISA Affiliate shall apply for a minimum funding waiver under Section 412 of the Code with respect to an ERISA Plan, a description thereof and copies of documents and materials related thereto;

5.4.21              any Change of Control or Recapture Event;

5.4.22              At least 90 days prior to Commercial Operation, Borrower shall notify Administrative Agent of the earliest possible expected date upon which Commercial Operation may be achieved;

5.4.23              within 15 days after the filing or certification thereof, copies of any and all reports filed with, or certifications made to, the U.S. Treasury Department with respect to the Grant and, promptly upon the receipt thereof, a copy of any acknowledgement or notice from the

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U.S. Treasury Department (including any notice acknowledging receipt of the application of the Grant);

5.4.24              within 10 days of the receipt thereof, any assertion, claim, demand, or request by the United States for repayment of any or all amounts received by Borrower as Grant, whether with respect to an alleged overpayment of such amount, as a result of an event resulting in any recapture, or any other reason;

5.4.25              promptly any information Borrower obtains related to the STS Upgrade (as such term is defined in the PPA); and

5.4.26              any other information relating to Borrower or the Project that Administrative Agent or any Lender may reasonably request.

5.5                               FINANCIAL REPORTING.

5.5.1                     Financial Statements.  Borrower shall deliver to Administrative Agent, in form and detail reasonably satisfactory to Administrative Agent, the following:

(a)                                 As soon as practicable and in any event within 120 days after the close of each applicable fiscal year, audited financial statements of Borrower, SCPPA, Turbine Supplier and RMT Parent (it being acknowledged that such financial statements shall be deemed to be delivered if a Form 10-K or equivalent filed with the SEC for such Person is publicly available); provided, that the foregoing financial statements with respect to (i) Turbine Supplier shall only be required with respect to fiscal years prior to expiration of the applicable warranty periods under the applicable Turbine Supply Agreement and (ii) RMT Parent shall only be required prior to the expiration of the RMT Guaranty and to expiration of the applicable warranty periods under the Construction Contract.  Such financial statements shall include a statement of equity, a balance sheet as of the close of such year, an income and expense statement, reconciliation of capital accounts (where applicable), a statement of cash flow and summary results of hedging and trading activities (in the case of Borrower only), all prepared in accordance with GAAP consistently applied reported on without a “going concern” or like qualification or exception, or qualification arising out of the scope of the audit, and certified by an independent certified public accountant of nationally recognized standing reasonably acceptable to Administrative Agent.  Such certificate shall not be qualified or limited because of restricted or limited examination by such accountant.  The relevant accountants shall also certify that in making the examination necessary for reporting on the foregoing financial statements no knowledge was obtained of any Default or Event of Default, except as disclosed in such certificate;

(b)                                 As soon as practicable and in any event within 60 days after the end of the first, second and third quarterly accounting periods of its fiscal year (commencing with the fiscal quarter ending September 30, 2010), unaudited quarterly financial statements of Borrower, SCPPA, Turbine Supplier and RMT Parent (it being acknowledged that such financial statements shall be deemed to be delivered if a Form 10-Q or equivalent filed with the SEC for such Person is publicly available) as of the last day of such quarterly period and the related statements of income, cash flow, and shareholders’ or members’ equity (as applicable) for such quarterly period and (in the case of second and third quarterly periods) for the portion of the fiscal year

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ending with the last day of such quarterly period, setting forth in each case in comparative form corresponding unaudited figures from the preceding fiscal year (it being acknowledged that such financial statements shall be deemed to be delivered if a Form 10-K or equivalent filed with the SEC for such Person is publicly available), all prepared in accordance with GAAP consistently applied (subject to changes resulting from audit and normal year-end adjustments and the absence of footnote disclosure); provided, that the foregoing financial statements with respect to Turbine Supplier and RMT Parent shall be limited as to time as set forth in Section 5.5.1(a); and

5.5.2                     Certification.  Borrower shall cause to be delivered, along with any financial statements of Borrower delivered pursuant to Section 5.5.1, a certificate signed by a Responsible Officer of Borrower, certifying that (a) such Responsible Officer has made or caused to be made a review of the transactions and financial condition of Borrower during the relevant fiscal period and that such review has not disclosed the existence of any event or condition which constitutes a Default or Event of Default, or if any such event or condition existed or exists, the nature thereof and the corrective actions that Borrower has taken or proposes to take with respect thereto, (b) Borrower is in compliance with all applicable material provisions of each Operative Document to which Borrower is a party or, if such is not the case, stating the nature of such non-compliance and the corrective actions which such Person has taken or proposes to take with respect thereto, and (c) such financial statements are true and correct in all material respects and that no material adverse change in the consolidated assets, liabilities, operations, or financial condition of Borrower has occurred since the date of the immediately preceding financial statements provided to Administrative Agent or, if a material adverse change has occurred, the nature of such change.

5.6                               BOOKS, RECORDS, ACCESS.  Borrower shall (a) maintain, or cause to be maintained, adequate books, accounts and records with respect to Borrower and the Project, in which full and correct entries shall be made of all financial transactions and the assets and business of Borrower, and prepare all financial statements required hereunder, in each case in accordance with GAAP (subject, in the case of unaudited financial statements, to changes resulting from audit and normal year-end adjustments and the absence of footnote disclosure) and in compliance with the regulations of any Governmental Authority having jurisdiction thereof; and, (b) subject to requirements of Governmental Rules, safety requirements and existing confidentiality restrictions imposed upon Borrower by any other Person, permit employees or agents of Administrative Agent and Independent Engineer at any reasonable times and upon reasonable prior notice to Borrower, Construction Contractor or Operators, as applicable, (i) to inspect all of Borrower’s properties, including the Site, (ii) to examine or audit all of Borrower’s books, accounts and records and make copies and memoranda thereof, (iii) to communicate with Borrower’s auditors outside the presence of Borrower, (iv) to discuss the business, operations, properties and financial and other conditions of Borrower with officers and employees of Borrower and with its independent certified public accountants, and (v) to witness any Performance Tests; provided however, that Borrower shall bear the costs of only one such inspection annually, unless an Event of Default has occurred and is continuing or Borrower has failed to deliver the report required pursuant Section 5.8.1(b) on a timely basis (without amending any cure period in 8.1.8(b)), in which case Borrower shall bear the cost all such inspections as Administrative Agent may require in its sole discretion.

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5.7                               COMPLIANCE WITH LAWS, INSTRUMENTS, APPLICABLE PERMITS, ETC.  Borrower shall promptly comply, or cause compliance, in all material respects with all Legal Requirements (including Legal Requirements and Applicable Permits relating to pollution control, environmental protection, employment practices, terms and conditions of employment, wages and hours, equal employment opportunity or employee benefit plans, ERISA Plans and employee safety, with respect to Borrower or the Project), and make such alterations to the Project and the Site as may be required for such compliance.

5.8                               REPORTS.

5.8.1                     Construction Progress Reports.  Borrower shall:

(a)                                 promptly after receipt thereof, deliver to Administrative Agent and the Independent Engineer copies of all progress reports of the construction of the Project issued by Construction Contractor and received by Borrower, supplementing such reports in reasonable detail with material information not already included therein or in the last prior report delivered by Borrower pursuant to Section 5.8.1(b), detailing the progress of the development and construction of the Project since the last prior report delivered by Construction Contractor (including any change orders then requested by Borrower or Construction Contractor); and

(b)                                 deliver to Administrative Agent and the Independent Engineer as soon as available, but in no event later than the 10th Business Day of each month prior to Completion, a summary of construction on the Project during such month, describing, to the extent not included in the reports described in Section 5.8.1(a), (i) physical progress and expenditures, (ii) cumulative expenditures to date, (iii) any material variations from the then-current Project Budget or Project Schedule, (iv) any fact, event or occurrence of which Borrower is aware that (A) may increase the total capital costs of the Project above those provided in the Project Budget, delay Completion or Commercial Operation beyond the then-estimated dates therefor or otherwise have a Material Adverse Effect, or (B) may render unreasonable or inappropriate any material assumption on which the Project Budget was based, and the anticipated manner and timing of actions proposed to be taken by Borrower in reaction to any such fact, event or occurrence, together with an estimate (if available) of the costs associated with the taking of such actions, (v) delivery status of major equipment and the effect, if any, that the anticipated delivery dates of such equipment may have on the Project Schedule and (vi) compliance with Sections 6.2 and 6.3 or the PPA.

5.8.2                     Operating Report.  Deliver to Administrative Agent within 26 days of the end of each month after Commercial Operation, a summary operating report with respect to the Project, which shall include, with respect to the period most recently ended, (i) a monthly and year-to-date numerical and brief narrative assessment of (A) the Project’s compliance with each material category in the then-current Annual Operating Budget, (B) electrical production, capacity, availability and delivery, (C) plant and unit availability, including trips and scheduled and unscheduled outages, (D) maintenance activity, (E) replacement of material equipment, (F) transactions involving the provision of electrical products from sources other than the Project, if any, and (G) material unresolved disputes with contractors, materialmen, suppliers or others and any related claims against Borrower, if any; and (ii) to the extent applicable, a comparison of year-to-date figures to corresponding figures provided in the prior year.

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5.8.3                     Insurance.  (i) As soon as practicable and in any event by the last day of each calendar year, a report in form and substance reasonably satisfactory to Administrative Agent outlining all material insurance coverage maintained as of the date of such report by Borrower and all material insurance coverage planned to be maintained by Borrower in the immediately succeeding calendar year, and (ii) together with the delivery of the insurance report required pursuant to this Section, Borrower shall furnish to Administrative Agent a certificate executed by Borrower’s insurance broker substantially in the form of Exhibit L, detailing the insurance then maintained by or on behalf of Borrower pursuant to Exhibit K and stating that such insurance is in full force and effect and complies in all material respects with the terms hereof, together with evidence of payment of the premiums then due thereon and a schedule of policy expiration dates.

5.8.4                     New Documents.  Promptly, but in no event later than five Business Days after execution and delivery thereof, a copy of each Additional Project Document.

5.8.5                     Performance Tests.  Within five Business Days after Borrower receives notice pursuant to any Major Project Document of the proposed conduct of Performance Tests for the Project or material portion thereof and promptly prior to the proposed conduct of any subsequent Performance Tests, deliver to Administrative Agent notice of such proposed Performance Tests.

5.8.6                     Management Letters.  Promptly after the receipt thereof by Borrower, deliver to Administrative Agent a copy of any “management letter” received by it from its certified public accountants and the management’s responses thereto.

5.8.7                     Governing Documents.  Promptly provide Administrative Agent copies of any Governing Documents (delivered pursuant to Section 3.1.3) that have been amended or modified in accordance with the terms hereof and deliver a copy of any notice of default given or received by any Credit Party under any Governing Document within 10 days after such Person gives or receives such notice.

5.8.8                     Turbine Reports.  Promptly after receipt thereof, deliver to Administrative Agent and Independent Engineer a copy of each report (if any) pertaining to the turbines for the Project or the equipment and machinery relating to such turbines.

5.8.9                     As-Built ALTA Survey.  On or before the date that is 45 Business Days after the Completion Date, Borrower shall provide an ALTA as-built survey of the Project which (i) depicts all of the Real Property, (ii) certified to Borrower, Administrative Agent and the Title Insurer by ▇▇▇▇▇▇▇ Engineering, Inc., Westwood Professional Services, or such other licensed surveyor reasonably satisfactory to Administrative Agent, (iii) discloses no title defects, encroachments or encumbrances affecting the Real Property other than Permitted Liens, and (iv) is otherwise in a form reasonably acceptable to Administrative Agent.

5.8.10              Additional Information.  Provide to Administrative Agent promptly upon request such reports, statements, lists of property, accounts, budgets, forecasts and other information concerning Borrower and the Project and, to the extent reasonably available, the Major Project Participants reasonably requested by Administrative Agent and at such times as

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Administrative Agent shall reasonably require, including such reports and information as are reasonably required by the Independent Consultants.

5.9                             EXISTENCE, CONDUCT OF BUSINESS, PROPERTIES, ETC.  Except as otherwise expressly permitted under this Agreement, Borrower shall (a) maintain and preserve its existence as a Delaware limited liability company and all material rights, privileges and franchises necessary in the conduct of its business, (b) subject to Section 5.2.2, perform (to the extent not excused by force majeure events or the nonperformance of the other party and not subject to a good faith dispute) all of its material contractual obligations under the Major Project Documents, (c) maintain all Applicable Permits and use all reasonable efforts to cause all Major Project Participants to maintain all Applicable Third Party Permits, except to the extent that any such failure to maintain could not reasonably be expected to have a Material Adverse Effect, (d) at or before the time that any Permit becomes an Applicable Permit, obtain such Permit and (e) otherwise continue to engage in business of the same general type as now conducted by it.

5.10                        INDEMNIFICATION.

5.10.1              Borrower shall indemnify, defend and hold harmless the Secured Parties, in their respective capacities, and their respective Related Parties (collectively, the “Indemnitees”) from and against, and indemnify and reimburse the Indemnitees for:

(a)                                 any and all claims, obligations, liabilities, losses, damages, injuries (to Person, property, or natural resources), penalties, stamp or other similar taxes, actions, suits, judgments, costs and expenses (including reasonable attorney’s fees) of whatever kind or nature, whether or not well founded, meritorious or unmeritorious, payable to third parties, that have been incurred by, or demanded, asserted, claimed or awarded against any such Indemnitee (collectively, “Subject Claims”) in any way relating to, or arising out of or in connection with (i) any Operative Documents to which it is a party, (ii) the performance by the parties hereto of their respective obligations hereunder or the consummation of the transactions contemplated hereby or thereby, and (iii) any Loan or the use of the proceeds therefrom;

(b)                                 any and all Subject Claims arising in connection with any Environmental Claims, whether foreseeable or unforeseeable, including all costs of removal, investigation, remediation and disposal of any Hazardous Substances, together with all reasonable costs required to be incurred in (i) determining whether the Project or any Person is in compliance and (ii) causing the Project or any Person to be in compliance, with all applicable Legal Requirements, all reasonable costs associated with claims for damages to Persons or property, reasonable attorneys’ and consultants’ fees, investigation and laboratory fees, response costs and court costs; and

(c)                                  any and all Subject Claims in any way relating to, or arising out of or in connection with any claims, suits or liabilities against Borrower or any of its Affiliates to the extent related to the Project or the transactions contemplated by the Operative Documents.

5.10.2              The foregoing indemnities shall not apply with respect to an Indemnitee, to the extent determined by final and non-appealable judgment of a court of competent

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jurisdiction to have arisen as a result of the gross negligence or willful misconduct of such Indemnitee, but shall continue to apply to other Indemnitees.

5.10.3              The provisions of this Section 5.10 shall survive the termination of this Agreement, the foreclosure of the Collateral Documents and satisfaction or discharge of Borrower’s Obligations under the Credit Documents to which it is a party, and shall be in addition to any other rights and remedies of any Indemnitee.

5.10.4              In case any action, suit or proceeding shall be brought against any Indemnitee, such Indemnitee shall notify Borrower of the commencement thereof, and Borrower shall be entitled, at its expense, acting through counsel reasonably acceptable to such Indemnitee, to participate in, and, to the extent that Borrower desires, to assume and control the defense thereof.  Such Indemnitee shall be entitled, at its expense, to participate in any action, suit or proceeding the defense of which has been assumed by Borrower.  Notwithstanding the foregoing, Borrower shall not be entitled to assume and control the defenses of any such action, suit or proceedings if and to the extent that, in the reasonable opinion of such Indemnitee and its counsel, such action, suit or proceeding involves the potential imposition of criminal liability upon such Indemnitee or a conflict of interest between such Indemnitee and Borrower or between such Indemnitee and another Indemnitee (unless such conflict of interest is waived by the affected Indemnitees), and in such event (other than with respect to disputes between such Indemnitee and another Indemnitee) Borrower shall pay the reasonable expenses of such Indemnitee in such defense.

5.10.5              If Borrower has assumed the defense of any action, suit or proceeding pursuant to Section 5.10.4, Borrower shall promptly report to such Indemnitee on the status of such action, suit or proceeding as material developments shall occur and from time to time as requested by such Indemnitee (but not more than every 60 days).  Borrower shall deliver to such Indemnitee a copy of each document filed or served on any party in such action, suit or proceeding, and each material document which Borrower possesses relating to such action, suit or proceeding.

5.10.6              Notwithstanding Borrower’s rights hereunder to control certain actions, suits or proceedings:

(a)                                 if any Indemnitee reasonably determines that failure to compromise or settle any Subject Claim made against such Indemnitee is reasonably likely to subject such Indemnitee to civil, criminal or administrative penalties, to result in the loss, suspension or impairment of a license or Permit held by such Indemnitee or to cause material damage to such Indemnitee’s reputation, such Indemnitee shall be entitled to compromise or settle such Subject Claim; and

(b)                                 if the Required Lenders reasonably determine that failure to compromise or settle any Subject Claim made against such Indemnitee is reasonably likely to have a Material Adverse Effect, Administrative Agent shall provide Borrower with notice of a proposed compromise or settlement of such claim specifying in detail the nature and amount of such proposed settlement or compromise.  Borrower (or any other relevant Borrower Entity shall be deemed to have approved such proposed compromise or settlement unless, within 30 days after

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the date Borrower receives such notice of intended compromise or settlement, Borrower provides the Lenders with a written legal analysis from counsel reasonably acceptable to Administrative Agent reasonably concluding that, based on the magnitude of the Subject Claim, the legal basis for such Subject Claim, the cost of defending such Subject Claim or the amount of such proposed settlement or compromise is not within a reasonable range of settlements or compromises for such Subject Claim, and indicating, based on such factors, such counsel’s view as to the appropriate amount of a reasonable settlement or compromise for such Subject Claim (the “Settlement Amount”).  If the Lenders receive such legal analysis required by this Section 5.10.6 within such 30-day period, then (i) the Required Lenders may elect to settle or compromise such Subject Claim and Borrower shall be responsible for the payment of all amounts of such compromise or settlement up to 125% of the Settlement Amount, (ii) such Indemnitee shall be responsible for payment of all amounts of such compromise or settlement in excess of such 125% limit and (iii) such compromise or settlement shall be binding upon Borrower.  If Borrower does not provide such legal analysis within such period, or if such legal analysis is not reasonable, in the determination of the Required Lenders, then such Indemnitee may settle or compromise such Subject Claim (and Borrower shall cause any other relevant Borrower Entity to agree to the same) and shall be fully indemnified by Borrower therefor.  The Lenders shall not otherwise settle or compromise any such Subject Claim other than at their own expense.

5.10.7              Upon payment of any Subject Claim by Borrower pursuant to this Section 5.10 or other similar indemnity provisions contained herein to or on behalf of an Indemnitee, Borrower, without any further action, shall be subrogated to any and all claims that such Indemnitee may have relating thereto, and such Indemnitee shall cooperate with Borrower and Borrower’s insurance carrier and give such further assurances as are necessary or advisable to enable Borrower vigorously to pursue such claims.

5.10.8              Any amounts payable by Borrower pursuant to this Section 5.10 shall be regularly payable within 30 days after Borrower receives an invoice for such amounts from any applicable Indemnitee, and if not paid within such 30-day period shall bear interest at the Default Rate.

5.10.9              Notwithstanding anything to the contrary set forth herein, Borrower shall not, in connection with any one legal proceeding or claim, or separate but related proceedings or claims arising out of the same general allegations or circumstances, in which the interests of the Indemnitees do not materially differ, be liable to the Indemnitees (or any of them) under any of the provisions set forth in this Section 5.10 for the fees and expenses of more than one separate firm of lead attorneys and a number of firms of “local counsel” equal to the number of jurisdictions involved (which firms shall be selected by the affected Indemnitees, or upon failure to so select, by Administrative Agent).

5.10.10                   Subject to the provisions of this Section 5.10, any of Borrower’s indemnification obligations pursuant to Section 5.10.1 that arise out of or in connection with or by reason of, or in connection with a preparation of a defense of, any investigation, litigation or proceeding shall be, in each case, binding upon Borrower regardless of whether such investigation, litigation or proceeding is brought by any Borrower Entity or its respective

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directors, officers, shareholders or creditors or any Indemnitee or whether any Indemnitee or any other Person is otherwise a party thereto.

5.10.11                   If, for any reason whatsoever, the indemnification provided under this Section 5.10 is unavailable to any Indemnitee or is insufficient to hold it harmless to the extent provided in this Section 5.10, then provided such payment is not prohibited by or contrary to any applicable Legal Requirement or public policy, Borrower shall contribute to the amount paid or payable by such Indemnitee as a result of the Subject Claim in such proportion as is appropriate to reflect the relative economic interests of Borrower and its Affiliates on the one hand, and such Indemnitee on the other hand, in the matters contemplated by this Agreement as well as the relative fault of Borrower (and its Affiliates) and such Indemnitee with respect to such Subject Claim, and any other relevant equitable considerations.

5.10.12                   Nothing in this Section 5.10 shall constitute a release by Borrower of any claims that it has as a result of a breach or a default by any of the Secured Parties of their respective obligations under any Credit Document.

5.11                        REGULATION.

5.11.1              Borrower shall take or cause to be taken all necessary or appropriate actions so that (a) (i) Borrower will be an Exempt Wholesale Generator, and (ii) the Project will be an Eligible Facility at all times hereunder or (b) Borrower and the Project shall not be subject to, or shall be exempt from, (i) financial or organizational regulation as a “electric utility company,” “public utility,” “public-utility company” or “holding company” under PUHCA, or (ii) rate regulation or financial regulation as a “public utility” or “electrical corporation” under the laws of Utah except as otherwise provided in the orders of the Utah Public Service Commission itemized in the Permit Schedule, and (c) Borrower will be authorized to sell wholesale electricity at market-based rates.

5.11.2              At least 75 days prior to Commercial Operation, Borrower shall deliver to Administrative Agent certified true and correct copies of validly filed notices of self-certification or validly issued final orders from FERC under the FPA, as applicable, not subject to any pending rehearing, challenge, appeal, investigation, or proceeding (a) confirming that the Project is an Eligible Facility and that Borrower is an Exempt Wholesale Generator, (b) authorizing Borrower to sell electricity at market-based rates and granting such waivers and blanket authorizations (including blanket authorizations to issue securities and to assume liabilities under Section 204 of the FPA and 18. C.F.R. Part 34), as customarily are granted to entities with market-based rate authority, and (c) all necessary approvals from any Governmental Authority in respect of the Interconnection Agreement and the PPA, to the extent applicable.

5.12                  CONSTRUCTION OF THE PROJECT.  Borrower shall cause the Project to be designed, engineered, constructed, developed, installed, equipped, maintained and operated in a good and workmanlike manner with due diligence, and substantially in accordance with (a) the Plans and Specifications, (b) the then-current Project Budget, (c) the Project Schedule, (d) the Construction Contract and the other Major Project Documents, as any of the same may be amended from time to time in accordance with Sections 6.12 and 6.19.2, and in compliance with all applicable Legal Requirements, Permits and good industry practices.

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5.13                        COMPLETION AND COMMERCIAL OPERATION.

5.13.1              Borrower shall achieve Completion and Commercial Operation in a timely and diligent manner substantially in accordance with the Project Schedule, the then-current Project Budget, the Plans and Specifications, the Major Project Documents, as any of the same may be amended from time to time pursuant to Sections 6.12 and 6.19.2 and, in the case of Completion, in no event later than 30 days after Commercial Operation.

5.13.2              If at any time after the Closing Date, Independent Engineer determines that construction of the Project is unlikely to achieve Commercial Operation by the Date Certain, Borrower shall, within 10 Business Days from the date of receipt of notice from Administrative Agent of Independent Engineer’s determination, submit to Administrative Agent and Independent Engineer a remedial plan for achieving Commercial Operation by the Date Certain (the “Remedial Plan”), which Remedial Plan shall be subject to the approval of Administrative Agent in consultation with Independent Engineer, and shall diligently implement such Remedial Plan.  Borrower shall have 10 Business Days to adequately address Administrative Agent’s and Independent Engineer’s objections to the Remedial Plan and shall submit a new Remedial Plan addressing those objections.

5.13.3              On or prior to December 31, 2010, Borrower shall have commenced construction of the Project to the extent necessary to ensure that the Project is Grant Eligible.

5.14                        OPERATION AND MAINTENANCE OF PROJECT; OPERATING BUDGET.

5.14.1              Borrower shall keep the Project, or cause the same to be kept, in good operating condition consistent with the standard of care set forth in the O&M Agreements, all Applicable Permits and Applicable Third Party Permits, Legal Requirements and the Operative Documents, and make or cause to be made all repairs (structural and non-structural, extraordinary or ordinary) necessary to keep the Project in such condition.

5.14.2              Borrower shall operate the Project, or cause the same to be operated, in a manner consistent with Prudent Industry Practices and in compliance with the terms of the PPA.

5.14.3              On or before the date that is 60 days prior to the anticipated date of commencement of Commercial Operations and thereafter 60 days prior to the beginning of each subsequent calendar year, Borrower shall submit an operating plan and a budget, detailed by month, of anticipated revenues and anticipated expenditures, such budget to include Debt Service and all anticipated O&M Costs (including reasonable allowance for contingencies) applicable to the Project for the ensuing calendar year (or, in the case of the initial Annual Operating Budget, partial calendar year) (each such annual operating plan and budget, including the initial Annual Operating Budget, an “Annual Operating Budget”).  Each Annual Operating Budget shall be subject to the approval of Administrative Agent acting in consultation with the Independent Engineer, such approval not to be unreasonably withheld.  Borrower shall prepare a final Annual Operating Budget no less than 30 days in advance of the anticipated date of Commercial Operation and each subsequent calendar year.  The O&M Costs in each Annual Operating Budget which are subject to escalation limitations in the Project Documents shall not, absent

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extraordinary circumstances, be increased by more than the amounts provided in such Project Documents.

5.14.4              Borrower shall operate and maintain the Project, or cause the Project to be operated and maintained, within amounts for (a) any Operating Budget Category of an amount greater than $50,000 not to exceed 110% (on a year-to-date basis) and (b) for all Operating Budget Categories not to exceed 105% (on a year-to-date basis), in each case of the amounts budgeted therefor as set forth in the then-current Annual Operating Budget as approved or deemed approved by Administrative Agent; provided, however, that subject to Section 6.12, Borrower may propose an amendment to the Annual Operating Budget for Administrative Agent’s approval if at any time Borrower cannot comply with this requirement (and Administrative Agent shall consider each such amendment in good faith and shall not unreasonably withhold its consent to the approval of any such amendment).  Pending approval of any Annual Operating Budget or amendment thereto in accordance with the terms of this Section 5.14.4, Borrower shall use all reasonable efforts to operate and maintain the Project, or cause the Project to be operated and maintained, within the then-current Annual Operating Budget (it being acknowledged that if a particular calendar year’s Annual Operating Budget has not been approved by the time periods provided in Section 5.14.3, then the then-current Annual Operating Budget shall be deemed to be the Annual Operating Budget in effect prior to the delivery of the proposed final Annual Operating Budget pursuant to Section 5.14.3); provided, that the amounts specified therein shall be increased to the extent specified in the Project Documents.

5.14.5              Commencing with the first possible date for commissioning of the turbines, Borrower shall make available at the Project site one or more qualified personnel to meet the obligations under Section 5 of the Construction Contract.

5.15                        PRESERVATION OF RIGHTS; FURTHER ASSURANCES.

5.15.1              Major Project Documents.  Borrower shall maintain in full force and effect, perform (subject to Section 5.2.2) the material obligations of Borrower under, preserve, protect and defend the material rights of Borrower under and take all reasonable action necessary to prevent termination (except by expiration in accordance with its terms) of each and every Major Project Document, including prosecution of suits to enforce any material right of Borrower thereunder and enforcement of any material claims with respect thereto; provided, that upon the occurrence and during the continuance of an Event of Default or, with respect to any Project Document between Borrower and any Affiliate, when such Affiliate has acted or failed to act in a manner that with the giving of notice by Borrower or the passage of time, an event of default will occur under such Project Document, if Administrative Agent requests that certain actions be taken and Borrower fails to take the requested actions within five Business Days, Administrative Agent or Collateral Agent may enforce in its own name or in Borrower’s name, such rights of Borrower (if and to the extent not prohibited by Governmental Rule), in addition to such rights as may be more particularly provided in the Security Agreement and the other Credit Documents.

5.15.2              Preservation of Collateral.  From time to time promptly, upon the reasonable request of Administrative Agent, Collateral Agent or any Lender, Borrower shall

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execute, acknowledge or deliver, or cause the execution, acknowledgment and delivery of, and thereafter register, file or record, or cause to be registered, filed or recorded in an appropriate governmental office, all such notices, statements, instruments and other documents (including any memorandum of lease or other agreement, financing statement, continuation statement, certificate of title or estoppel certificate) supplemental to or confirmatory of the Collateral Documents, relating to the Loans, stating the interest and charges then due and any known Defaults or Events of Default, and take such other steps as may be deemed by Administrative Agent necessary or advisable to render fully valid and enforceable (subject, in the case of the BLM Right of Way (Phase II), the BLM Right of Way (Generator Lead Line), the ▇▇▇▇▇ Lease, and the ▇▇▇▇▇ Right of Way, to applicable Governmental Rules limiting the enforceability of Liens therein) under all applicable laws the rights, liens and priorities of the Secured Parties with respect to all Collateral and other security from time to time furnished under the Credit Documents or intended to be so furnished, or for the continued validity, perfection and priority of the Liens on the Collateral covered thereby subject to no other Liens except as permitted by the applicable Collateral Document, or obtain any consents or waivers as may be necessary or appropriate in connection therewith, in each case in such form and at such times as shall be reasonably requested by Administrative Agent or Collateral Agent, and pay all reasonable fees and expenses (including reasonable attorneys’ fees) incident to compliance with this Section 5.15.2.  Upon the exercise by Administrative Agent, Collateral Agent or any Lender of any power, right, privilege or remedy pursuant to any Credit Document which requires any consent, approval, registration, qualification or authorization of any Governmental Authority execute and deliver all applications, certifications, instruments and other documents and papers that Administrative Agent, Collateral Agent or such Lender may require.  If Administrative Agent, Collateral Agent or the Required Lenders determine that they are required by law or regulation to have appraisals prepared in respect of the Real Property, Borrower shall provide to Administrative Agent appraisals that satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA and are otherwise in form and substance satisfactory to Administrative Agent.

5.15.3              Additional Collateral.  If Borrower shall at any time acquire any real property or leasehold or other interest in real property not covered by the Trust Deed, then promptly upon such acquisition, Borrower shall execute, deliver and record a supplement to the Trust Deed, reasonably satisfactory in form and substance to Administrative Agent, subjecting the real property or leasehold or other interests to the Lien and security interest created by the Trust Deed.  If reasonably requested by Administrative Agent, Borrower shall obtain an appropriate endorsement or supplement to, as applicable, the Title Policy, insuring the Lien of the Secured Parties in such additional property, subject only to Liens and other exception to title reasonably agreed by Collateral Agent of a type similar to Title Exceptions.

5.15.4              Further Assurances.  Upon the request of Administrative Agent or Collateral Agent, Borrower shall execute and deliver all documents as shall be necessary or that Administrative Agent or Collateral Agent (as the case may be) shall reasonably request in connection with the rights and remedies of Administrative Agent or Collateral Agent (as the case may be) and the Lenders under the Operative Documents, and perform, such other reasonable acts as may be necessary to carry out the intent of the Credit Documents.

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5.15.5              Proper Legal Form.  Borrower shall diligently take all such further action within its control required to ensure that each of the Operative Documents is in proper legal form under the laws of the respective governing laws selected in such Operative Document for the enforcement thereof in such jurisdictions without any further action on the part of Administrative Agent or other Secured Parties.

5.16                  ADDITIONAL CONSENTS.  With respect to any Major Project Document entered into after the Closing Date, Borrower shall cause the applicable counterparty to execute and deliver to Administrative Agent a Consent in substantially the form of Exhibit E-1 or, if approved by Administrative Agent in advance, Exhibit E-2, with such changes as are reasonably acceptable to Administrative Agent.

5.17                  MAINTENANCE OF INSURANCE.  Without cost to the Secured Parties, Borrower shall maintain or cause to be maintained on its behalf in effect at all times the types of insurance required pursuant to Exhibit K, in the amounts and on the terms and conditions specified therein, from the quality of insurers specified in such Exhibit or other insurance companies of recognized responsibility reasonably satisfactory to Administrative Agent.

5.18                  TAXES, OTHER GOVERNMENT CHARGES AND UTILITY CHARGES.  Subject to the second sentence of this Section 5.18, Borrower shall timely file all tax returns and pay, or cause to be paid, as and when due and prior to delinquency, all taxes, assessments and governmental charges of any kind that may at any time be lawfully assessed or levied against or with respect to Borrower or the Project, including sales and use taxes and real estate taxes, all utility and other charges incurred in the operation, maintenance, use, occupancy and upkeep of the Project, and all assessments and charges lawfully made by any Governmental Authority for public improvements that may be secured by a Lien on the Project.  Borrower may contest in good faith any such taxes, assessments and other charges and, in such event, may permit the taxes, assessments or other charges so contested to remain unpaid during any period, including appeals, when Borrower is in good faith contesting the same, so long as (a) reserves to the extent required by GAAP have been established in an amount sufficient to pay any such taxes, assessments or other charges, accrued interest thereon and potential penalties or other costs relating thereto, or other adequate provision for the payment thereof shall have been made and maintained at all times during such contest, (b) enforcement of the contested tax, assessment or other charge is effectively stayed for the entire duration of such contest, and (c) any tax, assessment or other charge determined to be due, together with any interest or penalties thereon, is promptly paid after resolution of such contest, and (d) such proceedings shall not involve any substantial danger of the sale, forfeiture or loss of the Project, the Site or any Easements, as the case may be, title thereto or any interest therein and shall not interfere in any material respect with the use or disposition of the Project, the Site or any Easements.

5.19                  EVENT OF EMINENT DOMAIN.  If an Event of Eminent Domain shall occur with respect to any Collateral, Borrower shall (a) diligently pursue all its rights to compensation against the relevant Governmental Authority in respect of such Event of Eminent Domain, (b) not, without the consent of the Required Lenders (which consent shall not be unreasonably withheld or delayed), compromise or settle any claim against such Governmental Authority, and (c) pay or apply all Eminent Domain Proceeds in accordance with Section 7.5.  Borrower consents to, and agrees not to object to or otherwise impede or impair, the participation of

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Administrative Agent and/or Collateral Agent in any Eminent Domain proceedings, and Borrower shall from time to time deliver to Administrative Agent and Collateral Agent all documents and instruments requested by it to permit such participation.

5.20                  ENVIRONMENTAL LAWS.  Borrower shall (a) comply in all material respects with, and ensure compliance by all tenants, licensees and invitees, if any, in all material respects with all applicable Hazardous Substance Laws and obtain and comply in all material respects with, and maintain, and ensure that all tenants, licensees and invitees obtain and comply in all material respects with, and maintain all Permits required by applicable Hazardous Substance Laws; (b) conduct and complete, or cause to be conducted and completed, all investigations, studies, sampling and testing, and all clean-up, remedial, removal, recovery and other actions required pursuant to Hazardous Substance Laws or otherwise as necessary to prevent itself, any other Credit Party or any Secured Party from incurring any material liability; (c) promptly comply in all material respects with all orders and directives of all Governmental Authorities in respect of Hazardous Substance Laws, except to the extent that the same are being contested in good faith by appropriate proceedings; (d) exercise care, custody and control over the Site and the Project in such manner as not to pose a material or unreasonable hazard to the environment, health or safety in general; and (e) give (and shall cause the Operators and Construction Contractor, to the extent applicable, to give) due attention to the protection and conservation of the environment in the implementation of each aspect of the Project, all in material accordance with applicable Hazardous Substance Laws, Permits and Legal Requirements, and good industry practices.

5.21                  INDEPENDENT CONSULTANTS.  Borrower shall (a) cooperate in all reasonable respects with the Independent Consultants and (b) ensure that each Independent Consultant is provided with all information reasonably requested by such consultant with respect to the financing, construction or operation of the Project and will exercise due care to ensure that any factual information which it may supply to such consultant is materially accurate in all respects, and not, by omission of information or otherwise, misleading in any material respect at the time such information is provided, to the extent that such consultant relied on such information in preparing its report.

5.22                  PPA.

5.22.1              Notices.  Borrower shall consult with Administrative Agent prior to sending any notices or certifications pursuant to Section 3.2 of the PPA, and any such notices and certifications shall be in form and substance satisfactory to Administrative Agent in its sole discretion.

5.22.2              Prepayment Conditions.  As and when each condition to the Prepayment (as defined in the PPA) in Section 7.2 of the PPA is completed, Borrower will request and shall use commercially reasonable efforts to obtain from SCPPA written confirmation that such closing condition has been completed and shall provide a copy of such confirmation to Administrative Agent.  Borrower shall use its commercially reasonable efforts to cause each such condition to be completed as expeditiously as possible.

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5.22.3              Reports.  Borrower shall provide Administrative Agent copies of each report delivered to SCPPA under Section 3.3 the PPA.

5.23                        UPDATES TO WIND REPORT, IE REPORT AND COST SEGREGATION REPORT.  If reasonably requested by the Administrative Agent and the Required Lenders, Borrower shall obtain updates to the Wind Report, the IE Report and the Cost Segregation Report; provided that Administrative Agent and the Required Lenders shall not request an update to the Cost Segregation Report unless there is a 5% or more reduction in the Project Costs that were included in the “Total Eligible Property” amount set forth in the table “Preliminary Grant Eligible Summary” within Exhibit IV of the Cost Segregation Report (as determined by the Independent Engineer).  In addition, the Cost Segregation Report shall be updated as of (a) the Closing Date, (b) the delivery to a tax equity investor who has committed to make a tax equity contribution relating to the Borrower, and (c) the filing of the Grant application.

5.24                        GRANT.  Borrower shall apply for the Grant within 60 days after the Commercial Operation Date (as such term is defined in the PPA).  Unless the Tax Equity Contribution Conditions have been satisfied, (a) the draft application for the Grant shall be presented to Administrative Agent five Business Days prior to the submission thereof, (b) the draft application shall be in form and substance reasonably satisfactory to Administrative Agent prior to the submission thereof and (c) Borrower shall cause the proceeds of the Grant to be paid into the Repayment Account on or prior to the Maturity Date.

5.25                        TURBINE PLACEMENT.  In the event that any turbine located on the BLM Right of Way (Phase II) is planned to be located in a position that would violate BLM Instruction Memorandum No. 2009-043 (the “BLM Memo”) and the affected adjacent landowner does not waive application of such restrictions in a recordable document, Borrower shall either (a) use commercially reasonable efforts to obtain a waiver of such restrictions in a recordable document or (b) (i) designate an alternative location for such turbine(s) on the BLM Right of Way (Phase II) that does not violate the BLM Memo or on such other portion of the Site that is encumbered by the Trust Deed, (ii) provide to Administrative Agent an update to the Wind Report and IE Report with respect to such alternative location, each in form and substance reasonably satisfactory to Administrative Agent, and (iii) obtain all Permits necessary for the construction and operation of such turbines in such new location.

5.26                        COBANK EQUITY AND SECURITY.

5.26.1              So long as CoBank is a Lender hereunder, Borrower will acquire equity in CoBank in such amounts and at such times as CoBank may require in accordance with CoBank’s Bylaws and Capital Plan (as each may be amended from time to time), except that the maximum amount of equity that Borrower may be required to purchase in CoBank in connection with the Loans made by CoBank may not exceed the maximum amount permitted by such Bylaws and the Capital Plan as of the Closing Date.  Borrower acknowledges receipt of a copy of (a) CoBank’s most recent annual report and, if more recent, CoBank’s latest quarterly report, (b) CoBank’s Notice to Prospective Stockholders and (c) CoBank’s Bylaws and Capital Plan, which describe the nature of all of Borrower’s stock and other equities in CoBank acquired in connection with its patronage loan from CoBank (the “CoBank Equities”) as well as capitalization requirements, and agrees to be bound by the terms thereof.

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5.26.2              Each party hereto acknowledges that CoBank’s Bylaws and Capital Plan (as each may be amended from time to time) shall govern (a) the rights and obligations of the parties with respect to the CoBank Equities and any patronage refunds or other distributions made on account thereof or on account of Borrower’s patronage with CoBank, (b) Borrower’s eligibility for patronage distributions from CoBank (in the form of CoBank Equities and cash) and (c) patronage distributions, if any, in the event of a sale of a participation interest. CoBank reserves the right to assign or sell participations in all or any part of its Commitments or outstanding Loans hereunder on a non-patronage basis.

5.26.3              Each party hereto acknowledges that CoBank has a statutory first lien pursuant to the Farm Credit Act of 1971 (as amended from time to time) on all CoBank Equities that the Borrower may now own or hereafter acquire, which statutory lien shall be for CoBank’s sole and exclusive benefit.  The CoBank Equities shall not constitute security for the Obligations due to any other Lender.  To the extent that any of the Credit Documents create a Lien on the CoBank Equities or on patronage accrued by CoBank for the account of Borrower (including, in each case, proceeds thereof), such Lien shall be for CoBank’s sole and exclusive benefit and shall not be subject to pro rata sharing hereunder.  Neither the CoBank Equities nor any accrued patronage shall be offset against the Obligations except that, in the event of an Event of Default, CoBank may elect to apply the cash portion of any patronage distribution or retirement of equity to amounts due under this Agreement.  Borrower acknowledges that any corresponding tax liability associated with such application is the sole responsibility of Borrower.  CoBank shall have no obligation to retire the CoBank Equities upon any Event of Default, Default or any other default by Borrower or any other Credit Party, or at any other time, either for application to the Obligations or otherwise.

ARTICLE 6
NEGATIVE COVENANTS

6.1                               CONTINGENT OBLIGATIONS.  Except as provided in the Credit Documents, Borrower shall not become liable as a surety, guarantor, accommodation endorser or otherwise, for or upon the obligation of any other Person or incur any Contingent Obligations; provided, however, that this Section 6.1 shall not be deemed to prohibit or otherwise limit the occurrence of Permitted Debt.

6.2                               LIMITATIONS ON LIENS.  Borrower shall not create, assume or suffer to exist any Lien, except Permitted Liens, securing a charge or obligation on the Project or on or with respect to any of the Collateral, whether now owned or hereafter acquired or assign any right to receive income.

6.3                               DEBT.  Borrower shall not incur, create, assume or permit to exist, directly or indirectly, any Debt except Permitted Debt and current accounts incurred in the ordinary course of business with respect to O&M Costs.

6.4                               SALE OR LEASE OF ASSETS.  Borrower shall not sell, lease, assign, transfer or otherwise dispose of assets, whether now owned or hereafter acquired, except (a) prior to Commercial Operation, to the extent that such asset is unnecessary, worn out or no longer useful or usable in connection with the operation or maintenance of the Project, at fair market value,

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(b) prior to Commercial Operation, the sale, transfer or release, with or without consideration, of real property or interests in real property related to the Project to the extent that such real property or interests in real property is only incidental to the development, construction, leasing, ownership or operation of the Project, (c) the granting of easements or other interests in real property related to the Project to other Persons if Administrative Agent has determined that such sale, transfer or release could not reasonably be expected to have a Material Adverse Effect and (d) as expressly contemplated by the Operative Documents.  Upon any such sale, lease, assignment, transfer or other disposition of any such assets, all Liens in favor of any Secured Party relating to such transferred asset shall be released.  Borrower shall not enter into any sale and leaseback transactions.

6.5                               CHANGES.  Borrower shall not (a) change the nature of its business or expand its business beyond the business contemplated in the Operative Documents or activities incidental thereto or take any action, whether by acquisition or otherwise, which would constitute or result in any material alteration to the nature of such business; (b) establish, create or acquire any Subsidiaries; or (c) directly or indirectly, change its legal form or any of its Governing Documents (including by the filing or modification of any certificate of designation) or otherwise terminate, amend or modify any such Governing Document, other than any such amendments, modifications or changes to which the prior consent of Administrative Agent and Collateral Agent (if appropriate) has been obtained or which are not adverse in any material respect to the interests of the Lenders.

6.6                               RESTRICTED PAYMENTS.  Except as set forth in Section 5.1.1(b) and in this Section 6.6, Borrower shall not (a) directly or indirectly, make or declare any dividend payment or other distribution (in cash, assets, property, rights, obligations or securities) on, or other payment on account of, any interest in Borrower, (b) make any payment on account of Permitted Debt prior to the due date thereof or (c) make any payment of management fees or similar payments to Pledgor or any of its Affiliates.  Borrower shall be permitted to (i) so long as no Event of Default has occurred and is continuing at the time of such distribution, make a one-time distribution of $5,000,000 to its direct and indirect owners after the Commercial Operation Date and after providing Administrative Agent with evidence, in form and substance reasonably satisfactory to Administrative Agent in consultation with the Lenders, that the Performance Security (as defined in the PPA) has been established by Sponsor or an Affiliate of Sponsor other than Borrower or Pledgor (the “Performance LC Distribution”), and (ii) so long as the Tax Equity Contribution Conditions have been met, distribute the proceeds of the Grant to the tax equity contributor or as otherwise agreed between Borrower and the tax equity contributor.

6.7                               INVESTMENTS.  Borrower shall not (a) make any investments (whether by purchase of stocks, bonds, notes, obligations or other securities, loan, extension of credit, advance or otherwise) other than Permitted Investments or make any capital contribution to any Person; or (b) own any equity interest in, lend money, extend credit or make advances to, or any deposits with (other than deposits or advances in relation to the payment for services in the ordinary course of business), any Person other than Depositary.

6.8                               TRANSACTIONS WITH AFFILIATES.  Borrower shall not directly or indirectly enter into any transaction or series of transactions relating to the Project with or for the benefit of an Affiliate without the prior approval of Administrative Agent, except for (a) the

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Project Documents in effect on the Closing Date, and the transactions permitted thereby, (b) transactions that contain terms that are fair and reasonable and no less favorable to Borrower than would be included in an arm’s-length transaction entered into by a prudent Person with a non-Affiliated third party, (c) any employment, non-competition or confidentiality agreement entered into by Borrower with any of its employees, officers or directors in the ordinary course of business, (d) leases to Affiliates of the Borrower for access to the operation and maintenance building so long as such leases do not interfere with the operation and maintenance of the Project, and (e) as otherwise expressly permitted or contemplated by the Credit Documents.

6.9                               MARGIN LOAN REGULATIONS.  Borrower shall not directly or indirectly apply any part of the proceeds of any Loan, any cash equity contributions received by Borrower or other funds or revenues to the “buying,” “carrying” or “purchasing” of any margin stock within the meaning of Regulations T, U or X of the Federal Reserve Board, or any regulations, interpretations or rulings thereunder.

6.10                        PARTNERSHIPS, ETC.  Borrower shall not (a) become a general or limited partner in any partnership or a joint venturer in any joint venture, (b) create and hold stock in any Subsidiary or (c) engage in any business other than owning and operating the Project and related activities.

6.11                        DISSOLUTION; MERGER.  Borrower shall not (a) wind up, liquidate or dissolve its affairs, (b) combine, merge or consolidate with or into any other entity, or (c) purchase or otherwise acquire all or substantially all of the assets of any Person.

6.12                        AMENDMENTS; COMPLETION.  Borrower shall not:

6.12.1              Directly or indirectly, without the prior written consent of the Required Lenders, agree to or acquiesce in (i) the cancellation, suspension or termination of any Major Project Document (other than a Minor Project Document); (ii) the assignment, release or relinquishment of the material rights of or material obligations of any party to a Project Document (except as permitted by the Security Documents or as permitted without the consent of Borrower by the terms of the applicable Project Document); (iii) any amendment, supplement or modification of, or any consent or waiver with respect to, any of the provisions of the PPA, or (iv) any amendment, supplement or modification of, or any consent or waiver of any material provision of any other Project Document (each of the foregoing, being referred to herein as a “Project Document Modification”).  Without limiting Section 6.19, change orders under the Construction Contract shall not require the prior written consent of the Required Lenders so long as such change orders and any costs associated therewith are in an amount less than the available portion of the contingency in the Project Budget so long as such change orders do not modify the Project Schedule in any material respect (provided, it shall be deemed to be a material modification to the Project Schedule if the date of Guaranteed Project Substantial Completion Date (as defined in the Construction Contract) is scheduled to occur later than June 16, 2011), but Borrower shall provide Administrative Agent with advance written notice of any change order.  Notwithstanding the foregoing, Borrower shall not enter into any amendment, supplement or modification of any Project Document that could reasonably be expected to cause the Project not to comply with Legal Requirements or Borrower’s qualification for the Grant.

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6.12.2              (a) Declare, with respect to the Project or material portion thereof, or agree that substantial completion and final completion (or any similar concepts) under the Construction Contract has occurred; (b) approve the successful completion of any Performance Test; (c) approve, modify or amend the testing protocols under the Construction Contract; or (d) agree to accept any facilities being constructed under any other Major Project Document as “commercially operational,” “substantially complete” or “complete” (however defined therein), in each case without the approval of Administrative Agent acting in consultation with the Independent Engineer, or use the proceeds of any Loan to make any payment under any Construction Contract all or any portion of which payment the Independent Engineer has given Borrower notice (prior to the due date thereof) that it disputes is then due, without the approval of Administrative Agent acting in consultation with the Independent Engineer, which approval, if given, shall not be unreasonably delayed or withheld, taking into account applicable time limitations imposed by the terms of the applicable Project Document;

6.12.3              agree on any punchlist with respect to any Project work without the approval of Administrative Agent acting in consultation with the Independent Engineer, which approval, if given, shall not be unreasonably delayed or withheld, taking into account applicable time limitations imposed by the terms of the Construction Contract;

6.12.4              consent, without Administrative Agent’s prior approval, to (a) any action taken by the Construction Contractor to modify the equipment or services provided by Construction Contractor to conform to the intellectual property rights of others if such action could reasonably be expected to materially and adversely affect Borrower’s continued use of the Project or (b) the settlement by Construction Contractor of any claim or proceeding which could reasonably be expected to materially adversely affect Borrower’s rights;

6.12.5              direct Construction Contractor to suspend any construction activities being performed under the Construction Contract without Administrative Agent’s prior consent, except to avoid immediate danger to personnel or property;

6.12.6              except for the Site Common Facilities, construct, install, or permit the construction or installation of, shared or joint facilities between the Project and any plants, facilities, generating stations or other improvements (including any such plants, facilities, generating stations or other improvements owned by SCPPA);

6.12.7              accept any letter of credit, bond or other form of credit support in lieu of retainage under any Project Document not in form and substance reasonably satisfactory to Administrative Agent; and

6.12.8              without the prior consent of Administrative Agent, submit any notice or certificate to SCPPA declaring or acknowledging the occurrence of the “Commercial Operation Date” under the PPA (which consent may not be requested if the Project is not capable of producing at least 102 MW).

The Administrative Agent or Lenders, as applicable, shall use reasonable efforts to respond to each request pursuant to this Section 6.12 as soon as possible and in all events

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within 10 days of its receipt of notification thereof.  Approval by the Administrative Agent or Lenders, as applicable, hereunder shall be not be given unless until expressly approved.

6.13                        NAME AND LOCATION; FISCAL YEAR.  Unless consented to by Administrative Agent, Borrower shall not change its name, its jurisdiction of organization, the location of its principal place of business, its organization identification number, its fiscal year or, except as required by GAAP, its accounting policies or reporting practices.

6.14                        USE OF SITE.  Borrower shall not use, maintain, operate or occupy, or allow the use, maintenance, operation or occupancy of, any portion of the Project or the Site for any purpose (a) which may (i) constitute a public or private nuisance or (ii) make void, voidable, or cancelable, or materially increase the premium of, any insurance policies then in force with respect to all or a portion of the Project, or (b) other than for the construction, operation and maintenance of the Project as contemplated by the Operative Documents that could reasonably be expected to have a Material Adverse Effect.

6.15                        ASSIGNMENT.  Borrower shall not assign its rights or obligations under any Credit Document or any Major Project Document to any Person, except as specifically permitted by the Credit Documents.

6.16                        ACCOUNTS.  Borrower shall not maintain, establish or use any account (other than the Accounts).

6.17                        HAZARDOUS SUBSTANCES.  Borrower shall not release into the environment any Hazardous Substances in violation of any Hazardous Substance Laws, Legal Requirements or Applicable Permits, except for (a) temporary unplanned exceedances not allowed under the Project’s Permits, which temporary unplanned exceedances could not reasonably be expected to have a Material Adverse Effect and which Borrower is diligently and in good faith attempting to correct and (b) unintentional violations with respect to which (i) the Release is not continuing or reasonably likely to re-occur and is not reasonably susceptible to prevention or cure, (ii) there are no unsatisfied reporting and/or remediation requirements under applicable Hazardous Substance Laws, Legal Requirements or Applicable Permits, (iii) no non-monetary penalties or sanctions have been imposed or are reasonably likely to be imposed (except for the remediation of such violation) under applicable Hazardous Substance Laws, Legal Requirements or Applicable Permits, and (iv) the Release could not reasonably be expected to materially impair the value of the Site or any other Collateral, and could not otherwise reasonably be expected to have a Material Adverse Effect.

6.18                        PROJECT DOCUMENTS..  Borrower shall not enter into or become a party to any Additional Project Document without obtaining (a) consent from Administrative Agent for Project Documents of aggregate value less than $1,000,000 and consent from the Required Lenders for all other Additional Project Documents, (b) obtaining from its counterparty a consent in the form of Exhibit E-1 or, if approved by Administrative Agent in advance, Exhibit E-2, and (c) providing an executed copy thereof to Administrative Agent within five Business Days after execution

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6.19                        PROJECT BUDGET AND SCHEDULE AMENDMENTS.

6.19.1              Project Budget.  Without the prior consent of Administrative Agent in consultation with the Required Lenders, Borrower shall not amend, allocate, re-allocate or modify the Project Budget to increase the aggregate amount payable thereunder, unless such amendment, allocation, re-allocation or modification is (a) a necessary conforming change related to an amendment to a Project Document permitted by Section 6.12 and (b) concurrent and consistent with cash equity contributions made available to Borrower which were not theretofore contemplated in the Project Budget; provided, that the foregoing shall not prevent Borrower from applying identified cost savings in a budget category (after completing each of the items to which such category relates), as confirmed by the Independent Engineer, to cost overruns in another budget category (as confirmed by the Independent Engineer) without increasing the aggregate amount payable under the Project Budget; provided, that Borrower shall not apply identified cost savings in any budget category to cost overruns in any budget category relating to management expenses or development fees payable to any Person or any other fees and costs payable to any Affiliate of Sponsor.

6.19.2              Project Schedule.  Without the prior consent of Required Lenders, amend, modify or otherwise change the Project Schedule, in any material respect (provided, it shall be deemed to be a material modification to the Project Schedule if the date of Commercial Operation is scheduled to occur later than Date Certain and the date of Completion is scheduled for no later than one month after Commercial Operation), as to the scheduled date of Performance Test completion thereunder, unless such amendment, modification or change occurs by operation of the various terms and conditions of the applicable Project Documents and is therefore not subject to Borrower’s pre-approval or agreement.

6.20                        ASSIGNMENT BY THIRD PARTIES.  Unless expressly permitted in the applicable Major Project Document, without prior consent of the Required Lenders or unless provided in a Consent, Borrower shall not consent to the assignment of any obligations under any Major Project Document by any counterparty thereto.

6.21                        ACQUISITION OF REAL PROPERTY.  Borrower shall not acquire or lease any real property or other interest in real property other than the Site, Easements and other interests in real property acquired on or prior to the Closing Date.

6.22                        NO MERCHANT SALES.  Borrower shall not consent to, or permit, the provision of electrical products to any Person other than to SCPPA under the PPA.

6.23                        LEASE OBLIGATIONS.  Except as existing on the Closing Date and operating leases the rent under which does not exceed $100,000 in the aggregate, Borrower shall not create, incur, assume or suffer to exist any obligations as lessee for the rent or hire of any property under leases or agreements to lease.

6.24                        DISPUTES.  Borrower shall not agree, authorize or otherwise consent to any proposed settlement, resolution or compromise of any litigation, arbitration or other dispute with any Person without the prior authorization of Administrative Agent and the Required Lenders if such proposed settlement, resolution or compromise could reasonably be expected to result in a Material Adverse Effect.

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6.25                        ANTI-TERRORISM LAW; ANTI-MONEY LAUNDERING.

6.25.1              Borrower shall not directly or indirectly, knowingly (a) conduct any business or engage in making or receiving any contribution of funds, goods or services to or for the benefit of any Person described in Section 4.30(b), (b) deal in, or otherwise engage in any transaction relating to, any property or interests in property blocked pursuant to the Executive Order or any other Anti-Terrorism Law, or (c) engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law (and Borrower shall deliver to the Lenders any certification or other evidence requested from time to time by any Lender in its reasonable discretion, confirming Borrower’s compliance with this Section 6.25.1.

6.25.2              Borrower shall not cause or permit any of the funds that are used to repay the Loans to be derived from any unlawful activity with the result that the making of the Loans would be in violation of law.

6.26                        EMBARGOED PERSONS.

6.26.1              (a) Borrower shall not become a Person whose property or interests in property are blocked or subject to blocking pursuant to Section 1 of the Executive Order, or (b) engage in any dealings or transactions prohibited by Section 2 of the Executive Order, or be otherwise associated with any such Person in any manner violative of such Section 2.

6.26.2              Borrower shall not cause or permit (a) any of the funds or properties that are used to repay the Loans to constitute property of, or be beneficially owned directly or indirectly by, any Person subject to sanctions or trade restrictions under United States law (each, an “Embargoed Person”) that is identified on (1) the “List of Specially Designated Nationals and Blocked Persons” maintained by OFAC or on any other similar list maintained by OFAC pursuant to any authorizing statute including, but not limited to, the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701 et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any executive order or regulation promulgated thereunder, with the result that the investment in the Borrower Entities (whether directly or indirectly) is prohibited by law, or the Loans made by the Lenders would be in violation of law, or (2) the Executive Order, any related enabling legislation or any other similar executive orders, or (b) any Embargoed Person to have any direct or indirect interest, of any nature whatsoever in the Project, Borrower and the other Borrower Entities, with the result that the investment in the Project or Borrower (whether directly or indirectly) is prohibited by law or the Loans are in violation of law.

6.27                        REGULATORY STATUS.  Without the consent of the Lenders, cause or permit (a) the termination of the status of Borrower as an Exempt Wholesale Generator so long as necessary to be eligible for the exemptions from regulation available to Exempt Wholesale Generators and owners of Exempt Wholesale Generators under PUHCA or (b) the loss or revocation of its authorization to sell wholesale electric capacity, energy and ancillary services at market-based rates.

6.28                        CAPITAL EXPENDITURES.  Borrower shall not make capital expenditures that are not in the then-current Project Budget or Annual Operating Budget, as applicable.

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6.29                        SEPARATENESS.  The Borrower covenants that it shall not:

6.29.1                          commingle assets with those of any other entity;

6.29.2                          hold its assets in any other name than its own;

6.29.3                          conduct its business in any name other than its own;

6.29.4                          maintain bank accounts, books, records and financial statements that are not in accordance with generally accepted accounting principles or combined with any other person or entity;

6.29.5                          fail to observe all company formalities;

6.29.6                          allow any other Person to pay its liabilities (except payments made by or from capital contributed by the Pledgor or the letters of credit issued by Affiliates of the Borrower);

6.29.7                          fail to maintain adequate capital in light of its contemplated business operations;

6.29.8                          fail to use separate stationery, invoices and checks;

6.29.9                          fail maintain an arm’s-length relationship with its Affiliates;

6.29.10                   fail to pay the salaries of its own employees;

6.29.11                   guarantee or become obligated for the debts of any other entity or hold out its credit as being available to satisfy the obligations of others;

6.29.12                   make any loans to any other Person;

6.29.13                   fail to allocate fairly and reasonably any overhead for shared office space;

6.29.14                   pledge its assets for the benefit of any other entity; and

6.29.15                   fail to hold itself out as a separate entity, with the exception that Borrower shall not be considered as a separate entity from the Sponsor or Pledgor for federal, and, where applicable, state and local, tax purposes, and fail to correct any known misunderstanding regarding its separate identity.

6.30                        INTERCONNECTION.  Borrower shall not send any request to Interconnector to increase the Project interconnection capabilities of the Transmission Line without the prior consent of Administrative Agent.

6.31                        GENERAL ELECTRIC O&M AGREEMENT.  On or prior to December 31, 2010, Borrower shall have: (a) entered into an Operations Support Agreement with General Electric International Incorporated, a Delaware corporation, in form and substance reasonably

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satisfactory to Administrative Agent relating to the operation and maintenance of the turbines on the Project; (b) obtained from General Electric International Incorporated, a Delaware corporation, relating to such Operations Support Agreement a consent in the form of Exhibit E-1 with such changes as may be approved by Administrative Agent; and (c) delivered to Administrative Agent a good standing certificate for General Electric International Incorporated, a Delaware corporation, in Delaware and Utah.

ARTICLE 7
ACCOUNTS

7.1                               ACCOUNT WITHDRAWALS, TRANSFERS AND PAYMENTS.

7.1.1                     General Procedures.

(a)                                 For every withdrawal, transfer or payment from any Account, Borrower shall execute and deliver to Administrative Agent an Account Withdrawal Request and a proposed Account Withdrawal Instruction related thereto.  Borrower shall submit, together with each set of Account Withdrawal Documents, a copy of all receipts in excess of $25,000, invoices in excess of $25,000, purchase orders in excess of $25,000 and any other appropriate documentation or materials reasonably requested by Administrative Agent to enable it to substantiate the withdrawals and transfers specified in the applicable Account Withdrawal Request and the other matters described therein.

(b)                                 Upon receipt of such Account Withdrawal Documents, Administrative Agent shall promptly review such Account Withdrawal Documents.  Administrative Agent (after consulting with Borrower and Independent Engineer) may elect not to approve part, and, accordingly, may reduce the amount of, any individual withdrawal, transfer or payment requested in any Account Withdrawal Request if Administrative Agent determines in its reasonable discretion that Borrower has not provided all of the appropriate documentation contemplated by 7.1.1(a) to properly document and support the making of such part of the requested withdrawal, transfer or payment.  If Administrative Agent does not approve (such approval not to be unreasonably withheld) any Account Withdrawal Documents, Administrative Agent shall promptly so notify Borrower (such notice to specify in reasonable detail the reasons for not approving such Account Withdrawal Documents), and Borrower shall then be permitted to submit a revised set of Account Withdrawal Documents to Administrative Agent.

(c)                                  If in Administrative Agent’s reasonable judgment such Account Withdrawal Documents are consistent with the terms hereof, subject to Administrative Agent’s approval of the amounts and other details provided therein, Administrative Agent shall execute and deliver the applicable Account Withdrawal Instruction to Depositary.  Borrower agrees that Administrative Agent may direct Depositary to transfer any or all sums on deposit in or credited to any Account directly into the accounts identified by Borrower in each Account Withdrawal Request without further authorization from Borrower; provided that if Borrower has notified Administrative Agent that it is contesting a claim for payment in accordance with Section 5.2.2 and the other applicable Operative Documents, Administrative Agent shall not be entitled to directly pay any amount being contested, except (i) any portion of such amount which is not

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being contested by Borrower or (ii) payments which Administrative Agent reasonably believes if not promptly made could reasonably be expected to have a Material Adverse Effect.

7.1.2                     Account Withdrawal Documents.  A set of Account Withdrawal Documents shall be deemed properly delivered by Borrower to Administrative Agent if such Account Withdrawal Documents have been properly completed to the satisfaction of Administrative Agent and delivered in accordance with the applicable time requirements set forth herein.  Unless specifically stated herein, all Account Withdrawal Instructions are to be completed by Borrower and submitted to Administrative Agent for approval and signature and then forwarded by Administrative Agent to Depositary in accordance with the applicable time requirements set forth herein.  To the extent that any directions to Depositary require actions to be taken by Borrower and Borrower fails to perform such actions, or if any Account Withdrawal Documents submitted by Borrower are incorrect or if an Event of Default has occurred and is continuing or would occur based on Borrower’s failure to submit, or to submit accurate and necessary, Account Withdrawal Instructions, Administrative Agent is entitled to perform such actions by completing and executing an Account Withdrawal Instruction and delivering such Account Withdrawal Instruction to Depositary.

7.1.3                     Repayment of Loans in Full.  In connection with any repayment in full of the Loans and termination of the Commitments, Borrower may submit a set of Account Withdrawal Documents to Administrative Agent requesting Administrative Agent to direct Depositary to transfer or apply all remaining monies in the Accounts (other than the Repayment Account) to the Repayment Account for repayment of the Loans on the anticipated date thereof.  After approving a set of Account Withdrawal Documents (or any revision thereof), Administrative Agent shall execute and deliver to Depositary the applicable Account Withdrawal Instruction within two Business Days of Administrative Agent’s receipt of such Account Withdrawal Request.

7.2                               CONSTRUCTION ACCOUNT.

7.2.1                     Establishment of Construction Account.  The Construction Account shall be established pursuant to Section 2.1 of the Depositary Agreement.

7.2.2                     Deposits into the Construction Account.  Borrower shall immediately deposit or cause to be deposited into the Construction Account each of the following (it being acknowledged and agreed that, to the extent any amounts referred to in this Section 7.2.2 are received directly by Administrative Agent, Collateral Agent or Depositary, (a) upon receipt of any such amounts, Administrative Agent or Collateral Agent, as the case may be, shall deposit, or shall cause Depositary to deposit, such amounts into the Construction Account as contemplated by this Section 7.2.2, and (b) the obligation of Borrower under this Section 7.2.2 to deposit any such amounts into the Construction Account shall be deemed satisfied upon such deposit to the Construction Account):

(i)                                     the proceeds of all Loans, except SCPPA Cure Loans;

(ii)                                  all amounts received by Borrower, Administrative Agent or Collateral Agent in respect of any delay in start- up; and

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(iii)                               all amounts received by Borrower in respect of any delay-related liquidated damages prior to Commercial Operation.

7.2.3                     Disbursements from the Construction Account.  Borrower shall submit a set of Account Withdrawal Documents to Administrative Agent as and when, but no more frequently than two times each month Borrower seeks to withdraw or transfer funds from the Construction Account at least four Business Days prior to making such withdrawal.  The applicable Account Withdrawal Request shall request Administrative Agent to direct Depositary to transfer or apply monies on deposit in the Construction Account only to Persons specified by Borrower to Administrative Agent to (i) pay, to the extent consistent with the then-current Project Budget or otherwise approved or permitted hereunder, Project Costs due and owing or to become due and owing within the next month by Borrower, (ii) reimburse Sponsor and its Affiliates for Project Costs previously paid by them in accordance with, and subject to, Section 5.1.1(b)(ii), in each case in accordance with a duly completed Drawdown Certificate or (iii) to make the Performance LC Distribution.  In addition, Borrower may request pursuant to an Account Withdrawal Request that amounts on deposit in the Construction Account (other than amounts necessary to reach Final Completion, as confirmed by Independent Engineer) be transferred to the Revenue Account.  Administrative Agent shall execute and deliver to Depositary the applicable Account Withdrawal Instruction within two Business Days of Administrative Agent’s receipt of such Account Withdrawal Request.

7.3                               REVENUE ACCOUNT.

7.3.1                     Establishment of Revenue Account.  The Revenue Account shall be established pursuant to Section 2.1(a) of the Depositary Agreement.

7.3.2                     Deposits into Revenue Account.  Borrower shall deposit or cause to be deposited all Project Revenues into the Revenue Account (it being acknowledged and agreed that, to the extent any all Project Revenues are received directly by Administrative Agent, Collateral Agent or Depositary, (a) upon receipt of any such amounts, Administrative Agent or Collateral Agent, as the case may be, shall deposit, or shall cause the Depositary to deposit, all Project Revenues into the Revenue Account, and (b) the obligation of Borrower under this Section 7.3.2 to deposit all Project Revenues into the Revenue Account shall be deemed satisfied upon such deposit to the Revenue Account).

7.3.3                     Disbursements from the Revenue Account.  Amounts on deposit in the Revenue Account may only be withdrawn for purposes of paying amounts due and payable under this Agreement, to make the Performance LC Distribution (to the extent funds are not available in the Construction Account) or to pay O&M Costs as follows:

(a)                                 To cause withdrawal or transfer of amounts on deposit in the Revenue Account to pay amounts due and payable under this Agreement, Borrower shall submit to Administrative Agent a set of Account Withdrawal Documents at least four Business Days prior to amounts becoming due and payable under this Agreement.  The applicable Account Withdrawal Request shall request Administrative Agent to direct Depositary to transfer or apply monies on deposit in the Revenue Account only to the Administrative Agent for payment of such amounts.  After approving a set of Account Withdrawal Documents (or any revision thereof),

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Administrative Agent shall execute and deliver to Depositary the applicable Account Withdrawal Instruction within two Business Days of Administrative Agent’s receipt of such Account Withdrawal Request; or

(b)                                 To cause withdrawal or transfer of amounts on deposit in the Revenue Account to pay O&M Costs or to make the Performance LC Distribution (each of which may only occur if no Event of Default has occurred and is continuing), Borrower shall submit to Administrative Agent a set of Account Withdrawal Documents requesting Administrative Agent to direct Depositary to transfer or apply monies on deposit in the Revenue Account only to Persons specified by Borrower in respect of O&M Costs or the Performance LC Distribution.  After approving a set of Account Withdrawal Documents (or any revision thereof), Administrative Agent shall execute and deliver to Depositary the applicable Account Withdrawal Instruction within two Business Days of Administrative Agent’s receipt of such Account Withdrawal Request.

7.4                               APPLICATION OF INSURANCE PROCEEDS.

7.4.1                     Establishment of Insurance Proceeds Account.  The Insurance Proceeds Account shall be established pursuant to Section 2.1(a) of the Depositary Agreement.

7.4.2                     Insurance Proceeds.  Borrower shall notify Administrative Agent of any casualty and keep Administrative Agent timely apprised of insurance claim proceedings.  All amounts and proceeds (including instruments) in respect of the Net Cash Proceeds of any property insurance policy required to be maintained by Borrower hereunder (“Insurance Proceeds”) shall be deposited into the Insurance Proceeds Account and applied as provided in this Section, including any amounts paid by the insurers directly to Administrative Agent (as loss payee or additional insured, as the case may be) and Administrative Agent shall deposit such Insurance Proceeds into the Insurance Proceeds Account to be applied as provided in this Section.  If paid to Borrower, such Insurance Proceeds shall be received in trust for Administrative Agent, shall be segregated from other funds of Borrower, and shall be forthwith deposited into the Insurance Proceeds Account in the same form as received (with any necessary endorsement).

7.4.3                     Application of Insurance Proceeds.  Unless each of the following conditions is satisfied or waived by Administrative Agent with respect to Insurance Proceeds relating to a Casualty Event, all Insurance Proceeds shall be transferred to the Repayment Account and applied to the prepayment of Loans:

(a)                                 such damage or destruction does not constitute the destruction of all or substantially all of the man-made portion of the Project;

(b)                                 no Event of Default has occurred and is continuing and after giving effect to any proposed repair and restoration, such damage or destruction or proposed repair and restoration will not result in a Default or Event of Default;

(c)                                  Borrower and the Independent Engineer certify, and Administrative Agent determines in its reasonable judgment, that repair or restoration of the Project is technically and economically feasible by no later than Date Certain and that a sufficient amount of funds is or

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will be available to Borrower to make such repairs and restorations and, if during the construction period, to achieve Completion;

(d)                                 if such damage or destruction occurs during construction, such repair or restoration will occur, in the reasonable judgment of Administrative Agent after consultation with the Independent Engineer, prior to the Date Certain;

(e)                                  Administrative Agent determines that after repair and restoration the Project will be able to repay the Loans and other amounts due the Lenders as and when due;

(f)                                   no material Permit is necessary to proceed with the repair and restoration and no material amendment to this Agreement or any of the Credit Documents and no other instrument, is necessary for the purpose of effecting the repairs or restorations or subjecting the repairs or restorations to the Liens of the Collateral Documents or, if any such is necessary, Borrower will be able to obtain such as and when required;

(g)                                  if requested by Administrative Agent, the Lenders shall receive an opinion of counsel acceptable to Administrative Agent opining as to the matters described in paragraph (f) above, and such opinion shall also state that such repairs or restoration will be subject to the Liens of the Collateral Documents at the same level of priority as the other Collateral; and

(h)                                 Administrative Agent shall receive such additional title insurance, title insurance endorsements, mechanic’s lien waivers, certificates, opinions or other matters as it may reasonably request as necessary or appropriate in connection with such repairs or restoration or to preserve or protect the Lenders’ interests hereunder and in the Collateral.

7.4.4                     Restoration.  If the conditions in Section 7.4.3 have been met, then such Insurance Proceeds shall be applied by Borrower to the prompt repair or restoration of the Project related to such Casualty Event in accordance with the following procedures:

(a)                                 Borrower shall submit a detailed report to Administrative Agent describing Borrower’s plan for effectuating repairs or restoration, and such report shall be subject to the review and approval of Administrative Agent.

(b)                                 From time to time after Administrative Agent shall have duly approved the making of such repairs or restoration, Administrative Agent’s release of Insurance Proceeds for application toward such repairs or restoration shall be conditioned upon Borrower’s request and the presentation to Administrative Agent of all documents, certificates and information with respect to such Insurance Proceeds which would be required in order to obtain a Loan under this Agreement, including a certificate from Borrower (i) describing in reasonable detail the nature of the repairs or restoration to be effected with such release, (ii) stating the cost of such repairs or restoration and the specific amount requested to be paid over to or upon the order of Borrower and that such amount is requested to pay the cost thereof, (iii) stating that the aggregate amount requested by Borrower in respect of such repairs or restoration (when added to any other Insurance Proceeds received by Borrower in respect of such damage of destruction) does not exceed the cost of such repairs or restoration and that a sufficient amount of funds is or will be available to Borrower to complete the Project, and (iv) stating that no Event of Default has

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occurred and is continuing other than an Event of Default resulting solely from such damage or destruction.

7.4.5                     Certain Casualty Events.  Notwithstanding Sections 7.4.3 and 7.4.4, Borrower shall be permitted to apply Insurance Proceeds relating to a single Casualty Event of less than or equal to $500,000 (as determined by the replacement value thereof) to the prompt repair or restoration of the Project related to such Casualty Event (or Borrower may apply the available amount of the contingency in the Project Budget to such repair or restoration prior to the receipt of such Insurance Proceeds and, upon receipt of such Insurance Proceeds, restore the available amount of the contingency in the Project Budget).  Borrower shall provide Administrative Agent with notice of such Casualty Event and completion of the repair or restoration the Project related such Casualty Event.

7.4.6                     Account Withdrawal Documents.  To cause withdrawal or transfer of amounts on deposit in the Insurance Proceeds Account, Borrower shall submit to Administrative Agent a set of Account Withdrawal Documents.  The applicable Account Withdrawal Request shall request Administrative Agent to direct Depositary to transfer or apply monies on deposit in the Insurance Proceeds Account in compliance with Section 7.4.3 or 7.4.5.  After approving a set of Account Withdrawal Documents (or any revision thereof), Administrative Agent shall promptly execute and deliver to Depositary the applicable Account Withdrawal Instruction.

7.4.7                     Surplus Proceeds.  If, after Insurance Proceeds have been applied to the repair or restoration of the Project as provided in Section  7.4.4 or 7.4.5, Administrative Agent determines that the Project will be able to operate at a level enabling Borrower to pay and perform the Obligations as well as before the damage or destruction, any excess Insurance Proceeds shall be transferred to the Repayment Account and applied to the prepayment of Loans.

7.4.8                     Business Interruption Insurance Proceeds.  Any business interruption Insurance Proceeds received by Administrative Agent or Borrower shall be deposited into the Revenue Account.

7.4.9                     Insurance Proceeds in an Event of Default.  If a Default or Event of Default shall have occurred and be continuing, then any provisions of this Section 7.4 to the contrary notwithstanding, the Insurance Proceeds (including any Permitted Investments made with such proceeds, which shall be liquidated in such manner as Administrative Agent shall deem reasonable and prudent under the circumstances) may be applied by Administrative Agent (a) to curing such Default or Event of Default, and any Insurance Proceeds remaining thereafter shall be applied as provided in this Section 7.4 or (b) toward payment of the Obligations, in connection with exercise of Administrative Agent’s remedies pursuant to Article 8.

7.5                               APPLICATION OF EMINENT DOMAIN PROCEEDS.  All Net Cash Proceeds received in respect of any Eminent Domain (“Eminent Domain Proceeds”) shall be transferred to the Repayment Account and applied to the prepayment of Loans.

7.6                               ASSET SALE ACCOUNT.

7.6.1                     Establishment of Asset Sale Account.  The Asset Sale Account shall be established pursuant to Section 2.1(a) of the Depositary Agreement.

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7.6.2                     Deposits into Asset Sale Account.  Borrower shall deposit or cause to be deposited the Net Cash Proceeds of any sale of assets of the Borrower (other than sales that generate Project Revenues) (“Sale Proceeds”) into the Asset Sale Account.  Nothing in this Section shall be deemed approval of any assets sales except in accordance with Section 6.4.

7.6.3                     Disbursements from the Asset Sale Account.

(a)                                 Sale Proceeds with respect to any asset sale where the consideration is less than $50,000 shall be deposited in the Construction Account, if such sale occurs prior to Commercial Operation, or in the Revenue Account, if such sale occurs after Commercial Operation.

(b)                                 Sale Proceeds with respect to any asset sale where the consideration is equal to or greater than $50,000 shall be transferred to the Repayment Account and applied to the prepayment of Loans.

7.6.4                     Account Withdrawal Documents.  To cause withdrawal or transfer of amounts on deposit in the Asset Sale Account, Borrower shall submit to Administrative Agent a set of Account Withdrawal Documents.  The applicable Account Withdrawal Request shall request Administrative Agent to direct Depositary to transfer or apply monies on deposit in the Asset Sale Account in compliance with Section 7.6.3.  After approving a set of Account Withdrawal Documents (or any revision thereof), Administrative Agent shall promptly execute and deliver to Depositary the applicable Account Withdrawal Instruction.

7.7                               SCPPA CURE RESERVE ACCOUNT.

7.7.1                     Establishment of SCPPA Cure Reserve Account.  The SCPPA Cure Reserve Account shall be established pursuant to Section 2.1(a) of the Depositary Agreement.

7.7.2                     Deposits into SCPPA Cure Reserve Account.  Borrower shall immediately deposit or cause to be deposited into the SCPPA Cure Reserve Account the proceeds of all SCPPA Cure Loans.

7.8                               REPAYMENT ACCOUNT