ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION
AGREEMENT (the “Assignment”), dated
as of October 6, 2008, is entered into by and between Xxxxxxx Wind II, LLC, a
Texas limited liability company (“Assignor”), and
LittlePringle1, LLC, a Delaware limited liability company ("Assignee”), and
consented to and acknowledged by Xxxxxxxxxx County, Texas, acting through its
duly elected Commissioners Court (“Xxxxxxxxxx
County”).
WHEREAS, Assignor and Xxxxxxxxxx County
entered into that certain Tax Abatement Agreement, dated August 25, 2008 (the
“Contract”),
pursuant to which Xxxxxxxxxx County agreed to exempt from taxation certain
percentages of real property upon which a wind farm is intended to be
developed;
WHEREAS, Higher Power Energy, LLC
(“Higher Power
Energy”) holds 100% of the limited liability company interest in the
Assignor;
WHEREAS, Higher Power Energy and
Perpetual Energy Ltd. (“Perpetual”) hold in
aggregate 100% of the limited liability company interest in Higher Perpetual
Energy, LLC (“Higher
Perpetual”);
WHEREAS, Higher Perpetual and XxXxxx
Energy Development Company, LLC (“XxXxxx”) have
established XxXxxx SWI Wind Farms, LLC (“Company”) with the
intent of developing certain wind farm projects, have entered into a limited
liability company agreement with the Company in furtherance of such pursuit, and
will initially hold in aggregate 100% of the limited liability company interest
in the Company;
WHEREAS, the Company holds 100% of the
limited liability company interest in the Assignee;
WHEREAS, Higher Perpetual, XxXxxx,
Higher Power Energy, the Company, Assignee and others have entered into a
Conveyance and Contribution Agreement which sets out, among other things, the
contributions that each of Higher Perpetual and XxXxxx will make or will cause
to be made to the Company in exchange for the respective limited liability
company interest that Higher Perpetual and XxXxxx will initially receive in the
Company;
WHEREAS, as part of Higher Perpetual’s
contribution to the Company, Higher Power Energy is obligated to cause Assignor
to assign the Contract to the Assignee; and
WHEREAS, Assignor has agreed to assign
the Contract to Assignee and Assignee has agreed to accept such assignment and
assume all of the obligations of the Assignor under the Contract as provided
hereunder, and Xxxxxxxxxx County has agreed to consent to and acknowledge such
assignment of the Contract,
NOW, THEREFORE, in consideration of the
sum of TEN AND No/100 DOLLARS ($10.00) and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
undersigned parties hereby agree as follows:
1. Assignment. Assignor
hereby transfers and assigns unto Assignee and Assignee hereby accepts, all of
Assignor’s right, title, and interest in, to and under the
Contract. Assignor hereby warrants further that (i) no prior
assignment of the Contract, or benefits thereunder has been executed by
Assignor; (ii) no act has been performed by Assignor which might interfere with
or prevent Assignee from enjoying and exercising any of its rights and
privileges evidenced hereby; and (iii) the Contract has not been
modified.
2. Assumption. Assignee
hereby accepts the foregoing assignment of the Contract and hereby covenants and
agrees with Assignor that Assignee will assume, keep, pay, and perform all
covenants, obligations, promises, and conditions to be kept and performed by
Assignor thereunder.
3. Agreement. Xxxxxxxxxx
County hereby consents to and acknowledges the foregoing assignment and
assumption of the Contract.
4. Successors and
Assigns. This Assignment shall be binding upon and inure to
the benefit of the parties hereto and their respective successors, assigns and
legal representatives.
5. Choice of
Law. This Assignment shall be governed by the laws of the
State of Texas.
6. Severability. The
invalidity of any provision of this Assignment, as determined by a court of
competent jurisdiction, shall in no way affect any other provision
hereof.
[ Signature page follows.
]
IN WITNESS WHEREOF, the parties hereto
have executed this Assignment as of the date first above written.
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ASSIGNOR
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XXXXXXX
WIND II, LLC
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By:
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Name:
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Title:
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ASSIGNEE
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LITTLEPRINGLE1,
LLC
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By:
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Name:
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Title:
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