ASSIGNMENT AGREEMENT
This
ASSIGNMENT AGREEMENT (the “Assignment”), dated
as of October 6, 2008, is entered into by and between Pringle Wind I, LLC, a
Texas limited liability company (“Assignor”), and
LittlePringle2, LLC, a Delaware limited liability company (“Assignee”).
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 all of Assignor’s rights, title and
interest that Assignor may have in certain assets to the Assignee;
and
WHEREAS,
Assignor wishes to assign all such rights, title and interest that it may have
in such certain assets to Assignee, and Assignee wishes to accept such
assignment,
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 to Assignee and Assignee hereby accepts, all of
Assignor’s right, title, and interest in and to the following (collectively, the
“Assets”):
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(a)
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Assessment
of the Energy Production of the Proposed Little Xxxxxxx Wind Farm, dated
April 29, 2008, by Xxxxxx Xxxxxx America, Inc., for Higher Perpetual
Energy, LLC (to the extent applicable to
Assignee).
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(b)
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Assessment
of the Energy Production of the Proposed Xxxxxxx Wind I & II Wind
Farms, dated June 17, 2008, by Xxxxxx Xxxxxx America, Inc., for Higher
Perpetual Energy, LLC (to the extent applicable to
Assignee).
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(c)
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Boundary
Survey dated May 2, 2008 by Xxxxxx X. Xxxxxxx, Xxxxxxx & Associates,
Inc., of Xxxxxxx Wind I and II, Section 7, Xxx X Xxxxxxx Survey, &
Xxxxxxx 0, Xxxxx X00, X. X. & Ry. Co. Survey, Xxxxxxxxx County, Texas
(to the extent applicable to
Assignee).
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(d)
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Boundary
Survey dated September 4, 2007 by Xxxxxx X. Xxxxxxx, Xxxxxxx &
Associates, Inc., of Little Xxxxxxx Site, Section 0, Xxxxx X00, X C &
Ry Co Survey, Xxxxxxxxx County, Texas (to the extent applicable to
Assignee).
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(e)
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Determination
of No Hazard to Air Navigation, concerning Wind Turbine XX XX-1 at
Stinnett, TX, issued by the Federal Aviation Administration by letter
dated August 16, 2008 to Higher Power Energy, LLC (Aeronautical Study No.
2008-WTW-2904-OE).
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(f)
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Determination
of No Hazard to Air Navigation, concerning Wind Turbine XX XX-2 at
Stinnett, TX, issued by the Federal Aviation Administration by letter
dated August 16, 2008 to Higher Power Energy, LLC (Aeronautical Study No.
2008-WTW-2905-OE).
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(g)
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Determination
of No Hazard to Air Navigation, concerning Wind Turbine XX XX-3 at
Stinnett, TX, issued by the Federal Aviation Administration by letter
dated August 16, 2008 to Higher Power Energy, LLC (Aeronautical Study No.
2008-WTW-2906-OE).
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(h)
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Determination
of No Hazard to Air Navigation, concerning Wind Turbine XX XX-4 at
Stinnett, TX, issued by the Federal Aviation Administration by letter
dated August 16, 2008 to Higher Power Energy, LLC (Aeronautical Study No.
2008-WTW-2907-OE).
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(i)
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Determination
of No Hazard to Air Navigation, concerning Wind Turbine XX XX-5 at
Stinnett, TX, issued by the Federal Aviation Administration by letter
dated August 16, 2008 to Higher Power Energy, LLC (Aeronautical Study No.
2008-WTW-2908-OE).
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(j)
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Document
“JV_KeyFamilyLease_UnsignedCopy.doc”, a blank form of a lease agreement
between Higher Power Energy, LLC and a landowner (to the extent applicable
to Assignee).
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(k)
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Document
“JV_Generic_NonDisturbanceAgreement.DOC”, a blank form of a Nondisturbance
and Attornment Agreement between a mortgagee and a project company (to the
extent applicable to Assignee).
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(l)
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Document
“LP_SPSAvoidedCosts_GeneralNotes.doc”, titled “Subject: Avoided costs-SPS”
(to the extent applicable to
Assignee).
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(m)
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Draft
of Lease between Xxxxx and Xxxxxx Xxxxxxxx, as owner, and Higher Power
Energy, LLC, as lessee, for approximately 678 acres of land, with all
exhibits.
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(n)
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Draft
of Nondisturbance and Attornment Agreement between Great Plains Ag Credit,
FLCA, and LittlePringle2, LLC.
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(o)
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Electrical
One Line Diagram for “Higher Power Energy, LLC; Xxxxxxx II - 10 MW Wind
Turbine Generator Project; Xxxxxxxxx County, Texas”, dated June 26, 2008,
by Xxxxxxx X. Xxxxx P.E., Inc.
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(p)
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Electrical
Substation Conceptual Equipment Plan and Elevations for “Xxxxxxx, Texas;
Higher Power Energy LLC; 10 MW Wind Farm”, dated June 26, 2008, by Xxxxxxx
X. Xxxxx P.E., Inc. (to the extent applicable to
Assignee).
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(q)
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Feasibility
Study of the Energy Production of the Proposed Big Pringle, Little
Xxxxxxx, and H&H Wind Farms in Texas, dated December 21, 2007, by
Xxxxxx Xxxxxx America, Inc., for Higher Perpetual Energy, LLC (to the
extent applicable to Assignee).
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(r)
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Letter
dated August 20, 2007 from Xxxxxxxx Xxxxxx, Xxxxxx Xxxxxx Xxxxx LLP, to
Xxxx Xxxxxxxx and Xxxx Xxxxxx, with attached Title Search for Little
Xxxxxxx (to the extent applicable to
Assignee).
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(s)
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Letter
from Xcel Energy Services Inc. to the Public Utility Commission of Texas,
dated February 28, 2008, regarding “Project No. 18692 Avoided Cost
Availability of Electric Utility System Cost Data Pursuant to Subst. R.
25.242(e)(2) [formerly Subst. R. 23.66(c)(1)]” with attached update to
Southwestern Public Service Company’s February 15, 2008 informational data
filing pursuant to the Commission’s Substantive Rule 25.242(e)(2),
Availability of Electric Utility System Cost Data (to the extent
applicable to Assignee).
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(t)
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Map
“LP_GeographicLayout.bmp” by DeLorme of Little Xxxxxxx Wind Farm (to the
extent applicable to Assignee).
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(u)
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Map
“LP_Map.jpg” by DeLorme of Little Xxxxxxx Wind Farm (to the extent
applicable to Assignee).
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(v)
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Map
“LP_ProposedExpansion.bmp” by DeLorme of Little Xxxxxxx Wind Farm (to the
extent applicable to Assignee).
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(w)
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Map
“LP1and2_FAA_TurbineLayout.bmp” by DeLorme of Little Xxxxxxx Wind Farm (to
the extent applicable to Assignee).
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(x)
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Map
“LP2_FAA_TurbineLayout.bmp” by DeLorme of Little Xxxxxxx Wind
Farm.
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(y)
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Preliminary
Geotechnical Evaluation: Little Pringle Wind Farm, Xxxxxxxxxx County,
Texas, Apex Project No. 107-229, dated November 2007, prepared by Apex
Geoscience Inc. for Higher Power Energy, LLC (to the extent applicable to
Assignee).
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(z)
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Proposed
Wind Power Site: Xxxxxxx Wind, Site Reconnaissance and Avian Report, dated
August 26, 2007, prepared by Dr. Xxxxxxx Xxxxxx Xxxxxxxx for Higher Power
Energy, LLC (to the extent applicable to
Assignee).
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(aa)
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Storm
Water Construction General Permit, Texas Commission on Environmental
Quality, Permit No. TXR15MH51, issued to Xxxxxxx Wind Farm (project) and
Higher Power Energy, LLC (operator) with coverage effective August 25,
2008 (to the extent applicable to
Assignee).
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(bb)
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Spreadsheet
“JV_OldProjectStatus_Dec07.xls” titled “HPE PROJECT LIST 12/02/2007”
containing data regarding Little Xxxxxxx, Palo Duro, and Big Xxxxxxx (to
the extent applicable to Assignee).
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(cc)
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Spreadsheet
“JVProjects_DevelopmentCosts.xls” listing development phase cash flows for
Little Xxxxxxx, Big Xxxxxxx, and Palo Duro (to the extent applicable to
Assignee).
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(dd)
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Spreadsheet
“LP_TypicalDayEnergyProfileForD8.2.xls” containing wind, power, and other
data (to the extent applicable to
Assignee).
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(ee)
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Suggested
Form of Agreement Between Owner and Design/Builder on the Basis of a
Stipulated Price, between HPE XxXxxx, a joint venture, as owner, and
Balfour Xxxxxx Wind Group, a joint venture, as design/builder, for Phase
II of the Xxxxxxx Wind Farm, with all attached schedules, exhibits,
annexes, and other documentation (including the Escrow
Agreement).
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(ff)
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Any
and all other wind resource data, books and records, contracts, permits,
reports and any other properties, assets and rights of any kind, whether
tangible or intangible, real or personal, owned or hereafter acquired by
Grantor and which are related to the following option or the wind farm to
be developed on the real estate subject to such
option:
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(i)
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Option
Agreement dated April 11, 2008 between Higher Power Energy, LLC and Xxxxx
and Xxxxxx Xxxxxxxx
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Assignor hereby warrants further that:
(i) no prior assignment of the Assets, or and right or interest thereto, has
been executed by the 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) none of the Assets have been
modified.
2. 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.
3. Choice of
Law. This Assignment shall be governed by the laws of the
State of Texas.
4. 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.
]
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IN WITNESS WHEREOF, the parties hereto
have executed this Assignment as of the date first written above.
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XXXXXXX
WIND I, 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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LITTLEPRINGLE2,
LLC
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By:
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Name:
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Title:
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