LIMITED LIABILITY COMPANY AGREEMENT OF DEWIND SWI WIND FARMS, LLC A Delaware Limited Liability Company

Final Execution Version

XXXXXX SWI WIND FARMS, LLC

A Delaware Limited Liability Company

XXXXXX SWI WIND FARMS, LLC

A Delaware Limited Liability Company

TABLE OF CONTENTS

		Page

ARTICLE I DEFINITIONS		1
1.01	Definitions	1
1.02	Construction	15
1.03	Determination of Fair Market Value	15

ARTICLE II ORGANIZATION		16
2.01	Formation	16
2.02	Name	16
2.03	Registered Office; Registered Agent; Principal Office in the United States; Other Offices	16
2.04	Purposes	16
2.05	Foreign Qualification	17
2.06	Term	17
2.07	No State-Law Partnership	17
2.08	Certificates of Membership Interest; Applicability of Article 8 of UCC	17
2.09	EWG Status and Market-Based Rate Authorization	17
2.10	Credit Support Obligation	17
2.11	Wind Turbines	17

ARTICLE III MEMBERSHIP; DISPOSITIONS OF INTERESTS		18
3.01	Members, Contribution Percentages, Voting Ratio and Sharing Ratio	18
3.02	Representations, Warranties and Covenants	18
3.03	Dispositions of Membership Interests	20
3.04	Options and Other Encumbrances	26
3.05	Access to Information	26
3.06	Confidential Information	27
3.07	Liability to Third Parties	28
3.08	Withdrawal	28

ARTICLE IV CAPITAL CONTRIBUTIONS		28
4.01	Initial Funding Plan for Little Xxxxxxx One and Initial Capital Contributions	28
4.02	Funding of Contributions and Subsequent Capital Contributions	32
4.03	Failure to Contribute	34
4.04	Return of Contributions	37
4.05	Loans and Guarantees	37
4.06	Capital Accounts	38
4.07	Mandatory Replacement of Higher Perpetual Contributed Assets	39

Limited Liability Company Agreement of

XxXxxx SWI Wind Farms, LLC

4.08	Developer Fees	40

ARTICLE V DISTRIBUTIONS AND ALLOCATIONS		41
5.01	Distributions	41
5.02	Intentionally Deleted	42
5.03	Allocations	42
5.04	Calculation of Flip Point	47
5.05	Varying Interests	49

ARTICLE VI MANAGEMENT		49
6.01	Management by Members	49
6.02	Management Committee	49
6.03	Management of Company Affairs	52
6.04	Standards of Performance and Conflicts of Interest	55
6.05	Indemnification	57
6.06	Officers; Day-to-Day Management	58
6.07	Budgets	60
6.08	Members Right to Act in Certain Circumstances	60
6.09	HSSE Standards	60
6.10	Construction Management	60
6.11	Operations and Maintenance Agreement	60
6.12	Project Administration and Development Services Agreement	60
6.13	Employees	60

ARTICLE VII TAXES		61
7.01	Tax Returns	61
7.02	Tax Elections	61
7.03	Tax Matters Member	62

ARTICLE VIII BOOKS, RECORDS, REPORTS, AND BANK ACCOUNTS		62
8.01	Maintenance of Books	62
8.02	Reports	63
8.03	Bank Accounts	63

ARTICLE IX DISSOLUTION, WINDING-UP AND TERMINATION		63
9.01	Dissolution	63
9.02	Winding-Up and Termination	63
9.03	Certificate of Cancellation	64

ARTICLE X BUY-SELL PROVISIONS		64
10.01	Buy-Sell on Deadlock	64
10.02	Dispute Resolution of Buy-Sell on Deadlock	66

ARTICLE XI GENERAL PROVISIONS		66
11.01	Member Marks	66
11.02	Notices	66
11.03	Entire Agreement; Superseding Effect	67

Limited Liability Company Agreement of

XxXxxx SWI Wind Farms, LLC

11.04	Effect of Waiver or Consent	67
11.05	Amendment or Restatement	67
11.06	Binding Effect	67
11.07	Governing Law; Severability	67
11.08	Further Assurances	68
11.09	Waiver of Certain Rights	68
11.10	Limitation of Liability	68
11.11	Dispute Resolution Procedures	68
11.12	Counterparts	68
11.13	Third Party Rights	68

EXHIBITS:

A	Members and Contributions
B	(Intentionally deleted.)
C	Form of Certificate
D	Dispute Resolution Procedures
E	Officers
F	Default Notice
G	Turbine Supply Agreements

Limited Liability Company Agreement of

XxXxxx SWI Wind Farms, LLC

iii

LIMITED LIABILITY COMPANY AGREEMENT

XXXXXX SWI WIND FARMS, LLC

A Delaware Limited Liability Company

This LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”) of XXXXXX SWI WIND FARMS, LLC (the “Company”), executed as of October 6, 2008 (the “Effective Date”), is adopted, executed and agreed to by XXXXXX ENERGY DEVELOPMENT COMPANY, LLC, a Nevada limited liability company (“XxXxxx”) and HIGHER PERPETUAL ENERGY, LLC, a Texas limited liability company (“Higher Perpetual”). Higher Perpetual and XxXxxx are sometimes collectively referred to herein as the “Parties.”

RECITALS

A. The Company was formed on September 2, 2008 (the “Formation Date”) by filing a Certificate of Formation (the “Delaware Certificate”) with the Delaware Secretary of State.

B. The purpose of the Company, as more fully set forth herein, is to develop, own, finance, refinance and operate or cause to be operated the Wind Farms (as defined herein) indirectly through one or more subsidiaries that the Company plans to form (each, a “Sub”, and collectively, the “Subs”).

C. Pursuant to the Capital Contribution Agreement (as defined herein), XxXxxx has contributed the XxXxxx Contributed Assets (as defined herein) and Higher Perpetual has contributed the Higher Perpetual Contributed Assets (as defined herein).

D. Pursuant to the Developer Agreement (as defined herein) each of Higher Power and Perpetual is to perform certain services for the Company on behalf of Higher Perpetual.

E. The Parties desire to enter into this Agreement to with respect to various matters relating to the Company.

NOW THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows.

ARTICLE I

DEFINITIONS

1.01 Definitions. As used in this Agreement, the following terms have the respective meanings set forth below or set forth in the Sections referred to below (and grammatical variations of such terms have correlative meanings):

Act – means the Delaware Limited Liability Company Act.

Activities – has the meaning set forth in Section 6.04(b).

Limited Liability Company Agreement of

XxXxxx SWI Wind Farms, LLC

Accrued Preferred Return – means a return of plus fifteen percent (15%) per annum, compounded annually, paid on Capital Contributions other than the XxXxxx Capital Contributions, the Higher Perpetual Capital Contributions and Turbine Contributions from the date such Capital Contribution is made by contributing Member to but excluding the date that such Capital Contribution is distributed to such Member, subject to adjustment in accordance with this Agreement.

Adjusted Capital Account – means, with respect to any Member for any period, such Member’s Capital Account as of the end of such period, after giving effect to the following adjustments:

(a) Increase such Capital Account by any amounts that such Member is obligated to restore pursuant to any provision of this Agreement or is deemed obligated to restore pursuant to Treasury Regulation Section 1.704-1(b)(2)(ii)(c) or the penultimate sentences of Treasury Regulation Sections 1.704-2(g)(1) and 1.704-2(i)(5); and

(b) Decrease such Capital Account by the items described in Treasury Regulation Sections 1.704-1(b)(2)(ii)(d)(4),(5) and (6).

The adjustments in this definition of Adjusted Capital Account are intended to comply with the provisions of Treasury Regulation Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.

Administrator – means XxXxxx or its Affiliate, as Administrator pursuant to the Project Administration and Development Services Agreement and this Agreement, or such other Person as the Management Committee shall designate from time to time.

Advisors – has the meaning set forth in Section 3.06(a)(i).

Affected Wind Farm– has the meaning set forth in Section 4.08.

Affiliate – means, with respect to any Person, any other Person Controlling, Controlled by, or under common Control with that first Person. Notwithstanding the foregoing, neither the Company nor the Subs shall be considered an Affiliate of XxXxxx or Higher Perpetual for purposes of this Agreement.

Aggregate Expected Capacity – means until the determination of the Expected Capacity for all Wind Farms in accordance with Section 4.07, 620 MWs, and after such determination, the aggregate amount of Expected Capacity so determined.

Agreement – has the meaning set forth in the introductory paragraph.

Approved Budget – means, for each Wind Farm, the total capital budget, including any contingency set forth therein, or operating budget and funding schedule for the payment of costs to develop, construct, startup and finance such Wind Farm. Any Approved Budget may be approved, amended, supplemented or modified by the Management Committee from time to time, and as so amended, may be deposited in the records of the Company.

Limited Liability Company Agreement of

XxXxxx SWI Wind Farms, LLC

Approved Operating Budget – has the meaning set forth in Section 6.07.

Approved Project Costs – means, for each Wind Farm, the costs of the Company to develop, construct, startup, and finance such Wind Farms as set forth in the Approved Budget for such Wind Farm.

Assignee – means any Person that acquires a Membership Interest or any portion thereof through a Disposition; provided, however, that, an Assignee shall have no right to be admitted to the Company as a Member except in accordance with Section 3.03(f).

Assignment Documents – means the following: (i) Assignment and Assumption Agreement, dated on or about the Effective Date, by and between Higher Power and LP1 Sub; (ii) Assignment and Assumption Agreement, dated on or about the Effective Date, by and between Higher Power and LP2 Sub; (iii) Assignment and Assumption Agreement, dated on or about the Effective Date, by and between Higher Power and Big Xxxxxxx Sub; (iv) Assignment and Assumption Agreement, dated on or about the Effective Date, by and between Higher Power and Palo Duro Sub; (v) Assignment and Assumption Agreement to be entered into by and between Higher Power Sub II and LP1 Sub, and to be consented to and acknowledged by Xxxxxxxxxx County, acting through its Commissioners Court, of that certain Tax Abatement Agreement dated August 15, 2008, between Higher Power Sub II and Xxxxxxxxxx County, acting through its Commissioners Court; (vi) Assignment and Assumption Agreement to be entered into by and between Higher Power Sub I and LP2 Sub, and to be consented to and acknowledged by Xxxxxxxxxx County, acting through its Commissioners Court, of that certain Tax Abatement Agreement dated August 15, 2008, between Higher Power Sub I and Xxxxxxxxxx County, acting through its Commissioners Court; (vii) Assignment Agreement, dated on or about the Effective Date, by and between Higher Power Sub II and LP1 Sub; and (viii) Assignment Agreement, dated on or about the Effective Date, by and between Higher Power Sub I and LP2 Sub and other agreements or instruments transferring assets or property to the Company or the Subs contemplated by the Capital Contribution Agreement or this Agreement.

Assumptions – has the meaning set forth in Section 4.01(c).

Xxxxx – has the meaning set forth in the definition of Xxxxx Assets.

Xxxxx Assets – Development Assets and Rights, including, without limitation, the rights described on Exhibit E attached hereto for the development, construction, operation and ownership of a proposed wind farm commonly referred to as Xxxxx to be located on real property of approximately 378 acres in the Counties of Xxxxxxx and Throckmorton, Texas, at Latitude: 33' 18.47N, Longitude: 99' 28.73W (“Xxxxx”).

Xxxxx Sub – means the Sub owning the Xxxxx Assets.

Limited Liability Company Agreement of

XxXxxx SWI Wind Farms, LLC

Bankruptcy or Bankrupt – means, with respect to any Person, that (a) such Person (i) makes a general assignment for the benefit of creditors; (ii) files a voluntary bankruptcy petition; (iii) becomes the subject of an order for relief or is declared insolvent in any federal or state bankruptcy or insolvency proceedings; (iv) files a petition or answer seeking for such Person a reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any Law; (v) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against such Person in a proceeding of the type described in subclauses (i) through (iv) of this clause (a); or (vi) seeks, consents to, or acquiesces in the appointment of a trustee, receiver, or liquidator of such Person or of all or any substantial part of such Person’s assets; or (b) against such Person, a proceeding seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any Law has been commenced and one hundred and twenty (120) Days have expired without dismissal thereof or with respect to which, without such Person’s consent or acquiescence, a trustee, receiver, or liquidator of such Person or of all or any substantial part of such Person’s assets has been appointed and ninety (90) Days have expired without the appointment’s having been vacated or stayed, or ninety (90) Days have expired after the date of expiration of a stay, if the appointment has not previously been vacated.

Big Xxxxxxx – means the Wind Farm to be located at Big Xxxxxxx (19 miles southwest of Spearman, Texas) intended to have 200 MW of generating capacity.

Big Xxxxxxx Sub – means BigPringle, LLC, a Delaware limited liability company.

Business Day – means any day other than a Saturday, a Sunday, or a holiday on which national banking associations in the States of New York or Texas are required or permitted by Law to be closed.

BOP – means balance of plant for any Wind Farm.

Buyout PSA – has the meaning set forth in Section 10.01(d).

Buy/Sell Offer – has the meaning set forth in Section 10.01(c).

Capital Account – means the account to be maintained by the Company for each Member in accordance with Section 4.06.

Capital Call – means a written request from the Administrator to a Member, in accordance with the Approved Budgets, or as approved by the Management Committee pursuant to the terms of this Agreement, for the making of additional Capital Contributions, at such times and in such amounts as are necessary for the timely payment of Cash Requirements.

Capital Contribution – means, with respect to any Member, the amount of money and the value of any assets (other than money), as agreed by the Members, contributed to the Company by the Member.

Capital Contribution Agreement – means the Conveyance and Contribution Agreement dated on or about the Effective Date, among XxXxxx, Higher Power, Perpetual, Higher Perpetual, LP1 Sub, LP2 Sub, Big Xxxxxxx Sub, Palo Duro Sub and the Company.

Limited Liability Company Agreement of

XxXxxx SWI Wind Farms, LLC

Cash Equivalents – means any of the following having a maturity of not greater than one year from the date of issuance thereof: (a) readily marketable direct obligations of the government of the United States of America or any agency or instrumentality thereof or obligations unconditionally guaranteed by the full faith and credit of the government of the United States of America, (b) insured certificates of deposit of or time deposits with any commercial bank that is a member of the Federal Reserve System, issues (or the parent of which issues) commercial paper rated as described in clause (c) below, is organized under the Laws of the United States or any State thereof and has combined capital and surplus of at least one billion dollars ($1,000,000,000) or (c) commercial paper issued by any corporation organized under the Laws of any State of the United States and rated at least “Prime-1” (or the then equivalent grade) by Xxxxx’x Investor Service, Inc. (or any successor thereto) or “A-1” (or the then equivalent grade) by Standard & Poor’s Rating Group, a division of Standard & Poor’s Corporation (or any successor thereto).

Cash Requirements – means, as of the date of determination, cash required by the Company for (a) payment of Approved Project Costs then due or to become due in the ordinary course in the following thirty (30) Days, or reimbursement of Approved Project Costs previously incurred and not then paid, (b) other costs and expenses of constructing, financing, owning and operating the Wind Farms then due or to become due in the ordinary course in the following thirty (30) Days, in accordance with the applicable Approved Budget, or as otherwise approved by the Management Committee, and (c) additional Capital Contributions required in the applicable Approved Budget in connection with the conversion of any construction financing to permanent financing to repay or prepay any amount of the financing theretofore advanced for funding of costs of construction of the Wind Farms and other Approved Project Costs.

Certificates – has the meaning set forth in Section 2.08.

Claim – means any and all judgments, claims, causes of action, demands, lawsuits, suits, proceedings, Governmental investigations or audits, losses, assessments, fines, penalties, administrative orders, obligations, costs, expenses, liabilities and damages (whether actual, consequential or punitive), including interest, penalties, reasonable attorneys’ fees, disbursements and costs of investigations, deficiencies, levies, duties and imposts.

Closing Date – means the date upon which the conditions set forth in Section 4.01(d) shall have been satisfied or waived.

Code – means the Internal Revenue Code of 1986, as amended.

Company – has the meaning set forth in the introductory paragraph.

Company Minimum Gain – has the meaning set forth with respect to the term “partnership minimum gain” in Treasury Regulation Sections 1.704-2(b)(2) and 1.704-2(d).

Company Response Period – has the meaning set forth in Section 3.03(b)(ii).

Confidential Information – means, collectively and individually (as may be required by context), (a) the terms of the Transaction Documents, (b) information, data and results generated or acquired by or on behalf of the Company or the Subs as a result of the Company or the Subs conducting its operations, business and affairs, including agreements and permits of the Company and the Subs, (c) proceedings and documents related to the functioning of the Management Committee (including minutes of meetings and decisions adopted by the committee), and (d) any data, information, materials and reports furnished pursuant to this Agreement relating to the Company and the Subs and their respective business and affairs, whether furnished verbally, in writing or in electronic form. Notwithstanding the foregoing, Confidential Information does not include any information that the Member that wants to disclose such information can demonstrate, if required, (i) is publicly available as of the proposed date of disclosure, or that later becomes publicly available, in each case through no action by such Member or its advisors in violation of this Agreement or (ii) is lawfully received from any source other than the Company, the other Member, the other Member’s Affiliates, and its and their advisors and not subject to an obligation of confidentiality.

Limited Liability Company Agreement of

XxXxxx SWI Wind Farms, LLC

Construction Management Agreement – means, for each Wind Farm, the Construction Management Agreement entered into between the Subs and Construction Manager for the management of the construction of such Wind Farm.

Construction Manager – means XxXxxx or its Affiliate, as Construction Manager pursuant to a Construction Management Agreement and this Agreement, or such other Person as the Management Committee shall designate from time to time.

Contributing Member – has the meaning set forth in Section 4.03(a).

Contribution Percentage – means, (a) before the Flip Point, in the case of XxXxxx, 51%, and in the case of Higher Perpetual, 49% and (b) from and after the Flip Point, in the case of each Member, 50%, minus any net decrease or plus any net increase, as the case may be, in such Member’s aggregate net Sharing Ratio Offset during the period from the date of this Agreement to the date the Flip Point occurs.

Control, Controlling, or Controlled – means the possession, directly or indirectly and whether acting alone or in conjunction with others, of the authority to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.

Credit Support – means equity contribution agreements and letters of credit and other such guarantees, comfort letters, “keep whole” agreements, bonds or other financial security arrangements or credit support arrangements as may be reasonably acceptable to the applicable Member or its Affiliates, or in the case of any Credit Support to be delivered in connection with a Financing contemplated by a Funding Plan, as determined by the Management Committee approval of such Financing.

Day – means a calendar day; provided, however, that, if any period of Days referred to in this Agreement shall end on a Day that is not a Business Day, then the expiration of such period shall be automatically extended until the end of the first succeeding Business Day.

Deadlock – has the meaning set forth in Section 10.01(a)(iii).

Default – has the meaning set forth in Section 4.03(c).

Default Notice – has the meaning set forth in Section 4.03(c).

Default Rate – means a rate per annum equal to the lesser of (a) a varying rate per annum equal to the sum of (i) the prime rate as published in The Wall Street Journal, with adjustments in that varying rate to be made on the same date as any change in that rate is so published, plus (ii) three percent (3%) per annum, and (b) the maximum rate permitted by Law.

Limited Liability Company Agreement of

XxXxxx SWI Wind Farms, LLC

Defaulted Contribution – has the meaning set forth in Section 4.03(c).

Defaulting Non-Contributing Members – has the meaning set forth in Section 4.03(b).

Delaware Certificate – has the meaning set forth in the Recitals.

Developer Agreement – means the Developer Agreement dated on or about the Effective Date entered into between Higher Perpetual, Higher Power, Perpetual, the Company and XxXxxx.

Developer Fees – has the meaning assigned to such term in the Developer Agreement.

XxXxxx – has the meaning set forth in the introductory paragraph.

XxXxxx, Inc. – means XxXxxx, Inc., a Nevada corporation.

XxXxxx Capital Contribution – means the Capital Contribution made by or on behalf of XxXxxx, consisting of the XxXxxx Contributed Assets having an agreed value as set forth on Exhibit A hereto.

XxXxxx Contributed Assets – means the assets and properties contributed to the capital of the Company by or on behalf of XxXxxx and described on Exhibit X.

XxXxxx Disposition – has the meaning set forth in Section 3.03(i).

Dispose, Disposing or Disposition – means, with respect to any asset or any equity interest (including stock, share, partnership interest, membership interest or any other equity interest (each an “equity interest”)) of any Person, a sale, assignment, transfer, conveyance, gift, exchange or other disposition of such asset or equity interest, whether such disposition be voluntary, involuntary or by operation of Law and a pledge of an equity interest (and any foreclosure thereof) including the events described in Section 3.03(e).

Disposing Member – has the meaning set forth in Section 3.03(b).

Disposition Notice – has the meaning set forth in Section 3.03(b).

Dispute – means any controversy, Claim or dispute that arises out of or in connection with this Agreement, including the construction, interpretation, performance, breach, termination, enforceability or validity of this Agreement, whether the same is based on rights, privileges or interests recognized by or based upon statute, contract, agreement (whether written or oral), tort, common law or other Law, including Claims brought by the Members or Perpetual.

Dissolution Event – has the meaning set forth in Section 9.01.

Limited Liability Company Agreement of

XxXxxx SWI Wind Farms, LLC

Distributable Cash – means, as of any date, all cash, cash equivalents and liquid investments (excluding the proceeds of Capital Contributions and loans made to the Company) held by the Company as of such date less all reasonable reserves that (a) were expressly included in the Approved Budgets, (b) are necessary to prevent or mitigate an emergency situation, (c) are established with the prior written consent of the Management Committee, or (d) are necessary to allow the Company to meet expenses that are clearly identified and expected with reasonable certainty to become due within three (3) months from the date of determination, and which are not included in the Approved Budgets.

Drag Along Notice – has the meaning set forth in Section 3.03(d)(ii).

Drag Along Purchaser – has the meaning set forth in Section 3.03(d)(i).

Drag Along Sale – has the meaning set forth in Section 3.03(d)(i).

Drag Along Seller – has the meaning set forth in Section 3.03(d)(i).

Effective Date – has the meaning set forth in the introductory paragraph.

Emergency Loan – has the meaning set forth in Section 4.05.

Encumber, Encumbering, or Encumbrance – any lien (statutory or otherwise), mortgage, deed of trust, claim, option, right to purchase, right to obtain, lease, easement, charge, pledge, security interest, hypothecation, assignment, use restriction or other encumbrance of any kind or nature whatsoever, whether voluntary or involuntary, xxxxxx or inchoate (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement).

Expected MWs – means the number of megawatts of wind powered generation facilities reasonably expected to be developed with the applicable power purchase agreements or other offtake arrangements by the date that is 36 months after the Effective Date, which shall be the number of megawatts indicated below until otherwise determined in accordance with Section 4.07(b):

WIND FARM EXPECTED INSTALLED CAPACITY (MWs)

Little Xxxxxxx 1	10

Little Xxxxxxx 2	10

Big Xxxxxxx	200

Palo Duro	400

Financing – means debt incurred, debt securities issued, or obligations incurred, by the Company as approved by the Management Committee, in each case the proceeds of which shall be used by the Company for the financing, refinancing or hedging of all or a portion of Approved Project Costs or other costs and expenses of construction, startup, financing, owning and operating the Wind Farms other than the LP1 Shareholder Loan and LP2 Shareholder Loan.

Limited Liability Company Agreement of

XxXxxx SWI Wind Farms, LLC

Financing Documents – means the financing agreement, promissory note(s), deed of trust, security agreement, and all other documents evidencing or securing any Financing and loans made in connection therewith or entered into in connection therewith.

First Full Year – has the meaning set forth in Section 6.07.

First Offer Price – has the meaning set forth in Section 3.03(b)(i).

Flip Point – means, the first point at which both (i) XxXxxx receives a return of all its Capital Contributions plus fifteen percent (15%) per annum, compounded annually, on the average daily balance of XxXxxx’x LP1 Contributions and Other Capital Contributions and (ii) the Shareholder Loans have been repaid in full.

Formation Date – has the meaning set forth in the recitals.

Funding Plan – means a plan for the funding of the construction and startup and the permanent financing of a Wind Farm that is determined by the Management Committee.

GAAP – means the United States generally accepted accounting principles and the International Financial Reporting Standards as set forth by the International Accounts Standards Board in the version effective as of the date of this Agreement.

Governmental Authority (or Governmental) – means a federal, state, local or foreign governmental authority (including any regulatory authority); a state, province, commonwealth, territory or district thereof; a county or parish; a city, town, township, village or other municipality; a district, xxxx or other subdivision of any of the foregoing; any executive, legislative or other governing body of any of the foregoing; any agency, authority, board, department, system, service, office, commission, committee, council or other administrative body of any of the foregoing; any court or other judicial body; and any officer, official or other representative of any of the foregoing.

Guarantee – means a guarantee by the Company in favor of XxXxxx given in connection with the Shareholder Loans.

GDPIPD – means the Gross Domestic Product Implicit Price Deflator, as published by the United States Department of Commerce, Bureau of Economic Analysis immediately preceding the applicable date of adjustment, or such other index as determined by the Management Committee.

Xxxxxx – has the meaning set forth in the definition of Xxxxxx Assets.

Xxxxxx Assets – Development Assets and Rights, including, without limitation, the rights described on Exhibit F attached hereto for the development, construction, operation and ownership of a proposed wind farm commonly referred to as Xxxxxx to be located on real property of approximately 3352 acres in Grey County, Texas, approximately 12 miles northwest of XxXxxx, Texas, in rural, varying terrain area of USGS Hudgens Ranch, TX Quadrangle (35.3680N, 100.6667W [NAD 27]) - 65 miles south, southeast of Spearman, Texas (“Xxxxxx”).

Limited Liability Company Agreement of

XxXxxx SWI Wind Farms, LLC

Xxxxxx Sub – means the Sub owning the Xxxxxx Assets.

Hedging Agreement – means any agreement with respect to any swap, cap, floor, collar, option, forward, cross right or obligation, or combination thereof or similar transaction, with respect to interest rate, foreign exchange, currency, commodity, credit or equity risk.

Higher Perpetual – has the meaning set forth in the introductory paragraph.

Higher Perpetual Capital Contribution – means the Capital Contribution made by or on behalf of Higher Perpetual, consisting of the Higher Perpetual Contributed Assets having an agreed value as set forth on Exhibit A hereto.

Higher Perpetual Contributed Assets – means the assets and properties contributed to the capital of the Company by or on behalf of Higher Perpetual and described on Exhibit A.

Higher Power – means Higher Power Energy, LLC, a Texas limited liability company.

Higher Power Sub I – means Xxxxxxx Wind I, LLC, a Texas limited liability company.

Higher Power Sub II – means Xxxxxxx Wind II, LLC, a Texas limited liability company.

HSSE – has the meaning set forth in Section 6.09.

Independent Expert – has the meaning set forth in Section 5.04(c).

Including and includes – means including, without limitation.

Indemnified Person – has the meaning set forth in Section 6.05(a).

Investment Company Act – means the Investment Company Act of 1940.

Law – means any applicable constitutional provision, statute, act, code (including the Code), law, regulation, rule, ordinance, order, decree, ruling, proclamation, resolution, judgment, decision, declaration, or interpretative or advisory opinion or letter of a Governmental Authority having valid jurisdiction.

Lending Member – has the meaning set forth in Section 4.03(b).

Lien – means any lien, mortgage, pledge, security interest, charge or encumbrance of any kind (including, without limitation, any conditional sale or other title retention agreement, any lease in the nature thereof, and any agreement to give any lien or security interest).

Liquidator – has the meaning set forth in Section 9.02.

Limited Liability Company Agreement of

XxXxxx SWI Wind Farms, LLC

Little Xxxxxxx One – means the Wind Farm to be located at Northeast Corner of Section 54, Block M23, Xxxxxx Xxxxx Survey, Xxxxxxxxxx County, Texas, Latitude: 35º 57’21.36010”N and Longitude: 101º 32’34.46695”W, intended to have 10 MW of generating capacity.

Little Xxxxxxx Two – means the Wind Farm to be located at Xxxxxxxxx Xxxxxx xx Xxxxxxx 0, Xxxxx X00, TC & Ry Co Survey, Xxxxxxxxxx County, Texas, Latitude: 35º 55’59.46429”N and Longitude: 101º 32’34.48343”W, intended to have 10 MW of generating capacity.

LP1 Contributions – has the meaning set forth in Section 4.01(a).

LP1 Shareholder Loan – has the meaning set forth in Section 4.05(a).

LP1 Sub – means LittlePringle1, LLC, a Delaware limited liability company.

LP2 Shareholder Loan – has the meaning set forth in Section 4.05(b).

LP2 Sub – means LittlePringle2, LLC, a Delaware limited liability company.

MW – means megawatt.

Management Committee – has the meaning set forth in Section 6.02.

Member – means each of XxXxxx and Higher Perpetual, and any other Person hereafter admitted to the Company as a Member as provided in this Agreement, but such term does not include any Person who has ceased to be a Member of the Company.

Member Nonrecourse Debt – has the meaning set forth with respect to the term “partner nonrecourse debt” in Treasury Regulation Section 1.704-2(b)(4).

Member Nonrecourse Deductions – has the meaning set forth with respect to the term “partner nonrecourse deductions” in Treasury Regulation Sections 1.704-2(i)(1) and 1.704-2(i)(2).

Member Response Period – has the meaning set forth in Section 3.03(b)(ii).

Membership Interest – means, with respect to any Member, (a) that Member’s status as a Member; (b) that Member’s share of the income, gain, loss, deductions and credits of, and the right to receive distributions from, the Company; (c) all other rights, benefits and privileges enjoyed by that Member (under the Act, this Agreement or otherwise) in its capacity as a Member, including that Member’s rights to vote, consent and approve and otherwise to participate in the management of the Company, including through the Management Committee; and (d) all obligations, duties and liabilities imposed on that Member (under the Act, this Agreement or otherwise) in its capacity as a Member, including any obligations to make Capital Contributions. All references in this Agreement to a “Membership Interest” shall be construed as references to a “limited liability company interest” within the meaning of the Act.

Minimum Gain Attributable to Member Nonrecourse Debt – means that amount with respect to each Member Nonrecourse Debt, equal to the Company Minimum Gain that would result if such Member Nonrecourse Debt were treated as a Nonrecourse Liability, determined in accordance with the principles of Treasury Regulation Section 1.704-2(i)(3).

Limited Liability Company Agreement of

XxXxxx SWI Wind Farms, LLC

Non-Contributing Member – has the meaning set forth in Section 4.03(a).

Nonrecourse Deduction – has the meaning set forth in Treasury Regulation Sections 1.704-2(b)(1) and 1.704-2(c).

Nonrecourse Liability – has the meaning set forth in Treasury Regulation Section 1.704-2(b)(3).

Notice of Default – has the meaning set forth in Section 4.03(a).

Offered Interest – has the meaning set forth in Section 3.03(b)(i).

Offeree – has the meaning set forth in Section 10.01(c)

Offeror – has the meaning set forth in Section 10.01(c)

O&M Agreement – means, for each Wind Farm, an operations and maintenance agreement entered into by the Subs and the Operator pursuant to which the Operator shall provide operations and maintenance services in respect of such Wind Farm.

Operator – means XxXxxx or its Affiliate, as Operator pursuant to the O&M Agreement and this Agreement, or such other Person as the Management Committee shall designate from time to time.

Other Capital Contributions– means all Capital Contributions other than the XxXxxx Capital Contribution, the Higher Perpetual Capital Contribution, Turbine Contributions and LP1 Contributions.

Palo Duro – means the Wind Farm to be located at Palo Xxxx, Xxxxxxx County, Texas, Latitude: N34.5320 and Longitude: W101.5031, intended to have 400 MW of generating capacity.

Palo Duro Sub – means PD1, LLC, a Delaware limited liability company.

Participating Seller – has the meaning set forth in Section 3.03(c)(ii).

Parties – has the meaning set forth in the introductory paragraph.

Performing Contribution Members – has the meaning set forth in Section 4.03(c).

Permitted Disposition – means the Disposition by a Member of all or any part of its Membership Interest to such Member’s Affiliate, or, if an individual, to his or her spouse, natural or adoptive lineal ancestors or descendants, or a trust for his, her or their exclusive benefit.

Permitted Encumbrances – has the meaning assigned to such term in the Developer Agreement..

Limited Liability Company Agreement of

XxXxxx SWI Wind Farms, LLC

Perpetual – means Perpetual Energy Limited, a United Kingdom private limited company.

Person – means any individual, corporation, company, voluntary association, partnership, joint venture, trust, unincorporated organization or government or any agency, instrumentality or political subdivision thereof, or any other form of entity.

Power Purchase Agreements – means, for each Wind Farm, any agreement for the sale of energy, capacity, environmental attributes and/or ancillary services of the Wind Farms.

Profits and Losses - means, for each fiscal year or other period, an amount equal to the Company’s taxable income or loss for such fiscal year or period, determined in accordance with Code Section 703(a) (for this purpose, all items of income, gain, loss, or deduction required to be stated separately pursuant to Code Section 703(a)(1) and any guaranteed payments paid to a Member, shall be included in taxable income or loss), with the following adjustments:

(i) Any income of the Company that is exempt from federal income tax and not otherwise taken into account in computing Profits or Losses pursuant hereto shall be added to such taxable income or loss; and

(ii) Any expenditures of the Company described in Code section 705(a)(2)(B) or treated as Code section 705(a)(2)(B) expenditures pursuant to the Treasury Regulations promulgated under the Code, and not otherwise taken into account in computing Profits or Losses pursuant hereto, shall be subtracted from such taxable income or loss.

Project Administration and Development Services Agreement – means, for each Wind Farm, the Developer Agreement and Project Administration and Development Services Agreements, as applicable, to be entered into between the Subs and the Administrator pursuant to which the Administrator shall provide accounting, administrative and such other services as shall be set forth therein.

Project Financiers – means lenders, tax equity and other investors experienced in the ownership of finances of wind power facilities.

PTC – means a renewable electricity production tax credit within the meaning of Section 45 of the Code or any successor to such section.

PTC Period – means the period in which PTCs are available in connection with the sale of electricity from any Wind Turbines included in the Wind Farms.

Regulatory Allocations – has the meaning set forth in Section 5.03(d).

Representative – has the meaning set forth in Section 6.02(b)(i).

Sale – has the meaning set forth in Section 3.03(c)(i).

Sale Percentage – has the meaning set forth in Section 3.03(c)(i)(A).

Limited Liability Company Agreement of

XxXxxx SWI Wind Farms, LLC

Screening Period – has the meaning set forth in Section 4.07(b).

Securities Act – means the Securities Act of 1933, as amended.

Securities Law Opinion – has the meaning set forth in Section 3.03(g)(i)(C).

Shareholder Loan Documents – means the Turbine Notes, deeds of trust, security agreements and pledge agreements and other collateral and documents executed in connection with the Shareholder Loans in form satisfactory to XxXxxx.

Shareholder Loans – means the LP1 Shareholder Loan and the LP2 Shareholder Loan.

Sharing Ratio – means, in the case of each Member, 50%, minus any net decrease or plus any net increase, as the case may be, in such Member’s aggregate net Sharing Ratio Offset, subject to any further adjustment set forth in this Agreement.

Sharing Ratio Offset – means, for each Member at any time, the aggregate net increase or decrease in the Sharing Ratio in accordance with Section 4.03(b) or Section 4.08 of such Member during the period from the Effective Date to such time.

Stub Year – has the meaning set forth in Section 6.07.

Subs – has the meaning set forth in the Recitals.

Tag Along Notice – has the meaning set forth in Section 3.03(c)(i).

Tag Along Purchaser – has the meaning set forth in Section 3.03(c)(i)(A).

Tax Matters Member – has the meaning set forth in Section 7.03.

Term – has the meaning set forth in Section 2.06.

Texas Courts – has the meaning set forth in Exhibit D.

Title Commitment – has the meaning set forth in Section 4.01(d)(vii).

Transaction Documents – means this Agreement, the O&M Agreement, the Project Administration and Development Services Agreement, the Power Purchase Agreements, the Guarantee, the Developer Agreement, the Turbine Supply Agreements, the Capital Contribution Agreement, the Assignment Documents and the Shareholder Loan Documents.

Turbine Contribution - means any Capital Contribution consisting of a contribution of a Wind Turbine to the Company pursuant to Section 4.01(a)(i) or, with the approval of the Management Committee, Section 4.02 in connection with Little Xxxxxxx Two.

Turbine Note – means any promissory note executed by a Sub in favor of XxXxxx, Inc. pursuant to which such Sub agrees to repay XxXxxx, Inc. for the LP1 Shareholder Loan or the LP2 Shareholder Loan.

Limited Liability Company Agreement of

XxXxxx SWI Wind Farms, LLC

Turbine Supply Agreements – means each of the Turbine Supply Agreements between XxXxxx, Inc., (or another turbine manufacturer) and a Sub for the supply of wind turbines, each of the Service Agreements between XxXxxx, Inc. (or such other turbine manufacturer) and a Sub for the service and maintenance of such wind turbines, and each of the Warranty Agreements between XxXxxx, Inc. (or such other turbine manufacturer) and a Sub for the warranty of such wind turbines. The Turbine Supply Agreements with XxXxxx, Inc. shall be substantially in the form attached hereto as Exhibit G.

Uniform Commercial Code – means the Uniform Commercial Code as in effect from time to time in the State of Delaware.

United States Person – has the meaning set forth in Section 7701(a)(30) of the Code.

Vital Matter – has the meaning set forth in Section 10.01(a)(i)(E).

Voting Ratio – means, (a) before the Flip Point, in the case of XxXxxx, 51%, and in the case of Higher Perpetual, 49% and (b) from and after the Flip Point, in the case of each Member, 50%, minus any net decrease or plus any net increase, as the case may be, in such Member’s aggregate net Sharing Ratio Offset, subject to any further adjustment set forth in this Agreement.

Wind Farms – means one or more wind farms to be developed, owned, financed, refinanced and operated or caused to be operated, each in one or more phases, by the Company and the Subs.

Wind Turbine – means any wind turbine provided to the Company under the Turbine Supply Agreements.

Other terms defined herein have the meanings so given them.

1.02 Construction. Unless the context requires otherwise: (a) the gender (or lack of gender) of all words used in this Agreement includes the masculine, feminine, and neuter; (b) words used or defined in the singular include the plural and vice versa; (c) references to Articles and Sections refer to Articles and Sections of this Agreement; (d) references to an Exhibit refer to the Exhibit attached to this Agreement, which is made a part hereof for all purposes; (e) references to Laws refer to such Laws as they may be amended from time to time, and references to particular provisions of a Law include any corresponding provisions of any succeeding Law; (f) terms defined in this Agreement are used throughout this Agreement and in any Exhibits hereto as so defined; and (g) references to money or the sign “$” refer to legal currency of the United States of America

1.03 Determination of Fair Market Value. Whenever required by this Agreement, unless otherwise determined by the Management Committee, fair market value shall be determined by an independent third party appraiser mutually agreed upon by the Members. If the Members cannot agree upon such third party appraiser, then each Member shall choose a third party appraiser, and such appraisers shall choose an independent appraiser who shall determine the fair market value. Any determination of fair market value made in accordance with this Section 1.03 shall be final and binding on the Members and the Company.

Limited Liability Company Agreement of

XxXxxx SWI Wind Farms, LLC

ARTICLE II

ORGANIZATION

2.01 Formation. The Company was formed as a Delaware limited liability company on the Formation Date by the filing of the Delaware Certificate with the Delaware Secretary of State.

2.02 Name. The name of the Company is XxXxxx SWI Wind Farms, LLC, and all Company business must be conducted in that name or such other names that comply with Law as the Members may select.

2.03 Registered Office; Registered Agent; Principal Office in the United States; Other Offices. The registered office of the Company required by the Act to be maintained in the State of Delaware shall be the office of the registered agent named in the Delaware Certificate or such other office (which need not be a place of business of the Company) as the Management Committee may designate in the manner provided by Law. The registered agent of the Company in the State of Delaware shall be the registered agent named in the Delaware Certificate or such other Person or Persons as the Management Committee may designate in the manner provided by Law. The principal office of the Company in the United States shall be at such place as the Management Committee may designate, which need not be in the State of Delaware, and the Company shall maintain records there or such other place as the Management Committee shall designate and shall keep the street address of such principal office at the registered office of the Company in the State of Delaware. The Company may have such other offices as the Management Committee may designate. The Management Committee shall notify each Member of any change in the registered office, the registered agent, or the street address of the principal office of the Company.

2.04 Purposes. The purposes of the Company shall be and are limited to (a) engaging in the acquisition, construction, lease, ownership and sale, and the operation, management, maintenance, financing and refinancing the Wind Farms for the purpose of generating a profit; (b) entering into, complying with and performing the various agreements evidencing, necessitated by or arising in connection with the Wind Farms including this Agreement, the Transaction Documents to which it may be a party, and all incidental, ancillary, necessary or appropriate documents related thereto; (c) engaging in the purchase, ownership, use, transmission, marketing and sale of any input, output, rights, credit, attribute or allowance associated therewith; (d) exercising any power and taking any action as are considered necessary or desirable in connection with the administration of the Company’s affairs, the Wind Farms, including the maintaining of records, the engagement of professional advisors and consultants, the establishment of bank accounts, and prosecution or defense of legal actions; (e) managing the Subs; and (f) taking all actions incidental, ancillary, necessary or appropriate to the foregoing that may be engaged in by a limited liability company formed under the Act.

Limited Liability Company Agreement of

XxXxxx SWI Wind Farms, LLC

2.05 Foreign Qualification. The Company shall qualify as a foreign limited liability company in Texas. Prior to the Company’s conducting business in any jurisdiction other than Delaware or Texas, the Company shall comply, to the extent procedures are available and those matters are reasonably within the control of the Company, with all requirements necessary to qualify the Company as a foreign limited liability company in that jurisdiction. At the request of the Company, each Member shall execute, acknowledge, swear to, and deliver all certificates and other instruments conforming with this Agreement that are necessary or appropriate to qualify, continue, and terminate the Company as a foreign limited liability company in all such jurisdictions in which the Company may conduct business.

2.06 Term. The period of existence of the Company (the “Term”) commenced on the Formation Date and shall end at such time as a certificate of cancellation is filed with the Secretary of State of Delaware in accordance with Section 9.03.

2.07 No State-Law Partnership. The Members intend that the Company not be a partnership (including a limited partnership) or joint venture, and that no Member be a partner or joint venturer of any other Member, for any purposes other than federal income, and applicable state and local, tax purposes, and this Agreement may not be construed to suggest otherwise.

2.08 Certificates of Membership Interest; Applicability of Article 8 of UCC. The Members hereby specify, acknowledge and agree that the Membership Interests are securities governed by Article 8 and all other applicable provisions of the Uniform Commercial Code, and, pursuant to the terms of Section 8-103(c) of the Uniform Commercial Code, all Membership Interests shall be “securities” for all purposes under Article 8 and under all other applicable provisions of the Uniform Commercial Code. All Membership Interests shall be represented by certificates (“Certificates”) substantially in the form attached hereto as Exhibit C, shall be recorded in a register thereof maintained by the Company, and shall be subject to such rules for the issuance thereof in compliance with this Agreement, as the Management Committee may from time to time determine.

2.09 EWG Status and Market-Based Rate Authorization. No Party shall take any action, or refrain from taking any necessary action, that would have the effect of preventing the Company from obtaining EWG status or preventing the Company from continuing to qualify as an EWG, as that term is defined in Sections 32(a)-(d) of the Public Utility Holding Company Act of 1935 and pursuant to the requirements of 18 C.F.R. § 366.7.

2.10 Credit Support Obligation. Each Member shall, and shall cause its Affiliates to, provide such Credit Support and related consents to assignments as shall be required by the Management Committee.

2.11 Wind Turbines. With respect to any Wind Farm to be developed and constructed by the Company or the Subs, unless the Management Committee unanimously decides otherwise, XxXxxx shall cause XxXxxx, Inc.:

(a) to enter into any turbine supply agreements, warranty agreement, and operations and maintenance arrangement at market rates, except as set forth in Section 2.11(b); and

Limited Liability Company Agreement of

XxXxxx SWI Wind Farms, LLC

(b) to provide all turbines to be purchased by the Company and the Subs at the following prices:

(i) for the first ten (10) MWs of turbines, a total price of thirteen million eight hundred seventy-five thousand dollars ($13,875,000);

(ii) for the next ten (10) MWs of turbines, a total price of fourteen million three hundred seventy-five thousand dollars ($14,375,000); and

(iii) for all additional turbines, actual cost plus ten percent (10%).

; provided, however, if the Company or the Subs have not provided notice to proceed under any Turbine Supply Agreements within 36 months after the Effective Date, XxXxxx shall be released from any obligation to cause XxXxxx, Inc. to deliver such turbines to the Subs by delivering written notice to the Management Committee that XxXxxx elects to be released from such delivery obligation.

ARTICLE III

MEMBERSHIP; DISPOSITIONS OF INTERESTS

3.01 Members, Contribution Percentages, Voting Ratio and Sharing Ratio.

(a) As of the Effective Date, Higher Perpetual and XxXxxx are each hereby admitted as Members, and each is hereby accorded the following respective Membership Interests. Each of the Contribution Percentages and Voting Ratios as of the Effective Date is forty-nine percent (49%) to Higher Perpetual and fifty-one percent (51%) to DeWind.

(b) Upon the occurrence of the Flip Point, the Contribution Percentages, the Voting Ratio and the Sharing Ratio shall become fifty percent (50%) to Higher Perpetual and fifty percent (50%) to XxXxxx, subject to adjustment as set forth in the definitions of Contribution Percentages, Voting Ratio and Sharing Ratio.

(c) The Contribution Percentages, Voting Ratios and Sharing Ratios of the Members shall also be adjusted as set forth in this Agreement.

3.02 Representations, Warranties and Covenants. Each Member hereby represents, warrants and covenants to the Company and to each other Member that the following statements are true and correct as of the Effective Date (and, in the case of Sections 3.02(e), (f) and (g), shall remain true and correct for so long as it is a Member):

(a) such Member is duly formed, validly existing and (if applicable) in good standing under the Law of the jurisdiction of its formation as described in the introductory paragraph; if required by applicable Law, that Member is duly qualified and in good standing in the jurisdiction of its principal place of business, if different from its jurisdiction of incorporation, organization or formation; and that Member has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder, and all necessary actions by the board of directors, shareholders, managers, members, partners, trustees, beneficiaries, or other applicable Persons necessary for the due authorization, execution, delivery, and performance of this Agreement by that Member have been duly taken;

Limited Liability Company Agreement of

XxXxxx SWI Wind Farms, LLC

(b) such Member has duly executed and delivered this Agreement and the other documents contemplated herein, and they constitute the legal, valid and binding obligation of that Member enforceable against it in accordance with their terms (except as may be limited by Bankruptcy, insolvency or similar Laws of general application and by the effect of general principles of equity, regardless of whether considered at law or in equity);

(c) such Member’s authorization, execution, delivery and performance of this Agreement do not (i) conflict with, or result in a breach, default or violation of, (A) the organizational documents of such Member, (B) any contract or agreement to which that Member is a party, or (C) any Law to which that Member is subject; or (ii) require any consent, approval or authorization from, filing or registration with, or notice to, any Governmental Authority or any third party person, unless such requirement has already been satisfied;

(d) such Member is not required to register as an “investment company” within the meaning of the Investment Company Act;

(e) such Member is neither a foreign partner within the meaning of Section 1446 of the Code and the Treasury Regulations promulgated thereunder nor a disregarded entity owned by such a foreign partner, and such Member therefore is not subject to withholding under Section 1446 of the Code;

(f) such Member understands that it may not sell or transfer its Membership Interest, except as specifically provided in this Agreement;

(g) such Member acknowledges that it has no right to require the Company to register or qualify the offering and sale of its Membership Interest under the Securities Act or any applicable state securities Laws;

(h) in the case of any Member or a Person to which any such Member Disposes of any Membership Interest in accordance with the provisions of this Agreement:

(i) such Member or Person is acquiring its Membership Interest for its own account and not with a view to the resale or distribution of all or any part thereof in violation of applicable securities Laws; it understands that the Membership Interest being acquired by it has not been registered under the Securities Act or applicable state securities Laws and, therefore, it will be necessary for it to continue to hold the Membership Interest being acquired by it and continue to bear the economic risk of the investment therein unless and until the offering and sale of such Membership Interest by it is registered or qualified under the Securities Act and applicable state securities Laws or an exemption from registration or qualification is available;

(ii) such Member or Person has carefully reviewed this Agreement and any other relevant information furnished to it in writing by the Management Committee, and it understands the risks of, and other considerations relating to, an investment in its Membership Interest;

Limited Liability Company Agreement of

XxXxxx SWI Wind Farms, LLC

(iii) such Member or Person has such knowledge and experience (based on actual participation) in financial and business matters that it is capable of evaluating the merits and risks of an investment in the Membership Interest and of making an informed investment decision;

(iv) such Member or Person understands that any information furnished to it concerning the federal income tax consequences arising from an investment in the Company is necessarily general in nature, and the specific tax consequences to it of an investment in the Company will depend on its individual circumstances, and it affirms that it has been advised to seek appropriate legal counsel with respect to such tax consequences; and

(v) such Member or Person understands that the Members and the Company are relying on its representations and warranties in selling the Membership Interest or recognizing its transfer without registration under the securities Laws.

3.03 Dispositions of Membership Interests.

(a) General Prohibition on Dispositions. Neither a Member nor any permitted assignee of a Member shall make or suffer to be made any Disposition or encumbrance of all or any part of its Membership Interest, whether now owned or hereafter acquired, except in accordance with the terms of this Agreement and any purported Disposition or encumbrance not made in compliance with this Agreement shall be void and of no force and effect. The restrictions on transfers in this Article III shall apply with equal force to transfers between or among the Members. The Members agree that a breach or threatened breach of the provisions of this Section 3.03 may cause irreparable injury to the Company and to the other Members for which monetary damages (or other remedy at law) are inadequate in view of (A) the complexities and uncertainties in measuring the actual damages that would be sustained by reason of the failure of a Member to comply with such provision and (B) the uniqueness of the Company’s business and the relationship among the Members. Accordingly, the Members agree that the Company and each other Member shall be entitled, in addition to other remedies that may be available to them, to immediate injunctive relief from any breach of any of the provisions of this Section 3.03 and specific performance without a requirement to post any bond or other financial assurance with respect thereto.

(b) Right of First Offer

(i) If at any time after the Flip Point a Member desires to transfer any of its Membership Interest (other than a transfer which would be considered a Permitted Disposition hereunder), such Member (the “Disposing Member”) shall first give written notice (a “Disposition Notice”) to that effect to the Company and each other Member containing (i) the Membership Interests proposed to be transferred (the “Offered Interest”), and (ii) the purchase price and all other material terms (the “First Offer Price”) which the Disposing Member proposes to be paid for the Offered Interest.

Limited Liability Company Agreement of

XxXxxx SWI Wind Farms, LLC

(ii) The Company shall have a period of fourteen (14) days following receipt of the Disposition Notice (the “Company Response Period”) to accept the offer made in the Disposition Notice to purchase all or a portion of the Offered Interest at the First Offer Price by delivering written notice of acceptance to the Disposing Member and each other Member. The Company’s decision to accept or reject the offer to purchase all or a portion of the Offered Interest shall be made by the Management Committee, without the participation of the Disposing Member. If the Company does not elect to purchase all of the Offered Interest within the Company Response Period, the other Members shall have a period of seven (7) days immediately following the Company Response Period (the “Members Response Period”) to accept, on a pro rata basis and by written notice to the Disposing Member, the offer made in the Disposition Notice to purchase all or the remainder of the Offered Interest.

(iii) If the Company elects to purchase all or a portion of the Offered Interest, the closing of the sale of the Offered Interest (or the relevant portion thereof) shall, subject to Section 3.03(b)(v), be held at the Company’s principal office on a date to be specified by the Company which is not less than ten (10) days nor more than sixty (60) days after the end of the Company Response Period. At the closing, the Company shall deliver the consideration in accordance with the terms of the offer set forth in the Disposition Notice, and the Disposing Member shall transfer the Offered Interest (or the relevant portion thereof) to the Company, free and clear of all liens, claims and encumbrances.

(iv) If any of the other Members elects to purchase all or the remaining portion of the Offered Interest, the closing of the sale of the Offered Interest (or the relevant portion thereof) shall, subject to Section 3.03(b)(v), be held at the Company’s principal office on a date to be agreed and specified by such other Members, which date shall not be less than ten (10) days nor more than sixty (60) days after the end of the Members Response Period. At the closing, such other Members shall deliver the consideration in accordance with the terms of the offer set forth in the Disposition Notice and the Disposing Member shall deliver the Offered Interest (or the relevant portion thereof) to such other Members in accordance with their rights to share pro rata in such purchase, duly endorsed for transfer, free and clear of all liens, claims and encumbrances.

(v) If, at the end of the Members Response Period, the Company and Members together have not elected to purchase all of the Offered Interest, then (i) the election of all parties pursuant to Section 3.03(b)(ii), 3.03(b)(iii), and 3.03(b)(iv) shall be null and void, and (ii) subject to Sections 3.03(c) and 3.03(d), the Disposing Member shall be entitled for a period of forty-five (45) days, beginning the day after the expiration of the Members Response Period, to enter into a definitive agreement to sell all of the Offered Interest at a price not lower than the First Offer Price (or for noncash consideration with a fair market value, as determined by the Management Committee in its reasonable discretion after consultation with the Disposing Member, at least equal to, together with any cash consideration, the First Offer Price) and on terms not more favorable to the transferee than were contained in the Disposition Notice, which sale shall be closed no later than ninety (90) days after the expiration of the Members Response Period. Promptly after any sale pursuant to this Section 3.03(b), the Disposing Member shall notify the Company of the consummation thereof and shall furnish such evidence of the completion of such sale and of the terms thereof as the Company may request.

Limited Liability Company Agreement of

XxXxxx SWI Wind Farms, LLC

(vi) If the Disposing Member has not entered into a definitive agreement to sell the Offered Interests within forty-five (45) days following the expiration of the Members Response Period or completed the sale of the Offered Interest within ninety (90) days following the expiration of the Members Response Period, the Disposing Member shall no longer be permitted to sell any of such Offered Interest without again fully complying with the provisions of this Section 3.03(b) and any other provision of this Agreement related to the transfer of a Membership Interest.

(i) If at any time after the Flip Point and following compliance with Section 3.03(b), a Disposing Member desires to sell any of its Membership Interests that, individually or when aggregated with other sales by the Disposing Member since the Effective Date of this Agreement, represents ten percent (10%) or more of the aggregate outstanding Membership Interests of the Company, to any Person (other than a sale which would be considered a Permitted Disposition hereunder), then at least forty-five (45) days prior to the proposed date of consummation of such sale (a “Sale”), the Disposing Member shall provide written notice (the “Tag Along Notice”) of the proposed Sale to the non-Disposing Members. The Tag Along Notice shall include:

(A) the principal terms of the proposed Sale, including (A) the Membership Interest to be purchased from the Disposing Member, (B) the class and series of such Membership Interest to be purchased, (C) the percentage such Membership Interest represents of the total Membership Interest owned by the Disposing Member (the “Sale Percentage”), and (D) the purchase price to be paid by and the name and address of the proposed purchaser (the “Tag Along Purchaser”); and

(B) an offer by the Disposing Member, in respect of each non-Disposing Member and on the same terms and conditions as the Disposing Member proposes to sell its Membership Interest, to include in the Sale to the Tag Along Purchaser a percentage of the total Membership Interest then held by each such non-Disposing Member not to exceed the Sale Percentage.

(ii) Each non-Disposing Member desiring to accept the offer contained in the Tag Along Notice (each a “Participating Seller”) shall send a written commitment to the Disposing Member not later than thirty (30) days after the effective date of the Tag Along Notice specifying, subject to Section 3.03(c)(i)(B), the Membership Interests that such Participating Seller desires to have included in the Sale. Each non-Disposing Member who has not so accepted such offer shall be deemed to have waived all of its rights with respect to the Sale, and the Disposing Member and the Participating Sellers, if any, shall thereafter be free to sell to the Tag Along Purchaser at a price no greater than the purchase price set forth in the Tag Along Notice and otherwise on terms not more favorable in any material respect to them than those set forth in the Tag Along Notice.

Limited Liability Company Agreement of

XxXxxx SWI Wind Farms, LLC

(iii) The acceptance of such offer by each Participating Seller shall be irrevocable except as hereinafter provided and each such Participating Seller shall be bound and obligated to sell, concurrently with the sale by the Disposing Member and on the same terms and conditions specified in the Tag Along Notice, the Membership Interests so agreed in the written commitment given pursuant to Section 3.03(c)(ii). In the event the Disposing Member shall be unable to arrange the sale of all the Membership Interests which the Disposing Member and the Participating Sellers desire to have included in the Sale, the Membership Interests to be sold in the Sale by the Disposing Member and the Participating Sellers shall be reduced on a pro rata basis.

(iv) If at the end of the ninetieth (90th) day following the effective date of the Tag Along Notice the Disposing Member has not completed the Sale as provided in the foregoing provisions of this Section 3.03(c), each Participating Seller shall be released from its obligations under its written commitment given pursuant to Section 3.03(c)(ii), the Tag Along Notice shall be null and void, and it shall be necessary for a new Tag Along Notice to be furnished and the provisions of this Section 3.03(c) separately complied with in order to consummate any such Sale.

(d) Drag Along.

(i) Each Member hereby agrees, if requested after the Flip Point by one or more Members holding an aggregate percentage of the Company’s total Membership Interests exceeding thirty-four percent (34%), or such percentage as agreed by all Members (whether one or more, a “Drag Along Seller”), to participate in a bona fide, arm’s length sale for cash (a “Drag Along Sale”) of 100% of the Membership Interests of the Company to any Person not an Affiliate of the Drag Along Seller and with whom the Drag Along Seller has no familial relationship by blood or by marriage or any direct or indirect affiliation, either through ownership entities (other than public companies) or otherwise (the “Drag Along Purchaser”) in the manner and on the terms set forth in this Section 3.03(d).

(ii) If the Drag Along Seller elects to exercise its rights under this Section 3.03(d), a notice (the “Drag Along Notice”) shall be furnished by the Drag Along Seller to the non-Disposing Members. The Drag Along Notice shall set forth the principal terms of the Drag Along Sale, the purchase price, and the name and address of the Drag Along Purchaser. If the Drag Along Seller proceeds with the Drag Along Purchaser to closing, the non-Disposing Members shall be bound and obligated to sell all of their respective Membership Interests to the Drag Along Purchaser on the same terms and conditions as those under which the Drag Along Seller sold its Membership Interest. If at the end of the sixtieth (60th) day following the effective date of the Drag Along Notice the Drag Along Seller has not completed the Drag Along Sale, the non-Disposing Members shall be released from their obligations under the Drag Along Notice, the Drag Along Notice shall be null and void, and it shall be necessary for a new Drag Along Notice to be furnished and the provisions of this Section 3.03(d) separately complied with in order to consummate any such Drag Along Sale.

Limited Liability Company Agreement of

XxXxxx SWI Wind Farms, LLC

(e) Indirect Dispositions. The change in Control of any Member, other than a Member who is a natural person, shall be deemed a Disposition of the Membership Interest owned by such Member. The sale, assignment or transfer by a Member of all or any part of the economic interest associated with such Member’s Membership Interest (including the interest in the profits or capital appreciation of the Company and the right to receive distributions from the Company), other than to such Member’s Affiliate, shall be deemed a Disposition of the Membership Interest owned by such Member. In either such event, the Membership Interest owned by such Member must be offered to the other non-transferring Members in accordance with Sections 3.03(b), 3.03(c), and 3.03(d).

(f) Admission of Assignee as a Member. An Assignee has the right to be admitted to the Company as a Member, with the Membership Interest so transferred to such Assignee, only if (i) the Disposing Member making the Disposition has granted the Assignee all of the Disposing Member’s Membership Interest and (ii) such Disposition is effected in strict compliance with this Section 3.03.

(g) Requirements Applicable to All Dispositions and Admissions. Any Disposition of any Membership Interest, including a Permitted Disposition, and any admission of an Assignee as a Member shall be subject to the following requirements, and such Disposition (and admission, if applicable) shall not be effective unless such requirements are complied with; provided, however, that the non-Disposing Members, in their sole and absolute discretion, may waive any of the following requirements:

(i) Disposition Documents. The following documents must be delivered to the non-Disposing Members:

(A) Disposition Instrument. A copy of the instrument pursuant to which the Disposition is effected.

(B) Ratification of this Agreement. An instrument, executed by the Disposing Member and its Assignee, containing the following information and agreements, to the extent they are not contained in the instrument described in Section 3.03(g)(i)(A): (I) the notice address of the Assignee; (II) the Assignee’s ratification of this Agreement and agreement to be bound by it, and its affirmation that the representations and warranties in Section 3.02 are true and correct with respect to it; and (III) representations and warranties by the Disposing Member and its Assignee that the Disposition and admission are being made in accordance with all applicable Laws.

(C) Securities Law Opinion. To the extent required by this Section 3.03(g)(i)(C), a Securities Law Opinion (as defined below). The Membership Interests governed by this Agreement have not been registered with the Securities and Exchange Commission under the Securities Act of 1933, as amended, or the state securities laws of Delaware or any other state. Without such registration, no Member may effect or suffer to occur a Disposition of all or any part of its Membership Interest (other than to an Affiliate provided such transfer does not violate any applicable securities laws) without delivery to the Non-Disposing Members of an opinion of counsel (“Securities Law Opinion”) satisfactory to the Non-Disposing Members that such registration is not required for such transfer and/or submission to the Non-Disposing Members of such other evidence as may be reasonably satisfactory to the Non-Disposing Members to the effect that any transfer will not be in violation of the Securities Act of 1933, as amended, applicable state securities laws, or any rule or regulation promulgated thereunder.

Limited Liability Company Agreement of

XxXxxx SWI Wind Farms, LLC

(D) Tax Consequences. A favorable opinion of nationally recognized tax counsel to the effect that:

(I) Termination. Such Disposition would not result in the Company’s termination within the meaning of Section 708 of the Code, provided, however, that an opinion under this Section 3.03(g)(i)(D)(I) shall not be required if the Disposing Member indemnifies each other Member for any adverse tax consequences caused by the Disposition to such other Member, with such Credit Support as reasonably acceptable to the non-Disposing Members.

(II) Entity Classification. Such Disposition will not cause the Company to be classified as an entity other than a partnership (including a publicly traded partnership taxable as a corporation) for purposes of the Code.

(III) PTCs. If such Disposition would occur prior to the end of the PTC Period, such Disposition will not result in the disallowance or reduction of PTCs with respect to income of the Company or Subs from sales of power thereafter accruing to the Company.

(ii) Payment of Expenses. The Disposing Member and its Assignee shall pay, or reimburse the Company for, all reasonable costs and expenses incurred by the Company in connection with the Disposition and admission, including the reasonable legal fees incurred in connection with the legal opinion referred to in Section 3.03(g)(i)(C), on or before the tenth (10th) Day after the receipt by that Person of the Company’s invoice for the amount due.

(iii) No Release. No Disposition of a Membership Interest shall effect a release of the Disposing Member from any liabilities to the Company or the other Members arising from events occurring prior to the Disposition.

(iv) EWG. No Disposition of a Membership Interest shall result in the Wind Farms ceasing to be an “exempt wholesale generator” as defined in the Public Utility Holding Company Act of 2005.

(v) No Default Under Material Agreements. The Disposition shall not result in a default under, breach of any material obligation contained in, or cause the failure of a material condition contained in, any material agreement (including any Financing Document) to which the Company is a party, unless a consent to or waiver of such default, breach or failure of condition has been obtained from the other party or parties to such agreement.

Limited Liability Company Agreement of

XxXxxx SWI Wind Farms, LLC

(h) Permitted Dispositions. The provisions of this Section 3.03 (except for Section 3.03(g)) shall not apply to a Permitted Disposition.

(i) XxXxxx Dispositions.

Notwithstanding anything in this Agreement but subject to Section 6.03(c)(x), prior to the Flip Point, XxXxxx shall have the exclusive right to (x) Dispose, Encumber, or otherwise transfer or assign all or any part of its Membership Interest, directly or indirectly, and (y) to require all other Members to participate in any Disposal, Encumbrance, transfer or assignment, directly or indirectly, (each a “XxXxxx Disposition”) of all or any part of the Membership Interests of the Company to any Person not an Affiliate of XxXxxx and with whom XxXxxx has no familial relationship by blood or by marriage or any direct or indirect affiliation, either through ownership entities (other than public companies) or otherwise. In the event of a XxXxxx Disposition, all other Members shall be bound and obligated to Dispose Encumber transfer or assign their respective Membership Interests (or indirect interests therein) in such XxXxxx Disposition on terms and conditions substantially no less favorable to such Person, taken as a whole, as those under which XxXxxx Disposes, Encumbers, transfers or assigns its Membership Interest. Each Member and its Affiliates shall amend, restrict, restate or otherwise modify the terms of the Transaction Documents in connection with or to facilitate such Disposal, Encumbrance, transfer or assignment.

(i) The provisions of Article III (except for this Section 3.03(i)) shall not apply to a XxXxxx Disposition.

3.04 Options and Other Encumbrances. A Member shall not Encumber such Member’s Membership Interest and shall not permit the creation of an Encumbrance on any equity interest of a Person that owns an equity interest, directly or indirectly, in a Member, including any collateral assignment in favor of any lender (or agent therefor), in connection with a financing, other than a pledge by Perpetual in favor of Higher Power on its right to receive distributions from Higher Perpetual to secure Perpetual’s obligation to pay Developer Fees pursuant to Paragraph 3(a) of the Developer Agreement and Higher Perpetual’s obligation pursuant to Paragraph 5(a) of the Developer Agreement. At any time Developer Fees are due to Higher Power but remain unpaid, Holdco shall pay any distributions made in accordance with Section 5.01 or 9.02 payable to Higher Perpetual to Higher Power and Higher Perpetual consents to such payment to Higher Power.

3.05 Access to Information. Each Member shall be entitled to receive any information that it may reasonably request concerning the Company or the Subs; provided, however, that this Section 3.05 shall not obligate the Company or any Member to create any information that does not already exist at the time of such request (other than to convert existing information from one medium to another, such as providing a printout of information that is stored in a computer database). Each Member shall also have the right, upon reasonable notice, and at all times during usual business hours to inspect the assets of the Company and to audit, examine and make copies of the books of account and other records of the Company. Such right may be exercised through any agent or employee of such Member designated in writing by it or by an independent public accountant, attorney or other consultant so designated. The Member making the request shall bear all costs and expenses incurred in any inspection, examination or audit made on such Member’s behalf. Confidential Information obtained pursuant to this Section 3.05 shall be subject to the provisions of Section 3.06.

Limited Liability Company Agreement of

XxXxxx SWI Wind Farms, LLC

3.06 Confidential Information.

(a) Each Member shall keep the Confidential Information strictly confidential and not sell, trade, publish or otherwise disclose all or part of the same to any Person in any manner whatsoever without the other Member’s prior written consent, except as expressly permitted in this Agreement. Each Member shall have the right to disclose the Confidential Information without prior written consent of the other Member:

(i) to its directors, officers, employees, advisors, counsel, public accountants, agents, and representatives (“advisors”) and those of its Affiliates; provided that such Member guarantees their adherence to the terms of this Section 3.06; and provided, further, that prior to making disclosure of Confidential Information to its advisors who are not directors, officers or employees of such Member or its Affiliates, such Member shall obtain a written undertaking of confidentiality not less restrictive than that set forth in this Section 3.06 from each such advisor (except in the case of outside legal counsel the Member shall only be required to procure that such legal counsel is bound by a professional legal duty of confidentiality); and

(ii) to the advisors and subcontractors of the Company or of such Member and its Affiliates when such Member is acting on behalf of the Company pursuant to, and with the scope of, any Transaction Document or a decision of the Management Committee;

(iii) to the extent that (A) disclosure is required by any Law, including the rules and regulations of any stock exchange or (B) any such Member or any Affiliate thereof or its and their advisors may have received a subpoena or other written demand under color of legal right for such information, such Member or such Affiliate or advisor may disclose such information; provided that, in each case, such Member shall first, as soon as practicable upon becoming aware of such requirement or receipt of such demand, furnish a copy thereof to the other Members and, if practicable so long as such Member shall not be in violation of such requirement, subpoena or demand or likely become liable to any penalty or sanctions thereunder, afford the other Members reasonable opportunity, at any other Member’s cost and expense, to prevent or limit such disclosure or to obtain a protective order or other reasonably satisfactory assurance of confidential treatment for the information required to be disclosed and reasonably cooperate with the other Member in connection therewith; and provided, further, that, in any case, such Member or such Affiliate or advisor shall only disclose that portion of the Confidential Information that, in the opinion of its legal counsel, is required to be disclosed and shall use its commercially reasonable efforts to ensure further confidential treatment of the information so disclosed;

(iv) to lenders, potential lenders or other Persons providing financing to the Company or such Member or its Affiliates related to the Company, the Subs or the Wind Farms if, prior to disclosure, such Persons have executed an undertaking of confidentiality not less restrictive than that set forth in this Section 3.06;

Limited Liability Company Agreement of

XxXxxx SWI Wind Farms, LLC

(v) to bona fide potential purchasers of direct or indirect equity interests in the Company or such Member or its Affiliates if, prior to disclosure, such Persons have executed an undertaking of confidentiality not less restrictive than that set forth in this Section 3.06;

(vi) to a nationally recognized credit rating agency; and

(vii) to a court of competent jurisdiction or an arbitrator to the extent necessary for the exercise of its rights and remedies under this Agreement.

(b) The Members agree that no adequate remedy at law exists for a breach or threatened breach of any of the provisions of this Section 3.06, the continuation of which unremedied will cause the Company and the other Members to suffer irreparable harm. Accordingly, the Members agree that the Company and the other Members shall be entitled, in addition to other remedies that may be available to them, to immediate injunctive relief from any breach of any of the provisions of this Section 3.06 and to specific performance of their rights hereunder without a requirement to post any bond or other financial assurance with respect thereto, as well as to any other remedies available at law or in equity.

(c) The obligations of the Members under this Section 3.06 shall terminate on the fifth anniversary of the end of the Term.

3.07 Liability to Third Parties. No Member shall be personally liable for the debts, obligations or any other liabilities of the Company of whatever nature, whether arising in contract, tort or otherwise, solely by reason of being a Member.

3.08 Withdrawal. A Member does not have the right or power to resign from the Company as a Member. For purposes of this Section 3.08, “resign” means an election to withdraw or resign as a Member of the Company which would compel the Company to liquidate the withdrawing Member’s Membership Interest and distribute to such withdrawing Member the fair value thereof in accordance with Section 18-604 of the Act.

ARTICLE IV

CAPITAL CONTRIBUTIONS

4.01 Initial Funding Plan for Little Xxxxxxx One and Initial Capital Contributions.

(a) Initial Funding Plan for Little Xxxxxxx One. The Management Committee shall establish the Approved Project Costs for Little Xxxxxxx One during the Screening Period and shall make any further adjustments thereafter, as necessary. The Funding Plan for Little Xxxxxxx One shall consist of the following:

(i) at XxXxxx’x option in its sole discretion, the LP1 Shareholder Loan or a Turbine Contribution for Little Xxxxxxx One that will be treated as a Capital Contribution in the amount of the agreed value of $13,875,000, or a combination thereof in an aggregate amount of $13,875,000;

Limited Liability Company Agreement of

XxXxxx SWI Wind Farms, LLC

(ii) the portions of the XxXxxx Capital Contribution and the Higher Perpetual Capital Contribution that are allocable to Little Xxxxxxx One, which shall be contributed by the Company to LP1 Sub to the extent specified in the Capital Contribution Agreement; and

(iii) an additional amount of Capital Contributions that are allocable to Little Xxxxxxx One as determined by XxXxxx in its sole discretion (the “LP1 Contributions”), to be contributed by XxXxxx to the Company in accordance with Section 4.02 and which, thereafter, shall be contributed by the Company to LP1 Sub as equity in such Sub.

(b) XxXxxx Capital Contribution. As of the Effective Date, XxXxxx has been credited with having made that portion of the XxXxxx Capital Contribution of XxXxxx Contributed Assets in amounts specified in Exhibit A attached hereto. By the execution and delivery of the Capital Contribution Agreement and such other transfer documents or instruments acceptable to the other Members and sufficient to convey, assign and transfer the assets constituting such portion of the XxXxxx Capital Contribution to the Company. XxXxxx shall be credited with additional Capital Contributions in respect of the XxXxxx Contributed Assets as, when and to the extent such additional Capital Contributions are made, and then in the amount of such Capital Contributions, it being agreed that XxXxxx shall have no obligation to make Capital Contributions after the Effective Date unless the Company and/or the Subs receive additional financing from sources other than the existing Members and their affiliates on terms approved by the Management Committee and thereafter the Administrator or the Management Committee shall issue a Capital Call for such Capital Contribution from XxXxxx.

(c) Higher Perpetual Capital Contribution. As of the Effective Date, Higher Perpetual has been credited with having made the Higher Perpetual Capital Contribution of Higher Perpetual Contributed Assets by the execution and delivery of the Capital Contribution Agreement and such other transfer documents or instruments acceptable to the other Members and sufficient to convey, assign and transfer the assets constituting such Higher Perpetual Capital Contribution to the Company. The Parties agree that the value attributed to the Higher Perpetual Contributed Assets assumes (1) that Higher Perpetual and Higher Power shall perform in full its obligations under the Transaction Documents, including Higher Power’s obligations under Paragraph 11(c) of the Developer Agreement without giving effect to the best efforts standard described therein, (2) that Perpetual shall perform for the Company on behalf of Higher Perpetual its obligations under the Transaction Documents, including the following obligations, unless the Management Committee shall otherwise direct and subject to the overall guidance and approval of the Management Committee, (3) that the representations and warranties of Higher Perpetual, Higher Power and Perpetual contained in the Transaction Documents shall be true and correct when made or deemed made, and (4) Perpetual shall pay the Developer Fees as they become due (the “Assumptions”):

(i) Prepare, submit, obtain all other permit applications required to design, construct and operate the Wind Farms;

Limited Liability Company Agreement of

XxXxxx SWI Wind Farms, LLC

(ii) Obtain FAA, applicable environmental and authority to construct permits;

(iii) Obtain favorable tax abatement and value limitation decisions under Texas Tax Code Section 312 and 313 for not less than 7 years;

(iv) Design and obtain required approvals of any transmission and interconnect facilities and fully executed interconnection and transmission agreements;

(v) Coordinate with ERCOT, Southwest Power Pool, Federal Energy Regulatory Commission, and assure compliance with Texas or other applicable state, county and municipal regulatory agencies;

(vi) Develop market opportunities for the sale of the electricity renewable energy credits and other environmental attributes to be produced by the Wind Farms and offered for sale by the Subs and prepare and obtain binding letters of intent or term sheets and take or pay Power Purchase Agreements for each Wind Farm other than Little Xxxxxxx One and Little Xxxxxxx Two sufficient for Project Financiers to support financing;

(vii) Develop plan design, BOP specifications, BOP contract negotiations and facilitate BOP contract administration;

(viii) Hiring of owner’s engineer; and

(ix) Preparing the initial designs and specifications of and siting of equipment to achieve the budgets adopted by the Management Committee.

The responsibilities of Perpetual above may be reduced, modified or terminated by the Management Committee in its discretion. Higher Perpetual and Perpetual agree to devote all appropriate time and effort to diligently pursue development of the Wind Farms. To the extent the Company, any Sub or XxXxxx incurs costs, losses or expenses as a result of the inaccuracy of any of the Assumptions and such Person is not reimbursed therefor promptly by Higher Perpetual, Higher Power or Perpetual, the Higher Perpetual Capital Contribution shall be reduced by the amount of such cost, loss or expense.

(d) The obligation of the Parties to make the initial Capital Contributions under Section 4.01 is subject to the satisfaction or waiver in writing of the following conditions:

(i) This Agreement shall have been executed and delivered by each Party;

(ii) Perpetual, Higher Power, Higher Perpetual, the Company and XxXxxx shall have executed and delivered the Developer Agreement;

Limited Liability Company Agreement of

XxXxxx SWI Wind Farms, LLC

(iii) Each of the Parties shall have received duly authorized, executed and delivered originals of

(A) the Developer Agreement, and the Capital Contribution Agreement and the Assignment Agreements contemplated thereby; and

(B) a certificate of the Secretary or other authorized representative of each Party, Higher Power and Perpetual, dated the Closing Date and certifying (I) that attached thereto is a true and complete copy of the certificate of formation, articles of incorporation or other formation documents, including all amendments thereto, of each Person, the limited liability company operating agreement or bylaws of such Person, as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (II) that attached thereto is a true and complete copy of resolutions duly adopted by the appropriate governing entity or body of such Person, authorizing the execution, delivery and performance of the Transaction Documents to which such Person is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (III) as to the incumbency and specimen signature of each officer executing any Transaction Document or any other document delivered in connection herewith on behalf of such Person and (IV) as to the absence of any pending proceeding for the dissolution or liquidation of such Person or, to the knowledge of such Secretary or Assistant Secretary, threatening the existence of such Person;

(iv) If XxXxxx shall elect, XxXxxx, Inc. shall have been granted on the Closing Date, first priority perfected Liens on the collateral contemplated by the Shareholder Loan Documents to secure the Shareholder Loans;

(v) Each Party shall have received appropriately completed copies, which have been duly authorized for filing by the appropriate other Party, of Financing Statements naming such other Party as a debtor and such Party as the secured party, as may be necessary to perfect first-priority Liens on the collateral described in Section 4.03(g);

(vi) The Company shall have received evidence that the Company or the Subs have obtained all real property and others interests and rights necessary or desirable for the construction, interconnection and operation and maintenance of the Project, subject to no Encumbrances, other than Permitted Encumbrances;

(vii) Intentionally Deleted;

(viii) Intentionally Deleted;

(ix) Tax abatement and value limitation proceedings under Texas Tax Code Section 312 and 313 for Little Xxxxxxx One shall have been duly and timely filed;

Limited Liability Company Agreement of

XxXxxx SWI Wind Farms, LLC

(x) No action or proceeding has been instituted or threatened by any Governmental Authority whatsoever against the Company, any Party, Perpetual, any Sub or any Wind Farm or related asset or interest or that seeks to impair, restrain, prohibit or invalidate the transactions contemplated by this Agreement, or which would reasonably be expected to have a material adverse affect on the Company or any Sub’s ability to operate its Wind Farm or the ability of such Persons, Perpetual or any Party to perform its obligations under the Transaction Documents;

(xi) The representations and warranties of Higher Perpetual, Higher Power, and Perpetual contained in the Transaction Documents executed on or prior to the Closing Date shall be true and correct when made and on the Closing Date and no default or breach of the obligations of the parties thereunder has occurred and is continuing; and

(xii) Each of XxXxxx and Higher Perpetual shall have provided a properly completed and executed Internal Revenue Service Form W-9 which is still valid.

(e) Holdco shall distribute to Higher Perpetual for reimbursement to Higher Power the funds described in Paragraph 5(b) of the Developer Agreement subject to the terms and conditions of the Developer Agreement.

4.02 Funding of Contributions and Subsequent Capital Contributions.

(a) The Administrator shall cause such proceeds as may be available from time to time from any Financing to be applied, to the fullest extent permitted by the terms of the Financing Documents, to the payment of (i) Approved Project Costs (including any payment thereof for the XxXxxx Contributed Assets and Higher Perpetual Contributed Assets provided for in the initial Funding Plan for Little Xxxxxxx One) and (ii) such other costs and expenses of constructing, financing, owning and operating the Wind Farms as shall be permitted by the Financing Documents.

(b) Cash Requirements of the Company of the Subs for the calendar month in which the Effective Date occurs shall be determined in writing by the Administrator as of the Effective Date. Not later than the 20th Day of each calendar month, commencing with the month in which the Effective Date occurs, the Administrator shall determine the Cash Requirements of the Company and the Subs for the succeeding month. To the extent that proceeds from any Financing are not then available for, or under the terms thereof may not then be applied to, payment of Cash Requirements for any month so determined, the Administrator shall issue a Capital Call to the Members in accordance with their Contribution Percentages (unless otherwise specified in Section 4.01(a)(iii) or Exhibit A) up to the amounts set forth in Exhibit A. Notwithstanding anything to the contrary contained in this Agreement or the Transaction Documents, XxXxxx shall have no obligation to make Capital Contributions after the Effective Date unless the Company and/or the Subs receive additional financing from sources other than the existing Members and their affiliates on terms approved by the Management Committee and thereafter the Administrator or the Management Committee shall issue a Capital Call for such Capital Contribution from XxXxxx.

Limited Liability Company Agreement of

XxXxxx SWI Wind Farms, LLC

(c) Whenever, pursuant to Section 4.02(b), the Administrator shall determine that additional Capital Contributions are necessary for the timely payment of Cash Requirements, the Administrator shall promptly issue to the Members a Capital Call for such amounts; provided, however, that prior to making a Capital Call for amounts that are not Approved Project Costs or other amounts not previously approved by the Management Committee, the Administrator shall obtain the prior approval for such Capital Call from the Management Committee. The Management Committee may also cause the Administrator from time to time to issue Capital Calls at such times and in such amounts as the Management Committee shall determine are necessary for any purpose related to the Company and its business, including the development of the Little Xxxxxxx Two, Big Xxxxxxx and Palo Duro Wind Farms or substitutions therefor in accordance with Sections 4.06 or 4.07. All additional Capital Contributions shall be made in cash unless otherwise previously approved by the Management Committee. All amounts received by the Company from the Members pursuant to this Section 4.02 shall be credited to the respective Member’s Capital Account as of the date such amounts are received by the Company. Unless otherwise determined by the Management Committee, the Company shall promptly contribute amounts and contributions received from any Equity Investor hereunder (net of any amounts which are to be used to pay costs and expenses incurred, or to be incurred, in the Company) to one or more of the Subs by way of capital contribution.

(d) Each Capital Call issued pursuant to Section 4.02(b) shall contain the following information:

(i) The total amount of Capital Contributions requested from all Members, which amount shall not be less than the amount required to permit the Company to pay timely the Cash Requirements;

(ii) The amount of Capital Contribution required from the Member to whom the request is addressed, such amount to be in accordance with the Contribution Percentages of such Member;

(iii) The purpose for which the funds are to be applied in such reasonable detail as the Administrator shall determine, including the amounts intended to be received by each Wind Farm and Sub and how such funds shall be made available to such Sub;

(iv) Whether the Management Committee has approved the Capital Call, if necessary;

(v) The date on which payments of the Capital Contribution shall be made (which date shall be fourteen (14) Days following the date the Capital Call is given, unless a different date is specified by the Administrator); and

(vi) Copies of reasonably requested supporting documentation, if any.

(e) Each Member agrees that it shall make payments of its respective additional Capital Contributions in accordance with Capital Calls issued pursuant to Section 4.02(b).

(f) Except as provided in this Section 4.02, no Member shall have any obligation to make any additional Capital Contributions.

Limited Liability Company Agreement of

XxXxxx SWI Wind Farms, LLC

(g) The Members may agree to make, or cause to be made, additional Capital Contributions, upon such terms and conditions, including the making of provision for allocation of items of gross income, as all of the Members shall agree in writing, and this Agreement shall be amended by the Members in order to reflect any such terms and conditions prior to their effectiveness. Except as otherwise set forth in this Agreement, no Member may make any additional Capital Contributions without the consent of the Management Committee.

(h) The value of any Capital Contributions of property after the Effective Date or other than cash shall be as agreed by the Members holding at least 70% of the Membership Interests.

4.03 Failure to Contribute. If any Member fails to make or fund a Capital Contribution required pursuant to Section 4.01 or Section 4.02 (each, a “Non-Contributing Member”), and if such failure continues for more than ten (10) Days after the date on which it is due, any Member that has contributed its Capital Contributions (each, a “Contributing Member”) may (without limitation as to other remedies that may be available) elect to deliver a notice (a “Notice of Default”) to the Non-Contributing Member. Upon delivery of such Notice of Default: (i) the Non-Contributing Member shall lose all voting rights and all management approval rights under this Agreement, and (ii) all Representatives of the Non-Contributing Member shall be removed from the Management Committee; provided that no Member shall be entitled to any such ten-Day grace period for more than three failures to make or fund such a Capital Contribution.

(b) In addition, after the expiry of all grace periods applicable under Section 4.03(a) such Non-Contributing Member has not cured such default (a “Defaulting Non-Contributing Member”) , the Contributing Member may elect (but is under no obligation) to make an advance to the Company, acting as lender (the “Lending Member,”), equal to the portion of the Defaulting Non-Contributing Member’s Capital Contribution that is in default to the Company, with the following results:

(i) the sum advanced is deemed to be a loan from the Lending Member to the Defaulting Non-Contributing Member;

(ii) the Capital Account of the Defaulting Non-Contributing Member is increased by the amount of the deemed loan from the Lending Member;

(iii) the principal balance of the loan and all accrued unpaid interest thereon is due and payable in whole on the tenth (10th) Day after written demand therefor by the Lending Member to the Defaulting Non-Contributing Member;

(iv) the amount lent bears interest at the Default Rate from the Day that the advance is deemed made until but excluding the date that the loan, together with all interest accrued on it, is repaid to the Lending Member;

(v) all distributions from the Company that otherwise would be made to any Defaulting Non-Contributing Member (whether before or after dissolution of the Company) instead shall be paid to the Lending Member until the loan and all interest accrued on it have been paid in full to the Lending Member (with payments being applied first to accrued and unpaid interest and then to principal) and any such payment to the Lending Member pursuant to this Section 4.03(b)(v) shall be deemed for all purposes as if the cash had first been distributed to the Defaulting Non-Contributing Member, who then paid such cash to the Lending Member as a payment on the loan;

Limited Liability Company Agreement of

XxXxxx SWI Wind Farms, LLC

(vi) the payment of the loan and interest accrued on it is secured by a security interest in each Defaulting Non-Contributing Member’s Membership Interest, as more fully set forth in Section 4.03(g); and

(vii) the Lending Member may, in addition to the other rights and remedies granted pursuant to this Agreement or available at Law or in equity, take any action (including court proceedings) that such Lending Member may deem appropriate to obtain payment by the Defaulting Non-Contributing Member of the loan and all accrued and unpaid interest on it, at the cost and expense of the Non-Contributing Member.

(c) In addition to the remedies set forth in Sections 4.03(a) and 4.03(b), if the Defaulting Non-Contributing Member has not cured its breach within twenty (20) days after the date on which the Capital Contribution was to be made (a “Default”), then the Company (acting through the Representatives appointed by such Contributing Member) shall issue a notice of the Defaulting Non-Contributing Member’s Default to all Members in the form attached hereto as Exhibit F (a “Default Notice”). Such Contributing Member shall have the option (but no obligation) to have any contribution made pursuant to Section 4.03(b) treated as a permanent Capital Contribution by the Contributing Member (and a reduction in the Capital Account of the Non-Contributing Member to the extent such Member’s Capital Account was increased pursuant to Section 4.03(b)(ii)), or, if no such contribution was made pursuant to Section 4.03(b), pay its pro rata share of the portion of the Capital Contribution owed and unpaid by the Defaulting Non-Contributing Member and such contribution shall be treated as a Capital Contribution by the Contributing Member (either contribution the “Defaulted Contribution”). In either event, the Contributing Members that elect to fund the Defaulting Non-Contributing Member’s share (the “Performing Contribution Members”) shall provide written notice of such election to all Members and upon making such Defaulted Contribution, the Defaulted Contribution of each such Performing Contribution Member shall be treated as a Capital Contribution, and the Members’ Voting Ratios and Sharing Ratios will be automatically adjusted in accordance with the following terms:

(i) the Voting Ratio and Sharing Ratio of each Performing Contribution Member shall, when expressed as a percentage, equal the sum of (i) the sum of (A) an amount equal to the aggregate Capital Contributions previously made by such Performing Contribution Member, excluding the Defaulted Contribution, reduced by the amount, if any, previously distributed to such Performing Contribution Member pursuant to Section 4.01(e), and (B) an amount equal to two hundred percent (200%) of the Defaulted Contribution made by such Performing Contribution Member, divided by (ii) the sum of (A) an amount equal to the aggregate Capital Contributions previously made by all of the Members, excluding all Defaulted Contributions, reduced by the amount previously distributed pursuant to Section 4.01(e), and (B) an amount equal to two hundred percent of the Defaulted Contributions made by all of the Members, and

Limited Liability Company Agreement of

XxXxxx SWI Wind Farms, LLC

(ii) The Voting Ratio and Sharing Ratio of the Non-Contributing Member shall, when expressed as a percentage, be reduced by an amount equal to the percentage increase in the Voting Ratio and Sharing Ratio, respectively, of the Performing Contribution Member that elected to fund such Non-Contributing Member’s share of the Defaulted Contribution, as calculated pursuant to Section 4.03(c)(i).

(d) If the Non-Contributing Member’s failure to make its Capital Contribution has not been cured within thirty (30) Days from the date of the Non-Contributing Member’s Default and if the Contributing Member notifies the Non-Contributing Member that the Contributing Member will not elect the remedies set forth in Section 4.03(c) or otherwise fails to make such election within the required time period for making such election, and does not elect to loan such Capital Contribution to the Non-Contribution Member pursuant to Section 4.03(b), then the Contributing Member shall have the right (but not the obligation) to dissolve the Company by issuing a dissolution notice to the Non-Contributing Member. Such dissolution notice may be given, and shall be effective upon delivery, when given at any time after the thirty (30) Days cure period set forth above.

(e) The terms of this Section 4.03 seek to induce the Members to pay their respective Capital Contributions.

(f) The remedies set forth in this Section 4.03 shall be the exclusive remedies available under applicable Law for a Member’s non-payment of its Capital Contributions.

(g) Except to the extent prohibited by a lender under the Financing Documents, each Member which is required pursuant to this Agreement to make Capital Contributions hereby grants to the Company, and to each Lending Member with respect to any loans made by the Lending Member to that Member as a Non-Contributing Member pursuant to Section 4.03(b), as security, equally and ratably, for the payment of all Capital Contributions that such Member has agreed to make and the payment of all loans and interest accrued thereon made by Lending Members to that Member as a Non-Contributing Member pursuant to Section 4.03(b), a security interest in and a general lien upon its Membership Interest and the proceeds thereof, all under the Uniform Commercial Code of the State of Delaware. On any default in the payment of a Capital Contribution or in the payment of such a loan or interest accrued thereon, the Company or the Lending Member, as applicable, is entitled to all the rights and remedies of a secured party under the Uniform Commercial Code of the State of Delaware with respect to the security interest granted in this Section 4.03(g). Each such Member shall execute and deliver to the Company and the other Members all financing statements and other instruments that the Lending Member may request to effectuate and carry out the preceding provisions of this Section 4.03(g). At the option of a Lending Member, this Agreement or a carbon, photographic or other copy hereof may serve as a financing statement.

(h) In connection with this Section 4.03, each Member shall execute and deliver any additional documents and instruments and perform any additional acts that may be necessary or appropriate to effectuate and perform the provisions of this Section 4.03.

Limited Liability Company Agreement of

XxXxxx SWI Wind Farms, LLC

4.04 Return of Contributions. Except as expressly provided herein, a Member may not resign from the Company and is not entitled to the return of any part of its Capital Contributions for any reason. Except as expressly provided herein, a Member is not entitled to be paid interest or any other distribution in respect of its Capital Contributions. An unrepaid Capital Contribution is not a liability of the Company or of any Member. A Member is not required to contribute or to lend any cash or assets to the Company to enable the Company to return any Member’s Capital Contributions.

4.05 Loans and Guarantees.

(a) If XxXxxx, Inc. elects to make the LP1 Shareholder Loan, upon the applicable Sub’s delivery of the notice to proceed under its Turbine Supply Agreement by LP1 Sub, the LP1 Sub shall deliver to XxXxxx, Inc. a Turbine Note in the principal amount of *** (the “LP1 Shareholder Loan”) to evidence its obligation to pay for the applicable Turbines. Such Turbine Note shall be secured by liens upon all assets of such Sub, and the Company and the other Subs shall execute the Guarantee, which shall be secured by liens upon all assets of the Company and the other Subs, according to the Shareholder Loan Documents.

(b) If XxXxxx, Inc. elects to make the LP2 Shareholder Loan, upon the applicable Sub’s delivery of the notice to proceed under its Turbine Supply Agreement by the LP2 Sub, the LP2 Sub shall deliver to XxXxxx, Inc. a Turbine Note in the principal amount of *** (the “LP2 Shareholder Loan”) to evidence its obligation to pay for the applicable Turbines. Such Turbine Note shall be secured by liens upon all assets of such Sub, and the Guarantee of the Company and the other Subs, which shall be secured by liens upon all assets of the Company and the other Subs, according to the Shareholder Loan Documents.

(c) Except as set forth in Section 4.05(a), and Section 4.05(b) or with the consent of the Management Committee, no Member may make any loans to a Sub. Except as set forth in Section 4.03, no Member may make any loans to the Company without the consent of the Management Committee, provided, however, that XxXxxx may make a loan (an “Emergency Loan”) to the Company in order to allow the Company to meet costs and expenses arising from measures taken to deal with an emergency or imminent threat to life or property of the Company or the Subs, after, to the extent practicable, the Administrator notifies each Representative.

*** This material has been omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.

XxXxxx: XXXXXX ENERGY DEVELOPMENT COMPANY, LLC

By:	/s/

	Name:

	Title:

Perpetual: HIGHER PERPETUAL ENERGY, LLC

By:	/s/

	Name:

	Title:

President	Xxxxxxx XxXxxxxx

Secretary	Xxxxxx X. Xxxx

LIMITED LIABILITY COMPANY AGREEMENT OF DEWIND SWI WIND FARMS, LLC A Delaware Limited Liability Company

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