ASSIGNMENTAND ASSUMPTION AGREEMENT

For Recorder’s Use Only

Recording Requested By and

When Recorded Return to:

PD1, LLC

2026 McGaw Ave

Irvine, CA 92614

Attn:  Michael McIntosh

 

 

THE STATE OF TEXAS	§
	§	KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF RANDALL	§

This ASSIGNMENT AND ASSUMPTION AGREEMENT (this “Agreement”) is made, dated and effective as of October 6, 2008 (the “Effective Date”), between HIGHER POWER ENERGY, LLC (“Assignor”), a Texas limited liability company and PD1, LLC (“Assignee”), a Delaware limited liability company.

 

RECITALS:

 

WHEREAS, Assignor has been involved in the development of a wind power electricity generating project in Randall County, Texas known as Palo Duro (the “Project”); and

 

WHEREAS, Assignor has entered into those certain Option Agreements described in Exhibit A attached hereto (collectively, the “Options”) with respect to the Project; and

 

WHEREAS, Assignor now desires to forever assign, convey and transfer to Assignee all of its rights, title and interests in connection with the Options and Assignee desires to receive such rights and assume all of the obligations, responsibilities and liabilities of Assignor in, to or under the Options first arising or accruing on or after the Effective Date.

 

AGREEMENT:

 

NOW, THEREFORE, in consideration of the mutual agreements herein contained and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereby agree as follows:

 

1.           Assignment.  As of the Effective Date, Assignor has assigned, conveyed and transferred and by these presents hereby does assign, convey and transfer to Assignee all of its rights, title and interests in, to and under the Options.

 

2.           Assumption.  Assignee hereby takes and accepts as of the Effective Date, all of Assignor’s rights, title and interests in, to and under the Options, and from and after the Effective Date, Assignee shall be responsible for and shall perform all of those obligations, responsibilities and liabilities in, to and under the Options first arising or accruing on or after the Effective Date.

 

 

3.           Assignee’s Indemnification.  Assignee hereby indemnifies, protects, defends and holds Assignor, Assignor’s officers, employees and members and all of their respective successors and assigns, harmless from any and all claims, damages, losses, suits, proceedings, costs and expenses, including, without limitation, reasonable attorneys’ fees (collectively, “Losses”), both known and unknown, present and future, at law or in equity, arising out of, by virtue of or in any way related to the breach by Assignee of (or Assignee’s failure to timely perform) any or all of the obligations imposed on the optionee under the Options, which obligations accrue from and after the Effective Date.

 

4.           Assignor’s Indemnification.  Assignor hereby indemnifies, protects, defends and holds Assignee, Assignee’s officers, employees and members and all of their respective successors and assigns, harmless from any and all Losses, both known and unknown, present and future, at law or in equity, arising out of, by virtue of or in any way related to the breach by Assignor of (or Assignor’s failure to timely perform) any or all of the obligations imposed on the optionee under the Options, which obligations accrued prior to the Effective Date.

 

5.           No Representations or Warranties.  Neither Assignor nor Assignee makes any representations or warranties to the other party of any kind whatsoever in connection with the transactions contemplated hereunder.

 

6            Binding Effect.  This Agreement shall be binding upon and inure to the benefit of each party and its successors and assigns.  Assignee may assign its rights and obligations under this Agreement, in whole or in part, without the need for Assignor’s consent.

 

7.           Recordation.  This Agreement may be recorded in the Real Property Records of Randall County, Texas.

 

8.           Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas.

 

9.           Enforcement.  If any portion of this Agreement shall be determined to be invalid or unenforceable, it shall be modified rather than voided, if possible, in order to carry out the intent of this Agreement.  In any event, the remainder of this Agreement shall be valid and enforceable to the fullest extent possible.

 

10.           Counterparts.  This Agreement may be executed in multiple counterparts, no one of which need be executed by all parties hereto, each of which shall constitute an original.  Counterparts thus executed shall together constitute one and the same instrument.

 

[ Signature pages follow. ]

 

 

IN WITNESS WHEREOF, AND INTENDING TO BE LEGALLY BOUND HEREBY, Assignor and Assignee have caused this Agreement to be duly executed and delivered by their authorized representatives as of the Effective Date.

HIGHER POWER ENERGY, LLC,

a Texas limited liability company

     On _______________, 2008, ________________ of Higher Power Energy, LLC, known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, personally appeared before me and acknowledged to me that he/she executed the same in his/her respective authorized capacity, on behalf of said entity.

Witness my hand and official seal.

[Notary Stamp/Seal]

 

 

PD1, LLC,

a Delaware limited liability company

On _________________, 2008 before me, ______________________________, personally appeared ____________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

[Notary Stamp/Seal]

 

 

 

 

1.	Option Agreement dated November 26, 2007 between Higher Power Energy, LLC and Rojean Kuhlman

 

2.	Option Agreement dated October 3, 2007 between Higher Power Energy, LLC and Robert R. and Margaret A. Henry

 

3.	Option Agreement dated October 3, 2007 between Higher Power Energy, LLC and Louis and Carolyn Hinders

 

4.	Option Agreement dated October 2, 2007 between Higher Power Energy, LLC and David and Tami Hinders

 

5.	Option Agreement dated October 4, 2007 between Higher Power Energy, LLC and Richard and Velda Harren, trustees of the Harren Family Living Trust

 

6.	Option Agreement dated November 26, 2007 between Higher Power Energy, LLC and Kuhlman & Sons, LP

 

7.	Option Agreement dated November 26, 2007 between Higher Power Energy, LLC and 5 R Trust

 

8.	Option Agreement dated December 7, 2007 between Higher Power Energy, LLC and Don Adams

 

9.	Option Agreement dated December 7, 2007 between Higher Power Energy, LLC, Arthur Cam Foreman and Lisa Foreman

 

10.	Option Agreement dated December 7, 2007 between Higher Power Energy, LLC and Curtis S. Firkins and R. Ann Firkins, trustees of the Firkins Family Trust

 

11.	Option Agreement dated December 7, 2007 between Higher Power Energy, LLC, George S. Oliver Sr., Trustee of the George S. Oliver and Mary Beth K. Oliver Revocable Trust, Helene Oliver Davis, Shirley Oliver Lewis, and Martha Oliver Conley, Trustee of the Martha Oliver Conley Revocable Trust

 

12.	Option Agreement dated December 7, 2007 between Higher Power Energy, LLC, Earl Reynolds Trust and Edith Reynolds Trust

 

13.	Option Agreement dated January 8, 2008 between Higher Power Energy, LLC and Gilbert Irlbeck

 

14.	Option Agreement dated January 23, 2008 between Higher Power Energy, LLC and the Ronald E. Walker Family Trust