Final
Execution Version
  LIMITED
LIABILITY COMPANY AGREEMENT
  OF
  DEWIND
SWI WIND FARMS, LLC
  A
Delaware Limited Liability Company
  
  LIMITED
LIABILITY COMPANY AGREEMENT
 OF
 DEWIND
SWI WIND FARMS, LLC
 A
Delaware Limited Liability Company
  TABLE
OF CONTENTS
 
 PageARTICLE
      I DEFINITIONS
                11.01
                Definitions
                11.02
                Construction
                151.03
                Determination
      of Fair Market Value
                15ARTICLE
      II ORGANIZATION
                162.01
                Formation
                162.02
                Name
                162.03
                Registered
      Office; Registered Agent; Principal Office in the United States; Other
      Offices
                162.04
                Purposes
                162.05
                Foreign
      Qualification
                172.06
                Term
                172.07
                No
      State-Law Partnership
                172.08
                Certificates
      of Membership Interest; Applicability of Article 8 of UCC
                172.09
                EWG
      Status and Market-Based Rate Authorization
                172.10
                Credit
      Support Obligation
                172.11
                Wind
      Turbines
                17ARTICLE
      III MEMBERSHIP; DISPOSITIONS OF INTERESTS
                183.01
                Members,
      Contribution Percentages, Voting Ratio and Sharing Ratio
                183.02
                Representations,
      Warranties and Covenants
                183.03
                Dispositions
      of Membership Interests
                203.04
                Options
      and Other Encumbrances
                263.05
                Access
      to Information
                263.06
                Confidential
      Information
                273.07
                Liability
      to Third Parties
                283.08
                Withdrawal
                28ARTICLE
      IV CAPITAL CONTRIBUTIONS
                284.01
                Initial
      Funding Plan for Little Pringle One and Initial Capital
      Contributions
                284.02
                Funding
      of Contributions and Subsequent Capital Contributions
                324.03
                Failure
      to Contribute
                344.04
                Return
      of Contributions
                374.05
                Loans
      and Guarantees
                374.06
                Capital
      Accounts
                384.07
                Mandatory
      Replacement of Higher Perpetual Contributed Assets
                39
 
 Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 i
 
 4.08
                Developer
      Fees
                40ARTICLE
      V DISTRIBUTIONS AND ALLOCATIONS
                415.01
                Distributions
                415.02
                Intentionally
      Deleted
                425.03
                Allocations
                425.04
                Calculation
      of Flip Point
                475.05
                Varying
      Interests
                49ARTICLE
      VI MANAGEMENT
                496.01
                Management
      by Members
                496.02
                Management
      Committee
                496.03
                Management
      of Company Affairs
                526.04
                Standards
      of Performance and Conflicts of Interest
                556.05
                Indemnification
                576.06
                Officers;
      Day-to-Day Management
                586.07
                Budgets
                606.08
                Members
      Right to Act in Certain Circumstances
                606.09
                HSSE
      Standards
                606.10
                Construction
      Management
                606.11
                Operations
      and Maintenance Agreement
                606.12
                Project
      Administration and Development Services Agreement
                606.13
                Employees
                60ARTICLE
      VII TAXES
                617.01
                Tax
      Returns
                617.02
                Tax
      Elections
                617.03
                Tax
      Matters Member
                62ARTICLE
      VIII BOOKS, RECORDS, REPORTS, AND BANK ACCOUNTS
                628.01
                Maintenance
      of Books
                628.02
                Reports
                638.03
                Bank
      Accounts
                63ARTICLE
      IX DISSOLUTION, WINDING-UP AND TERMINATION
                639.01
                Dissolution
                639.02
                Winding-Up
      and Termination
                639.03
                Certificate
      of Cancellation
                64ARTICLE
      X BUY-SELL PROVISIONS
                6410.01
                Buy-Sell
      on Deadlock
                6410.02
                Dispute
      Resolution of Buy-Sell on Deadlock
                66ARTICLE
      XI GENERAL PROVISIONS
                6611.01
                Member
      Marks
                6611.02
                Notices
                6611.03
                Entire
      Agreement; Superseding Effect
                67
 
 Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 ii
 
 11.04
                Effect
      of Waiver or Consent
                6711.05
                Amendment
      or Restatement
                6711.06
                Binding
      Effect
                6711.07
                Governing
      Law; Severability
                6711.08
                Further
      Assurances
                6811.09
                Waiver
      of Certain Rights
                6811.10
                Limitation
      of Liability
                6811.11
                Dispute
      Resolution Procedures
                6811.12
                Counterparts
                6811.13
                Third
      Party Rights
                68
 
 EXHIBITS:
 
 A
              Members
      and ContributionsB
              (Intentionally
      deleted.)C
              Form
      of CertificateD
              Dispute
      Resolution ProceduresE
              OfficersF
              Default
      NoticeG
              Turbine
      Supply Agreements
  Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 iii
 
 LIMITED
LIABILITY COMPANY AGREEMENT
 OF
 DEWIND
SWI WIND FARMS, LLC
 A
Delaware Limited Liability Company
  This
LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”)
of DEWIND SWI WIND FARMS, LLC (the “Company”),
executed as of October 6, 2008 (the “Effective
Date”), is adopted, executed and agreed to by DEWIND ENERGY DEVELOPMENT
COMPANY, LLC, a Nevada limited liability company (“DeWind”)
and HIGHER PERPETUAL ENERGY, LLC, a Texas limited liability company (“Higher
Perpetual”). Higher Perpetual and DeWind 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), DeWind has
contributed the DeWind 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
 DeWind
SWI Wind Farms, LLC
 1
 
 Accrued Preferred
Return – means a return of plus fifteen percent (15%) per annum,
compounded annually, paid on Capital Contributions other than the DeWind 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 ofTreasury 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 DeWind 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
DeWind 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
 DeWind
SWI Wind Farms, LLC
 2
 
 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 Pringle 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 Hutchinson County, acting through its Commissioners Court, of that certain
Tax Abatement Agreement dated August 15, 2008, between Higher Power Sub II and
Hutchinson 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 Hutchinson County,
acting through its Commissioners Court, of that certain Tax Abatement Agreement
dated August 15, 2008, between Higher Power Sub I and Hutchinson 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).
  Baker –
has the meaning set forth in the definition of Baker Assets.
  Baker
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 Baker to be located on real property
of approximately 378 acres in the Counties of Haskell and Throckmorton, Texas,
at Latitude: 33' 18.47N, Longitude: 99' 28.73W (“Baker”).
  Baker Sub
– means the Sub owning the Baker Assets.
  Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 3
 
 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
Pringle – means the Wind Farm to be located at Big Pringle (19 miles
southwest of Spearman, Texas) intended to have 200 MW of generating
capacity.
  Big Pringle
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 DeWind, Higher Power, Perpetual,
Higher Perpetual, LP1 Sub, LP2 Sub, Big Pringle Sub, Palo Duro Sub and the
Company.
  Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 4
 
 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 Moody’s 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
 DeWind
SWI Wind Farms, LLC
 5
 
 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 DeWind 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
DeWind, 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
 DeWind
SWI Wind Farms, LLC
 6
 
 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 DeWind.
  Developer
Fees – has the meaning assigned to such term in the Developer
Agreement.
  DeWind –
has the meaning set forth in the introductory paragraph.
  DeWind,
Inc. – means DeWind, Inc., a Nevada corporation.
  DeWind Capital
Contribution – means the Capital Contribution made by or on behalf of
DeWind, consisting of the DeWind Contributed Assets having an agreed value as
set forth on Exhibit A
hereto.
  DeWind
Contributed Assets – means the assets and properties contributed to the
capital of the Company by or on behalf of DeWind and described on Exhibit A.
  DeWind
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
 DeWind
SWI Wind Farms, LLC
 7
 
 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, choate 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 Pringle 1
                10Little Pringle 2
                10Big Pringle
                200Palo 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
 DeWind
SWI Wind Farms, LLC
 8
 
 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) DeWind receives a return
of all its Capital Contributions plus fifteen percent (15%) per annum,
compounded annually, on the average daily balance of DeWind’s 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, ward 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 DeWind 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.
  Haynes –
has the meaning set forth in the definition of Haynes Assets.
  Haynes
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 Haynes to be located on real property
of approximately 3352 acres in Grey County, Texas, approximately 12 miles
northwest of McLean, 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 (“Haynes”).
  Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 9
 
 Haynes Sub
– means the Sub owning the Haynes 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 Pringle Wind I, LLC, a Texas limited liability
company.
  Higher Power Sub
II– means Pringle 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
 DeWind
SWI Wind Farms, LLC
 10
 
 Little Pringle
One – means the Wind Farm to be located at Northeast Corner of Section
54, Block M23, Robert Sikes Survey, Hutchinson County, Texas, Latitude: 35o
57’21.36010”N and Longitude: 101o 32’34.46695”W, intended to have 10 MW of
generating capacity.
  Little Pringle
Two – means the Wind Farm to be located at Southeast Corner of Section 1,
Block M24, TC & Ry Co Survey, Hutchinson 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 DeWind 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
 DeWind
SWI Wind Farms, LLC
 11
 
 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 DeWind 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 DeWind
Capital Contribution, the Higher Perpetual Capital Contribution, Turbine
Contributions and LP1 Contributions.
  Palo Duro
– means the Wind Farm to be located at Palo Duro, Randall 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
 DeWind
SWI Wind Farms, LLC
 12
 
 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
 DeWind
SWI Wind Farms, LLC
 13
 
 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 DeWind.
  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 Pringle Two.
  Turbine
Note – means any promissory note executed by a Sub in favor of
DeWind, Inc. pursuant to which such Sub agrees to repay DeWind, Inc. for the LP1
Shareholder Loan or the LP2 Shareholder Loan.
  Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 14
 
 Turbine Supply
Agreements – means each of the Turbine Supply Agreements between DeWind,
Inc., (or another turbine manufacturer) and a Sub for the supply of wind
turbines, each of the Service Agreements between DeWind, 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 DeWind, Inc. (or such
other turbine manufacturer) and a Sub for the warranty of such wind turbines.
The Turbine Supply Agreements with DeWind, 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 DeWind,
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
 DeWind
SWI Wind Farms, LLC
 15
 
 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 DeWind 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
 DeWind
SWI Wind Farms, LLC
 16
 
 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, DeWind
shall cause DeWind, 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
 DeWind
SWI Wind Farms, LLC
 17
 
 (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, DeWind shall be released from any obligation to cause DeWind, Inc. to
deliver such turbines to the Subs by delivering written notice to the Management
Committee that DeWind 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 DeWind 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 DeWind, 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
 DeWind
SWI Wind Farms, LLC
 18
 
 (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
 DeWind
SWI Wind Farms, LLC
 19
 
 (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
 DeWind
SWI Wind Farms, LLC
 20
 
 (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
 DeWind
SWI Wind Farms, LLC
 21
 
 (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.
  (c)           Tag
Along.
  (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
 DeWind
SWI Wind Farms, LLC
 22
 
 (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
 DeWind
SWI Wind Farms, LLC
 23
 
 (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
 DeWind
SWI Wind Farms, LLC
 24
 
 (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
 DeWind
SWI Wind Farms, LLC
 25
 
 (h)           Permitted
Dispositions. The provisions of this Section 3.03
(except for Section
3.03(g)) shall not apply to a Permitted Disposition.
  (i)           DeWind
Dispositions.
  Notwithstanding
anything in this Agreement but subject to Section 6.03(c)(x), prior to the Flip
Point, DeWind 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 “DeWind
Disposition”) of all or any part of the Membership Interests of the
Company to any Person not an Affiliate of DeWind and with whom DeWind 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 DeWind 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 DeWind Disposition
on terms and conditions substantially no less favorable to such Person, taken as
a whole, as those under which DeWind 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 DeWind 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
 DeWind
SWI Wind Farms, LLC
 26
 
 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
 DeWind
SWI Wind Farms, LLC
 27
 
 (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 Pringle One and Initial Capital Contributions .
  (a)           Initial Funding
Plan for Little Pringle One. The Management Committee shall establish the
Approved Project Costs for Little Pringle One during the Screening Period and
shall make any further adjustments thereafter, as necessary. The Funding Plan
for Little Pringle One shall consist of the following:
  (i)           at
DeWind’s option in its sole discretion, the LP1 Shareholder Loan or a Turbine
Contribution for Little Pringle 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
 DeWind
SWI Wind Farms, LLC
 28
 
 (ii)           the
portions of the DeWind Capital Contribution and the Higher Perpetual Capital
Contribution that are allocable to Little Pringle 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 Pringle
One as determined by DeWind in its sole discretion (the “LP1
Contributions”), to be contributed by DeWind 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)           DeWind Capital
Contribution. As of the Effective Date, DeWind has been credited with
having made that portion of the DeWind Capital Contribution of DeWind
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 DeWind Capital Contribution to the Company.
DeWind shall be credited with additional Capital Contributions in respect of the
DeWind 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 DeWind 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 DeWind.
  (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
 DeWind
SWI Wind Farms, LLC
 29
 
 (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 Pringle One and Little Pringle 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 DeWind 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 DeWind shall have executed and
delivered the Developer Agreement;
  Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 30
 
 (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
DeWind shall elect, DeWind, 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 Pringle One shall have been duly and timely
filed;
  Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 31
 
 (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 DeWind 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 DeWind Contributed Assets and Higher
Perpetual Contributed Assets provided for in the initial Funding Plan for Little
Pringle 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, DeWind 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 DeWind.
  Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 32
 
 (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 Pringle Two, Big Pringle 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
 DeWind
SWI Wind Farms, LLC
 33
 
 (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
 DeWind
SWI Wind Farms, LLC
 34
 
 (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)
and4.03(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
 DeWind
SWI Wind Farms, LLC
 35
 
 (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
 DeWind
SWI Wind Farms, LLC
 36
 
 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
DeWind, 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 DeWind, 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
DeWind, 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 DeWind, 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 DeWind 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.




Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 37
 
 (d)           Notwithstanding
the foregoing, any loan pursuant to this Section 4.05 must
satisfy the following requirements: (i) it must not subject any Member to
personal liability for its repayment (unless the Member expressly agrees to
guarantee the loan); and (ii) its terms (including the interest rate) must
be no less favorable to the Company than the Company could have obtained from
Persons who are not Affiliated with the Members.
  (e)           An
Emergency Loan shall bear interest at the Default Rate from the date of the
advance until the date of payment and is not a Capital Contribution. Any other
loan described in this Section 4.05
shall bear interest at a rate determined by the Management Committee from the
date of the advance until the date of payment and is not a Capital
Contribution.
  4.06         Capital
Accounts .
  (a)           A
Capital Account shall be established and maintained for each Member in
accordance with the provisions of this Section
4.06:
  (i)           Each
Member’s Capital Account shall be increased by (A) the amount of money
contributed by that Member to the Company calculated on the date of its Capital
Contribution, (B) the fair market value of any other property contributed
by that Member to the Company by way of a Capital Contribution,
(C) allocations to that Member of Company income and gain (or items
thereof) allocated pursuant to Section 5.03(a)
or specially allocated pursuant to Section 5.03(c)
or Section 5.03(d),
including income and gain exempt from tax and income and gain described in
Treasury Regulation Section 1.704-1(b)(2)(iv)(g), but excluding income and
gain described in Treasury Regulation Section 1.704-1(b)(4)(i), and
(D) the amount of any Company liabilities assumed by such Member or that
are secured by any property distributed to such Member, and
  (ii)           Each
Member’s Capital Account shall be decreased by (A) the amount of money
distributed to that Member by the Company, (B) the fair market value of any
other property distributed to that Member by the Company, (C) allocations
to that Member of expenditures of the Company described (or treated as
described) in Section 705(a)(2)(B) of the Code, (D) allocations to
that Member of Company loss and deduction (or items thereof) allocated pursuant
to Section 5.03(a)
or specially allocated pursuant to Section 5.03(c),
Section 5.03(d),
or Section 5.03(e),
including loss and deduction described in Treasury Regulation
Section 1.704-1(b)(2)(iv)(g), but excluding items
described in subparagraph (C) of
this paragraph (ii) and loss or deduction described in Treasury Regulation
Section 1.704-1(b)(4)(i) or 1.704-1(b)(4)(iii), and (E) the amount of
any liabilities of such Member assumed by the Company or that are secured by any
property contributed by such Member to the Company.
  (b)           To
the extent not otherwise inconsistent with the provisions of this Section 4.06,
the Members’ Capital Accounts shall be maintained and adjusted as required by
the provisions of Treasury Regulation Sections 1.704-1(b)(2)(iv) and
1.704-1(b)(4) including adjustments required by the provisions of Treasury
Regulation Section 1.704-1(b)(2)(iv)(f) and adjustments to reflect
the allocations to the Members of depreciation, depletion, amortization, and
gain or loss as computed for book purposes rather than the allocation of the
corresponding items as computed for tax purposes, as required by Treasury
Regulation Section 1.704-1(b)(2)(iv)(g).
  Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 38
 
 (c)           The
Members’ Capital Accounts shall be increased or decreased to reflect a
revaluation of the Company’s property on its books based on the fair market
value of the Company’s property as of the following times: (i) the
contribution of more than a de minimis amount of money or other property to the
Company by a new or existing Member as consideration for a new or additional
Membership Interest, (ii) the distribution of more than a de minimis amount
of money or other property by the Company to a Member as consideration for a
Membership Interest, (iii) the grant of an interest in the Company (other
than a de minimis interest) as consideration for the provision of services to or
for the benefit of the Company by an existing Member acting in a Member capacity
or a new Member acting in a Member capacity or in anticipation of being a
Member, or (iv) the liquidation of the Company within the meaning of
Treasury Regulation Section 1.704-1(b)(2)(ii)(g), provided that any
adjustment described in subclauses (i),
(ii) and (iii) shall be made
only with notice to and the agreement of the Members.
  (d)           Upon
the Disposition of all or a portion of a Member’s Membership Interest, the
Capital Account of the Disposing Member that is attributable to such Membership
Interest shall carry over to the Assignee in accordance with the provisions of
Treasury Regulation Section 1.704-1(b)(2)(iv)(l).
  (e)           The
foregoing provisions of this Article and the other provisions of this Agreement
relating to the maintenance of Capital Accounts are intended to comply with
Treasury Regulation Sections 1.704-1 and 1.704-2 and shall be interpreted and
applied in a manner consistent with such Treasury Regulations and any amendment
or successor provision thereto.
  4.07         Mandatory
Replacement of Higher Perpetual Contributed Assets.
  (a)           On
the date hereof, Higher Power on behalf of Higher Perpetual shall transfer and
assign to LP1 Sub, LP2 Sub, Big Pringle Sub and Palo Duro Sub, as the Higher
Perpetual Contribution, the assets more particularly described in the Capital
Contribution Agreement, free and clear of all Encumbrances except for Permitted
Encumbrances. From time to time after the date hereof, and without any further
consideration, Higher Power, Higher Perpetual and Perpetual shall execute,
acknowledge and deliver all such additional deeds, assignments, conveyances,
instruments, notices, releases, acquittances and other documents, and will do
all such other acts and things, all in accordance with applicable law, as may be
necessary or appropriate (i) more fully to assure the Company, the Subs and
their successors and assigns all of the properties, rights, titles, interests,
estates, remedies, powers and privileges required by this Agreement to be
granted to the Company and the Subs or intended so to be, and (ii) more
fully and effectively to carry out the purposes and intent of this Agreement and
the Developer Agreement.
  Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 39
 
 (b)           Commencing
on the date hereof and for a period of one hundred twenty (120) days thereafter
and so long thereafter as may be extended upon the mutual agreement of the
Members, which agreement shall not be unreasonably delayed or denied (the “Screening
Period”), the Company shall screen the BP Assets, the PD Assets, the
Baker Assets and the Haynes Assets to determine by unanimous consent of the
Management Committee the Expected MWs by the date that is 36 months after the
Effective Date (the “Expected Start of
Construction Date”). Higher Perpetual shall cause Perpetual and Higher
Power promptly following any reasonable request therefor, to provide to the
Company, the Subs and DeWind such financial information with respect to such
Assets, their plans, business, affairs and condition as any of them may
reasonably request. During the Screening Period and thereafter if required to be
transferred to the Company or any Sub in accordance with this Section 4.07,
Higher Perpetual, Higher Power and Perpetual shall not solicit any offers,
market or enter into (or permit to exist) any agreement or Encumbrance affecting
the Baker Assets and the Haynes Assets that might prohibit any portion of the
Baker Assets and the Haynes Assets from being transferred to the Company or any
Sub if and as required under this Section 4.07. In
furtherance of the foregoing, during such period, none of Higher Perpetual,
Higher Power or Perpetual, nor any of their Affiliates, shall enter into any
agreement respecting the Baker Assets or the Haynes Assets (except as expressly
provided for in this Agreement), written or oral, with any other Person relating
to the development, construction or operation of Baker or Haynes that conflicts
with the terms hereof or the transactions contemplated by the Transactions
Documents.
  (c)           If
at the end of the Screening Period, the aggregate Expected MWs of the BP Assets
and the PD Assets are less than 600 MW of installed capacity (the “Target
MWs”), with the approval of the Members, which shall not be unreasonably
delayed or denied, the Company may elect by written notice delivered no later
than the first business day after the end of the Screening Period, to substitute
the Baker Assets and/or the Haynes Assets for either or both of the BP Assets
and the PD Assets, such that the Expected MWs of the assets owned and developed
by the Company and the Subs equals or exceeds the Target MWs. Upon such election
by the Company, Higher Power on behalf of Higher Perpetual shall transfer and
assign the Baker Assets to the Baker Sub and/or the Haynes Assets to the Haynes
Sub, as applicable, free and clear of all Encumbrances other than Permitted
Encumbrances pursuant to an agreement substantially in the form of the Capital
Contribution Agreement and related documents, including a release in the form of
Paragraphs 1 and 2 of the Developer Agreement, with such changes as the
Company, Higher Perpetual and Higher Power may reasonably request. Concurrently,
the BP Sub shall transfer and assign the BP Assets, and the PD Sub shall
transfer and assign the PD Assets, as applicable, to Higher Power on behalf of
Higher Perpetual free and clear of all Encumbrances created by, through or under
the Company or the Subs other than Permitted Encumbrances, pursuant to an
agreement in form and substance reasonably acceptable to the Company, Higher
Perpetual and Higher Power. Such transfers from Higher Power to the Company and
the Subs shall be treated as a contribution by Higher Perpetual of the affected
assets and such transfers by the Company and the Subs to Higher Power shall be
treated as a distribution to Higher Perpetual of the affected assets, without
any effect on the amounts of the Higher Perpetual Contributions. To the extent
Higher Power fails to transfer such assets to the Company or Subs as required
under this Section
4.07(c), the Higher Perpetual Capital Contribution shall be reduced by
the amount of such damages, cost, loss or expense suffered by the Company and
the Subs as a result of such failure, as determined by the Management
Committee.
  Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 40
 
 4.08         Developer
Fees.
  Perpetual
is primarily liable to Higher Power to pay Developer Fees under
Paragraph 3(a) of the Developer Agreement and shall pay such Developer Fees
as they become due and payable. In accordance with Paragraph 5(a) of the
Developer Agreement, Higher Perpetual is obligated to pay such Developer Fees in
the event that Perpetual fails to pay such Developer Fees, Higher Perpetual
shall pay such amounts within 30 days of the due date therefor. In the event
that none of Perpetual, Higher Perpetual or any other Person pays such amounts,
the Company shall pay such amounts. In the event that the Company pays any
portion of the Developer Fees for any Wind Farm (the “Affected Wind
Farm”), Higher Perpetual shall repay to the Company such amounts, with
interest accrued thereon at the rate of 15% per annum from the date of such
payment to but excluding the date of such payment. Any such payments by
Perpetual or Higher Perpetual shall not be treated as Capital Contributions. If
Higher Perpetual fails to pay such amounts to the Company, without further
action, the Sharing Ratio and Voting Ratio of Higher Perpetual expressed as a
percentage shall be equal to the Sharing Ratio and Voting Ratio of Higher
Perpetual immediately before such failure minus (i) an amount equal to the
Expected Capacity of the Affected Wind Farm at such time, divided by
(ii) an amount equal to the Aggregate Expected Capacity at such time (the
“Reduction
Amount”) and the Sharing Ratio and Voting Ratio of DeWind expressed as a
percentage shall be equal to the Sharing Ratio and Voting Ratio of DeWind
immediately before such failure plus the Reduction Amount. In addition, Higher
Perpetual’s entitlement to any Accrued Preferred Return for any Capital
Contributions for the Affected Wind Farm shall thereafter at all times be equal
to $0. The Company and DeWind may exercise any of their rights and remedies
under applicable law, including any set-off rights.
  ARTICLE
V
 DISTRIBUTIONS AND
ALLOCATIONS
  5.01         Distributions . The
Company shall not make any distributions to the Members before DeWind, Inc.
receives payment of all obligations, both principal and accrued interest,
payable to DeWind, Inc. under all Shareholder Loans. After DeWind, Inc. receives
payment of all such obligations, both principal and accrued interest, payable to
it under any Shareholder Loan, the Company shall distribute, within twenty (20)
Business Days after the end of each calendar month in which Distributable Cash
shall have arisen and be on hand, any Distributable Cash to the Members and its
cash and other property from time to time as the Management Committee may
determine, subject to this Agreement and applicable law, based on the following
priority:
  (a)           first,
to the Members who have made loans to the Company pursuant to Section 4.05 in
accordance with the total amount of outstanding principal owed such Members
under such loans, until such Members have received payment of all obligations,
both principal and accrued interest, due to them under such loans made to the
Company pursuant to Section 4.05, and
then
  (b)           second,
to DeWind up to the agreed value of its Turbine Contributions;
  (c)           third,
to DeWind up to the amount of its aggregate LP1 Contributions;
  (d)           fourth,
to the Members up to the agreed value of the DeWind Capital Contribution and the
Higher Perpetual Capital Contribution (reduced by amounts distributed pursuant
to Section 4.01(e))
on Exhibit A, as
adjusted in accordance with the provisions of this Agreement, in proportion
thereto;
  Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 41


(e)           fifth,
to DeWind up to the amount of the Accrued Preferred Return on its LP1
Contributions;
  (f)           sixth,
to the Members up to the aggregate amount of all Other Capital Contributions in
proportion thereto;
  (g)          seventh,
to each Member up to the aggregate amount of its Accrued Preferred Return (other
than the Accrued Preferred Return on the LP1 Contributions) in accordance with
its proportion of all such Accrued Preferred Returns; and then
  (h)          eighth,
to the Members in accordance with their respective Sharing Ratios.
  5.02      
 Intentionally
Deleted.
  5.03    
   Allocations .
  (a)           Allocations of
Profits.  Except as otherwise provided in Section 5.03(c),
Profits of the Company shall be allocated to the Members as
follows:
  (i)           First,
to the Members in accordance with their respective Sharing Ratios to the extent
of the excess of (A) the amount of Losses previously allocated to the
Members pursuant to Section 5.03(b)(viii)
over (B) the amount of Profits previously allocated to the Members pursuant
to this Section
5.03(a)(i);
  (ii)          Second,
to DeWind to the extent of the excess of (A) the amount of Losses
previously allocated to DeWind pursuant to Section 5.03(b)(vii)
over (B) the amount of Profits previously allocated to DeWind pursuant to
this Section
5.03(a)(ii);
  (iii)         Third,
to DeWind and Higher Perpetual in proportion to and to the extent of the excess
of (A) the amount of Losses previously allocated to the Members pursuant to
Section
5.03(b)(vi) over (B) the amount of Profits previously allocated to
the Members pursuant to this Section
5.03(a)(iii);
  (iv)         Fourth,
to DeWind to the extent of the excess of (A) the amount of Losses
previously allocated to DeWind pursuant to Section 5.03(b)(v)
over (B) the amount of Profits previously allocated to DeWind pursuant to
this Section
5.03(a)(iv);
  (v)          Fifth,
to the Members in proportion to and to the extent of the excess of (A) the
amount of Losses previously allocated to the Members pursuant to Section 5.03(b)(iv)
over (B) the amount of Profits previously allocated to the Members pursuant
to this Section
5.03(a)(v);
  (vi)         Sixth,
to DeWind, to the extent of the excess of (A) the aggregate Accrued
Preferred Return for DeWind in respect of its LP1 Contribution over (B) the
amount of Profits previously allocated to DeWind pursuant to this Section
5.03(a)(vi);
  (vii)        Seventh,
to each Member, in proportion to and to the extent of amounts equal to the
Accrued Preferred Return (other than the Accrued Preferred Return on the LP1
Contributions) of each Member, to the extent of the excess of (A) the
aggregate of such Accrued Preferred Returns for the Members over (B) the
amount of Profits previously allocated to the Members pursuant to this Section 5.03(a)(vii);
and
 Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 42
  (viii)        Finally,
to the Members in accordance with their respective Sharing Ratios.
  (b)           Allocations of
Losses.  Except as otherwise provided in Section 5.03(d),
Losses of the Company shall be allocated to the Members as follows:
  (i)           First,
to the Members in proportion to and to the extent of the excess of (A) the
amount of Profits previously allocated to the Members pursuant to Section
5.03(a)(viii), over (B) the amount of Losses previously allocated to
the Members pursuant to this Section
5.03(b)(i);
  (ii)          Second,
to each Member, in proportion to and to the extent of the excess of (A) the
amount of Profits previously allocated to the Members pursuant to Section 5.03(a)(vii),
over (B) the amount of Losses previously allocated to the Members pursuant
to this Section
5.03(b)(ii);
  (iii)         Third,
to DeWind, to the extent of the excess of (A) the amount of Profits
previously allocated to DeWind pursuant to Section 5.03(a)(vi)
over (B) the amount of Losses previously allocated to DeWind pursuant to
this Section
5.03(b)(iii);
  (iv)         Fourth,
to each Member, in proportion to and to the extent of the excess of (A) the
aggregate amount of Other Capital Contributions made by the Members over
(B) the sum of (I) the amount of Distributable Cash previously
distributed pursuant to Section 5.01(f) and
(II) the amount of Losses previously allocated to the Members pursuant to
this Section
5.03(b)(iv);
  (v)          Fifth,
to each Member in proportion to and to the extent of the excess of (A) the sum
of (I) the value of the DeWind Contributed Assets as set forth on Exhibit A and
(II) the value of the Higher Perpetual Contributed Assets as set forth on
Exhibit A, over (B) the sum of (I) the amount of Distributable Cash previously
distributed pursuant to Section 5.01(d), (II)
the amount distributed pursuant to Section 4.01(e) and
(III) the amount of Losses previously allocated to the Members pursuant to this
Section
5.03(b)(v);
  (vi)         Sixth,
to DeWind to the extent of the excess of (A) the aggregate LP1 Contributions
over (B) the sum of (I) the amount of Distributable Cash previously distributed
pursuant to Section
5.01(c) and (II) the amount of Losses previously allocated to DeWind
pursuant to this Section
5.03(b)(vi);
  (vii)        Seventh,
to DeWind to the extent of the excess of (A) the amount of any Turbine
Contributions over (B) the sum of (I) the amount of Distributable Cash
previously distributed pursuant to Section 5.01(b) and
(II) the amount of Losses previously allocated to DeWind pursuant to this
Section
5.03(b)(vii); and
 Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 43
  (viii)       Finally,
to the Members in accordance with their respective Sharing Ratios.
  (c)           Special
Allocations.  The following special allocations shall be made
in the following order:
  (i)           Company Minimum
Gain Chargeback.  Notwithstanding the other provisions of this
Section 5.03,
except as provided in Treasury Regulation Section 1.704-2(f), if there is a
net decrease in Company Minimum Gain during any Company taxable period, each
Member shall be allocated items of Company income and gain for such period (and,
if necessary subsequent periods) in the manner and in the amounts provided in
Treasury Regulation Sections 1.704-2(f)(6), 1.704-2(g)(2), 1.704-2(j)(2)(i)
or any successor provisions.  This Section 5.03(c)(i)
is intended to comply with the minimum gain chargeback requirement in Treasury
Regulation Section 1.704-2(f) and shall be interpreted consistently
therewith.  For purposes of this Section 5.03(c)(i),
each Member’s Adjusted Capital Account balance shall be determined, and the
allocation of income or gain required hereunder shall be effected, prior to the
application of any other allocations pursuant to this Section 5.03.
  (ii)          Chargeback of
Minimum Gain Attributable to Member Nonrecourse
Debt.  Notwithstanding the other provisions of this Section 5.03,
except Section 5.03(c)
and as provided in Treasury Regulation Section 1.704-2(i)(4), if there is a
net decrease in Minimum Gain Attributable to Member Nonrecourse Debt determined
in accordance with Treasury Regulation Section 1.704-2(i)(5) at the
beginning of a taxable period, any Member with a share of Minimum Gain
Attributable to Member Nonrecourse Debt at the beginning of such taxable period
shall be allocated items of Company income and gain for such period (and, if
necessary, subsequent taxable periods) in the manner and amounts provided in
Treasury Regulation Sections 1.704-2(i)(4) and 1.704-2(j)(2)(ii), or any
successor provisions.  For purposes of this Section 5.03(c)(ii),
each Member’s Adjusted Capital Account balance shall be determined, and the
allocation of income or gain required hereunder shall be effected, prior to the
application of any other allocations pursuant to this Section 5.03
with respect to such taxable period (other than an allocation pursuant to Section 5.03(c)(i)).
  (iii)         Qualified Income
Offset.  In the event any Member unexpectedly receives any
adjustments, allocations or distributions described in Treasury Regulations
Sections 1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of income and gain
(if any) shall be specially allocated to such Member in an amount and manner
sufficient to eliminate, to the extent required by Treasury Regulations, the
deficit balance, if any, in such Member’s Adjusted Capital Account as quickly as
possible, provided that an allocation pursuant to this Section 5.03(c)(iii)
shall be made only if and to the extent that such Member would have a deficit
balance in its Adjusted Capital Account after all other allocations provided for
in this Section 5.03
have been tentatively made as if this Section 5.03(c)(iii)
were not in this Agreement.
 Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 44
  (iv)         Gross Income
Allocation.  In the event any Member has a deficit balance in
its Adjusted Capital Account at the end of any taxable period, each such Member
shall be specially allocated items of Company income and gain in the amount of
such deficit as quickly as possible; provided that an allocation pursuant to
this Section 5.03(c)(iv)
shall be made only if and to the extent that such Member would have a deficit
balance in its Adjusted Capital Account in excess of such amount after all other
allocations provided for in this Article V have been made as if Section 5.03(c)(iii)
and this Section 5.03(c)(iv)
were not in this Agreement.
  (v)          Nonrecourse
Deductions.  Any Nonrecourse Deduction for any tax period shall
be allocated to the Members in accordance with Section
5.03(a).
  (vi)         Member
Nonrecourse Deductions.  Any Member Nonrecourse Deductions for
any tax period shall be allocated to the Member who bears the economic risk of
loss with respect to the Member Nonrecourse Debt to which such Member
Nonrecourse Deductions are attributable in accordance with Treasury Regulation
Section 1.704-2(i)(1).
  (vii)        Section 754
Adjustments.  To the extent an adjustment to the adjusted tax
basis of any Company asset pursuant to Code Section 734(b) or
Section 743(b) is required pursuant to Treasury Regulation
Section 1.704-1(b)(2)(iv)(m)(2) or
Section 1.704-1(b)(2)(iv)(m)(4) to be taken into account
in determining Capital Accounts as the result of a distribution to a Member in
complete liquidation of such Member’s interest in the Company, the amount of
such adjustment to Capital Accounts shall be treated as an item of gain (if the
adjustment increases the basis of the asset) or loss (if the adjustment
decreases such basis) and such gain or loss shall be specially allocated to the
Members in accordance with Section 5.03(a), in
the event Treasury Regulation Section 1.704-1(b)(2)(iv)(m)(2) applies, or to the Member
to whom such distribution was made in the event Treasury Regulation
Section 1.704-1(b)(2)(iv)(m)(4) applies.
  (d)          Curative
Allocations.  The allocations set forth in Section 5.03(c)(i)
through (c)(vii) hereof (the
“Regulatory
Allocations”) are intended to comply with certain requirements of the
Treasury Regulations.  Notwithstanding any other provisions of this
Section 5.03,
the Regulatory Allocations shall be taken into account in allocating items of
income, gain, loss, deduction and credit among the Members such that, to the
extent possible, the net amount of allocations of such items and the Regulatory
Allocations to each Member shall be equal to the net amount that would have been
allocated to each Member if the Regulatory Allocations had not
occurred.
  (e)          Loss
Limitations.  No allocation of items of loss or deduction
pursuant to Section 5.03(a)
shall be made to a Member if such allocation would cause or increase a deficit
in the balance of a Member’s Adjusted Capital Account.  In the event
some but not all of the Members would have a deficit in the balance of their
Adjusted Capital Account as a consequence of an allocation of items of loss or
deduction pursuant to Section 5.03(a),
the limitation set forth in this Section 5.03(e)
shall be applied on a Member by Member basis and items of loss or deduction not
allocable to any Member as a result of such limitation shall be allocated to the
other Members in the manner otherwise required pursuant to Section 5.03(a)
to the extent such other Members have positive balances in their Capital
Accounts so as to allocate the maximum permissible items of loss and deduction
to each Member under Treasury Regulation
Section 1.704-1(b)(2)(ii)(d).
 Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 45
  (f)           Other Allocation
Rules.
  (i)           In
the case of any Accrued Preferred Return for a Capital Contribution by Higher
Perpetual that has become equal to $0 pursuant to the last sentence of Section 4.08,
notwithstanding anything to the contrary in Sections 5.03(a) and
5.03(b), items
of deduction shall be allocated to Higher Perpetual in an amount equal to such
Accrued Preferred Return until the amount of deductions allocated pursuant to
this Section
5.03(f)(i) equals the excess of (A) the amount of Profits previously
allocated to Higher Perpetual pursuant to Section 5.03(a)(vii)
with respect to such Accrued Preferred Return over (B) the amount of
Distributable Cash previously distributed to Higher Perpetual pursuant to Section 5.01(g) with
respect to such Accrued Preferred Return.
  (ii)          For
purposes of determining the income or losses, or any other items allocable to
any period, income, losses, and any such other items shall be determined on a
daily, monthly, or other basis, as determined by the Management Committee
using any permissible method under Code Section 706 and the Treasury
Regulations thereunder.
  (iii)         The
Members are aware of the income tax consequences of the allocations made by this
Section 5.03
and hereby agree to be bound by the provisions of this Section 5.03 in
reporting their shares of Company income, gain, loss, deduction and credit for
income tax purposes.
  (iv)         Solely
for purposes of determining a Member’s proportionate share of the “excess
nonrecourse liabilities” of the Company within the meaning of Treasury
Regulation Section 1.752-3(a)(3), a Member’s interest in the Company
profits is in accordance with its proportionate allocation under Section
5.03(a).
  To the
extent permitted by Treasury Regulation Section 1.704-2(h)(3), the
Management Committee shall endeavor to treat distributions of Distributable Cash
as having been made from the proceeds of a Nonrecourse Liability or a Member
Nonrecourse Debt only to the extent that such distributions would cause or
increase a deficit in the balance of a Member’s Adjusted Capital
Account.
  (g)          Income Tax
Allocations; Code Section 704(c).  For income tax
purposes, each item of income, gain, loss, and deduction shall be allocable in
the same manner such items are allocated for book purposes pursuant to this
Section 5.03;
provided, however, that income, gain, loss and deductions with respect to
property contributed to the Company by a Member or revalued pursuant to Treasury
Regulation Section 1.704-1(b)(2)(iv)(f) shall be allocated among the
Members in a manner that takes into account the variation between the adjusted
tax basis of such property and its book value, as required by
Section 704(c) of the Code and Treasury Regulation
Section 1.704-1(b)(4)(i), using the traditional allocation method permitted
by Treasury Regulation Section 1.704-3(b).
 Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 46
  5.04       Calculation of
Flip Point .
  (a)           Monthly
Calculation; Liquidation Calculation.
  (i)           If
a final determination that the Flip Point has occurred has not previously been
made under this Section 5.04, then
within ten (10) Business Days after the end of each calendar month, the
Administrator shall determine in good faith whether a calculation as of the date
of any distribution for such month is necessary in order for the Administrator
to conclude whether the Flip Point has occurred during such month.  If
the Administrator (1) determines that no calculation is necessary, or
(2) determines after calculation in the manner described in this Section 5.04 that the
Flip Point has not occurred during such month, then distributions of
Distributable Cash shall be made in accordance with Section 5.01 and
allocations of tax attributes of the Company shall be made in accordance with
Section 5.03(a)
and Section
5.03(b), as applicable.
  (ii)           If
the Administrator calculates, in the manner provided in this Section 5.04, that
the Flip Point has occurred during a calendar month, then no less than ten (10)
Business Days prior to making a distribution for such month, the Administrator
shall provide such calculation to the Members and prepared in accordance with
the calculation rules and conventions of this Section 5.04,
specifying the Flip Point and the portion of the Distributable Cash which is to
be distributed to each Member in accordance with Section 5.01 and
the portion of the tax attributes of the Company which are to be allocated under
Section 5.03(a)
and Section
5.03(b), respectively.
  (iii)           Prior
to making any liquidating distribution pursuant to Section 9.02 of
this Agreement, the Administrator shall make a calculation, in the manner
described in this Section 5.04, as to
whether the Flip Point will occur in connection with the liquidation of the
Company.  No less than ten (10) Business Days prior to making such
distribution, the Administrator shall provide such calculation to the Members
and prepared in accordance with the calculation rules and conventions of this
Section 5.04,
specifying the Flip Point (or stating that the Administrator has concluded that
it will not occur) and the portion of the liquidation proceeds which is to be
distributed to each Member in accordance with Section 9.02, and the
proportions in which the tax attributes of the Company for the taxable period in
which the liquidation occurs are to be allocated in accordance with Section 5.03(a) and
Section 5.03(b).  If the Administrator determines that the Flip
Point has not so occurred pursuant to the two immediately preceding sentences,
then distributions of liquidation proceeds shall be made in accordance with
Section 9.02,
and allocations of tax attributes of the Company shall be made in accordance
with Section
5.03(a) and Section 5.03(b), as
applicable.
  (iv)           In
the event that no objection to a calculation provided to the Members under Section 5.04(a)(ii)
or Section 5.04(a)(iii)
is received by the Administrator from any Member immediately prior to the
applicable date of distribution, then the Flip Point shall be deemed to have
occurred as specified in such calculation and the distribution of Distributable
Cash or liquidation proceeds and the allocation of tax attributes for the
applicable taxable period, shall be made in the manner specified by such
calculation.  In the event that such an objection is received by the
Administrator, then the determination of the Flip Point and the making of the
distribution (and all subsequent distributions of Distributable Cash or
liquidation proceeds) shall be suspended until the Flip Point and the allocation
of distributions and allocations of tax attributor is finally determined under
the dispute resolution procedures set forth in Section
5.04(c).
 Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 47
  (b)           Calculation Rules
and Conventions.  The Administrator shall employ the following
calculation rules and conventions in determining the Flip Point:
  (i)           Intentionally
deleted.
  (ii)           Continuity of
Ownership.  The Administrator shall treat ownership of the
Membership Interests as being continuous from the Effective Date to the
distribution date as of which the calculation is being made without regard to
any change in ownership of any Membership Interests during such period, except
as required under this Agreement.
  (iii)           Finality of
Determination of Flip Point.  The Administrator’s determination
that the Flip Point has occurred, subject to the rights of the Members to
dispute such determination in advance under the procedures set forth in Section 5.04(c),
shall become final on the date of distribution as of which such determination is
made, in the absence of fraud or manifest mathematical error.  The
occurrence of the Flip Point shall not be affected by any other distribution or
other event or circumstance arising at any time after the date of distribution
as of which the determination of the Flip Point is made.
  (c)           Flip Point
Dispute Resolution.  Notwithstanding any other provision in
this Agreement, if any Member shall dispute any item or procedure or calculation
of, or which affects, the Flip Point contained in any notice or report delivered
to such Member, such Member shall notify the Administrator within seven (7)
Business Days following receipt of the notice or report disputed, setting forth
in reasonable detail such Member’s objections to such calculation, and the
Parties shall attempt in good faith to resolve promptly any differences as to
the calculation so disputed.  If the Parties are unable to resolve any
such differences within seven (7) Business Days after the date of the disputing
Member’s notice, then the actual calculation shall be finally referred to a
partner of a firm of independent public accountants selected by the Management
Committee and acting as an independent expert (the “Independent
Expert”), designated by such firm upon the request of either the
disputing Member or the Administrator.  The disputing Member and the
Administrator shall submit the related computation and all other data necessary
for the Independent Expert to make his determination, including any additional
data requested by the Independent Expert.  The Independent Expert
shall keep confidential all information submitted to him in connection with his
resolution of the dispute(s) hereunder.  The Independent Expert shall
be requested to render his determination as promptly as possible after he
receives all necessary data.  The determination of the Independent
Expert resolving a dispute pursuant to this Section 5.04(c) shall
be final and binding upon the disputing parties, and such determination shall
apply for all subsequent periods to any item or procedure substantially similar
to that determined hereunder.  The Company shall pay the fees of the
Independent Expert incurred for such determination.
 Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 48
  5.05       Varying
Interests .All
items of income, gain, loss, deduction or credit shall be allocated, and all
distributions shall be made, to the Persons shown on the records of the Company
to have been Members as of the last calendar day of the period for which the
allocation or distribution is to be made.  Notwithstanding the
foregoing, if during any taxable year there is a change in any Member’s
Membership Interest, the Members agree that their allocable shares of such items
for the taxable year shall be determined by any method determined by the
Management Committee to be permissible under Code Section 706 and the related
Treasury Regulations to take account of the Members’ varying number of
Membership Interests.
  ARTICLE
VI
  MANAGEMENT
  6.01       Management by
Members .  Except
as described below in Section 6.03,
the management of the Company is fully vested in the Members, acting exclusively
in their membership capacities.  When the Company has only one Member,
that Member may exercise its management rights by written consent when
necessary, and in the event of such action by written consent, reference in this
Agreement to the Management Committee shall, for purposes of such action, be a
reference to the sole Member acting by such written consent.  To
facilitate the orderly and efficient management of the Company, except as
otherwise expressly provided in this Agreement, the Members shall act
(a) collectively as a “committee of the
whole” pursuant to Section 6.02,
and (b) through the delegation of certain responsibility and authority to
any Member pursuant to Section 6.03.  Decisions
or actions taken in accordance with the provisions of this Agreement shall
constitute decisions or actions by the Company and shall be binding on each
Member, Representative, officer and employee of the Company.
  6.02       Management
Committee .  The
Members shall act collectively through meetings as a “committee of the
whole,” which is hereby named the “Management
Committee.”  The Management Committee shall conduct its affairs
in accordance with the following provisions and the other provisions of this
Agreement:
  (a)           Powers and
Duties.  The Management Committee shall manage the business and
affairs of the Company in accordance with the provisions of this
Agreement.
  (b)           Representatives.
  (i)           Designation.  To
facilitate the orderly and efficient conduct of Management Committee meetings,
each Member shall notify the other Members, from time to time, of the identity
of two of its officers, employees or agents who will represent it at such
meetings (each a “Representative”
and collectively “Representatives”).  The
initial Representatives of each Member are set forth on Exhibit A.  No
Representative shall be entitled to any salary or similar compensation from the
Company for serving on the Management Committee.
  (ii)           Authority.  Each
Representative shall have the full authority to act on behalf of the Member that
designated such Representative; the action of any one Representative at a
meeting (or through a written consent) of the Management Committee shall bind
the Member that designated such Representative; and the other Members shall be
entitled to rely upon such action without further inquiry or investigation as to
the actual authority (or lack thereof) of such Representative.
 Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 49
  (iii)           DISCLAIMER OF
DUTIES; INDEMNIFICATION. EACH REPRESENTATIVE SHALL REPRESENT, AND OWE
DUTIES TO, ONLY THE MEMBER THAT DESIGNATED SUCH REPRESENTATIVE (THE NATURE AND
EXTENT OF SUCH DUTIES BEING AN INTERNAL CORPORATE AFFAIR OF SUCH MEMBER), AND
NOT TO THE COMPANY OR TO THE SUBS, ANY OTHER MEMBER OR REPRESENTATIVE, OR ANY
OFFICER OR EMPLOYEE OF THE COMPANY OR THE SUBS.  THE PROVISIONS OF
SECTION 6.05
SHALL ALSO INURE TO THE BENEFIT OF EACH MEMBER’S REPRESENTATIVES.  THE
COMPANY SHALL INDEMNIFY, PROTECT, DEFEND, RELEASE AND HOLD HARMLESS EACH
REPRESENTATIVE FROM AND AGAINST ANY CLAIMS ASSERTED BY OR ON BEHALF OF ANY
PERSON (INCLUDING ANOTHER MEMBER OR THE SUBS), OTHER THAN THE MEMBER THAT
DESIGNATED SUCH REPRESENTATIVE, THAT ARISE OUT OF, RELATE TO OR ARE OTHERWISE
ATTRIBUTABLE TO, DIRECTLY OR INDIRECTLY, SUCH REPRESENTATIVE’S SERVICE ON THE
MANAGEMENT COMMITTEE, OTHER THAN SUCH CLAIMS ARISING OUT OF THE FRAUD OR WILLFUL
MISCONDUCT OF SUCH REPRESENTATIVE.
  (iv)           Attendance.  Each
Member shall use all reasonable efforts to cause its Representatives to attend
each meeting of the Management Committee, unless any of its Representatives are
unable to do so because of an event beyond their reasonable control, in which
event such Member shall use all reasonable efforts to cause such Representative
to participate in the meeting by telephone pursuant to Section 6.02(b)(i).  Each
Representative shall have the right to bring such advisors to any meeting of the
Management Committee which he or she is attending as he or she deems
appropriate.
  (c)           Procedures.  The
Management Committee shall maintain written minutes of each of its meetings and
may adopt such rules and procedures relating to its activities as it may deem
appropriate, provided that such rules and procedures shall not be inconsistent
with or violate the provisions of this Agreement or the Act.  The
Secretary or a delegate of the Secretary shall circulate draft written minutes
of the applicable telephonic or physical meeting not later than ten (10)
Business Days after each meeting to the Management Committee for
comment.   If no comments are received within fifteen (15)
Business Days of such circulation,  the minutes shall be deemed
approved once signed by the Secretary.  If comments are received for
such minutes within the aforementioned fifteen (15) Business Day period, the
proposed minutes shall be reviewed for approval at the next meeting of the
Management Committee and, once approved, signed by the Secretary.  The
failure of such Person to circulate such draft minutes shall not invalidate any
minutes of a meeting otherwise approved by the Management Committee in
accordance with the terms of this Agreement.
 Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 50
  (d)           Time and Place of
Meetings.  The Management Committee shall meet quarterly,
subject to more or less frequent meetings upon approval of the Management
Committee.  Notice of, and an agenda for, all Management Committee
meetings shall be provided to all Members at least ten (10) Business Days prior
to the date of each meeting, together with any proposed minutes of the previous
Management Committee meeting (if such minutes have not been previously
ratified).  Special meetings of the Management Committee may be called
at such times, and in such manner, as the Members deem necessary.  Any
Member calling for any such special meeting shall notify all Members of the date
and agenda for such meeting at least five (5) Business Days prior to the date of
such meeting.  Such five (5) Business Day period may be shortened by
the Management Committee.  The location of each meeting of the
Management Committee shall be as agreed by the Management
Committee.  Attendance of a Member at a meeting of the Management
Committee shall constitute a waiver of notice of such meeting, except where such
Member attends the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
  (e)           Quorum.  The
presence of one Representative designated by each Member necessary to constitute
a majority or all, as the case may be, of the Membership Interests necessary to
approval action taken at any meetings shall constitute a quorum for the
transaction of business at such meeting of the Management
Committee.
  (f)           Voting.  Except
as may be provided otherwise in this Agreement, the affirmative vote of Members
holding Voting Ratios constituting a majority of all Voting Ratios shall
constitute the act of the Management Committee.
  (g)           Action by Written
Consent.  Any action required or permitted to be taken at a
meeting of the Management Committee may be taken without a meeting, without
prior notice, and without a vote in person if a consent or consents in writing,
setting forth the action so taken, is signed by Members that could have taken
the action at a meeting of the Management Committee at which all Members
entitled to vote on the action were represented and voted. Failure of a Member
to sign such written consent within thirty (30) Days of receipt thereof shall
constitute a vote against such action.
  (h)           Meetings by
Telephone.  Members may participate in and hold such meeting by
means of conference telephone, video conference or similar communications
equipment by means of which all persons participating in the meeting can hear
each other.  Participation in such a meeting shall constitute presence
in person at such meeting, except where a Member participates in the meeting for
the express purpose of objecting to the transaction of any business on the
ground that the meeting is not lawfully called or convened.
  (i)           Subcommittees.  The
Management Committee may create such subcommittees, delegate to such
subcommittees such authority and responsibility, and rescind any such
delegations, as it may deem appropriate.
 Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 51
  6.03       Management of
Company Affairs .
  (a)           The
Management Committee may delegate to one or more Members such authority and
duties as the Management Committee may deem advisable, including delegation to
the Administrator in accordance with the Project Administration and Development
Services Agreement, the Construction Manager in accordance with the Construction
Management Agreement, and the Operator in accordance with the O&M Agreement;
all as further subject to the terms of this Agreement.  While acting
in such capacity, decisions or actions taken by any such Member, or its
Representative, officers, directors, employees, shareholders, agents and
representatives (including those of such Member’s Affiliates), on behalf of such
Member in accordance with, and within the authority given to them under, the
provisions of this Agreement shall constitute decisions or actions by the
Company and shall be binding on the Company and each Member. Any delegation
pursuant to this Section 6.03(a)
may be revoked at any time by the Management Committee.  With respect
to duties discharged hereunder by a Member, such Member may discharge such
duties through the personnel of an Affiliate of such Member or third party. The
Management Committee may also delegate to the Administrator such authority and
duties with respect to the business and affairs of the Company as may be
specified in this Agreement, the Project Administration and Development Services
Agreement or any other such agreement approved by the Management
Committee.
  (b)           The
Management Committee may not, except with the approval of the Members
after
  (i)           the
Screening Period, change the order of development and construction or the
nameplate rating in megawatts of the Wind Farms, which order and nameplate
rating shall be ten (10) MW for the first Wind Farm which is to be constructed
Little Pringle One, ten (10) MW for the second Wind Farm which is to be
constructed Little Pringle Two, two hundred (200) MW for the third Wind Farm
which is to be constructed Big Pringle, and four hundred (400) MW for the fourth
Wind Farm which is to be constructed Palo Duro or Substitute; or
  (ii)           amend
in any material respect the terms of the Turbine Supply Agreements with DeWind,
Inc.
  (c)           Neither
the Company nor any Member may do any of the following except with the approval
of the Management Committee:
  (i)           adopt
or approve any new capital or operating budgets of the Company or the Subs,
including any amendments to, or deviation from the total amount provided in,
excluding any line item allocation, previously approved budgets including the
Approved Budgets;
  (ii)           enter
into any banking arrangements, including opening new accounts and providing
signatories for such accounts of the Company or the Subs;
  (iii)           incur
or assume any indebtedness for borrowed money by the Company or the Subs except
for unsecured indebtedness in principal amount not in excess of one hundred
thousand dollars ($100,000), other than in accordance with a Funding
Plan;
  (iv)           encumber
any assets of the Company or the Subs or enter into any guaranty or cause the
Subs to enter into any guaranty;
 Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 52
  (v)           enter
into, or approve, amend, or terminate any contract or other obligation of the
Company or the Subs, including the assumption of any obligation, in excess of
one hundred thousand dollars ($100,000);
  (vi)           enter
into, amend or waive any material rights of the Company or the Subs under any
material agreement between the Company and any Member or any Affiliate of such
Member, or between the Subs and any Member or any Affiliate of such Member
including under the Transaction Documents or under any Turbine Supply Agreements
or balance of plant construction agreement;
  (vii)          engage
or appoint certified public accountants, auditors, tax advisors, legal counsel,
managing agents, investment bankers, or other such experts for the Company or
the Subs;
  (viii)        settle
any claim of the Company or the Subs, including any claim against any Member or
any Affiliate of the Member other than a claim of less than one hundred thousand
dollars ($100,000) in the aggregate, or settle any claim, including any claim by
or against any Member or any Affiliate of the Member against the Company or the
Subs other than claims aggregating less than one hundred thousand dollars
($100,000) per annum;
  (ix)           engage
or permit the Subs to engage in any business other than as described in Section 2.04;
  (x)           merge
or consolidate with or into another limited liability company or other business
entity, Dispose of any membership interest in the Subs, Dispose of the assets of
the Company or the Subs in excess of one hundred thousand dollars ($100,000),
convert the Company or the Subs into another type of entity or enter into an
agreement to do any of the foregoing; provided that if the fees due to Higher
Power under Paragraph 3(a) of the Developer Agreement with respect to such
Sub or the related Wind Farm remain unpaid then the approval of each Member
shall be required for a Disposition of all or substantially all of the assets of
Big Pringle or Palo Duro or the Disposition of the Capital Stock of the Sub
directly owning Big Pringle or Palo Duro (or Subs or assets substituted therefor
pursuant to Section 4.07)
unless the transferee in such Disposition assumes the obligation to pay such
fees relating to such Wind Farm;
  (xi)           sell,
or enter into, or permit the Subs to sell or enter into, any Power Purchase
Agreement or any Hedging Agreement, to sell or manage the risk of sale of,
electricity to any Person;
  (xii)          approve
or amend any Approved Budget or any Funding Plan;
  (xiii)         hire
any employee of the Company or the Subs or cause the Company or the Subs to
have, participate in, or make contributions to any employee benefit
plan;
 Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 53
  (xiv)         incur
any liability or make or permit any expenditure or series of related
expenditures in an amount exceeding the applicable Approved Budget or permit the
Subs to do the same;
  (xv)          construct
or permit the Subs to construct any capital improvements, repairs, alterations
or changes involving an amount in excess of the applicable Approved
Budget;
  (xvi)         commence
any adversarial legal or administrative proceeding on behalf of the Company or
the Subs;
  (xvii)        enter
into, modify, amend or terminate any material Transaction Document or permit the
Subs to do the same;
  (xviii)       issue
any Capital Call other than pursuant to an Approved Budget;
  (xix)         commence
a voluntary case in Bankruptcy or the same with respect to the
Subs;
  (xx)           take
any action that would result in termination, liquidation, dissolution or winding
up of the Company or the Subs, or omit to take any actions to avoid such a
result;
  (xxi)         change
any material accounting methods or tax elections;
  (xxii)        create
any subsidiary of the Company (other than the Subs) or purchase any equity
rights or interests of any persons;
  (xxiii)       waive
or amend the terms of this Agreement (other than any waivers by a Member, in its
sole and absolute discretion, of such Member’s rights under this
Agreement);
  (xxiv)       Intentionally
Deleted;
  (xxv)        take
any action, or refrain from taking any necessary action, that would have the
effect of preventing the Subs from obtaining status as an EWG or preventing the
Subs 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; or
  (xxvi)       cause
or permit the Subs to take any of the actions in subsections (i) through (xxv)
above.
  (d)           Subject
to the other express provisions of this Agreement, all reasonable direct, out of
pocket costs and expenses incurred by authorized Persons in the Company’s
business and owed to third parties in accordance with this Agreement shall be
paid from Company funds.
 Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 54
  (e)           Except
as otherwise expressly provided herein, no Member (other than a Member to whom
such authority has been delegated hereunder or in accordance with this
Agreement) has the authority or power to act for or on behalf of the Company, to
do any act that would be binding on the Company or to incur any liabilities or
expenditures on behalf of the Company.
  (f)           Any
Person dealing with the Company, other than a Member, may rely on the authority
of the Members and the officers of the Company in taking any action in the name
of the Company without inquiry into the provisions of this Agreement or
compliance with them, regardless of whether that action actually is taken in
accordance with the provisions of this Agreement.
  6.04       Standards of
Performance and Conflicts of Interest .
  (a)           EXCEPT AS PROVIDED OTHERWISE IN THIS
AGREEMENT, THE MEMBERS SHALL MANAGE THE BUSINESS AND AFFAIRS OF THE COMPANY AND
OVERSEE THE DAY-TO-DAY MANAGEMENT OF THE COMPANY BY THE OFFICERS OF THE COMPANY
IN GOOD FAITH AND IN ACCORDANCE WITH PRUDENT INDUSTRY STANDARDS TOWARD THE BEST
INTERESTS OF THE COMPANY.  EACH MEMBER AND ITS AFFILIATES ARE LIABLE
FOR ERRORS OR OMISSIONS IN PERFORMING THEIR DUTIES WITH RESPECT TO THE COMPANY
(TO THE EXTENT THERE ARE ANY) ONLY IN THE CASE OF GROSS NEGLIGENCE, WILLFUL
MISCONDUCT, FRAUD OR MATERIAL BREACH OF THIS AGREEMENT, BUT NOT OTHERWISE, IT
BEING SPECIFICALLY AGREED THAT NO SUCH PERSON IS LIABLE FOR ITS OWN SIMPLE,
PARTIAL, OR CONCURRENT NEGLIGENCE.  TO THE FULLEST EXTENT PERMITTED BY
LAW, NO MEMBER SHALL HAVE ANY FIDUCIARY DUTIES TO THE COMPANY OR THE OTHER
MEMBERS.  IN NO EVENT SHALL ANY MEMBER, ITS AFFILIATES, AND ITS AND
THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND REPRESENTATIVES AS WELL AS
OFFICERS AND EMPLOYEES OF THE COMPANY BE LIABLE FOR ANY ACTION OR COURSE OF
CONDUCT APPROVED OR CONSENTED TO BY THE MEMBERS OR ANY ACTION OR COURSE OF
CONDUCT BASED ON A DETERMINATION BY THE MEMBERS, INCLUDING SPECIFICALLY MATTERS
FOR WHICH A MEMBER WOULD BE LIABLE IN THE ABSENCE OF THISSECTION 6.04, SUCH AS ITS OWN SIMPLE, PARTIAL OR
CONCURRENT NEGLIGENCE, ABSENT A MATERIAL MISSTATEMENT OR OMISSION OR FRAUD IN
OBTAINING THE APPROVAL; PROVIDED, THAT NOTWITHSTANDING THE EXISTENCE OF A
MATERIAL MISSTATEMENT OR OMISSION, IN NO EVENT SHALL SUCH PERSON BE LIABLE FOR
ANY SUCH ACTION OR COURSE OF CONDUCT IF SUCH PERSON AT THE TIME OF THE MEMBERS’
CONSENT, APPROVAL OR DETERMINATION, DID NOT KNOW OF, AND IN THE EXERCISE OF A
STANDARD OF CARE NOT CONSTITUTING BAD FAITH, GROSS NEGLIGENCE, WILLFUL
MISCONDUCT OR FRAUD COULD NOT HAVE KNOWN OF, THE MATERIAL MISSTATEMENT OR
OMISSION.  THE MEMBERS AND OFFICERS OF THE COMPANY SHALL DEVOTE TO THE
MANAGEMENT OF THE COMPANY ONLY SUCH TIME AS MAY REASONABLY BE REQUIRED TO CAUSE
THE AFFAIRS OF THE COMPANY TO BE CONDUCTED IN AN EFFICIENT AND BUSINESSLIKE
MANNER.  IN NO EVENT SHALL THE PROVISIONS OF THISSECTION 6.04RELIEVE ANY MEMBER, ITS AFFILIATES,
AND ITS AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND REPRESENTATIVES
FROM LIABILITY PURSUANT TO THE PROVISIONS OF ANY CONTRACT OR TRANSACTION THAT
MAY BE ENTERED INTO HEREAFTER BETWEEN THE COMPANY AND SUCH
PERSON.
 Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 55
  (b)           A
Member and its Affiliates may own, engage in, and possess interests in, other
businesses, activities, ventures, enterprises and investments of any and every
type and description (collectively, “Activities”),
independently or with others, including Activities in competition with the
Company and its subsidiaries, with no duty or obligation (express, implied,
fiduciary or otherwise) (i) to refrain from engaging in such Activities,
(ii) to offer the right to participate in such Activities to the Company,
its subsidiaries, any other Member or any Affiliate of another Member, or
(iii) to account to, or to share the results or profits of such Activities
with, the Company, its subsidiaries, any other Member or any Affiliate of
another Member; and any doctrines of non-competition, “company
opportunity” or similar doctrines are hereby expressly
disclaimed.  Each Member hereby waives any and all rights and claims
on the basis of such doctrines which it may otherwise have against any Member
and its officers, directors, shareholders, partners, members, managers, agents,
employees, and Affiliates as a result of any such Activities.
  (c)           The
Company may, and may permit any direct or indirect subsidiary of the Company or
other Person in which the Company owns, directly or indirectly, an equity
interest to, transact business with (including entering into or modifying any
contractual arrangements with) any Member or Affiliate of a Member, provided,
that the terms of any such transactions with a Member or one of its Affiliates,
taken as a whole, are at fair market value.  Any transaction between
the Company and a Member or its Affiliates that has been approved by the
Management Committee after full disclosure and is at fair market value as
established by third party documentation acceptable to the disinterested
Members, shall be deemed to have satisfied the standard set forth in the
previous sentence.  A Member or its Affiliate that transacts business
with the Company owes no duty to the Company or the other Members to exercise or
to refrain from exercising in any particular manner its rights or powers as a
participant in that transaction, including those arising under any contract with
the Company, and (subject to the proviso in the first sentence of this Section 6.04(c))
such Member or such Affiliate of a Member may realize profits from that
transaction.
  (d)           The
Members acknowledge and agree that the Members, officers, employees and
Affiliates do not guarantee the performance of the Company.  IN THE ABSENCE OF GROSS NEGLIGENCE,
WILLFUL MISCONDUCT OR FRAUD BY A MEMBER IN PERFORMING ITS DUTIES HEREUNDER, NO
MEMBER SHALL HAVE ANY LIABILITY FOR THE ACTS, OMISSIONS OR COURSES OF CONDUCT OF
THE COMPANY OR ANY OTHER MEMBER.  Nothing herein shall prohibit
a Member or the Company from asserting valid claims other than as provided in
this Section 6.04.  In
no event shall the provisions of this Section 6.04(d)
relieve any Member, any of its officers, employees or Affiliates from liability
pursuant to the provisions of any contract or transaction that may be entered
into hereafter between the Company and such Member or any of its officers,
employees or Affiliates.
 Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 56
  (e)           This
Section 6.04
constitutes a modification and disclaimer of duties and obligations (express,
implied, fiduciary or otherwise) with respect to the matters described in this
Section 6.04,
pursuant to Section 18-1101 of the Act.  The Members agree that
the provisions of this Section 6.04 are
“express”
and “conspicuous”
for all purposes of applicable Law.
  6.05       Indemnification .
  (a)           To
the fullest extent permitted by Law, the Company shall indemnify the officers,
directors, employees, agents and Controlling Persons of the Company and of each
Member and its respective Affiliates (each, an “Indemnified
Person”), on request by the Indemnified Person, and hold each of them
harmless from and against all losses, costs, liabilities, damages and expenses
(including reasonable costs of suit and attorney’s fees) any of them may incur
in performing their obligations hereunder, INCLUDING ANY MATTER ARISING OUT OF
OR RESULTING FROM THE INDEMNIFIED PERSON’S OWN SIMPLE, PARTIAL, OR CONCURRENT
NEGLIGENCE, except for any such loss, cost, liability, damage or expense
primarily attributable to the Indemnified Person’s breach or reckless disregard
of fiduciary duties, if any, gross negligence, willful misconduct, fraud or
material breach of this Agreement.  If an Indemnified Person becomes
involved in any action, proceeding or investigation with respect to which
indemnity may be available under this Section 6.05,
the Company may reimburse the Indemnified Person for its reasonable legal and
other expenses (including the cost of investigation and preparation) as they are
incurred, provided, that the Indemnified Person shall promptly repay to the
Company the amount of any such expense paid if it is ultimately determined that
the Indemnified Person was not entitled to indemnification
hereunder.  Any amounts payable in respect of indemnification
hereunder shall be recoverable only from the assets of the Company.
  (b)           Promptly
after receipt by an Indemnified Person of notice of any claim or the
commencement of any action with respect to which indemnity may be available
under this Section 6.05,
the Indemnified Person shall, if a claim in respect thereof is to be made
against the Company under this Section 6.05,
notify the Company in writing of the claim or the commencement of the action;
provided, that the failure to notify the Company shall not relieve it from any
liability which it may have to an Indemnified Person other than under this Section 6.05
except to the extent that the Company is prejudiced thereby.  If any
such claim or action shall be brought against an Indemnified Person, and it
shall notify the Company thereof, the Company shall be entitled to participate
therein, and, to the extent that it wishes and upon acknowledging in writing it
shall indemnify the Indemnified Person, to assume the defense thereof with
counsel reasonably satisfactory to the Indemnified Person.  After
notice from the Company to the Indemnified Person of its election to assume the
defense of such claim or action, the Company shall not be liable to the
Indemnified Person under this Section 6.05 for
any legal or other expenses subsequently incurred by the Indemnified Person in
connection with the defense thereof other than reasonable costs of
investigation; provided, that all of the Indemnified Persons shall have the
right to employ one counsel to represent them if, in the opinion of counsel to
the Indemnified Persons, there are available to them defenses not available to
the Company and in that event the fees and expenses of such separate counsel
shall be paid by the Company.  In no event shall the Company be
required to indemnify an Indemnified Person with respect to amounts paid in
settlement of a claim unless such claim was settled with the consent of the
Company.
 Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 57
  6.06       Officers; Day-to-Day
Management .
  (a)           Officers.  The
officers of the Company shall be elected by the Management Committee and shall
consist of a President, a Secretary and two (2) Vice Presidents. The Management
Committee, in their discretion, may also elect a Treasurer, one or more
Assistant Secretaries and Assistant Treasurers, and such other officers as the
Management Committee may from time to time designate, all of whom shall, except
as otherwise provided herein, hold office until removed or their successors are
elected and qualified. Any two or more offices may be held by the same person.
No officer of the Company shall be entitled to any salary or similar
compensation from the Company for serving as an officer of the Company, unless
such officer enters into an employment relationship with the Company upon
approval by the Management Committee.  The initial officers of the
Company are designated on Exhibit E
hereto.
  (b)           Vacancies.  Whenever
any vacancies shall occur in any office by death, resignation, increase in the
number of officers of the Company, or otherwise, the same may be filled by the
Management Committee (voting to elect the President and the Secretary in the
manner expressly provided for herein), except for a vacancy in the Vice
President which shall be filled by the Member responsible for electing such Vice
President, and the officer so elected shall hold office until he is removed, he
resigns or his successor is chosen and qualified.
  (c)           Removal.  Subject
to the provisions of this Section 6.06, any
officer or agent elected or appointed by the Management Committee may be removed
by the Management Committee whenever in their judgment the best interests of the
Company will be served thereby, but such removal shall be without prejudice to
the contract rights, if any, of the person so removed. Election or appointment
of an officer or agent shall not of itself create contract rights. An officer
shall automatically cease to be an officer of the Company upon his ceasing to be
an employee or officer of one of the Members or their Affiliates.
  (d)           President.  The
person holding the position of President as set forth on Exhibit E has been
nominated by DeWind and shall hold such office for a term of two (2) years or
until the Flip Point occurs, whichever is later, and thereafter the Management
Committee shall appoint as President a person nominated by Higher Perpetual, to
hold office for a term of two (2) years, and thereafter the position of
President shall be held for two (2) year terms by nominees of the each of the
Members in alternating succession.  The President shall, subject to
the control of the Management Committee in general, supervise all of the
business and affairs of the Company.  The President shall preside at
all meetings of the Members and (if the President is a member of the Management
Committee) of the Management Committee. The President shall be the chief
executive officer of the Company. The President may sign, and (if required by
the Management Committee) with the Secretary or any other proper officer of the
Company thereunto authorized by the Management Committee, any deeds, mortgages,
bonds, contracts or other instruments which the Management Committee has
authorized to be executed, except in cases where the signing and execution
thereof shall be expressly delegated by the Management Committee or by this
Agreement to some other officer or agent of the Company, or shall be required by
law to be otherwise signed and executed, and in general shall perform all duties
incident to the office of President and such other duties as may be prescribed
by the Management Committee from time to time.
 Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 58
  (e)           Vice
Presidents.  Each Member shall nominate one Vice President to
perform the usual and customary duties that pertain to such office (but no
unusual or extraordinary duties or powers conferred by the Management Committee
upon the President) and, under the direction and subject to the control of the
Management Committee, such other duties as may be assigned to a Vice
President.
  (f)           Secretary.  The
Secretary shall be nominated by the Member which is, or whose Affiliate is,
performing the duties of Administrator under the Project Administration and
Development Services Agreement and elected by the Management Committee. To the
extent not performed or assigned to the Administrator pursuant to such
agreement, the Secretary shall have the following duties and responsibilities.
The Secretary shall attend all meetings of the Management Committee and record
correctly the proceedings had at such meetings, and actions of the Member, in a
book suitable for that purpose. The Secretary shall give, or cause to be given,
notice of all meetings of the Management Committee and shall perform such other
duties as may be prescribed by the Management Committee or President, under
whose supervision he or she shall serve. The Secretary shall see that all books,
reports, statements, certificates and other documents and records of the Company
required by Law to be kept or filed are properly kept or filed, as the case may
be. The person holding the office of Secretary shall also perform, under the
direction and subject to the control of the Management Committee, such other
duties as may be assigned to the Secretary. The duties of the Secretary may also
be performed by any Assistant Secretary.
  (g)           Treasurer.
To the extent not performed by the Administrator under the Project
Administration and Development Services Agreement, the Treasurer, if elected,
shall have the following duties and responsibilities. The Treasurer shall keep
such moneys of the Company as may be entrusted to his or her keeping and account
for the same. The Treasurer shall be prepared at all times to give information
as to the condition of the Company and shall make a detailed annual report of
the entire business and financial condition of the Company. The person holding
the office of Treasurer shall also perform, under the direction and subject to
the control of the Management Committee, such other duties as may be assigned to
the Treasurer. The duties of the Treasurer may also be performed by any
Assistant Treasurer.
  (h)           Other
Officers. Assistant Secretaries, if any, and Assistant Treasurers, if
any, shall have the duties set forth in Section 6.06(f) and
(g),
respectively. Any officer whose duties are not set forth in Section 6.06 shall
have such duties as the Management Committee or the President may
prescribe.
  (i)           Delegation of
Authority.  In the case of any absence of any officer of the
Company or for any other reason that the Management Committee may deem
sufficient, the Management Committee may delegate some or all of the powers or
duties of such officer to any other officer or to any Member, manager, employee
or agent for whatever period of time seems desirable.
 Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 59
  6.07       Budgets .  Commencing
with the fiscal year after the Approved Budget for any Wind Farm in which
completion of the construction of such Wind Farm is anticipated to occur, the
Management Committee shall prepare or cause to be prepared for each fiscal year
of the Company an operating budget setting forth the anticipated revenues and
expenses of the Sub owning such Wind Farm and the Company for such fiscal year,
it being understood that the operating budget for the year in which the
construction of such Wind Farm is completed may, in the Management Committee’s
discretion, contain the budget for the remaining months of such year (the “Stub
Year”) and the budget for the next succeeding calendar year (the “First Full
Year”). The Management Committee shall prepare or cause to be prepared,
and approve, an operating budget for each Wind Farm for the fiscal year
immediately succeeding the First Full Year (each budget as approved, an “Approved
Operating Budget”) for such Wind Farm.  If the Management
Committee is unable to agree upon a proposed operating budget for any Wind Farm,
the Approved Operating Budget from the immediately preceding year (or, if none,
the last Approved Operating Budget actually approved by the Management Committee
hereunder) increased in each line item (but not decreased) by a factor of one
hundred percent (100%) of the percentage change in the GDPIPD (if any) during
the immediately preceding calendar year shall serve as an Approved Operating
Budget for such year, until a more current Approved Operating Budget is approved
by the Management Committee in accordance herewith.
  6.08       Members Right to
Act in Certain Circumstances .  Notwithstanding
anything contained herein to the contrary including Section 6.03, if the
Management Committee fails to enforce any rights of the Company or the Subs
under any material contract, lease or agreement with any Affiliate of a Member,
including the Transaction Documents, the other Members, who shall have
determined in their reasonable commercial discretion that the enforcement of
such rights are in the best interest of the Company or Subs (without regard to
the subject Member) shall cause the Company or the Subs to enforce such rights
or may enforce such rights (including the right to terminate such contract,
lease or agreement) on behalf of the Company or the Subs if the Company or the
Subs fail to do so.
  6.09       HSSE
Standards .  All
activities and work performed for or by the Company or for or by the Subs shall,
at a minimum, comply with all Health, Safety, Security, and Environmental
(“HSSE”)
policies, standards, and requirements pursuant to an HSSE site plan as mutually
agreed upon by the Members.
  6.10       Construction
Management .  The
Company shall cause the Subs to enter into the Construction Management Agreement
with the Construction Manager providing for construction management services for
the construction of the Wind Farms.
  6.11       Operations and
Maintenance Agreement .  The
Company will cause the Subs to enter into the O&M Agreement for the
providing of operations management services for the Wind Farms. The Operator
shall report to the Management Committee.
  6.12       Project
Administration and Development Services Agreement .  The
Company shall cause the Subs to enter into the Project Administration and
Development Services Agreement with the Administrator for the provision of
administrative services to the Company and the Wind Farms.
  6.13       Employees .  Unless
otherwise determined by the Management Committee, the Company shall have no
employees. Officers shall not be deemed to be employees of the Company by virtue
of holding their positions as officers.
 Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 60
  ARTICLE
VII
  TAXES
  7.01       Tax
Returns .  The
Company shall prepare or cause to be prepared and timely file all tax returns
required to be filed by the Company and any of its subsidiaries pursuant to the
Code and all other tax returns, including but not limited to any sales, use,
property, or excise tax returns, deemed necessary and required in each
jurisdiction in which the Company or any of its subsidiaries does
business.  To facilitate the timely filing of tax returns, the Members
shall cause the audit of the Company and any subsidiary for the preceding fiscal
year to be completed no later than ninety (90) days after the end of such fiscal
year and all draft tax returns for the Company and any subsidiary to be
completed no later than one hundred twenty (120) days after the end of such
fiscal year.  The Company shall bear the costs of the preparation and
filing of its returns.
  7.02       Tax
Elections .  The
Company shall make and maintain the following elections for tax
purposes:
  (a)           to
adopt the calendar year as the Company’s taxable year, unless otherwise required
under the Code;
  (b)           to
adopt the accrual method of accounting and to keep a set of the Company’s books
and records on such method for income tax purposes;
  (c)           if
a transfer of Membership Interest as described in Code Section 743 occurs, on
request by notice from the transferring Member, to elect, at such Member’s cost,
pursuant to Code Section 754, to adjust the basis of the Company’s
properties;
  (d)           to
elect to amortize the organizational expenses of the Company pursuant to
Section 709(b) of the Code and to amortize the start-up expenditures of the
Company pursuant to Section 195 of the Code ratably over the shortest time
period permitted by such sections;
  (e)           to
adopt a permissible method of depreciation that allows for the most accelerated
method of depreciating assets;
  (f)           to
elect under Section 6231(a)(1)(B)(ii) to apply the provisions of Subchapter C of
Chapter 63 (as contained in Subtitle A of the Code) with respect to the Company
and thereby be subject to the provisions of Sections 6221 through 6234 of the
Code; and
  (g)           any
other election the Members may deem appropriate and in the best interests of the
Company and the Members; provided that the Company is not permitted to elect to
be classified as an association taxable as a corporation for any tax
purpose.  The Members shall take all reasonable actions, including the
amendment of this Agreement and the execution of other documents, (i) as
may reasonably be required for the Company, in its capacity as a limited
liability company, to qualify for and receive “partnership” treatment for
federal, state, local and foreign income tax purposes and (ii) to realize
this intention including, but not limited to, such actions as prescribed by
Treasury Regulations Section 301.7701-3(c).
 Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 61
  7.03       Tax Matters
Member .  Until
otherwise determined by the Management Committee, DeWind shall be the “tax matters
partner” of the Company pursuant to Code Section 6231(a)(7) (the
“Tax
Matters Member”).  The Tax Matters Member shall comply with the
responsibilities outlined in Sections 6221 through 6233 of the Code (including
any Treasury Regulations promulgated thereunder).
  (a)           The
Tax Matters Member shall keep each other Members informed as to the status of
any audit or administrative or judicial proceeding relating to the Company,
including, without limitation, any dispute with the Internal Revenue Service or
any state, local or foreign tax authority, and shall promptly deliver to each
other Member copies of any written communications or notices received by the Tax
Matters Member in connection with any such audit, dispute, or administrative or
judicial proceeding.
  (b)           The
Tax Matters Member shall not submit any written communications to the Internal
Revenue Service or other taxing authority or to any administrative body or
governmental or judicial authority on behalf of the Company or the Subs without
first providing such communications to the Members for review and
comment.  The Tax Matters Member shall give advance notice to the
Members of any hearings or proceedings relating to the Company and shall permit
the Members to participate in any such hearings or
proceedings.  Except as otherwise required by law, the Tax Matters
Member shall obtain the written consent of the Members prior to entering into
any settlement, making any filings (other than tax returns) with or entering
into any agreements with the Internal Revenue service or any state, local or
foreign tax authority on behalf of the Company or the Subs, or making any
filings with any court on behalf of the Company or the Subs.  Any
third party fees or other expenses reasonably incurred by the Tax Matters Member
in connection with its duties, including the preparation for or pursuance of
administrative or judicial proceedings, shall be paid by the
Company.
  (c)           The
Tax Matters Member is authorized to amend this Agreement, without the consent of
any other Member, to comply with any safe harbor finalized by the U.S.
Department of the Treasury or the Internal Revenue Service relating to the tax
treatment of a transfer of an interest in the Company for
services.  For example, this Section 7.03(c) shall
apply to any safe harbor finalized by Internal Revenue Service notice or
Treasury Regulations as successor to the proposed safe harbor described in
Internal Revenue Service Notice 2005-43.  In the event any such safe
harbor is finalized and elected by the Company, all Members agree to comply with
all the requirements of such safe harbor and any such amendments to this
Agreement that the Tax Matters Member effects pursuant to this Section
7.03(c).
  ARTICLE
VIII
  BOOKS, RECORDS, REPORTS, AND
BANK ACCOUNTS
  8.01       Maintenance of
Books .
  (a)           The
Company shall keep or cause to be kept at the principal office of the Company or
at such other location the Company deems appropriate complete and accurate books
and records of the Company, supporting documentation of the transactions with
respect to the conduct of the Company’s business and minutes of the proceedings
of its Members, and any other books and records that are required to be
maintained by applicable Law.
 Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 62
  (b)           The
books of account of the Company shall be (i) maintained on the basis of a
fiscal year that is the calendar year, (ii) maintained on an accrual basis
in accordance with GAAP, and (iii) audited by the auditor selected by the
Management Committee, or if the Management Committee cannot select an auditor in
time for such auditor to commence and perform an annual audit of the financial
statements and accounting records of the Company, the Administrator shall select
a nationally known accounting firm to perform such audit.
  8.02       Reports .  The
Administrator shall prepare or cause to be prepared and deliver or cause to be
delivered to each Member such annual, quarterly and monthly reports, including
annual audited financial statements as are specified in the O&M
Agreement.
  8.03       Bank
Accounts .  Funds
shall be deposited in the Company’s accounts maintained in such banks or other
depositories as shall be designated from time to time by the
Company.  All withdrawals from any such depository shall be made only
as authorized by the Company.
  ARTICLE
IX
  DISSOLUTION, WINDING-UP AND
TERMINATION
  9.01       Dissolution .  The
Company shall dissolve and its affairs shall be wound up on the first to occur
of the following events (each a “Dissolution
Event”):
  (a)           the
unanimous vote of the Members;
  (b)           an
event that makes it unlawful for the business of the Company to be carried
on;
  (c)           entry
of a decree of judicial dissolution of the Company under Section 18-802 of
the Act; or
  (d)           by
a Contributing Member as provided for in Section
4.03(d).
  9.02       Winding-Up and
Termination .
  (a)           On
the occurrence of a Dissolution Event, the Management Committee, or such Member
or other Person as the Management Committee shall designate (the “Liquidator”)
shall proceed diligently to wind up the affairs of the Company (and any Sub if
such Sub is owned by the Company at the time) and make final distributions as
provided herein and in the Act.  The costs of winding up shall be
borne as a Company expense.  Until final distribution, the Liquidator
shall continue to operate the Company’s assets with the same power and authority
they had prior to the Dissolution Event.  The steps to be accomplished
by the Liquidator are as follows:
  (i)           as
promptly as possible after dissolution and again after final winding up, the
Liquidator shall cause a proper accounting to be made by a recognized firm of
certified public accountants of the Company’s assets, liabilities, and
operations through the last Day of the month in which the dissolution occurs or
the final winding up is completed, as applicable;
 Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 63
  (ii)           the
Liquidator shall discharge from the Company’s funds all of the debts,
liabilities and obligations of the Company (including all expenses incurred in
winding up and payment in full of all guarantees and loans described in Section 4.05) or
otherwise make adequate provision for payment and discharge thereof (including
the establishment of a cash escrow fund for contingent liabilities in such
amount and for such term as the Liquidator may reasonably determine);
and
  (iii)           all
remaining assets of the Company shall be distributed to the Members as
follows:
  (A)           the
Liquidator may sell any or all the Company’s assets, including to Members;
and
  (B)           the
Company’s assets (including cash) shall be distributed in accordance with Section 5.01.
  (b)           The
distribution of cash or other assets to a Member in accordance with the
provisions of this Section 9.02
constitutes a complete return to the Member of its Capital Contributions and a
complete distribution to the Member of its Membership Interest and all the
Company’s assets and constitutes a compromise to which all Members have
consented pursuant to Section 18-502(b) of the Act.  To the
extent that a Member returns funds to the Company, it has no claim against any
other Member for those funds.
  9.03       Certificate of
Cancellation .  On
completion of the distribution of Company assets as provided herein, the Members
(or such other Person or Persons as the Act may require or permit) shall file a
certificate of cancellation with the Secretary of State of Delaware, cancel any
other filings made pursuant to Section 2.05,
and take such other actions as may be necessary to terminate the existence of
the Company.  Upon the filing of such certificate of cancellation, the
existence of the Company shall terminate (and the Term shall end), except as may
be otherwise provided by the Act or other applicable Law.
  ARTICLE
X
  BUY-SELL
PROVISIONS
  10.01     Buy-Sell on
Deadlock
  (a)           If
(i) (A) there has been put to a vote of the Management Committee at two
consecutive meetings any of the following matters:
  (I)           the
incurrence or assumption of any indebtedness by the Company or any Sub except
for unsecured indebtedness of the Company in principal amount not in excess of
$5,000,000,
 Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 64
  (II)           the
adoption or approval of any change order to the turbine supply agreement or
balance of plant construction agreement for the Wind Farm,
  (III)           the
expenditure of more than $2,000,000 in any year for the purpose of repairs of
equipment of the Company or any Sub,
  (IV)           the
making of capital expenditures in excess of $2,000,000 in any year,
or
  (V)           the
sale, or entry into an agreement to make a sale, of electricity to any Person,
or any Hedging Arrangement related to electricity commodity risk,
or
  (B)           there
has been put to a vote of the Members for two weeks any valuation to be agreed
by the Members in connection with this Agreement or a Disposition described in
the proviso to Section 6.03(c)(x)
requiring approval of all Members (each of clauses (A)(I)
through (A)(V)
and (B), a
“Vital
Matter”),
  (ii)           the
Vital Matter has not been approved by the Management Committee or all of the
Members, as the case may be, and
  (iii)           a
Member notifies the other Members in writing declaring that a deadlock exists as
to such Vital Matter (a “Deadlock”),
  then the
Members will use all reasonable efforts to reach a satisfactory solution by
referring the Deadlock to senior management of each of the Members or their
parent entities in accordance with Clause
10.01(b).
  (b)           In
the event that a Deadlock has been declared, senior management of the Members or
their parent entities will meet as soon as possible, on no less than seven (7)
days’ written notice, unless specifically agreed otherwise.  Such
senior management shall examine any submissions by the Members, and shall, if
the Deadlock cannot be resolved immediately, agree to convene for further
negotiations aimed at resolving the Deadlock.
  (c)           Should
such senior management be unable to resolve the Deadlock within twenty-one (21)
days, then either Member may within a period of time not to exceed sixty (60)
days following the end of such twenty-one (21) day period, offer (such offer,
the “Buy/Sell
Offer” and such offering Member, the “Offeror”)
to the other Member (such party, the “Offeree”)
either (x) to purchase all of the Membership Interests held by the Offeree
or (y) to sell all of the Offeror’s Membership Interests to the
Offeree.
  (d)           The
Buy/Sell Offer shall set forth any and all material terms and conditions of the
offer to buy or sell in a form of a definitive Purchase and Sale Agreement
(“Buyout
PSA”), including the cash price per Membership Interest for the
Membership Interests that will be bought and sold.  Further, the
Buyout PSA for the purchase and sale transaction contemplated by the Buy/Sell
Offer shall include the requirement that the parties thereto consummate the
transaction within sixty (60) days (or such longer period of time as shall be
necessary to obtain any required approval of a Governmental Authority) after the
Offeree’s acceptance of the Buy/Sell Offer (or its reverse (as set forth in (e)
below) or the Offeree’s deemed acceptance of the Buy/Sell Offer as set forth in
(e) below.
 Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 65
  (e)           The
Buy/Sell Offer shall be irrevocable for a period of sixty (60) days after the
date the Offeree receives the Buy/Sell Offer.  Before the expiry of
the sixty-day period, as provided in the foregoing sentence, the Offeree shall
provide the Offeror written notice whereby (i) the Offeree accepts the
Buy/Sell Offer and all terms and conditions of the Buyout PSA, or (ii) the
Offeree reverses the Buy/Sell Offer on exactly the same terms and conditions as
set forth in the Buyout PSA and accepts all of the terms and conditions of such
Buyout PSA. If the Offeree fails to so respond in writing before such expiry of
the ninety-day period, the Offeree shall be deemed to have accepted the Buy/Sell
Offer and the terms of the Buyout PSA as proposed to it by the
Offeror.
  (f)           Upon
the acceptance, or deemed acceptance of the Buy/Sell Offer, the Member which
shall have accepted or been deemed to have accepted such Buy/Sell offer shall
purchase, and the other Member shall sell, the Membership Interests for the
purchase price set forth in the Buyout PSA within sixty (60) days (or such
longer period of time as shall be necessary to obtain any required approval of a
Governmental Authority) following the acceptance of such Buy/Sell
Offer.
  10.02     Dispute
Resolution of Buy-Sell on Deadlock .  Any
dispute regarding the provisions of this Article X may,
notwithstanding any other provision in this Agreement, be resolved in any court
of competent jurisdiction in Harris County, Texas, and either Party is entitled
to seek any remedies, at law or in equity (including specific performance) in
connection with any such dispute.
  ARTICLE
XI
  GENERAL
PROVISIONS
  11.01     Member
Marks .  The
Company agrees that it shall not use or permit others to use in any manner or
medium (i) with respect to DeWind the following: any service marks, trade
names, trade dress or other indicia of origin of DeWind or any other Affiliate
of DeWind, without the prior express written consent of DeWind; and
(ii) with respect to Higher Perpetual, the following: any service marks,
trade names, trade dress or other indicia of origin of Higher Perpetual or any
other Affiliate of Higher Perpetual, without the prior express written consent
of Higher Perpetual.
  11.02     Notices .  Except
as expressly set forth to the contrary in this Agreement, all notices, requests
or consents provided for or permitted to be given under this Agreement must be
in writing and must be delivered to the recipient in person, by courier or mail
or by facsimile or other electronic transmission.  A notice, request
or consent given under this Agreement is effective on receipt by the Member to
receive it; provided, however, that a facsimile or other electronic transmission
that is transmitted to a Member after 5:00 pm the recipient’s time shall be
deemed effective on the next Business Day.  All notices, requests and
consents to be sent to a Member must be sent to or made at the addresses given
for that Member on Exhibit A, or
such other address as that Member may specify by notice to the other
Members.  Any notice, request or consent to the Company must be given
to all of the Members.  Whenever any notice is required to be given by
Law, the Delaware Certificate or this Agreement, a written waiver thereof,
signed by the Person entitled to notice, whether before or after the time stated
therein, shall be deemed equivalent to the giving of such notice.
 Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 66
  11.03     Entire Agreement;
Superseding Effect .  This
Agreement constitutes the entire agreement of the Members relating to the
Company and the transactions contemplated hereby and supersedes all provisions
and concepts contained in all prior contracts or agreements between the Members
with respect to the Company and the transactions contemplated hereby, whether
oral or written.
  11.04     Effect of Waiver
or Consent .  Except
as otherwise provided in this Agreement, a waiver or consent, express or
implied, to or of any breach or default by any Member in the performance by that
Member of its obligations with respect to the Company is not a consent or waiver
to or of any other breach or default in the performance by that Member of the
same or any other obligations of that Member with respect to the
Company.  Except as otherwise provided in this Agreement, failure on
the part of a Member to complain of any act of any Member or to declare any
Member in default with respect to the Company, irrespective of how long that
failure continues, does not constitute a waiver by that Member of its rights
with respect to that default until the applicable statute-of-limitations period
has run.
  11.05     Amendment or
Restatement .  This
Agreement or the Delaware Certificate may be amended or restated only by a
written instrument executed (or, in the case of the Delaware Certificate,
approved) by all of the Members.
  11.06     Binding
Effect .  Subject
to the restrictions on Dispositions set forth in this Agreement, this Agreement
is binding on and shall inure to the benefit of the Members and their respective
successors and permitted assigns.
  11.07     Governing Law;
Severability .  This
Agreement is governed by and shall be construed in accordance with the Law of
the State of Delaware, excluding any conflict-of-laws rule or principle that
might refer the governance or the construction of this Agreement to the Law of
another jurisdiction.  In the event of a direct conflict between the
provisions of this Agreement and any mandatory, non-waivable provision of the
Act, such provision of the Act shall control.  If any provision of the
Act provides that it may be varied or superseded in a limited liability company
agreement (or otherwise by agreement of the members or managers of a limited
liability company), such provision shall be deemed superseded and waived in its
entirety if this Agreement contains a provision addressing the same issue or
subject matter.  If any provision of this Agreement or the application
thereof to any Member or circumstance is held invalid or unenforceable to any
extent, (a) the remainder of this Agreement and the application of that
provision to other Members or circumstances is not affected thereby, and
(b) the Members shall negotiate in good faith to replace that provision
with a new provision that is valid and enforceable and that puts the Members in
substantially the same economic, business and legal position as they would have
been in if the original provision had been valid and enforceable.
 Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 67
  11.08     Further
Assurances .  In
connection with this Agreement and the transactions contemplated hereby, 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 Agreement and those
transactions.
  11.09     Waiver of Certain
Rights .  Each
Member irrevocably waives any right it may have to maintain any action for
dissolution of the Company or for partition of the assets of the
Company.
  11.10     Limitation of
Liability .  THE
EXPRESS REMEDIES AND MEASURES OF DAMAGES PROVIDED FOR IN THIS AGREEMENT SHALL BE
THE SOLE AND EXCLUSIVE REMEDIES FOR A PARTY HEREUNDER AND ALL OTHER REMEDIES OR
DAMAGES AT LAW OR IN EQUITY ARE WAIVED.  IF NO REMEDY OR MEASURE OF
DAMAGES IS EXPRESSLY HEREIN PROVIDED, A PARTY’S LIABILITY SHALL BE LIMITED TO
ACTUAL DAMAGES ONLY, SUCH ACTUAL DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY
AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE
WAIVED.  NEITHER PARTY SHALL UNDER ANY CIRCUMSTANCES BE LIABLE FOR
CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, LOST PROFITS
OR OTHER BUSINESS INTERRUPTION DAMAGES, WHETHER BY STATUTE, IN TORT OR CONTRACT
OR OTHERWISE.  THE LIMITATIONS IN THIS SECTION IMPOSED ON REMEDIES AND
THE MEASURE OF DAMAGES SHALL BE WITHOUT REGARD TO THE CAUSE OR CAUSES RELATED
THERETO, INCLUDING THE NEGLIGENCE OF ANY PARTY AND STRICT
LIABILITY.  TO THE EXTENT ANY DAMAGES REQUIRED TO BE PAID HEREUNDER
ARE LIQUIDATED, THE PARTIES ACKNOWLEDGE THAT THE DAMAGES ARE DIFFICULT OR
IMPOSSIBLE TO DETERMINE, OTHERWISE OBTAINING AN ADEQUATE REMEDY IS INCONVENIENT
AND THE LIQUIDATED DAMAGES CONSTITUTE A REASONABLE APPROXIMATION OF THE HARM OR
LOSS.
  11.11     Dispute
Resolution Procedures .  The
Members agree that except as provided in Section 5.04(c)
and Section 10.02,
all Disputes among them shall be resolved in accordance with the Dispute
Resolution Procedures set forth in Exhibit D
hereto.
  11.12     Counterparts .  This
Agreement may be executed in any number of identical counterparts with the same
effect as if all signing parties had signed the same document.  All
counterparts shall be construed together and constitute the same
instrument.
  11.13     Third Party
Rights .  The
provisions of this Agreement are intended solely to benefit the Members and, to
the fullest extent permitted by applicable Law, should not be construed as
conferring any benefit upon any other Person.
  [Rest
of page left blank intentionally]
 Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 68
 
  Signature
Page
 to
 Limited
Liability Company Agreement
 ofDEWIND SWI WIND FARMS,LLC
 
 IN
WITNESS WHEREOF, the Members have executed this Agreement as of the date first
set forth above.
  DeWind:
                    DEWIND
      ENERGY DEVELOPMENT COMPANY, LLCBy:
                  /s/Name:Title:Perpetual:
                    HIGHER
      PERPETUAL ENERGY, LLCBy:
                  /s/Name:Title:
 Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 
 
 EXHIBIT A
 to
 Limited
Liability Company Agreement
 of DeWind
SWI Wind Farms, LLC Dated as of October 6, 2008
  MEMBERS
  Name,
Address, Capital Contribution
  DeWind:
  1.
                Name
      and address:
  DeWind
Energy Development Company, LLC
 2026
McGaw Avenue
 Irvine,
CA  92614
 Attention:
Michael McIntosh
 Tel:
+1-949-428-8500
 Fax:
+1-949-660-1533
 
 With
Copies To:
 
 DeWind,
Inc.
 44 Cook
Street #600
 Denver,
CO 80206
 Attention:
President
 Tel:
+1-303-270-0141
 Fax:
+1-303-270-0143
 
 2.
                Agreed
      Value of Capital Contribution for DeWind Contributed
      Assets:  $2,054,122, consisting of the DeWind Contributed
      Assets.  As set forth in the Capital Contribution Agreement,
      $870,000 of cash contributed as of the Effective Date to the Company, and
      $1,184,122 of cash and assets to be contributed
  thereafter.
  3.
                Initial
      Representatives:  Michael McIntosh and Robert C.
      Rugh
 Exhibit A
to
 Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 Page
1
  Higher
Perpetual:
  1.
                Name
      and address:
  Higher
Perpetual Energy, LLC
 222 West
Las Colinas Blvd
 Millenium
Centre
 Suite
1650
 Irving,
TX 75039
 Attention:
Mark Patkunas
 Tel:
+1-972-444-2575 or +1-214-636-5613
 Fax:
+1-972-444-2579
 
 With
Copies To:
 
 Perpetual
Energy Limited
 Booths
Park 1
 Booths
Hall
 Chelford
Road
 Knutsford
 Cheshire  WA16
8GS
 Attention:
David Tatton
 Tel:
+44-1565-757829
 Fax:
+44-1565-757852
  2.
                Agreed
      Value of Capital Contribution:  $2,584,500, consisting of the
      Higher Perpetual Contributed Assets, as set forth in Exhibit A to the
      Capital Contribution Agreement plus the undertakings under this Agreement
      and Paragraph 4 of the Developer Agreement (“Higher
      Perpetual Contributed
Assets”).
  3.
                Initial
      Representatives:  Mark Patkunas and David
  Tatton
 
 MAXIMUM
CASH CALLS
 
 1.
                For
      Little Pringle One:
 DeWind:  100%
      of $23,000,000
 Higher
      Perpetual:  $0
 
 2.
                For
      Little Pringle Two:
 The
      aggregate amount of Capital Calls shall be as determined by the Management
      Committee, with contributions to be made by each Member in accordance with
      its Contribution Percentage.
 Exhibit A
to
 Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 Page
2
 3.
                For
      Big Pringle:
 The
      aggregate amount of Capital Calls shall be as determined by the Management
      Committee, with contributions to be made by each Member in accordance with
      its Contribution Percentage.
 
 4.
                For
      Palo Duro:
 The
      aggregate amount of Capital Calls shall be as determined by the Management
      Committee, with contributions to be made by each Member in accordance with
      its Contribution Percentage.
 Exhibit A
to
 Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 Page
3
 
 EXHIBIT B
 to
 Limited
Liability Company Agreement
 of DeWind
SWI Wind Farms, LLC Dated as of October 6, 2008
 
 (Intentionally
deleted.)
 Exhibit B
to
 Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 Page
1
 
 EXHIBIT C
 to
 Limited
Liability Company Agreement
 of DeWind
SWI Wind Farms, LLC Dated as of October 6, 2008
  FORM
OF CERTIFICATE
  THE
MEMBERSHIP INTEREST REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”) OR
ANY STATE SECURITIES LAWS.  ACCORDINGLY, SUCH MEMBERSHIP INTEREST MAY
NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF WITHOUT COMPLIANCE WITH SUCH
ACT AND SUCH STATE SECURITIES LAWS, AND THE COMPANY MAY REQUIRE AN OPINION OF
COUNSEL SATISFACTORY TO IT THAT NO VIOLATION OF SUCH ACT AND SUCH STATE
SECURITIES LAWS WILL RESULT FROM ANY PROPOSED SALE, TRANSFER, OR OTHER
DISPOSITION OF SUCH MEMBERSHIP INTEREST.
  THIS
CERTIFICATE EVIDENCES A MEMBERSHIP INTEREST IN DEWIND SWI WIND FARMS,LLC (THE “COMPANY”)
AND SHALL BE A SECURITY FOR THE PURPOSES OF ARTICLE 8 OF THE UNIFORM
COMMERCIAL CODE AS IN EFFECT IN THE STATE OF DELAWARE. TRANSFER OR ENCUMBRANCE
OF THE MEMBERSHIP INTEREST REPRESENTED BY THIS CERTIFICATE IS RESTRICTED BY THE
PROVISIONS OF THE LIMITED LIABILITY COMPANY AGREEMENT OF THE COMPANY, A COPY OF
WHICH MAY BE INSPECTED AT THE PRINCIPAL OFFICE OF THE COMPANY, AND ALL THE
PROVISIONS OF WHICH ARE INCORPORATED BY REFERENCE IN THIS
CERTIFICATE.
  No.  [1]
                  DEWIND
      SWI WIND FARMS, LLC
                    a
      Limited Liability Company
                    under
      the laws of the State of Delaware
                    
                    Membership
      Interest Certificate
  This
certifies that ______________________ is the owner of the Membership Interest in
DEWIND SWI WIND FARMS,LLC (the “Company”)
shown above, which Membership Interest is subject to the terms of the Limited
Liability Company Agreement of DeWind SWI Wind Farms, LLC, dated as of October
6, 2008, as the same may be amended, restated, modified or supplemented from
time to time in accordance with the terms thereof (the “Limited Liability
Company Agreement”).
  This
Membership Interest Certificate may be transferred by the lawful holders hereof
only in accordance with the provisions of the Limited Liability Company
Agreement.
  IN
WITNESS WHEREOF, the said Company has caused this Membership Interest
Certificate to be signed by its duly authorized Member or officer this
__ day of _______, _____.
  DEWIND
      SWI WIND FARMS,LLCBy:Name:Title:
 Exhibit C
to
 Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 Page
1
 INSTRUMENT OF TRANSFER OFMEMBERSHIP
INTEREST INDEWIND SWI WIND FARMS, LLC
  FOR VALUE
RECEIVED, the undersigned does hereby sell, assign and transfer unto
________________________________________________________
 (print or
type name of assignee)
  the
Membership Interest evidenced by and within the Membership Interest Certificate
herewith, and does hereby irrevocably constitute and appoint ___________________
as attorney to transfer said interest on the books of DEWIND SWI WIND
FARMS,LLC, with
full power of substitution in the premises.
  Dated as
of:  _______________
 By:Name:Title:
 
 EXHIBIT D
 to
 Limited
Liability Company Agreement
 of DeWind
SWI Wind Farms, LLC Dated as of October 6, 2008
  DISPUTE
RESOLUTION PROCEDURES
  1.0
                Applicability
  Unless
stated otherwise herein, all Disputes shall be resolved in accordance with the
dispute resolution procedures set forth in this Exhibit D.
Notwithstanding the foregoing, (a) the Parties may at any time seek
injunctive or equitable relief from a court of competent jurisdiction, and
(b) nothing herein shall prevent a Party from defending or pursuing any
claim in a court or other proceeding against a third party that has been
initiated by such third party.
  2.0
                Negotiations
      By Senior Management
  2.1           In
the event of a Dispute between the Parties, the Parties will use all reasonable
efforts to reach a satisfactory solution by referring the Dispute to senior
management of each of the Parties.
  2.2           Senior
management of the Parties will meet as soon as possible, on no less than seven
(7) Days’ written notice, unless specifically agreed otherwise and shall
negotiate in good faith.  Senior management of the Parties shall
examine any submissions by the Parties, and shall, if the Dispute cannot be
resolved immediately, agree to convene for further negotiations aimed at
resolving the Dispute.
  2.3           Should
senior management of the Parties be unable to resolve the Dispute within thirty
(30) Days after commencement of negotiation by such senior management, then the
Parties shall be entitled to pursue any and all available remedies at law,
equity or contract in accordance with Section 3 of this
Exhibit D
below.
  3.0
                Jurisdiction;
      Consent to Service of Process; Waiver of Jury
  Trial
  3.1           Any
Dispute, which cannot be amicably resolved by the Parties hereto as provided
above, shall be exclusively resolved in the Texas Courts in accordance with this
Section 3 of
this Exhibit
D.
  3.2           Each
of the Parties hereby irrevocably and unconditionally submits, for itself and
its property, to the exclusive jurisdiction of any Texas State court or federal
court of the United States of America sitting in Houston, and any appellate
court from any thereof (collectively, the “Texas
Courts”), in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
Parties hereby irrevocably and unconditionally agrees that all claims in respect
of any such action or proceeding may be heard and determined in the Texas
Courts.  Each of the Parties further irrevocably consents to the service of
process in any action or proceeding in such courts by the mailing thereof by any
parties thereto by registered or certified mail, postage prepaid, to such Party
at the address specified for such Party in Section 11.02 of
this Agreement.  Each of the Parties agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
Law.
 Exhibit D
to
 Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 Page
1
  3.3           Each
of the Parties hereby irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection which it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Agreement in any Texas Court.  Each of the
Parties hereby irrevocably waives, to the fullest extent permitted by Law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
  3.4           EACH
OF THE PARTIES HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR
INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. 
EACH PARTY HERETO (A) CERTIFIES THAT IT IS RELYING ON THE WAIVER CONTAINED
HEREIN AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTION DOCUMENTS, BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION
3.4.
 Exhibit D
to
 Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 Page
2
 
 EXHIBIT E
 to
 Limited
Liability Company Agreement
 of DeWind
SWI Wind Farms, LLC Dated as of October 6, 2008
  OFFICERS
  President
                                Michael
      McIntoshSecretary
                                Robert
      C.
Rugh
 Exhibit E
to
 Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 Page
1
 
 EXHIBIT F
 to
 Limited
Liability Company Agreement
 of DeWind
SWI Wind Farms, LLC Dated as of October 6, 2008
  DEFAULT
NOTICE
  [DeWind
SWI Wind Farms, LLC Letterhead]
  [Date]
  VIA
FEDERAL EXPRESS
  [Contributing
Member]
 ________________________
   [Non-Contributing
Member]
 ________________________
  Re:  DeWind SWI Wind Farms,
LLC  Capital Contribution Default Notice
  Dear Sir
or Madame:
  This
letter is notice pursuant to Section 4.03(c) of the under the Limited Liability
Company Agreement ofDeWind SWI Wind Farms,
LLC (the “Company”), dated January __, 2008 (the “Agreement”) that
[Non-Contributing Member] (the “Non-Contributing Member”) is in default of its
obligations the Agreement to contribute capital to the Company.
  The
Administrator issued a Capital Call to the Non-Contributing Member on [date] in
the amount of $________.  The Company has provided all relevant
notices to the Non-Contributing Member and the Non-Contributing Member has not
cured its failure within thirty (30) days after the date on which the Capital
Contribution was to be made.
  The
Contributing Member has the option (without any obligation) to exercise the
remedies available under Section 4.03 of the Agreement, including the right to
dilute the ownership interest of the Non-Contributing Member, receive priority
with respect to certain distributions and voting rights and acquire the
ownership interest of the Non-Contributing Member, in accordance with, and
subject to the terms of the Agreement.
  Sincerely,DeWind
      SWI Wind Farms, LLCBy:Name:Title:
 Exhibit F
to
 Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 Page
1
 
 EXHIBIT G
 to
 Limited
Liability Company Agreement
 of DeWind
SWI Wind Farms, LLC Dated as of October 6, 2008
 
 TURBINE
SUPPLY AGREEMENT
 
 (See attached.)
 Exhibit G
to
 Limited
Liability Company Agreement of
 DeWind
SWI Wind Farms, LLC
 Page
1