Final
Execution Version




DEVELOPER
AGREEMENT




This
Developer Agreement (“Agreement”),
dated as of October 6, 2008 (“Effective
Date”) is among PERPETUAL ENERGY LIMITED, a United Kingdom private
limited company (“Perpetual”),
HIGHER POWER ENERGY, LLC, a Texas limited liability company (“Higher
Power”), DEWIND ENERGY DEVELOPMENT COMPANY, LLC, a Nevada limited
liability company (“DeWind”),
DEWIND SWI WIND FARMS, LLC, a Delaware limited liability company (“Holdco”)
and HIGHER PERPETUAL ENERGY, LLC, a Texas limited liability company (“Higher
Perpetual”) (Perpetual, Higher Power, DeWind, Holdco and Higher
Perpetual, collectively, the “Parties”,
and each, a “Party”).  Certain
capitalized terms used but not defined elsewhere in the text of this Agreement
are defined in Annex
I, attached hereto.




WHEREAS,
Higher Power has acquired leases, options, wind data, studies, permits, and
interconnection applications and other property, interests and rights (“Development
Assets and Rights”), including, without limitation, the rights described
on Exhibit A
attached hereto (collectively, the “LP1
Assets”) for the development, construction, operation and ownership of a
proposed wind farm commonly referred to as Little Pringle One 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
(“Little
Pringle One”);




WHEREAS,
Higher Power has acquired Development Assets and Rights, including, without
limitation, the rights described on Exhibit B attached
hereto (collectively, the “LP2
Assets”) for the development, construction, operation and ownership of a
proposed wind farm commonly referred to as Little Pringle Two 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
(“Little
Pringle Two”);




WHEREAS,
Higher Power has acquired Development Assets and Rights, including, without
limitation, the rights described on Exhibit C attached
hereto (collectively, the “BP
Assets”) for the development, construction, operation and ownership of a
proposed wind farm commonly referred to as Big Pringle to be located at Big
Pringle (19 miles southwest of Spearman, Texas) (“Big
Pringle”);




WHEREAS,
Higher Power has acquired Development Assets and Rights, including, without
limitation, the rights described on Exhibit D attached
hereto (collectively, the “PD
Assets”, and collectively with LP1 Assets, LP2 Assets, and BP Assets and,
to the extent substituted in accordance with the terms of this Agreement, the
Baker Assets and the Haynes Assets, the “Assets”)
for the development, construction, operation and ownership of a proposed wind
farm commonly referred to as Palo Duro to be located at Palo Duro, Randall
County, Texas, Latitude:  N34.5320 and Longitude: W101.5031 (“Palo
Duro”, and collectively with Little Pringle One, Little Pringle Two, and
Big Pringle, and to the extent other assets are substituted for such assets in
accordance with this Agreement, such substituted assets, the “Wind
Farms”);





WHEREAS,
Higher Power has, along with its affiliates, agents, and other representatives
(collectively, the “Higher Power
Parties”) entered
into various agreements and other undertakings with Perpetual and with its
affiliates, agents and other representatives (collectively, the “Perpetual
Parties”),
including the agreements and other undertakings described on Exhibit E
attached hereto relating to the Wind Farms and the Assets (collectively the
“Existing
Transaction Agreements”);




WHEREAS,
Higher Perpetual and DeWind are forming Holdco and four subsidiaries thereof,
LittlePringle1, LLC, a Delaware limited liability company (“LP1 Sub”),
LittlePringle2, LLC, a Delaware limited liability company (“LP2 Sub”),
BigPringle, LLC, a Delaware limited liability company (“BP Sub”),
and PD1, LLC, a Delaware limited liability company (“PD Sub”)
(collectively with any entities holding Baker Assets or Haynes Assets
transferred in accordance with Paragraph 4(c),
the “Subs”), to
develop, construct, own, finance, refinance and operate, or cause to be operated
Little Pringle One, Little Pringle Two, Big Pringle, and Palo Duro,
respectively, in accordance with the Limited Liability Company Agreement of
Holdco, executed as of the Effective Date (the “LLC
Agreement”);




WHEREAS,
Higher Power has agreed to convey the Assets and render the services for which
the Development Fee is being paid hereunder to Holdco to the Subs on Higher
Perpetual’s behalf, as Higher Perpetual’s initial capital contribution to
Holdco, in exchange for Holdco issuing Holdco membership interests to Higher
Perpetual, and Higher Power desires to convey the Assets to the Subs on Higher
Perpetual’s behalf, in exchange for consideration to be paid by Perpetual,
Higher Perpetual and Holdco in accordance with this Agreement (the “Transactions”);
and




WHEREAS,
Higher Power, Perpetual, DeWind, Higher Perpetual and Holdco wish to effectuate
the Transactions and settle all claims related thereto in accordance with this
Agreement.




NOW
THEREFORE, intending to be bound hereby, and relying on the undertaking of the
other Parties, the Parties agree as follows:




1.           
Perpetual
Release.  To induce Higher Perpetual, Higher Power, Holdco and
DeWind to enter into the Transactions, Perpetual on behalf of itself and the
Perpetual Parties and their respective employees, officers, directors, agents,
representatives, members, owners, subsidiaries and each of their respective
affiliates, and their respective successors and assigns, hereby RELEASES, ACQUITS, AND FOREVER
DISCHARGES THE HIGHER POWER PARTIES,HOLDCO AND DEWIND AND ALL OF THEIR
RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, REPRESENTATIVES, MEMBERS,
OWNERS, SUBSIDIARIES AND AFFILIATES ANDTHEIR RESPECTIVE SUCCESSORS AND
ASSIGNS, OF AND FROM ANY AND ALL CLAIMS, ACTIONS, CAUSES OF ACTION, LIABILITIES,
DAMAGES, OR DEMANDS, BOTH COMPENSATORY AND PUNITIVE, IN WHATEVER NAME OR NATURE,
IN CONTRACT, IN TORT, INCLUDING IN NEGLIGENCE, GROSS NEGLIGENCE, AND/OR STRICT
LIABILITY, AND/OR BY STATUTE, INCLUDING ANY AND ALL KNOWN AND UNKNOWN DEBTS,
INJURIES, LOSSES, AND/OR DAMAGES TO IT OR ITS PROPERTY ARISING OUT OF OR RELATING TO THE
ASSETS,WHETHER NOW
EXISTING OR HEREAFTER ACQUIRED OR ARISING (“CLAIMS”), OTHER THAN UNDER THIS
AGREEMENTOR THE
RESERVED CLAIMS (“PERPETUAL
RELEASED OBLIGATIONS”).


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2.
           Higher Power
Release.  To induce Higher Perpetual, Perpetual, Holdco and
DeWind to enter into the Transactions, Higher Power on behalf of itself and the
Higher Power Parties and their respective employees, officers, directors,
agents, representatives, members, owners, subsidiaries and each of their
respective affiliates, and their respective successors and assigns, hereby RELEASES, ACQUITS, AND FOREVER
DISCHARGES THE PERPETUAL PARTIES,HOLDCO AND DEWIND, AND ALL OF THEIR
RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, REPRESENTATIVES MEMBERS,
OWNERS, SUBSIDIARIES AND EACH OF THEIRRESPECTIVE AFFILIATES, AND THEIR
RESPECTIVE SUCCESSORS AND ASSIGNS, OF AND FROM ANY AND ALL CLAIMS, ACTIONS,
CAUSES OF ACTION, LIABILITIES, DAMAGES, OR DEMANDS, BOTH COMPENSATORY AND
PUNITIVE, IN WHATEVER NAME OR NATURE, IN CONTRACT, IN TORT, INCLUDING IN
NEGLIGENCE, GROSS NEGLIGENCE, AND/OR STRICT LIABILITY, AND/OR BY STATUTE,
INCLUDING ANY AND ALL KNOWN AND UNKNOWN DEBTS, INJURIES, LOSSES, AND/OR DAMAGES
TO ANY OF THEM OR THEIR PROPERTY ARISING OUT OF OR RELATING TO THE ASSETS,WHETHER NOW EXISTING OR
HEREAFTER ACQUIRED OR ARISING, OTHER THAN UNDER THIS AGREEMENTOR THE RESERVED CLAIMS
(“HIGHER POWER
RELEASED OBLIGATIONS”).




3.
           Perpetual
Obligations.  (a)  Perpetual shall pay Higher Power
the following fees upon the occurrence of the applicable event specified as
follows, but only to the extent such event occurs (each, a “Developer
Fee”, and collectively, the “Developer
Fees”):




(i)         
  on the date that Holdco or LP1 Sub receives the net proceeds of the
Permanent Financing of LP1 from a Third Party, $450,000, but not later than the
date any Sale Fee is payable for any other Wind Farm;




(ii)           on
the date that Holdco or LP2 Sub receives the net proceeds of the Permanent
Financing of LP2 from a Third Party, $450,000, but not later than the date any
Sale Fee is payable for any other Wind Farm;




(iii)          if
the BP Assets have not been transferred to Higher Power pursuant to Paragraph 4(c),
on the date that BP Sub delivers the notice to proceed (or equivalent) for all
or any material portion of the project under a construction agreement for Big
Pringle (“BP”),
$20,000 per megawatt electrical generating capacity of the wind turbines to be
installed (“Installed
Capacity”) at BP (the “Notice to Proceed
Fee”);




(iv)         if
the BP Assets have not been transferred to Higher Power pursuant to Paragraph 4(c),
on the date that Holdco or BP Sub receives the net proceeds of the Permanent
Financing of BP from a Third Party, $76,250, per megawatt of actually Installed
Capacity (the “Sale Fee”)
for BP;


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(v)           if
the PD Assets have not been transferred to Higher Power pursuant to Paragraph 4(c),
on the date that PD Sub delivers the notice to proceed (or equivalent) for all
or any material portion of the project under a construction agreement for Palo
Duro (“PD”), the
Notice to Proceed Fee;




(vi)         if
the PD Assets have not been transferred to Higher Power pursuant to Paragraph 4(c),
on the date that Holdco or PD Sub receives the net proceeds of the Permanent
Financing of PD from a Third Party, the Sale Fee for PD;




(vii)        if
the Baker Assets have been transferred to Baker Sub pursuant to Paragraph 4(c),
on the date that Baker Sub delivers the notice to proceed (or equivalent) for
all or any portion of the project under a construction agreement for Baker, the
Notice to Proceed Fee;




(viii)       if
the Baker Assets have been transferred to Baker Sub pursuant to Paragraph 4(c),
on the date that Holdco or Baker Sub receives the net proceeds of the Permanent
Financing of Baker from a Third Party, the Sale Fee for Baker;




(ix)          if
the Haynes Assets have been transferred to Haynes Sub pursuant to Paragraph 4(c),
on the date that Haynes Sub delivers the notice to proceed (or equivalent) for
all or any portion of the project under a construction agreement for Haynes, the
Notice to Proceed Fee;




(x)           if
the Haynes Assets have been transferred to Haynes Sub pursuant to Paragraph 4(c),
on the date that Holdco or Baker Sub receives the net proceeds of the Permanent
Financing of Baker from a Third Party, the Sale Fee for Haynes;




provided, however, that in the
event any Wind Farm is constructed in phases, the Developer Fees shall be
payable as provided above with respect to each phase on a pro rata basis, based
on the total Expected MWs for such Wind Farm.




(b)           Perpetual
agrees to perform its obligations under Section 4.01(c) of the LLC
Agreement.




4.           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, BP Sub and PD Sub, the assets more particularly
described in the 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
Holdco, 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 Holdco and the Subs or intended so to be, and
(ii) more fully and effectively to carry out the purposes and intent of
this Agreement.


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(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
Parties, which agreement shall not be unreasonably withheld (the “Screening
Period”), Holdco shall screen the BP Assets, the PD Assets, the Baker
Assets and the Haynes Assets to determine by unanimous consent of the Management
Committee (as defined in the LLC Agreement) the number of megawatts of wind
powered generation facilities reasonably expected to be developed with the
applicable power purchase agreements or other offtake arrangements (the “Expected
MWs”) by shall be the date 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 Holdco, the Subs and DeWind such financial information with respect to such
Assets, their plans, business, affairs and condition as of any of them may
reasonably request.  During the Screening Period and thereafter if
such assets are required to be transferred to Holdco or any Sub in accordance
with this Paragraph 4,
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 Holdco or any Sub
if and as required under this Paragraph 4.  In
furtherance of the foregoing, during such period, none of Higher Perpetual,
Higher Power or Perpetual, nor any of their Affiliates, shall solicit any
offers, market or 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, Holdco 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
Holdco and the Subs equals or exceeds the Target MWs.  Upon such
election by Holdco, 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
Contribution Agreement and related documents, including a release in the form of
Paragraphs 1 and
2 of this
Agreement, with such changes as Holdco, 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 Holdco or the Subs other than
Permitted Encumbrances, pursuant to an agreement in form and substance
reasonably acceptable to Holdco and Higher Power The assumed Installed Capacity
of the Wind Farms is set forth on Exhibit F
attached hereto.


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5.           Higher Perpetual and Holdco
Payment Obligations.




(a)           Higher
Perpetual shall pay to Higher Power each Developer Fee on the date of the
applicable event specified in Paragraph 3, but
only to the extent such event occurs and such Developer Fee has not already been
paid by Perpetual pursuant to Paragraph 3 or
by any other Person and if Higher Perpetual and Perpetual (and all other
Persons) fail to make such payment within thirty (30) days of the applicable
event specified in Paragraph 3 (or if such payment is avoided, rescinded or must
otherwise be returned by Higher Power for any reason including as a result of
any insolvency, bankruptcy or reorganization proceeding) Holdco shall pay to
Higher Power such Developer Fee; provided however
that, Holdco’s liability for any Notice to Proceed Fee shall be limited to
$10,000 per megawatt of Installed Capacity and if Holdco shall pay such amount,
Higher Power shall have been paid in full for such Notice to Proceed Fee and
shall have no claim to Perpetual, Higher Perpetual, Holdco or their Affiliates
for any additional amount pursuant to this Agreement; provided further
however, that if Holdco pays such Notice to Proceed Fee for any Wind Farm and is
required to pay the Sale Fee for such Wind Farm, such Sale Fee to be paid by
Higher Perpetual and/or Holdco shall be $86,250 per megawatt of Installed
Capacity.  Perpetual and Higher Perpetual acknowledge and agree that
Holdco shall have the ability to collect from Higher Perpetual and Perpetual the
amount of such Developer Fees 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, and that any failure by Perpetual and Higher Perpetual to make such
payment shall entitle Holdco and DeWind to exercise their rights and remedies
under Section 4.08 of the LLC Agreement and other applicable law, which
may, among other things, result in a dilution of Higher Perpetual’s Membership
Interest under the LLC Agreement.  Holdco’s obligation to pay the
Developer Fees to Higher Power when due is not subject to the making and funding
of Capital Calls under the LLC Agreement.Each
of Higher Perpetual, Perpetual and Holdco waives, to the extent permitted by
law, any applicable surety defenses; provided that Holdco's waiver shall not
impair its ability to recover any payment of the Sale Fee with interest as
described in this Section 5(a) or the ability of Holdco and DeWind to exercise
their rights described in this Section 5(a).




(b)           Holdco
shall upon Higher Power’s execution and delivery of the Contribution Agreement
on behalf of Higher Perpetual pay to Higher Power $607,500 in reimbursement for
funds currently on deposit with a government agency or other Person and assume
all rights and obligations of Higher Power with respect to all rights of Higher
Power pursuant to the interconnect applications as listed on Exhibit G
attached hereto.




(c)           Before
Permanent Financing occurs for such Wind Farm, the BP Assets (or substituted
assets pursuant to Paragraph 4(c))
and/or the PD Assets (or assets substituted pursuant to Paragraph 4(c)) may
only be sold or otherwise disposed of to a Third Party if any unpaid Developer
Fees applicable to such Assets shall have been assigned to and assumed by the
acquiring Third Party pursuant to a written agreement under which Higher Power
would receive the related Developer Fees payable on the related Commercial
Operation Date.


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6.           Performance of Development
Services.  Higher Power shall at its sole cost and expense
perform the development services on behalf of Higher Perpetual for each of Big
Pringle, Palo Duro, Baker, Haynes, and (with respect to title work only) Little
Pringle One and Little Pringle Two in accordance with Prudent Wind Industry
Practices as set forth on Exhibit H attached
hereto.




7.           Late
Payments.  In the event any payment (including Developer Fees)
due to either Party is not paid when such amount becomes due hereunder, then
interest shall accrue on such outstanding amount and shall be payable to such
Party at a rate of the Prime Rate as published in the Wall Street Journal plus two
percent per annum, or the maximum rate permitted by applicable law, whichever is
less.  Interest shall begin to accrue on the date payment was
due.




8.           Entire
Agreement.  This Agreement constitutes the entire agreement
among the Parties regarding the Assets, Perpetual Released Obligations, Higher
Power Released Obligations, Developer Fees and the other matters described in
this Agreement.  There are no other written or oral understandings or
agreements, directly or indirectly connected therewith.




9.           Higher Power Representations
and Warranties.  Higher Power hereby represents and warrants to
the other Parties that:




(a)           there
are no other costs, expenses, or liabilities owed by Higher Power, the Higher
Power Parties or any of their respective affiliates, directors, officers,
employees or agents in connection with the business or operation of the Assets,
other than the Developer Fees, for which Higher Power could or will claim
reimbursement from Higher Perpetual, Perpetual, DeWind, Holdco or any Sub
pursuant to the terms of this Agreement or otherwise;




(b)           the
Assets are not subject to 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) (“Encumbrance”)
other than Permitted Encumbrances; and




(c)           it
has, as of the date hereof (or will have, within the period determined by the
Management Committee to meet the Expected Start of Construction Date for each
Wind Farm, at its own cost and expense use its commercially reasonable efforts
in accordance with Prudent Wind Industry Practices to have):




(i)           obtained
sites and optimal placement of wind turbines at the Wind Farms (located
10 MWs at Little Pringle One, 10 MWs at Little Pringle Two,
200 MWs at Big Pringle, and 400 MWs at Palo Duro);




(ii)           obtained
all site leases for the Wind Farms on terms accepted by prudent project
financiers;


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(iii)          prepared,
submitted, and obtained all other permit applications required to design,
construct, and operate the Wind Farms;




(iv)         obtained
FAA, applicable environmental, and authority to construct permits;




(v)          obtained
tax abatements for not less than seven (7) years;




(vi)         conducted
public and community relations, including communications with local governmental
agencies and community members;




(vii)        designed,
and obtained required approvals of, any transmission and interconnect
facilities;




(viii)       coordinated
with ERCOT, the Southwest Power Pool, the Federal Energy Regulatory Commission,
and Excel, and communicated with, and assured compliance with, Texas or other
applicable state, county, and municipal regulatory agencies; and




(ix)          erected
meteorological towers or monitoring equipment sufficient to satisfy financing of
project; collected, monitored, and obtained wind resource data for Assets for at
least twelve (12) continuous months, and for not less than one (1) 60 meters in
height meteorological towers per 100 MWs of wind turbines; and obtained
transmission studies and information.




(x)           Assist
as required to support the needs of Holdco, the Subs, BOP contractors, land
lease owners, local authorities, and utilities during construction and during
commercial operations until sale of Assets by Holdco.




10.           Perpetual Representation and
Warranties.  Perpetual hereby represents and warrants to the
other Parties that there are no costs, expenses, or liabilities incurred or owed
by Perpetual, the Perpetual Parties, or any of their respective affiliates,
directors, officers, employees or agents in connection with the business or
operation of Holdco for which Perpetual could or will claim reimbursement from
Higher Perpetual, Higher Power, DeWind, Holdco or the Subs pursuant to the terms
of this Agreement or otherwise.




11.           No Assignment of
Claims.  Each of Higher Power, Higher Perpetual, Perpetual, and
Holdco hereby represents and acknowledges that it has not assigned or attempted
to assign any claim under or related to the Assets, Existing Transaction
Agreements, Perpetual Released Obligations, Higher Power Released Obligations,
Developer Fees, Perpetual Distributions Pledge, and Perpetual Distributions
Negative Pledge to any third party.  No party hereto may assign its
rights or obligations under this Agreement without the prior written consent of
the other Parties.




12.           Acknowledgement of Pledge
and Subordination.  Each of the Parties acknowledges that
Higher Perpetual has pledged its interest in the LLC Agreement, including its
membership interest and right to receive distributions, whether now existing or
hereafter acquired, to DeWind and its successor and assigns.


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13.           Prior
Claims.  Each of Perpetual and Higher Power (with respect to
its parents, affiliates, investors, and principals), hereby covenant, warrant,
and undertake that they shall not at any time initiate, assert, or bring any
claim (in any court, administrative agency, or other tribunal, anywhere in the
world) against any other Party for any claim or alleged liabilities of any kind
and nature, at law, in equity, or otherwise, known and unknown, suspected and
unsuspected, disclosed and undisclosed, relating to any past or existing claims
that were or could have been brought against any other Party regarding, related
to, or in connection with the Perpetual Released Obligations and Higher Power
Released Obligations; provided, however, that nothing
in this Paragraph
13 shall preclude any Party from enforcing its rights under this
Agreement.




14.           Acknowledgement of
Release.  The Parties acknowledge, agree, and specifically
warrant to each other that the releases contained herein are not intended to
affect any claims or liabilities among the Parties that are unrelated to the
Assets or the Existing Transaction Agreements.




15.           Joint
Drafting.  The Parties acknowledge, agree, and specifically
warrant to each other that they have fully read this Agreement and the releases
contained herein, received independent legal advice with respect to the
advisability of entering into this Agreement and the releases, and concerning
the legal effect of the releases, and fully understand the effect of this
Agreement.  In order to induce one another to enter into this
Agreement, each of the Parties represents that it has determined that the terms
of this Agreement are fair and reasonable under all the circumstances and that
this determination has been based solely upon its independent judgment after
consulting with counsel, and that, in making this determination, it has had an
adequate opportunity to discuss and assess the merits of its
claims.




16.           Severability.  If
and for so long as any provision of this Agreement shall be deemed to be judged
invalid for any reason whatsoever, such invalidity shall not affect the validity
or operation of any other provision of this Agreement except only so far as
shall be necessary to give effect to the construction of such invalidity, and
any such invalid provision shall be deemed severed from this Agreement without
affecting the validity of the balance of this Agreement.




17.           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 to the following
addresses:


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If
      to Perpetual:


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


If
      to Higher Perpetual:




Higher
      Perpetual Energy, LLC


222
      West Las Colinas Blvd


Millenium
      Centre


Suite
      1650


Irving,
      TX 75039


Attention:
      Mark Patkunas


Tel:
      +1-972-444-2575


Fax:
      +1-972-444-2579


with
      copy 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




If
      to Higher Power:




Higher
      Power Energy, LLC


2221
      Justin Rd. Suite 119-137


Flower
      Mound, TX 75028


Attention:
      Mark Patkunas


Tel:
      +1-214-636-5613


Fax:
      +1-972-317-9080  - 10
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If
      to Holdco:




DeWind
      SWI Wind Farms, LLC


2026
      McGaw Avenue


Irvine,
      CA  92614


Attention:
      Michael McIntosh


Tel:
      +1-949-428-8500


Fax:
      +1-949-660-1533


If
      to DeWind:




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
      copy to:




DeWind,
      Inc.


44
      Cook Street #600


Denver,
      CO 80206


Attention:
      President


Tel:
      +1-303-270-0141


Fax:
      +1-303-270-0143




A notice,
request or consent given under this Agreement is effective on receipt by the
Party to receive it; provided, however, that a facsimile or other electronic
transmission that is transmitted to a Party 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 Party must be sent to or made at the
addresses given for that Party above, or such other address as that Party may
specify by notice to the other Parties.  Whenever any notice is
required to be given by law 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.




18.          GOVERNING
LAW.  THE
TERMS OF THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE
LAWS OF TEXAS, WITHOUT REGARD TO ITS CONFLICT-OF-LAW RULES.  EACH OF
THE PARTIES WAIVES ITS RIGHT TO TRIAL BY JURY AND AGREES AND CONSENTS TO THE
NON-EXCLUSIVE JURISDICTION OF STATE AND FEDERAL COURTS SITTING IN HOUSTON, TEXAS
IN CONNECTION WITH ALL DISPUTES AND PROCEDURES IN CONNECTION WITH THIS
AGREEMENT.  THE PARTIES AGREE THAT 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 (A “DISPUTE”) AMONG THEM SHALL BE RESOLVED IN
ACCORDANCE WITH THE DISPUTE RESOLUTION PROCEDURES SET FORTH INEXHIBIT KHERETO.


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19.           Counterparts.  This
Agreement may be executed in counterparts by the Parties with the same force and
effect as if a single copy of this Agreement was executed by the Parties, and a
signature transmitted by facsimile (or other form of electronic transmission)
shall be deemed an original signature for the purposes of this
Agreement.




[Remainder of this page intentionally
left blank]


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20.           Each
of the signatories below represents and warrants that he or she has full power
and authority to sign this Agreement and to bind legally his or her respective
principal to all of the terms of this Agreement.




IN
WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of
the date first written above.




HIGHER PERPETUAL ENERGY, LLCBy:
                                            /s/Name:Title:PERPETUAL
      ENERGY LIMITEDBy:
                                            /s/Name:Title:HIGHER POWER ENERGY, LLCBy:
                                            /s/Name:Title:DEWIND
      SWI WIND FARMS, LLCBy:
                                            /s/Name:Title:DEWIND
      ENERGY DEVELOPMENT COMPANY, LLCBy:
                                            /s/Name:Title:


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ANNEX I




DEFINED
TERMS




“Assets” has the
meaning set forth in the Recitals.




“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 I 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.




“Big Pringle” has the
meaning set forth in the Recitals.




“BP” has the meaning
set forth in Paragraph
3(a)(iii).




“BP Assets” has the
meaning set forth in the Recitals.




“BP Sub” has the
meaning set forth in the Recitals.




“Commercial Operation
Date” means, with respect to a Wind Farm, the date upon which commercial
operation under a power purchase agreement has occurred, or if there is no power
purchase agreement, substantial completion (or the like) under construction
contracts has occurred, in each case affecting substantially all of the Expected
MWs for such Wind Farm, and such wind turbines have been placed in service for
the purpose of qualifying for federal production tax credits, if any, and
depreciation.




“Contribution
Agreement” has the meaning set forth in Exhibit
E.




“Developer Fee(s)” has
the meaning set forth in Paragraph
3(a).




“Development Assets and
Rights” has the meaning set forth in the Recitals.




“DeWind” has the
meaning set forth in the Recitals.




“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 Holdco or any Sub, 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).




“Effective Date” has
the meaning set forth in the Recitals.


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“Encumbrance” has the
meaning set forth in Paragraph
9(b).




“Existing Transaction
Agreements” has the meaning set forth in the Recitals.




“Expected MWs” has the
meaning set forth in Paragraph
4(b).




“Expected MWs TSA” has
the meaning set forth in Paragraph
4(d).




“Expected Start of
Construction Date” has the meaning set forth in Paragraph
4(b).




“GAAP” means generally
accepted accounting principles as in effect in the United States from time to
time.




“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 J
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”).




“Haynes Sub” means the
Sub owning the Haynes Assets.




“Higher Perpetual” has
the meaning set forth in the Recitals.




“Higher Power” has the
meaning set forth in the Recitals.




“Higher Power Sub I”
has the meaning set forth in Exhibit
E.




“Higher Power Sub II”
has the meaning set forth in Exhibit
E.




“Higher Power Parties”
has the meaning set forth in the Recitals.




“Higher Power Released
Obligations” has the meaning set forth in Paragraph
2.




“Holdco” has the
meaning set forth in the Recitals.




“Installed Capacity”
has the meaning set forth in Paragraph
4(a)(iii).




“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).




“Little Pringle One”
has the meaning set forth in the Recitals.




“Little Pringle Two”
has the meaning set forth in the Recitals.




“LLC Agreement” has
the meaning set forth in the Recitals.


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“LP1 Assets” has the
meaning set forth in the Recitals.




“LP1 Sub” has the
meaning set forth in the Recitals.




“LP2 Assets” has the
meaning set forth in the Recitals.




“LP2 Sub” has the
meaning set forth in the Recitals.




“Notice to Proceed
Fee” has the meaning set forth in Paragraph
3(a)(iii).




“Palo Duro” has the
meaning set forth in the Recitals.




“Party” or “Parties” has the
meaning set forth in the Recitals.




“PD” has the meaning
set forth in Paragraph
3(a)(v).




“PD Assets” has the
meaning set forth in the Recitals.




“PD Sub” has the
meaning set forth in the Recitals.




“Permanent Financing”
means on or after the Commercial Operation Date, (i) for LP1 and LP2, the
receipt by Holdco or the Sub for such Wind Farm of an amount in excess of 80% of
the Wind Farm’s actual project costs, whether upon the issuance of equity or
long term debt as determined in accordance with GAAP or the sale or other
disposition of the Sub owning such Wind Farm or of all or any portion of such
Wind Farm, and (ii) for any other Wind Farm, the receipt by Holdco or the Sub
for such Wind Farm of an amount in excess of 50% of the Wind Farm’s actual
project costs, whether upon the issuance of equity or long term debt as
determined in accordance with GAAP or the sale or other disposition of the Sub
owning such Wind Farm or of all or any portion of such Wind Farm.




“Permitted
Encumbrance” means (a) any Encumbrance for taxes not yet due or
delinquent or being contested in good faith by appropriate proceedings and for
which adequate reserves have been established in accordance with United States
generally accepted accounting principles; (b) any statutory Encumbrance for
utility assessments or other charges or assessments arising in the ordinary
course of business by operation of law with respect to a liability which is not
yet due or delinquent; (c) any Encumbrance or other matters relating to the
Assets (other than the PD Assets) disclosed in a title report delivered to
Holdco before the date of transfer of such Assets (other than the PD Assets)
pursuant to this Agreement; (d) any Encumbrance or other matters relating to the
PD Assets disclosed in a title report delivered to Holdco prior to the
expiration of the Screening Period; (e) materialmen’s, mechanics’, workers’,
repairmen’s, employees’ or other like Encumbrance, either for amounts not yet
due or for amounts being contested in good faith and by appropriate proceedings;
(f) encumbrances consisting of zoning restrictions, licenses, or restrictions on
the use of property, none of which, individually or collectively, materially
impair the property affected thereby for the purpose for which title was
acquired, materially interfere with the operation of the project, or otherwise
materially adversely impact the value of the Assets; and (g) any state of facts
that a current and accurate survey of real property would
reveal.


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“Perpetual” has the
meaning set forth in the Recitals.




“Perpetual Parties”
has the meaning set forth in the Recitals.




“Perpetual Released
Obligations” has the meaning set forth in Paragraph
1.




“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
entity.




“Prudent Wind Industry
Practices” means those practices, methods, standards and acts (including
those engaged in or approved by a significant portion of the wind power industry
for similar facilities in the United States) that at a particular time in the
exercise of good judgment would have been expected to accomplish the desired
result in a manner consistent with applicable laws, safety, environmental
protection, economy and expedition.  Prudent Wind Industry Practices
are not intended to be limited to the optimum practices, methods or acts to the
exclusion of all others, but rather to be a spectrum of good and proper
practices, methods and acts.




“Reserved Claims”
means, in the event of the failure of Perpetual to pay Developer Fees to Higher
Power when and as due pursuant to Paragraph 3 hereof,
the right of Higher Power to terminate the Lease Purchase Agreement, dated as of
July 27, 2007, by and between Higher Power and Higher Perpetual, as amended by
this Agreement.




“Sale Fee” has the
meaning set forth in Paragraph
3(a)(iv).




“Screening Period” has
the meaning set forth in Paragraph
4(b).




“Target MWs” has the
meaning set forth in Paragraph
4(c).




“Texas Courts” has the
meaning set forth in Exhibit K.




“Third Party” means a
person not Holdco, a Sub, Perpetual or DeWind or an affiliate
thereof.




“Transactions” has the
meaning set forth in the Recitals.




“Wind Farms” has the
meaning set forth in the Recitals.


- 17
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ANNEX II




LIST OF
EXHIBITS





Exhibit
      A
              Little
      Pringle One Development Rights and AssetsExhibit
      B
              Little
      Pringle Two Development Rights and AssetsExhibit
      C
              Big
      Pringle Development Rights and AssetsExhibit
      D
              Palo
      Duro Development Rights and AssetsExhibit
      E
              Existing
      Transaction DocumentsExhibit
      F
              Assumed
      Installed Capacity of the Wind FarmsExhibit
      G
              Interconnection
      Agreements to Be AssumedExhibit
      H
              Higher
      Power Development ServicesExhibit
      I
              Baker
      Development Rights and AssetsExhibit
      J
              Haynes
      Development Rights and AssetsExhibit
      K
              Dispute
      Resolution Procedures


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EXHIBIT
A




LITTLE PRINGLE ONE
DEVELOPMENT RIGHTS AND ASSETS





The “LP1
Assets”, as such term is defined in the Contribution Agreement.





EXHIBIT
B




LITTLE PRINGLE TWO
DEVELOPMENT RIGHTS AND ASSETS




The “LP2
Assets”, as such term is defined in the Contribution Agreement.





EXHIBIT
C




BIG PRINGLE DEVELOPMENT
RIGHTS AND ASSETS




The “Big
Pringle Assets”, as such term is defined in the Contribution
Agreement.





EXHIBIT
D




PALO DURO DEVELOPMENT RIGHTS
AND ASSETS




The “PD1
Assets”, as such term is defined in the Contribution Agreement.





EXHIBIT
E




EXISTING TRANSACTION
AGREEMENTS




Lease
Purchase Agreement, dated as of July 27, 2007, by and between Higher Power and
Higher Perpetual




Company
Agreement of Higher Perpetual, dated as of July 27, 2007, by Higher Power and
Perpetual




Limited
Liability Company Agreement of Holdco, dated as of the Effective Date, by Higher
Perpetual and DeWind




Conveyance
and Contribution Agreement, dated as of the Effective Date, by and between
Higher Perpetual, Perpetual, DeWind, Higher Power, Holdco, LP1 Sub, LP2 Sub, BP
Sub, and PD Sub (“Contribution
Agreement”)




Assignment
and Assumption Agreement, dated on or about the Effective Date, by and between
Higher Power and LP1 Sub




Assignment
and Assumption Agreement, dated on or about the Effective Date, by and between
Higher Power and LP2 Sub




Assignment
and Assumption Agreement, dated on or about the Effective Date, by and between
Higher Power and BP Sub




Assignment
and Assumption Agreement, dated on or about the Effective Date, by and between
Higher Power and PD Sub




Assignment
and Assumption Agreement to be entered into by and between Pringle Wind II, LLC,
a Texas limited liability company (“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




Assignment
and Assumption Agreement to be entered into by and between Pringle Wind I, LLC,
a Texas limited liability company (“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




Assignment
Agreement, dated on or about the Effective Date, by and between Higher Power Sub
II and LP1 Sub




Assignment
Agreement, dated on or about the Effective Date, by and between Higher Power Sub
I and LP2 Sub





Turbine
Supply and Warranty Agreement, dated on or about the Effective Date, by and
between DeWind, Inc., a Nevada corporation (“DeWind,
Inc.”), and LP1 Sub




Turbine
Supply and Warranty Agreement to be entered into by DeWind, Inc. and LP2 Sub, in
the form attached to the LLC Agreement




Turbine
Supply and Warranty Agreement to be entered into by DeWind, Inc. and BP Sub, in
the form attached to the LLC Agreement




Turbine
Supply and Warranty Agreement to be entered into by DeWind, Inc. and PD Sub, in
the form attached to the LLC Agreement




Limited
Liability Company Agreement of LP1 Sub, dated as of the Effective Date, by
Holdco




Limited
Liability Company Agreement of LP2 Sub, dated as of the Effective Date, by
Holdco




Limited
Liability Company Agreement of BP Sub, dated as of the Effective Date, by
Holdco




Limited
Liability Company Agreement of PD Sub, dated as of the Effective Date, by
Holdco


- E2
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EXHIBIT
F




ASSUMED INSTALLED CAPACITY
OF THE WIND FARMS




WIND
      FARM INSTALLED CAPACITY (MWs)Little
      Pringle 1
                  10Little
      Pringle 1
                  10Big
      Pringle
                  200Palo
      Duro
                  400Baker
                  400Haynes
                  200









EXHIBIT
G




INTERCONNECTION AGREEMENTS
TO BE ASSUMED





Interconnection
Feasibility Study Agreement (GEN-2007-005) dated as of February 19, 2007 by
Higher Power Energy and Southwest Power Pool, Inc., a corporation existing under
the laws of the State of Arkansas, with accompanying letter dated February 23,
2007 from Southwest Power Pool to Richard C. Gross P.E. Inc. regarding
Feasibility Study GEN-2007-005.





Interconnection
Feasibility Study Agreement (GEN-2007-048) dated as of October 23, 2007 by
Higher Power Energy and Southwest Power Pool, Inc., a corporation existing under
the laws of the State of Arkansas, along with accompanying letters dated October
18, 2007 and October 25, 2007, respectively, each from Southwest Power Pool to
Mark Patkunas at Higher Power Energy regarding Feasibility Study GEN-2007-048,
and along with other accompanying documentation.





EXHIBIT
H


HIGHER POWER DEVELOPMENT
SERVICES




·
            Community
      Support and Involvement




o
            Encumbrance
      Research




o
            Education
      and Charity




o
            Ongoing
      Community Relations




·
            Met
      Tower Installation




o
            Wind
      Data Collection




·
            Interconnect
      Agreement




o
            Feasibility
      Study




o
            Impact
      Study




o
            Facility
      Study




·
            Transmission
      Agreement




·
            Site
      Survey




·
            Environmental
      Study




·
            Geotechnical
      Study




·
            Wind
      Study




·
            Wind
      Farm Design Input




·
            Local
      Permits




·
            Title
      Work (as necessary to render title reasonably acceptable to a lender
      exercising Prudent Wind Energy Practices,
  including:)




o
            Pursuing
      appropriate noninterference/nondisturbance agreements with oil and gas
      operators and pipeline operators and holders of
  mortgages




o
            Assist
      in obtaining title insurance







o
            Pursuing
      appropriate subordination agreements or nondisturbance agreements with
      lenders holding mortgages superior to any wind leases for the Wind
      Farms




·
            Prepare,
      submit, obtain all other permit applications required to design, construct
      and operate the Wind Farms




·
            Obtain
      FAA and applicable environmental
permits




·
            Obtain
      favorable tax abatement and value limitation decisions under Texas Tax
      Code Section 312 and assist with obtaining favorable tax abatement and
      value limitation decisions under Texas Tax Code Section 313, in each case
      for not less than 7 years




·
            Design
      and obtain required approvals of any transmission and interconnect
      facilities and fully executed interconnection and transmission
      agreements




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




·
            Assist
      as required to 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 to 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




·
            Assist
      as required to develop plan design, BOP specifications, BOP contract
      negotiations and facilitate BOP contract
  administration




·
            Assist
      in hiring of owner’s engineer




·
            Assist
      in preparing the initial designs and specifications of and siting of
      equipment to achieve the development
budget


- H2
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EXHIBIT
I




BAKER DEVELOPMENT RIGHTS AND
ASSETS




Any and
all data, books, records, contracts, permits, reports, and any other properties,
assets and rights of any kind, whether tangible or intangible, real or personal,
as well as any communications, correspondence, and business dealings regarding
the Baker Assets, sent by Higher Power, Higher Perpetual, or Perpetual to Holdco
or DeWind or their respective agents or representatives.





EXHIBIT
J




HAYNES DEVELOPMENT RIGHTS
AND ASSETS




Any and
all data, books, records, contracts, permits, reports, and any other properties,
assets and rights of any kind, whether tangible or intangible, real or personal,
as well as any communications, correspondence, and business dealings regarding
the Haynes Assets, sent by Higher Power, Higher Perpetual, or Perpetual to
Holdco or DeWind or their respective agents or representatives.








EXHIBIT
K




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 K.
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 K
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
K.




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 Paragraph 17 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.  In addition, Perpetual hereby appoints CT Corporation as its
agent to receive service of process in any Dispute or other matter relating to
this Agreement or the transactions contemplated hereby and agrees that such a
mailing to CT Corporation shall be valid service of process on
Perpetual.







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.


- K2
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