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Enron Mail |
----- Forwarded by Scott Dieball/ENRON_DEVELOPMENT on 03/09/2001 09:01 AM=
=20 ----- =09Scott Dieball =0902/06/2001 04:33 PM =09=09 =09=09 To: Roseann Engeldorf/Corp/Enron@ENRON, Kay Mann/Corp/Enron@Enron, S= heila=20 Tweed/HOU/ECT@ECT@ENRON =09=09 cc: Lisa Bills/Enron@EnronXGate@ENRON =09=09 Subject: Re: Assignment in World Hunger Document Thanks Rose for update re assignment language. Kay/Sheila - Is the language below the same language presently in the form= =20 contract? If the language is the same, then I gather from Rose that she is= =20 OK with it but thinks you may not be happy with it. If instead the languag= e=20 is different, then we should run the form contract language past Rose for= =20 comments. If the latter applies, please send the language to Rose (and cop= y=20 me) as I am not sure if I have the latest version. Scott =09Roseann Engeldorf@ENRON =0902/06/2001 03:55 PM =09=09=20 =09=09 To: Scott Dieball/ENRON_DEVELOPMENT@ENRON_DEVELOPMENt =09=09 cc: Sheila Tweed/HOU/ECT@ECT, Lisa Bills/Enron@EnronXGate, Kay=20 Mann/Corp/Enron@Enron =09=09 Subject: Assignment in World Hunger Document Our "world hunger" assignment discussions at year end were preempted by our= =20 "TurboPark" and "Electrobolt" assignment discussions in connection with=20 moving the LMs and other GE contracts into the various off-balance sheet=20 vehicles at year end. I have attached a copy of the assignment provisions we agreed to with GE fo= r=20 those vehicles; they are fairly restrictive and I do not think the power=20 lawyers or originators would be particularly happy with them. They gave u= s=20 the flexibility we needed for the financing, but I don't know that they are= =20 something Enron Corp. wants to live with in our template document. Rose 22.2 Assignment by Purchaser or Agent. =20 Neither Party shall assign any or all of their duties or rights under this= =20 Contract without prior written consent from the other Party; such consent n= ot=20 to be unreasonably withheld. If the Purchaser wishes to obtain the Seller= =01,s=20 consent to the assignment of Purchaser=01,s duties or rights under this=20 Contract, it shall request such consent in a writing which includes or=20 incorporates: (a) the legal name and address and the form and place of incorporation or= =20 organization of the proposed assignee; (b) the current published annual report of the proposed assignee, or if no= =20 such report is published three years of audited financial statements and a= =20 description of the proposed assignee=01,s business; and © a descriptive list of power generation projects completed by the assign= ee=20 during the preceding year. Seller shall respond to any request for consent within thirty (30) days=20 following its receipt of such request. =20 Notwithstanding the foregoing: (w) any lender participating in or providing financing or financing=20 structures, including, without limitation, structures related to leasing=20 arrangements and project financing in respect of any Unit, may transfer or= =20 assign its rights associated with such Unit upon liquidation or foreclosure= =20 of such Unit in satisfaction of Purchaser=01,s obligations under such finan= cing=20 structure; (x) either Party may without further consent by the other Party delegate or= =20 assign its duties or rights to any Affiliate or subsidiary;=20 (y) Purchaser may without further consent of the Seller delegate or assign= =20 its duties or rights to any Affiliate of Enron Corp.; or (z) if Purchaser holds or controls other material assets associated with th= e=20 Facility into which any Unit will be installed (the =01&Transferred Facilit= y=018)=20 and if Purchaser transfers of all or substantially all of its rights in and= =20 to such assets, Purchaser may without further consent delegate or assign it= s=20 duties or rights associated with such Unit to the transferee of such other= =20 assets (the =01&Transferee=018), provided that one of the following conditi= ons has=20 and continues to be fulfilled: (i) prior to payment of the Purchase Amount, that Transferee (A) has provid= ed=20 financial guarantees reasonably satisfactory to the Seller and valid until= =20 such time as the Purchase Amount shall be paid in full, or (B) has=20 demonstrated that it has credit rated by Standard & Poor=01,s at BBB- or be= tter,=20 and has agreed that if it fails to maintain such rating until the Purchase= =20 Amount shall have been paid in full that it will provide financial guarante= es=20 as described in subsection (A) above. (ii) that Transferee shall provide representations reasonably satisfactory = to=20 Seller that a credit facility covering the Transferred Facility has been=20 agreed and is operative. Purchaser or Agent shall have the right to assign or pledge, from time to= =20 time, all or any portion of their respective right, title and interest in, = to=20 and under the Agreement as collateral for financing of this Facility withou= t=20 Seller=01,s consent. When duly assigned in accordance with this Section (including, following an= y=20 collateral assignment, upon foreclosure by any collateral assignee), (i) th= is=20 Agreement or the rights and/or obligations so assigned shall be binding upo= n=20 and shall inure to the benefit of the assignee (and all rights and/or=20 obligations so assigned, including, without limitation, any and all warrant= y=20 rights, shall be assigned to the assignee as if such assignee were an=20 original party hereto), (ii) the assignor shall be irrevocably relieved of= =20 and forever discharged from all liability under this Agreement so long as t= he=20 assignee executes an assumption of such liabilities, and (iii) the Seller= =20 shall look only to such assignee for the performance of the obligations so= =20 assigned. Any assignment by Purchaser other than as permitted herein shall= =20 be void and without force or effect. The parties hereto further agree and acknowledge that the foregoing=20 provisions relating to this assignment will only control the assignment of= =20 Purchaser=01,s rights under this Agreement prior to the date upon which the= =20 Equipment achieves Takeover. Following such date, Purchaser shall be=20 permitted, without Seller=01,s consent, to: (i) assign its rights under thi= s=20 Agreement, (ii) convey any ownership interest that it may have in the=20 Facility and/or (iii) convey any equity interest that it may have in the=20 entity which owns the Facility.
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