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Enron Mail |
Hi there,
I made some revisions to the language Rose proposed. Here are some questions/comments: I deleted the references to changing any delegation of rights/obligations. = =20 I'm not yet clear as to what the agency language will look like, and what= =20 rights we need/want to change (i) the identity of the agent (ii) the role o= f=20 the agent (iii) whether the agency can be terminated. I'm just not that=20 familiar with the structure yet, but if I can get that information, I'll wo= rk=20 on it.=20 I suggest we consider using a credit rating instead of "substantially=20 similiar" comparison. Just easier to decipher. Rose/Lisa, I've added some SPV language. I'm added receipt of final payment as an exception to the credit rating=20 standard. In other words, if they have received their final payment, they= =20 can't use credit as a reason to not give consent. I don't think we should agree to provide a list of power projects done by t= he=20 assignee in the past 5 years. I also think 3 years is a bit much on audite= d=20 financials, but I didn't comment there. I don't like their language that an affiliate must be intending to=20 own/operate the plant. I've just bracketed the langauge and added=20 "construct", since I don't know if this point has already been agreed. Enough explanation, here it is (with Word file attached below): Except for as described in Section ___ [ next paragraph], neither Party sha= ll=20 assign any or all of their duties or rights under this Contract without pri= or=20 written consent from the other Party; such consent not to be unreasonably= =20 withheld, conditioned or delayed. Notwithstanding the foregoing: (i) either Party [Agent, too?] may assign a= ny=20 or all of its duties or rights to any Affiliate or subsidiary without the= =20 other Party=01,s consent; (ii) Purchaser may assign any or all of its dutie= s or=20 rights to any Affiliate of Enron Corp., without Seller=01,s consent, [provi= ded=20 that such assignee shall construct, own or operate the [Units] for the=20 purpose of generating electric power for revenue], and (iii) Purchaser may= =20 assign any or all of its rights and obligations without Seller=01,s consent= =20 following [delivery/substantial completion?]. In each instance the=20 assignment shall be effective as of the time the assignor delivers notice t= o=20 the other party in accordance with [Section ]. [form to be agreed now?] Seller shall only be deemed to be reasonable in withholding its consent if= =20 the proposed assignee: (i) does not have [a credit rating of ___]=20 [substantially the same or better credit quality than Agent] unless (a) the= =20 proposed assignee provides appropriate guaranties, letters of credit or oth= er=20 assurances of payment issued by an entity or person with [a credit rating o= f=20 ___] [substantially the same or better credit quality than Agent], or (b) t= he=20 assignor agrees to remain liable for all liability under this Agreement unt= il=20 [delivery/substantial completion], or © is a party participating in or=20 providing financing or financing structures, including, without limitation,= =20 structures related to leasing arrangements and project financing, including= a=20 special purpose vehicle receiving financing to develop and/or construct the= =20 project for which Purchaser [or Agent] purchased the Equipment [add=20 requirement of delivery of =01&rep letter=018 from Enron regarding financ= ing=20 sufficiency], or (d) final payment (except for the retention amount) has be= en=20 made to Seller; (ii) is a direct competitor of Seller in the turbine=20 manufacturing business, (iii) is an adverse party to Seller in any material= =20 litigation, or (iv) if purchasing the Equipment, such assignee is not=20 purchasing such Equipment (or rights thereto) as part of a transaction in= =20 which Purchaser, Agent or their Affiliates is providing related goods and/o= r=20 services to such assignee. =20 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. In the instances where consent is required, the party requesting consent=20 shall request such consent in writing, including the following: (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, if available; and © [a descriptive list of power generation projects completed by the=20 assignee during the preceding five years]. Seller shall respond to any request for consent within thirty (30) days=20 following its receipt of such request. Seller=01,s consent if granted sha= ll be=20 in the form of Appendix __ hereto. Any failure to respond in writing withi= n=20 the foregoing period shall be deemed to constitute consent. When duly assigned in accordance with this Article, (including, following a= ny=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 this Agreement and such liabilities and= =20 obligations herein, and (iii) Seller shall look only to such assignee for t= he=20 performance of the obligations so assigned. Any assignment other than as= =20 permitted herein shall be void and without force or effect.
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