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Enron Mail |
Here's another stab at the assignment clause for the World Hunger contract=
=20 for your consideration: Except as described in Section __ [next paragraph] neither Party shall assi= gn=20 any or all of their duties or rights under this Contract without prior=20 written consent from the other Party; such consent not to be unreasonably= =20 withheld, conditioned or delayed. Notwithstanding the foregoing: (i) Purchaser, Seller or Agent may assign a= ny=20 or all of their duties or rights to any Affiliate or subsidiary without the= =20 other=01,s consent; (ii) Purchaser or Agent may assign any or all of its du= ties=20 or rights to any Affiliate of Enron Corp., without Seller=01,s consent, and= =20 (iii) Purchaser or Agent may assign any or all of its rights and obligation= s=20 without Seller=01,s consent following [appropriate milestone]. In each ins= tance=20 the assignment shall be effective as of the time the assignor delivers noti= ce=20 to 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 [___] unless (a= )=20 the proposed assignee provides appropriate guaranties, letters of credit or= =20 other assurances of payment issued by an entity or person with a credit=20 rating of [__], or (b) the assignor agrees to remain liable for all liabili= ty=20 under this Agreement until [appropriate milestone], or © is a party=20 participating in or providing financing or financing structures, including,= =20 without limitation, structures related to leasing arrangements and project= =20 financing, including a special purpose vehicle receiving financing to devel= op=20 and/or construct the project for which Purchaser or Agent purchased the=20 Equipment, if Purchaser or Agent has provided reasonably satisfactory=20 representations concerning the sufficiency of the financing arrangement, or= =20 (d) final payment (except for the retention amount) has been made to Seller= ; =20 (ii) is a direct competitor of Seller in the turbine manufacturing business= ,=20 (iii) is an adverse party to Seller in any material litigation, or (iv) if= =20 purchasing the Equipment, such assignee is not purchasing such Equipment (o= r=20 rights thereto) as part of a transaction in which Purchaser, Agent or their= =20 Affiliates is providing related goods and/or 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; and, (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. 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. [Here's the electronic version]
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