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Enron Mail |
I believe we are in a position to finish this contract today (or tomorrow) =
if=20 we can get buy in on the change in assignment highlighted in red below (las= t=20 paragraph of 22.2). Previously, the unfettered right to assign arose at=20 Acceptance. This change allows us the flexibility to pay for a unit and=20 assign it to anyone, and not have to wait until the unit is satisfactorily= =20 completed, installed, etc.=20 Please let me know if this change is ok, and if WestLB will be in a positio= n=20 to sign this agreement tomorrow. Thanks, Kay ARTICLE XXII. ASSIGNMENT 22.1 Assignment by Seller. This Agreement may not be assigned by Seller= =20 without the prior written consent of Purchaser, which shall not be=20 unreasonably withheld. 22.2 Assignment by Purchaser. This Agreement or any right or obligation= =20 contained herein may be assigned, from time to time, by Purchaser or Agent= =20 without Seller=01,s consent to: (i) Agent (in the case of an assignment by Purchaser) or an Affiliate of=20 either Purchaser or Agent; (ii) a joint venture, partnership, limited liability company or other simil= ar=20 entity in which Agent or any of its Affiliates is a venturer, partner or=20 participant with no less than a nineteen and one-half percent (19.5%) equit= y=20 interest; (iii) any Lender; (iv) any Indemnified Party; (v) any entity for the purposes of financing or sale of the Facility; (vi) any party (1) for which Agent or any of its Affiliates has agreed to= =20 construct or develop a facility using the Equipment, or (2) to which the=20 Agent or any of its Affiliates has agreed to convey a power plant project= =20 which it has under development; or (vii) any contractor or developer (including, without limitation, Enron=20 Engineering & Construction Company and/or NEPCO) which is retained by=20 Purchaser or Agent or any of its Affiliates to construct or develop a=20 Facility using the Equipment. In the case of an assignment to a party described in (ii), (vi), or (vii)= =20 (other than Enron Engineering & Construction or NEPCO), Seller shall be=20 entitled to request and receive an appropriate guaranty, letter of credit,= =20 payment bond or other reasonable form of payment security, in amount not to= =20 exceed the amount of the Purchase Amount remaining to be paid at the time o= f=20 the assignment, unless the assignor agrees to remain liable for all future= =20 liabilities under this Agreement. A letter of guaranty, letter of credit, = or=20 payment bond provided by an entity rated BBB+ or better shall be deemed to = be=20 an appropriate form of security for the purpose of this provision. Except for (i) through (vii) above, this Agreement or any rights or=20 obligations hereunder may not be assigned by Purchaser or Agent to other=20 parties without the prior written consent of Seller which shall not be=20 unreasonably withheld, conditioned or delayed. Seller agrees to respond to= =20 any request for consent within thirty (30) Days following its receipt of su= ch=20 request. Any failure to respond within the foregoing time period shall be= =20 deemed to be a grant by Seller of its consent to the proposed assignment. = In=20 determining whether Purchaser or Agent shall be permitted to assign this=20 Agreement, Seller shall only be deemed to be reasonable in withholding its= =20 consent if the proposed assignee does not have substantially the same or=20 better credit quality than Agent unless (a) the proposed assignee provides= =20 appropriate guaranties, letters of credit or other assurances of payment=20 issued by an entity or person with substantially the same or better credit= =20 quality than Agent, or (b) the assignor agrees to remain liable for all=20 future liability under this Agreement. Purchaser or Agent shall have the= =20 right to assign or pledge, from time to time, all or any portion of its=20 right, title and interest in, to and under the Agreement as collateral for= =20 financing of any Facility without Seller=01,s consent. When duly assigned in accordance with the foregoing (including, following a= ny=20 collateral assignment, upon foreclosure by any collateral assignee) (i) thi= s=20 Agreement shall be binding upon and shall inure to the benefit of the=20 assignee (and all rights hereunder, including, without limitation, any and= =20 all warranty rights, shall be assigned to the assignee as if such assignee= =20 were an original party hereto), and (ii) the assignor shall be irrevocably= =20 relieved and forever discharged of all liability under this Agreement so lo= ng=20 as the assignee executes an assumption of such liabilities. Any other=20 assignment by Purchaser or Agent other than as permitted hereunder shall be= =20 void and without force or effect.=20 Notwithstanding the generality of the foregoing, in connection with any=20 assignment permitted under this Section 22.2 to any assignee, the Purchaser= =20 shall have the right, from time to time by Notice to Seller and without=20 Seller=01,s consent, to (i) designate such assignee to be the successor of= =20 Purchaser hereunder, (ii) designate such assignee to be the successor of = =20 =01&Agent=018 hereunder, (iii) designate such assignee as a sub-agent of th= e Agent=20 hereunder, and (iv) designate that such assignee has succeeded to all of th= e=20 rights and obligations of both Purchaser and Agent, whereupon=20 (notwithstanding the first WHEREAS clause hereof, but subject to any=20 subsequent appointment of an =01&Agent=018 hereunder) each reference to =01= &Purchaser=018=20 hereunder shall be deemed a reference to such assignee acting in its=20 individual capacity and each reference to an =01&Agent=018 herein shall be = deemed=20 deleted. Upon any permitted assignment of the rights under this Agreement to acquire= a=20 Unit or Units, and the assumption (in accordance with the terms hereof) of= =20 the obligations related thereto, Seller shall enter into a separate purchas= e=20 agreement with the permitted assignee (each, a =01&Facility Agreement=018).= The=20 terms of each Facility Agreement will be in strict conformity with the term= s=20 and conditions of this Agreement, except for site specific changes as agree= d=20 by the Seller and such assignee. In no way shall the Facility Agreement=20 increase the liability or responsibility of Seller, Purchaser, or Agent und= er=20 this Agreement. The parties further agree that the provisions of this Agreement relating to= =20 assignment will only control the assignment of Purchaser=01,s or Agent=01,s= rights=20 and obligations under this agreement prior to payment of the Purchase Amoun= t=20 (except for the Retention Amount) of the Unit to be assigned. Following=20 payment of the Purchase Amount (except for the Retention Amount), Purchaser= =20 or Agent shall be permitted, without Seller=01,s consent, to: (i) assign al= l or=20 part of its rights or obligations under this Agreement, (ii) convey any=20 ownership interest that it may have in the Facility and/or (iii) convey any= =20 ownership interest that it may have in the entity which may own the Facilit= y.=20 22.3 Agreement with Lender. Seller agrees that if requested by Purchaser= ,=20 Seller shall enter into a direct agreement with Lender under which Lender i= s=20 permitted to "step into" this Agreement.
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