Common use of Assignment to Other Persons Clause in Contracts

Assignment to Other Persons. Except as otherwise provided in this Section 25.1, neither Party may assign this Agreement to any third party, without the prior written consent of the other Party; provided that nothing in this Agreement shall prevent Contractor from engaging Affiliates or subcontractors in connection with the performance of its obligations under this Agreement (other than its respective payment obligations). Notwithstanding the foregoing, Contractor may assign this Agreement to any Affiliate of Contractor (provided that Owner receives written certification from Contractor’s Surety that the Performance and Payment Bonds remains in full force and effect and that such Affiliate has the requisite expertise to fulfill Contractor’s obligations under this Agreement). Notwithstanding the first sentence of this Section 25.1, (i) Owner may collaterally assign its rights, title and interest under this Agreement to any Owner Financing Party, who, subject to any consent entered into by Contractor with the Owner Financing Parties, may further assign such rights, title and interest under this Agreement upon exercise of remedies by an Owner Financing Party following a default by Owner under the financing agreements entered into between Owner and the Owner Financing Parties and, in connection therewith, Contractor shall execute and deliver a usual and customary consent (which shall include customary and reasonable additional cure periods for the benefit of Owner Financing Parties), a customary legal opinion and other certificates reasonably requested by Owner; provided, however, that Contractor shall not be obligated without a Change In Work to accept any undertaking imposed by any Owner Financing Party which Contractor reasonably believes will increase its obligations under the Agreement, whether such increased obligations be technical, economic, schedule or otherwise; or (ii) Owner may assign this Agreement to another entity that is acquiring the Project, whether through asset acquisition, stock acquisition, merger or otherwise, provided that such entity (x) has the same or better creditworthiness as Owner and (y) has the technical and operational capabilities to perform the obligations of Owner under this Agreement (either by itself or through a third party). Any attempted assignment or delegation in violation of this Section 25.1 shall be null and void and shall be ineffective to relieve either Party of its obligations hereunder.

Assignment to Other Persons. Except as otherwise provided in this Section 25.1, neither Party may assign this Agreement to any third party, without the prior written consent of the other Party; provided that nothing in this Agreement shall prevent Contractor from engaging Affiliates or subcontractors in connection with the performance of its obligations under this Agreement (other than its respective payment obligations). Notwithstanding the foregoing, Contractor may assign this Agreement to any Affiliate of Contractor (provided that Owner receives written certification from Contractor’s Surety that the Performance and Payment Bonds remains in full force and effect and that such Affiliate has the requisite expertise to fulfill Contractor’s obligations under this Agreement). Notwithstanding the first sentence of this Section 25.1, (i) Owner may collaterally assign its rights, title and interest under this Agreement to any Owner Financing Party, who, subject to any consent entered into by Contractor with the Owner Financing Parties, may further assign such rights, title and interest under this Agreement upon exercise of remedies by an Owner Financing Party following a default by Owner under the financing agreements entered into between Owner and the Owner Financing Parties and, in connection therewith, Contractor shall execute and deliver a usual and customary consent (which shall include customary and reasonable additional cure periods for the benefit of Owner Financing Parties), a customary legal opinion and other certificates reasonably requested by Owner; provided, however, that Contractor shall not be obligated without a Change In Work to accept any undertaking imposed by any Owner Financing Party which Contractor reasonably believes will increase its obligations under the Agreement, whether such increased obligations be technical, economic, schedule or otherwise; or (ii) Owner ii)Owner may assign this Agreement to another entity that is acquiring the Project, whether through asset acquisition, stock acquisition, merger or otherwise, provided that such entity (x) has the same or better creditworthiness as Owner and (y) has the technical and operational capabilities to perform the obligations of Owner under this Agreement (either by itself or through a third party). Any attempted assignment or delegation in violation of this Section 25.1 shall be null and void and shall be ineffective to relieve either Party of its obligations hereunder.

Assignment to Other Persons. Except as otherwise provided in this Section 25.1In addition, neither Party Owner may assign all or part of its right, title, obligations and interest in this Agreement to any third party, without other Person with the prior written consent approval of Contractor, which approval shall not be unreasonably withheld or delayed. As a condition to any such assignment, Contractor in its sole discretion may require that the other Party; provided that nothing prospective assignee provide performance security for such assignee’s obligations hereunder as follows. Owner shall provide Contractor with a written request for approval, together with reasonable supporting documentation and financial calculations reasonably demonstrating that, if Owner proposes to assign all or any part of its right, title, obligations and interest in this Agreement to an assignee pursuant to subsections (a), (b), (c) or (d) of this Section 26.1.3, the relevant conditions are satisfied. If the required conditions of any one of subsection (a), (b), (c) or (d) of this Section 26.1.3 are satisfied, Contractor shall prevent Contractor from engaging Affiliates not be entitled to withhold its approval of such assignment on the basis of insufficient payment and performance security. (a) If any proposed assignee has a Tangible Net Worth (calculated in accordance with generally accepted accounting principles) of at least the Minimum Tangible Net Worth and a credit rating equal to or subcontractors in connection with greater than the performance of its obligations under this Agreement (other than its respective payment obligations). Notwithstanding the foregoingThreshold Rating, Contractor may assign this Agreement to not require any Affiliate of Contractor (provided that Owner receives written certification from Contractor’s Surety that the Performance and Payment Bonds remains in full force and effect and that such Affiliate has the requisite expertise to fulfill Contractorperformance security for Owner’s obligations under from such prospective assignee upon such Person’s assumption of this Agreement). Notwithstanding the first sentence of this Section 25.1, (i) Owner may collaterally assign its rights, title and interest under this Agreement to any Owner Financing Party, who, subject to any consent entered into by Contractor with the Owner Financing Parties, may further assign such rights, title and interest under this Agreement upon exercise of remedies by an Owner Financing Party following a default by Owner under the financing agreements entered into between Owner and the Owner Financing Parties and, in connection therewith, Contractor shall execute and deliver a usual and customary consent (which shall include customary and reasonable additional cure periods for the benefit of Owner Financing Parties), a customary legal opinion and other certificates reasonably requested by Owner; provided, however, that Contractor if such assignee’s Tangible Net Worth declines by more than thirty percent (30%) of the Minimum Tangible Net Worth or its credit rating falls below the Threshold Rating, such assignee shall not provide, or cause to be obligated without provided, either: (i) a Change In Work letter of credit, bond or other form of security from a financial institution reasonably acceptable to accept any undertaking imposed by any Owner Financing Party which Contractor reasonably believes will increase its Contractor, securing assignee’s obligations under this Agreement in an amount equal to the AgreementGuaranteed Amount, whether such increased obligations be technical, economic, schedule or otherwise; or (ii) Owner may assign a guaranty from an entity having an equivalent or higher credit rating than the Threshold Rating, guaranteeing assignee’s obligations under this Agreement in an amount equal to another entity that is acquiring the Guaranteed Amount. (b) If any proposed assignee has written commitments from lenders or equity investors (where the lead lender or investor has an equivalent or higher credit rating than the Threshold Rating) to provide financing for the Project in an amount equal to no less than the portion of the Separated Contract Price then remaining to be paid, and all conditions precedent to such commitments (except such assignment) have been met to close financing and fund the Project, whether through asset acquisition, stock acquisition, merger or otherwise, Contractor may not require any performance security for Owner’s obligations from such prospective assignee upon such Person’s assumption of this Agreement. (c) If any proposed assignee causes to be provided that a letter of credit in support of such entity (x) has the same or better creditworthiness as Owner and (y) has the technical and operational capabilities to perform the assignee’s obligations of Owner under this Agreement from a bank that has senior unsecured debt rated at least A- by Standard & Poors or A3 by Mxxxx’x (either or an equivalent rating from a similar rating agency), and such letter of credit: (i) names Contractor as the stated beneficiary, and (ii) has a stated amount at least equal to the sum of the Guaranteed Amount, Contractor may not require further performance security from any prospective assignee. (d) If (iii) the Owner’s Parent Guaranty remains in effect, or (iv) Owner provides a guarantee of such assignee’s obligations under this Agreement from an entity having an equivalent or higher credit rating than the Threshold Rating, in form and substance reasonably acceptable to Contractor as set forth in Exhibit Z-2, and in an amount equal to the Guaranteed Amount, Contractor may not require any performance security for Owner’s obligations from such prospective assignee upon such Person’s assumption of this Agreement. In the event that the guarantee provided by itself Owner pursuant to this Section 26.1.3(d) lapses or through terminates, assignee shall provide, within twenty (20) days of Notice of such lapse or termination from Contractor, a third party)substitute guarantee in form and substance reasonably acceptable to Contractor as set forth in Exhibit Z-2 of assignee’s obligations under this Agreement in an amount equal to the Guaranteed Amount from an entity having an equivalent or higher credit rating than the Threshold Rating. Any attempted Upon the assignment or delegation in violation of Owner’s rights and obligations as approved by Contractor under the first paragraph of this Section 25.1 26.1.3, and such permitted assignee’s assumption in writing in of such rights and obligations, (1) Owner shall be null and void deemed released from and shall have no further rights, obligations, responsibilities or liabilities under this Agreement, (2) in the case of subsection (a), (b), (c) and (d)(ii) of this Section 26.1.3, Owner’s Parent Guaranty shall be ineffective released in its entirety, and (3) Owner shall remain responsible for all liabilities relating to relieve either Party of its obligations hereundermatters occurring prior to such assignment, except to the extent such permitted assignee agrees in writing to be responsible for such liabilities.

Assignment to Other Persons. Except as otherwise provided In addition, Owner may assign all or part of its right, title, and interest in this Section 25.1Agreement to any other Person, neither Party including an Affiliate of Owner, with the prior written approval of Contractor, which approval shall not be unreasonably withheld. As a condition to any such assignment, Contractor in its sole discretion may require that the prospective assignee provide performance security for Owner’s obligations hereunder as follows. Contractor’s approval, notwithstanding anything to the contrary herein, shall not be withheld if all of the conditions in any of subsections (a) through (d) below are satisfied. (a) Owner may assign this Agreement to any third partya project entity created to develop the Project if that entity (i) has a Tangible Net Worth of at least One Hundred Fifty Million Dollars ($150,000,000) (the “Minimum Tangible Net Worth”) and a credit rating equal to or greater than the Threshold Rating, without and (ii) (A) a Tangible Net Worth of at least the prior written consent Minimum Tangible Net Worth plus at least Fifty Million Dollars ($50,000,000), or (B) a Tangible Net Worth of at least the Minimum Tangible Net Worth plus causes to be provided insurance coverage with minimum coverage of at least Fifty Million Dollars ($50,000,000) and in a mutually agreeable form, with deductibles payable by Owner, against potential environmental remediation costs or other environmental claims; provided, however, should the insurance not be commercially available or Owner and Contractor are unable to agree to the form and substance of the policy, then TXU US Holdings Company or, to the extent any successor Owner has a Tangible Net Worth of at least the Minimum Tangible Net Worth plus at least Fifty Million Dollars ($50,000,000), such successor Owner, shall retain liability for all potential EXECUTION COPY 106 environmental remediation costs or other Party; provided that nothing in this Agreement shall prevent Contractor from engaging Affiliates or subcontractors in connection with environmental claims for which Owner would otherwise be liable hereunder. If (i) and (ii) of the performance of its obligations under this Agreement (other than its respective payment obligations). Notwithstanding the foregoingpreceding sentence are satisfied, Contractor may assign this Agreement to not require any Affiliate of Contractor (provided that Owner receives written certification from Contractor’s Surety that the Performance and Payment Bonds remains in full force and effect and that such Affiliate has the requisite expertise to fulfill Contractorperformance security for Owner’s obligations under from such prospective assignee upon such Person’s assumption of this Agreement). Notwithstanding ; provided, however, if such assignee’s Tangible Net Worth declines by more than thirty percent (30%) of the first sentence Minimum Tangible Net Worth or its credit rating falls below the Threshold Rating, such assignee shall provide, or cause to be provided, either: (y) a letter of this Section 25.1credit, bond or other form of security, securing assignee’s obligations hereunder in an amount equal to the Required LOC Amount as provided in subsection (c) below; or (z) a guaranty from an entity having a Tangible Net Worth of at least the Minimum Tangible Net Worth and an equivalent or higher credit rating than the Threshold Rating, guaranteeing assignee’s obligations hereunder in an amount equal to the Guaranteed Amount as provided in subsection (d) below. (b) If any proposed assignee (i) Owner may collaterally assign its rights, title has written commitments from lenders or equity investors (where the lead lender or investor has a Tangible Net Worth of at least the Minimum Tangible Net Worth and interest under this Agreement an equivalent or higher credit rating than the Threshold Rating) to any Owner Financing Party, who, subject to any consent entered into by Contractor with the Owner Financing Parties, may further assign such rights, title and interest under this Agreement upon exercise of remedies by an Owner Financing Party following a default by Owner under the provide financing agreements entered into between Owner and the Owner Financing Parties and, in connection therewith, Contractor shall execute and deliver a usual and customary consent (which shall include customary and reasonable additional cure periods for the benefit Project in an amount equal to no less than the portion of Owner Financing Partiesthe Contract Price then remaining to be paid, and (ii) (A) a Tangible Net Worth of at least the Minimum Tangible Net Worth plus at least Fifty Million Dollars ($50,000,000), or (B) a customary legal opinion Tangible Net Worth of at least the Minimum Tangible Net Worth plus causes to be provided insurance coverage with minimum coverage of at least Fifty Million Dollars ($50,000,000) and in a mutually agreeable form, against potential environmental remediation costs or other certificates reasonably requested environmental claims, with deductibles payable by Owner; provided, however, should the insurance not be commercially available or Owner and Contractor are unable to agree to the form and substance of the policy, then TXU US Holdings Company or, to the extent any successor Owner has a Tangible Net Worth of at least the Minimum Tangible Net Worth plus at least Fifty Million Dollars ($50,000,000), such successor Owner, shall retain liability for all potential environmental remediation costs or other environmental claims for which Owner would otherwise be liable hereunder. If (i) and (ii) of the preceding sentence are satisfied, Contractor may not require any performance security for Owner’s obligations from such prospective assignee upon such Person’s assumption of this Agreement. (c) If any proposed assignee causes to be provided (i) a letter of credit in support of such assignee’s obligations hereunder from a bank that has senior unsecured debt rated at least A- by Standard & Poors or A3 by Mooxx’x (xr an equivalent rating from a similar rating agency), and such letter of credit: (x) names Contractor as the stated beneficiary, (w) has a stated amount at least equal to the sum of (the “Required LOC Amount”): (1) the next two (2) consecutive Monthly Payments to be made pursuant to the Payment Schedule; (2) breakage costs or termination fees that would be incurred by Contractor upon termination of Equipment and Materials purchase agreements or purchase orders; (3) amounts past due hereunder by Owner to Contractor as of such date; and (4) the positive or negative difference in the Contract Price based on Changes In Work during the last calendar quarter; and (x) provides that it will be adjusted quarterly to reflect changes to (1), (2), (3) and (4) during each calendar quarter within thirty (30) days following the end of such calendar quarter; and (ii) insurance coverage with minimum coverage of at least Fifty Million Dollars ($50,000,000) and in a mutually agreeable form, with deductibles payable by Owner, against potential environmental remediation costs or other environmental claims; provided, however, should the insurance not be commercially available or EXECUTION COPY 107 Owner and Contractor are unable to agree to the form and substance of the policy, then TXU US Holdings Company or, to the extent any successor Owner has a Tangible Net Worth of at least the Minimum Tangible Net Worth plus at least Fifty Million Dollars ($50,000,000), such successor Owner, shall retain liability for all potential environmental remediation costs or other environmental claims for which Owner would otherwise be liable hereunder. If (i) and (ii) of the preceding sentence are satisfied, Contractor may not require further performance security from any prospective assignee. The terms pertaining to draw rights on such letter of credit shall be substantially similar to those of the Retainage Security. In the event Contractor draws under such letter of credit and it is subsequently determined that such drawdown was in excess of Contractor's rights hereunder, Contractor shall not be obligated return such excess amount to such assignee within ten (10) Business Days of such final determination with interest at the Contract Interest Rate from such drawdown until return of such excess amount. (d) Notwithstanding anything to the contrary in the foregoing, TXU US Holdings Company or, to the extent any successor Owner has a Tangible Net Worth of at least the Minimum Tangible Net Worth plus at least Fifty Million Dollars ($50,000,000), such successor Owner, may (i) assign its rights hereunder to any Person upon five (5) days prior Notice to Contractor but without a Change In Work to accept any undertaking imposed by any Contractor’s consent; provided, however, that Owner Financing Party which Contractor reasonably believes will increase retains its payment obligations hereunder, including its obligations under the Agreementpursuant to Section 23.2, whether such increased obligations be technical, economic, schedule or otherwise; or (ii) Owner may assign this Agreement its rights and obligations hereunder to another entity that is acquiring the Projectany Person upon five (5) days prior Notice to Contractor but without Contractor’s consent; provided, whether through asset acquisitionhowever, stock acquisition, merger or otherwise, provided that such entity Owner provides a guarantee of such assignee’s obligations hereunder, in form and substance reasonably acceptable to Contractor, and in an amount equal to the sum of (xthe “Guaranteed Amount”) has (A) the same next two (2) consecutive Monthly Payments to be made pursuant to the Payment Schedule, (B) breakage costs or better creditworthiness termination fees that would be incurred by Contractor upon termination of Equipment and Materials purchase agreements or purchase orders, (C) amounts past due hereunder by Owner to Contractor as Owner and of such date, (D) the positive or negative difference in the Contract Price based on Changes In Work during the last calendar quarter, plus (E) (y) has Fifty Million Dollars ($50,000,000), or (z) causes to be provided insurance coverage with minimum coverage of at least Fifty Million Dollars ($50,000,000) and in a mutually agreeable form, with deductibles payable by Owner, against potential environmental remediation costs or other environmental claims; provided, however, should the technical insurance not be commercially available or Owner and operational capabilities Contractor are unable to perform agree to the form and substance of the policy, then Owner shall retain liability for all potential environmental remediation costs or other environmental claims for which Owner would otherwise be liable hereunder. Contractor may terminate this Agreement in the event that the guaranty provided by Owner pursuant to this Section 26.1.2(d) lapses or terminates and assignee fails to provide, within twenty (20) days of Notice of same from Contractor, a substitute guaranty of assignee’s obligations hereunder in an amount equal to Guaranteed Amount from an entity having a Tangible Net Worth of no less than the Minimum Tangible Net Worth and an equivalent or higher credit rating than the Threshold Rating. (e) Upon the assignment of Owner’s rights and obligations hereunder to any permitted assignee pursuant to subsections (a), (b) or (c) or subsection (d)(ii) above, and such permitted assignee’s assumption in writing in of such rights and obligations, Owner shall be deemed released from and shall have no further rights, obligations, responsibilities or liabilities under this Agreement Agreement; provided that Owner shall remain responsible for all liabilities relating to matters occurring prior to such assignment, except to the extent such permitted assignee agrees EXECUTION COPY 108 in writing to be responsible for such liabilities; provided, further, that Owner shall remain responsible for the Guaranteed Amount if Owner has provided a guarantee pursuant to subsection (either by itself or through a third party). d)(ii) above. (f) Any attempted assignment or delegation in violation of this Section 25.1 26.1.2 shall be null and void and shall be ineffective to relieve either Party Owner of its obligations hereunder.