out the word direct that seems to me to be the key in this case how you get around that term or at least my perception of your argument that you're just reading th i'm not sure and i think it again it goes to be a person have to examine the term ownership interest what does that have so while if it does me as we claim the right to control and we have to focus on the word direct so then  interest with control that sounds to me like two different concepts in the same mean that's what they're trying to do is that are defining changes in trouble by using ownership interest so it seems to me that it is briefly to the direct ownership interest if that phrase includes the interests of upstream parent companies what would an indirect ownership interest be i think of that attorney and that's yeah but the black letter law in arc in arkansas sorry wrong state in the brain the black letter law d in nebraska is you must distinguish between the assignment of contractual rights and the delegation of the performance of a duty i think you have to go back and you have to read for the room sake but and i think it's important to to bring up to the court this is not a commodity contract this is never what the court said was so i think i go straight in the restatement that this was p s consent was not required for transfers of indirect ownership interests in upstream parent entities by a provision that required consent only for transfers of direct ownership interests the district a correctly found that those same transactions involved no assignment of the power purchase agreement or any of the rights or obligations under it and without an assignment consent to the transactions was likewise not required the outcome on those issues both of them was driven by the district court's conclusion that the contract terms at issue governing the conclusion on those issues are unambiguous which may disposition of these issues appropriate  terminations of these twenty year agreements when wrongful termination would cause obvious a reparable harm through the loss of the company so revenue streams was needed to avoid the irreparable harm and should be affirm from a start on the direct ownership interest issue the district court correctly found that there is only one reasonable meaning of that phrase and  derives from the fact that the law starting in dole at the supreme court and going to really throughout state federal courts distinguishes between direct and indirect corporate ownership what t asks you to do here to ignore that distinction is to isolate words from their context and deconstruct the phrase as it's used in the contract and  argue about what each individual word means in that isolated sense that violates a very well established principle of contract instruction which is that you interpret the phrase in in the context in which it's used and interesting only the result of this isolation and deconstruction is essentially to change the meaning of the phrase to its opposite to say that direct now becomes where this phrase direct ownership interest is found if you read through that the rest of that definition of capital c change control what you find are a series of exceptions  that relate to a variety of circumstances like death of an owner or lien enforcement things like that one of those exceptions is transfers to affiliates of edison mission and there is a definition at the bottom of that paragraph that  apply as to what an affiliate means and it tells us that and p p d knew very well how to describe in direct ownership or changes based on control rather than the membership interests of the entity itself that last clause talks about control control small c means possession directly or indirectly of the power to direct or cost the direction of the management of the policies of the entity whether through ownership interest by contract or otherwise of very comprehensive definition of an indirect relationship between two parties the fact that that language is used in the very same provision as the operative phrase for us which is transfer of majority of the direct ownership interests and sellers tells us given that then that makes your exception irrelevant in this case up the exception is irrelevant other than the fact that it includes a use of the phrase direct or indirect to describe something different than what's at issue in this case what that tells us is that the parties knew what to say in the st sentence of the paragraph if the parties intended that same broader conceptual description of what it change of control lives instead in the st sentence the party said direct ownership interests and seller that is a very precise unambiguous description that triggers this consent obligation only in this case when the membership interests of the l l c are being sold and here that didn't happen what happened was a transfer of ownership multiple tears up in the upstream ownership of these of these companies  sure so st of all there's no indication in this instance that any of these upstream entities are shells and they exist for very specific purposes relating to the use of tax credits that apply to renewable energy to the  consolidation of in syndication of multiple projects for financing purposes there's there are very specific reasons why this corporate structure is in place castle and i don't forget the rest your answer but is this in the record what you just tell entities for no reason as you suggest you know if that if that works happen the law would permit it's unwinding so that the actual nature of the transaction would be enforced and and but that does is take you to another concept here which is that really what n t p is trying to do in connecting connection with with its position on this issue is collapse the corporate structure without without proving any of the things like fraud insolvency impropriety accent or a that would be necessary to ignore those very purposeful corporate differences that were put in place for very legitimate reasons in this instance  i want to talk about for a minute about this argument that this is a meaningless provision it is not it has a very specific meaning negotiated purposefully because it allows flexibility to the seller entities to engage in transfers of in direct ownership that's why it exists and the reason is that often as in these two transactions at issue here it's common in this industry for upstream changes of ownership involving you know multiple hundreds of facilities in multibillion dollar transactions between market and indies that obviously know what they're doing or they wouldn't be you know spending two billion dollars for renewable energy portfolio and to suggest that could be due was just that kate enough to understand that marketplace to enter into this agreement and understand that it was purposefully allowing those kinds of transactions to happen without its consent because consent was not necessary to assure ongoing  competent performance of the facilities tells you what the real purpose was pop top of that i would suggest that even the more limited prohibition against transfers of direct ownership interests has value to n p p because it keeps the contracting entities aligned and in privity with each other and for example the briefs talk about how there's this purchase option of the contracts when the tax credits expire that's an option that only can be completed if both sides were to reach a price but to say in the contract that you can't you can't allow changes of ownership of the project and in the itself makes sense because it was necessary to have that for that purpose right to have a pretty in place so that purchased right could be honored enforced once we get to year eleven lots of reasons why it's just as an example but a prohibition that keeps contracting entities a line is a value in itself i would suggest the real purpose here was something broader and was very intentional let me talk then about the this assignment issue and then the answer is really pretty simple and i think it's where the district court went ending my understanding of the argument though is that it doesn't help it's not the control issue transactions involving that it's hiring outside parties outside companies to maintain and operate the wind facilities i think i think that's accurate and ok so what i don't see much are st not let me start with contract talks in terms of assignment  legations isn't that just an perhaps an artful way of saying assignment of duties no not at all your honor when the contract talks about rights and obligations rights would be what comes to the the project companies from n p t in this case money and the question is can we you know assign and remember an assignment is a transfer of a present interest and the subject matter so that the question is are we going to as an entity transfer our interest in the right to receive money to somebody else obviously we're not talking about that here that's not the site we're talking about we're talking about the  the wind farms agreed so the nd piece of it is then obligations what that describes is the entities obligation to perform that it owes to n p p and these contracts haven't changed that at  all if if the when facilities the terms don't run when they're supposed to the cup project companies will be obligated for that breached and p p d that's where n p t still looks for that performance start that was always the concept here is that the employees would be upstream starting with the emmy and continuing throughout what what's important to remember is that the project companies do have officers they are three of the four of them are single member member managed elsie's the member has appointed officers those officers have authority to execute contracts with corn there are two unaffiliated members with a management committee that does th same the contracts that have been executed are for example a warranty contract with vestas the the external company that manufactures the turbines so that warranty contract has all sorts of mutual obligations in it best us has performance standards obligated to which the project companies can enforce if they're not complied with there are for example of variety of reporting obligations that that are owed by the warrantied manufacturer back to the project entities nothing about that contract is an assignment of legal obligations that the seller under the p p a the project companies oh to n p p vest this owes no duties to n p t as a result of that warranty contract and if this really was an assignment those are the kinds of issues you would look at the same is true with the servicing and operation and maintenance contracts that these affiliates have in place the difference i suppose is that they're with an upstream affiliate instead of with an outside rd party but there's still the same kind of agreement and i'd encourage you to look at one of the pay six appendix is a good example those contracts describe a lengthy description of mutual rights and obligations between two parties rather than a transfer of a present interest in a subject matter of the project company under the an m agreement specifically the loreto one which is a good example the project company retains signal can supervision authority over performance of those duties through its officers which are appointed by its member there are again detail performance standards budgeting approvals the affiliate a one m operator cannot spend more money than is authorized by the project entity in its budget there are indemnification obligations terminations rights upon breach and importantly significant limitations are placed on the affiliate operators authority to act on behalf of the company it can't change contracts it can't play jazz sets it can't settle it claim and as i said it can't spend money unless it's been authorized by the officers of the operating company to do so that's going to sign can i come back to my earlier question don't the sender limbed and the city of omaha cases essentially hold it a prohibition on the assignment of a contract includes prohibition on delegation of duties and i would suggest that if that if you look at your cedar point case in the circuit there's language set that similarly says that the difference here is that each of those cases involved a situation where there had been an assignment in the st place an actual you know document that says we assign this contract to you and then the question is what is that is it walks like a duck and talks like a duck it doesn't have to be labeled a sign i think i agree and that's why what i just went through in terms of the features of these contracts looks nothing feels nothing is nothing like an assignment and that the brandywine panda case is a good example of that because in that case there were contracts where the power company you know basically and i  can give you the language that was used extinguished the right to performance from the original obligor and that right was transferred and the language that was used was something like irrevocably an unconditional appointment of the new operator as the exclusive agent for all purposes without any monitoring or control that sounds a lot like an assignment and that's what the court ultimately said is you've assigned duties and the contract prohibits that in this case these contracts look nothing like that they are mutual there's a lot of mutuality in there with no stated intention or affective outcome of vendor to perform tasks related to that location the obligation to operate the wind facility has always stayed with the project company that's where the duty to n p p exists and the fact that the project company has hired an affiliate or not affiliate and in fact if you look in the record there's you know one hundred contracts to do different things you've got somebody to shovel the sidewalk mow the grass all the way up to you know very technical things relating to maintenance of the blades on the turban it's a long array of different tasks that we have contracted with various parties that have the expertise to do that to complete while retaining the contractual obligations to n p t with in part with the party that signed the contract with n p t that's where the assets that produce electricity exist that's where  you know all of the money changes hands or all the legal responsibility exists that is not an assignment and the details of those contracts if you look at them and you compare that to the definition of assignment under nebraska law which is transfer approach of a present interest it's not what was done i want to mention one thing before my time runs out on the personal services  issue there are situations and this is one of them where that issue can be decided as a matter of law on summary judgment and the reason is that it's driven in this case by within the four corners of the contract itself you can tell from reading the contract and looking nowhere else that this relationship was not one driven by the personal characteristics of any  individual or or even any corporation if anybody is right on their theory on this any time you in a commercial setting a contracting party tries hard to get a highly comp contracting party on the other side that always happens and the law is not that public policy by lakes the right to assign any time you take care in who you choose as your contracting part of the question is what a  nd competent contracting party would performance from that person look the same and here it does because what performance is is electricity going to end p p d from a well operated wind facility and but it's clear in this case that delegation i don't think they're saying that they're saying there's written contracts they're just saying it's not an assignment i think we're saying the same thing you know and yes there are written contracts but they're saying that the the obligation is already going to remain with the entity itself and that's true that's under tended to die for what they're always going to be  maintaining operate maintain a been delegated upstream of them to be know that at the beginning sure they did use that and that they knew that was going to happen but then what happens is energy comes in and buys out of bankruptcy and your ip comes in and then what cause you can delegate the duties been delegated the duty d to operate maintain unless there's a prohibition that prohibits it to which we have in this case or unless it's against public o interesting case we'll take it under submission an issue an opinion in due course