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Enron Mail |
Mark--Here is the legal risk memo on the PSCo PPA. I am also excepting bel=
ow=20 the two sections of the Agreement that present the timing issue that Dave= =20 Delaney noted regarding the PSCo condition precedent for CPUC approval=20 having a date of Dec. 21, while the ENA conditions for Board approval and= =20 satisfaction of due diligence having a date of Dec. 1. =20 PSCO's dates for CPUC approval: 6.4 (A) PSCo shall have made commercially reasonable efforts to obtain any= =20 required approvals of the CPUC as described in Section 18.2(B) and, on or= =20 before December 21, 2000, shall have provided written notice to Seller=20 stating either (i) that PSCo has obtained such approvals from the CPUC in= =20 final form, not subject to agency rehearing, without conditions materially= =20 modifying this PPA, or (ii) that PSCo waives the requirement for such=20 approvals; provided, that if PSCo has not provided such notice to Seller on= =20 or before December 12, 2000, then the Commercial Operation Milestone Date f= or=20 completion of construction and availability of the fifth and sixth turbines= =20 in the Facility shall be extended, on a day-for-day basis, for each day aft= er=20 December 12, 2000, through and including December 21, 2000, that PSCo has n= ot=20 provided such notice to Seller . Any extension of the Commercial Operation= =20 Milestone Date for the fifth and sixth turbines in the Facility pursuant to= =20 this Section 6.4(E) shall run concurrently with, and shall not be in additi= on=20 to, any extension of the Commercial Operation Milestone Date under any othe= r=20 provision of this PPA. 18.1 (A) This PPA is subject to review by the CPUC as part of PSCo's final= =20 1999 Electric Integrated Resources Plan (=01&IRP=018). Under the CPUC IRP = Rules,=20 the Commission must approve PSCo's proposed resource acquisition portfolio,= =20 of which this PPA is one part. The CPUC may also review this PPA to=20 determine whether it is consistent with the Request for Proposals issued by= =20 PSCo on January 28, 2000. PSCo shall use its best efforts to obtain CPUC= =20 approval of its IRP and, if necessary, Commission approval of this PPA, as= =20 soon as reasonably practicable. PSCo shall have the right to terminate thi= s=20 PPA by notice to Seller at any time on or before December 21, 2000 as a=20 consequence of the failure of the CPUC to approve the IRP or this PPA by th= at=20 date, and shall in any event be required to provide the notice set forth in= =20 Section 6.4(E). Absent such notice by PSCo on or before December 21, 2000,= =20 this contingency shall be deemed waived and this PPA shall remain in full= =20 force and effect thereafter. ENA's dates fpr Board approval and due diligence: 6.4 (A) Seller shall have received all necessary internal approvals,=20 including, without limitation, the approval of Seller=01,s and Enron Corp.= =01,s=20 respective Boards of Directors according to such criteria as may be deemed= =20 appropriate by such governing bodies, provided that if Seller does not=20 provide written notice to PSCo on or before December 1, 2000, stating that= =20 Seller has been unable to satisfy this condition (despite its due diligence= =20 to do so) and that this PPA and the other Project Agreements are therefore= =20 terminated, then this condition shall be deemed to have been satisfied; (B) Seller shall have completed, to Seller's reasonable satisfaction, a due= =20 diligence review of the Site and all matters related thereto, including=20 suitability, access, land use, zoning, permitting, noise, environmental,=20 transmission access, fuel supply, utilities, and any similar or related=20 matters with respect to the Site, provided that if Seller does not provide= =20 written notice to PSCo on or before December 1, 2000, stating that Seller= =20 has been unable to satisfy this condition (despite its due diligence to do= =20 so) and that this PPA and the other Project Agreements are therefore=20 terminated, then this condition shall be deemed to have been satisfied;=20 As I said, the deal team intends to meet with PSCo next Wednesday Nov. 8 to= =20 attempt to amend the Agreement to match our off-ramp dates with the PSCo PU= C=20 offramp date, but the above provisions are the terms of the existing execut= ed=20 PPA. If you have any questions, please call. Al Larsen
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