RE: Fuel Management Agreement

I will call. Thanks. M

-----Original Message-----
From: Walls Jr., Rob
Sent: Monday, September 24, 2001 12:00 PM
To: Haedicke, Mark E.
Subject: FW: Fuel Management Agreement

Mark -

Let's discuss this so there is no misunderstanding about where EFI is likely to come out on their claim.

Thanks.

Rob

-----Original Message-----
From: Dhruv, Tushar
Sent: Monday, September 24, 2001 9:48 AM
To: Lundstrom, Bruce
Cc: Walls Jr., Rob; Edison, Andrew; Leach, Doug; Price, Brent A.
Subject: FW: Fuel Management Agreement

Bruce:

After a couple of go arounds, below is the Indian counsel's (Mr. Talwar) opinion with respect to Enron Fuels International's (EFI) claim as to the Fixed Fee as provided in the Fuel Management Agreement (FMA). I am sure Doug Leach has mentioned to you the mark-to-market and accrual income exposure of $14 million should the FMA also were rescinded or parlayed in the final resolution. EFI is continuing to invoice for the Fixed Fee every month although the plant is not operating as is DPC to MSEB.

Mr. Talwar's view is that as long as the PPA is valid, EFI has the right to collect the fee. If, however, the PPA is declared to be invalid as per MSEB's claim, then EFI would not be entitled to the fee.

I just want to point out that as DPC (and Enron) is working for a resolution, EFI's role should also be considered. And along those lines, EFI should take an active role in pursuing that its interest is protected.

Please call me at 35336 to discuss.

-- Tushar

-----Original Message-----
From: Edison, Andrew
Sent: Saturday, September 22, 2001 4:40 PM
To: Viverito, John; Leach, Doug; Dhruv, Tushar
Cc: Aronowitz, Alan
Subject: FW: Fuel Management Agreement

Gentlemen:

I think this e-mail I received early Saturday morning directly and succinctly answers the questions we posed to Indian counsel. Let's talk at your convenience.

Andy

-----Original Message-----
From: suresh talwar <suresh.talwar@crawfordbayley.com<@ENRON
Sent: Sat 9/22/2001 3:28 AM
To: Edison, Andrew
Cc:
Subject: RE: Fuel Management Agreement

Dear Andy,

The answers to each of your questions is as follows :

1. There is no theory under Indian law that Enron could use, to make an enforceable claim against MSEB in the context of the facts placed before us.

2. The concept of agency relationships does exist under Indian Contract Law. The concept of third party beneficiary claims does not exist under Indian Contract Law. However, Enron cannot make use of the agency relationship theory as the Agreement has not, apart from stating that DPC will be Enron's agent, stated that DPC will be acting under the Agreement as agent for Enron for all purposes.

3. Yes, our view is that Enron has no enforceable claim against MSEB on the basis of the facts placed before us and the provisions of the Agreement. However, if DPC makes a claim against MSEB and a judgment is awarded to DPC for recovery of the Fixed Fee, either as such or by way of damage, then Enron would have a right to attach the amount that may be payable by MSEB to DPC.

Kind regards,

Suresh

-----Original Message-----

From: Andrew.Edison@enron.com [SMTP:Andrew.Edison@enron.com]

Sent: Friday, September 21, 2001 6:41 PM

To: suresh.talwar@crawfordbayley.com

Cc: kiran.khanna@crawfordbayley.com

Subject: RE: Fuel Management Agreement

I am a little bit confused. Is there any theory under Indian law we could

use to make a claim against MSEB? In America, we might have a claim under

an agency relationship or a third party beneficiary claim. Is there any

such creature under Indian law? Is your advice that we have no claim

whatsoever?

-----Original Message-----

From: suresh talwar <suresh.talwar@crawfordbayley.com<@ENRON

[ <mailto:IMCEANOTES-suresh+20talwar+20+3Csuresh+2Etalwar+40crawfordbayley+2Ecom+3E+40ENRON@ENRON.com<]

Sent: Friday, September 21, 2001 7:05 AM

To: Edison, Andrew

Cc: kiran.khanna@crawfordbayley.com

Subject: Fuel Management Agreement

Hello Andy,

I refer to your email of 20th September, 2001 seeking clarification in

respect of the advice we gave you on the 19th of September, 2001 on the

Fuel Management Agreement (Agreement).

You wish to know whether Enron Fuels International Inc (Enron/Fuel

Manager) could make a claim under Indian law against MSEB on any

potential theories such as agency relationship, third party beneficiary

claims etc.

MSEB has to discharge certain functions under the Agreement. These

include amongst others, approving of the Fuel Management Plan proposed

by the Fuel Manager, providing copies to the Fuel Manager of notices

issued by MSEB to DPC pursuant to certain clauses in the PPA, etc.

There is no provision in the Agreement to suggest that Enron has entered

into the Agreement relying on the continued subsistence of the PPA and

no commitment has been made by MSEB under the Agreement in that behalf.

Enron's right to the Fixed Fee from DPC under the Agreement, is

contingent upon DPC being paid the corresponding PPA Fuel Management Fee

by MSEB. I assume that the only parties to the PPA are DPC and MSEB.

The payment of the PPA Fuel Management Fee by MSEB to DPC is governed by

the provisions of the PPA, to which Enron is not a party. Therefore

there is no privity of contract between Enron and MSEB/DPC as regards

the PPA. As a result, Enron has no claim against MSEB for non-payment

of the PPA Fuel Management Fee to DPC and therefore has no claim against

MSEB under the Agreement as there is no breach by MSEB of its functions

under the Agreement.

I trust I have answered your query adequately. Please feel free to call

for any questions that you may have.

Kind regards,

Suresh

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