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Kay, please note the following responses to Stuart Zisman's e-mail of 10/8
to you: 1. Correct. 2. The Option states that Optionee is permitted to disclose the terms of the agreement to "Optionee's accountants, attorneys, prospective lenders, investment bankers, underwriters, rating agencies, partners, consultants and other advisors in connection with the transactions contemplated by this Option (collectively, "Representatives"), to the extent that such Representatives reasonably need to know such information and data to assist, and perform services on behalf of Optionee." It may be a stretch, but I might argue that potential bidders may be considered "prospective" lenders or partners in connection with the option and that they reasonably need to know such information. Perhaps Enron should seek a waiver of this obligation from Optionors. Furthermore, it is correct that the option was not exercised based on the materials. A "Notice of Option to Purchase Real Estate" dated May 19, 2000 was submitted as part of re-zoning application; but upon further review it appears that it was not intended as an exercise of the option. 3. The comment noted in the "Assignment of Option to Purchase Real Estate," dated November 9, 2000 was also submitted as part of the re-zoning application, and similarly not intended as an exercise of the option. Please disregard the comment. 4. Correct. 5. Correct. 6. Correct. Finally, my review was limited to the documents that were sent over by you guys some months ago, and I haven't looked at DealBench recently. Therefore, as Stuart mentioned, I need to confirm that I have reviewed everything. I spoke to Stuart about this issue yesterday, and he is aware that I have not had time to focus on Midway as much since we've been finalizing Doyle. I told him that I still needed to go through Dealbench and that I would like to consolidate the two charts that I prepared into one chart. Additionally, I mentioned that I was revising the Midway PSA to include comments from the Enron team in connection with Doyle. He told me to focus on Doyle for now and turn to Midway as soon as I had time. I just sent out execution copies for Doyle and will turn to Midway right away. I will redistribute the revised PSA and chart as soon as possible. Best Regards, William Parish King & Spalding 1100 Louisiana, Suite 3300 Houston, Texas 77002 Phone: 713/276-7413 Fax: 713/751-3280 E-mail: bparish@kslaw.com -----Original Message----- From: Mann, Kay [mailto:Kay.Mann@ENRON.com] Sent: Monday, October 08, 2001 5:10 PM To: bparish@kslaw.com; jkeffer@kslaw.com Subject: FW: Ft. Pierce and Midway -----Original Message----- From: Zisman, Stuart Sent: Monday, October 08, 2001 5:08 PM To: Mann, Kay Cc: Clark, Barton Subject: RE: Ft. Pierce and Midway Kay, I quickly reviewed the summaries of documents done by K&S and have the following questions/concerns: 1) Items #1 and #2 - I assume that you concluded that the prohibition doesn't prevent disclosure of the agreement itself; 2) Item #3 - It sounds like this is a confidentiality problem. Also, did we really exercise the option or did we just extend it?; 3) Item #4 - What is meant by the Comment section?; 4) Item #5 - I assume that you concluded that the confidentiality provision did not restrict us from disclosing the agreement; 5) Item #6 - I assume that you concluded that the confidentiality provision did not restrict us from disclosing the agreement; and 6) Item #10 - I assume that the change of control provision does not extend to a sale of equity. What about the other documents relating to Midway? Are these the only significant ones. DealBench has numerous docs relating to Midway and I need to be certain that all have been considered/reviewed. Thanks for your help. P.S. Kay, have we spoken with the folks at Westinghouse on the Gleason settlement issue. I was hoping that you would call the author of the last email from Westinghouse to try to articulate the reason for revising the language and follow that with a conference call if need be. Please advise. Stuart -----Original Message----- From: Mann, Kay Sent: Monday, October 08, 2001 1:36 PM To: Zisman, Stuart Cc: Clark, Barton Subject: FW: Ft. Pierce and Midway << File: 3D7Y01!.DOC << Bill tells me he is revising the Midway p/s ag to reflect Enron input on Doyle deal. Please let me know if I can help. Kay -----Original Message----- From: Mann, Kay Sent: Monday, October 08, 2001 12:09 PM To: Clark, Barton Subject: FW: Ft. Pierce and Midway Here's the chart on the Midway docs. John Keffer (713 751 3255) and Bill Parish at King & Spalding have been involved. I'll have them send you the most recent purchase/sale agreement on Midway. Kay -----Original Message----- From: Parish, Bill [mailto:BParish@KSLAW.com] Sent: Monday, October 08, 2001 11:57 AM To: Mann, Kay Cc: Keffer, John Subject: RE: Ft. Pierce and Midway Kay, attached is a chart summary of our review of the Midway documents that addresses the issues raised by Stuart Zisman in his e-mail of 10/4/01 to you and Bart Clark. Please let me know if you have any questions or comments. I hope you are doing well. Best Regards, William Parish King & Spalding 1100 Louisiana, Suite 3300 Houston, Texas 77002 Phone: 713/276-7413 Fax: 713/751-3280 E-mail: bparish@kslaw.com <<3D7Y01!.DOC<< -----Original Message----- From: Mann, Kay [mailto:Kay.Mann@ENRON.com] Sent: Thursday, October 04, 2001 11:20 AM To: jkeffer@kslaw.com; bparish@kslaw.com Subject: FW: Ft. Pierce and Midway Hi John and Bill, I know I've been out of the loop on this one, but I wanted to check to make sure that you were still involved. You may have given Sheila or Bart the info, but just in case you didn't, did the document review on Midway get completed? Thanks, Kay < -----Original Message----- < From: Zisman, Stuart < Sent: Thursday, October 04, 2001 11:14 AM < To: Mann, Kay; Clark, Barton < Cc: Jacoby, Ben; Plauche, Stephen; Hoff, Jonathan < Subject: Ft. Pierce and Midway < < Bart and Kay, < < In preparation for providing potential purchasers with access to < DealBench (expected as soon as October 22nd), I wanted to determine < whether all of the documents on DealBench have been reviewed to < consider whether their disclosure or the anticipated sale will cause a < problem or violate the terms of any agreement. At our kick-off < meeting in mid-July (I can't remember if Kay was there), we discussed < having the documents reviewed (by 9/1/01) for (i) confidentiality < provisions, (ii) restrictions on transferability, (iii) continuing < liability for Enron or it affiliates (in the form of guarantees, etc.) < and (iv) unusual termination rights that might be triggered by a sale < of the project. < < My team is in the process of cleaning up DealBench in preparation for < providing access to second round bidders. We are focusing primarily < on organization, making sure that the documents are the most recent < and accurate drafts (with cooperation from Ben's group) and < determining whether the documents contain information on other < development sites or project (which would require redaction). We have < stumbled across a couple of confidentiality provisions in the Midway < Interconnection Feasibility Study Agreements (specifically documents < 02.05.01, 02.05.02 and 02.05.03 on DealBench) and wanted to know if < (i) legal is ok with them and (ii) whether all of the other documents < have been reviewed (i.e. are there similar provisions in other < documents). < < Please let me know what has been or will be done in this regard. < < Thanks in advance for your assistance. < < Stuart < < P.S. Kay, I sent Bart a message yesterday regarding the need to < prepare forms of purchase and sale agreement for each of the projects. < My understanding is that you may have already prepared a form for the < sale of Midway. Please coordinate with Bart to develop a form that < works for both projects (with the understanding that there may need to < be some differences between the two because of differences in the < projects). Under separate cover, I will forward to you a copy of the < email that I sent yesterday. ********************************************************************** This e-mail is the property of Enron Corp. and/or its relevant affiliate and may contain confidential and privileged material for the sole use of the intended recipient (s). Any review, use, distribution or disclosure by others is strictly prohibited. If you are not the intended recipient (or authorized to receive for the recipient), please contact the sender or reply to Enron Corp. at enron.messaging.administration@enron.com and delete all copies of the message. This e-mail (and any attachments hereto) are not intended to be an offer (or an acceptance) and do not create or evidence a binding and enforceable contract between Enron Corp. (or any of its affiliates) and the intended recipient or any other party, and may not be relied on by anyone as the basis of a contract by estoppel or otherwise. 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