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Enron Mail |
Your clause is not as finely tuned as it could be, but it is difficult to=
=20 give you exactly the precise wording to make it more finely tuned because i= t=20 exists in a context of a number of related provisions in the Master=20 Agreement. Here is how I would ultimately like to see the clause work: After calculation of a Termination Payment in accordance with Section ___, = if=20 the Defaulting Party would be owed the Termination Payment, the=20 Non-Defaulting Party shall be entitled, at its option and in its discretion= ,=20 to (i) set off against such Termination Payment any amounts due and owing b= y=20 the Defaulting Party or any of its Affiliates to the Non-Defaulting Party o= r=20 any of its Affiliates under any other natural gas, energy or other commodit= y=20 or financial agreements, instruments or undertakings between the Defaultin= g=20 Party or any of its Affiliates and the Non-Defaulting Party or any of its= =20 Affiliates and/or (ii) to the extent the Transactions are not yet liquidate= d=20 in accordance with Section ___, withhold payment of the Termination Payment= =20 to the Defaulting Party. =20 If you could get whoever is helping you with your deal to work these concep= ts=20 into the gas agreement you would be much better protected by the clause tha= n=20 you are with the one you just sent me. ---cgy To: Christian Yoder/HOU/ECT@ECT cc: =20 Subject: Setoff Language The following provisions are proposed to be added into the Confirms for the= =20 Firm GTC. Please review and revise as appropriate. If a Triggering Event occurs, the Notifying Party may (at its election) set= =20 off any or all amounts which the Affected Party owes to the Notifying Party= =20 or it Affiliates (under this Agreement or otherwise) against any or all=20 amounts which the Notifying Party owes to the Affected Party (either under= =20 this Agreement or otherwise). "Affiliate=018 means, with respect to any person, any other person (other t= han=20 an individual) that, directly or indirectly, through one or more=20 intermediaries, controls, or is controlled by, or is under common control= =20 with, such person. For this purpose, "control" means the direct or indirec= t=20 ownership of fifty percent (50%) or more of the outstanding capital stock o= r=20 other equity interests having ordinary voting power. [Probably want to nam= e=20 EPMI specifically]
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