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Enron Mail |
PRIVILEGED AND CONFIDENTIAL ATTORNEY CLIENT COMMUNICATION
I spoke with Deutsche bank immediately after my conversation with Dan Lyons. I apologize as I must not have communicated clearly that I understood the importance of this issue from a legal point of view. My intent on having language proposed was not to concede to any proposed language by Deustche but to determine if it was possible to be assured of bringing in a significant commitment to the syndication of the transaction as well as not create any potential legal issues. As this was not the case, I told Deutche that after reviewing their proposed documentation, we could not make the change and that they should come into the transaction and hold the entire $35MM amount and hold that amount rather than syndicating it out the back end as initially contemplated. Dan Lyons 10/27/2000 03:21 PM To: Richard B Sanders/HOU/ECT@ECT, Carl Tricoli/Corp/Enron@Enron, abaskins@llgm.com, tmoore@llgm.com, Garrick Hill/HOU/ECT@ECT cc: Brian Kerrigan/HOU/ECT@ECT Subject: Enron/Ponderosa: Proposed Langauge PRIVILEGED AND CONFIDENTIAL ATTORNEY CLIENT COMMUNICATION KBC is apparently having trouble syndicating the Cornhusker deal and one of the potential syndicees, Deutsche Bank, didn't like the way our deal was structured thinking it wasn't as good a deal for the banks as a different Enron deal they were in. I think at least some of us have talked about this before and I am reluctant, given the posture of Brazos at the current moment to do even de minimis or seemingly non- controversial or harmless changes to the documents because I don't know how it might be construed or twisted against us in a litigation scenario..having said that, I think this one does two things..it gives DB a right to step in and act onits own behalf if Enron doesn't pay...this seems to me to be a clear change from a hardly maintained position that we wanted to deal with one entity, not a dozen and in my view is a change in the deal, but I guess is your call..the second change (I think) adds some ability on the part of the banks to involve ponderosa in remedial actions if there is non-payment...this seems to me to have the advantage of reinforcing Ponderosa's status as an owner, but may not reflect our deal with Ponderosa and to some extent is inconsistent with the Mantra we have consistently had of Enron's credit being the credit which was being bought...I note that I have made these observations from my memory of what the docs say and request Lebouef to confirm my analysis or correct it...at any rate if my analysis is correct I vote no, but I think we probably need a group discussion early next week as they want to finalize the assignments on Tuesday...Lebouef will be sending a separate memo about some other issues that have been raised by the proposed assignments...it seems to me that our original deal is being steadily chipped away and I really worry about it in light of the strained relations with Brazos ----- Forwarded by Dan Lyons/HOU/ECT on 10/27/2000 03:01 PM ----- marcus.tarkington@db.com 10/27/2000 01:55 PM To: brian.kerrigan@enron.com, Sarah.Heineman@enron.com, dan.lyons@enron.com cc: Subject: Enron/Ponderosa: Proposed Langauge Brian, as we discussed attached is the proposed language to be added to the Assignment Agreement to address the DB policy issue. Also, the language will facilitate the loan saleability and therefore included in the Assignment Agreement when we sell the loan. As indicated in the note our counsel is reviewing the Assignment Agreement which we just recently received from Mayer, Brown. After you and your counsel have reviewed the language below please give me a call. 212 250-7684 Thanks ---------------------- Forwarded by Marcus Tarkington on 10/27/2000 02:45 PM --------------------------- Margaret M Ross@DBNA 10/27/2000 03:17 PM To: Marcus Tarkington@Bankers_Trust cc: Subject: Enron/Ponderosa: Proposed Langauge Set forth below for your consideration is proposed language relating to the right of independent action that we have been discussing. This language would appear at the end of the draft Assignment Agreement as a final provision to the Miscellaneous section. Please note that I have not had the opportunity to review the assignment and, as a result, the language set forth below remains subject to our review of this proposed agreement: (n) Notwithstanding anything else provided herein or in any Loan Document or the Swap Agreement, the parties hereto acknoledge and agree that: (i) the term "Party B" (as such term is used in Section 13(b) of the Swap Agreement) shall mean and be a reference to (A) the Agent, and/or (B) in the case of any controversy, dispute or claim arising out of or relating to any failure by Enron Corp. to make, when due, any payment specified under Section 5(a)(i) of the Swap Agreement in accordance with the terms thereof, any Lender; and (ii) the term "party" or "parties" (as such term is used in Section 13(b) of the Swap Agreement), in the case of any Dispute referred to in clause (i)(B) above, shall include any such Lender. Margaret Ross
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