|
|
Enron Mail |
See Tudo's comments to our revised draft of the ISDA below.
----- Forwarded by Susan Flynn/HOU/ECT on 05/09/2000 08:19 AM ----- "Daniel A Harris" <dharris@shearman.com< 05/09/2000 05:47 AM To: "Susan Flynn" <Susan.Flynn@enron.com< cc: Subject: Re: ISDA with The Ospraie Portfolio Ltd. Susan, Thank you for the revised drafts. My comments are as follows: (1) Please date the Master Agreement as of February 1, 2000. (2) Part 1(a) -Specified Entities. As Enron Corp guarantees the performance of Enron NAC's obligations under the Agreement, please add the words "Enron Corp, but only to the extent that Enron Corp is a Credit Support Provider". This seems reasonable. (3) Please re-number the pages so that the Schedule starts on page 19 and the Paragraph 13 starts on page 11. (4) Part 1(e) - Payments on Early Termination. I am checking with Tudor as to whether they are agreeable to Loss for trades going out beyond two years. I would say, however, that I am not aware that they have agreed to this with any other counterparty. That said, Per's point that the trades are much shorter than this is noted. (5) Part 2(b) - Payee tax reps. Ospraie never makes payee tax reps other than relating to its place of incorporation. If this is an important point for you, I will get out tax group involved. However, Tudor prefers that neither party makes payee tax reps. (6) Part 3(b) - Documents to be Delivered. Party B annual financials - should read "... 120 days after the end of its fiscal year". (7) Part 3(b) - legal opinion. Please confirm that you will pay the costs of Cayman counsel. (8) Part 4(h) - Jurisdiction. I am checking with Tudor as "any court" is much broader than the non-exclusive jurisdiction of the NY courts. (9) Part 5(b)(g) - Commercial User rep. Tudor cannot make this rep. Please replace with the following: "Party A represents, with respect to Options, that it is a producer, processor, commercial user of, or merchant handling, the commodity subject to the Transaction or the products or byproducts thereof, and is entering into each Option Transaction solely for purposes related to its business as such". (10) Part 5(f) - Procedures for Entering into Transactions. Please remove the word "deemed" in the last line. This is no longer relevant. (11) Part 5(i). I am checking with Tudor. Is the "no consequential damages" consistent with Part 7 which expressly provides for the payment of out of expenses, the costs of a delta hedge etc. on non-payment of premium in a currency option? (12) Part 5(k) - Transfer. For the part of the paragraph relating to Party A, please change the proviso to read "and provided that such transfer will not give rise to adverse tax consequences to Party B or to a Termination Event or an Event of Default, and the proposed transfer would not adversely affect Party B's existing netting or set-off rights or under applicable law". The part of the paragraph relating to Party B should provide: "Party B may transfer its rights and obligations under this Agreement with the prior written consent of Party A, such consent not to be unreasonably withheld." These amendments are intended to be reasonable and fair to both sides. (13) Part 6 - line 2 "Definitions" - typo. (14) Part 7(b) - please remove the reference to "ISDA". The FX Definitions are previously defined in Part 5(e). (15) Para 13(b)(ii). Please include longer term Treasuries. My understanding is that this is what has been agreed, but please let me know if this is not your understanding and I will check with Tudor. (16) Para 13 (b)(iii). Please remove the reference to L/Cs. (17) Para 13(d) - Specified Condition (Tax Event) should refer to Section 6(b)(ii) and Specified Condition (TEUM) should refer to Section 6(b)(iii). (18) Para 13(g). I will check with Tudor. (19) Para 13(g). I think references to "Downgraded Party" and "Credit Rating Event" are inappropriate. Please clarify. Is there any way you will agree to the provisions of Paragraph 6© without more? What seems to be important is that the Secured Party is not a Defaulting Party - i.e. Para 13(g)(i)(1) (not (2)). This is consistent with Para 6© of the pre-printed form. Para 13(h) is related to this issue. (20) Para 13(i) and (j) - please remove. L/C-related provisions are no longer relevant. I look forward to receving revised drafts of the Schedule, Paragraph 13 and guarantee in due course. Kind regards. "Susan Flynn" <Susan.Flynn@enron.com< on 09/05/2000 01:18:56 To: Daniel A Harris/LN/EU/ShS@ShSDOMAIN cc: "Per Sekse" <Per.Sekse@enron.com<, "Sara Shackleton" <Sara.Shackleton@enron.com< Subject: ISDA with The Ospraie Portfolio Ltd. Please the attached letter, revised draft of the ISDA Schedule and Credit Support Annex, and redline of the ISDA Schedule and Credit Support Annex marked to show the changes made from the previous version. (See attached file: 164ltr.doc) (See attached file: 347ctr-a.doc) (See attached file: 347CTR-A(RED).DOC) - 164ltr.doc - 347ctr-a.doc - 347CTR-A(RED).DOC
|