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Enron Mail |
Sara,
When you are ready to talk some more about the agreement, please give me a call. Thanks. --Andy Andrew V. Waskow Vice President and Counsel Merrill Lynch & Co., Inc. 4 World Financial Center, Floor 12 New York, NY 10080 Phone: 212-449-5828 Fax: 212-449-0265 awaskow@exchange.ml.com < -----Original Message----- < From: Sara.Shackleton@enron.com [SMTP:Sara.Shackleton@enron.com] < Sent: Wednesday, November 01, 2000 9:37 AM < To: AWaskow@exchange.ml.com < Subject: RE: Master Repurchase Agreement with Enron North America < Corp. < < < Andy: < < I am reviewing your comments and will have an answer shortly. I thought, < however, that you should know that the limitation of liability provision < is < non-negotiable from Enron's viewpoint. If this is problematic, please < advise and we can halt further discussion. Thanks. Sara < < < < < "Waskow, Andrew < < (OGC)" To: < "'Sara.Shackleton@enron.com'" <Sara.Shackleton@enron.com< < <AWaskow@exchan cc: "Shin, Regina (OGC)" < <Rshin@exchange.ml.com< < ge.ml.com< Subject: RE: Master < Repurchase Agreement with Enron North America < Corp. < < 10/31/2000 < < 06:33 PM < < < < < < < < < < Sara: < < Thanks for the additional information and the recommended changes, each of < which we accept. < < In order to accommodate the deletion of 9(b), we recommend revising your < number 6 to read as follows: < < 6. Substitution < < (a) Paragraph 9(b) is hereby deleted in its entirety. < < (b) Seller shall not retain custody of any Purchased Securities < under any Transaction governed by this Agreement. < < NOTICES: Your suggested language regarding notices is potentially < problematic. Under the Paragraph 13 of the MRA, notices may made orally, < "to be confirmed promptly in writing....", and confirmation of delivery is < not expressly relevant. The unquestionable ability to make oral margin < calls pursuant to Paragraph 4 is vital in fast-moving market conditions, < and < was expressly included in the standard agreement to avoid any doubt as to < their validity. In the default context (Paragraph 11), proof of delivery < of < written notice is of no concern because the exercise of a party's rights < under that Paragraph is not contingent upon delivery of notice. Notice < must < be given "as promptly as practicable." We believe that the proposed < language could cause confusion or uncertainty regarding the validity of < oral < margin calls and would conflict with the operative provisions of Paragraph < 11. We therefore request deletion of your number 8. < < NON-ASSIGNABILITY: As we discussed earlier today, we have a general < aversion to assignments of repurchase transactions due to our regulatory < obligations as a broker-dealers. For that reason, we must be free to < withhold consent to assignment with confidence that such withholding will < not be challenged as "unreasonable." We therefore request deletion of < your < number 9. < < We are still reviewing your proposals regarding SETOFF and LIMITED < LIABILITY. I will also have to review Section 5-1401 of the NYGOL before < commenting on that. < < I look forward to the prompt completion of our negotiations. Thanks again < for the information and recommendations. < < Best regards, < Andy Waskow < < < -----Original Message----- < < From: Sara.Shackleton@enron.com [SMTP:Sara.Shackleton@enron.com] < < Sent: Tuesday, October 31, 2000 6:22 PM < < To: awaskow@exchange.ml.com < < Cc: Ellen.Su@enron.com < < Subject: Master Repurchase Agreement with Enron North America Corp. < < < < Andy: < < < < In the spirit of "full disclosure", I thought I would let you know what < < ENA < < has agreed to on the ISDA side with various Merrill entities. < < ENA has ISDA's with Merrill Lynch International Bank (8/25/95), Merrill < < Lynch Capital Services Inc. (12/2/92) and Merrill Lynch International < < (8/25/95). < < There is no arbitration provision in any of these agreements; there is < < merely silence as to jurisdiction (ENA began negotiating arbitration < < around < < 1997). All of these agreements contain our standard limitation of < < liability language (in boldface) and all permit some type of assignment < to < < an affiliate (in general, without negative tax impact or with sufficient < < credit support). All of the agreements provide for setoff (including < < affiliates of non-defaulting parties) and all contain confidentiality < < provisions. < < < < I would therefore propose the following changes to Annex I: < < < < change the margin deadline time to 10:00 a.m. (NY time) < < delete Par 9(b) - and you can send your additional no custody required < < language < < delete the arbitration provision in its entirety < < < < I hope that you can resond to the remaining issues tomorrow morning so < < that < < we can finalize docs by the afternoon. Thanks for your assistance. < < < < Sara < < < < < < < < < <
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