|
|
Enron Mail |
mark:
Any thoughts on whether we should give in with respect to the consequential damages issue? Carol ---------------------- Forwarded by Carol St Clair/HOU/ECT on 04/17/2000 06:16 PM --------------------------- David Minns@ENRON_DEVELOPMENT 04/17/2000 01:38 AM To: Carol St Clair@ECT cc: Paul Quilkey/ENRON_DEVELOPMENT@ENRON_DEVELOPMENT, Paul Smith/ENRON_DEVELOPMENT@ENRON_DEVELOPMENT Subject: Re: EnronOnline Carol, we have one remaining issue outstanding with United Energy on the ETA. They are still insisting on a exclusion of "consequential losses" from the indemnity given clause 4(a) of the ETA. Two questions Do we have a position on agreeing to exclude consquential losses from this clause? My own view is in this instance it is going to be somewhat "hit and miss" as what would be a consequential loss and what is not. That being said the general Enron position is to exclude consequential losses. In fact such a provision is already in the GTCs in respect of any Transaction. Hence if there was a Transaction consequentiallossess would then presumably be excluded in respect of a related breach of the ETA. Utilicorp is a substantial equity holder in United Energy. I understand they are trading through EnronOnline. Do we know what they have agreed? ---------------------- Forwarded by David Minns/ENRON_DEVELOPMENT on 04/17/2000 05:15 PM --------------------------- David Minns 04/12/2000 06:12 PM To: "Creek, Peggy" <pcreek@ue.com.au< @ ENRON cc: Paul Smith/ENRON_DEVELOPMENT@ENRON_DEVELOPMENT, Connell Burke/ENRON_DEVELOPMENT@ENRON_DEVELOPMENT Subject: Re: EnronOnline Peggy further my previous email. Two additional points; I believe it is best for us to move to replace the Deemed ISDA Agreement. This will provide a cleaner contractual basis for EnronOnline trades. We should be able to settle a ISDA Master Agreement quite swiftly using the existing commmercial terms in the Deemed ISDA. If you are concur with this course of action we will forward to you tomorrow a Schedule for review. In respect of Section 4(b) of the ETA we would be agreeable to add the following at its end: "unless such access, entry, omission or action arises from acts or omissions of Enron and its directors, officers, employees, agents or contractors.'' David Minns 04/11/2000 03:01 PM To: "Creek, Peggy" <pcreek@ue.com.au< @ ENRON cc: Paul Smith/ENRON_DEVELOPMENT@ENRON_DEVELOPMENT Subject: Re: EnronOnline Peggy my apologies for not replying sooner but I was overseas. Let me respond to the points you raised. Deemed ISDA Agreement- We would be most happy to provide a letter that you could aknowledge that the Deemed ISDA Agreement is a master agreement for the purposes of the ETA. I would prefer not to make a formal amendment as this may exclude a subsequent Master Agreement from applying. Enron Australia Finance Pty Ltd. is the Enron counterparty for all Australian power trades. If that is your preference then access can be limited to only those products. You could write to us stating this is your position. However, we have found that counterparties have not found this necessary. Your EnronOnline Master User will set access levels for your individual traders. Many counterparties appoint a person from their Controls group (not a Trader) as their Master User. This gives them the flexibility to broaden/ reduce access themselves. Excluding "consequential loss" in this circumstance is quite broad but if we could work through some scenarios hopefully we could find some words to accomodate your concerns. When we last spoke you mentioned the concern here was the possibility that the password may be disclosed from other than a UE source ie Enron. I have talked this issue through with our systems people as to the nature of this exposure. What happens is that the password which is issued to a user is immediately changed after it is received from Enron. Hence the source of the password must be the relevant counterparty. Whether improper use is a result of the counterparty's negilence or some other cause such as an unauthorised use or disclosure by one of its personnel is not relevant. What is of concern that the loss would have resulted from or arose out of a Counterparty's "access to or utilisation of the Website". Perhaps you would give me a call so we may discuss any outstanding points. David Minns Senior Legal Counsel Phone 612 9229 2310 Fax 612 9229 2350 "Creek, Peggy" <pcreek@ue.com.au< on 03/31/2000 12:45:47 PM To: "'david.minns@enron.com'" <david.minns@enron.com< cc: Subject: EnronOnline David Further to our conversation this week regarding our outstanding issues in the Electronic Trading Agreement, UE suggests the following way foreward. Enron sends a letter to UE to be countersigned. This letter covers the following: * it is a variation to the ETA; * all Transactions entered through EnronOnline will be covered by the Deemed ISDA Master Agreement signed between UE and Enron Australia Finance and dated 8th Feb 1999; * Transactions at this stage will only be between UE and Enron Australia Finance; * amend clause 4(b) to exclude indemnification against consequential loss; * amend clause 4(b)(ii) of the ETA to remove the wording "whether or not Counterparty has authorized such access" and provide appropriate replacement wording that ensures UE is only liable where access is obtained through UE's negligence. Please let me know if Enron would agree to this. Regards Peggy
|