Re: Late Delivery

Peter and Mark,

I apologize for the confusion. Peter, if you have questions concerning
Enron on Line, Mark would be a good person to contact. I can help you with
the questions on the Master. Note that the European version that was sent to
you does not include US law provisions.

Robbi Rossi
Sr. Counsel
Enron Broadband Services
Phone: (713) 345-7268
Fax: (713) 646-8537

Peter Traung@ENRON
01/19/01 02:13 AM

To: Mark Taylor/HOU/ECT@ECT
cc: Mary Nell Browning/LON/ECT@ECT, Robbi Rossi/Enron Communications@Enron
Communications
Subject: Re: Late Delivery

Thanks Mark! I misunderstood Robbi's mail - I thought you had been working
on the sections of the MSA discussed initially in my mail.

However, it would be very helpful if you could identify those portions of the
US MSA that are there solely for US regulatory purposes - they may not be
necessary in the European version and would inevitably cause discussions with
European CP's, where the argument that they refer to US regulatory
requirements may not be easily accepted. Section 10.2(ii) is the one below,
which I would be happy if we could delete for Europe:

(i) it is (a) in connection with each Product, a commercial participant who,
in connection with its activities, incurs risk, in addition to price risk,
related to such Product, has a demonstrable capacity or ability, directly or
through separate bona fide contractual arrangements, to provide or accept
such Product under the terms of a Transaction and (b) is either (1) a
corporation, partnership, organization, trust or other business entity with a
net worth exceeding US$1,000,000 (or the equivalent thereof in any foreign
currency) or has total assets exceeding US$5,000,000 (or the equivalent
thereof in any foreign currency) or (2) an entity, the obligations of which
under this Agreement are guaranteed or otherwise supported by a letter of
credit or keepwell support, or other agreement by any such entity or by an
entity referred to in subsection (b)(1) above;

From: Mark Taylor@ECT on 18/01/2001 18:57 CST
To: Peter Traung/EU/Enron@ENRON
cc:

Subject: Re: Late Delivery

Peter

Welcome to Enron! I usually get to the London office a couple of times a
year and will look forward to meeting you there. If not, hopefully we'll see
you at the Law Conference in the Spring.

Most of your e-mail is well outside my area of expertise. Are you consulting
me regarding the regulatory issues and section 10.2? If so, it would help if
you told me what 10.2 says.....

Feel free to give me a call if you'd like to discuss.

Mark

Peter Traung@ENRON
01/18/2001 01:51 PM

To: Mark Taylor/HOU/ECT@ECT
cc:
Subject: Re: Late Delivery

Mark, I'm a new lawyer at Enron Europe, working with Mary Nell on the
broadband team. Robbi and I have had the below email coorespondence, and
Robbi suggested that I check with you. Any thoughts?

---------------------- Forwarded by Peter Traung/EU/Enron on 18/01/2001 19:46
---------------------------

Peter Traung
18/01/2001 08:18
To: Robbi Rossi/Enron Communications@ENRON COMMUNICATIONS
cc:

Subject: Re: Late Delivery

Robbi, I assumed that to be the way it would work, which seems to require
that total non-performance is viewed as an SLA failure, presumably then in
the form of Unavailability - if no seconds are delivered at all, then
Unavailable Seconds certainly exceed any normal threshold - resulting in
Credits. But I was not able to access the actual definition of Unavailable
Seconds thru the www.ansi.org website, but someone here should have them.
There would then also be a cut-off date, beyond which Buyer would not have to
be satisfied with only receiving Credits, when the Unavailable Seconds exceed
the threshold determined for Product Termination Event thus enabling Buyer to
terminate.

But would not this construction become a bit strained if the ANSI standard
refers to seconds that are unavailable in an otherwise up and running
connection (as the reference to path performance monitoring may suggest)?

When you prepared the document, did you consider explicitly dealing with
total non-performance (for example, by explicitly stating, for the sake of
clarification, that Unavailable Seconds shall also include the case where no
seconds are delivered at all)?

I understand that 10.2 (ii) is based on US regulatory requirements. Are
there any other sections that are solely based on such requirements?

Robbi Rossi@ENRON COMMUNICATIONS
17/01/2001 21:46
To: Peter Traung/EU/Enron@Enron
cc:

Subject: Late Delivery

Peter,

In response to your voice message, if our supplier fails to deliver on
time, we are entitled to collect liquidated damages from such supplier. If
we have resold the circuit and are unable to deliver to our customer because
of the failure of our supplier, we in turn will have to pay our customer
liquidated damages for late delivery. This is why it is so important to
"back to back" the trades to the extent possible. Please let me know if you
have any other questions. Hang in there!

Robbi Rossi
Sr. Counsel
Enron Broadband Services
Phone: (713) 345-7268
Fax: (713) 646-8537