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Enron Mail |
Mark,
Look forward to your views on the comments expressed by CC, as well as their minor drafting changes. I have not as yet sent this Sullivan & Cromwell....may be you would wish to do this as you see fit...... Look forward to seeing you soon in a week or so... Justin ---------------------- Forwarded by Justin Boyd/LON/ECT on 27/05/99 17:02 --------------------------- Enron Capital & Trade Resources Corp. From: Nicola.Garrett@cliffordchance.com 27/05/99 14:27 To: jboyd@enron.co.uk cc: lkitching@enron.co.uk, ekapralo@enron.co.uk, aaziz@enron.co.uk, Christopher.Millard@cliffordchance.com, Timothy.Hughes@cliffordchance.com (bcc: Justin Boyd/LON/ECT) Subject: Internet Trading - Internet Trading Access and Electronic Trading Agreements Further to our meeting yesterday, please find attached a copy of the Internet Trading Access Agreement ("ITAA") and the Electronic Trading Agreement ("ETA") marked up with my suggested changes from an English law perspective. As I mentioned to you yesterday, these documents will also need to be considered by the overseas lawyers to see whether there are any overriding local laws which could impact on the use. The overseas lawyers have copies of these agreements and will include this in their report. I understand that it is envisaged that the ITAA will be signed off line and the ETA will be posted on the Website. Each person authorised by a counterparty with a password must "click through" the Agreement before commencing trading. This will only be done on one occasion. We discussed yesterday the risks associated with this approach, namely, that a counterparty could claim that at the time of entering into the ITAA it was not aware of the terms of the ETA and therefore, could not be bound by it. It is clearly important to have certainty that the terms of the ETA are enforceable as they contain important terms such as indemnities, limitations of liability etc. Having said that, the view might be taken that by entering into the ITAA all that has been achieved is that a counterparty receives a password which enable the counterparty to put itself in a position where it must consider the ETA before proceeding. Once the counterparty accesses the Website and sees the ETA a second contract is made and the ITAA and ETA must then be read together but only at the time that the counterparty has clicked through the ETA. I suspect that this is the approach that Sullivan & Cromwell had in mind. It is also worth bearing in mind that a counterparty may ask for the ETA at the time of entering into the ITAA or may be relunctant to click through the ETA until they have had internal legal sign off. This may delay trading. Nonetheless, I understand that you are keen to proceed with signing the ITAA off line and the ETA on line and accordingly, the attached documents are marked up with that structure in mind. As agreed yesterday, I have only made changes to the document produced by Sullivan & Cromwell where I think it is necessary for English law purposes or clarification. I have the following brief comments on the changes I have made: 1. Parties: You will see that both documents are entered into by a designated Enron entity for itself and on behalf of all Enron group undertakings. The reason for this is that Transactions will actually be made between the counterparty and various different Enron entities. We therefore need to ensure that such Transactions with each of those Enron entities are governed by the terms of these documents. I note from your e-mail yesterday that it was suggested that we need to list the affiliates or have one entity enter into the Transactions. I think there may be some confusion here. This is not the case. I assume that the current Enron entities which trade certain commodities with certain counterparties will continue to do so on the Website. The Website will need to be set up in such a way as to achieve this but I assume that this causes no problem as each counterparty will see different pages on the Website depending on what password has been inserted. The documents now contemplate this. 2. "Services": I have removed the references to Services as I am not sure what this means. I would have thought that these agreements need to govern the counterparty's access and utilization of the Website whether or not they actually carry out any Transactions. Therefore, I believe that where the Agreement had previously referred to Services, it can now refer to "access and utilization of" the Website. 3. Contract Formation: I have inserted a short paragraph in Clause 3 of the ETA which provides that a Transaction will only be executed once Enron generates a message of confirmation of the sale and purchase to a Counterparty and that any electronic records of Enron will prevail. I note that Sullivan & Cromwell envisage a document being attached which explains this. This is also acceptable. 4. Data Protection: On reflection, it will be more appropriate for relevant data protection wording to be on the Website itself rather than in the ITAA or ETA. This is because the data protection concerns revolve around data subjects i.e. living individuals, rather than corporate entities such as the Counterparty. Before providing appropriate wording for this, could you please let me know what information will be collected by you concerning living individuals either intentionally or unintentionally. For example, when a password is entered will you be able to identify a living individual by this or can you intentionally or unintentionally obtain that individual's e-mail address or other information on them once they have entered the Site. You will need to check this with your technical people. Once you have had a chance to review this perhaps you could let me have your comments. I have simultaneously sent this e-mail to my financial regulatory colleagues for their review. They may have further comments which we will send onto you as a matter of urgency. Kind regards Andrew Wilkinson <<EnronAgC.doc<< <<EnronAgMU.rtf<< <<TradingAgc.doc<< <<TradingAgMU.rtf<< - EnronAgC.doc - EnronAgMU.rtf - TradingAgc.doc - TradingAgMU.rtf
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