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Enron Mail |
This letter goes a good bit further than we have with any of the North
American counterparties negotiating the ETA in that it identifies only those portions of the ETA that control over the masters rather than identifying those provisions which are subject to the masters. In my view there are really only very few places where we do not want the ETA to govern. Most of the agreement relates to the use of the website itself and to that extent there either should be no conflict with the master or if, by some tortured interpretation there is a conflict, the ETA should control. In one case I had to go through the entire ETA with the counterparty's lawyer, paragraph by paragraph, to identify those provisions where we would be willing to allow the master to control. The only sections we had to amend were the first sentence of section 3(e) (regarding confirmations - this may be different in the UK version), the confidentiality provisions and the notice provisions of section 6(e). And of course nearly every counterparty making comments has insisted that the indemnity provisions be scaled back to one extent or another. Maybe if PowerGen is intransigent, they would be willing to add a sentence to the letter indicating that the ETA will control regarding the acess to and use of the website. In an attempt to differentiate between our contractual trading arrangements and our agreement concerning the use of the website, perhaps Paragraph 3(a) can read something like "Except as set forth under paragraph 3.(b) and © below, in the event of any conflict between the ETA and the master agreement, with respect to the terms of any Transactionthe master agreement shall prevail. If we have to use this letter, my only other suggestion to the language would be to refer in paragraph numbered 1 to "The agreements listed beloweach comprises a" or better yet "Each agreement listed below is a" rather than "The agreements listed below comprise the". David Forster 01/11/2000 12:15 PM To: Mark Taylor/HOU/ECT@ECT cc: Subject: PowerGen - Urgent Mark, I would appreciate your opinion on the attached. Can you have a look and let me know what you think? Thanks, Dave ---------------------- Forwarded by David Forster/LON/ECT on 11/01/2000 18:05 --------------------------- Justin Boyd 11/01/2000 15:13 To: David Forster/LON/ECT@ECT cc: Edmund Cooper/LON/ECT@ECT Subject: PowerGen - Urgent Dave, I'm trying to reach agreement with PowerGen re: EOL trades - they are still very concerned with the overriding effect of the ETA, and will not accept our position. However, I have managed to get somewhere..........and I attach a draft I propose to send to their lawyer. This is I believe as far as we can get with PowerGen (I did speak to him and I don't think he will go any further than as set forth in the draft). The key point for me was to get PowerGen to agree (which I think they will) that the short + long descriptions [key elements of any trade] prevail over the master. Thoughts, comments please.... My view - if PowerGen agrees the draft, that should give us sufficient comfort... Thanks Justin
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