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Enron Mail |
FYI, My Fla. counsel's comments to our letter.
-----Original Message----- From: Bill Bryant <BBryant@katzlaw.com<@ENRON Sent: Tuesday, November 27, 2001 11:21 AM To: Nemec, Gerald Cc: Daphne Gilbert Subject: RE: Construction Expedition Letter Gerald, Attached are my edits to the letter. Daphne will prepare a version that is without all of the deletions and additions so it is easier to read. You can compare the two to see exactly what I have done. My edits are in blue. Comments are in bold blue and bracketed. ECS may be over the barrel here and this may be the best deal that you can get. But it isn't a deal because it is all illusory. They agree to try to complete construction by a date certain (no recourse if they don't) in exchange for an ECS guarantee to reimburse Gulf for an amount that they think is fair (that is the only standard - they have no responsibility justify and we have no ability to verify that amount). In general, Gulf is allowed contributions in aid of construction and can stop construction if they don't get it. If our existing agreements clearly provide for a guaranteed term and minimum load, and those provisions are linked to the costs of construction (so no further contribution from ECS was contemplated in those agreements), then I think that ECS can hold them to the deal. We have no contract with WFEC so if the PSC decides in their favor we may have to petition the PSC and ask that we not be financially damaged by their decision and Gulf's incorrect representation (upon which we relied) that our facility was in a territory that they could serve. I think (but have not researched the point) that ECS would have standing as a customer. I believe that the commissioners and their non lawyer staff would be sympathetic to our situation. However, if we agree to a capped amount of reimbursement then their may be no issue for the PSC to decide. As of now Gulf has changed the deal on ECS. If ECS accepts the change (unless under protest) then a court or the commission will probably consider the matter moot. I'm not sure about the legal effect of "signing under protest" in this context but can do some research if you think that useful. In any event I think that the letter should recite more of the history of this negotiation and the early agreements or representations that are now modified. I know our clients hate lawyers but we should try to have as clean a record as possible if we think that we may have to seek relief. I don't have any of the agreements at issue here and there is probably more that should be included in the letter to give the context in which it is written and signed. More later. Call when you can. Bill -----Original Message----- From: Nemec, Gerald [mailto:Gerald.Nemec@ENRON.com] Sent: Monday, November 26, 2001 6:25 PM To: bill@katzlaw.com Cc: Hilgert, Chris Subject: FW: Construction Expedition Letter Per our discussion, please review and provide comments asap. < -----Original Message----- < From: "Jeffrey Stone" <jas@beggslane.com<@ENRON < Sent: Monday, November 26, 2001 4:51 PM < To: Nemec, Gerald < Cc: Hilgert, Chris; mawhowel@southernco.com < Subject: Construction Expedition Letter < < Here are Gulf's proposed changes to match the concept discussed < earlier this afternoon. < < -----Original Message----- < From: Nemec, Gerald [SMTP:Gerald.Nemec@ENRON.com] < Sent: Wednesday, November 21, 2001 10:38 AM < To: rab@beggslane.com; Howell, Marion W. < Cc: Hilgert, Chris; Owen, David; Alexander, James C. < Subject: Construction Expedition Letter < < For your review is the draft Construction Expedition Letter per our < discussions Monday. < < <<GulfExpediteLetter2.doc<< < < < ********************************************************************** < This e-mail is the property of Enron Corp. and/or its relevant < affiliate and may contain confidential and privileged material for the < sole use of the intended recipient (s). Any review, use, distribution < or disclosure by others is strictly prohibited. If you are not the < intended recipient (or authorized to receive for the recipient), < please contact the sender or reply to Enron Corp. at < enron.messaging.administration@enron.com and delete all copies of the < message. This e-mail (and any attachments hereto) are not intended to < be an offer (or an acceptance) and do not create or evidence a binding < and enforceable contract between Enron Corp. (or any of its < affiliates) and the intended recipient or any other party, and may not < be relied on by anyone as the basis of a contract by estoppel or < otherwise. Thank you. < ********************************************************************** < << File: GulfExpediteLetter2.doc << < - GulfExpediteLetter2.doc <<GulfExpediteLetter2.doc<< - GulfExpediteLetter2.doc
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