Enron Mail

From:debra.perlingiere@enron.com
To:gerald.nemec@enron.com
Subject:
Cc:
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Date:Wed, 17 Oct 2001 11:25:42 -0700 (PDT)


4.5. Termination Offset. Upon the designation or deemed designation of an=
Early Termination Date, the Notifying Party may, at its option and in its =
discretion, setoff, against any amounts Owed to the Affected Party by the N=
otifying Party or any Affiliate of the Notifying Party under this Agreement=
or under any other agreement(s), instrument(s) or undertaking(s), any amou=
nts Owed by the Affected Party to the Notifying Party or any of the Notifyi=
ng Party's Affiliates under this Agreement or under any other agreement(s),=
instrument(s) or undertaking(s). The obligations of the Affected Party an=
d the Notifying Party under this Agreement in respect of such amounts shall=
be deemed satisfied and discharged to the extent of any such setoff exerci=
sed by the Notifying Party and/or the Notifying Party's Affiliates. The No=
tifying Party will give the Affected Party notice of any setoff effected un=
der this section as soon as practicable after the setoff is effected provid=
ed that failure to give such notice shall not affect the validity of the se=
toff. For purposes of this Section 4.5, "Owed" shall mean any amounts owed=
or otherwise accrued and payable (regardless of whether such amounts have =
been or could be invoiced) as of the Early Termination Date. Amounts subje=
ct to the setoff permitted in this Section 4.5 may be converted by the Noti=
fying Party into any currency in which any obligation Owed is denominated a=
t the rate of exchange at which the Notifying Party, acting in a reasonable=
manner and in good faith, would be able to purchase the relevant amount of=
the currency being converted. If an obligation is unascertained, the Noti=
fying Party may in good faith estimate that obligation and setoff in respec=
t of the estimate, subject to the relevant party accounting to the other wh=
en the obligation is ascertained. Nothing in this Section 4.5 shall be eff=
ective to create a charge or other security interest except as may be provi=
ded under applicable law. This setoff provision shall be without prejudice=
and in addition to any right of setoff, netting, off-set, combination of a=
ccounts, counterclaim, lien or other right to which any party is at any tim=
e otherwise entitled (whether by operation of law, contract or otherwise). =
Each of the parties represent and acknowledge that the rights set forth in=
this Section 4.5 are an integral part of the agreement between the parties=
and that without such rights the parties would not be willing to enter int=
o Transactions. The parties further acknowledge that each is executing thi=
s Agreement on behalf of itself as principal and, with respect to this Sect=
ion 4.5, as agent on behalf of its Affiliates, which Affiliates shall recei=
ve the benefits of this Section 4.5 and otherwise be bound as if such Affil=
iates had entered into this Agreement as its relates to Section 4.5. Notwi=
thstanding any provision to the contrary contained in this Agreement, the N=
otifying Party shall not be required to pay to the Affected Party any amoun=
t under Section 4.5 until the Notifying Party receives confirmation satisfa=
ctory to it in its reasonable discretion (which may include an opinion of i=
ts counsel) that all other obligations of any kind whatsoever of the Affect=
ed Party to make any payments to the Notifying Party or any of its Affiliat=
es under this Agreement or under any other agreement(s), instrument(s) or u=
ndertaking(s), which are Owed as of the Early Termination Date have been fu=
lly and finally satisfied.


Debra Perlingiere
Enron North America Legal
1400 Smith Street, EB 3885
Houston, Texas 77002
dperlin@enron
713-853-7658
713-646-3490 Fax