Sounds good to me.




Herman Manis
06/26/2000 12:33 PM
To: Kay Mann/Corp/Enron@Enron
cc:  

Subject: Re: ABB transformer purchase  

Ok to discuss today after 3 pm meeting?



To: Ben Jacoby/HOU/ECT@ECT, Lisa Bills/Corp/Enron@ENRON, Matthew 
Berry/HOU/ECT@ECT, Roseann Engeldorf/Corp/Enron@ENRON, Herman 
Manis/Corp/Enron@ENRON, Kathleen Clark/ENRON_DEVELOPMENT@ENRON_DEVELOPMENT
cc:  
Subject: ABB transformer purchase

I'm circulating some language for the ABB transformer purchase agreement.  
Please let me know if you have any problem with the language.

The buy back language is new.  The assignment language is intended to address 
some concerns raised by ABB - the changes are marked in red.

Buy back option.  (5.4.3)

At Purchaser,s option, Seller will arrange for storage of the Unit or Units 
to be stored for up to one year following the successful conclusion of 
factory testing.  Purchaser shall pay the Purchase Amount in full, and will 
pay the actual storage charges, billed quarterly during the year the Unit or 
Units are stored.  Title and risk of loss shall be with Purchaser during this 
storage period.  Purchaser shall have the right (but not the obligation) to 
sell the Unit(s) back to Seller for 30% of Purchase Amount of the Unit(s) 
after the end of the one year storage period.  Payment will be due 30 days 
after receipt of written notification by Purchaser of its intent to exercise 
this option.  Title and risk of loss shall be with Seller as of the time of 
payment.

If Purchaser desires to sell the Unit(s) prior to the expiration of the one 
year storage period, Purchaser may request, and Seller agrees to act, as 
broker for the re-sale of the Unit(s). The terms of the remarketing agreement 
will be subject to mutual agreement.


Changes to assignment language.


22.2   Assignment by Purchaser.  This Agreement or any right or obligation 
contained herein may be assigned, from time to time, by Purchaser without 
Seller,s consent to:

(i) Agent (in the case of an assignment by Purchaser) or an Affiliate of 
either WestLB or Agent;

(ii) a joint venture, partnership, limited liability company or other similar 
entity in which Agent or any of its Affiliates is a venturer, partner or 
participant with no less than a nineteen and one-half percent (19.5%) equity 
interest;

(iii) any Lender;

(iv) any Indemnified Party;

(v) any entity for the purposes of financing or sale of the Facility;

(vi) any party (1) for which Agent or any of its Affiliates has agreed to 
construct or develop a facility using the Equipment, or (2) to which the 
Agent or any of its Affiliates has agreed to convey a power plant project 
which it has under development; or

(vii) any contractor or developer (including, without limitation, Enron 
Engineering & Construction Company and/or NEPCO) which is retained by Agent 
or any of its Affiliates to construct or develop a Facility using the 
Equipment.

In the case of an assignment to a party described in (ii), (vi), or (vii) 
(other than  Enron Engineering & Construction or NEPCO), Seller shall be 
entitled to request and receive an appropriate guaranty, letter of credit, 
payment bond or other reasonable form of payment security, in amount not to 
exceed the amount of the Purchase Amount remaining to be paid at the time of 
the assignment, unless the assignor agrees to remain liable for all future 
liabilities under this Agreement.  A letter of guaranty, letter of credit, or 
payment bond provided by an entity rated BBB+ or better shall be deemed to be 
an appropriate form of security for the purpose of this provision.

Except for (i) through (vii) above, this Agreement may not be assigned by 
Purchaser to other parties without the prior written consent of Seller which 
shall not be unreasonably withheld, conditioned or delayed.  Seller agrees to 
respond to any request for consent within thirty (30) Days following its 
receipt of such request.  Any failure to respond within the foregoing time 
period shall be deemed to be a grant by Seller of its consent to the proposed 
assignment.  In determining whether Purchaser shall be permitted to assign 
this Agreement, Seller shall only be deemed to be reasonable in withholding 
its consent if the proposed assignee does not have substantially the same or 
better credit quality than Agent unless (a) the proposed assignee provides 
appropriate guaranties, letters of credit or other assurances of payment 
issued by an entity or person with substantially the same or better credit 
quality than Agent, or (b) the assignor agrees to remain liable for all 
future liability under this Agreement.  Purchaser shall have the right to 
assign or pledge, from time to time, all or any portion of its right, title 
and interest in, to and under the Agreement as collateral for financing of 
any Facility without Seller,s consent.

When duly assigned in accordance with the foregoing (including, following any 
collateral assignment, upon foreclosure by any collateral assignee) (i) this 
Agreement shall be binding upon and shall inure to the benefit of the 
assignee (and all rights hereunder, including, without limitation, any and 
all warranty rights, shall be assigned to the assignee as if such assignee 
were an original party hereto), and (ii) the assignor shall be irrevocably 
relieved and forever discharged of all liability under this Agreement so long 
as the assignee executes an assumption of such liabilities.  Any other 
assignment by Purchaser shall be void and without force or effect. 

Notwithstanding the generality of the foregoing, in connection with any 
assignment permitted under this Section 22.2 to any assignee, the Purchaser 
shall have the right, from time to time by Notice to Seller and without 
Seller,s consent, to (i) designate such assignee to be the successor of 
WestLB hereunder, (ii) designate such assignee to be the successor of  
&Agent8 hereunder, (iii) designate such assignee as a sub-agent of the Agent 
hereunder, and (iv) designate that such assignee has succeeded to all of the 
rights and obligations of both WestLB and Agent, whereupon (notwithstanding 
the first WHEREAS clause hereof, but subject to any subsequent appointment of 
an &Agent8 hereunder) each reference to &Purchaser8 hereunder shall be deemed 
a reference to such assignee acting in its individual capacity and each 
reference to an &Agent8 herein shall be deemed deleted.

Upon any permitted assignment of the rights under this Agreement to acquire a 
Unit or Units, and the assumption (in accordance with the terms hereof) of 
the obligations related thereto, Seller shall enter into a separate purchase 
agreement with the permitted assignee (each, a &Facility Agreement8).  The 
terms of each Facility Agreement will be in strict conformity with the terms 
and conditions of this Agreement, except for site specific changes as agreed 
by the Seller and such assignee.  In no way shall the Facility Agreement 
increase the liability or responsibility of Seller, Purchaser, or Agent under 
this Agreement.

The parties further agree that the provisions of this Agreement relating to 
assignment will only control the assignment of Purchaser,s or Agent,s rights 
and obligations under this agreement prior to Acceptance of the Unit to be 
assigned. Following Acceptance, Purchaser or Agent shall be permitted, 
without Seller,s consent, to: (i) assign its rights under this Agreement, 
(ii) convey any ownership interest that it may have in the Facility and/or 
(iii) convey any ownership interest that it may have in the entity which may 
own the Facility.