Message-ID: <3765047.1075845101475.JavaMail.evans@thyme> Date: Mon, 4 Jun 2001 08:48:41 -0700 (PDT) From: rob.walls@enron.com To: james.derrick@enron.com Subject: FW: Dabhol Power Project - MERC Proceeding Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit X-From: Walls Jr., Rob X-To: Derrick Jr., James X-cc: X-bcc: X-Folder: \Derrick Jr., James\Derrick Jr., James\Inbox X-Origin: DERRICK-J X-FileName: Derrick Jr., James.pst -----Original Message----- From: Jim Mccartney @ENRON [mailto:IMCEANOTES-Jim+20Mccartney+20+3Cjw1000mac+40yahoo+2Ecom+3E+40ENRON@ENRON.com] Sent: Saturday, June 02, 2001 3:37 PM To: Walls Jr., Rob Subject: Fwd: Dabhol Power Project - MERC Proceeding rob, this sould be of interest. the mseb petition was well done, not what we are accustomed to seeing. on its face, it is troublesome, but as christopher notes, there are very good legal and factual defenses. i will bring you a copy of the misrepresentiation part on monday. jim Note: forwarded message attached. __________________________________________________ Do You Yahoo!? Get personalized email addresses from Yahoo! Mail - only $35 a year! http://personal.mail.yahoo.com/ X-Apparently-To: jw1000mac@yahoo.com via web13005.mail.yahoo.com; 02 Jun 2001 04:46:58 -0700 (PDT) X-Track: 1: 40 Received: from chkpmr01.linklaters.com (202.130.189.227) by mta528.mail.yahoo.com with SMTP; 02 Jun 2001 04:46:57 -0700 (PDT) Received: from mailhost(10.152.2.5) by chkpmr01 via smap (V2.1+anti-relay+anti-spam) id xma027364; Sat, 2 Jun 01 12:56:39 +0100 Received: from chkpeg01.asia.linklaters.com (unverified) by chkpvs01.asia.linklaters.com (Content Technologies SMTPRS 4.1.5) with ESMTP id for ; Sat, 2 Jun 2001 19:46:05 +0800 Received: by chkpeg01.asia.linklaters.com with Internet Mail Service (5.5.2653.19) id ; Sat, 2 Jun 2001 19:46:09 +0800 Message-ID: From: "Walker, Christopher" To: "'Jim Mccartney'" , "Walker, Christopher" Subject: Dabhol Power Project - MERC Proceeding Date: Sat, 2 Jun 2001 19:49:15 +0800 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2653.19) Content-Type: text/plain; charset="iso-8859-1" Content-Length: 4127 Jim, Sorry for the delay in my response. As you may imagine things are starting to get a little fraught. I assume that someone has supplied you with a copy of the MSEB's Peition to MERC (the main text and pleading is 56 pages only,the rest consisting of exhibits). My points in reply as follows:- (1) The MSEB's claim for recission is,in my humble opinion,utterly hopeless for the following reasons:- (a) The MSEB has know that the Power Station could not do the required ramp-up in a cold start for nearly 2 years during which time performance (of a sort) has been tendered by the MSEB. The MSEB affirmed the contract many months ago. (b) The Lenders took rights in security over the PPA bona fide and for value. That,as a matter of settled law,bars recission. (c) I do not believe that there was any "representation" as such. (2) The Dynamic Parameters of the Plant form the exhibits to the PPA. If they are anything,they are warranties or promises,not representations. The classical definition of a warranty in English law is a pre-contractual representation which has been reduced to writing and inserted into the resulting contract. As such,it takes effect as a promise. (3) I think that the MERC Petition in fact tells one how the MSEB is putting its case on misrepresentation. Effectively,it is saying that DPC put forward a draft contract with the Dynamic Parameters in it,and we relied upon them; they induced us to enter into the contract. That is a bit of a summary,but it is roughly their case. The advantage to DPC of the MERC Petition (if DPC is ever allowed to arbitrate) is that we know what he MSEB's defence is going to be before we even plead out Statement of Claim. (4) What you are describing is a request for further and better particulars of the MSEB's pleading. Standing the fact that DPC is challenging the jurisdiction of MERC,DPC cannot safely ask for anything in that proceeding. We can ask by letter. I doubt whether we would ever get a reply. What we may well get,however,is something further by way of filings made by the MSEB in the proposed Wirt Petition. If you do not get a copy of the MSEB Petition filed with the MERC,please let me know. -----Original Message----- From: Jim Mccartney [mailto:jw1000mac@yahoo.com] Sent: 31 May 2001 04:58 To: christopher.walker@linklaters.com Subject: dpc chris, i would like to have your thoughts of this misrepresentation claim. i have not seen the mseb petition before the merc, which i hear (but do not believe) contains 700 pages. all i have seen is the very generalized "you misrepresented" statement in their letter. what would you think of asking in some appropriate correspondence-- what was/were the misrepresentation/s referred to, when were they made, who made them, to whom, were they in writing or oral (if in writing, what writings) etc. in other words pin them down. this is what we would do if confronted with a similar broad, general charge in a court proceeding. it might make the mseb think more and prepare better, but they may not have anything other than their interpretation of the ppa. please give me your direct line again. i have not had much luck calling the 24888 number. best regards, jim __________________________________________________ Do You Yahoo!? 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