Message-ID: <6875867.1075842222391.JavaMail.evans@thyme> Date: Wed, 1 Nov 2000 09:20:00 -0800 (PST) From: dan.hyvl@enron.com To: ddmcwhirter@cps-satx.com Subject: RE: Enfolio Contract with CPS Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit X-From: Dan J Hyvl X-To: "Mc Whirter, Daniel D." X-cc: X-bcc: X-Folder: \Dan_Hyvl_Dec2000_June2001\Notes Folders\All documents X-Origin: HYVL-D X-FileName: dhyvl.nsf This is being resent because of an addressing error which caused the original message to fail. ----- Forwarded by Dan J Hyvl/HOU/ECT on 11/01/2000 05:19 PM ----- Dan J Hyvl 11/01/2000 05:17 PM To: "Pfister, Christian W." @ENRON cc: "Mc Whirter, Daniel D." Subject: RE: Enfolio Contract with CPS Please review the revised representations and warranties language. If acceptable, please print 2 copies, sign and forward to Janet Wallis at Enron for execution by Enron and return of one fully executed copy. "Pfister, Christian W." 10/30/2000 12:18 PM To: "'Dan.J.Hyvl@enron.com'" , "'James.I.Ducote@enron.com'" cc: "Mc Whirter, Daniel D." Subject: RE: Enfolio Contract with CPS If you could redraft the "representations and warranties" provision to be simpler and clearer, I think that we could agree to it. The other items look fine. -----Original Message----- From: Jon Wood [mailto:jwood@mattbran.com] Sent: Saturday, October 28, 2000 10:45 AM To: 'Pfister, Christian W.' Cc: 'ksyates@cps-satx.com'; Howard Bye Subject: RE: Enfolio Contract with CPS My reading is that Enron seeks a continuing representation that (i) all transactions have the appropriate approval, waiving any defense of lack of authority, (ii) there is no sovereign immunity (something is left out of thelanguage) defense to any transaction, (iii) payment for the gas will be first in the flow of funds, and (iv) the obligations are not subject to debt restrictions or other public funds restrictions of the Texas Constitution, statutes or CPS constituency documents. I think we can legally make these representations and warranties, but the language needs some work. You should ask them to redraft this provision so it is simpler and clearer. Jon -----Original Message----- From: Pfister, Christian W. [mailto:CWPfister@cps-satx.com] Sent: Monday, October 23, 2000 2:16 PM To: 'jwood@mattbran.com' Subject: FW: Enfolio Contract with CPS Mr. Wood, This is a spot gas contract with Enron that you reviewed on August 8th for Mary Pelayo and Danny McWhirter. Enron has added a paragraph under "Representations and Warranties" that I would like you to review. I am not sure exactly what it means. Thank you. -----Original Message----- From: Yates, Katherine S. Sent: Monday, October 23, 2000 1:52 PM To: Pfister, Christian W. Subject: RE: Enfolio Contract with CPS Sounds like legal mumbo jumbo. I would advise getting John't input in case he is more familiar with the reasoning behind this jargon. Katherine S. Yates CPS Attorney 353-2069 -----Original Message----- From: Pfister, Christian W. Sent: Monday, October 23, 2000 1:40 PM To: Yates, Katherine S. Subject: FW: Enfolio Contract with CPS Kathy, This spot gas contract was reviewed by Jon Wood a few months ago. The following was added under "Representations and Warranties" by Enron. I have highlighted the text in the attachment so you can see where it was incorporated (page 2 of Appendix 1). "Further and with respect to Customer only, Customer represents and warrants to Company continuing throughout the term of this Agreement as follows: (i) all acts necessary to the valid execution and performance of this Agreement have been duly adopted, (ii) with respect to the contractual obligations hereunder and performance thereof, it is not entitled to itself or its revenues or assets from (a) suit, (b) jurisdiction of court, (c) relief by way of injunction, order for specific performance or recovery of property, (d) attachment of assets or (e) execution or enforcement of any judgment, (iii) its obligations to make payments hereunder are unsubordinated obligations and such payments are operating and maintenance costs which enjoy first priority of payment at all times under any and all indentures to which it is a party, its constitutional and governing documents and applicable law, and (iv) its obligations to make payments hereunder do not constitute any kind of indebtedness of Customer or create any kind of lien on, or security interest in, any property or revenues of Customer which, in either case , is proscribed by any provision of its constitutional and governing documents, any order to judgment of any court or other agency of government applicable to it or its assets, or any contractual restriction binding on or affecting it or any of its assets." Do you think this is acceptable, or do you think I should show this added paragraph to Jon Wood? -----Original Message----- From: Dan.J.Hyvl@enron.com [mailto:Dan.J.Hyvl@enron.com] Sent: Thursday, October 19, 2000 2:51 PM To: Pfister, Christian W.; Mc Whirter, Daniel D. Cc: James.I.Ducote@enron.com; Janet.H.Wallis@enron.com Subject: Re: Enfolio Contract with CPS (See attached file: CITYPublicServiceSanAntonio.doc) Attached please find a revised Enfolio Contract with CPS. The changes incorporated in the attached contract are: 1) "City Public Service (San Antonio)" has been changed to "The City of San Antonio, acting through City Public Service Board". 2) The effective date has been changed to "October 1, 2000. 3) The changes requested in items 1 and 2 of the addendum have been incorporated. 4) The Utilization of Small Business Concerns language has been added as the last item in Appendix "1", and 5) An additional representation has been added at the end of the Representations and Warranties in Appendix "1" relating to the necessary authorizations with respect to the execution, delivery and performance by Customer of this Agreement. If these changes are acceptable please advise and we will forward two original copies for execution.