Message-ID: <9854905.1075840815831.JavaMail.evans@thyme> Date: Thu, 20 Sep 2001 12:26:52 -0700 (PDT) From: joseph.deffner@enron.com To: louise.kitchen@enron.com Subject: RE: Amendment to IM II PPA Mime-Version: 1.0 Content-Type: text/plain; charset=ANSI_X3.4-1968 Content-Transfer-Encoding: quoted-printable X-From: Deffner, Joseph X-To: Kitchen, Louise X-cc: X-bcc: X-Folder: \ExMerge - Kitchen, Louise\'Americas\East Power X-Origin: KITCHEN-L X-FileName: louise kitchen 2-7-02.pst Just a clarification: =20 The DASH requires that Enron Corp provide additional security behind its gu= aranty of EPMI's obligations (capped at $100mm) to India Mesa 2 in the even= t Enron Corp's senior unsecured rating drops below investment grade. My pos= ition to EWC was that given there is no cause for alarm (or better said, av= ailable remedy) from the creditor/equity side whether our credit is BBB+ or= BBB-, why should it matter that we assign to an entity that is BBB-. Tod a= greed to that this morning after his discussion with Jay. I will verify wit= h Jay and John that the lenders are omfortable with that provision. =20 -----Original Message----- From: Kitchen, Louise=20 Sent: Thursday, September 20, 2001 1:42 PM To: Deffner, Joseph Subject: FW: Amendment to IM II PPA =20 -----Original Message----- From: Kitchen, Louise=20 Sent: Thursday, September 20, 2001 1:30 PM To: Lindholm, Tod A.; Presto, Kevin M.; Curry, Mike; Lamb, John; Payne, Mic= hael Cc: Murphy, Harlan Subject: RE: Amendment to IM II PPA I spoke to Mike and he had stated that he is in agreement with you on the B= anking Provisions and their original intent. We also agree that if we assi= gn the PPA to an affiliate the Enron Corp guarantee will follow. =20 So you have two remaining points to address which can be managed outside of= EPMI. =20 =20 (i) The right to assign to a BBB- or above. Joe has read the DASH whic= h also indicates a BBB- assignment provision. I think this is something th= at the lenders should be able to price for you. (ii) The curtailment issue which is a buyer / AEP issue which should be= solved by them managing this risk through curtailment credits or some othe= r means through their portfolio as mentioned by Tod in our meeting. =20 We obviously can price these if necessary as indicated by Kevin in his prev= ious note to ensure you are making the right decision. The contract is wor= th around $11mm today. =20 Joe has been working with the finance guys on Indian Mesa II and should be = able to offer some assistance, but unless the economics state we should cha= nge the EPMI contract as the pricing from the lenders and AEP is greater th= an Kevin's I think we are done. =20 Let me know if not.=20 =20 Louise -----Original Message----- From: Lindholm, Tod A.=20 Sent: Monday, September 17, 2001 5:54 PM To: Presto, Kevin M.; Curry, Mike; Lamb, John; Payne, Michael Cc: Murphy, Harlan; Kitchen, Louise Subject: RE: Amendment to IM II PPA =20 Kevin, EWC requires three clarifications to the PPA in order to get the project fi= nanced and sold. All previously requested amendments proposed by the equit= y purchaser have been dropped, and EWC will take the resulting pricing redu= ction. =20 I want to make sure you understand how minor these three clarifications are= . These clarifications conform to the original deal and are NOT changes t= o the deal. =20 1. Banking Provisions. EWC and EPMI agreed that energy and renewable en= ergy credits ("RECS") produced by the Indian Mesa II wind generating facili= ty in any year in excess of the annual minimum quantity would, on a cumulat= ive basis, offset any deficiencies of energy and RECS in subsequent years. = Section 4.04 of the agreement does not clearly provide the cumulative carry= over mechanism which was contemplated by the parties. (This section origina= lly provided for the carryover, but in an effort to simplify the language, = the aggregate carryover concept was clouded.) Both the project lenders and= the proposed equity purchaser have required that the point be clarified. = There has never been a disagreement between EPMI and EWC on the intention o= f the carryover banking provisions. EPMI's most recent refusal to make this= clarification now appears to be a change in the original deal 2. Grid Curtailment EWC and EPMI drafted the contract with specific pro= visions relating to termination resulting from grid curtailment, Section 5= .04 . There is an ambiguity in that grid curtailment could also be covere= d under the termination provision relating to force majeure under Section= 5.02. This inconsistency is the problem. Neither EWC nor EPMI were to p= ay damages to the other party in the event of grid curtailment. The propos= ed equity purchasers have requested that the force majeure provisions of t= he PPA be clarified to make it clear that extended grid curtailment would = not give rise to termination payments. This clarification is consistent wi= th the original intent of the parties and is not a change to the deal. 3. EPMI Credit Support. EPMI's obligations under the PPA are guaranteed = by Enron. The Indian Mesa II PPA permits EPMI to assign the PPA to certain= affiliates without consent of the seller. Any assignment by EPMI would n= ot relieve it of its duties and obligations under the contract, and the Enr= on guarantee would remain in place. However, the project lenders have requ= ired clarification that the Enron guarantee would either explicitly remain = in place or that the assignee would have a credit quality at least as good = as Enron Corp's credit quality. The project lender's have also requested t= hat the termination payment provisions be clarified to provide that any sub= stitute PPA used to calculate a termination payment would also need to be w= ith a party that had a credit quality similar to Enron Corp's, since that i= s the credit that is supporting the Indian Mesa II PPA. This will not affe= ct the value of the contract to a third party since Enron bears this obliga= tion unless released by the project. Under the dispute resolution provisions of the PPA we could certainly pursu= e declaratory relief under arbitration. Our sense is that this does nothin= g but ensure delay. From an Enron perspective: ? The sale of the equity and the financing of the non-recourse debt on = the Indian Mesa II project is currently at a standstill due to issues surro= unding the ambiguities in the PPA ? While the debt financing for the Indian Mesa I project is in place (= different offtaker) the proposed equity sale to AEP is linked to the sale o= f the Indian Mesa II project. ? If Enron cannot move forward with the financing of the project within= the next month, Enron will likely end up with approximately $153M less cas= h at year end than it counted on in its plan, in addition to any decrease i= n planned earnings ? The after-tax return to Enron in a "hold" situation is 0%, due to Enro= n being in the Alternative Minimum Tax position, i.e. it cannot use the tax= benefits. It was clear in the discussions with the City of San Antonio that these cla= rifications would have had no affect on value. =20 Tod -----Original Message----- From: Presto, Kevin M.=20 Sent: Saturday, September 15, 2001 2:41 PM To: Curry, Mike; Lamb, John; Payne, Michael; Lindholm, Tod A. Cc: Murphy, Harlan; Kitchen, Louise Subject: RE: Amendment to IM II PPA I would like to make the message even more clear. EPMI will not be making = any changes, amendments, clarifications, interpretations, etc. to the curre= nt Indian Mesa II PPA. Therefore, any proposed purchaser of the Indian Me= sa facility must evaluate the contract based on their own legal and commerc= ial interpretation. =20 I don't think it is productive to spend any more time on this discussion. = We will continue provide Enron Wind with the PPA value on a daily basis su= ch that total shareholder value is maximized for any proposed wind transact= ion (sale of company and/or sale of IM project). =20 Please feel free to call me to discuss (713-853-5035) -----Original Message-----=20 From: Curry, Mike=20 Sent: Fri 9/14/2001 3:11 PM=20 To: Lamb, John; Payne, Michael; Lindholm, Tod A.=20 Cc: Presto, Kevin M.; Murphy, Harlan=20 Subject: RE: Amendment to IM II PPA We are not interested in these changes to the PPA. These changes will weak= en the language in the contract for us (i.e. improve it for AEP that is pro= bably why they are asking for the "clarifications"). I will be out next we= ek on vacation so please address any further concerns in my absence to Kevi= n Presto. Regards, - Mike -----Original Message-----=20 From: Lamb, John =20 Sent: Friday, September 14, 2001 10:28 AM=20 To: Curry, Mike=20 Cc: Lindholm, Tod A.; Payne, Michael; Godfrey, Jay=20 Subject: Amendment to IM II PPA=20 Mike: Attached is our proposed amendment to the Indian Mesa II PPA. It de= als with the banking clarification (section 4.04 amendments), grid curtailm= ent clarification (section 5.02 amendments), guaranty clarifications reques= ted by the lenders (section 5.05 and 9.03 amendments), and the ERCOT amend= ment (section 3.04 amendments) that we have discussed. Please note that th= e ERCOT restriction would permit international sales, such as to Mexico, bu= t would otherwise restrict EPMI's sales of energy from the wind facility to= other locations within ERCOT. In the preparation of this draft, we used t= he same amendment that was previously sent to you by e-mail on 8/22/01. Th= at e-mail had a redline with it to show the changes to the banking provisio= ns. Please let us know whether this draft is acceptable or whether you hav= e any questions or comments on the amendment. Thanks Regards=20 John=20 << File: PPA First Amendment_09.14.01.doc >>=20