IT IS
NOT RELYING ON ANY UNIQUE OR SPECIAL EXPERTISE OF THE OTHER PARTY AND IT IS NOT
IN ANY SPECIAL RELATIONSHIP OF TRUST OR CONFIDENCE WITH RESPECT TO THE OTHER
PARTY.
(II)
ELIGIBLE COMMERCIAL ENTITY AND ELIGIBLE CONTRACT PARTICIPANT.
IT
IS AN "ELIGIBLE COMMERCIAL ENTITY" AS DEFINED IN SECTION 1A(11) OF THE COMMODITY
EXCHANGE ACT, AND IT IS AN "ELIGIBLE CONTRACT PARTICIPANT" WITHIN THE MEANING OF
SECTION 1A (12) OF THE COMMODITY EXCHANGE ACT, AS AMENDED BY THE COMMODITY
FUTURES MODERNIZATION ACT OF 2000.
(III)
BANKRUPTCY CODE.
WITHOUT LIMITING THE APPLICABILITY OF ANY OTHER
PROVISION OF THE U.S. BANKRUPTCY CODE, AS AMENDED (THE "BANKRUPTCY CODE"), THE
PARTIES ACKNOWLEDGE AND AGREE THAT: (A) ALL TRANSACTIONS, WITH THE EXCEPTION OF
THE LOANS, ENTERED INTO HEREUNDER WILL CONSTITUTE "FORWARD CONTRACTS" OR "SWAP
AGREEMENTS" AND THIS AGREEMENT CONSTITUTES A "MASTER NETTING AGREEMENT" AS
DEFINED IN THE BANKRUPTCY CODE; (B) EACH PARTY IS A "MASTER NETTING AGREEMENT
PARTICIPANT," A "FORWARD CONTRACT MERCHANT" AND A "SWAP PARTICIPANT" AS DEFINED
IN THE BANKRUPTCY CODE; (C) THE RIGHTS OF THE PARTIES UNDER SECTIONS 5 AND 6 OF
THIS AGREEMENT WILL CONSTITUTE "CONTRACTUAL RIGHTS" TO LIQUIDATE TRANSACTIONS;
(D) ANY MARGIN OR COLLATERAL PROVIDED UNDER ANY MARGIN, COLLATERAL, SECURITY, OR
SIMILAR AGREEMENT RELATED HERETO, INCLUDING BUT NOT LIMITED TO THE ISDA SECURITY
DOCUMENTS AND ANY CREDIT SUPPORT ANNEX, WILL CONSTITUTE A "MARGIN PAYMENT" OR A
"SETTLEMENT PAYMENT" AS DEFINED IN THE BANKRUPTCY CODE.
(L)
CERTAIN UNDERSTANDINGS.
EACH PARTY TO THIS AGREEMENT
ACKNOWLEDGES THAT PARTY A AND ITS AFFILIATES (COLLECTIVELY, "SET") WILL ENGAGE
IN TRANSACTIONS WITH PARTY B AND CERTAIN OF PARTY B'S AFFILIATES PURSUANT TO
THIS AGREEMENT AND THE OTHER SPECIFIED AGREEMENTS. NEITHER THIS AGREEMENT NOR
THE OTHER SPECIFIED AGREEMENTS SHALL PRECLUDE SET FROM ENGAGING IN TRANSACTIONS
OF A NATURE LIKE THE TRANSACTIONS CONTEMPLATED BY THE SPECIFIED AGREEMENTS WITH
ANY OTHER PERSON.
WITHOUT LIMITING THE FOREGOING, EACH
21
PARTY ACKNOWLEDGES THAT SET IS ENGAGED IN, AMONG OTHER THINGS, DEALING IN FUEL,
AND POWER AND RELATED COMMODITIES FOR ITS OWN ACCOUNT IN THE U.S. WHOLESALE FUEL
AND POWER MARKETS, AND MANAGES POSITIONS IN FUEL AND POWER AND RELATED
COMMODITIES FOR OTHERS.
SET MAY (I) TAKE ACTIONS UNDER THIS AGREEMENT AND THE
OTHER SPECIFIED AGREEMENTS WHICH MAY BE DIFFERENT THAN THE ACTIONS SET TAKES FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF OTHERS, EVEN THOUGH THE CIRCUMSTANCES MAY
BE THE SAME OR SIMILAR AND (II) EFFECT TRANSACTIONS WITH COUNTERPARTIES THAT ARE
ALSO COUNTERPARTIES TO OTHER TRANSACTIONS IN FUEL AND/OR POWER OR RELATED
COMMODITIES WITH SET OR FOR WHICH SET IS ACTING IN AN AGENCY CAPACITY.
SET MAY
FROM TIME TO TIME TAKE PROPRIETARY POSITIONS AND/OR MAKE A MARKET IN COMMODITIES
AND/OR INSTRUMENTS IDENTICAL OR ECONOMICALLY RELATED TO THE TRANSACTIONS
CONTEMPLATED BY THE ISDA DOCUMENTS, OR MAY HAVE AN INVESTMENT BANKING OR OTHER
COMMERCIAL RELATIONSHIP WITH AND ACCESS TO INFORMATION FROM THE ISSUER(S) OF
FINANCIAL INSTRUMENTS OR OTHER INTERESTS UNDERLYING SUCH TRANSACTIONS DURING THE
TERM OF THE ISDA DOCUMENTS.
SET MAY ALSO UNDERTAKE LAWFUL PROPRIETARY
ACTIVITIES, INCLUDING HEDGING TRANSACTIONS RELATED