A DEFAULT OR POTENTIAL TERMINATION
EVENT EXISTS, THE SECURED PARTY MAY APPLY TO THE PAYMENT OF ANY ISDA
OBLIGATIONS, WHETHER OR NOT THEN DUE, ANY AND ALL BALANCES, CREDITS, DEPOSITS,
ACCOUNTS OR MONEYS OF SUCH GRANTOR THEN OR THEREAFTER WITH THE SECURED PARTY.
8.15
CERTAIN UNDERSTANDINGS.
EACH PARTY TO THIS AGREEMENT ACKNOWLEDGES
THAT THE SECURED PARTY WILL ENGAGE IN TRANSACTIONS WITH HOLDINGS AND ITS
SUBSIDIARIES PURSUANT TO THE MASTER ISDAS.
NEITHER THIS AGREEMENT NOR THE
MASTER ISDAS SHALL PRECLUDE THE SECURED PARTY FROM ENGAGING IN TRANSACTIONS OF A
NATURE LIKE THE TRANSACTIONS CONTEMPLATED BY THE MASTER ISDAS WITH ANY OTHER
PERSON.
WITHOUT LIMITING THE FOREGOING, EACH PARTY ACKNOWLEDGES THAT THE
SECURED PARTY 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.
THE SECURED PARTY MAY (I) TAKE ACTIONS UNDER THE MASTER ISDAS THAT MAY
BE DIFFERENT THAN THE ACTIONS THE SECURED PARTY 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 THE SECURED
PARTY OR FOR WHICH THE SECURED PARTY IS ACTING IN AN AGENCY CAPACITY.
THE
SECURED PARTY AND/OR ITS AFFILIATES 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 MASTER ISDAS, 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 MASTER ISDAS.
THE SECURED
PARTY AND/OR ITS AFFILIATES MAY ALSO UNDERTAKE LAWFUL PROPRIETARY ACTIVITIES,
INCLUDING HEDGING TRANSACTIONS RELATED TO THE INITIATION OR TERMINATION OF A
TRANSACTION, THAT MAY ADVERSELY AFFECT THE MARKET PRICE, RATE, INDEX OR OTHER
MARKET FACTOR(S) UNDERLYING THE TRANSACTIONS CONTEMPLATED BY THE MASTER ISDAS
AND CONSEQUENTLY THE VALUE OF THE TRANSACTIONS CONTEMPLATED BY THE MASTER
ISDAS.
THE PARTIES ACKNOWLEDGE THAT THE RELATIONSHIP BETWEEN THE SECURED PARTY
AND HOLDINGS AND ITS SUBSIDIARIES IS A COMMERCIAL AND NOT A FIDUCIARY
RELATIONSHIP AND THAT NEITHER THE MASTER ISDAS NOR THIS AGREEMENT SHALL LIMIT IN
ANY MANNER THE ABILITY OF THE SECURED PARTY TO ENTER INTO ANY TRANSACTION OF ANY
NATURE WITH ANY OTHER PERSON.
8.16
ACKNOWLEDGEMENTS.
EACH GRANTOR HEREBY ACKNOWLEDGES THAT:
(A)
IT HAS BEEN ADVISED BY COUNSEL IN THE NEGOTIATION, EXECUTION AND
DELIVERY OF THIS AGREEMENT AND THE OTHER RELATED AGREEMENTS TO WHICH IT IS A
PARTY;
(B)
NO JOINT VENTURE IS CREATED HEREBY OR BY THE OTHER ISDA DOCUMENT
OR OTHERWISE EXISTS BY VIRTUE OF THE TRANSACTIONS CONTEMPLATED HEREBY AMONG THE
SECURED PARTY AND THE GRANTORS OR AMONG ANY OF THEM.
31
8.17
ADDITIONAL GRANTORS.
EACH PERSON THAT IS REQUIRED TO BECOME A
PARTY TO THIS AGREEMENT PURSUANT THE MASTER ISDAS OR OTHERWISE