OTHERWISE) THOSE RISKS;
(D)
IT IS ENTERING INTO THIS AGREEMENT, SUCH
SPECIFIED AGREEMENTS, EACH TRANSACTION AND SUCH OTHER DOCUMENTATION AS
PRINCIPAL, AND NOT AS AGENT OR IN ANY OTHER CAPACITY, FIDUCIARY OR OTHERWISE;
AND
(E)
THE OTHER PARTY IS NOT ACTING AS A FIDUCIARY
OR FINANCIAL, INVESTMENT OR COMMODITY TRADING ADVISOR FOR IT, IT BEING
UNDERSTOOD THAT 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.
21
(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 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