4.3.2
REFUNDS PAYABLE BY CERS.
IN ADDITION TO PAYMENT OF THE SETTLEMENT
AMOUNT, THE RELIANT PARTIES SHALL, AND DO HEREBY WAIVE AND RELEASE THEIR CLAIMS
TO AND ASSIGN, SELL, TRANSFER, CONVEY AND DELIVER TO CERS FREE AND CLEAR OF ALL
CLAIMS, LIENS, AND ENCUMBRANCES, EFFECTIVE AS OF THE SETTLEMENT EFFECTIVE DATE,
ALL OF THEIR RIGHT, TITLE AND INTEREST IN AND TO ANY REFUNDS AND ASSOCIATED
INTEREST RESULTING FROM ANY MITIGATION OF SALES BY CERS OF IMBALANCE ENERGY INTO
THE ISO REAL-TIME MARKET, AS WELL AS SURCHARGES AND OTHER CHARGES ASSOCIATED
WITH SUCH SALES, THAT MAY BE PAYABLE PURSUANT TO FERC'S MAY 12, 2004 ORDER ON
REQUESTS FOR REHEARING AND CLARIFICATION IN DOCKET NOS. EL00-95, ET AL., AND
EL00-98, ET. AL., AND SUBSEQUENT ORDERS, AND ALL OF THEIR RIGHT, TITLE AND
INTEREST IN AND TO ANY SUCH REFUNDS AND ASSOCIATED INTEREST, SURCHARGES, AND
OTHER CHARGES THAT ARE EITHER DIRECTLY OR INDIRECTLY THROUGH OTHERS ALLOCATED TO
ANY OF THE RELIANT PARTIES
4.3.3
ASSIGNMENT OF RETAINED CLAIMS LITIGATION, COMMANDEERING
LITIGATION.
THE RELIANT PARTIES WAIVE AND RELEASE AND ASSIGN TO PG&E, SCE AND
SDG&E (FOR THE BENEFIT OF THEIR RATEPAYERS), FREE AND CLEAR OF ANY INTERESTS,
LIENS, CLAIMS AND ENCUMBRANCES, EFFECTIVE AS OF THE SETTLEMENT EFFECTIVE DATE,
ANY CLAIM THAT RELIANT MAY HAVE HAD TO PROCEEDS OF THE PX RETAINED CLAIMS
LITIGATION AND PROCEEDS FROM THE COMMANDEERING LITIGATION.
15
4.4
THIS SECTION INTENTIONALLY LEFT BLANK.
4.5
COOPERATION.
THE PARTIES SHALL COOPERATE WITH EACH OTHER IN
PROVIDING THE DATA AND INFORMATION NECESSARY TO IMPLEMENT THIS ARTICLE 4.
4.6
FAILURE OF CONSIDERATION.
IN THE EVENT THAT (I) THE ASSIGNMENT OF
THE RELIANT RECEIVABLES TO THE CALIFORNIA PARTIES AS PROVIDED FOR UNDER SECTIONS
4.1.1 AND 4.2.1 OR ASSIGNMENT OF THE ASSIGNED ASSETS AS PROVIDED FOR UNDER
SECTION 4.3 FAILS AS A RESULT A BREACH BY RELIANT OF ITS REPRESENTATIONS AND
WARRANTIES SET FORTH IN SECTION 11.1 AND/OR SECTION 11.2 AND/OR SECTION 11.4;
(II) THE RELIANT RECEIVABLES OR ANY OTHER RIGHTS TO PAYMENT ASSIGNED PURSUANT
HERETO FAIL TO TRANSFER TO THE CALIFORNIA PARTIES, PURSUANT TO SECTIONS 4.2.3,
4.3 AND 6.3, FREE AND CLEAR OF ALL LIENS, CLAIMS, ENCUMBRANCES AND INTERESTS OF
ANY KIND WHATSOEVER; (III) THE CASH TRANSFERS REQUIRED OF RELIANT PURSUANT TO
SECTIONS 4.1.3, 4.1.4 AND 4.2.6 ARE NOT TIMELY MADE, IN WHOLE OR IN PART, AS
REQUIRED BY THIS AGREEMENT; OR (IV) ANY RELIANT PARTY TAKES ANY OF THE FOLLOWING
ACTIONS, OR ANY OF THE FOLLOWING ACTIONS ARE TAKEN AGAINST ANY RELIANT PARTY,
AND THAT ACTION IS REASONABLY LIKELY TO HAVE A MATERIAL ADVERSE EFFECT ON THE
ABILITY OF THE OTHER RELIANT PARTIES TO PERFORM FULLY AND TIMELY THEIR
OBLIGATIONS UNDER THIS AGREEMENT:
(A) IT COMMENCES A VOLUNTARY CASE, OR AN
INVOLUNTARY CASE IS COMMENCED AGAINST IT AND NOT DISMISSED WITHIN THIRTY (30)
DAYS THEREAFTER, WITHIN THE MEANING OF THE UNITED STATES BANKRUPTCY CODE (11
U.S.C. § 101 ET SEQ.), (B) IT CONSENTS TO THE APPOINTMENT OF A CUSTODIAN OF IT
OR FOR ALL OR SUBSTANTIALLY ALL OF ITS PROPERTY, OR (C) IT MAKES A