TO OBTAIN THE APPROVAL OF THIS AGREEMENT BY ITS
GOVERNING BOARD OR COUNCIL SHALL NOT DIMINISH THE EFFECTIVENESS OF THIS
AGREEMENT AS TO ALL OTHER PARTIES; (II) IF ANY LOCAL GOVERNMENT PARTY HAS NOT
OBTAINED SUCH APPROVAL WITHIN NINETY (90) DAYS OF THE EXECUTION DATE, RELIANT,
AT ITS SOLE AND ABSOLUTE DISCRETION, MAY ELECT TO TERMINATE THE AGREEMENT AS TO
THAT LOCAL GOVERNMENT PARTY AND, IN ACCORDANCE WITH SECTION 6.7, THE
CONSIDERATION THAT WOULD HAVE BEEN PAID TO THAT ENTITY (AS IDENTIFIED ON THE
LOCAL GOVERNMENTAL PARTIES' ALLOCATION MATRIX, EXHIBIT D) SHALL BE PAID TO
RELIANT.
10.3
COOPERATION REGARDING STAY OF LOCKYER V RELIANT.
ON AUGUST 23,
2005, THE COURT IN STATE OF CALIFORNIA, EX REL BILL LOCKYER, ET AL. V. RELIANT
ENERGY, ET AL., U.S. DISTRICT CT. (N.D. CAL.) CASE NO. C-02-1788-VRW ("LOCKYER
V. RELIANT") ENTERED AN ORDER STAYING THE ACTION IN ITS ENTIRETY PENDING ORDERS
FROM THE FERC AND CPUC EITHER APPROVING OR DISAPPROVING THE SETTLEMENT.
THE
PARTIES TO LOCKYER V. RELIANT SHALL MAINTAIN OR SEEK TO EXTEND THIS STAY IN FULL
FORCE AND EFFECT UNTIL THE EARLIER OF (I) THE SETTLEMENT EFFECTIVE DATE OR
(I) THE DATE THIS AGREEMENT IS TERMINATED (EACH A "STAY PERIOD").
NO COLLATERAL
ESTOPPEL OR OTHER PREJUDICE TO THE RIGHTS, CLAIMS OR DEFENSES OF ANY PARTY TO
THAT CASE SHALL ARISE DURING OR ON ACCOUNT OF THE STAY PERIOD AND NONE OF THE
PARTIES TO THAT CASE SHALL HAVE ANY ARGUMENT BASED ON THE DOCTRINE OF LACHES OR
SIMILAR EQUITABLE GROUNDS DUE TO INACTION DURING THE APPLICABLE STAY PERIOD.
DURING THE STAY PERIOD, THE PARTIES TO LOCKYER V. RELIANT SHALL NOT INITIATE ANY
DISCOVERY, AND SHALL NOT SEEK TO ENFORCE ANY OUTSTANDING DISCOVERY, INCLUDING
SUBPOENAS TO THIRD PARTIES, IN THAT CASE.
43
11.
REPRESENTATIONS, WARRANTIES AND COVENANTS
11.1
REPRESENTATIONS OF ALL PARTIES AND SETTLING PARTICIPANTS.
EACH
PARTY (EXCEPT FOR THE CLASS ACTION PARTIES, AS TO WHOM THIS AGREEMENT IS SUBJECT
TO COURT APPROVAL AND THE LOCAL GOVERNMENTAL PARTIES, AS TO WHICH GOVERNING
BOARD OR COUNCIL APPROVAL OF THIS AGREEMENT MAY BE NECESSARY) AND EACH OPT-IN
PARTICIPANT MAKES THE FOLLOWING REPRESENTATIONS AND WARRANTIES, FOR ITSELF ONLY,
TO EACH OTHER PARTY AND OPT-IN PARTICIPANT, TO BE EFFECTIVE FROM AND AFTER
(I) FOR THE PARTIES, THE EXECUTION DATE AND (II) FOR OPT-IN PARTICIPANTS, THE
DATE OF OPT-IN PURSUANT TO SECTION 9.1:
11.1.1
ORGANIZATIONAL STATUS, POWER AND AUTHORITY.
EXCEPT FOR ANY
GOVERNMENTAL AUTHORITY, IT IS A CORPORATION OR LIMITED LIABILITY COMPANY DULY
ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE
JURISDICTION OF ITS FORMATION.
IT POSSESSES ALL NECESSARY POWER AND AUTHORITY
TO EXECUTE, DELIVER AND PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT.
11.1.2
AUTHORITY TO EXECUTE.
IF APPLICABLE, THE EXECUTION, DELIVERY,
ELECTION TO PARTICIPATE AND PERFORMANCE OF THIS AGREEMENT (I) ARE WITHIN ITS
POWERS, (II) HAVE BEEN DULY AUTHORIZED BY ALL NECESSARY ACTION ON ITS BEHALF AND
ALL NECESSARY CONSENTS OR APPROVALS HAVE BEEN OBTAINED AND ARE IN FULL FORCE AND
EFFECT, AND (III) DO NOT VIOLATE ANY OF THE TERMS AND CONDITIONS