Common use of Failure of Consideration Clause in Contracts

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 general assignment for the benefit of its creditors, then the California Parties may at their option, subject to the Reliant Parties’ cure rights set forth below, terminate this Agreement in writing in its entirety ab initio except as to the tolling provisions of this Agreement and the other provision of this Agreement identified in Section 2.7, i.e., as though the Settlement Effective Date had never occurred. All notices of termination delivered pursuant to this Section 4.6 shall be in writing and addressed to the Reliant Parties in accordance with the notice provisions set forth herein, and clearly state the grounds for termination, the identity of any Reliant Parties as to which clause (iv) above applies (if applicable), and the date on and after which such termination shall be effective. If the grounds for termination include clause (i) and/or (ii) and/or (iii) above and one or more of the Reliant Parties completely cures all defaults under those clauses that are identified in the California Parties’ notice of termination within five (5) Business Days after the Reliant Parties’ receipt of that notice of termination, including payment of interest at the FERC Interest Rate on any payments past due under this Agreement, then this Agreement shall not terminate ab initio and all defaults identified in the California Parties’ notice of termination with respect to clause (i) and/or clause (ii) and/or clause (iii) above shall be deemed to have been cured.

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 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 general assignment for the benefit of its creditors, then the California Parties may at their option, subject to the Reliant Parties’ cure rights set forth below, terminate this Agreement in writing in its entirety ab initio except as to the tolling provisions of this Agreement and the other provision of this Agreement identified in Section 2.7, i.e., as though the Settlement Effective Date had never occurred. All notices of termination delivered pursuant to this Section 4.6 shall be in writing and addressed to the Reliant Parties in accordance with the notice provisions set forth herein, and clearly state the grounds for termination, the identity of any Reliant Parties as to which clause (iv) above applies (if applicable), and the date on and after which such termination shall be effective. If the grounds for termination include clause (i) and/or (ii) and/or (iii) above and one or more of the Reliant Parties completely cures all defaults under those clauses that are identified in the California Parties’ notice of termination within five (5) Business Days after the Reliant Parties’ receipt of that notice of termination, including payment of interest at the FERC Interest Rate on any payments past due under this Agreement, then this Agreement shall not terminate ab initio and all defaults identified in the California Parties’ notice of termination with respect to clause (i) and/or clause (ii) and/or clause (iii) above shall be deemed to have been cured.