CT.,
NOV. 27, 2000); HENDRICKS V. DYNEGY POWER MARKETING, INC., ET AL., CASE NO. GIC
758565 (SAN
8
DIEGO SUPER. CT., NOV. 29, 2000); SWEETWATER AUTHORITY V. DYNEGY POWER
MARKETING, INC., ET AL., CASE NO. GIC 760743 (SAN DIEGO SUPER. CT., JAN. 16,
2001); STATE OF CALIFORNIA, EX REL. CITY ATTORNEY FOR THE CITY AND COUNTY OF SAN
FRANCISCO, DENNIS J. HERRERA V. DYNEGY POWER MARKETING, INC., ET AL., CASE
NO. SCV 318189 (SAN FRAN. SUPER. CT., JAN. 18, 2001); PIER 23 RESTAURANT AND
OSCAR'S PHOTO LAB V. PG&E ENERGY TRADING, INC., ET AL., CASE NO. SCV 318343 (SAN
FRAN. SUPER. CT., JAN. 24, 2001); AND BUSTAMANTE V. DYNEGY, INC., ET AL., CASE
NO. BC 249705 (LOS ANGELES SUPER. CT., MAY 2, 2001), PREVIOUSLY COORDINATED AS
WHOLESALE ELECTRICITY ANTITRUST CASES I & II, CALIFORNIA JUDICIAL COUNCIL
COORDINATION PROCEEDING NOS. 4204 AND 4205.
1.87
"WILLIAMS, DYNEGY, DUKE, MIRANT AND ENRON SETTLEMENTS" MEANS THE
SETTLEMENTS AMONG CERTAIN SUPPLIERS INVOLVED IN THE FERC REFUND PROCEEDINGS THE
CALIFORNIA PARTIES, OMOI AND OTHERS, EACH OF WHICH EITHER WAS APPROVED BY FERC
IN ORDERS REPORTED AT SAN DIEGO GAS & ELEC. CO. V. SELLERS, 108 FERC ¶ 61,002
(JUL. 2, 2004) (WILLIAMS); 109 FERC ¶ 61,071 (OCT. 25, 2004) (DYNEGY); 109 FERC
¶ 61,257 (DEC. 7, 2004) (DUKE); AND 111 FERC ¶ 61,017 (APR. 13, 2005) (MIRANT),
OR, IN THE CASE OF ENRON, IS PENDING APPROVAL BEFORE FERC IN DOCKET NO. EL00-95
(OFFER OF SETTLEMENT FILED AUG. 24, 2005).
2.
CONDITIONS TO EFFECTIVENESS; SETTLEMENT EFFECTIVE DATE;
TERMINATION
2.1
AGREEMENT BINDING ON EXECUTION DATE.
EXCEPT (I) AS PROVIDED IN
SECTION 2.3, AND (II) AS TO OMOI, WHOSE OBLIGATIONS UNDER THIS AGREEMENT SHALL
NOT BE EFFECTIVE UNTIL THE ISSUANCE OF THE FERC SETTLEMENT ORDER, THIS AGREEMENT
SHALL BE A BINDING OBLIGATION OF EACH PARTY IMMEDIATELY UPON THE EXECUTION
DATE.
IF ANY LOCAL GOVERNMENTAL ENTITY HAS NOT YET RECEIVED ITS APPROVAL
(REFERENCED IN SECTION 10.2) BY THE EXECUTION DATE, THE OBLIGATIONS AS TO THAT
LOCAL GOVERNMENTAL ENTITY SHALL NOT BE EFFECTIVE UNTIL SUCH APPROVAL IS
OBTAINED.
2.2
OPT-IN PARTICIPANTS.
EACH OPT-IN PARTICIPANT SHALL BE BOUND BY
ALL OF THE PROVISIONS OF THIS AGREEMENT IN ACCORDANCE WITH SECTION 9.1.
2.3
CONDITIONS PRECEDENT TO CERTAIN OBLIGATIONS.
IT IS A CONDITION
PRECEDENT TO (I) THE OBLIGATION OF A PARTY TO MAKE PAYMENTS, ASSIGN RECEIVABLES
OR OTHER RIGHTS TO PAYMENT, ASSUME LIABILITIES, OR RELEASE CLAIMS HEREUNDER, AND
(II) THE EFFECTIVENESS OF ALL RELEASES AND THE WITHDRAWALS OF CLAIMS, DEFENSES,
PROTESTS, PETITIONS FOR REHEARING AND CHALLENGES SPECIFIED HEREUNDER, THAT THE
SETTLEMENT EFFECTIVE DATE HAS OCCURRED.
2.4
SETTLEMENT EFFECTIVE DATE.
THE "SETTLEMENT EFFECTIVE DATE" SHALL
OCCUR ON THE DATE, FOLLOWING THE EXECUTION DATE, THAT THE REQUIRED APPROVAL WITH
RESPECT TO FERC (AS DEFINED IN SECTION 10.1) HAS BEEN ENTERED, ISSUED, OR
OTHERWISE OBTAINED AND IS IN FULL FORCE AND EFFECT AND NOT THEN STAYED,
NOTWITHSTANDING THAT A REQUEST FOR STAY, REHEARING, OR APPEAL MAY THEN BE
PENDING.
THE SETTLEMENT EFFECTIVE DATE IS NOT DEPENDENT ON THE OCCURRENCE OF
THE CLASS ACTION EFFECTIVE DATE.
9