Exhibit 10.23.3
SEVENTY-FIRST AGREEMENT AMENDING
NEW ENGLAND POWER POOL AGREEMENT
(LATE PAYMENT FEES)
THIS SEVENTY-FIRST AGREEMENT AMENDING NEW ENGLAND POWER POOL AGREEMENT,
dated as of February 2, 2001 ("Seventy-First Agreement"), amends the New England
Power Pool Agreement (the "NEPOOL Agreement"), as amended.
WHEREAS, the NEPOOL Agreement as in effect on December 1, 1996 was
amended and restated by the Thirty-Third Agreement Amending New England Power
Pool Agreement dated as of December 1, 1996 (the "Thirty-Third Agreement") in
the form of the Restated New England Power Pool Agreement ("Restated NEPOOL
Agreement") attached to the Thirty-Third Agreement as Exhibit A thereto, and the
Thirty-Third Agreement also provided for the NEPOOL Open Access Transmission
Tariff (the "NEPOOL Tariff") which is Attachment B to the Restated NEPOOL
Agreement; and
WHEREAS, the Restated NEPOOL Agreement and the NEPOOL Tariff have
subsequently been amended numerous times, with such amendments most recently
consolidated, respectively, in FERC Electric Third Revised Rate Schedule No. 5,
submitted in Docket No. ER00-2894-000, and FERC Electric Tariff, Fourth Revised
Volume No. 1, submitted in Docket Nos. EL00-62-000, et al.; and
WHEREAS, the Participants desire to amend the NEPOOL Agreement as
heretofore amended, to reflect the revisions detailed herein.
NOW, THEREFORE, upon approval of this Seventy-First Agreement by the
NEPOOL Participants Committee in accordance with the procedures set forth in the
NEPOOL Agreement, the Participants agree as follows:
SECTION 1
AMENDMENTS TO FINANCIAL ASSURANCE POLICY FOR NEPOOL MEMBERS
1.1 In the Financial Assurance Policy for NEPOOL Members included as
Attachment L to the NEPOOL Tariff, the following is added at the end of
the text under the heading "Non-payment of Amounts Due":
Interest collected on late payments shall be allocated and paid to the
Participants to whom such late payments are due, pro rata in accordance
with the amount due to each such Participant. Late payment charges that
are collected and not distributed to the Participants under the NEPOOL
Billing Policy shall be deposited by the ISO into a segregated
interest-bearing account (the "Late Payment Account") for disbursement
in accordance with the NEPOOL Billing Policy as in effect from time to
time; provided, however, that in no event shall the amount in the Late
Payment Account, including interest accrued thereon, at any
time exceed $500,000 or other amount determined from time to time by
the Participants Committee (the "Late Payment Account Limit"). Any late
payment fees and interest thereon in excess of the Late Payment Account
Limit shall be distributed to the Participants pro rata based on their
charges under the ISO's Tariff for Transmission Dispatch and Power
Administration Services in the month preceding the month in which such
distribution is to be made.
SECTION 2
AMENDMENTS TO NEPOOL BILLING POLICY
2.1 The references in Sections 3.1(d) and 5.6(c) of the New England Power
Pool Billing Policy included as Attachment N to the NEPOOL Tariff (the
"Billing Policy") to "Section 3.3(e)" are each changed to "Section
3.3(f)."
2.2 The following new subsection is inserted immediately after Section
3.3(d) of the Billing Policy:
e) Disbursements from Late Payment Fund. If and to the extent
that the procedures described in clauses (b), (c) and (d)
above are insufficient to effect payment of the Default Amount
(but not interest accrued thereon and late charges assessed
under the Documents and the Financial Assurance Policies), the
ISO shall withdraw from the account funded with late payment
charges under the Financial Assurance Policy for NEPOOL
Members (the "Late Payment Account") an amount equal to such
unpaid Default Amount, to the extent that such amount is
available in the Late Payment Account, and shall apply such
amount to any shortfall in Payments resulting from the Default
Amount not being paid. If and to the extent that such Default
Amount, interest thereon and/or late charges with respect
thereto are subsequently collected (including as a result of
the use of a financial assurance under the Financial Assurance
Policies or through actions or proceedings against the
defaulting Participant or Non-Participant Transmission
Customer), such amounts shall first be used to pay
Participants for the amount of such Default Amount allocated
to them under clause (f) below, with interest thereon, and
then, after all such amounts have been paid to the
Participants, such Default Amount, interest and/or late
charges shall be deposited into the Late Payment Account in
accordance with the provisions of the Financial Assurance
Policy for NEPOOL Members that are applicable to late payment
charges.
2.3 Clauses (e), (f), (g), (h) and (i) of the Billing Policy are
redesignated as clauses (f), (g), (h), (i) and (j) of the Billing
Policy, respectively.
2.4 Section 3.3(f)(i) (formerly Section 3.3(e)(i)) of the Billing Policy is
amended to read as follows:
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f) Reduction of Payments and Increases in Charges. (i) If and to
the extent that the procedures described in clauses (b), (c),
(d) and (e) above do not yield sufficient funds to pay all
Remittance Advice amounts in full (after payment of amounts
due to the ISO in accordance with clause (a) above) on the
date such Payments are due, the ISO shall reduce Payments to
those Participants owed monies for that billing period (the
"Default Period"), pro rata based on the amounts owed to such
Participants, to the extent necessary to clear its accounts by
the close of banking business on the date such Payments are
due. As funds attributable to a Default Amount are received by
the ISO (including amounts received through financial
assurances provided under the Financial Assurance Policies or
through actions or proceedings commenced against the
defaulting Participant or Non-Participant Transmission
Customer) prior to the next billing period's Statements being
distributed, such funds, together with any interest and late
charges collected on the applicable Default Amount, shall be
distributed pro rata to the Participants that did not receive
the full amount of their Payments as a result of such Default
Amount not being paid, up to the full amount that such
Participants did not receive as a result of such Default
Amount not being paid, with interest thereon.
2.5 In Section 3.3(f)(ii) (formerly Section 3.3(e)(ii)) of the Billing
Policy, the references to "(e)(ii)" are changed to "(f)(ii)," and the
last sentence thereof is amended to read as follows:
As funds attributable to a Default Amount are received by the ISO
(including amounts received through financial assurances provided under
the Financial Assurance Policies or through actions or proceedings
commenced against the defaulting Participant or Non-Participant
Transmission Customer) after such adjusted Statements are distributed,
such funds, together with any interest and late charges collected on
the applicable Default Amount, shall be distributed to the Participants
pro rata based on their allocation of the Default Amount under this
clause (f)(ii), up to the full amount of such Default Amount allocated
to each such Participant, with interest thereon.
SECTION 3
MISCELLANEOUS
3.1 This Seventy-First Agreement shall become effective on May 5, 2001 or
on such other date as the Commission shall provide that the amendments
reflected herein shall become effective.
3.2 Terms used in this Seventy-First Agreement that are not defined herein
shall have the meanings ascribed to them in the NEPOOL Agreement.
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ATTACHMENT 3
AMENDMENT NO. 1 TO
INTERIM INDEPENDENT SYSTEM OPERATOR AGREEMENT
This Amendment No. 1 to Interim Independent System Operator Agreement
(this "Amendment") is made and entered into as of this 20th day of March, 2001
by and between the entities which are the participants in the New England Power
Pool pursuant to the Restated New England Power Pool Agreement dated as of
September 1, 1971, as amended and restated to date, acting herein by and through
the NEPOOL Participants Committee, as successor to the NEPOOL Management
Committee (collectively, the "NEPOOL Participants" or "NEPOOL"), on the one
hand, and ISO New England Inc. (the "ISO"), on the other.
WHEREAS, the NEPOOL Participants and the ISO are parties to that
certain Interim Independent System Operator Agreement dated as of July 1, 1997
(the "ISO Agreement"); and
WHEREAS, the NEPOOL Participants and the ISO wish to amend the ISO
Agreement to reflect a change in the collection of the ISO's capital
expenditures and capitalized project costs;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the NEPOOL Participants and the ISO agree as follows:
1. AMENDMENT OF SECTION 6.5(a). The last sentence of Section 6.5(a) of the
ISO Agreement is amended to read as follows:
If the ISO determines a need for additional facilities or equipment to
carry out its responsibilities under this Agreement (such as, for
purposes of illustration, computer equipment, but not including
transmission facilities or generating units) and the ISO has not
obtained funding for such additional facilities or equipment through
third party financing or through its Tariff for Capital Funding, its
Tariff for Transmission Dispatch and Power Administration Services or a
separate tariff, the ISO may request funding for such facilities or
equipment in accordance with the terms of the NEPOOL Agreement.
2. AMENDMENT OF SECTION 6.5(b). The first sentence of Section 6.5(b) of
the ISO Agreement is amended to read as follows:
All land, structures, fixtures, equipment and facilities, and other
capital assets, and all software or other intellectual property or
rights to intellectual property or other assets acquired or developed
by the ISO with funding provided by the NEPOOL Participants pursuant to
the NEPOOL Agreement in order to carry out its responsibilities under
this Agreement (the "NEPOOL Assets") shall be the property of the
NEPOOL Participants or shall be acquired by the NEPOOL Participants
under lease in accordance with arrangements approved by the NEPOOL
Participants Committee; provided that for those NEPOOL Participants
subject to the Public Utility Holding Company Act of 1935 ("PUHCA"),
any such acquisition by those NEPOOL Participants shall be subject to
PUHCA approval to the extent such acquisition requires approval under
PUHCA.
3. ADDITION OF SECTION 6.5(c). Section 6.5(c) is added to the ISO
Agreement, immediately after Section 6.5(b) thereof, reading as
follows:
(c) Any additional land, structures, fixtures, equipment and
facilities, and other capital assets, and all software and other
intellectual property or rights to intellectual property or other
assets needed for the ISO to carry out its responsibilities under this
Agreement not covered by subsection (b) of this Section shall be
acquired or developed by the ISO in its own name and shall be the
property of the ISO (the "ISO Assets"), and the costs associated with
such acquisition shall be paid by the ISO with funding obtained through
a third party financing arrangement or under the ISO's Tariff for
Capital Funding, the ISO's Tariff for Transmission Dispatch and Power
Administration Services or a separate tariff for the ISO. In the event
of a termination, removal or resignation of the ISO under this
Agreement or the termination of this Agreement, the ISO shall transfer
to NEPOOL or its designee, subject to any necessary landlord or other
consents being obtained and subject to PUHCA approval to the extent
such transfer requires PUHCA approval, all of its right, title and
interest in and to the NEPOOL Assets and in and to the ISO Assets that
have been acquired or developed using funds provided by the NEPOOL
Participants (whether initially or upon a termination or acceleration
of a third party financing and whether provided under the NEPOOL
Agreement, the ISO's Tariff for Capital Funding, the ISO's Tariff for
Transmission Dispatch and Power Administration Services or a separate
tariff of the ISO) for which the NEPOOL Participants have not been
fully reimbursed. If the transferee of such right, title and interest
in and to the NEPOOL Assets and ISO Assets is a tax-exempt Section
501(c)(3) or Section 501(c)(4) organization for federal income taxation
purposes, such transfer will be without consideration to the ISO; if
such transferee is NEPOOL, NEPOOL shall purchase such right, title and
interest in and to the NEPOOL Assets and ISO Assets at a price equal to
(x) the fair market value of such right, title and interest in and to
the ISO Assets (but not such right, title and interest in and to the
NEPOOL Assets), as determined by an independent MAI appraiser with the
requisite background and experience in the field (the "FMV") minus (y)
the amount of funds previously provided by the NEPOOL Participants for
such right, title and interest in and to the ISO Assets for which the
NEPOOL Participants have not been reimbursed; and if such transferee is
neither NEPOOL nor a tax-exempt Section 501(c)(3) or Section 501(c)(4)
organization, such transferee shall purchase such right, title and
interest in and to the NEPOOL Assets and ISO Assets at a price equal to
the FMV; provided, however, that in no event shall the purchase price
for such right, title and interest in and to the NEPOOL Assets and ISO
Assets be less than zero.
4. CONTINUING EFFECT. Except as specifically amended hereby, all terms and
provisions contained in the ISO Agreement shall remain unchanged and in
full force and effect.
5. COUNTERPARTS. Two or more counterparts of this Amendment may be signed
by the parties, each of which shall be an original but all of which
together shall constitute one and the same instrument.
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6. GOVERNING LAW. This Amendment shall be governed by and enforced in
accordance with the laws of the State of Connecticut.
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IN WITNESS WHEREOF, the NEPOOL Participants and the ISO have caused
this Amendment to be executed by their duly authorized representatives as of the
date first written above.
NEPOOL PARTICIPANTS ISO NEW ENGLAND INC.
By:____________________________ By:______________________________
Name: Name:
Title: Title:
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