Exhibit 10.25.13
EIGHTY-THIRD AGREEMENT AMENDING
NEW ENGLAND POWER POOL AGREEMENT
(FINANCIAL ASSURANCE AND
BILLING POLICIES)
THIS EIGHTY-THIRD AGREEMENT AMENDING NEW ENGLAND POWER POOL AGREEMENT,
dated as of March 8, 2002 ("Eighty-Third 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 the 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, the most recent amendment dated as of
January 18, 2002; and
WHEREAS, the Participants desire to amend the NEPOOL Agreement and the
NEPOOL Tariff, as heretofore amended, to reflect the revisions detailed herein.
NOW, THEREFORE, upon approval of this Eighty-Third 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 NEPOOL AGREEMENT
1.1 Amendment to Section 21.2(c) of the NEPOOL Agreement. The second sentence
of Section 21.2(c) of the NEPOOL Agreement is amended to read as follows:
If a Participant fails to meet the requirements for continuation of
service, NEPOOL may take such actions as are specified in the NEPOOL
Billing Policy attached to the Tariff (the "Billing Policy") and the
Financial Assurance Policy for NEPOOL Members attached to the Tariff (the
"Member Financial Assurance Policy").
1.2 Amendment to Section 21.2(d) of the NEPOOL Agreement. Section 21.2(d) of
the NEPOOL Agreement is amended to read as follows:
In the event a Participant fails, for any reason other than a billing
dispute as described in subsection (c) of this Section 21.2, to pay when
due in accordance with NEPOOL System Rules (including, without limitation,
the Billing Policy) all amounts invoiced to it by NEPOOL, or by the
System Operator on behalf of NEPOOL (a "Payment Default"), or the
Participant otherwise fails to comply with the Billing Policy or the
Member Financial Assurance Policy (including, without limitation, a
failure to provide adequate financial assurance), or the Participant fails
to perform any other obligation under the Agreement or the Tariff, and
such failure continues for at least five days in the case of a Payment
Default and for at least ten days in the case of any other default,
NEPOOL, or the System Operator on behalf of NEPOOL, may (but shall not be
required to) notify such Participant in writing, electronically and
by first class mail sent in each case to such Participant's member or
alternate on the Participants Committee or billing contact, that it is
in default, and NEPOOL may initiate a proceeding before the Commission
to terminate such Participant's status as a Participant. Simultaneously
with the giving of the notice described in the preceding sentence
in the case of a Payment Default and within ten days after the giving of
such notice in the case of any other default (unless the default giving
rise to such notice is cured during such period), NEPOOL, or the System
Operator on behalf of NEPOOL, shall notify each other member and
alternate on the Participants Committee and each Participant's billing
contact of the identity of the Participant receiving such notice, whether
such notice relates to a Payment Default, to a failure to comply otherwise
with the Billing Policy or the Member Financial Assurance Policy, or to
another failure to perform obligations under the Agreement or the Tariff,
and the actions NEPOOL and/or the System Operator plans to take
and/or has taken in response to such default. Pending Commission action
on such termination, NEPOOL may suspend service, in whole or part, to the
Participant on or after 50 days after the giving of such notice and the
initiation of such proceeding, in accordance with Commission policy, or
such shorter time period as is specified in the Billing Policy or the
Member Financial Assurance Policy, unless the Participant cures the
default within such period. Nothing set forth in this Section 21.2 is
intended to limit the additional provisions of the Information Policy,
the Member Financial Assurance Policy or the Billing Policy relating to
defaults.
SECTION 2
AMENDMENTS TO MEMBER FINANCIAL ASSURANCE POLICY
2.1 Amendment to Section II.A.1 of the Member Financial Assurance Policy.
The second sentence of the first paragraph of Section II.A.1 of the
Financial Assurance Policy for NEPOOL Members included as Attachment L
to the NEPOOL Tariff, as amended by the Eighty-First Agreement Amending
New England Power Pool Agreement (the "Member Financial Assurance
Policy"), is amended to insert "and" immediately before "(iv)" and to
delete "; and (v) a list of the officers and principal management of the
Non-Municipal Applicant" at the end of the that sentence.
2.2 Amendment to Section II.A.1 of the Member Financial Assurance Policy.
In the second sentence of the second paragraph of Section II.A.1 of
the Member Financial Assurance Policy, "(v)" is changed to "(iv)".
2.3 Amendment to Section II.A.2 of the Member Financial Assurance Policy.
In the first sentence of Section II.A.2 of the Member Financial Assurance
Policy, the phrase "and a list of its officers and principal management"
is deleted. In the second sentence of that section, ": (i) the
background of the Non-Municipal Participant's officers and principal
management; and (ii)" is deleted.
2.4 Amendment to Section II.B.4. of the Member Financial Assurance Policy.
The first sentence of Section II.B.4. of the Member Financial Assurance
Policy is amended to read as follows:
When a Non-Municipal Participant's aggregate outstanding obligations
to NEPOOL and the System Operator equal 80 percent (80%) of the sum of
(i) that Non-Municipal Participant's then-effective Credit Limit
and (ii) the available amount of the additional financial assurance
provided by that Non-Municipal Participant divided by three and one-half
(3.5) (the sum of item (i) and (ii) being referred to herein as
the "Credit Test Amount"), the System Operator shall issue notice thereof
to such Non-Municipal Participant, such notice to be given in the manner
provided in Section 21 of the Restated NEPOOL Agreement.
2.5 Amendment to Section II.B.4. of the Member Financial Assurance Policy.
Clause (ii)(a) in the second paragraph of Section II.B.4. of the Member
Financial Assurance Policy is amended to read as follows:
(ii) such Non-Municipal Participant shall be suspended from (a) making
any purchases or sales of Market Products in the NEPOOL Market;
2.6 Amendment to Section II.B.4. of the Member Financial Assurance Policy.
In the first clause (x) and the first clause (y) of the second paragraph
of Section II.B.4. of the Member Financial Assurance Policy, "purchases
of Market Products" is changed to "purchases and sales of Market Products"
in each place where that phrase appears.
2.7 Amendment to Section II.B.4. of the Member Financial Assurance Policy.
In the last sentence of the second paragraph of Section II.B.4. of the
Member Financial Assurance Policy, "purchase Market Products" is changed
to "purchase or sell Market Products."
2.8 Amendment to Section II.B.4. of the Member Financial Assurance Policy.
The following is added at the end of the second paragraph of Section
II.B.4. of the Member Financial Assurance Policy:
In addition to the notices provided for herein, the System Operator will
provide any additional information required under the Information Policy.
2.9 Amendment to Section V.D. of the Member Financial Assurance Policy.
The last sentence of the first paragraph of Section V.D. of the Member
Financial Assurance Policy is deleted.
2.10 Amendment to Section V.F. of the Member Financial Assurance Policy.
The following is added at the end of the first paragraph of Section V.F.
of the Member Financial Assurance Policy:
In addition to the notices provided for herein, NEPOOL and/or the System
Operator will provide any additional information required under the
Information Policy.
SECTION 3
AMENDMENTS TO NON-PARTICIPANT FINANCIAL ASSURANCE POLICY
3.1 Amendment to Section I.A.1 of the Non-Participant Financial Assurance
Policy. The second sentence of the first paragraph of Section I.A.1 of
the Financial Assurance Policy for NEPOOL Non-Participant Transmission
Customers included as Attachment M to the NEPOOL Tariff, as amended by the
Eighty-First Agreement Amending New England Power Pool Agreement (the
"Non-Participant Financial Assurance Policy"), is amended to insert "and"
immediately before "(iv)" and to delete"; and (v) a list of the officers
and principal management of the Non-Participant Applicant" at
the end of the that sentence.
3.2 Amendment to Section I.A.1 of the Non-Participant Financial Assurance
Policy. In the second sentence of the second paragraph of Section I.A.1
of the Non-Participant Financial Assurance Policy, "(v)" is changed
to "(iv)".
3.3 Amendment to Section I.A.2 of the Non-Participant Financial Assurance
Policy. In the first sentence of Section I.A.2 of the Non-Participant
Financial Assurance Policy, the phrase "and a list of its officers and
principal management" is deleted. In the second sentence of that
section,": (i) the background of the Non- Participant Transmission
Customer's officers and principal management; and (ii)" is deleted.
SECTION 4
AMENDMENTS TO NEPOOL BILLING POLICY
4.1 Amendment to Section 3.3(e) of the NEPOOL Billing Policy. The followin
is added immediately after the first sentence of Section 3.3(e) of the
New England Power Pool Billing Policy included as Attachment N to the
NEPOOL Tariff (the "Billing Policy"):
Amounts withdrawn from the Late Payment Account and applied toward any
shortfall resulting from the Default Amount shall not relieve the
defaulting Participant or defaulting Non-Participant Transmission
Customer of its obligation to pay such Default Amount.
4.2 Amendment to Section 3.3(j) of the NEPOOL Billing Policy. Section 3.3(j)
of the NEPOOL Billing Policy is amended as follows:
(j) Notice and Suspension. Without limiting any of the other remedies
described above, in the event that the ISO, in its reasonable opinion,
believes that all or any part of any amount due to be paid by any
Participant or any Non-Participant Transmission Customer will not be
or has not been paid when due (a "Payment Default"), the ISO (on its
own behalf or on behalf of NEPOOL) may (but shall not be required to)
notify such Participant or Non-Participant Transmission Customer in
writing, electronically and by first class mail sent in each case to
such Participant's member or alternate on the Participants Committee
or billing contact (it being understood that the ISO will use
reasonable efforts to contact all three) or such Non-Participant
Transmission Customer's billing contact, of such Payment Default. If a
Payment Default is not cured within five days after when such payment
was originally due, the ISO shall notify each member and alternate on
the NEPOOL Participants Committee, each Participant's billing contact
and each of the New England governors and utility regulatory agencies
of (i) the identity of the Participant or Non-Participant Transmission
Customer receiving such notice, (ii) whether such notice relates to a
Payment Default, (iii) whether the defaulting Participant has a
registered load asset, and (iv) the actions the ISO plans to take and/or
has taken in response to such Payment Default. In addition, the
ISO will provide any additional information with respect to such Payment
Default as may be required under the Information Policy. If a Payment
Default is not cured within ten days after when such payment was
originally due, the defaulting Participant or Non-Participant Transmission
Customer shall be suspended (if applicable) from (a) making any purchases
or sales of Market Products in the NEPOOL Market; (b) scheduling
any future transmission service under the Tariff; and (c) voting on
matters before the Participants Committee or any Technical Committee, in
each case until (x) in the case of purchases and sales of Market Products
and the scheduling of transmission services, such Payment Default has been
cured in full, and (y) in the case of voting on matters before the
Participants Committee or any Technical Committee, such Payment Default
has been cured in full at least three Business Days prior to such vote;
provided; however, that any suspension of a Participant's authority to
vote on matters before the Participants Committee or any Technical
Committee hereunder shall not be effective while an appeal of such
suspension is pending. The suspension of a Participant's ability to
purchase or sell Market Products in the NEPOOL Market shall not limit,
in any way, NEPOOL's or the ISO's right to invoice or collect payment for
any amounts owed (whether such amounts are due or becoming due) by such
Participant under the Documents. If the ISO has issued a notice that a
Participant or a Non-Participant Transmission Customer has defaulted on
a payment obligation and that Participant or Non-Participant Transmission
Customer subsequently cures that Payment Default, such Participant or
Non-Participant Transmission Customer may request the ISO to issue a
notice stating such fact; provided; however, that the ISO shall not be
required to issue that notice unless, in its sole discretion, the ISO
determines that such Payment default has been cured.
SECTION 5
MISCELLANEOUS
5.1 This Eighty-Third Agreement shall become effective on June 1, 2002, or
on such other date as the Commission shall provide that the amendments
reflected herein shall become effective.
5.2 Terms used in this Eighty-Third Agreement that are not defined herein
shall have the meanings ascribed to them in the NEPOOL Agreement.