EXHIBIT 10.23.5
THIRTY-SECOND AGREEMENT AMENDING
NEW ENGLAND POWER POOL AGREEMENT
THIS THIRTY-SECOND AGREEMENT, dated as of the 1st day of September, 1995, is
entered into by the signatory Participants for the amendment by them of the
New England Power Pool Agreement dated as of September 1, 1971 (the "NEPOOL
Agreement"), as previously amended by twenty-nine (29) amendments, the most
recent of which was dated as of May 1, 1993; as previously proposed to be
amended by a thirtieth amendment dated as of June 1, 1993 which has been
withdrawn; and as proposed to be amended by a pending thirty-first amendment
dated as of July 1, 1995.
WHEREAS, the NEPOOL Review Committee has been reconstituted, in response to a
general invitation issued in early 1995 by the NEPOOL Participants, to
include representatives of independent power producers ("IPPs"), power
marketers, power brokers, utility regulators, environmental groups and
others, and the Committee is currently discussing a restructuring of NEPOOL
in light of the emerging changes in the electric utility industry;
WHEREAS, the NEPOOL Review Committee's January 1995 Phase One Report
concluded as part of the NEPOOL restructuring that "NEPOOL membership should
be open to a broad spectrum of entities";
WHEREAS, IPPs are permitted to become Participants under current NEPOOL
provisions and the Participants are willing, consistent with the NEPOOL
Review Committee's Phase One Report, to amend the NEPOOL Agreement also to
permit power marketers and power brokers to become Participants;
WHEREAS, as an interim step in the restructuring of NEPOOL the
Participants are willing to amend the NEPOOL Agreement to permit power
marketers and power brokers to become Participants now, even before the
completion of the restructuring of NEPOOL, to facilitate their participation
in bulk power transactions in New England and more directly in the day-to-day
activities of NEPOOL;
WHEREAS, certain New England utilities that have chosen so far not to
become Participants have expressed their interest in amending language to the
NEPOOL Agreement in order to make membership in NEPOOL more desirable to
them;
WHEREAS, the amendments proposed herein do not change the voting and
governance provisions of the NEPOOL Agreement;
WHEREAS, representatives of certain of the IPPs and power marketers have
expressed in NEPOOL Review Committee discussions (1) the belief that any
amendments to the NEPOOL Agreement designed to effect the restructuring of
NEPOOL should be preceded by an amendment to the NEPOOL voting and governance
structure so that IPPs and power marketers can participate fully and have a
separate vote on all restructuring matters placed before the NEPOOL Executive
Committee, (2) the concern that the interests of IPPs and power marketers may
not be adequately addressed in the restructuring discussions in the NEPOOL
Executive Committee during the interim period when the terms of NEPOOL
restructuring are being discussed, and (3) the position that the issue of
whether and, if so, how to amend the definition of the term "Entity" under
Section 15.14 of the NEPOOL Agreement to include end-users should be
addressed and resolved during the NEPOOL restructuring process;
WHEREAS, during NEPOOL Review Committee discussions, various NEPOOL
Participants have expressed (1) their belief that the NEPOOL voting and
governance structure (a) should be fair, (b) should take into account the
interests of all members and reflect votes that are appropriately weighted in
relationship to each member's responsibilities and obligations (i.e.
transmission, generation and/or load), and (c) should minimize the
opportunities for gridlock, (2) their desire to involve substantively the
IPPs, power marketers, power brokers, Federal and state regulators, and any
other interested entities in the restructuring effort, but not to impede the
operations of NEPOOL during the restructuring process, and (3) the desire
first to assure the opportunity for broader membership by all entities
transacting business in the wholesale bulk power market in New England before
addressing whether and, if so, how to involve end- users in the Pool;
WHEREAS, in order to address the IPPs' and power marketers' beliefs,
concerns, positions, desires, and interests, the Participants have invited
IPPs, power marketers, and power brokers that elect to become Participants
after this Thirty- Second Agreement is effective to select a common
representative to receive notice of all meetings of the NEPOOL Executive
Committee, NEPOOL Operations Committee, and NEPOOL Policy Planning Committee
and to attend those meetings and act as their common spokesperson at such
meetings;
WHEREAS, those IPPs and power marketers involved in the NEPOOL Review
Committee effort which are listed in Attachment 1 to this Thirty-Second
Agreement have provided the Participants assurances that these IPPs and power
marketers support or do not oppose acceptance of this Thirty-Second Agreement
by the Federal Energy Regulatory Commission (the "Commission");
WHEREAS, in reliance on and subject to the assurances of the IPPs and
power marketers described in the preceding paragraph, the Participants, IPPs
and power marketers participating in the NEPOOL Review Committee effort have
agreed that governance and voting issues relative to IPPs and power marketers
are among the priority issues identified in the NEPOOL Review Committee's
Phase One Report and that they will continue to use their best efforts to
resolve these issues expeditiously through the NEPOOL Review Committee; and
WHEREAS, Participants, IPPs and power marketers have also agreed that
the issue of whether and, if so, how to amend the NEPOOL Agreement to permit
membership by those not eligible for NEPOOL membership after this
Thirty-Second Agreement becomes effective should be addressed before
completion of the NEPOOL restructuring process;
NOW THEREFORE, the signatory Participants hereby agree as follows:
SECTION 1
AMENDMENTS TO NEPOOL AGREEMENT
1. The definition of "Entity" in Section 15.14 of the NEPOOL
Agreement, as heretofore amended, is amended to read as follows:
Entity is any person or organization engaged in the electric utility
business (the generation and/or transmission and/or distribution of
electricity for consumption by the public, or the purchase, as principal or
broker, of electric energy and/or capacity for resale at wholesale), whether
the United States of America or Canada or a state or province or a political
subdivision thereof or a duly established agency of any of them, a private
corporation, a partnership, an individual, an electric cooperative or any
other person or organization recognized in law as capable of owning property
and contracting with respect thereto. No person or organization shall be
deemed to be an Entity if the generation, transmission, or distribution of
electricity by such person or organization is primarily conducted to provide
electricity for consumption by such person or organization or an affiliated
person or organization.
2. Section 5.15 of the NEPOOL Agreement, as heretofore amended, is
amended to re-letter paragraph (h) as paragraph (i) and by inserting the
following new paragraph (h) after present paragraph (g):
(h) The Management Committee shall have the authority, at the time that
it acts on an Entity's application pursuant to Section 1.2 to become a
Participant, to waive, conditionally or unconditionally, compliance by such
Entity with one or more of the obligations imposed by this Agreement if the
Committee determines that such compliance would be unnecessary or
inappropriate for such Entity and the waiver for such Entity will not impose
an additional burden on other Participants.
3. Section 5.16 of the NEPOOL Agreement, as heretofore amended, is
hereby amended to read as follows:
Each member of the Management Committee or that member's designee shall
be entitled to attend any meeting of the Executive Committee, Operations
Committee, and Policy planning Committee and shall have a reasonable
opportunity to express views on any matter to be acted upon at the meeting.
SECTION II
PARTICIPATION ON NEPOOL COMMITTEES
The Participants that are the signatories to this Thirty-Second
Agreement agree that they will cause their representatives to take action in
the NEPOOL Executive Committee, the NEPOOL Operations Committee and the
NEPOOL Policy Planning Committee to authorize the IPPs, power marketers and
power brokers that become Participants (collectively, such IPPs, power
marketers, and power brokers are hereinafter referred to as "non-utility
Participants") to designate as a group after this Thirty-Second Agreement
becomes effective, a non-voting representative for each of the NEPOOL
Executive Committee, NEPOOL Operations Committee, and NEPOOL Policy Planning
Committee. The right to designate such representatives to the NEPOOL
Executive Committee, NEPOOL Operations Committee, and NEPOOL Policy Planning
Committee shall be in addition to, and not in lieu of, such non-utility
Participants' rights under the existing provisions of the NEPOOL Agreement to
be represented by members on the NEPOOL Operations Committee and NEPOOL
Policy Planning Committee. If the non- utility Participants designate a
representative for the NEPOOL Executive Committee, NEPOOL Operations
Committee or NEPOOL Policy Planning Committee, that representative shall be
treated as if he or she were a member of that Committee for purposes of
notice of and participation in Committee meetings, but shall not be entitled
to vote, and shall not be deemed a member of the Committee for purposes of
determining the number of votes required for Committee action.
SECTION III
EFFECTIVENESS OF THE THIRTY-SECOND AGREEMENT
This Thirty-Second Agreement, and the amendments provided for above,
shall become effective on November 15, 1995, or on such other date as the
Federal Energy Regulatory Commission shall provide that such amendments shall
become effective.
SECTION IV
USAGE OF DEFINED TERMS
The usage in this Thirty-Second Agreement of terms which are defined in
the NEPOOL Agreement shall be deemed to be in accordance with the definitions
thereof in the NEPOOL Agreement.
SECTION V
COUNTERPARTS
This Thirty-Second Agreement may be executed in any number of
counterparts and each executed counterpart shall have the same force and
effect as an original instrument and as if all the parties to all the
counterparts had signed the same instrument. Any signature page of this
Thirty-Second Agreement may be detached from any counterpart of this
Thirty-Second Agreement without impairing the legal effect of any signatures
thereof, and may be attached to another counterpart of this Thirty-Second
Agreement identical in form thereto but having attached to it one or more
signature pages.
IN WITNESS WHEREOF, each of the signatories has caused a counterpart
signature page to be executed by its duly authorized representative, as of
the 1st day of September, 1995.
COUNTERPART SIGNATURE PAGE
TO THIRTY-SECOND AGREEMENT AMENDING
NEW ENGLAND POWER POOL AGREEMENT
DATED AS OF SEPTEMBER 1, 1995
The NEPOOL Agreement, being dated as of September 1, 1971, and being
previously amended by twenty-nine (29) amendments the most recent of which
was dated as of May 1, 1995, and as proposed to be amended by a pending
amendment dated as of July 1, 1995
(Participant)
By:
Name:
Title:
Address:
APPENDIX 1
The following independent power producers and power marketers who are
participating in the work of the NEPOOL Review Committee have provided the
Participants assurances that they support or do not oppose acceptance of the
foregoing Agreement by the Federal Energy Regulatory Commission:
Enron Power Marketing, Inc.
Coastal Electric Services Corp.
North American Energy Conservation, Inc.
KCS Power Marketing, Inc.
Electric Clearing House, Inc.
