As filed with the Securities and Exchange Commission on July 9, 1999.
Registration Nos. 333-82307 and 333-82307-01
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------------------
AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
------------------------------------
TXU EASTERN FUNDING COMPANY TXU EASTERN HOLDINGS LIMITED
(EXACT NAME OF REGISTRANT (EXACT NAME OF REGISTRANT
AS SPECIFIED IN ITS CHARTER) AS SPECIFIED IN ITS CHARTER)
ENGLAND AND WALES ENGLAND AND WALES
(STATE OR OTHER JURISDICTION OF (STATE OR OTHER JURISDICTION OF
INCORPORATION OR ORGANIZATION) INCORPORATION OR ORGANIZATION)
7389 6719
(Primary Standard Industrial (Primary Standard Industrial
Classification Code Number) Classification Code Number)
98-0203668 98-0188080
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
Crown House Crown House
51 Aldwych 51 Aldwych
London, England WC2B 4AX London, England WC2B 4AX
011-44-171-420-4000 011-44-171-420-4000
(ADDRESS, INCLUDING ZIP CODE, (ADDRESS, INCLUDING ZIP CODE,
AND TELEPHONE NUMBER, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, INCLUDING AREA CODE,
OF REGISTRANT'S OF REGISTRANT'S
PRINCIPAL EXECUTIVE OFFICES) PRINCIPAL EXECUTIVE OFFICES)
ROBERT A. WOOLDRIDGE, Esq. PETER B. TINKHAM, Esq.
Worsham, Forsythe & Wooldridge, L.L.P. Secretary
1601 Bryan Street TXU Corp
Dallas, Texas 75201 1601 Bryan Street
(214) 979-3000 Dallas, Texas 75201
(214) 812-4600
ROBERT J. REGER, JR., Esq.
Thelen Reid & Priest LLP
40 West 57th Street
New York, New York 10019
(212) 603-2000
(NAMES AND ADDRESSES, INCLUDING ZIP CODES, AND TELEPHONE NUMBERS,
INCLUDING AREA CODES, OF AGENTS FOR SERVICE)
------------------------------------
It is respectfully requested that the Commission send copies of
all notices, orders and communications to:
RICHARD L. HARDEN, Esq. JOHN BUCHANAN
Winthrop, Stimson, Putnam & Roberts Secretary, TXU Eastern Funding Company
One Battery Park Plaza c/o Eastern Group plc
New York, New York 10004-1490 Wherstead Park
(212) 858-1000 Ipswich, Suffolk, England IP9 2AQ
011-44-1473-55-3102
PHILIP ELLIS
Secretary, TXU Eastern Holdings Limited
c/o Eastern Group plc
Wherstead Park
Ipswich, Suffolk, England IP9 2AQ
011-44-1473-55-3102
<PAGE>
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS.
PREVIOUSLY FILED*
---------------------
WITH
FILE AS
EXHIBIT NUMBER EXHIBIT
- ------- ------ -------
3(a) ** 3(a) -- Memorandum of Association of TXU Eastern
Funding Company.
3(b) ** 3(b) -- Articles of Association of TXU Eastern
Funding Company.
3(c) ** 3(c) -- Memorandum of Association of TXU Eastern
Holdings Limited.
3(d) ** 3(d) -- Articles of Association of TXU Eastern
Holdings Limited.
4(a) ** 4(a) -- Indenture (For Unsecured Debt Securities)
dated May 1, 1999.
4(b) ** 4(b) -- Officer's Certificate establishing 6.15%
senior notes due May 15, 2002 and 6.15%
exchange senior notes due May 15, 2002,
with the forms of notes attached thereto.
4(c) ** 4(c) -- Officer's Certificate establishing 6.45%
senior notes due May 15, 2005 and 6.45%
exchange senior notes due May 15, 2005,
with the forms of notes attached thereto.
4(d) ** 4(d) -- Officer's Certificate establishing 6.75%
senior notes due May 15, 2009 and 6.75%
exchange senior notes due May 15, 2009
with the forms of notes attached thereto.
4(e) ** 4(e) -- Registration Rights Agreement with respect
to the senior notes.
4(f) ** 4(f) -- Deposit Agreement with respect to the
senior notes and the exchange senior notes.
4(g) ** 4(g) -- Form of Letter of Transmittal.
5(a) ** 5(a) -- Opinion and Consent of E.J. Lean, General
Counsel to TXU Eastern Funding Company and
TXU Eastern Holdings Limited.
5(b) ** 5(b) -- Opinion and Consent of Worsham, Forsythe
& Wooldridge, L.L.P., United States
counsel to TXU Eastern Funding Company and
TXU Eastern Holdings Limited.
5(c) ** 5(c) -- Opinion and Consent of Thelen Reid & Priest
and and LLP, special United and States counsel to
8(a) 8(a) TXU Eastern Funding Company and TXU
Eastern Holdings Limited.
8(b) -- Opinion of Norton Rose, English legal
advisers to TXU Eastern Funding Company
and TXU Eastern Holdings Limited.
10(a) 1-12833 10(a) -- Facilities Agreement for(pound)1,275,000,
Form 10-Q Credit Facilities, dated March 24, 1999,
(Quarter ended among TXU Eastern Holdings Limited, TU
March 31, 1999) Finance (No. 2) Limited, TU Acquisitions
Limited, Chase Manhattan Bank plc, Lehman
Brothers International (Europe), Merrill
Lynch Capital Corporation and the other
banks named therein.
10(b) 1-12833 99(a) -- Facility Agreement for(pound)250,000,000
Form 10-Q Revolving Credit Facility, dated
(Quarter ended dated May 21, 1998, among Eastern Electricity
March 30, 1998) plc, and Chase Manhattan plc, Lehman Brothers
International and Merrill Lynch Capital
Corporation as Joint Lead Arrangers, and The
Chase Manhattan Bank, Lehman Commercial Paper
Inc. and Merrill Lynch Capital Corporation as
Underwriters.
10(c) 333-8008 and 4.1 -- Indenture, dated as of October 16, 1997, among
333-8008-1 Energy Group Overseas B.V. (EGO), The Energy
Group PLC and The Bank of New York, as
Trustee.
10(d) 333-8008 and 4.2 -- Form of 7.375% Series B Guaranteed note of EGO
333-8008-1 due 2017.
II-1
<PAGE>
PREVIOUSLY FILED*
---------------------
WITH
FILE AS
EXHIBIT NUMBER EXHIBIT
- ------- ------ -------
10(e) 333-8008 and 4.3 -- Form of 7.500% Series B Guaranteed note of EGO
333-8008-1 due 2027.
10(f) 1-14576 3.10 -- Deed of Assignment of Rents, dated as of
Form 20-F, dated October 28, 1996, among Eastern Merchant
January 27, 1997 Properties Limited (EMPL), Eastern Group
Finance Limited, Barclays Bank PLC (as agent)
and the banks listed therein.
10(g) 1-14576 3.11 -- Standby Credit Facility Agreement, dated as of
Form 20-F, dated October 18, 1996, among EMPL and Eastern
January 27, 1997 Merchant Generation Limited (EMGL)(as
borrowers), Eastern Group plc (Eastern) and
Eastern Generation Limited (EGL) (as
guarantors), Eastern Electricity plc (EE), The
Industrial Bank of Japan, Limited (as arranger
and agent), The Bank of Nova Scotia, the Dai-
ichi Kangyo Bank, Limited, The Royal Bank of
Scotland plc and Societe Generale (as co-
arrangers), and the financial institutions
listed therein.
10(h) -- Pooling and Settlement Agreement dated 30
March 1990, as amended as of 15 April 1999,
among Eastern Electricity plc, National Grid
Company plc and other parties.
***10(i) -- Master Connection and Use of System Agreement
dated as of 30 March 1990 among the National
Grid Company plc and its users (including
Eastern Electricity plc).
***10(j) -- Lease of land and premises known as West
Burton, Ironbridge and Rugeley B Power
Stations dated 27 June 1996 from National
Power PLC to Eastern Merchant Properties
Limited and Eastern Group PLC.
***10(k) -- Sublease of land and premises known as West
Burton, Ironbridge and Rugeley B Power
Stations dated 27 June 1996 from Eastern
Merchant Properties Limited to Eastern
Merchant Generation Limited and Eastern
Group PLC.
***10(l) -- Lease of commercial premises at High Marnham,
Newark, Nottinghamshire dated 2 July 1996
between PowerGen plc and Eastern Merchant
Properties Limited.
***10(m) -- Underlease of commercial premises at High
Marnham, Newark, Nottinghamshire dated 2 July
1996 between Eastern Merchant Properties
Limited and Eastern Merchant Generation
Limited.
***10(n) -- Lease of commercial premises at Drakelow,
Burton-on-Trent, Staffordshire dated 2 July
1996 between PowerGen plc and Eastern
Merchant Properties Limited.
***10(o) -- Underlease of commercial premises at Drakelow,
Burton-on-Trent, Staffordshire dated 2 July
1996 between Eastern Merchant Properties
Limited and Eastern Merchant Generation
Limited.
12(a) ** 12(a) -- Computation of Ratio of Earnings to Fixed
Charges for TXU Eastern Holdings Limited.
12(b) ** 12(b) -- Computation of Ratio of Earnings to Fixed
Charges for Eastern Group plc and Subsidiaries
(US GAAP basis).
12(c) ** 12(c) -- Computation of Ratio of Earnings to Fixed
Charges for Earnings to Fixed Charges for
Eastern Group plc and Subsidiaries (UK
GAAP basis).
21(a) ** 21(a) -- List of subsidiaries of TXU Eastern Holdings
Limited.
23(a) ** 23(a) -- Consent of PricewaterhouseCoopers.
23(b) ** 23(b) -- Consent of E.J. Lean (included in Opinion
filed as Exhibit 5(a) hereto).
23(c) ** 23(c) -- Consent of Worsham, Forsythe & Wooldridge,
L.L.P. (included in Opinion filed as Exhibit
5(b) hereto).
II-2
<PAGE>
PREVIOUSLY FILED*
---------------------
WITH
FILE AS
EXHIBIT NUMBER EXHIBIT
- ------- ------ -------
23(d) ** 23(d) -- Consent of Thelen Reid & Priest LLP (included
in Opinion filed as Exhibits 5(c) and 8(a)
hereto).
23(e) ** 23(e) -- Consent of Norton Rose.
24(a) ** 24(a) -- Power of Attorney for TXU Eastern Funding
Company (see Page II-7).
24(b) ** 24(b) -- Power of Attorney for TXU Eastern Holdings
Limited (see Page II-8).
25(a) ** 25(a) -- Statement on Form T-1 of The Bank of New York
relating to the Indenture (For Unsecured Debt
Securities) dated May 1, 1999.
27(a) 27(a) -- Revised Financial Data Schedule.
99(a) ** 99(a) -- Form of Exchange Agent Agreement.
- ------------------------------------
* Incorporated herein by reference.
** Previously filed with the original Registration Statement (Nos. 333-82307
and 333-82307-01) on July 2, 1999.
*** To be filed by amendment.
II-3
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE
REGISTRANT HAS DULY CAUSED THIS AMENDMENT NO. 1 TO THE REGISTRATION STATEMENT TO
BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE
CITY OF NEW YORK, AND STATE OF NEW YORK, ON THE 9TH OF JULY, 1999.
TXU EASTERN FUNDING COMPANY
BY /S/ ROBERT J. REGER, JR.
----------------------------
(ROBERT J. REGER, JR., ESQ.,
ATTORNEY-IN-FACT)
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
AMENDMENT NO. 1 TO THE REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE
FOLLOWING PERSONS IN THE CAPACITIES AND ON THE DATE INDICATED.
SIGNATURES TITLE DATE
---------- ----- ----
ERLE NYE*
-------------------------------- PRINCIPAL EXECUTIVE
(ERLE NYE) OFFICER AND DIRECTOR
MICHAEL J. MCNALLY*
-------------------------------- PRINCIPAL FINANCIAL
(MICHAEL J. MCNALLY) OFFICER, PRINCIPAL
ACCOUNTING OFFICER
AND DIRECTOR
H. JARRELL GIBBS* DIRECTOR JULY 9, 1999
--------------------------------
(H. JARRELL GIBBS)
ROBERT A. WOOLDRIDGE* DIRECTOR
--------------------------------
(ROBERT A. WOOLDRIDGE)
*BY: /S/ ROBERT J. REGER, JR.
-------------------------------- AUTHORIZED REPRESENTATIVE
(ROBERT J. REGER, JR.) IN THE UNITED STATES
AND ATTORNEY-IN-FACT
II-4
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE
REGISTRANT HAS DULY CAUSED THIS AMENDMENT NO. 1 TO THE REGISTRATION STATEMENT TO
BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE
CITY OF DALLAS, STATE OF TEXAS, ON JULY 9, 1999.
TXU EASTERN HOLDINGS LIMITED
BY /S/ ROBERT J. REGER, JR
----------------------------
(ROBERT J. REGER, JR., ESQ.,
ATTORNEY-IN-FACT)
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
AMENDMENT NO. 1 TO THE REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE
FOLLOWING PERSONS IN THE CAPACITIES AND ON THE DATE INDICATED.
SIGNATURES TITLE DATE
---------- ----- ----
ERLE NYE*
-------------------------------- PRINCIPAL EXECUTIVE
(ERLE NYE) OFFICER AND DIRECTOR
MICHAEL J. MCNALLY*
-------------------------------- PRINCIPAL FINANCIAL
(MICHAEL J. MCNALLY) OFFICER, PRINCIPAL
ACCOUNTING OFFICER
AND DIRECTOR
ROBERT A. WOOLDRIDGE* DIRECTOR
--------------------------------
(ROBERT A. WOOLDRIDGE)
DEREK CHARLES BONHAM* DIRECTOR JULY 9, 1999
--------------------------------
(DEREK CHARLES BONHAM)
H. JARRELL GIBBS* DIRECTOR
--------------------------------
(H. JARRELL GIBBS)
PAUL COLIN MARSH* DIRECTOR
--------------------------------
(PAUL COLIN MARSH)
PHILIP GEORGE TURBERVILLE* DIRECTOR
--------------------------------
(PHILIP GEORGE TURBERVILLE)
JAMES WHELAN* DIRECTOR
--------------------------------
(JAMES WHELAN)
*BY: /S/ ROBERT J. REGER, JR.
-------------------------------- AUTHORIZED REPRESENTATIVE
(ROBERT J. REGER, JR.) IN THE UNITED STATES
AND ATTORNEY-IN-FACT
II-5
<PAGE>
EXHIBIT INDEX
EXHIBIT DESCRIPTION
- ------- -----------
8(b) -- Opinion of Norton Rose, English legal advisers to
TXU Eastern Funding Company and TXU Eastern Holdings
Limited.
10(h) -- Pooling and Settlement Agreement dated 30 March 1990,
as amended as of 15 April 1999, among Eastern Electricity
plc, National Grid Company plc and other parties.
27(a) -- Revised Financial Data Schedule.
Exhibit 8(b)
NORTON ROSE
Kempson House, Camomile Street
London EC3A 7AN
Tel +44 (0) 171-283 6000
5 July 1999
TXU Eastern Funding Company
Crown House
51 Aldwych
London
England WC2B 4AX
TXU Eastern Holdings Limited
Crown House
51 Aldwych
London
England WC2B 4AX
Ladies and Gentlemen
Reference is made to the proposed exchange (Exchange Offer) by
TXU Eastern Funding Company, a private unlimited company
incorporated under the laws of England and Wales (Issuer), and
TXU Eastern Holdings Limited, a private limited company
incorporated under the laws of England and Wales (Guarantor), of
any and all of the Issuer's outstanding 6.15% Senior Notes due
May 15, 2002 (Old 6.15% Notes) for an equal principal amount of
the Issuer's 6.15% Exchange Senior Notes due May 15, 2002 (New
6.15% Notes), and all of the Issuer's outstanding 6.45% Senior
Notes due May 15, 2005 (Old 6.45% Notes) for an equal principal
amount of the Issuer's 6.45% Exchange Senior Notes due May 15,
2005 (New 6.45% Notes) and, all of the Issuer's outstanding 6.75%
Senior Notes due May 15, 2009 (Old 6.75% Notes and, together with
Old 6.15% Notes and the Old 6.45% Notes, the Old Notes) for an
equal principal amount of the Issuer's 6.75% Exchange Senior
Notes due May 15, 2009 (New 6.75% Notes and, together with the
New 6.15% Notes and the New 6.45% Notes, the New Notes), all of
such New Notes, when issued, to be guaranteed by the Guarantor,
all as contemplated in the registration statement on Form S-4
(Registration Statement) to be filed by the Issuer and the
Guarantor, on or about the date hereof, with the Securities and
Exchange Commission under the Securities Act of 1933, as amended.
We have acted as English legal advisers to the Issuer and the
Guarantor in connection with the Exchange Offer.
<PAGE>
TXU Eastern Funding Company Norton Rose
5 July 1999
Our opinion is based upon facts described in the Registration
Statement and upon facts represented to us or determined by us as
of the date hereof. Our opinion is also based upon existing
United Kingdom law, practice and judicial and administrative
precedent, all of which are subject to change either
prospectively or retroactively.
Based upon the foregoing, it is our opinion that the summary of
current law and practice in the United Kingdom relating to the
taxation of the New Notes as set out under the heading "CERTAIN
INCOME TAX CONSIDERATIONS" -- "UK Tax Considerations" is a summary
of current United Kingdom tax consequences for those noteholders
to whom that summary relates.
We hereby consent to the use of our name in the Registration
Statement and to the use of this opinion as an exhibit thereto.
Yours faithfully
/s/ Norton Rose
Norton Rose
Exhibit 10(h)
DATED 30th March, 1990
----------------------
THE GENERATORS
named herein
- and -
THE SUPPLIERS
named herein
- and -
ENERGY SETTLEMENTS AND INFORMATION SERVICES LIMITED
as Settlement System Administrator
- and -
ENERGY POOL FUNDS ADMINISTRATION LIMITED
as Pool Funds Administrator
- and -
THE NATIONAL GRID COMPANY plc
as Grid Operator and Ancillary Services Provider
- and -
SCOTTISH POWER plc
and
ELECTRICITE DE FRANCE, SERVICE NATIONAL
as Externally Connected Parties
- and -
THE OTHER PARTIES
named herein
- and -
THE METER OPERATOR PARTIES
named herein
-------------------------------------------------------------
POOLING AND SETTLEMENT AGREEMENT
for the Electricity Industry in England
and Wales dated 30th March, 1990
(as amended as at 15th April, 1999)
-------------------------------------------------------------
<PAGE>
CONTENTS
Page
PART I: PRELIMINARY 3
1. Definitions and Interpretation 3
2. The Effective Date 72
3. Additional Parties 72
PART II: OBJECTS, REVIEW AND PRIORITY 77
4. Objects and Purpose of the Agreement 77
5. Transitional Arrangements and Reviews 77
6. Entrenched Provisions, Inconsistencies and Conflicts 85
PART III: POOL MEMBERSHIP AND GENERAL MEETINGS 94
7. Introduction 94
8. Pool Membership 95
9. General Meetings 103
10. Proceedings at General Meetings 107
11. Voting 109
12. Proxies 117
13. Matters Reserved to the General Meeting: Class Rights 119
PART IV: THE EXECUTIVE COMMITTEE 124
14. Establishment of the Executive Committee 124
15. Membership of the Executive Committee 124
16. Pool Chairman 133
17. Chief Executive, Secretariat and Secretary 137
18. Proceedings of the Executive Committee 139
19. Conduct of Executive Committee Meetings 141
<PAGE>
Page
20. Delegation 143
21. [Not used] 145
22. Voting 145
23. Committee Members' Responsibilities and Protections;
Pool Member Representation 148
24. Powers of the Executive Committee 151
PART V: LIMITATION OF LIABILITY 154
25. Limitation of Liability 154
PART VI: THE SETTLEMENT SYSTEM ADMINISTRATOR 156
26. Appointment 156
27. [Not used] 156
28. [Not used] 156
PART VII: THE SETTLEMENT SYSTEM ADMINISTRATOR'S
RESPONSIBILITIES 157
29. Responsibilities 157
30. [Not used] 158
31. [Not used] 158
32. [Not used] 158
33. [Not used] 158
34. Costs, Fees and Expenses 159
34A. Second Tier System Charges 159
PART VIII: THE SETTLEMENT SYSTEM AND COMPUTER
OPERATIONS 160
35. Development of the Settlement System 160
36. Change Management 162
<PAGE>
Page
37. Software 162
38. [Not used] 163
39. [Not used] 163
40. [Not used] 163
41. Notification of Defects by Pool Members 163
42. [Not used] 163
43. [Not used] 163
44. [Not used] 163
45. Escrow Arrangements 163
46. [Not used] 166
PART IX: THE POOL AUDITOR AND SCHEDULING AND
DESPATCH REVIEWS 167
47. The Pool Auditor and Scheduling and Despatch Reviews 167
48. Audit Instructions 169
PART X: THE GRID OPERATOR'S RESPONSIBILITIES 175
49. Responsibilities 175
50. Standard of Care 175
PART XI: ANCILLARY SERVICES AND THE ANCILLARY
SERVICES PROVIDER 179
51. Ancillary Services 179
51A Transmission Services 186
51B Energy Uplift and Transmission Losses Scheme 2 186
51C Obligatory Reactive Power Service 189
PART XII 190
[Not used] 190
<PAGE>
Page
PART XIII: RISK MANAGEMENT SCHEME 191
53. Application 191
54. Scheme Admission Conditions 192
55. Rights and Obligations of Pool Members 192
56. Review 193
PART XIV: FUEL SECURITY 195
57. [Not used] 195
58. Payment Instructions 195
59. Record Keeping and Payments 196
PART XV: STAGE 1 METERING 198
60. Stage 1 Metering 198
PART XVI: POOL CIVIL EMERGENCIES 215
61. Pool Civil Emergencies 215
PART XVII: TRADING SITE 226
62. Trading Site 226
PART XVIII: THE POOL FUNDS ADMINISTRATOR,
BILLING AND SETTLEMENT 227
63. The Pool Funds Administrator 227
64. Procedures Manual 231
65. Billing and Settlement 232
PART XIX: DEFAULT, TERM AND TERMINATION 233
66. Default 233
67. Term and Termination 238
<PAGE>
Page
PART XX: CONFIDENTIALITY 240
68. Confidentiality for NGC and its Subsidiaries 240
69. Confidentiality (other than for NGC, its Subsidiaries
and Pool Agents) 244
70. Confidentiality for Pool Agents 247
71. The Executive Committee and Confidentiality 247
71A. General Disclosure 248
71B. General Confidentiality Provisions 248
PART XXI: THE PARTICIPATION OF NGC 250
72. The Participation of NGC 250
73. [Not used] 250
PART XXII: MISCELLANEOUS 251
74. Force Majeure 251
75. Notices 252
76. Assignment 253
77. Counterparts 253
78. Waivers; Remedies Not Cumulative 253
79. Severance of Terms 254
80. Entire Agreement 254
81. Language 255
82. Restrictive Trade Practices Act 1976 255
83. Arbitration 255
84. Jurisdiction 257
85. Governing Law 257
<PAGE>
SCHEDULES
Page
1. The Founder Generators 258
2. The Founder Suppliers: 260
Part A: Public Electricity Suppliers 260
Part B: Second Tier Suppliers 262
Part C: Others 263
3. Form of Accession Agreement 264
4. Terms of Engagement of the Settlement System Administrator 266
Appendix to Schedule 4: The Services 313
Part A: Preliminary 313
Part B: The Services 319
Part C: New Requirements 325
Part D: Variation Mechanics 328
Part E: Ordering Services: General Provisions 331
Part F: Ordering Services: Specific Provisions 338
Part G: Charges for Services: General Principles 340
Part H: Charges for Services: Exceptional Items 348
Part I: Deferred Settlement Project Expenditure 352
Part J: Cost Recovery 354
Part K: Allocation of Charges 359
5. [Not used] 365
6. [Not used] 366
<PAGE>
Page
7. Form of Escrow Agreement 367
Schedule A: Details of the Pooling and
Settlement Arrangements 374
Schedule B: The Material 376
Schedule C: The Custodian's Fees 381
8. Performance Assurance Board 383
Part 1: Interpretation 383
Part 2: The Performance Assurance Board 383
Part 3: The Performance Assurance Administrator 388
Part 4: Limitation of Liability 388
Part 5: Disapplication Provisions 389
9. The Pool Rules 390
10. [Not used] 391
11. Billing and Settlement 392
Part 1: Preliminary 392
Part 2: Establishment of Systems 394
Part 3: Security Cover and Credit Monitoring 410
Part 4: Billing and Payment Procedures 417
Annex 1: Form of Advice Note 448
Annex 2: Form of Confirmation Notice 449
Annex 3: Part 1: Form of Settlement
Account Designation 450
Part 2: Form of Change of Settlement
Account 451
Annex 4: Form of Letter of Credit 452
<PAGE>
Page
12. Transitional Arrangements 453
13. Contributory Shares 460
14. Not used 465
15. The Pool Funds Administrator's Contract 466
Annex 1: PFA Budget for the 1998 PFA
Accounting Period 500
Annex 2: [Not used] 502
Annex 3: Pro-forma Statement of Costs and Fees 503
Annex 4: Existing Funds Transfer Software 507
Part 1: Beneficially Owned 507
Part 2: Licensed 508
Annex 4A: Existing Funds Transfer 1998 Software 511
Annex 5: Escrow Arrangements 515
16. Matters requiring Consent of the Settlement System
Administrator 517
17. Trading Sites 519
Part A: General 519
Part B: Procedures 519
Part C: Trading Site Applications 521
Part D: Additional Provisions 522
18. The Ancillary Services Accounting Procedure524
Annex: Part 1: ASP Budget for the First
Accounting Period 529
Part 2: Pro-forma Statement of Costs 530
Part 3: Pro-forma Statement of Charges 531
<PAGE>
Page
19. Objective and Scope of the Scheduling and Despatch Review 532
20. Accountable Interest 534
21. Meter Operators for Stage 1 536
Part 1: Preliminary 536
Part 2: Admission, Resignation and Removal 542
Part 3: Meter Operator's Responsibilities 554
Part 4: Rights and Responsibilities relating to the
Settlement System Administrator 560
Part 5: Codes of Practice and Dispensations 562
Part 6: Further Rights of Operators 566
Part 7: Failure to Comply and Disputes 569
Part 8: Limitation of Liability 571
Part 9: Access 573
Part 10: Communications Equipment 579
Part 11: Transitional Arrangements 583
Part 12: Incorporation of other provisions of
this Agreement 584
Part 13: Unmetered Supplies 585
Annex 1: Form of Meter Operator Party
Admission Application 586
Annex 2: Form of Meter Operator Party
Resignation Notice 588
Annex 3: Form of Meter Operator Party
Accession Agreement 590
Annex 4: [Not used] 593
Annex 5: Non-Exhaustive Diagrammatic
Representations of Metering Systems 594
<PAGE>
Page
22. 1998 Programme Funding and Cost Recovery 605
23. Scottish Settlements 623
24. Implementation of the 1998 Trading Arrangements 639
25. Accreditation 644
Part 1: Interpretation 644
Part 2: Accreditation and the Performance Assurance
Board 644
Part 3: The Certification Agent 646
Part 4: The Certification Process and Accreditation
Process 648
Part 5: Accredited Person's Responsibilities 652
Part 6: Derogations 654
Part 7: Limitation of Liability 655
Part 8: Disapplication Provisions 655
26. Supplier Responsibilities 656
Appendix: Menu of Supplier Charges and Performance Levels 674
Part 1: General 674
Part 2: Performance Levels 675
Part 3: Charges 683
Part 4: Timing of Commencement of Charges 690
Part 5: Review 691
27. PES Responsibilities 692
28. Stage 2 Metering 694
Part 1: Introduction 694
Part 2: Metering and Communications Equipment 695
<PAGE>
Page
Part 3: Installation and Maintenance of
Metering Equipment 697
Part 4: Codes of Practice and Dispensations 701
Part 5: Disputes 703
Part 6: Meter Inspections and Readings 705
Part 7: Access 705
29. Unmetered Supplies 710
30. Pool Agents 714
Part 1: General 714
Part 2: Initial Settlement and Reconciliation Agent 715
Part 3: Profile Administrator 718
Part 4: Teleswitch Agent 721
31. Collection of Charges 725
Part 1: General 725
Part 2: ERS Charges 725
Part 3: Collection and Payment of Supplier Charges 731
Part 4: Recovery of Operational Costs 735
Part 5: Miscellaneous Settlement Charges 743
32. Master Registration Agreement 746
Annex: Pool Requirements for the MRA 750
33. Poolit Limited 751
Annex 1: Completion 764
Annex 2: Limitations on Dealings 766
Annex 3: Form of New Articles 768
<PAGE>
34. Poolserco Limited 778
Annex 1: Completion 790
Annex 2: Limitations on Dealings 792
Annex 3: Form of New Articles 794
Annex 4: Form of Poolserco Business Plan 805
35. GOAL 806
Appendix 844
Appendix 2: Principles applying to SAV Licences 845
Appendix 3: Form of GOAL Escrow Agreement 852
Appendix 4: Principles applying to Type 1
Support and Maintenance Agreement 863
Appendix 5: Form of Pool Member
Confidentiality Agreement 865
Slaughter and May
<PAGE>
THIS AGREEMENT is made on 30th March, 1990
BETWEEN:-
(1) THE PERSONS whose names, registered numbers and registered or
principal offices are set out in Schedule 1;
(2) THE PERSONS whose names, registered numbers and registered or
principal offices are set out in Parts A and B of Schedule 2;
(3) ENERGY SETTLEMENTS AND INFORMATION SERVICES LIMITED (registered number
2444282) whose registered office is situate at Fairham House, Green
Lane, Clifton, Nottingham NG11 9LN as Settlement System Administrator;
(4) ENERGY POOL FUNDS ADMINISTRATION LIMITED (registered number 2444187)
whose registered office is situate at 185 Park Street, London SE1 9DY
as Pool Funds Administrator;
(5) THE NATIONAL GRID COMPANY plc (registered number 2366977) whose
registered office is situate at National Grid House, Kirby Corner
Road, Coventry CV4 8JY as Grid Operator and Ancillary Services
Provider;
(6) SCOTTISH POWER plc (registered number 117120) whose principal office
is situate at 1 Atlantic Quay, Glasgow G2 8SP, Scotland as an
Externally Interconnected Party;
(7) ELECTRICITE DE FRANCE, SERVICE NATIONAL whose principal office is
situate at 3 Rue de Messine, 75008 Paris, France as an Externally
Interconnected Party; and
(8) THE OTHER PARTIES whose names, registered numbers and registered or
principal offices are set out in Part C of Schedule 2.
WHEREAS:-
(A) it is a Condition of the NGC Transmission Licence that, subject to its
removal or resignation as Settlement System Administrator hereunder,
NGC shall implement, maintain and operate a settlement system which
will provide inter alia for the calculation of any payments which
become due to or owing by Authorised Electricity Operators in respect
of sales and purchases of electricity under the terms of this
Agreement and such Licence further provides that NGC may comply with
its said obligations by participation in this Agreement in the manner
provided in such Licence;
(B) it is a Condition of the Generation Licence granted to each of the
Founder Generators in England and Wales requiring such a Licence that
the licensee shall be a party to and a pool member under, and shall
comply with the provisions of, this Agreement insofar as the same
shall apply to it in its capacity as a party to this Agreement and/or
as a pool member being a generator of electricity as the case may be;
<PAGE>
(C) it is a Condition of the PES Licence granted to each of the Founder
Suppliers whose names are set out in Part A of Schedule 2 that the
licensee shall be a pool member under, and comply with the provisions
of, this Agreement;
(D) it is a Condition of the Second Tier Supply Licence granted to each of
the Founder Suppliers whose names are set out in Part B of Schedule 2
that the licensee shall be a pool member under, and comply with the
provisions of, this Agreement insofar as the same shall apply to it in
its capacity as a private electricity supplier (as that expression is
defined in section 17(1) of the Act);
(E) this Agreement sets out, inter alia, the rules and procedures for the
operation of an electricity trading pool and for the operation of a
settlement system (including the calculation of payments due) and in
compliance with the conditions of their respective Licences those
parties subject to such conditions have agreed to become parties
hereto with the intent that this Agreement shall be and shall remain
approved by the Director;
(F) in addition to the rules and procedures set out herein, payments to
the Grid Operator connected with the Transmission Services Activity
(as that term is defined in the Transmission Licence) are dealt with
pursuant to specific arrangements between the Grid Operator and
certain parties to this Agreement; and
(G) in relation to this Agreement each of the Secretary of State and the
Director enjoys the rights, powers and authorities conferred upon him
inter alia by the Act and the Licences.
NOW IT IS HEREBY AGREED as set out on the following pages of this Agreement.
<PAGE>
PART I
PRELIMINARY
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions: In this Agreement (including the Recitals and the
Schedules), except where the context otherwise requires:-
"100kW Premises" means:-
(i) any premises where the average of the maximum monthly
electrical demands in the three months of highest maximum
demand in any period of twelve consecutive months commencing
on or after 1st January, 1993 exceeds 100kW; or
(ii) any premises where the Profile of a Customer's electrical
demand implies an average of the maximum monthly electrical
demands in the three months of highest maximum demand in any
period of twelve consecutive months commencing on or after
1st January, 1993 exceeding 100kW; or
(iii) any premises where the electrical supply to a Stage 1
Customer is measured by one or more Stage 1 Metering
Systems; or
(iv) an Unmetered Supply where the relevant PES has agreed that
the maximum demand is above 100kW; or
(v) any premises which are for the time being declared by a
Supplier in accordance with the relevant Agreed Procedure to
have a maximum demand in excess of 100kW,
in each case for so long as the premises or, as the case may be, the
supply continues to fulfil one or more of the conditions set out in
paragraphs (i) to (v) above;
"100kW Shortfall Amount" means that part of the Total Second Tier
System Charges (as that term was defined in this Agreement immediately
prior to this definition first taking effect) in respect of the
Accounting Period beginning on 1st April, 1997 which is not recovered
pursuant to Clause 34A;
"100kW Shortfall Charge" means the amount determined from time to time
by the Executive Committee for the purposes of Section 2.3 of Schedule
31;
"100kW Shortfall Financing Costs" means, in relation to any Pool
Member, the amount of costs to be incurred and recovered by that Pool
Member in respect of its financing of the 100kW Shortfall Amount, such
amount being equal to interest upon that amount at the Base Rate from
time to time compounded, with monthly rests, accruing from the date of
<PAGE>
payment by the relevant Pool Member of such amount, until the date of
reimbursement in accordance with Section 2.12 of Schedule 31;
"100kW Shortfall Recovery Period" means the two year period ending on
31st March, 2000;
"1998 Contractor" means for the time being and from time to time a
contractor employed or retained by or on behalf of or on the
instructions of Pool Members to undertake work or to provide services
in relation to the design, development, testing, implementation,
operation or maintenance of the 1998 Systems (and includes any
sub-contractor of such a contractor);
"1998 Deliverables" means the work product of a 1998 Contractor under
its contract or arrangement with Pool Members (or their agent) in
relation to the 1998 Programme;
"1998 Documentation" means the documentation prepared for the benefit
of Pool Members in connection with the 1998 Programme relating to the
design, development, testing, implementation, operation and/or
maintenance of the Relevant 1998 Systems and for the time being and
from time to time listed or referred to in Part B of Scots Subsidiary
Document 1;
"1998 Operational Date" means the date determined by the Pool Members
in general meeting pursuant to Section 2 of Schedule 24;
"1998 Programme" has the meaning given to that term in Schedule 22;
"1998 Systems" means the systems and processes (including the ISRA
System) supporting the central electricity trading and settlement
system in England and Wales which are to be developed for the benefit
of Pool Members pursuant to the 1998 Programme;
"Accession Agreement" means an accession agreement in or substantially
in the form set out in Schedule 3 or in such other form (to which the
Settlement System Administrator has no reasonable objection) as the
Executive Committee may for the time being and from time to time
approve;
"Accountable Interest" has the meaning given to that term in Schedule
20;
"Accounting Period" means each successive period of 12 months
beginning on 1st April in each year or of such other length and/or
beginning on such other date as may be determined in accordance with
the terms hereof;
"Accreditation" means, subject to Section 4.7 of Schedule 25, written
confirmation by the Performance Assurance Board that an Applicant has,
in the opinion of the Performance Assurance Board, satisfied the
relevant Accreditation Requirements, and "Accredited" shall be
construed accordingly;
<PAGE>
"Accreditation Process" means the process set out in Schedule 25 and
Agreed Procedure AP531 whereby an Applicant is assessed to determine
whether it satisfies the Accreditation Requirements;
"Accreditation Requirements" means, in relation to an Applicant, the
requirements which that Applicant is required to satisfy in order to
perform the specific function or functions for which it is applying to
be Accredited (being one or more of the functions associated with the
categories referred to in sub-paragraphs (a) to (k) (inclusive) of
Section 4.1.1 of Schedule 25), as determined for the time being and
from time to time by Pool Members in general meeting;
"Accredited Person" means:-
(i) a person who is Accredited;
(ii) for the purposes of Section 4.7 of Schedule 25, a person
whose Accreditation has been removed by the Performance
Assurance Board, or whose Accreditation the Performance
Assurance Board has resolved to remove, pursuant to Section
4.3 of that Schedule; and
(iii) where the context so admits, an Applicant;
"Act" means the Electricity Act 1989;
"Action Task Force" means those persons charged by Pool Members with
the further development and review of the 1998 trading arrangements
and under the control of the Chief Executive's Office;
"Active Energy" means the electrical energy produced, flowing or
supplied by an electric circuit during a time interval, and being the
integral with respect to time of the instantaneous power, measured in
units of watt-hours or standard multiples thereof, that is:-
1000Wh = 1kWh
1000kWh = 1MWh
1000MWh = 1GWh
1000GWh = 1TWh;
"Active Power" means the product of voltage and the in-phase component
of alternating current measured in units of watts and standard
multiples thereof, that is:-
1000 Watts = 1kW
1000kW = 1MW
1000MW = 1GW
1000GW = 1TW;
<PAGE>
"Additional Evidence" has the meaning given to that term in Clause
3.3.2(b);
"Ad-Hoc Reconciliation Run" has the meaning given to that term in
Schedule 9;
"Admission Application" means an application in or substantially in
such form as the Executive Committee may for the time being and from
time to time approve;
"Admission Date" has the meaning given to that term in Clause 8.2.3;
"Advice Note" means a statement substantially in the form and
containing the information set out in Annex 1 to Schedule 11 (or in
such other form or containing such further information as may from
time to time be specified by the Executive Committee) issued in the
name of the Pool Funds Administrator to a Pool Member, the Ancillary
Services Provider or the Grid Operator;
"Agency System" means, in relation to a person, the particular systems
and procedures of that person (or for which that person is
responsible) relevant to the specific function for which it is, or is
applying to be, Accredited;
"Aggregate Demand" means, in respect of a Supplier, the aggregate of:-
(i) the Consumer Metered Demand attributable to that Supplier;
and
(ii) the sum of the Supplier Deemed Takes attributable to that
Supplier for all GSP Groups,
in each case in relation to a Settlement Period or Settlement Periods;
"Agreed Procedure" means each of the agreed procedures specified in
the Agreed Procedures Index and which is agreed to be treated as an
Agreed Procedure for the purposes of this Agreement by the Executive
Committee and:-
(i) where the agreed procedure affects or relates to Stage 1
Settlement or the rights and obligations of the Settlement
System Administrator, the Settlement System Administrator;
and/or
(ii) where the agreed procedure imposes obligations on the Grid
Operator, the Grid Operator; and/or
(iii) where such agreed procedure concerns the duties and
responsibilities of the Pool Funds Administrator, the Pool
Funds Administrator,
as the same may be amended or substituted by the Executive Committee
provided that:-
(a) where such amendment or substitution affects or relates to
Stage 1 Settlement or the rights and obligations of the
Settlement System Administrator, the
<PAGE>
Settlement System Administrator shall have given its prior
written consent thereto; and/or
(b) where such amendment or substitution imposes obligations on
the Grid Operator, the Grid Operator shall have given its
prior written consent thereto; and/or
(c) where such amendment or substitution concerns the duties or
responsibilities of the Pool Funds Administrator, the Pool
Funds Administrator shall have given its prior written
consent thereto,
in any such case such consent not to be unreasonably withheld or
delayed and provided further that the reference to the Grid Operator
in this definition shall be construed as if it were a reference to
such term prior to the creation of Meter Operator Parties and the
associated amendments to this Agreement, but this shall be without
limitation to any right to agree any adoption, amendment or
substitution under this definition;
"Agreed Procedures Index" means an index of agreed procedures agreed
to be treated as Agreed Procedures in accordance with and for the
purposes of this Agreement;
"Agreement" means this Agreement (including the Schedules), as
amended, varied, supplemented, modified or suspended from time to time
in accordance with the terms hereof;
"Allocated Generating Unit" has the meaning given to that term in
Clause 11.2.2(a);
"Allocation Schedule" means a schedule prepared on the basis of an
algorithm approved by the Executive Committee which splits the Export
Active Energy generated by a Non-Pooled Generator for each Settlement
Period between two Suppliers such that the sum of the allocations to
the Suppliers is equal to the metered output from the Non-Pooled
Generator;
"Amount in Default" has the meaning given to that term in Section 21.1
of Schedule 11;
"Analysis" has the meaning given to that term in Scots Subsidiary
Document 3;
"Ancillary Service" means a System Ancillary Service and/or a
Commercial Ancillary Service, as the case may be;
"Ancillary Services Agreement" means an agreement between a User and
the Ancillary Services Provider for the payment by the Ancillary
Services Provider to that User in respect of the provision by such
User of Ancillary Services;
"Ancillary Services Business" means the business relating to Ancillary
Services carried on by the Ancillary Services Provider;
<PAGE>
"Ancillary Services Provider" means the person who for the time being
and from time to time is required by the terms of a Transmission
Licence to contract for Ancillary Services;
"Annual Conference" has the meaning given to that term in Clause
9.6.1;
"Annualised Advance" has the meaning given to that term in Schedule 9;
"Apparatus" means all equipment in which electrical conductors are
used or supported or of which they may form a part;
"Applicant" means a person who falls within one or more of the
categories referred to in sub-paragraphs (a) to (k) (inclusive) of
Section 4.1.1 of Schedule 25 and who, in accordance with that
Schedule, applies for one or more of its Agency Systems to be
Certified and/or for itself to be Accredited and, where the context so
admits, shall include a person applying for re-Certification of any of
its Agency Systems in accordance with that Schedule;
"Applicable Settlement Day" has the meaning given to that term in
Sections 4.6.2 and 5.5.2 of the Menu of Supplier Charges;
"Applicable Settlement Period" has the meaning given to that term in
Sections 4.6.1 and 5.5.1 of the Menu of Supplier Charges;
"Approved Credit Rating" means, in relation to a Pool Member or the
Grid Operator, a short-term debt rating of not less than BBB- by
Standard & Poor's Corporation or Duff & Phelps Credit Rating Co. or a
rating of not less than Baa3 by Moody's Investors Service, Inc. or an
equivalent rating from any other reputable credit rating agency
approved by the Executive Committee;
"Approved Recommendation" has the meaning given to that term in Clause
5.8;
"ASP Accounting Procedure" means the accounting procedure set out in
Schedule 18, as amended, varied or substituted from time to time in
accordance with the terms hereof;
"ASP Budget" means any budget prepared by the Ancillary Services
Provider pursuant to Section 2.1 of Schedule 18;
"Audit Adjustments" means the aggregate value of all changes in the
Cost Base required to be taken into account by the Ancillary Services
Provider during any Accounting Period in order to give effect to the
conclusions resulting from an audit commissioned pursuant to Clause
51.5;
"Authorised Area" means:-
(i) in respect of a PES located in England and Wales, the area
from time to time comprised in Schedule 1 to its PES
Licence; and
<PAGE>
(ii) in respect of a PES located in Scotland, the authorised
supply area from time to time comprised in paragraph 1 of
Schedule 2 to its PES Licence;
"Authorised Electricity Operator" means any person who is authorised
under the Act to generate, transmit or supply electricity and shall
include any person transferring electricity to or from England and
Wales across an interconnector (as such term is used in the NGC
Transmission Licence), other than the Grid Operator in its capacity as
operator of the NGC Transmission System;
"Authorised Persons" has the meaning given to that term in Section
3.3.1 of Schedule 11;
"Authorised Recipient" means any Business Person to whom Protected
Information has been divulged in accordance with Clause 68 provided
that such person:-
(i) requires access to such Protected Information for the proper
performance of his duties as a Business Person in the course
of Permitted Activities; and
(ii) has been informed of the duties of NGC and its subsidiaries
in relation to (inter alia) Protected Information under
Clause 68;
"Availability Date" means, in respect of any Pool Member, the first
Month End next falling after the first Calculation Date as at which
the final run of Stage 1 Settlement and the Stage 2 Initial Settlement
Run are available in respect of all Settlement Periods in the month in
which that Pool Member was admitted as a Pool Member;
"Availability Declaration" has the meaning given to that term in
Schedule 9;
"Average Fraction of Yearly Consumption" has the meaning given to that
term in Schedule 9;
"Banking System" means the banking system described in Section 4 of
Schedule 11 for the transfer of funds from Pool Debtors to Pool
Creditors in accordance with Schedule 11, as amended or replaced from
time to time in accordance with the provisions of this Agreement;
"Base Rate" means the rate of interest published from time to time by
the Pool Banker as its base rate;
"Billing System" means the systems and procedures described in
Sections 18 and 22 of Schedule 11 for the issuing of Advice Notes and
Confirmation Notices by the Pool Funds Administrator to Pool Members,
the Ancillary Services Provider and the Grid Operator, as amended or
replaced from time to time in accordance with the provisions of this
Agreement;
"Black Start Capability" has the meaning given to that term in the
Grid Code;
<PAGE>
"British Grid Systems Agreement" means the agreement of that title
made or to be made between NGC, Scottish Hydro-Electric PLC and
Scottish Power plc inter alia regulating the relationship between
their respective grid systems;
"Bulk Supply Point" means any or (as the context may require) a
particular point of supply where Metering Equipment for the purposes
of the Bulk Supply Tariff is or would have been located and, in the
event of any dispute as to location, as determined in accordance with
Clause 83;
"Bulk Supply Tariff" means the basis of payment for Active Energy as
levied by the Generating Board prior to the Effective Date;
"Business Person" means any person who is a Main Business Person or a
Corporate Functions Person, and "Business Personnel" shall be
construed accordingly;
"Calculation Date" means the seventeenth Business Day in any month;
"Calculation Period" means, in relation to any month:-
(i) that month; or
(ii) if the final run of Stage 1 Settlement and the Stage 2
Initial Settlement Run in respect of all Settlement Periods
in that month are not available as at the close of business
on the Business Day immediately preceding the relevant
Calculation Date, the then most recent month in respect of
which such data is then available in relation to all
Settlement Periods in that then most recent month;
"Capital Expenditure" means, in respect of any Accounting Period,
expenditure by the Ancillary Services Provider on fixed assets
required for the purposes of the Ancillary Services Business including
assets acquired on lease which are required by generally accepted
accounting principles to be capitalised;
"Central Despatch" means the process of Scheduling and issuing direct
instructions by the Grid Operator referred to in paragraph 1 of
Condition 7 of the NGC Transmission Licence and "Centrally Despatched"
shall be construed accordingly;
"Certification" means written confirmation by the Performance
Assurance Board that a particular Agency System has, in the opinion of
the Performance Assurance Board, satisfied the Certification
Requirements and, where the context so admits, shall include
re-Certification of Agency Systems, and "Certify" and "Certified"
shall be construed accordingly;
"Certification Agent" means the person for the time being and from
time to time appointed pursuant to Part 3 of Schedule 25 as the
Certification Agent for the purposes of that Schedule;
<PAGE>
"Certification Documentation" has the meaning given to that term in
Section 3.3.1 of Schedule 25;
"Certification Process" means the process set out in Schedule 25 and
Agreed Procedure AP531 whereby a particular Agency System is assessed
to determine whether it satisfies the Certification Requirements;
"Certification Requirements" means, in relation to any Agency System
of a person, the requirements which such Agency System is required to
satisfy in order to perform the specific function or functions for
which such person has had, or is applying to have, such Agency System
Certified (being one or more of the functions associated with the
categories referred to in sub-paragraphs (a) to (k) (inclusive) of
Section 4.1.1 of Schedule 25), as determined for the time being and
from time to time by Pool Members in general meeting;
"Change Management Policies" means the policies, procedures and
guidelines for the co-ordination by the Executive Committee of the
implementation of changes to the Settlement System;
"CHAPS" means the Clearing House Automated Payments System;
"Chargeable 100kW Premises" has the meaning given to that term in
Section 2.5 of Schedule 31;
"Chargeable Metering Systems" has the meaning given to that term in
Section 7.5.3 of Schedule 31;
"Charging Procedure" means the charging procedure set out in the
Appendix to Schedule 4, as amended, varied or substituted from time to
time in accordance with the terms hereof;
"Chief Executive" has the meaning given to that term in Clause 17.1.1;
"Chief Executive's Office" means the Chief Executive, the Contract
Manager and the personnel referred to in Clause 17.2.1;
"Civil Emergency Pool Credit Facility" means a credit facility to be
arranged by and for the use of Suppliers upon terms and conditions set
out or to be set out in Schedule 11;
"Class Issue" has the meaning given to that term in Clause 5.12.1;
<PAGE>
"Code of Practice" means each of the codes of practice in relation to
any Metering Equipment or any part or class thereof which are
specified in the Synopsis of Metering Codes, as the same may be
amended or substituted from time to time by the Executive Committee
with the agreement or approval of:-
(i) in the case of any Code of Practice in respect of Metering
Equipment in respect of which it is the Operator, the Grid
Operator; and
(ii) in the case of any Code of Practice in respect of Metering
Equipment relating to Reactive Energy, the Ancillary
Services Provider; and
(iii) in the case of any change to any Code of Practice prior to
1st April, 1998 in respect of standards of accuracy of
Metering Equipment required for Second Tier Customers up to
(and including) 100kW or Non-Pooled Generators, the
Suppliers in separate general meeting,
provided that, prior to the date on which the transitional
arrangements regarding metering of Reactive Power at Grid Supply
Points are brought into effect (the "RP Date") in the case of a Code
of Practice or part thereof which relates to Reactive Power metering
at Grid Entry Points, such Code or part thereof may only be amended or
substituted by agreement between the Ancillary Services Provider and
all Committee Members,
and any other code of practice which is agreed from time to time to be
treated as a Code of Practice for the purposes of this Agreement by
the Executive Committee (or, where appropriate, prior to the RP Date
all Committee Members) and, where appropriate, the Grid Operator
and/or the Ancillary Services Provider and/or the Suppliers;
"Collection Account" means an account denominated in sterling
maintained by the Pool Funds Administrator at a branch of a Settlement
Bank, and designated from time to time as a Collection Account in
accordance with Section 4 of Schedule 11;
"Combined Members" means the members of the Chief Executive's Office,
the Executive Committee, the Committee Members and the Other Pool
Members;
"Commercial Ancillary Services" means Ancillary Services, other than
System Ancillary Services, utilised by the Grid Operator in operating
the Total System if a User (or other person) has agreed to provide
them under an Ancillary Services Agreement or under a Supplemental
Agreement with payment being dealt with under an Ancillary Services
Agreement or, in the case of Externally Interconnected Parties or
External Pool Members, under any other agreement (and, in the case of
Externally Interconnected Parties and External Pool Members, includes
ancillary services equivalent to or similar to System Ancillary
Services);
<PAGE>
"Commissioned" means:-
(i) in relation to any Plant or Apparatus connected to the NGC
Transmission System or to any External Interconnection or
any Distribution System, commissioned for the purposes of
the Connection Agreement relating to such Plant or
Apparatus; or
(ii) in relation to any Metering System or Metering Equipment,
commissioned in accordance with the relevant Code of
Practice;
"Committee Member" means a member of the Executive Committee appointed
in accordance with the provisions of Part IV;
"Communications Equipment" means, at or relating to any Site, in
respect of any Metering Equipment:-
(i) the terminating equipment (which may include a modem)
necessary to convert data from such Metering Equipment into
a state for transmission to the Settlement System
Administrator for the purposes of Settlement; and
(ii) the exchange link which is dedicated to that terminating
equipment; but
(iii) it shall not include an Outstation;
"Competent Authority" means the Secretary of State, the Director and
any local or national agency, authority, department, inspectorate,
minister, ministry, official or public or statutory person (whether
autonomous or not) of, or of the government of, the United Kingdom or
the European Union;
"Computer Systems" means all and any computer systems used and
required in connection with the operation of the Settlement System;
"Confidential Information" means, in relation to a Restricted Party,
all data and other information supplied to the Restricted Party or any
nominee of the Restricted Party by another Party under or pursuant to
the provisions of this Agreement and additionally, where the
Restricted Party is a Public Electricity Supplier, any data and other
information which is held in respect of a customer and which was
previously acquired by that Public Electricity Supplier through its
Distribution Business. Confidential Information shall include copies
of the load modules referred to in Service Line 11 (Listings and Load
Modules) and the Fuel Security Ledger of a Generator;
"Confirmation Notice" means a statement substantially in the form and
containing the information set out in Annex 2 to Schedule 11 (or in
such other form or containing such further information as may from
time to time be specified by the Executive Committee) issued in the
name of the Pool Funds Administrator to a Pool Member, the Ancillary
Services Provider or the Grid Operator;
<PAGE>
"Connection Agreements" means the Master Connection and Use of System
Agreement, the Supplemental Agreements, the Supplier's Connection
Agreements, any Unmetered Supply connection agreement, the Supplier's
Use of System Agreements and the Interconnection Agreements, and
"Connection Agreement" means any or (as the context may require) a
particular one of them;
"Connection Point" means a Grid Supply Point or Grid Entry Point, as
the case may be;
"consideration period" has the meaning given to that term in Section
3.3.3 of Schedule 21;
"Constituent" has the meaning given to that term in Clause 23.6.5;
"Consumer Metered Demand" has the meaning given to that term in
Schedule 9;
"Consumption" has the meaning given to that term in Schedule 9;
"Consumption Component Class" has the meaning given to that term in
Schedule 9;
"Contiguous Assets" has the meaning given to that term in Section 4 of
Part B of Schedule 17;
"Contract Management Rules" has the meaning given to that term in
Section 1.1 of Schedule 4;
"Contract Manager" has the meaning given to that term in Section 1.1
of Schedule 4;
"Contracting Party" has the meaning given to that term in Clause 83.3;
"Contributory Share" means, in relation to any Pool Member, the
Contributory Share for the time being and from time to time of such
Pool Member calculated in accordance with Schedule 13;
"Control" has the meaning set out in section 840 of the Income and
Corporation Taxes Act 1988 and "Controlled" shall be construed
accordingly;
"Corporate Functions Person" means any person who:-
(i) is a director of NGC; or
(ii) is an employee of NGC or any of its subsidiaries carrying
out any administrative, finance or other corporate services
of any kind which in part relate to the Main Business; or
(iii) is engaged as an agent of, or an adviser to or performs work
in relation to, services for the Main Business;
<PAGE>
"Cost Base" means, in respect of any Accounting Period, Total
Operating Costs for such period less Depreciation during such period;
"Credit Facility" means the credit facility in a principal amount of
up to (pound)20,000,000 provided to the Pool Funds Administrator by
Barclays Bank PLC (acting through its branch at 54 Lombard Street,
London EC3 9EX) with effect from 1st January, 1993 as from time to
time extended, renewed or modified and any other facility provided to
the Pool Funds Administrator by Barclays Bank PLC or any other bank
(approved by the Executive Committee) whether in substitution for or
in addition to the same in any such case on terms approved by the
Executive Committee;
"Credit Facility Contribution" means a sum equal to 5 per cent. of the
fees (and any additional amounts payable under the terms of the Credit
Facility which are not the responsibility of any particular Providing
Member or the Grid Operator) charged under the Credit Facility to the
Pool Funds Administrator;
"Custodian" has the meaning given to that term in Clause 45.1;
"Customer" means a Stage 1 Customer or, as the case may be, a Stage 2
Customer;
"Data Aggregator" means a person appointed by a Supplier in accordance
with Schedule 26 to carry out the aggregation of metering data
received from Data Collectors and to forward such aggregated data to
the Initial Settlement and Reconciliation Agent;
"Data Catalogue" means the document of that title prepared or, as the
case may be, approved by the Executive Committee, as the same may be
amended or substituted from time to time by the Executive Committee;
"Data Collector" means a person appointed by a Supplier in accordance
with Schedule 26 to retrieve, validate and process metering data in
relation to Stage 2 Metering Equipment;
"Data Interfaces" means the document of that title prepared by the
Executive Committee, as the same may be amended or substituted from
time to time by the Executive Committee;
"Data Transfer Service Agreement" means the agreement for the
provision of a data transfer service dated 30th July, 1997 and made
between the Service Controller (as therein defined) and users of the
Data Transfer Service (as therein defined);
"Datum Document" means the following documents:-
(i) The Datum Document for the Co-ordination of the Core
Schedules of Supergoal II (Issue No. 2);
<PAGE>
(ii) The Datum Document for the INPUT Sub-System of the Core
Algorithm of Supergoal II (Issue No. 3);
(iii) The Datum Document for the BOUND Sub-System of the Core
Algorithm of Supergoal II (Issue No. 4);
(iv) The Datum Document for the UCSCH Sub-System of the Core
Algorithm of Supergoal II (Issue No. 3);
(v) The Datum Document for the ALTCOM Sub-System of the Core
Algorithm of Supergoal II (Issue No. 2);
(vi) The Datum Document for the EVALOS (main) Sub-System of the
Core Algorithm of Supergoal II (Issue No. 2);
(vii) The Datum Document for the EVALOS (LP loading and unloading)
Sub-System of the Core Algorithm of Supergoal II (Issue No.
2);
(viii) The Datum Document for the OUTPUT Sub-System of the Core
Algorithm of Supergoal II (Issue No. 3); and
(ix) The Goal Replacement Glossary for Supergoal II (Issue No. 2)
which describe the functionality of the core algorithm software for
Settlement Goal as amended from time to time;
"Dedicated Assets" has the meaning given to that term in Section 3 of
Part B of Schedule 17;
"deemed Operator" has the meaning given to that term in Clause 60.4.5
or (as the case may be) 60.4.6;
"De-energisation" means the movement of any isolator, breaker or
switch or the removal of any fuse whereby no electricity can flow to
or from the relevant User System through the User's Plant or Apparatus
connected to such User System and, in relation to any External Pool
Member, the termination of such External Pool Member's rights to use
any relevant External Interconnection and "De-energised" shall be
construed accordingly;
"Default Calling Creditor" means any Pool Creditor, the Settlement
System Administrator and the Pool Funds Administrator;
<PAGE>
"Default Interest Rate" means:-
(i) a rate per annum determined by the Pool Funds Administrator
to be equal to the aggregate of:-
(a) 4 per cent. per annum; and
(b) the Base Rate; or
(ii) such other rate as the Executive Committee may from time to
time determine;
"Defaulting Pool Member" has the meaning given to that term in Clause
66.3.1;
"defective Metering Equipment" has the meaning given to that term in
Clause 60.4.11(ii)(a);
"Defendant Contracting Party" has the meaning given to that term in
Clause 83.3;
"Depreciation" means, in respect of any Accounting Period, the
aggregate value of all depreciation on assets owned or employed by the
Ancillary Services Provider in the Ancillary Services Business, such
assets being depreciated in accordance with the accounting policies of
the Ancillary Services Provider for such period as stated in the
audited accounts of the Ancillary Services Provider for such period
and treated as depreciation in accordance with the terms of this
Agreement;
"Derogated Provision" has the meaning given to that term in Part 6 of
Schedule 25;
"Designated Premises" has the meaning given to that term in the PES
and Second Tier Supply Licences;
"Despatch" means the issue by the Grid Operator of instructions for
Generating Plant and/or Generation Trading Blocks to achieve specific
Active Power (and, in relation to Generating Plant, Reactive Power or
target voltage) levels within their Generation Scheduling and Despatch
Parameters or Generation Trading Block Scheduling and Despatch
Parameters, as the case may be, and by stated times;
"Developed Application Software" has the meaning given to that term in
Schedule 4;
"Developed Material" has the meaning given to that term in Section
4.5(B) of Schedule 23;
"Development Policies" means the Stage 1 Development Policies or, as
the case may be, the Stage 2 Development Policies;
"Directive" includes any present or future directive, requirement,
instruction, direction or rule of any Competent Authority (but only,
if not having the force of law, if compliance
<PAGE>
with the Directive is in accordance with the general practice of
persons to whom the Directive is addressed) and includes any
modification, extension or replacement thereof then in force;
"Director" means the Director General of Electricity Supply appointed
for the time being pursuant to section 1 of the Act;
"Disclose" means disclose, reveal, report, publish or transfer;
"Dispute Final Reconciliation Run" has the meaning given to that term
in Schedule 9;
"Dispute Final Run" has the meaning given to that term in Schedule 9;
"Dissatisfied Accredited Person" has the meaning given to that term in
Section 4.7.1 of Schedule 25;
"Dissentient Pool Member" has the meaning given to that term in Clause
13.5;
"Distribution Business", in respect of a Public Electricity Supplier,
has the meaning given to that term in that Public Electricity
Supplier's PES Licence;
"Distribution Code" means the Distribution Code required to be drawn
up by each Public Electricity Supplier and approved by the Director,
as from time to time revised with the approval of the Director;
"Distribution System" means the system consisting (wholly or mainly)
of electric lines owned or operated by a Public Electricity Supplier
and used for the distribution of electricity from Grid Supply Points
or Generating Units or other entry points to the point of delivery to
Customers or other Users and includes any Remote Transmission Assets
(as defined in the Grid Code) operated by such Public Electricity
Supplier and any Plant and Apparatus and meters owned or operated by
such Public Electricity Supplier in connection with the distribution
of electricity, but does not include any part of the NGC Transmission
System;
"EAC/AA System" has the meaning given to that term in Schedule 22;
"EdF Documents" means any agreement for the time being and from time
to time made between NGC and Electricite de France, Service National
relating to the use or operation of the relevant External
Interconnection;
"Effective Date" means 2400 hours on 30th March, 1990;
"effective registration" means, in relation to a Stage 2 Metering
System, that a Supplier has submitted a valid application for
registration and has become responsible for the supply of electricity
to which that Metering System relates, in each case in accordance with
the requirements of the Master Registration Agreement and references
to a person
<PAGE>
being "effectively registered" and to a registration taking "effect"
shall be construed accordingly;
"Efficiencies" means, in respect of any Accounting Period, the amount
(if any) by which the Cost Base in such Accounting Period is less than
the Cost Base in the immediately preceding Accounting Period (the
"First Period") after adjustments on a pound for pound basis to any
difference between such two Cost Bases to offset movements from the
Cost Base in the First Period due to the Rate of Inflation, Audit
Adjustments and any other matters beyond the control of the Ancillary
Services Provider and changes in the accounting principles or
practices of the Ancillary Services Provider made during the
Accounting Period in question;
"electricity" means Active Energy and Reactive Energy;
"Electricity Arbitration Association" means the unincorporated
members' club of that title formed inter alia to promote the efficient
and economic operation of the procedure for the resolution of disputes
within the electricity supply industry by means of arbitration or
otherwise in accordance with its arbitration rules;
"Embedded" means having a direct connection to a Distribution System
or the System of any other User to which Customers and/or Power
Stations are connected, such connection being either a direct
connection or a connection via a busbar of another User or of NGC (but
with no other connection to the NGC Transmission System);
"end consumer" has the meaning given to that term in Clause 8.5.2;
"Energy Uplift and Transmission Losses Scheme" has the meaning given
to that term in Clause 51B.2;
"Entry Processes" means the Supplier Entry Process and the PRS Entry
Process;
"EPFAL" means Energy Pool Funds Administration Limited (registered
number 2444187) whose registered office is situate at 185 Park Street,
London SE1 9DY;
"Equipment Owner" means, in relation to a Metering System, the person
which is the owner of that Metering System;
"Equivalent Meter" means, in relation to an Unmetered Supply, the
hardware and software that is used to calculate the half hourly
consumption of electricity associated with such Unmetered Supply,
which hardware and software meets the specification therefor set out
in Agreed Procedure 520;
"Equivalent Unmetered Supply" means an Unmetered Supply with a
Measurement Class of unmetered half hourly consumption;
<PAGE>
"ERS" means the electronic registration system operated by the
Settlement System Administrator in respect of Metering Systems
associated with supplies of electricity to Stage 1 Customers (other
than Non-Embedded Customers) and Stage 1 Non-Pooled Generators;
"ERS Account" has the meaning given to that term in Schedule 4;
"Escrow Agreement" has the meaning given to that term in Clause 45.1;
"ESIS" means Energy Settlement and Information Systems Limited
(registered number 2444282) whose registered office is at Fairham
House, Green Lane, Clifton, Nottingham NG11 9LN;
"Estimated Annual Consumption" has the meaning given to that term in
Schedule 9;
"Event of Default" means any event declared as such pursuant to Clause
66.1.1 or 66.2.1, as the case may be;
"Excluded Information" has the meaning given to that term in Clause
51.5.4;
"Executive Committee" means the committee established pursuant to
Clause 14;
"Existing Pool Documentation" means the documentation relating to the
rules and procedures for the operation of the central electricity
trading and settlement system in England and Wales and for the time
being and from time to time listed or referred to in Part A of Scots
Subsidiary Document 1;
"Export" means, in respect of any Party, a flow of electricity from
the Plant or Apparatus of such Party to the Plant or Apparatus of
another Party and, in relation to any Party which is an External Pool
Member, the External Interconnection in respect of which that Party
has the right to deliver or take electricity to or from the NGC
Transmission System shall be treated as the Plant or Apparatus of such
Party and the verb "Export" and its respective tenses shall be
construed accordingly;
"External Interconnection" means Apparatus for the transmission of
electricity to or from the NGC Transmission System into or out of an
External System;
"External Pool Member" means a Party supplying electricity to or
taking electricity from the NGC Transmission System through an
External Interconnection and which has been or (where appropriate) is
to be admitted as a Pool Member in the capacity of a Generator and/or
a Supplier;
"External System" means, in relation to an Externally Interconnected
Party, the transmission or distribution system which it owns or
operates and any Apparatus or Plant which connects that system to the
External Interconnection and which is owned or operated by such
Externally Interconnected Party;
<PAGE>
"Externally Interconnected Party" means a person operating an External
System which is connected to the NGC Transmission System by an
External Interconnection (which person may or may not also be an
External Pool Member);
"Facility Bank" means Barclays Bank PLC (acting through its branch at
54 Lombard Street, London EC3 9EX) or such other bank as may from time
to time provide a Credit Facility;
"Final Calculation Date", in relation to an Accounting Period, means
the first Calculation Date after the end of that Accounting Period on
which the final run of Stage 1 Settlement and the Stage 2 Initial
Settlement Run are available in respect of all Settlement Periods in
that Accounting Period;
"Final Reconciliation Run" has the meaning given to that term in the
definition of "Reconciliation Run" in Schedule 9;
"First Period" has the meaning given to that term in the definition of
"Efficiencies";
"First Quarter" means, in respect of any year, the months of January,
February and March;
"First Reconciliation Run" means, in respect of any Settlement Day,
the first of the 72 Reconciliation Runs (or, in the absence thereof,
any Ad-Hoc Reconciliation Run taking the place thereof);
"Fixed ERS Charge" means the amount from time to time determined by
the Executive Committee for the purposes of Section 4 of Schedule 31;
"FMS Codes of Practice" means the Codes of Practice B, C, E, J, K1 and
K2 and, to the extent that they relate to Metering Equipment the data
derived from which was not used as Settlement Metering Data
immediately prior to the FMS Date, F and G, and Codes of Practice 1,
2, 3, 4 and 5;
"FMS Date" means 1st April, 1993;
"FMS Metering Equipment" means Metering Equipment comprising a Stage 1
Metering System at or in relation to the commercial boundary in
accordance with Section 7.1.3 of Schedule 21 in relation to the
requirements to be met from the FMS Date;
"FMS Trading Date" means 10th January, 1994;
"Following Month" means, in relation to a Calculation Date, the month
immediately succeeding the month in which that Calculation Date falls;
"Force Majeure" means, in relation to any Party, any event or
circumstance which is beyond the reasonable control of such Party and
which results in or causes the failure of
<PAGE>
that Party to perform any of its obligations under this Agreement
including act of God, strike, lockout or other industrial disturbance,
act of the public enemy, war declared or undeclared, threat of war,
terrorist act, blockade, revolution, riot, insurrection, civil
commotion, public demonstration, sabotage, act of vandalism,
lightning, fire, storm, flood, earthquake, accumulation of snow or
ice, lack of water arising from weather or environmental problems,
explosion, fault or failure of Plant and Apparatus (which could not
have been prevented by Good Industry Practice), governmental
restraint, Act of Parliament, other legislation, bye-law and Directive
(not being any order, regulation or direction under section 32, 33, 34
or 35 of the Act) provided that lack of funds shall not be interpreted
as a cause beyond the reasonable control of that Party. For the
avoidance of doubt, Force Majeure shall not apply in respect of the
Settlement System Administrator where and to the extent that the
Settlement System Administrator can perform its obligations under this
Agreement by using the back-up arrangements required by Service Line 6
(Off-Site Security) or by acting in accordance with Section 64 or 65
of Schedule 9;
"Founder Generators" means the parties to this Agreement of the first
part at 30th March, 1990;
"Founder Suppliers" means the parties to this Agreement of the second
part at 30th March, 1990;
"Fourth Quarter" means, in respect of any year, the months of October,
November and December;
"Fractional Redistributed Votes" has the meaning given to that term in
Clause 11.4.8;
"Fuel Security Code" means the document of that title designated as
such by the Secretary of State, as from time to time amended;
"Fuel Security Interest" in relation to a particular Payment
Instruction, means the interest (if any) accruing on the Fuel Security
Payment or Fuel Security Reimbursement specified in that Payment
Instruction pursuant to sub-clause 2.08 of Part 5 of the Fuel Security
Code;
"Fuel Security Ledger" means any ledger required to be maintained by
the Pool Funds Administrator in accordance with Clause 59;
"Fuel Security Payment" means the amount specified in a Payment
Instruction which a Generator is entitled to recover from those
persons specified in that Payment Instruction (excluding Fuel Security
Interest, if any, in relation thereto);
<PAGE>
"Fuel Security Reimbursement" means the amount specified in a Payment
Instruction which a Generator is liable to reimburse to those persons
specified in that Payment Instruction (excluding Fuel Security
Interest, if any, in relation thereto);
"Funds Transfer Agreement" means the agreement of that title dated
30th March, 1990 and made between Energy Pool Funds Administration
Limited, Barclays Bank PLC, the Pool Members named therein and The
National Grid Company plc, as amended, varied, supplemented, modified
or suspended from time to time in accordance with the terms thereof
and of Schedule 11;
"Funds Transfer Business" means the business of the Pool Funds
Administrator in operating the Funds Transfer System and providing the
Services;
"Funds Transfer Hardware" has the meaning given to that term in
Section 1.1 of Schedule 15;
"Funds Transfer Software" has the meaning given to that term in
Section 1.1 of Schedule 15;
"Funds Transfer System" means the Banking System, the Billing System
and the Information Systems;
"Generating Board" has the meaning given to that term in the Act;
"Generating Plant" means a Power Station subject to Central Despatch;
"Generating Unit" means any Apparatus which produces electricity and,
in respect of an External Pool Member, means a Generation Trading
Block;
"Generation Licence" means a licence granted or to be granted under
section 6(1)(a) of the Act;
"Generation Schedule" has the meaning given to that term in the Grid
Code;
"Generation Schedule Goal" means release 2.0 of the computer program
in machine readable code used by NGC for the purposes of producing the
Generation Schedule under the Grid Code as the same may from time to
time be changed pursuant to Section 6 of Schedule 35;
"Generation Scheduling and Despatch Parameters" means those parameters
listed in Appendix A1 to SDC1;
"Generation Trading Block" means a notional Centrally Despatched
Generating Unit of an External Pool Member treated as such for the
purposes of the Grid Code;
"Generation Trading Block Scheduling and Despatch Parameters" means
those parameters listed in Appendix A1 to SDC1 relating to Generation
Trading Blocks;
<PAGE>
"Generator" means:-
(i) a person who generates electricity under licence or
exemption under the Act; or
(ii) a person who is an External Pool Member who delivers
electricity or on whose behalf electricity is delivered to
the NGC Transmission System; or
(iii) a person who is acting as the agent for any such person who
is referred to in paragraph (i) or (ii) above,
and, in any such case, for the time being party to this Agreement in
the capacity of a Generator and, where the expression is used in Part
III or Part IV, who is also or (where appropriate) is to become a Pool
Member;
"Generator Weighted Vote" has the meaning given to that term in Clause
11.2.1;
"Generic Dispensations" shall have the meaning ascribed thereto in
Section 14.1(b) of Schedule 21;
"Genset Metered Generation" has the meaning given to that term in
Schedule 9;
"Genset Offered Availability" has the meaning given to that term in
Schedule 9;
"Genset Re-Offered Availability" has the meaning given to that term in
Schedule 9;
"Gigawatt" means 1000MW;
"Goal" means release 2.0 of the computer program in machine readable
code (including Settlement Goal) used by NGC for the purposes of
producing generation schedules as the same may from time to time be
changed pursuant to Section 6 of Schedule 35;
"Goal Effective Date" means the date on which Settlement Goal is first
used for the purposes of producing the Unconstrained Schedule (as such
term is defined in the Pool Rules) for the following day;
"Good Industry Practice" means, in relation to any undertaking and any
circumstances, the exercise of that degree of skill, diligence,
prudence and foresight which would reasonably and ordinarily be
expected from a skilled and experienced operator engaged in the same
type of undertaking under the same or similar circumstances;
"Grid Code" means the Grid Code drawn up pursuant to the Transmission
Licence, as from time to time revised in accordance with the
Transmission Licence;
"Grid Code Review Panel" has the meaning given to that term in the
Grid Code;
<PAGE>
"Grid Entry Point" means the point at which a Power Station which is
not Embedded connects to the NGC Transmission System;
"Grid Operator" means the person who for the time being and from time
to time is required by the terms of a Transmission Licence, inter
alia, to implement the Grid Code;
"Grid Supply Point" means the point of supply from the NGC
Transmission System to Public Electricity Suppliers or to other Users
with User Systems with Customers connected to them or Non-Embedded
Customers;
"Gross Traded Energy" has the meaning given to that term in Section
9.2.4 of Schedule 31;
"Group Average Annual Consumption" or "GAAC" has the meaning given to
that term in Schedule 9;
"GSP Group" has the meaning given to that term in Schedule 9;
"GSP Group Control Total" means the control value (expressed in
monetary terms) determined by the Settlement System Administrator for
the purposes of Stage 2 Settlement as the value of the total
electricity traded within each GSP Group on the Settlement Day in
question;
"GSP Group Implementation Date" means, in respect of a GSP Group and
subject to Section 3.3 of Schedule 24, the date determined by the
Performance Assurance Board or (as the case may be) by Pool Members in
general meeting in accordance with Section 3.1 of that Schedule;
"GSP Group liability cap" means, in relation to any GSP Group, the
liability cap in relation to a month calculated in accordance with
Section 16.3 of the Menu of Supplier Charges;
"GSP Group Migration Date" means, in respect of a GSP Group, the date
(being the date on which migration may begin) determined by the
Performance Assurance Board in accordance with Section 4.1 of Schedule
24;
"GSP Group Profile Class Average Estimated Annual Consumption" means
the average Estimated Annual Consumption calculated in respect of each
Standard Settlement Configuration for each Profile Class in each GSP
Group;
"GSP Group Profile Class Default Estimated Annual Consumption" has the
meaning given to that term in Schedule 9;
"GSP Group Take" has the meaning given to that term in Schedule 9;
"GW" means Gigawatt;
<PAGE>
"GWh" means Gigawatt-hour;
"Half Hourly Data Aggregator" means a Data Aggregator which carries
out the aggregation of metering data received from Half Hourly Data
Collectors;
"Half Hourly Data Collector" means a Data Collector which retrieves,
validates and processes metering data from Half Hourly Meters and
Equivalent Meters;
"Half Hourly Meter" means a Meter which provides measurements on a
half hourly basis;
"Half Hourly Metering Equipment" means Metering Equipment which
provides measurements on a half hourly basis;
"Half Hourly Metering System" means a Metering System which provides
measurements on a half hourly basis;
"Hardware" means the Stage 1 Hardware and/or the Stage 2 Hardware
and/or the Second Tier Hardware, as the context may require;
"Host PES" means, in respect of a Metering System, either:-
(i) the Public Electricity Supplier to whose Distribution System
such Metering System is connected; or
(ii) where such Metering System is connected directly to the NGC
Transmission System, the Public Electricity Supplier whose
Consumer Metered Demand determined in accordance with the
Pool Rules is calculated by the Settlement System
Administrator using data from such Metering System;
"IAR System" means the control system and processes that are necessary
to facilitate initial allocation to suppliers in the Authorised Areas
of the Scottish PESs and reconciliation of all the electricity
consumed in those Authorised Areas within a bulk supply point group;
"Identified Pool Member" has the meaning given to that term in Clause
11.2.2(a) or, as the context may require, Section 2(A) of Schedule 13;
"Identifier" means a unique number and/or letter or, as the case may
be, a unique combination of numbers and/or letters;
"Implementation Date" has the meaning given to that term in Schedule
22;
"Import" means, in respect of any Party, a flow of electricity to the
Plant or Apparatus of such Party from the Plant or Apparatus of
another Party and, in relation to any Party which is an External Pool
Member, the External Interconnection in respect of which it has the
right to deliver or take electricity to or from the NGC Transmission
System shall be
<PAGE>
treated as the Plant or Apparatus of such Party and the verb "Import"
and its respective tenses shall be construed accordingly;
"Indemnifying Pool Member" has the meaning given to that term in
Clause 7.5.2;
"Independent Generators" means Generators other than:-
(i) the Founder Generators;
(ii) any Generator which is an External Pool Member; and
(iii) any Generator which is an affiliate or related undertaking
of (a) any person referred to in paragraph (i) or (ii)
above, (b) any person referred to in paragraph (i) of the
definition of Independent Suppliers, or (c) any Public
Electricity Supplier;
"Independent Network" means a system consisting (wholly or mainly) of
electric lines operated other than under a PES Licence or by the Grid
Operator;
"Independent Suppliers" means Suppliers other than:-
(i) Eastern Electricity plc, East Midlands Electricity plc,
London Electricity plc, Manweb plc, Midlands Electricity
plc, Northern Electric plc, NORWEB plc, SEEBOARD plc,
Southern Electric plc, South Wales Electricity plc, South
Western Electricity plc, Yorkshire Electricity Group plc,
National Power PLC, PowerGen plc, Nuclear Electric Limited,
British Nuclear Fuels plc, Electricite de France, Service
National, Scottish Power plc and Scottish Hydro-Electric
PLC;
(ii) Public Electricity Suppliers;
(iii) any Supplier which is an External Pool Member; and
(iv) any Supplier which is an affiliate or related undertaking of
any person referred to in paragraph (i), (ii) or (iii)
above;
"Individual Limit" means, in respect of Capital Expenditure in any
Accounting Period, (pound)25,000, as the same may be increased from
the Effective Date by the Rate of Inflation as that expression is
defined for the purposes of Schedule 18;
"Information Systems" means the information systems described in
Section 3 of Schedule 11 for the transfer of information to be given
by or to the Pool Funds Administrator in connection with the Funds
Transfer Business, as amended or replaced from time to time in
accordance with the provisions of this Agreement;
<PAGE>
"Initial Settlement and Reconciliation Agent" or "ISR Agent" means the
person for the time being and from time to time appointed to act as
the Initial Settlement and Reconciliation Agent pursuant to Schedule
30;
"Interconnection Agreement" means an agreement between NGC and an
Externally Interconnected Party and/or an External Pool Member
relating to an External Interconnection and/or an agreement under
which an External Pool Member can use an External Interconnection;
"Interested Person" means a Pool Member, an Accredited Person or, as
the case may be, a person whose Accreditation has lapsed or been
removed or the Certification of whose Agency Systems or any of them
has lapsed or been removed;
"Invitee" has the meaning given to that term in Section 21 of Schedule
21;
"IS Committee Member" means an RS Committee Member elected in order to
represent the interests of Independent Suppliers on the Executive
Committee;
"IS Nominees" has the meaning given to that term in Clause 15.6.4(c);
"IS Pool Member" means an Independent Supplier:-
(i) which is not a Public Electricity Supplier;
(ii) which is not in the same Pool Member's Group as an MP Pool
Member; and
(iii) whose Weighted Votes constitute one per cent. or less of the
Total Weighted Votes;
"IS Preference List" has the meaning given to that term in Clause
15.6.4(i);
"ISRA Documentation" means the documentation prepared for the benefit
of Pool Members relating either to the engagement of a 1998 Contractor
for the initial settlement and reconciliation function contemplated by
the 1998 Programme or to the design, development, testing and trialing
of the ISRA System, and in each case for the time being and from time
to time listed or referred to in Part C of Scots Subsidiary Document
1;
"ISRA System" has the meaning given to that term in Schedule 22;
"kVAr" means kilovoltamperes reactive;
"kW" means kilowatt;
"kWh" means kilowatt-hour;
<PAGE>
"Letter of Credit" means an unconditional irrevocable standby letter
of credit substantially in the form set out in Annex 4 to Schedule 11
(or such other form as the Executive Committee may approve) issued for
the account of a Providing Member or the Grid Operator in sterling in
favour of the Pool Funds Administrator as trustee on the trusts set
out in Section 5 of Schedule 11 by any United Kingdom clearing bank or
any other bank which has a long term debt rating of not less than
single A by Standard & Poor's Corporation or by Moody's Investors
Service, Inc., or such other bank as the Executive Committee may
approve, and which shall be available for payment at a branch of the
issuing bank;
"Licence Restricted Party" has the meaning given to that term in
Section 21 of Schedule 21 or, as the context requires, Section 26.1 of
Schedule 28;
"Licences" means all Generation Licences, PES Licences, Second Tier
Supply Licences and Transmission Licences and "Licence" means any or
(as the context may require) a particular one of them;
"Licensed Application Software" has the meaning given to that term in
Schedule 4;
"Line Loss Class ID" means the identifier for a Line Loss Factor
Class;
"Line Loss Factor" has the meaning given to that term in Schedule 9;
"Line Loss Factor Class" has the meaning given to that term in
Schedule 9;
"Local Branch" has the meaning given to that term in Section 19.9.1 of
Schedule 11;
"Logica" means Logica UK Limited (registered number: 947968);
"Logica Contract" means the agreement dated 11th September, 1996 and
made between Logica and EPFAL;
"lost opportunity costs" means, in relation to any Generator, the
profit forgone by such Generator in respect of a Generating Unit
during a period when it is out of service for the purposes of
maintenance, repair, modification, renewal or replacement needed to
comply with a proposal made by such Generator to restore the
Generating Unit's Reactive Power capability to that required by the
Grid Code or, where relevant, the applicable Supplemental Agreement,
whichever capability is lower provided that:-
(i) the period when it is taken out of service is:-
(a) outside the period identified for the Generating
Unit concerned pursuant to Section OC2 of the Grid
Code as at the time when the failure to have
Reactive Power capability was notified or
determined; and
(b) approved by the Grid Operator; and
<PAGE>
(ii) the Generator gives credit for any savings in loss of profit
by carrying out other repair work at the same time as that
required for the purposes of Reactive Power;
"Main Business" means:-
(i) any business of NGC or any of its subsidiaries as at the
Effective Date; and
(ii) any business which NGC must carry on under the NGC
Transmission Licence;
"Main Business Person" means any employee of NGC or any director or
employee of its subsidiaries who is engaged solely in the Main
Business, and "Main Business Personnel" shall be construed
accordingly;
"Majority Default Calling Creditors" means, in respect of each
Quarter, any single or group of Default Calling Creditors to whom, in
respect of the aggregate of:-
(i) all Notified Payments payable on the last five Business Days
of the immediately preceding Quarter; and
(ii) all sums due to the Settlement System Administrator, the
Pool Funds Administrator and the Ancillary Services Provider
and outstanding under this Agreement on the last Business
Day of such immediately preceding Quarter,
more than 50 per cent. of the total amount of all such Notified
Payments and such other sums were due;
"Managed Data Network" means the third party service approved from
time to time by the Executive Committee for the purposes of transfers
of data relating to Stage 2 Settlement between, inter alia, the
Initial Settlement and Reconciliation Agent and Suppliers, Supplier
Agents and Pool Agents;
"Margin" means:-
(i) in respect of each of the first three Accounting Periods,
such amount as when added to the Total Operating Costs
(excluding for this purpose any payments made by the
Ancillary Services Provider for Ancillary Services, and the
price of any goods and services referred to in Section 6.2
of Schedule 18 if the price exceeds the aggregate cost of
supplying such goods and services actually incurred by the
relevant affiliate of, or other division of, the company of
which the Ancillary Services Provider is a division) in the
relevant Accounting Period is equal to 10 per cent. of the
sum of such amount and such Total Operating Costs; and
<PAGE>
(ii) thereafter, such margin as may be agreed between the
Executive and the Ancillary Services Provider (or, in
default of agreement, such margin as is reasonable in all
the circumstances as determined pursuant to Clause 83);
"Market Domain Data" means data which relate to Stage 2 Settlement to
be provided by the Initial Settlement and Reconciliation Agent to all
persons involved in Settlement in accordance with the relevant Agreed
Procedure;
"Master Connection and Use of System Agreement" means the agreement
envisaged in Condition 10B of the NGC Transmission Licence;
"Master Registration Agreement" means the agreement of that title
dated 1st June, 1998;
"Material" has the meaning given to that term in Clause 45.1.2;
"Measurement Class" has the meaning given to that term in Schedule 9;
"MEC" means the MRA Executive Committee as defined in and constituted
under the Master Registration Agreement;
"Membership Vote" has the meaning given to that term in Clause 11.1;
"Menu of Certification Fees" means the scale of fees to be charged in
connection with the Certification Process, as set out in Agreed
Procedure AP531;
"Menu of EPFAL Services Prices" has the meaning given to that term in
Schedule 15;
"Menu of Supplier Charges" means the document entitled "Menu of
Supplier Charges and Performance Levels", the initial issue of which
is set out in the Appendix to Schedule 26, as amended from time to
time in accordance with Section 9.2 of Schedule 26;
"Menus of Prices" has the meaning given to that term in Section 1.1 of
Schedule 4;
"Meter" means a device for measuring Active Energy and/or Reactive
Energy;
"Meter Administrator" means a person appointed by a Supplier in
accordance with Schedule 26 to calculate estimated energy consumption
for Equivalent Unmetered Supplies;
"Meter Operator" means a person appointed by a Supplier in accordance
with Schedule 26 to install, commission, test and maintain, and
rectify faults in respect of, Stage 2 Metering Equipment;
"Meter Operator Party" means each person admitted in the capacity as
such and for the time being and from time to time party to Schedule 21
in accordance with the provisions
<PAGE>
thereof, and shall include any successor(s) in title to, or permitted
assign(s) of, such person;
"Meter Operator Party Accession Agreement" means an accession
agreement in or substantially in the form set out in Annex 3 to
Schedule 21 or in such other form (to which the Settlement System
Administrator has no reasonable objection) as the Executive Committee
may for the time being and from time to time approve;
"Meter Operator Party Admission Application" means an application in
or substantially in the form set out in Annex 1 to Schedule 21 or in
such other form as the Executive Committee may for the time being and
from time to time approve;
"Meter Operator Party Representative" has the meaning given to that
term in Section 17.2.1 of Schedule 21;
"Meter Operator Party Resignation Notice" means a resignation notice
in or substantially in the form set out in Annex 2 to Schedule 21 or
in such other form as the Executive Committee may for the time being
and from time to time approve;
"Metered Data" has the meaning given to that term in Schedule 9;
"Metering Equipment" means Stage 1 Metering Equipment and/or Stage 2
Metering Equipment, as the context may require;
"Metering Point" means the point, determined according to the
principles and guidance given at Schedule 9 of the Master Registration
Agreement at which a supply to (export) or from (import) a
Distribution System:-
(i) is or is intended to be measured; or
(ii) where metering equipment has been removed, was or was
intended to be measured; or
(iii) in the case of an Unmetered Supply, is deemed to be
measured,
where in each case such measurement is for the purposes of
ascertaining the Supplier's Settlement liabilities under this
Agreement;
"Metering System" means a Stage 1 Metering System and/or a Stage 2
Metering System, as the context may require;
"Moderator" means a person nominated for the time being and from time
to time by the Pool Chairman (failing whom, by the Chief Executive) to
perform certain obligations pursuant to Clause 15;
"Modifications" has the meaning given to that term in the Escrow
Agreement;
<PAGE>
"Month End" means the last day of any month;
"MP Committee Members" has the meaning given to that term in Clause
15.5;
"MP Nominee" has the meaning given to that term in Clause 15.5.1;
"MP Nominee List" has the meaning given to that term in Clause 15.5.2;
"MP Pool Member" means a Pool Member which is neither an Independent
Supplier nor a Small Generator but shall include:-
(i) a Pool Member which is an Independent Supplier if:-
(a) it is a Public Electricity Supplier; or
(b) its Weighted Votes constitute more than one per
cent. of the Total Weighted Votes; and
(ii) a Pool Member which is an Independent Supplier or Small
Generator which is a member of a Pool Member's Group in
which there is at least one other Pool Member which is
neither:-
(a) an Independent Supplier (not being a Public
Electricity Supplier) with Weighted Votes
constituting one per cent. or less of the Total
Weighted Votes; nor
(b) a Small Generator;
"MP Preference List" has the meaning given to that term in Clause
15.5.3(f);
"MRA Pool Agent" has the meaning given to that term in Section 1.1 of
Schedule 32;
"MRA Pool Agent Terms" has the meaning given to that term in Section
1.1 of Schedule 32;
"MSID" has the same meaning as Stage 2 Metering System Number;
"MVAr" means megavar;
"MVArh" means megavar-hours;
"MW" means megawatt;
"MWh" means megawatt-hours;
<PAGE>
"New Meter Operator Party" has the meaning given to that term in
Section 3.1 of Schedule 21;
"New Party" has the meaning given to that term in Clause 3.1;
"New Principle" has the meaning given to that term in Clause 5.2;
"NGC" means The National Grid Company plc (registered number 2366977)
whose registered office is situate at National Grid House, Kirby
Corner Road, Coventry CV4 8JY;
"NGC Site" means a site owned (or occupied pursuant to a lease,
licence or other agreement) by NGC at which there is a Connection
Point and, for the avoidance of doubt, a site owned by a User but
occupied by NGC as aforesaid is an NGC Site;
"NGC Transmission Licence" means the Transmission Licence granted or
to be granted to NGC;
"NGC Transmission System" means the system consisting (wholly or
mainly) of high voltage electric lines owned or operated by NGC and
used for the transmission of electricity from one Power Station to a
sub-station or to another Power Station or between sub-stations or to
or from any External Interconnection and includes any Plant and
Apparatus and meters owned or operated by NGC in connection with the
transmission of electricity but does not include any Remote
Transmission Assets (as defined in the Grid Code);
"NHH Data Aggregation System" has the meaning given to that term in
Schedule 22;
"Nominated Agreements" means:-
(i) this Agreement;
(ii) the Service Lines, Agreed Procedures and Codes of Practice;
(iii) the Settlement Agreement for Scotland;
(iv) the Master Registration Agreement;
(v) all Connection Agreements;
(vi) the Data Transfer Service Agreement; and
(vii) any other agreement or document from time to time specified
as a Nominated Agreement by the Executive Committee (after
consultation, where Confidential Information relating to the
Grid Operator or the Ancillary Services Provider is
reasonably likely to be disclosed as a result of specifying
such agreement or
<PAGE>
document as a Nominated Agreement, with the Grid Operator or
the Ancillary Services Provider, as the case may be);
"Nominated Site" has the meaning given to that term in Section 3 of
Part A of Schedule 17;
"Non-Embedded Customer" means any Customer, other than a PES,
receiving electricity direct from the NGC Transmission System
irrespective of from whom it is supplied;
"Non Half Hourly Data Aggregator" means a Data Aggregator which
carries out the aggregation of metering data received from Non Half
Hourly Data Collectors;
"Non Half Hourly Data Collector" means a Data Collector which
retrieves, validates and processes metering data from Non Half Hourly
Metering Systems;
"Non Half Hourly Meter" means a Meter which provides measurements
other than on a half hourly basis;
"Non Half Hourly Metering Equipment" means Metering Equipment which
provides measurements other than on a half hourly basis;
"Non Half Hourly Metering System" means a Metering System which
provides measurements other than on a half hourly basis;
"Non-paying Contributor" has the meaning given to that term in Section
2.2.2 of Schedule 31;
"Non-paying Pool Debtor" has the meaning given to that term in Section
21.1 of Schedule 11;
"Non-paying Pool Member" has the meaning given to that term in Section
6.8.1 or, as the context may require, Section 7.6.1 of Schedule 31;
"Non-Performing Party" has the meaning given to that term in Clause
74.1;
"Non-Pooled Generation" means generation from any site which is
directly connected to a Distribution System where:-
(i) the output is accounted for in Settlement; and
(ii) the generator owning such site:-
(a) is exempted from holding a Generation Licence; or
(b) would be exempted from holding a Generation
Licence if such site were the only site owned by
that generator;
<PAGE>
"Non-Pooled Generator" means a generator who produces Non-Pooled
Generation, provided that a generator shall be a Non-Pooled Generator
only to the extent that it owns sites which produce Non-Pooled
Generation;
"Non-Second Tier System" means a metering system at premises eligible
for supply under a Second Tier Supply Licence in the Authorised Area
of a PES but not being a Metering System in respect of which a Second
Tier Supplier is the Registrant;
"Notification Date" means, in relation to any Settlement Day, the day
specified in the Payments Calendar as the day on which the Stage 1
Settlement Run and the Stage 2 Initial Settlement Run shall be
required to be delivered by the Settlement System Administrator and
the Initial Settlement and Reconciliation Agent respectively to the
Pool Funds Administrator for that Settlement Day;
"Notified Payment" means a payment notified in accordance with Section
18 of Schedule 11 by the Pool Funds Administrator to a Pool Member,
the Ancillary Services Provider or the Grid Operator as being a
payment required to be cleared through the Pool Clearing Account;
"Notified Payment Shortfall" has the meaning given to that term in
Section 5.7 of Schedule 11;
"Notified Payments System" means the system established by Section 19
of Schedule 11 for the settling of Notified Payments, as amended or
replaced from time to time in accordance with the provisions of this
Agreement;
"NSD Date" has the meaning given to that term in Section 23.1 of
Schedule 21;
"Nuclear Site Licence" has the meaning given to that term in Section
21.9(a) of Schedule 21 or, as the case may be, Section 26.1 of
Schedule 28;
"objection period" has the meaning given to that term in Section 3.3.2
of Schedule 21;
"Operator" means:-
(i) in relation to any Stage 1 Metering System:-
(a) used to measure the supply to a Customer or from a
Non-Pooled Generator, the Meter Operator Party who
is appointed as such by the Customer, the
Non-Pooled Generator or by the Registrant (with
the consent of that Customer or, as the case may
be, Non-Pooled Generator) and who agrees to act as
Operator in relation to such Metering System; or
(b) not within paragraph (a) above or paragraphs (c)
to (e) below, the Meter Operator Party who is
appointed as such by the Registrant of such
<PAGE>
Metering System and who agrees to act as Operator
in relation to such Stage 1 Metering System; or
(c) where new Metering Equipment is to be added to an
existing Stage 1 Metering System, the Operator of
such existing Stage 1 Metering System; or
(d) the Meter Operator Party which continues as the
Operator in accordance with the transitional
arrangements set out in Section 23 of Schedule 21;
or
(e) the Party who is deemed to be the Operator and
Meter Operator Party in respect thereof in
accordance with the terms of Clause 60.4.5; and
(ii) in relation to any Generating Unit and for the purposes of
Schedule 20 only, the Authorised Electricity Operator or any
other person for the time being responsible (under contract
or otherwise) for the generation or sale of electricity from
such unit;
"Other Pool Members" means all the Pool Members other than the
Scottish PESs (and, where the context so admits, includes any person
acting on their behalf for the purposes of Schedule 23 and the Scots
Subsidiary Documents);
"Outgoing Committee Member" has the meaning given to that term in
Clause 15.12;
"Outstation" means equipment which receives and stores data from a
Meter(s) for the purpose, inter alia, of transfer of that metering
data to the Settlement System Administrator or Data Collector, as the
case may be, and which may perform some processing before such
transfer. This equipment may be in one or more separate units or may
be integral with the Meter;
"Overall Limit" means, in respect of Capital Expenditure in any
Accounting Period, (pound)100,000, as the same may be increased from
the Effective Date by the Rate of Inflation as that expression is
defined for the purposes of Schedule 18;
"overpayment" has the meaning given to that term in Section 23.1 of
Schedule 11;
"Own Generating Unit" means any Generating Unit the majority
beneficial ownership of which is vested in the person or an affiliate
of the person or in respect of which the person or an affiliate of the
person is the Operator;
"PAB Functions" means the functions, duties and responsibilities of
the Performance Assurance Board set out or referred to in Section
2.2.1 of Schedule 8;
"Party" means each person for the time being and from time to time
party to this Agreement acting in a capacity, or deemed to be acting
in a capacity, other than that of
<PAGE>
Operator or Meter Operator Party, and shall include any successor(s)
in title to, or permitted assign(s) of, such person. For the purposes
of Clause 8, "Party" has the extended meaning given to it in Clause
8.2.2;
"Party Liable" has the meaning given to that term in Clause 25.1 or
(as the case may be) Section 20.1 of Schedule 21;
"Payment Date" means a Settlement Payment Date or a Reconciliation
Payment Date, as the context may require;
"Payment Instruction" means an instruction which has been duly
authorised and delivered by a Generator to whom the Fuel Security Code
applies to the Pool Funds Administrator in the form, and in the
manner, specified in the Fuel Security Code;
"Payments Calendar" means the calendar prepared and issued in
accordance with Section 2 of Schedule 11 showing a Notification Date,
Reconciliation Notification Dates, a Settlement Payment Date and
Reconciliation Payment Dates in respect of each Settlement Day;
"Performance Assurance Administrator" means the person for the time
being and from time to time appointed pursuant to Part 3 of Schedule 8
as the Performance Assurance Administrator for the purposes of this
Agreement;
"Performance Assurance Board" means the person for the time being and
from time to time appointed pursuant to Part 2 of Schedule 8 as the
Performance Assurance Board for the purposes of this Agreement;
"Performance Assurance Reporting and Monitoring System" means the
system established or to be established, inter alia, for the purpose
of recording and monitoring compliance by Suppliers with their
obligations pursuant to Schedule 26;
"Performance Level" means any of the standards of performance
specified in Part 2 of the Menu of Supplier Charges;
"Period Metered Demand" has the meaning given to that term in Schedule
9;
"Permitted Activities" means activities carried on for the purposes of
the Main Business;
"PES Licence" means a licence granted or to be granted under section
6(1)(c) of the Act;
"PES Registration Service" means the service provided or to be
provided by each Public Electricity Supplier for the registration of
Stage 2 Metering Systems in accordance with the Master Registration
Agreement;
"PFA Accounting Procedure" means the procedure for the recovery of
certain moneys set out in Section 6 of Schedule 31;
<PAGE>
"Plant" means fixed and moveable items used in the generation and/or
supply and/or transmission of electricity, other than Apparatus;
"Point" has the meaning given to that term in Section 2 of Schedule
13;
"Pool" has the meaning given to that term in Schedule 22;
"Pool 1998 Software" means the software for the Relevant 1998 Systems
(excluding all operating system software for all of the 1998 Systems)
for the time being and from time to time listed or referred to in
Scots Subsidiary Document 2;
"Pool Accounts" means the Pool Clearing Account, the Pool Borrowing
Account, the Pool Reserve Account and the Collection Accounts and such
other accounts as may be established in accordance with Section 4.2.2
of Schedule 11. Pool Accounts do not include accounts established or
operated by the Pool Funds Administrator in connection with the
performance of any of its functions which are not set out in or
contemplated by Schedule 11 or the Funds Transfer Agreement or which
do not relate to functions of the Pool Funds Administrator in its
capacity as such;
"Pool Administration Costs" has the meaning given to that term in
Section 6.1 of Schedule 31;
"Pool Agent" means a person appointed for the time being and from time
to time pursuant to Schedule 30;
"Pool Agent Contract" means the terms of engagement of a Pool Agent
for the time being and from time to time;
"Pool Auditor" means the firm or firms of accountants appointed for
the time being and from time to time pursuant to Clause 47.1 or, where
the context so requires, the particular firm of accountants so
appointed to carry out the relevant task;
"Pool Auditor's Report" has the meaning given to that term in Clause
9.7.1;
"Pool Banker" means Barclays Bank PLC or such other person nominated
from time to time by the Executive Committee as Pool Banker and
appointed as Pool Banker;
"Pool Borrowing Account" means the account of that title in the name
of the Pool Funds Administrator with the Facility Bank which may from
time to time be opened in respect of the Credit Facility;
"Pool Chairman" has the meaning given to that term in Clause 16.1;
"Pool Civil Emergency" has the meaning ascribed to it in Clause
61.2.1;
<PAGE>
"Pool Civil Emergency Event" means an event or series of events which
satisfies the conditions set out in Clause 61.3.2;
"Pool Civil Emergency Period" means a period initiated by the
Executive Committee after the occurrence of a Pool Civil Emergency
Event which shall commence, and terminate, in accordance with Part
XVI;
"Pool Clearing Account" means the account in the name of the Pool
Funds Administrator (holding as trustee on the trusts set out in
Section 5 of Schedule 11) with the Pool Banker to which Notified
Payments are required to be transferred for allocation to Pool
Creditors in accordance with their respective entitlements;
"Pool Creditor" means each Pool Member, the Ancillary Services
Provider and the Grid Operator to whom moneys are payable pursuant to
the terms of Schedule 11, other than a Providing Member or the Grid
Operator in respect of:-
(i) amounts standing to the credit of its account with the Pool
Reserve Account; or
(ii) amounts owing to it by another Providing Member or (as the
case may be) the Grid Operator pursuant to the operation of
Section 21.1 of Schedule 11;
"Pool Debt" means, in respect of a Pool Member, the Ancillary Services
Provider or the Grid Operator, the aggregate amount payable by such
Pool Member, the Ancillary Services Provider or (as the case may be)
the Grid Operator pursuant to the terms of Schedule 11;
"Pool Debtor" means each Pool Member (including any person who is no
longer a Pool Member but who is required under Section 16.7 of
Schedule 11 to maintain Security Cover), the Ancillary Services
Provider and the Grid Operator, but in any such case only where it is
required to make payment under Schedule 11;
"Pool Funds Administrator" means the person for the time being and
from time to time appointed pursuant to Schedule 15 to act as Pool
Funds Administrator;
"Pool Ledger Accounts" means the accounting records required to be
maintained by the Pool Funds Administrator in accordance with Section
6 of Schedule 11 for the recording of transactions settled in
accordance with Schedule 11;
"Pool Member" means each of the Founder Generators and Founder
Suppliers and any other person who is admitted to pool membership in
accordance with Clause 8.2, in each case until it shall have resigned
from pool membership or otherwise ceased to be a member in accordance
with this Agreement, and "Pool Membership" shall be construed
accordingly;
"Pool Member's Group" means, in relation to any Pool Member, that Pool
Member and any affiliate (as defined in Clause 1.2.3) of that Pool
Member;
<PAGE>
"Pool Membership Application" means an application in or substantially
in such form as the Executive Committee may for the time being and
from time to time approve;
"Pool Membership Conditions" has the meaning given to that term in
Clause 8.2.1;
"Pool Requirements for the MRA" means the provisions set out or
referred to in the Annex to Schedule 32, as amended from time to time
in accordance with that Schedule;
"Pool Reserve Account" means the account established pursuant to
Section 4.2.1(b) of Schedule 11 for the purpose of holding a cash
deposit which may be used in or towards clearing the Pool Clearing
Account in accordance with Section 21 of Schedule 11;
"Pool Reserve Assets" has the meaning given to that term in Section
5.12 of Schedule 11;
"Pool Rules" means the rules referred to in Clause 7.4 and set out in
Schedule 9, as amended, varied or substituted from time to time in
accordance with the terms hereof;
"Pool Rules Civil Emergency Condition" means, in respect of any
Schedule Day, that both:-
(i) UMT => 0.1 (as determined in accordance with Section 32.1(a)
of Schedule 9); and
(ii) RAPT => 3 * CAPT (as determined in accordance with Section
32.1(b) of Schedule 9);
"Pool Rules Civil Emergency Period" means a period which commences,
and terminates, and in which Section 32.3 of Schedule 9 is in force,
in accordance with Part XVI;
"PORTHOLE" means the database which allows the transfer of operational
information from the Grid Operator to the Settlement System
Administrator;
"Postponed Settlement Payment Date" has the meaning given to that term
in Section 17.10.1 of Schedule 11;
"Potential Operator" means a Meter Operator Party which is appointed
as the operator pursuant to an agreement or arrangement:-
(i) in respect of a Metering System or Metering Equipment at a
Site or Sites but which is not yet registered as Operator in
respect of that Metering System; or
(ii) in respect of Metering Equipment where such Metering
Equipment has not been registered as comprising a Metering
System;
"Power Station" means an installation comprising one or more
Generating Units (even where sited separately), other than an External
Interconnection, owned and/or
<PAGE>
controlled by the same Generator, which may reasonably be considered
as being managed as one Power Station;
"Preferred IS Nominee" has the meaning given to that term in Clause
15.6.4(e);
"Preferred MP Nominee" has the meaning given to that term in Clause
15.5.3(b);
"Preferred RS Nominees" has the meaning given to that term in Clause
15.6.4(e);
"Preferred SG Nominee" has the meaning given to that term in Clause
15.6.4(d);
"Primary Supplier" means the Supplier who has agreed in accordance
with Section 11.7 of Schedule 26 to take responsibility for Settlement
purposes for a Non-Pooled Generator who provides Export Active Energy
to two Suppliers through the same Stage 2 Metering System;
"Procedures Manual" has the meaning given to that term in Clause 64.1;
"Proceedings" has the meaning given to that term in Clause 84.1;
"Profile" has the meaning given to that term in Schedule 9;
"Profile Administrator" means the person for the time being and from
time to time appointed to act as the Profile Administrator pursuant to
Schedule 30;
"Profile Allocation Procedures" means the procedures in respect of
allocation of Profile Classes agreed by the Executive Committee and
notified to Pool Members from time to time;
"Profile Class" has the meaning given to that term in Schedule 9;
"Profile Coefficient" means a value which, when applied to an
Annualised Advance or an Estimated Annual Consumption, provides an
estimate of Consumption for a Settlement Period;
"Profiled Unmetered Supply" means an Unmetered Supply with a
Measurement Class of unmetered non-half hourly consumption;
"Programme Board" has the meaning given to that term in Schedule 22;
"Programme Liaison Officer" means the 1998 Programme's liaison officer
nominated for the time being and from time to time by or on behalf of
the Other Pool Members in accordance with Scots Subsidiary Document 4;
"proposed change" has the meaning given to that term in Section 1.4.1
of Schedule 21;
<PAGE>
"Protected Information" means any information relating to the affairs
of a Party which is furnished to Business Personnel pursuant to this
Agreement unless, prior to such information being furnished, such
Party has informed the recipient thereof by notice in writing or by
endorsement on such information that the said information is not to be
regarded as Protected Information;
"Providing Member" means each Pool Member (including any person who is
no longer a Pool Member but who is required under Section 16.7 of
Schedule 11 to maintain Security Cover) who may, under the terms of
Schedule 11, become at any time a Pool Debtor;
"Provisional Run" has the meaning given to that term in Schedule 9;
"PRS Entry Process" means the process set out in Agreed Procedure
AP511 for determining whether a PES is able to provide its PES
Registration Service relative to a particular GSP Group;
"Public Electricity Supplier" or "PES" means a person for the time
being party to this Agreement who is a public electricity supplier (as
that expression is defined in the Act) and, in relation to Part XV,
Schedules 21, 22, 24, 26, 27, 28 and 29 means a person for the time
being party to this Agreement who is a public electricity supplier in
England and Wales;
"qualifying Pool Member" has the meaning given to that term in Section
5.13.1 of Schedule 31;
"Qualifying Site" means a site at the point of connection of a Stage 1
Customer to a Distribution System, qualifying in accordance with the
terms of the relevant Tariff for payments to be made for the provision
of installation and maintenance services;
"qualifying Supplier" has the meaning given to that term in Section
5.12.1 of Schedule 31;
"Quarter" means the period of three calendar months ending on a
Quarter Day;
"Quarter Day" means 31st March, 30th June, 30th September and 31st
December;
"Rate of Inflation" has the meaning given to that term in Section 1.2
of Schedule 18;
"Reactive Energy" means the integral with respect to time of the
Reactive Power;
"Reactive Power" means the product of voltage and current and the sine
of the phase angle between them measured in units of voltamperes
reactive and standard multiples thereof, that is:-
1000VAr = 1kVAr
1000kVAr = 1MVAr;
<PAGE>
"Recommendations" has the meaning given to that term in Clause 5.8;
"Reconciliation Notification Date" means, in relation to any
Settlement Day, each of the dates specified in the Payments Calendar
as a day on which a Timetabled Reconciliation Run shall be required to
be delivered by the Initial Settlement and Reconciliation Agent to the
Pool Funds Administrator for that Settlement Day;
"Reconciliation Payment Date" means, in relation to any Settlement
Day, the date fixed in accordance with Section 2 of Schedule 11 upon
which Notified Payments required as a result of a Timetabled
Reconciliation Run in respect of supplies of electricity must be
settled in accordance with Schedule 11;
"Reconciliation Run" has the meaning given to that term in Schedule 9;
"Redistributed Votes" has the meaning given to that term in Clause
11.4.3(a) or, as the case may be, Clause 11.4.3(b);
"Register" means the register to be maintained by the Settlement
System Administrator pursuant to Clause 60.5;
"Registered Capacity" has the meaning given to that term in the Grid
Code;
"Registrant" means, in relation to a Stage 1 Metering System at or in
relation to any Site which is:-
(i) a Grid Entry Point,
the Pool Member which operates Generating Plant at such Site; or
(ii) a Grid Supply Point or Bulk Supply Point,
the Pool Member whose System is directly connected to the NGC
Transmission System at or in relation to such Grid Supply Point or
Bulk Supply Point; or
(iii) the point of connection of a Customer of a Supplier and the
NGC Transmission System,
the Supplier which is the supplier to that Customer; or
(iv) the point of connection to a Distribution System of a
Generator which is Embedded or of a Supplier or of a
Customer or of a Stage 1 Customer,
the Party which is such Generator which is Embedded or such Supplier
or the Supplier in respect of such Customer or the Public Electricity
Supplier in respect of such Stage 1 Customer, as the case may be; or
<PAGE>
(v) the point of connection of a Non-Pooled Generator to a
Distribution System,
the Party which is the Supplier in respect of such Metering System of
such Non-Pooled Generator; or
(vi) the point of connection of two or more Distribution Systems,
the Authorised Electricity Operator of one of such Distribution
Systems which is nominated in accordance with the provisions of this
Agreement; or
(vii) the point of connection of an External Interconnection to
the NGC Transmission System or a Distribution System,
the Externally Interconnected Party;
"Regression Coefficients" has the meaning given to that term in
Schedule 9;
"Related Supplier" has the meaning given to that term in Part 6 of
Schedule 25;
"Relevant 1998 Systems" means the 1998 Systems other than the EAC/AA
System and the NHH Data Aggregation System and excluding all Support
Services and all hardware;
"Relevant Exempt Supplier" has the meaning given to that term in the
relevant Supplier's Use of System Agreement;
"Relevant Instrument" means any or, as the context may require, a
particular one of the following:-
(i) the Act and all subordinate legislation made under the Act;
(ii) the Data Protection Act 1984 and all subordinate legislation
made under it;
(iii) any Licence and any determination or notice made or issued
by the Director pursuant to the terms thereof,
and whether under any of the foregoing or otherwise, all
authorisations, approvals, licences, exemptions, filings,
registrations, notarisations, consents and other matters which are
required or which a Party acting in accordance with Good Industry
Practice would obtain for the purposes of this Agreement, of or from
any Competent Authority;
"Relevant Provider" has the meaning given to that term in Section
5.13.1 of Schedule 11;
"Relevant Time" means, in relation to any event, the time which falls
two hours prior to the first time at which an Availability Declaration
must be submitted pursuant to Section 6.1 of Schedule 9 on the first
Settlement Day which commences at least 24 hours after the occurrence
of such event;
<PAGE>
"Relevant User" has the meaning given to that term in Clause 66.4.1;
"remedial work" has the meaning given to that term in Clause 60.4.11;
"Required Documentation" means the 1998 Documentation, the Existing
Pool Documentation, the ISRA Documentation and the Support
Documentation;
"Reserve Interest Rate" means the rate of interest payable from time
to time by the Pool Banker on amounts standing to the credit of the
Pool Reserve Account;
"Resignation Notice" means a resignation notice in or substantially in
such form as the Executive Committee may for the time being and from
time to time approve;
"Responsible Officers" has the meaning given to that term in Scots
Subsidiary Document 4;
"Restricted Party" means a Party which is not:-
(i) NGC; or
(ii) any subsidiary of NGC; or
(iii) a Pool Agent;
"Retail Price Index" means the general index of retail prices
published by the Office for National Statistics each month in respect
of all items provided that if:-
(i) the index for any month in any year shall not have been
published on or before the last day of the third month after
such month; or
(ii) there is a material change in the basis of the index,
the Executive Committee shall agree a substitute index for such month
or (as the case may be) a substitute index. This definition does not
apply to Schedule 4 or 15;
"Review Dates" has the meaning given to that term in Clause 5.3;
"Review End Date" has the meaning given to that term in Clause 1.5(a);
"Review Period" has the meaning given to that term in Clause 5.3;
"Routine Performance Monitoring Log" means, in relation to a
particular GSP Group, the log to be maintained by a Supplier, in
accordance with the relevant Agreed Procedure, in respect of its
performance against the Serials contained in the Menu of Supplier
Charges;
<PAGE>
"Routine Performance Monitoring Report" means, in relation to a
particular GSP Group, the report to be provided by a Supplier, in
accordance with the relevant Agreed Procedure, in respect of its
performance against the Serials contained in the Menu of Supplier
Charges;
"RP Date" has the meaning given to that term in the definition of Code
of Practice;
"RS Committee Member" means a member of the Executive Committee
elected by RS Pool Members in accordance with provisions of Clause
15.6;
"RS Nominee" has the meaning given to that term in Clause 15.6.1;
"RS Nominee List" has the meaning given to that term in Clause 15.6.2;
"RS Pool Member" means an IS Pool Member or an SG Pool Member, as the
context may require;
"RTP Section" has the meaning given to that term in Clause 82;
"Satisfaction Date" has the meaning given to that term in Clause
8.2.3; "Schedule Day" has the meaning given to that term in Schedule
9;
"Scheduling" means the process of compiling and issuing a Generation
Schedule (as that expression is defined in the Grid Code), as set out
in SDC1;
"Scheduling and Despatch Code" or "SDC" means that portion of the Grid
Code which is identified as such in the Grid Code;
"Scheduling and Despatch Reviews" has the meaning given to that term
in Clause 47.2.1;
"Scheme" means the scheme set out in Clause 53 and, separately, each
further scheme implemented pursuant to Clause 56.2;
"Scheme Admission Application" means an application form setting out
the Scheme Admission Conditions and requiring such information as the
Executive Committee may consider necessary to enable it to consider
the application, in such form as the Executive Committee may from time
to time determine;
"Scheme Admission Conditions" means the conditions set out in Clause
54;
"Scheme Genset" means a Centrally Despatched Generating Unit which is
admitted to a Scheme under Clause 53.3;
"Scheme Planned Availability" or "SPA" has the meaning given to that
term in Clause 55;
<PAGE>
"Scheme Year" means, in respect of each Scheme Genset, each successive
period of twelve months, the first such period commencing on 1st
April, 1990;
"Scots 1998 Licence" has the meaning given to that term in Section
4.2(A) of Schedule 23;
"Scots Contract" has the meaning given to that term in Section 6.1(A)
of Schedule 23;
"Scots Contractor" has the meaning given to that term in Section
4.5(B) of Schedule 23;
"Scots Due Date" has the meaning given to that term in Section 9.3 of
Schedule 23;
"Scots Licence-Back" has the meaning given to that term in Section
4.5(H) of Schedule 23;
"Scots Licensee" has the meaning given to that term in Section 4.2(A)
of Schedule 23;
"Scots Subsidiary Documents" means each of the documents identified
and agreed to be treated as a Scots Subsidiary Document for the
purposes of Schedule 23 by the Scottish PESs and the Executive
Committee (or a nominated sub-committee of the Executive Committee),
as the same may be amended or substituted from time to time with their
prior written consent. Each Scots Subsidiary Document shall be
numbered and references in Schedule 23 to "Scots Subsidiary Document
`n'" shall be to the relevant numbered Scots Subsidiary Document;
"Scottish PESs" has the meaning given to that term in Schedule 22;
"Scottish Settlements" means Scottish Electricity Settlements Limited,
a private limited liability company incorporated in Scotland with
registered number SC169212 jointly owned by the Scottish PESs for the
purposes of managing and implementing the Scottish Settlements
Arrangements (and includes any successor company);
"Scottish Settlements Arrangements" means the business of developing,
operating and maintaining systems, processes and arrangements in the
authorised supply areas (as defined in the PES Licence of the relevant
Scottish PES) of the Scottish PESs pursuant to their obligations as
holders of PES Licences, and includes the Scottish Settlements
Project;
"Scottish Settlements Project" means the project established and
managed by Scottish Settlements that will develop systems, processes
and arrangements within the scope and as part of the Scottish
Settlement Arrangements;
"Second Quarter" means, in respect of any year, the months of April,
May and June;
<PAGE>
"Second Reconciliation Run" means, in respect of any Settlement Day,
the second of the Timetabled Reconciliation Runs (or, in the absence
thereof, any Ad-Hoc Reconciliation Run taking the place thereof);
"Second Tier Agent" means an agent appointed pursuant to Clause 60.15;
"Second Tier Computer Systems" means all and any computer systems used
by any Second Tier Agent in connection with the operation of the
Second Tier Data Collection System operated by such Second Tier Agent;
"Second Tier Customer" means a person who is supplied with or sold
electricity by a Second Tier Supplier;
"Second Tier Data Collection System" means those parts of the Stage 1
Settlement System which relate to the obligations of the Settlement
System Administrator under this Agreement in relation to collecting,
estimating and aggregating data as may be required for the proper
functioning of Stage 1 Settlement from Metering Systems at the point
of connection between the Distribution System of a Public Electricity
Supplier and:-
(i) a Stage 1 Customer or a Stage 1 Non-Pooled Generator;
(ii) the System of an Authorised Electricity Operator other than
the Public Electricity Supplier;
(iii) an Embedded Generator not subject to Central Despatch; and
(iv) the Distribution System of another Public Electricity
Supplier,
and providing such data to the Settlement System Administrator;
"Second Tier Hardware" means at any time the computer equipment and
accessories used by any Second Tier Agent on or in connection with
which the Second Tier Software functions or is intended to function at
such time;
"Second Tier Software" means at any time the computer programs and
codes and associated documents and materials which are used by any
Second Tier Agent in connection with the operation of the Second Tier
Data Collection System operated by such Second Tier Agent;
"Second Tier Supplier" means a person for the time being party to this
Agreement who is the holder of a Second Tier Supply Licence;
"Second Tier Supply Licence" means a licence granted or to be granted
under section 6(2)(a) of the Act;
<PAGE>
"Second Tier System" means any Metering System from which the
Settlement System Administrator or any Second Tier Agent is required
to collect, aggregate, adjust or transmit data for the purposes of a
supply pursuant to a Second Tier Supply Licence;
"Secretary" means the person for the time being and from time to time
holding office as secretary of the Executive Committee;
"Secretary of State" has the meaning given to that term in the Act;
"Security Amount" means, in respect of a Providing Member or the Grid
Operator (as the case may be), the aggregate of available amounts of
each outstanding Letter of Credit plus the principal amount (if any)
of cash that such Providing Member or the Grid Operator has paid to
the credit of the Pool Reserve Account (and which has not been repaid
to such Providing Member or the Grid Operator) and less the amount of
all outstanding loans deemed to be made under Section 21.1.3 or 21.1.5
of Schedule 11 to such Providing Member or the Grid Operator. For the
purposes of this definition, in relation to a Letter of Credit,
"available amount" means the face amount thereof less:-
(i) payments already made thereunder; and
(ii) claims made thereunder but not yet paid;
"Security Cover" means, in respect of each Providing Member and the
Grid Operator, the aggregate amount for the time being which it shall
be required by the Executive Committee to provide and maintain by way
of security in accordance with Part 3 of Schedule 11;
"Security Period" has the meaning given to that term in the Fuel
Security Code;
"Serial" means any one of the standards of Supplier performance set
out in any of Sections 2 to 8 (both inclusive) of Part 2 of the Menu
of Supplier Charges;
"Service Line" means:-
(i) for the purposes of Schedule 4, a legally binding operating
document which is agreed for the time being and from time to
time by the Settlement System Administrator and the
Executive Committee to be a Service Line in respect of a
particular Service; and
(ii) in any other case, a document of that title approved by the
Executive Committee for the time being and from time to
time;
"Services" has the meaning given to that term in Schedule 4 or, in
relation to the Pool Funds Administrator, means the services and
responsibilities to be supplied or discharged by it pursuant to this
Agreement;
<PAGE>
"Settlement" means the operation of the Settlement System under this
Agreement;
"Settlement Account" means, in relation to a Pool Member, the
Ancillary Services Provider or the Grid Operator, an account
maintained at a Settlement Bank and designated in accordance with
Section 4.4 of Schedule 11;
"Settlement Account Designation" means a notice substantially in the
form set out in Part 1 of Annex 3 to Schedule 11 or in such other form
as may be specified by the Executive Committee, completed and signed
by a Pool Member, the Ancillary Services Provider or the Grid
Operator, as the case may be, designating a Settlement Account for the
purposes of Schedule 11;
"Settlement Agreement for Scotland" means the Settlement Agreement for
Scotland, including all Service Requirements and Market Procedures (as
therein defined) made under it;
"Settlement Arrangements" means this Agreement, the Service Lines, the
Agreed Procedures and the Codes of Practice;
"Settlement Bank" means a bank which:-
(i) has its head office or a branch situated in the United
Kingdom and which holds accounts denominated in the lawful
currency of the United Kingdom at such office or branch;
(ii) is a settlement member of CHAPS or is a CHAPS participant by
virtue of an agency agreement with a settlement member; and
(iii) is either:-
(a) a European institution under the Banking
Co-ordination (Second Council Directive)
Regulations 1992; or
(b) an authorised institution under the Banking Act
1987;
"Settlement Bank Mandate" means any mandate referred to in Section 4.7
of Schedule 11 to be given by the Pool Funds Administrator in favour
of a Settlement Bank or, as the context may require, a particular one
of them in such form(s) as the Executive Committee may approve, such
approval not to be unreasonably withheld, such mandate being given for
the purpose of establishing and maintaining a Collection Account;
"Settlement Day" has the meaning given to that term in Schedule 9;
"Settlement Goal" means release 2.0 of the computer program in machine
readable code which implements the functionality defined in the Pool
Rules and the Datum Document, and is used for the purposes of
producing the unconstrained schedules as required by the
<PAGE>
Pool Rules as the same may from time to time be changed pursuant to
Section 6 of Schedule 35;
"Settlement Metering Data" means Metered Data as defined in, and used
in accordance with Section 3 of Schedule 9 and relevant metered data
in accordance with Appendix 6 to Schedule 9, which is used for the
purposes of Settlement;
"Settlement Payment Date" means, in relation to any Settlement Day,
the date (not being a Reconciliation Payment Date) fixed in accordance
with Section 2 of Schedule 11 upon which Notified Payments (not being
payments required to be settled as a result of a Timetabled
Reconciliation Run) in respect of supplies of electricity, the
provision of Ancillary Services and payments due in relation to
Transport Uplift must be settled in accordance with Schedule 11;
"Settlement Period" has the meaning given to that term in Schedule 9;
"Settlement Register" has the meaning given to that term in Schedule
9;
"Settlement Re-run" has the meaning given to that term in Schedule 9;
"Settlement Run" means:-
(i) in relation to Clause 63.1.4 and Schedule 11, a Stage 1
Settlement Run or a Stage 2 Initial Settlement Run, as the
case may be; or
(ii) in any other case, means a run of Settlement;
"Settlement System" means those assets, systems and procedures for the
calculation in accordance with the Pool Rules of payments which become
due thereunder, as modified from time to time;
"Settlement System Administrator" means ESIS in its capacity as
Settlement System Administrator or any replacement therefor as
Settlement System Administrator from time to time appointed pursuant
to this Agreement, and for the purposes of Schedule 35 includes any
person who is to become the Settlement System Administrator;
"SG Committee Member" means an RS Committee Member elected in order to
represent the interests of Small Generators on the Executive
Committee;
"SG Nominees" has the meaning given to that term in Clause 15.6.4(b);
"SG Pool Member" means a Small Generator which is not in the same Pool
Member's Group as an MP Pool Member;
"SG Preference List" has the meaning given to that term in Clause
15.6.4(h);
<PAGE>
"Site" means:-
(i) a Grid Entry Point;
(ii) a Grid Supply Point or Bulk Supply Point;
(iii) the point of connection of a Generator which is Embedded or
of an Independent Network or of a Customer to a Distribution
System or the NGC Transmission System, or the point of
connection of a Non-Pooled Generator to a Distribution
System;
(iv) the point of connection of two Distribution Systems; or
(v) the point of connection of an External Interconnection to
the NGC Transmission System;
"Small Generator" means any Independent Generator with Generating
Units the aggregate Registered Capacity of which does not exceed
100MW;
"Software" means the Stage 1 Software and/or the Stage 2 Software
and/or the Second Tier Software, as the context may require;
"Special Run" has the meaning given to that term in Schedule 15;
"Specification" means at any time the computer specification(s) giving
effect to the Pool Rules and such other matters as may be approved by
the Executive Committee and also, where applicable to the Stage 1
Settlement System, agreed by the Settlement System Administrator;
"Specified Assets and Equipment" has the meaning given to that term in
Section 4 of Part B of Schedule 17;
"SSA Arrangements" means the provisions of this Agreement, the Service
Lines, the Agreed Procedures and the Codes of Practice relating to the
rights, benefits, duties, responsibilities and obligations of the
Settlement System Administrator;
"SSA System" means all operating systems, compilers and other software
necessary to or used for the operation or testing of the Stage 1
Hardware and the Stage 1 Settlement System (excluding, for the
avoidance of doubt, Developed Application Software and Licensed
Application Software);
"SSP Liaison Officer" means the liaison officer of the Scottish PESs
(or, as the case may be, Scottish Settlements) nominated for the time
being and from time to time by them in accordance with Scots
Subsidiary Document 4;
<PAGE>
"Stage 1 Computer Systems" means all and any computer systems used by
the Settlement System Administrator and required in connection with
the operation of the Stage 1 Settlement System;
"Stage 1 Customer" means a person to whom electrical power is provided
whose Consumption is settled within the Stage 1 Settlement System
(whether or not Embedded);
"Stage 1 Development Policies" means the policies, procedures and
practices for the development of the Stage 1 Computer Systems in the
forms initialled for the purposes of identification as at 29th
November, 1991 by or on behalf of the Executive Committee and the
Settlement System Administrator, as the same have been or may be
amended from time to time in accordance with the terms of this
Agreement;
"Stage 1 Hardware" means at any time the computer equipment and
accessories used by or on behalf of the Settlement System
Administrator on or in connection with which the Stage 1 Software
functions or is intended to function at such time (other than Second
Tier Hardware) and for the avoidance of doubt the Stage 1 Hardware at
1st April, 1996 is specified in version 1.0 of the Contract Management
Rules;
"Stage 1 Metering Equipment" means Meters, measurement transformers
(voltage, current or combination units), metering protection equipment
including alarms, circuitry, associated Communications Equipment and
Outstations and wiring, which are part of the Active Energy and/or
Reactive Energy measuring and transmitting equipment for Stage 1
Settlement;
"Stage 1 Metering System" means all or that part of the Commissioned
Metering Equipment at or relating to a Site linked to a single
Outstation at or relating to that Site (and includes, for the
avoidance of doubt, such Outstation) which measures a trade in Active
Energy that is settled within the Stage 1 Settlement System or, as the
case may be, Reactive Energy. Without prejudice to the generality of
the foregoing, a set of non-exhaustive diagrammatic representations of
Stage 1 Metering Systems is contained in Annex 5 to Schedule 21;
"Stage 1 Non-Pooled Generator" means a Non-Pooled Generator whose
Non-Pooled Generation is settled within the Stage 1 Settlement System;
"Stage 1 Settlement" means the operation of the Stage 1 Settlement
System under this Agreement;
<PAGE>
"Stage 1 Settlement Run" means, in respect of transactions occurring
on the relevant Settlement Day for which payments are to be settled
pursuant to Schedule 11, the data and information which the Settlement
System Administrator is required to deliver to the Pool Funds
Administrator on the Notification Date pursuant to Section 17 of
Schedule 11 in respect of such transactions;
"Stage 1 Settlement System" means those assets, systems and procedures
for the calculation of payments which become due under the Pool Rules
in accordance with Parts I to VI (inclusive) and Parts XI and XII of
Schedule 9 and such Appendices to Schedule 9 as relate to such Parts;
"Stage 1 Settlements Business" means the business of the Settlement
System Administrator in operating the Stage 1 Settlement System under
this Agreement;
"Stage 1 Software" means at any time all the computer programs, codes
and associated documents and materials which are at such time used by
or on behalf of the Settlement System Administrator and required in
Stage 1 Settlement;
"Stage 2 Customer" means a person to whom electrical power is provided
whose Consumption is settled within the Stage 2 Settlement System;
"Stage 2 Development Policies" means the policies, procedures and
practices for the development of any computer systems required in
connection with Stage 2 Settlement;
"Stage 2 Generic Dispensations" has the meaning given to that term in
Section 14.2 of Schedule 28;
"Stage 2 Hardware" means at any time the computer equipment and
accessories used in connection with the Stage 2 Software;
"Stage 2 Initial Settlement Run" means, in respect of transactions
occurring on the relevant Settlement Day for which payments are to be
settled pursuant to Schedule 11, the data and information which the
Initial Settlement and Reconciliation Agent is required to deliver to
the Pool Funds Administrator on the Notification Date pursuant to
Section 17 of Schedule 11 in respect of such transactions;
"Stage 2 Invitee" has the meaning given to that term in Section 20 of
Schedule 28;
"Stage 2 Metering Equipment" means Meters, measurement transformers
(voltage, current or combination units), metering protection equipment
including alarms, circuitry, associated Communications Equipment and
Outstations and wiring, which are part of the Active Energy and/or
Reactive Energy measuring and transmitting equipment for Stage 2
Settlement;
<PAGE>
"Stage 2 Metering System" means all or that part of the Stage 2
Metering Equipment which measures a trade in Active Energy or, as the
case may be, Reactive Energy related to a Metering Point;
"Stage 2 Metering System Number" or "MSID" means a unique number
relating to a Metering Point and which consists of the following:-
(i) a 2 digit number determined by reference to the Authorised
Area of the relevant PES;
(ii) a 10 digit reference number provided by the relevant PES;
and
(iii) a 1 digit check number provided by the relevant PES;
"Stage 2 Non-Pooled Generator" means a Non-Pooled Generator whose
Non-Pooled Generation is settled within the Stage 2 Settlement System;
"Stage 2 Operational Costs" means those costs which are directly or
indirectly referable to Stage 2 Settlement, as determined from time to
time by the Executive Committee in accordance with Section 8.1 of
Schedule 31, which shall in any event include the costs incurred and
charges payable in respect of:-
(i) the Initial Settlement and Reconciliation Agent;
(ii) the Profile Administrator;
(iii) the Teleswitch Agent;
(iv) the use by the Initial Settlement and Reconciliation Agent
of the Data Transfer Service (as defined in the Data
Transfer Service Agreement);
(v) the Accreditation and Certification processes;
(vi) disputes relating to Stage 2 Settlement;
(vii) the Entry Processes;
(viii) those functions of the Pool Auditor referable to Stage 2
Settlement;
(ix) the development, establishment and operation of the
Performance Assurance Reporting and Monitoring Systems;
(x) those functions of the Performance Assurance Administrator
referable to Stage 2 Settlement;
<PAGE>
(xi) amounts payable to the Pool Funds Administrator by way of
the Reconciliation Fee, the 1998 PFA Development Fee, the
Additional Reconciliation Run Fee and the Special Run Fee
(each as defined in Schedule 15); and
(xii) the transfer of Metering Systems in respect of 100kW
Premises from ERS to a PES Registration Service,
but shall in any event not include any costs or charges relating to
the initial development of the Stage 2 Settlement System, the costs of
the Action Task Force and any costs or charges falling within Section
6.1 of Schedule 31 (other than paragraphs 6.1.6 and 6.1.8);
"Stage 2 Settlement" means the operation of the Stage 2 Settlement
System under this Agreement;
"Stage 2 Settlement System" means those assets, systems and procedures
used for the calculation of payments which become due under the Pool
Rules in accordance with Part I and Part VII to Part XII (inclusive)
of Schedule 9 and such Appendices to Schedule 9 as relate to such
Parts;
"Stage 2 Software" means at any time all the computer programs, codes
and associated documents and materials which are at such time required
in Stage 2 Settlement;
"Standard Settlement Configuration" has the meaning given to that term
in Schedule 9;
"Statement of Charges" means the statement of charges required to be
submitted by the Ancillary Services Provider pursuant to Section 2.8
of Schedule 18 in the form or substantially in the form set out in
Part 3 of the Annex to Schedule 18 or such other form as the Executive
and the Ancillary Services Provider may agree showing the total
charges to be made by the Ancillary Services Provider on all Suppliers
in accordance with Schedule 18;
"Statement of Costs" means the statement of costs required to be
submitted by the Ancillary Services Provider pursuant to Section 2.4
of Schedule 18 setting out the actual and accrued expenditure incurred
by the Ancillary Services Provider in any period which shall be
substantially in the form set out in Part 2 of the Annex to Schedule
18 or such other form as the Executive and the Ancillary Services
Provider may agree;
"sterling" or "(pound)" means the lawful currency of the United
Kingdom for the time being and from time to time;
"Substantial Part" has the meaning given to that term in Section
13.2(c)(i) of Schedule 21;
<PAGE>
"Supplemental Agreement" means any agreement entered or to be entered
into between NGC and any User party to the Master Connection and Use
of System Agreement and expressed to be supplemental thereto;
"Supplier" means a person for the time being party to this Agreement
in the capacity of a Supplier and, where the expression is used in
Part III, Part IV or Part XI or Schedule 18, who is also or (where
appropriate) is to become a Pool Member;
"Supplier Agent" means a Meter Operator, Data Collector, Data
Aggregator or Meter Administrator, as the context may require;
"Supplier Deemed Take" has the meaning given to that term in Schedule
9;
"Supplier Entry Process" means the process set out in Agreed Procedure
AP512 for determining whether a Supplier and its Supplier Agents are
able to participate in Stage 2 Settlement relative to a particular GSP
Group;
"Supplier Force Majeure" has the meaning given to that term in Section
2.8 of Schedule 26;
"Supplier Weighted Vote" has the meaning given to that term in Clause
11.2.2;
"Supplier's Connection Agreement" means the agreement for connection
to any User System envisaged in Condition 8C of a PES Licence and
Condition 6 of a Second Tier Supply Licence;
"Supplier's Monthly Cap" means, in relation to a Supplier in a GSP
Group, the cap on its liability to pay charges in respect of any month
determined in accordance with Section 16 of the Menu of Supplier
Charges;
"Supplier's Net Liability" means, in relation to a Supplier in a GSP
Group, the amount determined in respect of any month in accordance
with Section 5.4 of Schedule 31;
"Supplier's Use of System Agreement" means the agreement for use of
system envisaged in Condition 8B of a PES Licence and Condition 6 of a
Second Tier Supply Licence;
"Suppliers' Half Hourly Charge" has the meaning given to that term in
Section 7.5.1 of Schedule 31;
"Support Documentation" means any documentation provided by the
Programme Liaison Officer as clarification to any of the 1998
Documentation, the Existing Pool Documentation or the ISRA
Documentation in response to a request from the SSP Liaison Officer
pursuant to Scots Subsidiary Document 4;
<PAGE>
"Support Services" means:-
(i) support services for systems tests, integration tests and
trialing;
(ii) services for maintenance, error correction, change
implementation and new system releases; and
(iii) training services;
"Suspended Stage 2 Provisions" means:-
(i) all the provisions of Schedule 26 (other than Sections 1,
2.1, 2.3, 8.3, 9.2, 10 and 11.1 to 11.7 (inclusive));
(ii) Sections 4 and 6 of Schedule 27; and
(iii) Sections 8, 9, 10 and 17 of Schedule 28;
"Synopsis of Metering Codes" means a synopsis maintained and updated
as necessary by the Executive Committee listing each Code of Practice
approved as such from time to time in accordance with this Agreement;
"System" means any User System or the NGC Transmission System, as the
case may be;
"System Ancillary Services" means Ancillary Services which are
required for System reasons and which must be provided by Users (but
in some cases only if a User has agreed to provide the same under a
Supplemental Agreement);
"Systems Requirement Request" has the meaning given to that term in
Scots Subsidiary Document 3;
"Systems Requirement Response" has the meaning given to that term in
Scots Subsidiary Document 3;
"Tariff" for any period in respect of any Site (which whenever used in
this definition shall include all Qualifying Sites) means the tariff
approved by the Director and published by the Executive Committee on
or before that tariff becomes effective and providing for amounts
payable to Tariff Operators of certain Sites in a class of which that
Site is a member in respect of the provision of installation and
maintenance services in respect of Communications Equipment; and the
"relevant Tariff" in respect of any Site (or Metering Equipment or
Metering System in respect of a Site) shall be the Tariff which is so
expressed by its terms to apply to that class of Sites to which such
Site so belongs;
<PAGE>
"Tariff Operator" means a Meter Operator Party which is an Operator or
which is appointed as the operator pursuant to an agreement or an
arrangement in respect of Metering Equipment at a Qualifying Site;
"Teleswitch Agent" means the person for the time being and from time
to time appointed to act as the Teleswitch Agent pursuant to Schedule
30;
"Third Party" has the meaning given to that term in Section
21.3(a)(iii) of Schedule 21 or, as the context may require, Section
19.1(iii) of Schedule 28;
"Third Party Claim" has the meaning given to that term in Clause 83.5;
"Third Quarter" means, in respect of any year, the months of July,
August and September;
"Third Reconciliation Run" means, in respect of any Settlement Day,
the third of the Timetabled Reconciliation Runs (or, in the absence
thereof, any Ad-Hoc Reconciliation Run taking the place thereof);
"Time Pattern Regime" has the meaning given to that term in Schedule
9;
"Timetabled Reconciliation Run" means, in respect of transactions
occurring on the relevant Settlement Day for which payments are to be
settled pursuant to Schedule 11, the data and information which the
Initial Settlement and Reconciliation Agent is required to deliver to
the Pool Funds Administrator on the Reconciliation Notification Date
pursuant to Section 17 of Schedule 11 in respect of such transactions,
and known as a "Reconciliation Run" (but not including an "Ad-Hoc
Reconciliation Run" or a Special Run);
"Total Fixed ERS Charges" means, in respect of any Accounting Period
beginning on or after 1st April, 1998, the aggregate of the charges
identified as fixed charges payable to the Settlement System
Administrator in respect of ERS, as adjusted in accordance with
Section 4.3 of Schedule 31 to account for any surplus or deficit from
a previous Accounting Period;
"Total Operating Costs" means, in respect of any Accounting Period or
part thereof:-
(i) the total expenditure properly incurred or accrued by or on
behalf of the Ancillary Services Provider in operating the
Ancillary Services Business in such period or part thereof
(other than that referred to in (ii) and (iii) below); plus
(ii) all Depreciation in such period on all assets owned and
employed by the Ancillary Services Provider in the Ancillary
Services Business; plus
(iii) all other expenditure properly incurred or accrued during
such period which, under Schedule 18, is permitted to be
included in any Statement of Costs; plus
<PAGE>
(iv) Efficiencies which are permitted to be included in any
Statement of Costs pursuant to Section 5.4 of Schedule 18;
"Total System" means the NGC Transmission System and all User Systems
in England and Wales;
"Total Variable ERS Charges" means, in respect of any Accounting
Period beginning on or after 1st April, 1998, the aggregate of the
charges payable to the Settlement System Administrator in respect of
ERS (other than the Total Fixed ERS Charges), as adjusted in
accordance with Section 3.4 of Schedule 31 to account for any surplus
or deficit from a previous Accounting Period;
"Total Weighted Votes" means at any time the aggregate number of
Weighted Votes to which all Pool Members (in whatever capacity) are
entitled at such time before the application of Clause 11.4;
"Trading Site" shall be determined in accordance with Schedule 17;
"Trading Site Applicants" has the meaning given to that term in
Section 2 of Part A of Schedule 17;
"Trading Site Application" has the meaning given to that term in
Section 2 of Part A Schedule 17;
"Transferee Pool Member" has the meaning given to that term in Clause
11.2.2(a) or, as the context may require, Section 2(A) of Schedule 13;
"Transitional Arrangements" has the meaning given to that term in
Clause 5.2;
"Transmission Licence" means a licence granted or to be granted under
section 6(1)(b) of the Act, the authorised area of which is England
and Wales or any part of either thereof;
"Transport Uplift" has the meaning given to that term in Schedule 9;
"TUoS File" has the meaning given to that term in Section 3.9 of
Schedule 30;
"TW" means terrawatt;
"TWh" means terrawatt-hours;
"Type 1 Goal Licence" has the meaning given to that expression in
Schedule 35;
<PAGE>
"Underlying Interest" means, in relation to any Generating Unit, any
interest arising by reason of the person or affiliate or any related
undertaking of the person or affiliate (whether alone or with
others):-
(i) holding or being entitled to acquire an interest in the land
on which the Generating Unit, or any part thereof, is built;
(ii) being in partnership with or party to any arrangement for
sharing of profits or cost-savings or any joint venture with
any person holding or entitled to acquire an interest in the
land on which the Generating Unit, or any part thereof, is
built;
(iii) owning any electrical plant situated on or operated as a
unit with the Generating Unit (and for such purpose, any
electrical plant or equipment to the possession of which the
person, affiliate or related undertaking is entitled under
any agreement for hire, hire purchase, conditional sale or
loan shall be deemed to be owned by such person) provided
always that such electrical plant shall not be deemed to be
operated as a unit with any Generating Unit by reason only
of connections with any other system for the transmission or
distribution of electricity; or
(iv) having obtained any consent under section 36 of the Act
required for the construction or extension of the Generating
Unit or any part thereof;
"underpayment" has the meaning given to that term in Section 23.4 of
Schedule 11;
"undertaking" has the meaning given to that term by section 259 of the
Companies Act 1985;
"Unmetered Supply" means a supply of electricity to a particular
inventory of Apparatus in respect of which a Public Electricity
Supplier has issued an Unmetered Supply Certificate;
"Unmetered Supply Certificate" means a certificate issued by a Public
Electricity Supplier permitting a supply of electricity to be made in
its Authorised Area without the requirement for such supply to be
metered, such certificate to be agreed between the relevant Public
Electricity Supplier and the Customer taking the supply and to contain
at least the information set out or referred to in the relevant Agreed
Procedure;
"User" means a term utilised in various sections of the Grid Code to
refer to a person using the NGC Transmission System and includes an
Externally Interconnected Party, all as more particularly identified
in each section of the Grid Code concerned;
"User Site" means a site owned (or occupied pursuant to a lease,
licence or other agreement) by a User in which there is a Connection
Point;
<PAGE>
"User System" means:-
(i) other than in relation to an External Pool Member or an
Externally Interconnected Party, any system owned or
operated by a User comprising Generating Units and/or
Distribution Systems (and/or other systems consisting,
wholly or mainly, of electric lines which are owned or
operated by a person other than a Public Electricity
Supplier) and Plant and/or Apparatus connecting Generating
Units, Distribution Systems (and/or other systems
consisting, wholly or mainly, of electric lines which are
owned or operated by a person other than a Public
Electricity Supplier) or Non-Embedded Customers to the NGC
Transmission System or (except in the case of Non-Embedded
Customers) to the relevant other User System, as the case
may be, including any Remote Transmission Assets (as defined
in the Grid Code) operated by such User or other person and
any Plant and/or Apparatus and meters owned or operated by
the User or other person in connection with the distribution
of electricity, but does not include any part of the NGC
Transmission System; and
(ii) in relation to an External Pool Member or an Externally
Interconnected Party, the External System connected to the
relevant External Interconnection;
"VAr" means voltamperes reactive;
"Variable ERS Charge" means the amount from time to time determined by
the Executive Committee for the purposes of Section 3 of Schedule 31;
"Variation Menus" has the meaning given to that term in the Appendix
to Schedule 4;
"Votes Calculation Period" means, in relation to any month, the then
most recent month in respect of which the final run of Stage 1
Settlement and the Stage 2 Initial Settlement Run are available, as at
the close of business on the Business Day immediately preceding the
relevant Calculation Date, in relation to all Settlement Periods in
that then most recent month;
"Voting Paper" has the meaning given to that term in Clause 15.5.3(a)
or (as the context may require) Clause 15.6.4(a);
"Weighted Vote" means a Generator Weighted Vote or a Supplier Weighted
Vote or the sum of the two for each Pool Member, as the context may
require;
"Weighted Votes" means, in relation to a Pool Member, the number of
votes to which such Pool Member is entitled pursuant to Clause 11.2;
"Wh" means watt-hours;
"Withdrawing Party" has the meaning given to that term in Clause 8.10;
<PAGE>
"working day" has the meaning given to that term in the Act;
"Works Programme" has the meaning given to that term in Clause 5.9;
and
"Works Programme Manager" has the meaning given to that term in Clause
5.13.
1.2 Construction of certain references: In this Agreement, except where
the context otherwise requires, any reference to:-
1.2.1 an Act of Parliament or any Part or section or other
provision of, or Schedule to, an Act of Parliament shall be
construed, at the particular time, as including a reference
to any modification, extension or re-enactment thereof then
in force and to all instruments, orders or regulations then
in force and made under or deriving validity from the
relevant Act of Parliament;
1.2.2 another agreement or any deed or other instrument shall be
construed as a reference to that other agreement, deed or
other instrument as the same may have been, or may from time
to time be, amended, varied, supplemented, modified,
suspended or novated;
1.2.3 an "affiliate" means, in relation to any person, any holding
company or subsidiary of such person or any subsidiary of a
holding company of such person, in each case within the
meaning of sections 736, 736A and 736B of the Companies Act
1985 as substituted by section 144 of the Companies Act
1989;
1.2.4 a "Business Day" means any week day (other than a Saturday)
on which banks are open for domestic business in the City of
London;
1.2.5 a "day" means a period of 24 hours (or such other number of
hours as may be relevant in the case of changes for daylight
saving) ending at 12.00 midnight;
1.2.6 a "holding company" means, in relation to any person, a
holding company of such person within the meaning given to
that term in Clause 1.2.3;
1.2.7 a "month" means a calendar month;
1.2.8 a "person" includes any individual, partnership, firm,
company, corporation, joint venture, trust, association,
organisation or other entity, in each case whether or not
having separate legal personality;
1.2.9 a "related undertaking" means, in relation to any person,
any undertaking in which such person has a participating
interest as defined by section 260(1) of the Companies Act
1985 as substituted by section 22 of the Companies Act 1989;
1.2.10 a "subsidiary" means, in relation to any person, a
subsidiary of such person within the meaning given to that
term in Clause 1.2.3; and
<PAGE>
1.2.11 a "year" means a calendar year.
For all purposes of this Agreement no Party shall be an associate or a
related undertaking of any other Party only by reason of all or any of
the share capital of any Party being owned directly or indirectly by
the Secretary of State.
1.3 Interpretation:
1.3.1 In this Agreement:-
(a) references to the masculine shall include the
feminine and references in the singular shall
include references in the plural and vice versa;
(b) references to the word "include" or "including"
are to be construed without limitation;
(c) references to time are to London time;
(d) except where the context otherwise requires,
references to a particular Part, Clause,
sub-clause, paragraph, sub-paragraph or Schedule
shall be a reference to that Part, Clause,
sub-clause, paragraph, sub-paragraph or Schedule
in or to this Agreement;
(e) except where the context otherwise requires,
references in a Schedule to a particular Part,
Section, sub-section, paragraph, sub-paragraph,
Annex or Appendix shall be a reference to that
Part, Section, sub-section, paragraph,
sub-paragraph, Annex or Appendix in or to that
Schedule; and
(f) the table of contents, the headings to each of the
Parts, Clauses, sub-clauses, paragraphs,
sub-paragraphs, Schedules, Sections, sub-sections,
Annexes and Appendices are inserted for
convenience only and shall be ignored in
construing this Agreement.
1.3.2 With respect to Part XV of and Schedules 21 and 28 to this
Agreement (but not elsewhere or otherwise):-
(a) in the event that any person is required to give
or is entitled to withhold its consent or approval
to terms and conditions of this Agreement or an
Agreed Procedure or Code of Practice or to any
other act, matter or thing under or referred to in
this Agreement or has agreed to revise such terms
and conditions or an Agreed Procedure or Code of
Practice or any dispensation therefrom, such
person shall act in good faith and be reasonable
in the giving or withholding of such consent or
approval or in imposing conditions to such consent
or approval or in agreeing revised
<PAGE>
terms and conditions of Part XV of or Schedule 21
or 28 to this Agreement or any Agreed Procedure or
Code of Practice; and
(b) where any person is required to perform any act or
give any consent or notification or do any other
thing, it shall, in the absence of any specified
time limit, perform, give or do or (as the case
may be) notify its withholding of its consent or
approval to the same as soon as is reasonably
practicable in all the circumstances.
1.4 The Euro: If at any time a single or unified European currency is
introduced (whether known as the "euro" or otherwise), as contemplated
in the Treaty of Rome of 25th March, 1957, as amended by the Single
European Act 1986 and the treaty on European union which was signed at
Maastricht on 1st February, 1992, and as a result sterling is replaced
by a single or unified European currency, then the amounts of sterling
referred to in this Agreement shall, if replaced by the single or
unified currency, be deemed converted into amounts of the single or
unified currency at the rate prescribed by any implementing regulation
or directive. The Parties shall make such adjustments to this
Agreement as are necessary to implement the provisions of this Clause
and to ensure that each Party is in the same financial position as if
such currency had not been replaced.
1.5 Review of Procedures:
(a) The Parties undertake to review the Agreed Procedures, the
Codes of Practice and the Service Lines applicable to
Schedule 4 by no later than the date (the "Review End Date")
falling 30 days after the date on which this Clause 1.5
takes effect in accordance with a workplan in form and
content agreed by the Executive Committee and the Settlement
System Administrator as at the date on which this Clause 1.5
takes effect, such workplan to include the principle that
ESIS will provide discussion drafts of the Service Lines
applicable to Schedule 4 to the Executive Committee and that
these redrafts will then be the subject of the joint review
by ESIS and the Executive Committee.
(b) In reviewing the Agreed Procedures, the Codes of Practice
and the Service Lines applicable to Schedule 4:-
(i) the product of each such Service Line shall remain
unaltered and if any Agreed Procedure or Code of
Practice shall have a product which is part of the
current working practice of ESIS but which is not
currently in a Service Line applicable to Schedule
4, that product shall be incorporated into the
relevant Service Line;
(ii) subject to sub-paragraph (i) above, each of the
Agreed Procedures, the Codes of Practice and the
Service Lines applicable to Schedule 4 shall be
brought into line with Parties' working practices
current at the date on which this Clause 1.5 takes
effect and made consistent inter se.
<PAGE>
(c) Each of the Parties undertakes to comply at all times with
its obligations under or pursuant to the relevant Service
Lines notwithstanding that the same are being reviewed as
provided in this Clause 1.5.
(d) (i) Each of the Parties undertakes to comply at all
times with the Agreed Procedures and the Codes of
Practice insofar as applicable to such Party
provided that:-
(A) subject to sub-paragraph (B) below,
pending completion of the review of the
Agreed Procedures and Codes of Practice
pursuant to this Clause 1.5, if Parties'
working practices current at the date on
which this Clause 1.5 takes effect are
inconsistent with the terms of any
Agreed Procedure or Code of Practice,
such working practices shall prevail
(but without prejudice and subject to
the requirements of Clause 1.5(b)(i));
and
(B) if the review of a Service Line
applicable to Schedule 4, Agreed
Procedure or Code of Practice pursuant
to this Clause 1.5 is not completed by
the Review End Date then, until it is
completed, the Parties shall continue to
comply with the Parties' working
practices then current.
(ii) The Executive Committee shall provide copies of
the Agreed Procedures and Codes of Practice to a
Party upon request.
(e) Nothing in this Clause 1.5 shall affect Clause 1.4 or any
other review of Agreed Procedures, Codes of Practice or
Service Lines required or permitted elsewhere pursuant to
this Agreement.
1.6 Obligation on Generators with respect to Availability Declarations: In
respect of each of its Centrally Despatched Generating Units a
Generator shall submit an Availability Declaration or a re-declared
Availability Declaration to ensure that its Genset Offered
Availability and Genset Re-Offered Availability do not exceed at any
time the maximum Gross/Net generation which it, acting as a prudent
operator using Good Industry Practice, would reasonably expect to
achieve if such Centrally Despatched Generating Unit were to be
despatched at that level. In this Clause 1.6 capitalised terms not
defined in Clause 1.1 shall have the respective meanings given to them
in the Pool Rules.
1.7 Schedules: So far as not expressly provided elsewhere in this
Agreement, the Schedules shall have effect in accordance with their
terms.
2. THE EFFECTIVE DATE
Commencement: The rights and obligations of each of the Parties under this
Agreement shall, unless otherwise specified, commence on the Effective Date.
<PAGE>
3. ADDITIONAL PARTIES
3.1 General: Subject to the following provisions of this Clause 3, the
Parties shall admit as an additional party to this Agreement any
person (the "New Party") (not, for the avoidance of doubt, being a
successor Settlement System Administrator, Pool Funds Administrator,
Grid Operator or Ancillary Services Provider, to which the provisions
of Clause 3.11, 3.12, 3.13 or, as the case may be, 3.14 apply) who
applies to be admitted, in the capacity or, as the case may be,
capacities requested by the New Party.
3.2 Admission Application: A New Party wishing to be admitted as an
additional party to this Agreement shall complete an Admission
Application and shall deliver it to the Executive Committee together
with the fee (which shall be non-refundable) and other documents (if
any) therein specified.
3.3 Executive Committee response:
3.3.1 Upon receipt of any Admission Application duly completed the
Executive Committee shall notify (for information only) all
Parties and the Director of such receipt and of the name of
the New Party.
3.3.2 Within 60 days after receipt of a duly completed Admission
Application from a New Party the Executive Committee shall
notify the New Party and the Director either:-
(a) that the New Party shall be admitted as a Party,
in which event the provisions of Clause 3.6 shall
apply; or
(b) that the Executive Committee requires the New
Party to produce evidence satisfactory to the
Executive Committee ("Additional Evidence")
demonstrating the New Party's fulfilment of the
admission conditions relevant to it set out in its
Admission Application, in which event the
provisions of Clause 3.4 shall apply.
If the Executive Committee shall fail so to notify the New
Party and the Director, the New Party may within 28 days
after the expiry of the said 60 day period refer the matter
to the Director pursuant to Clause 3.5, in which event the
provisions of that Clause shall apply.
3.4 Additional Evidence: Within 28 days (or such longer period as the
Executive Committee in its absolute discretion may allow) after the
Executive Committee has given notice pursuant to Clause 3.3.2(b) the
New Party shall:-
3.4.1 provide the Executive Committee with the Additional
Evidence, in which event the provisions of Clause 3.6 shall
apply; or
<PAGE>
3.4.2 refer the matter to the Director pursuant to Clause 3.5, in
which event the provisions of that Clause shall apply,
failing which the New Party's application for admission shall lapse
and be of no effect and the New Party shall not be, and shall not be
entitled to be, admitted as a Party consequent upon such application
(but without prejudice to any new application for admission it may
make thereafter).
3.5 Reference to the Director:
3.5.1 If:-
(a) any dispute shall arise between the Executive
Committee and a New Party over whether the New
Party has fulfilled the admission conditions
relevant to it; or
(b) the Executive Committee shall have failed to
notify the New Party as provided in Clause 3.3
within the 60 day period therein specified,
the issue of whether the New Party has fulfilled the
admission conditions relevant to it may be referred by way
of written application of the New Party, copied to the
Executive Committee, to the Director for determination. The
determination of the Director, which shall be made within 28
days after receipt of the said written application and shall
be to the effect set out in paragraph (a) or (b) of Clause
3.5.2, shall be final and binding for all purposes. The
Director shall publish reasons supporting his determination.
3.5.2 (a) If the determination is to the effect that the New
Party has fulfilled the said admission conditions,
the New Party shall be admitted and the provisions
of Clause 3.6 shall apply.
(b) If the determination is to the effect that the New
Party has not fulfilled the said admission
conditions, the New Party's application for
admission shall lapse and be of no effect and the
New Party shall not be, and shall not be entitled
to be, admitted as a Party consequent upon such
application (but without prejudice to any new
application it may make thereafter).
3.6 Admission: If:-
3.6.1 the Executive Committee shall notify the New Party and the
Director as provided in Clause 3.3.2(a); or
3.6.2 following a request for Additional Evidence pursuant to
Clause 3.3.2(b), the New Party provides the same within the
period specified in Clause 3.4; or
<PAGE>
3.6.3 the New Party is to be admitted as a Party pursuant to
Clause 3.5,
the Executive Committee shall forthwith prepare or cause to be
prepared an Accession Agreement. Subject to the Executive Committee
making all notifications and filings (if any) required of it for
regulatory purposes and obtaining all regulatory consents and
approvals (if any) required to be obtained by it, the Executive
Committee shall instruct the Chief Executive or another person
authorised by the Executive Committee for the purpose to prepare an
Accession Agreement and to sign and deliver the Accession Agreement on
behalf of all Parties other than the New Party and the New Party shall
also execute and deliver the Accession Agreement and, on and subject
to the terms and conditions of the Accession Agreement, the New Party
shall become a Party for all purposes of this Agreement with effect
from the date specified in such Accession Agreement (and, if no such
date is so specified, the date of such Accession Agreement). The New
Party shall pay all costs and expenses associated with the
preparation, execution and delivery of its Accession Agreement. Each
Party hereby authorises and instructs the Chief Executive and each
person authorised for the purpose by the Executive Committee to sign
on its behalf Accession Agreements and undertakes not to withdraw,
qualify or revoke such authority and instruction at any time. The
Executive Committee shall promptly notify all Parties and the Director
of the execution and delivery of each Accession Agreement.
3.7 Additional Agreements: Upon and as a condition of admission as a
Party, a New Party shall execute and deliver such further agreements
and documents and shall do all such other acts, matters and things as
the Executive Committee may reasonably require.
3.8 Application fees: All fees received by the Executive Committee in
respect of any application by a New Party to become a Party shall be
used to defray the costs and expenses of the Executive Committee and
shall be paid to such account as the Executive Committee may direct.
The application fee shall be (pound)250 or such other amount as the
Executive Committee may, with the prior approval of the Director, from
time to time prescribe.
3.9 Compliance: Each Party shall procure that for so long as it is a Party
it shall at all times satisfy or otherwise comply with the admission
conditions set out in its Admission Application applicable to it
(and/or such further or other conditions as the Executive Committee
may from time to time reasonably specify) and upon request from time
to time shall promptly provide the Executive Committee with evidence
reasonably satisfactory to the Executive Committee of such
satisfaction and compliance.
3.10 Change of capacities:
3.10.1 Any Founder Generator, any Founder Supplier, any Externally
Interconnected Party and any Party admitted as an additional
party to this Agreement pursuant to this Clause 3 may, upon
application to the Executive Committee and satisfaction of
such conditions (if any) as the Executive Committee may
reasonably require, change the capacity(ies) in which it
participates as a Party.
<PAGE>
3.10.2 If upon receipt of any Admission Application the Executive
Committee shall consider that the New Party should either:-
(a) not be admitted as a Party in the capacity in
which it has applied so to be admitted but should
be admitted in another capacity; or
(b) be admitted both in the capacity in which it has
applied so to be admitted and in another capacity,
then the Executive Committee shall within the period
specified in Clause 3.3.2 notify the New Party and the
Director accordingly and shall specify what, if any,
additional evidence the Executive Committee requires the New
Party to produce to demonstrate its fulfilment of the
admission conditions relevant to its admission in such other
capacity(ies). The provisions of Clauses 3.4, 3.5 and 3.6
shall apply mutatis mutandis but as if the references
therein to Additional Evidence were read and construed as
references to the said additional evidence.
3.11 Successor Settlement System Administrator: Any successor Settlement
System Administrator requiring to be admitted as a Party in that
capacity shall, upon application to the Executive Committee, be so
admitted by way of Accession Agreement modified insofar as is
necessary to take account of the capacity in which such successor is
to be admitted. The provisions of Clause 3.6 shall apply mutatis
mutandis to any such admission.
3.12 Successor Pool Funds Administrator: Any successor Pool Funds
Administrator appointed in accordance with the provisions of Schedule
15 shall be admitted as a Party in that capacity at such time and on
such terms and conditions as the Executive Committee may reasonably
require.
3.13 Successor Grid Operator: Any successor Grid Operator requiring to be
admitted as a Party in that capacity shall, upon application to the
Executive Committee, be so admitted by way of Accession Agreement
modified insofar as is necessary to take account of the capacity in
which such successor is to be admitted. The provisions of Clause 3.6
shall apply mutatis mutandis to any such admission.
3.14 Successor Ancillary Services Provider: Any successor Ancillary
Services Provider requiring to be admitted as a Party in that capacity
shall, upon application to the Executive Committee, be so admitted by
way of Accession Agreement modified insofar as is necessary to take
account of the capacity in which such successor is to be admitted. The
provisions of Clause 3.6 shall apply mutatis mutandis to any such
admission.
<PAGE>
PART II
OBJECTS, REVIEW AND PRIORITY
4. OBJECTS AND PURPOSE OF THE AGREEMENT
4.1 Principal objects and purpose: The principal objects and purpose of
this Agreement are:-
4.1.1 to provide a set of rules which, when implemented, will
quantify:-
(a) the financial obligations owed by certain Pool
Members to other Pool Members in respect of the
former Pool Members' purchases of electricity
produced or delivered by such other Pool Members;
(b) the financial obligations owed by the Grid
Operator to the Ancillary Services Provider in
respect of the purchase of Ancillary Services; and
(c) the financial obligations owed by the Grid
Operator to certain Pool Members in respect of
Transport Uplift (exclusive of any element thereof
relating to Ancillary Services);
4.1.2 to establish, maintain and operate efficiently computer and
other systems (whether or not computer related) which will
implement the rules referred to in Clause 4.1.1; and
4.1.3 by following the procedures for amending this Agreement set
out or referred to herein, to keep under review and promote
the implementation, administration and development of the
systems referred to in Clause 4.1.2 in a way which takes
into account, and balances, the respective interests of
actual and potential generators and suppliers of electricity
and of consumers of electricity and providers of Ancillary
Services.
4.2 Interpretation: In the construction and interpretation of this
Agreement due regard shall be had to the principal objects and purpose
set out in Clause 4.1.
4.3 Exercise of rights: In exercising its rights under this Agreement,
each Party shall exercise and enforce such rights and perform its
obligations in good faith having due regard both to its own legitimate
commercial interests and the principal objects and purpose set out in
Clause 4.1.
5. TRANSITIONAL ARRANGEMENTS AND REVIEWS
5.1 [Not used.]
<PAGE>
Transitional Arrangements
5.2 Transitional Arrangements: The Parties acknowledge and agree that the
arrangements described or referred to in the first column of Schedule
12 ("Transitional Arrangements") have been designed as transitional
arrangements only. The Parties undertake with each other to use all
reasonable endeavours (including, where appropriate, through their
representation on the Executive Committee) to give effect to the
principle (the "New Principle") set opposite the relevant Transitional
Arrangement in the second column of Schedule 12 by the date set
opposite such Transitional Arrangement in the third column of that
Schedule. Clauses 5.9 to 5.14 (inclusive) shall have effect in
relation to all Transitional Arrangements.
Regular Reviews
5.3 Conduct of reviews: Within a period (the "Review Period") of six
months beginning on each of the dates referred to in Clause 5.5 (the
"Review Dates") the Executive Committee shall review (in consultation
with the Settlement System Administrator, the Pool Auditor and, to the
extent that the Executive Committee considers it appropriate, the Pool
Agents) the operation in practice of this Agreement and the Settlement
System to assess whether the principal objects and purpose set out in
Clause 4.1 are being or could be better achieved. In carrying out each
such review the Executive Committee shall give due consideration to
any matter referred to it by any Party or Pool Agent, the Pool
Auditor, the Director or the Secretary of State. Clauses 5.5 to 5.15
(inclusive) shall have effect in relation to the reviews described in
this Clause 5.3, and such reviews shall be in addition to the reviews
associated with the Transitional Arrangements.
5.4 [Not used.]
5.5 Review Dates: The Review Dates are:-
5.5.1 those dates falling on the last day of each successive
period of two years, the first such period beginning on 30th
March, 1997; and
5.5.2 such other date(s) as the Pool Members in general meeting
may from time to time determine.
5.6 Reports: Promptly (and in any event within one month) after the end of
each Review Period the Executive Committee shall prepare or cause to
be prepared a written report of its review containing such matters as
are referred to in Clause 5.7 and a copy of such report shall be sent
to each Party, the Pool Auditor, the Director and the Secretary of
State (and, if the Executive Committee considers it appropriate, the
Pool Agents or any one or more of them).
5.7 Content of reports: Each report referred to in Clause 5.6 shall set
out:-
5.7.1 the scope of the review conducted;
<PAGE>
5.7.2 the matters reviewed and the investigations and enquiries
made;
5.7.3 the findings of such review;
5.7.4 the recommendations (if any) as to the changes to be made to
this Agreement and the Settlement System so as to achieve or
better to achieve the principal objects and purpose set out
in Clause 4.1;
5.7.5 the effect which any such recommendation referred to in
Clause 5.7.4 would, if implemented, have on the role of the
Pool Auditor under this Agreement and any comments of the
Pool Auditor thereon;
5.7.6 the financial effects (if any) which any such recommendation
referred to in Clause 5.7.4 would, if implemented, have on
Pool Members; and
5.7.7 such other matters as the Executive Committee shall consider
appropriate.
If any Committee Member shall disagree with any of the recommendations
made in any such report, such report shall set out the reasons for
such disagreement and any alternative proposals of such Committee
Member.
5.8 General Meeting approval: Within two months after the end of each
Review Period the Executive Committee shall convene an extraordinary
general meeting of Pool Members to consider and, if thought fit,
approve (in whole or in part) the recommendations (the
"Recommendations") made in the report referred to in Clause 5.6. If
any Recommendation is so approved (an "Approved Recommendation") then,
subject to Clause 13.5, the provisions of Clauses 5.9 to 5.14
(inclusive) shall have effect in relation thereto. If any
Recommendation is not so approved, no further action shall be taken in
respect thereof arising from such report.
Works Programme
5.9 Works Programme: In respect of each Transitional Arrangement and each
Approved Recommendation the Executive Committee shall:-
5.9.1 in the case of a Transitional Arrangement, by the date set
opposite such Transitional Arrangement in the fourth column
of Schedule 12; and
5.9.2 in the case of an Approved Recommendation, by the date
stipulated by the Pool Members in general meeting or (if no
date is stipulated) within a reasonable time,
prepare (or cause to be prepared) in consultation with the Pool
Auditor a programme (the "Works Programme", which expression shall
include any associated documentation hereinafter referred to in this
Clause 5.9) which programme shall (unless otherwise resolved by the
Executive Committee after consultation with those Parties not being
Pool
<PAGE>
Members and with Pool Agents who, in either case, might reasonably be
expected to be affected by the Works Programme) include:-
(a) a detailed timetable for the implementation of the New
Principle or (as the case may be) the Approved
Recommendation, including (where appropriate) a series of
milestone and/or target dates for the achievement of
specified parts of such programme;
(b) a full explanation of how such New Principle or Approved
Recommendation is to be implemented, including a detailed
analysis of such New Principle or Approved Recommendation
and the objectives which it is intended to achieve, the work
involved, the resources required and the amendments likely
to be required to this Agreement, the Specification and to
any other relevant agreement or document and of any changes
required to be made to the Software or the Hardware; and
(c) an estimate of the cost of such implementation supported by
a breakdown of such cost and a detailed commentary on each
element thereof together with proposals for the recovery of
such cost;
and (unless otherwise resolved by the Executive Committee after
consultation with those Parties not being Pool Members and with Pool
Agents who, in either case, might reasonably be expected to be
affected by the Works Programme) shall be supported by:-
(i) any draft legal documentation required to give effect to the
amendments referred to in paragraph (b) above; and
(ii) the outline form of agreement appointing the Works Programme
Manager as project manager for the implementation of the
Works Programme (which form shall, where the Settlement
System Administrator is or, in the Executive Committee's
opinion, is likely to be the Works Programme Manager or
where the Works Programme involves changes to the
Specification (so far as applicable to or having an effect
on the Stage 1 Settlement System) or the Stage 1 Software,
be prepared in consultation with the Settlement System
Administrator).
The provisions of this Clause 5.9 shall not apply to Settlement Goal
or Generation Schedule Goal.
5.10 Review: The Executive Committee shall arrange for a copy of each Works
Programme to be sent to each Party, the Pool Auditor and the Director
and to each Pool Agent who might reasonably be expected to be affected
by the Works Programme for review under cover of a letter setting a
deadline for receipt of comments on such Works Programme (being no
earlier than one month and no later than two months after the date of
despatch of copies of the Works Programme for comment) and indicating
to whom such comments should be addressed. Within such time as is
reasonable after the deadline set for receipt of comments but, in any
event, within two months thereafter, the Executive
<PAGE>
Committee shall revise (or cause to be revised) the Works Programme to
take into account (so far as it considers desirable) the comments
received from the Parties, the Pool Auditor, the Director and affected
Pool Agents.
5.11 General Meeting referral: As soon as a Works Programme has been
revised as provided in Clause 5.10 (or, if the Executive Committee
considers no such revision desirable, within one month after the
deadline set under Clause 5.10 for receipt of comments on such Works
Programme), the Executive Committee shall convene an extraordinary
general meeting of Pool Members to consider and, if thought fit,
approve such Works Programme (with or without amendment).
5.12 Approval of the Works Programme:
5.12.1 A Works Programme shall not be given effect to unless and
until approved by the Pool Members in general meeting.
Additionally, if a Works Programme or any part thereof shall
involve a matter requiring the approval of Generators or
Suppliers in separate general meeting under Clause 13.2 (a
"Class Issue"), then such Works Programme shall not be given
effect to unless and until approved by the relevant class of
Pool Members. If a Works Programme shall not be duly
approved (with or without amendment), then the Executive
Committee shall revise (or cause to be revised) the same to
take account of the wishes of the Pool Members in general
meeting and/or (as the case may be) in separate general
meeting and thereafter such revised Works Programme shall be
re-submitted to the Pool Members in general meeting and, if
such revised Works Programme or any part thereof shall
involve a Class Issue, to the relevant Pool Members in
separate general meeting, in each case for approval (with or
without amendment). This revision and re-submission
procedure shall be repeated as often as may be required
until such time as the Pool Members in general meeting and,
as necessary, in separate general meetings approve the Works
Programme.
5.12.2 Notwithstanding the provisions of Clause 5.12.1, the
Executive Committee and each Party shall be entitled at any
time prior to the approval of a Works Programme by the Pool
Members in general meeting and (where required under Clause
5.12.1) by the relevant class of Pool Members in separate
general meeting to apply to the Director requesting that the
implementation of the New Principle or (as the case may be)
the Approved Recommendation should not proceed or should not
proceed in the manner set out by such Works Programme and,
in such event, effect shall not be given to the Works
Programme pending the determination of the Director and then
(subject as provided in Clause 5.14) only to the extent (if
at all) that the Director in his absolute discretion shall
approve.
5.13 Implementation: The implementation of a Works Programme shall be
project managed:-
5.13.1 if the Works Programme has a significant impact on the Stage
1 Settlement System, by the Settlement System Administrator;
or
<PAGE>
5.13.2 in any other case or if the Settlement System Administrator
is unable or unwilling to project manage a Works Programme
falling within Clause 5.13.1, by such person as the
Executive Committee shall nominate
(in either case, the "Works Programme Manager") upon and subject to
such terms and conditions as are agreed by the Executive Committee
with the Works Programme Manager and the cost thereof recovered in
accordance with the terms of the relevant Works Programme. Cost
overruns, liquidated damages and all other financing costs, incentives
and penalties shall be financed, levied and/or paid at the times and
in the manner provided for in such Works Programme. Costs incurred by
the Settlement System Administrator shall be recovered in accordance
with the Charging Procedure. The Executive Committee shall require the
Works Programme Manager to prepare and submit to the Executive
Committee no less frequently than quarterly a written report giving a
detailed commentary on the progress of implementing each Works
Programme, including a comparison of actual progress made against the
timetable set by such Works Programme and of actual costs incurred
against budgeted costs.
5.14 Pool Auditor's approval: At the completion of the work required by
each Works Programme but prior to effect being given to the New
Principle or (as the case may be) the Approved Recommendation the
Executive Committee shall request the Pool Auditor to issue an opinion
in form and content satisfactory to the Executive Committee confirming
to all Parties and the Director that the Pool Auditor has inspected
and tested the arrangements giving effect to the New Principle or (as
the case may be) the Approved Recommendation and is satisfied (without
qualification or reservation) that such arrangements do give effect to
the New Principle or Approved Recommendation in the manner required by
the Works Programme. The Executive Committee shall use all reasonable
endeavours to make (or procure to be made) such modifications to such
arrangements as are necessary to enable the Pool Auditor to give its
opinion without qualification or reservation, and the costs of any
such modification shall be recovered in accordance with the relevant
Works Programme. If the Pool Auditor's opinion can be given only with
qualification or reservation, the Executive Committee shall convene an
extraordinary general meeting of Pool Members and, where required
under Clause 5.12.1, a separate general meeting of Generators and/or
(as the case may be) Suppliers to consider and, if thought fit,
approve such arrangements in the knowledge that the Pool Auditor's
opinion can be given only with qualification or reservation. Subject
to the provisions of Clause 6, each of the Parties undertakes with
each of the other Parties promptly following the issue of the Pool
Auditor's opinion (but, where such opinion has a qualification or
reservation, only after approval as aforesaid by the Pool Members in
general meeting and, where required under Clause 5.12.1, by the
relevant class of Pool Members in separate general meeting) to execute
and deliver any amending agreement or other documents and to take such
other action as may reasonably be required of it to give effect to
such arrangements, in any such case at its own cost and expense.
<PAGE>
5.15 Secretary of State's approval: In respect of the Secretary of State's
decision as set out in his letter of 11th December, 1991 to the Chief
Executive concerning the selling of the output of plant by Generators
with on-site demand under this Agreement:-
5.15.1 each of the Parties undertakes with each of the other
Parties forthwith to take all such steps (including as to
the execution of any document) as may be required to give
full force and effect to the decision of the Secretary of
State. Each of the Parties shall take all such steps at its
own cost and expense except that the Settlement System
Administrator, the Pool Funds Administrator and the
Ancillary Services Provider shall be entitled to recover any
such costs and expenses in accordance with the terms of this
Agreement; and
5.15.2 each of the Parties acknowledges and agrees that damages
would not be an adequate remedy for any failure by it to
give in accordance with Clause 5.15.1 full force and effect
to the decision of the Secretary of State pursuant to this
Clause 5.15 and that, accordingly, each of the other Parties
and the Director shall be entitled to the remedies of
injunction, specific performance and other equitable relief
for any threatened or actual such failure and that no proof
of special damages shall be necessary for enforcement.
5.16 Director's modifications:
5.16.1 Where the Monopolies and Mergers Commission has issued a
report on a reference under section 12 of the Act which:-
(a) includes conclusions to the effect that any of the
matters specified in the reference operate, or may
be expected to operate, against the public
interest;
(b) specifies effects adverse to the public interest
which those matters have or may be expected to
have;
(c) includes conclusions to the effect that those
effects could be remedied or prevented by
modifications of the conditions of any Licence and
such modifications would require a change to the
Pooling and Settlement Agreement; and
(d) specifies modifications by which those effects
could be remedied or prevented,
the Director may, subject to the following provisions of
this Clause, require such modifications to this Agreement as
are requisite for the purpose of remedying or preventing the
adverse effect specified in the report.
5.16.2 Before requiring modifications to be made pursuant to this
Clause, the Director shall have regard to the modifications
specified in the report. Further, the
<PAGE>
Director shall not, and shall not be entitled to, require a
modification to be made to this Agreement which modification
could not have been achieved lawfully through a modification
of one or more Licences consequent upon the report (but as
if, for this purpose, only those Parties who are holders of
Licences were parties to this Agreement).
5.16.3 Before requiring modifications to be made pursuant to this
Clause, the Director shall give notice:-
(a) stating that he proposes to make the modifications
and setting out their effect;
(b) stating the reasons why he proposes to make the
modifications; and
(c) specifying the period (not being less than 28 days
from the date of publication of the notice) within
which representations or objections with respect
to the proposed modifications may be made,
and shall consider any representations or objections from
any person which are duly made and not withdrawn.
5.16.4 A notice under Clause 5.16.3 shall be given:-
(a) by publishing the notice in such manner as the
Director considers appropriate for the purpose of
bringing the matters to which the notice relates
to the attention of persons likely to be affected
by the making of the modifications; and
(b) by serving a copy of the notice on each Party, the
Executive Committee and the Pool Auditor.
5.16.5 After considering any representations or objections which
are duly made and not withdrawn pursuant to Clause 5.16.3,
the Director may by notice published as provided in Clause
5.16.4(a) and served on those referred to in Clause
5.16.4(b) specify the modifications to this Agreement which
he requires to be made and the date upon which such
modifications are to take effect and each of the Parties
undertakes with each other of the Parties promptly to take
all such steps as may be necessary to give full force and
effect to the modifications so required. Any costs incurred
by the Settlement System Administrator in giving effect to
such modifications shall be recovered in accordance with the
Charging Procedure.
<PAGE>
6. ENTRENCHED PROVISIONS, INCONSISTENCIES AND CONFLICTS
Entrenched Provisions
6.1 Secretary of State's consent: The Parties acknowledge and agree that,
notwithstanding any other provision of this Agreement, no amendment to
or variation of any of the matters dealt with in any of the following
provisions of this Agreement shall take effect without the prior
written consent of the Secretary of State:-
6.1.1 Clause 5.15, Part XIV and Section 28 of Schedule 9; and
6.1.2 this Clause 6.1.
6.2 Director's consent: The Parties acknowledge and agree that,
notwithstanding any other provision of this Agreement, no amendment to
or variation of any of the matters dealt with in any of the following
provisions of this Agreement shall take effect without the prior
written consent of the Director:-
6.2.1 (a) Clauses 3.5, 4, 5.12.2, 5.15, 5.16, 6.11, 11, 13,
15.6, 53.6, 67.3, 67.4, 83, 84 and 85 and Section
7 of Schedule 20; and
(b) sub-section 1.4, paragraph 2.2.3, sub-sections
3.3, 3.4 and 3.7, paragraph 4.4.1 and sub-sections
6.4, 6.5, 17.3 and 22.5 of Schedule 21;
6.2.2 without prejudice to Clause 6.2.3, the Pool Rules or any of
them, other than an amendment or variation which:-
(a) involves only a change of a technical nature in
the systems, rules and procedures contemplated by
this Agreement; and
(b) will not increase the liability or decrease the
rights of any Party under this Agreement beyond
what may reasonably be regarded as de minimis in
relation to such Party,
but in any event including Section 22 thereof;
6.2.3 any provision of this Agreement which requires or permits
any matter to be referred to the Director for approval,
consent, direction or decision or confers any rights or
benefits upon the Director; and
6.2.4 this Clause 6.2.
6.3 Settlement System Administrator's consent: The Parties acknowledge and
agree that, notwithstanding any other provision of this Agreement,
insofar as directly affects in any material respect the rights,
benefits, duties, responsibilities, liabilities and/or obligations
<PAGE>
of the Settlement System Administrator, no amendment to or variation
of any of the matters dealt with in any of the following provisions of
this Agreement shall take effect:-
6.3.1 without the prior written consent of the Settlement System
Administrator:-
(a) the definitions in Clause 1.1 of "Agreed
Procedure", "Authorised Recipient", "Business
Person", "Business Personnel", "Charging
Procedure", "Code of Practice", "Confidential
Information", "Corporate Functions Person",
"Disclose", "Force Majeure", "Good Industry
Practice", "Main Business", "Main Business
Person", "Main Business Personnel", "Nominated
Agreements", "Permitted Activities", "Protected
Information", "Relevant Instrument", "Restricted
Party", "Stage 1 Hardware", "SSA Arrangements" and
"SSA System";
(b) Clauses 6.9, 7.3, 7.6, 9.5, 10.9, 10.10, 19.4,
34.1, 34.2, 35.3, 35.6, 36.2, 37, 66, 68, 74 and
78.2;
(c) Schedule 4;
(d) sub-section 1.6 (and its application to any other
Section of Schedule 9), sub-section 1.7 and
Section 3 of Schedule 9; and
(e) this Clause 6.3;
6.3.2 without the prior written consent of the Settlement System
Administrator (such consent not to be unreasonably withheld
or delayed):-
(a) Clauses 18.1.2, 18.1.4, 19.5, 41, 45, 47.1, 47.3,
48.1, 48.2, 48.9, 60, 69, 71A.3, 71B.1 and 71B.2;
(b) Part XXII (other than Clauses 74 and 78.2);
(c) Section 30 of, and Appendix 4 to, Schedule 9;
(d) Section 2(b) of Part C to Schedule 17; and
(e) Sections 4 to 16 (inclusive), 18, 19, 21 and 22 of
Schedule 21.
6.4 Pool Funds Administrator's consent: The prior written consent of the
Pool Funds Administrator may be needed to certain amendments to or
variations of this Agreement, as provided in Schedule 15.
6.5 Grid Operator's consent: The Parties acknowledge and agree that,
notwithstanding any other provision of this Agreement, insofar as
directly affects in any material respect the rights, benefits, duties,
responsibilities, liabilities and/or obligations of the Grid Operator,
<PAGE>
no amendment to or variation of any of the matters dealt with in any
of the following provisions shall take effect:-
6.5.1 without the prior written consent of the Grid Operator:-
(a) the definitions in Clause 1.1 of "Authorised
Recipient", "Business Person", "Business
Personnel", "Confidential Information", "Corporate
Functions Person", "Datum Document", "Disclose",
"Generation Schedule Goal", "Goal", "Goal
Effective Date", "Main Business", "Main Business
Person", "Main Business Personnel", "Nominated
Agreements", "Permitted Activities", "Protected
Information", "Relevant Instrument", "Restricted
Party", "Settlement Goal" and "Type 1 Goal
Licence";
(b) Clauses 6.9, 7.3, 7.6, 9.5, 10.9, 10.10, 19.4, 25,
37.3, 47 to 50 (inclusive), 66, 68, 72, 74 and
78.2;
(c) sub-section 3.1 of Appendix 2 to Schedule 9;
(d) Schedule 35; and
(e) this Clause 6.5; and
6.5.2 without the prior written consent of the Grid Operator (such
consent not to be unreasonably withheld or delayed), any
other provision of this Agreement,
Provided that the references to Parties and to the Grid Operator in
this Clause 6.5 shall be construed as if they were references to such
terms prior to the creation of Meter Operator Parties and the
associated amendments to this Agreement, but this shall be without
limitation to any right of the Grid Operator to consent to any
amendment or variation to this Agreement under this Clause 6.5.
6.6 Ancillary Services Provider's consent: The Parties acknowledge and
agree that, notwithstanding any other provision of this Agreement,
insofar as directly affects in any material respect the rights,
benefits, duties, responsibilities, liabilities and/or obligations of
the Ancillary Services Provider, no amendment to or variation of any
of the following provisions shall take effect:-
6.6.1 without the prior written consent of the Ancillary Services
Provider:-
(a) the definitions in Clause 1.1 of "Authorised
Recipient", "Business Person", "Business
Personnel", "Confidential Information", "Corporate
Functions Person", "Disclose", "Main Business",
"Main Business Person", "Main Business Personnel",
"Nominated Agreements", "Permitted Activities",
"Protected Information", "Relevant Instrument" and
"Restricted Party";
(b) Clauses 6.9, 7.3, 7.6, 9.5, 10.9, 10.10, 19.4, 25,
66, 68, 72, 74 and 78.2;
<PAGE>
(c) Part XI and the provisions expressly incorporated
therein by reference;
(d) sub-section 1.8, Section 23, sub-section 24.8,
Section 28 and sub-section 64.4 of Schedule 9; and
(e) this Clause 6.6; and
6.6.2 without the prior written consent of the Ancillary Services
Provider (such consent not to be unreasonably withheld or
delayed), any other provision of this Agreement.
6.7 Amendments generally:
6.7.1 The following provisions of this Clause 6.7 are without
prejudice to the rights, powers and privileges of the
Secretary of State and the Director under the Act or any
Licence or otherwise howsoever.
6.7.2 In relation to Schedule 4 (including its Appendix), and save
as provided in Clause 6.7.3, where that Schedule provides
for an amendment to the SSA Arrangements, the Menus of
Prices or the Variation Menus (or any or any part thereof)
to be agreed between certain designated persons and those
persons agree in writing the amendment to be made, then the
SSA Arrangements, the Menus of Prices or, as the case may
be, the Variation Menus (or the relevant one or part
thereof) shall be so amended without the need for any other
Party to execute or deliver any amending or confirmatory
document and each Party hereby consents to such amendments
being made in such a manner and undertakes not to withdraw
that consent.
6.7.3 In the following cases the amendment procedure set out in
Clause 6.7.2 shall itself be modified as hereinafter
provided:-
(a) if Schedule 4 refers to "formal documentation"
being agreed to give effect to the amendment, an
amending agreement executed by all Parties shall
be required;
(b) if the consent of a particular person is required
to be obtained under Clauses 6.1 to 6.6
(inclusive), the amendment shall not take effect
until that consent has been obtained.
6.7.3A In relation to Schedule 26, where that Schedule provides for
an amendment to the Menu of Supplier Charges to be agreed
with the consent of Pool Members in general meeting, then
the Menu of Supplier Charges shall be so amended without the
need for any other Party to execute or deliver any amending
or confirmatory document and each Party hereby consents to
such amendment being made in such a manner and undertakes
not to withdraw that consent.
<PAGE>
6.7.4 Subject to:-
(a) any consent of a particular person required to be
obtained under Clauses 6.1 to 6.6 (inclusive)
being obtained;
(b) the requirements of Clauses 6.7.5 and 13.2,
and save as provided otherwise in this Agreement, any
amendment to or variation of this Agreement shall be
effective if approved by Pool Members in general meeting
pursuant to Clause 13.1 or 13.2 and all Parties agree
promptly to execute and deliver all agreements and other
documentation and to do all such other acts, matters and
things as may be necessary to give effect to such amendment
or variation.
6.7.5 Where any change is proposed to be made to this Agreement
which, if made:-
(a) would introduce provisions dealing with matters
not then dealt with in or expressly contemplated
by this Agreement; and
(b) would in any material respect directly affect the
rights, benefits, duties, responsibilities,
liabilities and/or obligations under this
Agreement of the Settlement System Administrator,
the Grid Operator, the Ancillary Services Provider
and/or any Externally Interconnected Party,
such change shall not be made without the prior written
consent of the relevant one of them (in each case not to be
unreasonably withheld or delayed) provided that the
reference to the Grid Operator in this Clause 6.7.5 shall be
construed as if it was a reference to such term prior to the
creation of Meter Operator Parties and the associated
amendments to this Agreement, but this shall be without
limitation to any right to consent to any amendment or
variation of this Agreement under this Clause 6.7.5.
Inconsistencies and Conflicts
6.8 Internal inconsistencies and conflicts: In the event of any
inconsistency or conflict:-
6.8.1 the Pool Rules (excluding sub-section 8.4.3 and the Datum
Document) shall prevail over the other provisions of this
Agreement (except Clause 4);
6.8.2 the provisions of this Agreement shall prevail over the
Specification;
6.8.3 the Specification shall prevail over the Software;
6.8.4 the provisions of this Agreement shall prevail over the
provisions of an Agreed Procedure, a Code of Practice, a
Service Line, the Development Policies or the Change
Management Policies; and
<PAGE>
6.8.5 the provisions of a Service Line shall prevail over the
provisions of an Agreed Procedure or a Code of Practice,
and the Parties shall use all reasonable endeavours promptly to secure
the elimination of such inconsistency or conflict.
6.9 Conflicts with the Grid Code:
6.9.1 Each of the Parties hereby acknowledges and agrees the
desirability of achieving and maintaining consistency and
absence of conflict between the provisions of this Agreement
and the Grid Code but recognises that, due principally to
the different functions and objectives of this Agreement and
the Grid Code, the fact that there may be Parties who are
not bound by the Grid Code and the different procedures in
this Agreement and the Grid Code for review of their
respective terms, it will not in all circumstances be
possible to avoid inconsistency or conflict.
6.9.2 Where at the Effective Date there is an inconsistency or
conflict between the provisions of this Agreement and the
Grid Code the Executive Committee shall first consider the
matter and make recommendations and thereafter the Parties
shall negotiate in good faith to eliminate such
inconsistency and/or conflict having regard to the different
functions and objectives of the Grid Code and this
Agreement.
6.9.3 Each of the Parties shall use its reasonable endeavours to
ensure that where any change to this Agreement is proposed
to be made which may reasonably be expected to require a
change to the Grid Code (or vice versa) such change is
brought by the Executive Committee to the attention of the
Grid Code Review Panel in good time to enable it to consider
what corresponding change, if any, should be made to the
Grid Code or (as the case may be) this Agreement. In any
such consideration, the Parties acknowledge and agree that
it would be desirable in the event of any inconsistency or
conflict between the provisions of this Agreement and the
Grid Code if regard were had by the Grid Code Review Panel
to the principles set out in Clause 6.9.4.
6.9.4 The principles referred to in Clause 6.9.3 are that:-
(a) where by reason of any inconsistency or conflict
the security, quality of supply and/or safe
operation of the NGC Transmission System under
both normal and/or abnormal operating conditions
would necessarily be compromised and/or the Grid
Operator would necessarily be in breach of its
obligations under the Act or its Transmission
Licence, the provisions of this Agreement should
be made to conform (to the extent of such
inconsistency or conflict) to those of the Grid
Code; and
<PAGE>
(b) in any other case, where by reason of such
inconsistency or conflict there is or is likely to
be a material financial effect on any class of
Pool Members or on all or a significant number of
Pool Members, the provisions of the Grid Code
should be made to conform (to the extent of such
inconsistency or conflict) to those of this
Agreement.
6.9.5 The Parties acknowledge that changes to the Grid Code are
required to be approved by the Director.
6.9.6 Where there is any conflict or inconsistency between the
Grid Code and the Pool Rules, no Party shall be liable
hereunder or under the Grid Code as a result of complying
with its obligations under this Agreement or under the Grid
Code.
6.10 Breaches of the Pool Rules: If at any time any Party believes that
there has been a breach of the Pool Rules, such Party shall promptly
report the same in writing to the Executive Committee.
6.11 Director's requests: The Executive Committee shall:-
(i) give due and prompt consideration to any matter referred to
it in writing by the Director;
(ii) advise the Director in writing of any decision or action of
the Executive Committee in relation to such matter;
(iii) provide the Director in writing with an explanation in
reasonable detail of the reasons for such decision or
action; and
(iv) if reasonably requested by the Director (having regard, in
particular, to the resources available to the Executive
Committee), in relation to any proposal by the Director for
a change to any provision of this Agreement provide or
procure the provision of advice and assistance to the
Director as soon as reasonably practicable as to the
implications of the change and the actions necessary to
implement it (including any relevant feasibility study).
6.12 Conflicts with the MRA: The provisions of Section 5 of Schedule 32
shall have effect in relation to any conflict between this Agreement
and the Master Registration Agreement.
<PAGE>
PART III
POOL MEMBERSHIP AND GENERAL MEETINGS
7. INTRODUCTION
7.1 Obligations contractually binding: Each Pool Member acknowledges and
agrees that it is bound to each other Pool Member as a matter of
contract and will comply with its obligations under this Agreement.
7.2 Externally Interconnected Parties: Each Externally Interconnected
Party acknowledges and agrees that it is bound to each Pool Member as
a matter of contract and undertakes to comply with the Pool Rules so
far as they may be applicable to it and each Pool Member acknowledges
and agrees that it is bound to each Externally Interconnected Party as
a matter of contract and will comply with its obligations under this
Agreement.
7.3 Parties not Pool Members: The Settlement System Administrator, the
Pool Funds Administrator, the Grid Operator, the Ancillary Services
Provider and any Pool Agent which is from time to time a Party shall
not be Pool Members and shall not be bound as against Pool Members or
the Executive Committee except as expressly provided for in this
Agreement, the Escrow Agreement, the Funds Transfer Agreement and the
relevant Pool Agent Contract in their respective roles as Settlement
System Administrator, Pool Funds Administrator, Grid Operator,
Ancillary Services Provider and Pool Agent.
7.4 Pool Rules:
7.4.1 The Settlement System calculations shall be carried out in
accordance with the Pool Rules.
7.4.2 The Pool Rules shall be developed under the control of the
Executive Committee. Subject to Clause 6, the Executive
Committee may at any time and from time to time change all
or any of the Pool Rules upon notification to all Parties
and Meter Operator Parties, and any such change shall be
binding on all Parties and Meter Operator Parties without
further action being required on the part of any person.
7.5 Pool Member's obligations:
7.5.1 Save as otherwise expressly provided in this Agreement, the
obligations of each Pool Member under this Agreement are
several and a Pool Member shall not be responsible for the
obligations or liabilities of any other Pool Member. The
failure of any Pool Member to carry out all or any of its
obligations under this Agreement shall not relieve any other
Pool Member of all or any of its obligations hereunder.
7.5.2 In respect of those obligations of a Pool Member (the
"Indemnifying Pool Member") under this Agreement which are
expressed to be several, the
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Indemnifying Pool Member shall indemnify and keep
indemnified each other Pool Member from and against all
losses, costs (including legal costs) and expenses which
such other Pool Member may suffer or incur as a result of
being held liable by operation of law (or contesting any
such liability) for the performance or non-performance of
all or any of such obligations of the Indemnifying Pool
Member.
7.6 Information to Settlement System Administrator: In respect of all data
and other information which a Pool Member or an Externally
Interconnected Party (not being a Pool Member) is required to notify
to the Settlement System Administrator under or pursuant to this
Agreement (other than (i) Metered Data and (ii) pursuant to paragraph
2.5.2 of Schedule 9), the relevant Pool Member or (as the case may be)
Externally Interconnected Party shall use all reasonable endeavours to
ensure that all such data and other information is complete and
accurate in all material respects.
7.7 Information to Initial Settlement and Reconciliation Agent: In respect
of all data and other information which a Pool Member is required to
notify to the Initial Settlement and Reconciliation Agent under or
pursuant to this Agreement, the relevant Pool Member shall use all
reasonable endeavours to ensure that all such data and other
information is complete and accurate in all material respects.
8. POOL MEMBERSHIP
8.1 Initial Pool Members: The initial Pool Members shall be the Founder
Generators and the Founder Suppliers.
8.2 Additional Pool Members:
8.2.1 Subject to the following provisions of this Clause 8.2 and
Clause 8.13 and to the fulfilment by the Party concerned of
the conditions set out or referred to in Clause 8.3 (the
"Pool Membership Conditions"), any Party shall, upon
application to the Executive Committee, be admitted as a
Pool Member.
8.2.2 For the purposes of this Clause 8, "Party" shall include any
person who is applying to be admitted as a Party pursuant to
Clause 3 contemporaneously with being admitted as a Pool
Member but shall exclude the Settlement System
Administrator, the Pool Funds Administrator, the Grid
Operator, the Ancillary Services Provider and any Pool
Agent.
8.2.3 Subject to Clause 8.2.4, the admission of a Party as a Pool
Member shall take effect on the date (the "Admission Date")
specified by the Executive Committee (with the prior
agreement of the Settlement System Administrator) in a
notice given by the Executive Committee to the relevant
Party no later than 28 days after the Satisfaction Date,
provided that the Admission Date shall be a date falling no
earlier than the Satisfaction Date and (unless otherwise
agreed by the Executive Committee, the Settlement System
Administrator and such Party) no
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later than 90 days after the Satisfaction Date. In default
of such notification being given by the Executive Committee
within the said 28 days, the admission shall take effect on
the day falling 35 days after the Satisfaction Date. For the
purposes of this Clause, the "Satisfaction Date" shall be
the day on which the last of the Pool Membership Conditions
required to be fulfilled by such Party shall have been
fulfilled by it.
8.2.4 No person shall be admitted as a Pool Member unless prior to
or contemporaneously with such admission it shall have been
or (as the case may be) shall be admitted as a Party.
8.2.5 Prior to a Party's admission as a Pool Member the Executive
Committee shall, where appropriate, determine and notify the
relevant Party of the amount of Security Cover (if any) to
be provided by such Party.
8.3 Pool Membership Conditions:
8.3.1 Where a person has been admitted as a Party pursuant to
Clause 3 otherwise than contemporaneously with being
admitted as a Pool Member pursuant to Clause 8, the Pool
Membership Conditions applicable to it shall (unless
otherwise determined by the Director upon the application of
such person or the Executive Committee) be those that would
have been applicable to it if it had applied to be admitted
as a Pool Member at the date of its admission as a Party
and, subject as aforesaid, such person shall not be required
to fulfil any further or other Pool Membership Conditions
introduced after such date unless the applicant notifies the
Executive Committee in writing prior to or contemporaneously
with its application for admission as a Pool Member that it
wishes such further or other conditions to apply, in which
case the Pool Membership Conditions applicable to it shall
(subject as aforesaid) be those applicable on the date of
its application for admission as a Pool Member.
8.3.2 The Pool Membership Conditions required to be fulfilled by a
Party prior to its admission as a Pool Member are:-
(a) the due completion by the Party and the delivery
to the Executive Committee of a Pool Membership
Application;
(b) the provision to the Executive Committee of
evidence reasonably satisfactory to the Executive
Committee (which may include a representation and
warranty given by the Party for the benefit of all
Pool Members) that:-
(i) the Party has made, provided or taken,
or will make, provide or take, before it
sells or purchases electricity pursuant
to this Agreement which is required to
be metered by a Metering System, all
such appointments of Supplier Agents,
the
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registration of such Metering System,
the provision of information (including
standing data) and all other actions as
are necessary or reasonably considered
desirable by the Executive Committee for
such Metering System properly to be
taken into account for the purposes of
Settlement; and
(ii) without prejudice to the generality of
paragraph (i), such Metering System
conforms with the requirements of Part
XV or (as the case may be) Schedule 28
and all relevant Agreed Procedures and
Codes of Practice and is compatible with
the Settlement System;
(c) the Party has entered into and has in full force
and effect (save for satisfaction of any condition
thereunder requiring the Party to be a Pool
Member) all appropriate Connection Agreements or,
if the Party is applying to be admitted as an
External Pool Member, that all appropriate
Connection Agreements with the relevant Externally
Interconnected Party in relation to the relevant
External Interconnection are in full force and
effect (save for satisfaction of any condition
thereunder requiring the Party to be a Pool
Member);
(d) the provision of such information as the Executive
Committee may reasonably require to enable the
Executive Committee to ascertain whether any of
the provisions of Clause 11.4 are applicable to
that Party, to determine whether that Party is an
Independent Generator, Small Generator and/or
Independent Supplier and to calculate the initial
Weighted Votes and Points of that Party as a Pool
Member under Clause 11.3 and Schedule 13
respectively;
(e) the provision of such information as the Executive
Committee may reasonably require:-
(i) to enable the Executive Committee to
ascertain whether (and, if so, on what
basis) that Party is entitled to take
the benefit of any exception in Clause
8.5 claimed by it; and
(ii) to assist the Executive Committee in
making any determination under Clause
8.5 relevant to that Party;
(f) if the Party is a Generator (other than an
External Pool Member), the provision of evidence
reasonably satisfactory to the Executive Committee
that the Party operates or has under its control
one or more Generating Units, which Generating
Unit(s) has (have) provided electricity to the
Total System or will be capable of so providing
electricity within such period as the Executive
Committee may specify; and
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(g) if the Party is an External Pool Member, the
provision of evidence reasonably satisfactory to
the Executive Committee that the Party has the
right to use one or more Generation Trading Blocks
and/or the right to take electricity across an
External Interconnection under an Interconnection
Agreement then in full force and effect.
8.4 Compliance: Each Pool Member shall procure that for so long as it is a
Pool Member it shall at all times satisfy or otherwise comply with
those Pool Membership Conditions (whether set out in this Agreement or
in its Pool Membership Application) applicable to it (and/or such
further or other conditions as the Executive Committee may from time
to time reasonably specify). Each Pool Member shall upon request from
time to time promptly provide the Executive Committee with such
information as the Executive Committee may reasonably require (i) to
enable the Executive Committee to ascertain whether (and, if so, on
what basis) that Pool Member is entitled to take the benefit of any
exception in Clause 8.5 claimed by it, and (ii) to assist the
Executive Committee in making any determination under Clause 8.5
relevant to that Party, and further with evidence reasonably
satisfactory to the Executive Committee of such satisfaction and
compliance.
8.5 Restrictions applicable to Pool Members:
8.5.1 At each of its Sites, or where any such Site forms part of a
Trading Site, such Trading Site, each Generator shall sell
its entire Exports of electricity to Pool Members pursuant
to this Agreement except:-
(a) for its Exports of electricity from any generating
station in respect of which (but for other
generating stations owned or operated by it) it
would not be required to hold a Generation
Licence, being Exports at any Site or, as the case
may be, Trading Site for which the Generator is
not required to complete a Supplemental Agreement
to the Master Connection and Use of System
Agreement
Provided that the Generator has given the Executive
Committee either on the Effective Date or not less than 10
Business Days before that Site or, as the case may be,
Trading Site is withdrawn from the requirements of this
provision, written notice that the circumstances described
in sub-paragraph (a) apply; or
(b) for the output of electricity from any of its
Generating Units in circumstances which the
Executive Committee resolves by a vote passed by
80 per cent. or more of the votes of all Committee
Members (after consultation with the Director) are
exceptional.
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8.5.2 In respect of all its requirements for electricity which a
Supplier wishes to purchase from Pool Members, the Supplier
shall purchase the same pursuant to this Agreement, provided
that nothing in this Agreement shall prevent or restrict the
purchase by a Supplier otherwise than pursuant to this
Agreement:-
(a) in circumstances where the Supplier is acting
otherwise than in its capacity as an end consumer,
of all or part of that output of electricity from
any Generating Unit which is not required to be
sold to Pool Members pursuant to Clause 8.5.1 or
of electricity which has been purchased by an
External Pool Member at its associated External
Interconnection as an export from the NGC
Transmission System pursuant to this Agreement; or
(b) in circumstances where the Supplier is acting in
its capacity as an end consumer:-
(i) of electricity from any Supplier which
has purchased that electricity pursuant
to this Agreement; or
(ii) of such output of electricity as is
referred to in paragraph (a) above; or
(c) in circumstances where the Supplier is a Supplier
holding a PES Licence and is acting in its
capacity as a PES, of electricity from any
Supplier which is a Supplier holding a PES
Licence, which operates a Distribution System
directly connected to the Distribution System
operated by the Supplier first mentioned in this
paragraph (c) and which has purchased that
electricity pursuant to this Agreement; or
(d) in circumstances which the Executive Committee
resolves by a vote passed by 80 per cent. or more
of the votes of all Committee Members (after
consultation with the Director) are exceptional,
from any person.
For the purposes of this Clause 8.5.2 an "end consumer"
means a person who purchases electricity from a Supplier for
its own consumption at premises owned or occupied by that
person.
8.6 Restrictions applicable to non-Pool Members: Save as otherwise
expressly provided, a Party which is not a Pool Member shall not be
entitled to any of the rights and benefits accorded to Pool Members
under this Agreement.
8.7 Resignation: Subject as provided in Clause 8.8:-
8.7.1 a Party (other than the Settlement System Administrator, the
Pool Funds Administrator, the Grid Operator, the Ancillary
Services Provider and each Externally Interconnected Party
and any Pool Agent which is from time to time a
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Party) shall be entitled at any time to resign as a Party by
delivering a Resignation Notice to the Secretary; and
8.7.2 such resignation shall take effect 28 days after receipt of
the Resignation Notice by the Secretary.
Promptly after receipt of a duly completed Resignation Notice from a
Party, the Secretary shall notify (for information only) all of the
other Parties, the Executive Committee and the Director of such
receipt and of the name of the Party wishing to resign.
8.8 Restrictions on resignation: A Party may not resign as a Party (and
any Resignation Notice delivered pursuant to Clause 8.7.1 shall lapse
and be of no effect) unless:-
8.8.1 as at the date its resignation would otherwise become
effective all sums due from such Party to the Executive
Committee or any other Party under (a) this Agreement, (b)
the Funds Transfer Agreement or (c) any agreement entered
into pursuant to this Agreement (whether by or on behalf of
such Party) and notified for the purposes of this Clause 8.8
by the Executive Committee to such Party prior to the date
of its resignation, have been paid in full; and
8.8.2 as at the date of its resignation such Party is not a
Registrant and is not registered in any PES Registration
Service as being responsible for any Metering System or (as
the case may be) any Metering Point; and
8.8.3 it would not be a breach of any Licence condition applicable
to such Party so to resign.
8.9 Release as a Party: Without prejudice to Clause 66.7, upon a Party's
resignation becoming effective in accordance with Clause 8.7:-
8.9.1 such Party (if it is a Pool Member) shall cease
automatically to be a Pool Member;
8.9.2 such Party shall (subject as provided below) be
automatically released and discharged from all its
obligations and liabilities under this Agreement, the Funds
Transfer Agreement and any agreement referred to in Clause
8.8.1(c); and
8.9.3 each of the other Parties shall (subject as provided below)
be automatically released and discharged from its
obligations and liabilities to such Party under this
Agreement, the Funds Transfer Agreement and any agreement
referred to in Clause 8.8.1(c).
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Each Party shall promptly at its own cost and expense execute and
deliver all agreements and other documentation and do all such other
acts, matters and things as may be necessary to confirm such
cessation, release and discharge. The release and discharge effected
pursuant to this Clause 8.9 shall not extend:-
(i) to the accrued rights and liabilities of a Party;
nor
(ii) to the rights and liabilities of that Party which
may accrue in relation to the period during which
it was a Party under this Agreement (which shall
include amounts payable to or by a Party as a
result of a Final Reconciliation Run for any
Settlement Day which falls during that period),
the Funds Transfer Agreement or any agreement
referred to in Clause 8.8.1(c); nor
(iii) to any requirement pursuant to this Agreement to
maintain Security Cover in respect of any such
accrued rights and liabilities as are referred to
in paragraphs (i) and (ii) above.
8.10 Withdrawal as a Party: If a Party (the "Withdrawing Party") shall
apply on three occasions to be admitted as a Pool Member pursuant to
this Clause 8 and on each such occasion it is not so admitted by
reason of its failure to fulfil the relevant Pool Membership
Conditions then with effect from the date the Withdrawing Party is
deemed to receive notification from the Executive Committee pursuant
to Clause 75 that it has failed for the third time to fulfil such
conditions, without prejudice to Clause 66.7 and its accrued rights
and liabilities, and its rights and liabilities which may accrue in
relation to the period during which it was a Party, under any
agreement entered into pursuant to this Agreement (whether by or on
behalf of the Withdrawing Party) and notified to it for the purposes
of this Clause 8.10 by the Executive Committee prior to the date of
its cessation as a Party:-
8.10.1 the Withdrawing Party shall automatically cease to be a
Party and shall be automatically released and discharged
from all its obligations and liabilities under this
Agreement and any such agreement;
8.10.2 each of the other Parties shall be automatically released
and discharged from its obligations and liabilities to the
Withdrawing Party under this Agreement and any such
agreement; and
8.10.3 each Party shall promptly, at the cost and expense of the
Withdrawing Party, execute and deliver all agreements and
other documentation and do all such other acts, matters and
things as may be necessary to confirm such cessation,
release and discharge.
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8.11 External Pool Members: A person who has been admitted as an External
Pool Member shall immediately cease to be a Pool Member (such
cessation to be without prejudice to Clause 66.7) upon either:-
8.11.1 all of its rights under an Interconnection Agreement to use
the relevant External Interconnection(s) for taking or
delivering electricity from or to the NGC Transmission
System having permanently ceased; or
8.11.2 the relevant External Interconnection(s) permanently ceasing
to be connected to the NGC Transmission System.
8.12 Change of capacities: Any Pool Member may, upon application to the
Executive Committee and satisfaction of those of the Pool Membership
Conditions relevant to its new capacity and such other conditions (if
any) as the Executive Committee may reasonably require, change the
capacity(ies) in which it participates as a Pool Member and any Pool
Member who acquires an additional capacity in which it participates as
a Pool Member shall be deemed to have been admitted as a new Pool
Member pursuant to Clause 8.2 in that additional capacity.
8.13 Saving: The Executive Committee shall have the right to waive
compliance by a Party with all or any of the Pool Membership
Conditions either absolutely or on terms if, in the opinion of the
Executive Committee, this is necessary to ensure or help ensure that
the Settlement process operates efficiently or that the interests of
other Pool Members are safeguarded.
9. GENERAL MEETINGS
9.1 Annual general meeting: Once in, and no later than 31st March of, each
year Pool Members shall hold a general meeting as their annual general
meeting in addition to any other meetings of Pool Members in that
year, and notices calling such general meeting shall specify it as the
annual general meeting. At each annual general meeting the Pool
Members shall be required to consider and, where appropriate, resolve
upon the following, namely:-
9.1.1 a business plan prepared by the Executive Committee for the
next following Accounting Period and the four Accounting
Periods thereafter (or for such shorter period as the Pool
Members in general meeting shall from time to time
determine) in relation to the operation of the Settlement
System and the Funds Transfer System and all other matters
which are the subject of this Agreement;
9.1.2 a report prepared by the Executive Committee, which report
shall include:-
(a) a review against the business plan prepared by the
Executive Committee for the current Accounting
Period including a reconciliation based on the
then latest available figures against budget for
all items within such business plan for that
Accounting Period;
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(b) a review of the operation of the Settlement System
and the Funds Transfer System during that
Accounting Period;
(c) a report on the performance by the Settlement
System Administrator of its obligations under
Schedule 4 and the related Service Lines during
that Accounting Period;
(d) a report on the performance by the Pool Funds
Administrator of its obligations under Schedules
11 and 15 during that Accounting Period;
(e) a report on the performance by each Pool Agent of
its obligations under its Pool Agent Contract
during that Accounting Period;
(f) a report on the performance of each PES
Registration Service, compliance with the Pool
Requirements for the MRA and a review of the
arrangements between the Pool and the parties to
the Master Registration Agreement during that
Accounting Period;
(g) a report on the performance of the Chief
Executive's Office (taken as a whole) during that
Accounting Period; and
(h) such other information or matters as the Executive
Committee shall consider appropriate (including
any proposed revision to this Agreement);
9.1.3 the appointment of Committee Members pursuant to Clause 15;
9.1.4 the election of the Pool Chairman pursuant to Clause 16;
9.1.5 such matters as any Pool Member present in person may wish
to raise at such meeting, notice of which has been given to
the Secretary no later than seven days before the date of
such meeting, it being acknowledged and agreed that failure
by a Pool Member so to notify shall not prejudice the right
of any Pool Member to ask questions at such meeting on any
matter then before such meeting; and
9.1.6 such other matters as the Executive Committee sees fit to
propose and of which notice has been given in accordance
with Clause 9.4.1.
9.2 General meetings: All general meetings of Pool Members other than
annual general meetings shall be extraordinary general meetings.
9.3 Calling meetings: All general meetings of Pool Members shall be called
by 14 days' notice in writing at the least, provided that a general
meeting of Pool Members shall, notwithstanding that it is called by
shorter notice, be deemed to have been duly called if it is so agreed
by a majority in number of the Pool Members having a right to attend
and
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vote at such meeting, being a majority in number together holding not
less than 95 per cent. of the Total Weighted Votes.
9.4 Convening meetings:
9.4.1 An annual general meeting shall be convened by the Secretary
on the instructions of the Executive Committee and any
notice convening such a meeting shall set out or append
details of any such matters as are referred to in Clause
9.1.6 and shall be accompanied by a copy of the business
plan referred to in Clause 9.1.1 and of the report referred
to in Clause 9.1.2. The Secretary shall use its reasonable
endeavours to notify the Pool Chairman and Pool Members in
advance of the relevant annual general meeting of any such
matters referred to in Clause 9.1.6 of which the Secretary
has received notice in accordance with that Clause.
9.4.2 Extraordinary general meetings shall be convened:-
(a) by the Secretary on the instructions of the
Executive Committee or of any one or more
Committee Members pursuant to Clause 13.4; or
(b) by the Executive Committee, forthwith upon receipt
of a Pool Members' requisition being a requisition
of Pool Members holding together at the date of
the deposit of the requisition not less than two
per cent. of the Total Weighted Votes of all Pool
Members; or
(c) by the Secretary on the instructions of the Pool
Chairman.
9.4.3 A Pool Members' requisition shall state the objects of the
meeting and must be signed by or on behalf of the
requisitionists and deposited at the office of the
Secretary, and may consist of several documents in like form
each signed by one or more requisitionists. If the Executive
Committee does not within 21 days from the date of the
deposit of the requisition proceed duly to convene an
extraordinary general meeting for a date not later than two
months after the said date of deposit, the requisitionists
may themselves convene a meeting, but any meeting so
convened shall not be held after the expiration of three
months from such date. A meeting convened under this Clause
9.4 by requisitionists shall be convened in the same manner,
as nearly as possible, as that in which meetings are to be
convened by the Executive Committee.
9.5 Notice of general meetings: Any notice convening any general meeting
of Pool Members shall be exclusive of the day on which it is served or
deemed to be served and of the day for which it is given, and shall
specify the place, the day and the hour of the meeting and the general
nature of the business of such meeting and shall be given to all
Parties, all Committee Members, the Pool Chairman, the Chief Executive
(if any), the Pool Auditor and the Director. The accidental omission
to give notice of a meeting to, or the non-receipt of notice of a
meeting by, any person entitled to receive notice shall not invalidate
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the proceedings at that meeting. In every such notice there shall
appear with reasonable prominence a statement that a Pool Member
entitled to attend and vote is entitled to appoint a proxy to attend,
speak and (subject to Clause 12.1) vote in its place and that a proxy
need not also be a Pool Member.
9.6 Annual conference:
9.6.1 In each year, on a date falling as near as practicable to,
but in any event not later than, eight months after the
immediately preceding annual general meeting, a meeting of
Pool Members shall be convened and held which shall not be
the annual general meeting but which may (but need not) be
convened as an extraordinary general meeting (the "Annual
Conference").
9.6.2 At the Annual Conference a report shall be presented by the
Executive Committee on the matters referred to in Clause
9.1.2, such report to cover the period commencing on the day
after the immediately preceding annual general meeting and
ending on the day falling one calendar month before the date
for which the Annual Conference has been convened. In
addition, the Executive Committee shall arrange for such
other matters to be discussed, presentations to be made and
Pool Member activities to be organised at the Annual
Conference as it may resolve to be appropriate.
9.7 Pool Auditor's Report:
9.7.1 The Secretary shall provide to all Pool Members annually by
the last day of the first Quarter following the end of the
then most recent Accounting Period a copy of a report
prepared by the Pool Auditor on the Settlement System and
its operation during such Accounting Period (the "Pool
Auditor's Report").
9.7.2 The Pool Auditor's Report shall include:-
(i) a summary of the audits, reviews, tests and/or
checks referred to in Part IX carried out by the
Pool Auditor during that Accounting Period;
(ii) any recommendation which the Pool Auditor wishes
to make regarding the operation of the Settlement
System, the Charging Procedure, the PFA Accounting
Procedure, the ASP Accounting Procedure and/or the
Funds Transfer System; and
(iii) such other information or matters which the
Executive Committee may reasonably require or the
Pool Auditor shall consider appropriate.
9.7.3 If the Executive Committee so resolves, the Secretary shall
convene a meeting of all Pool Members in order to discuss
the Pool Auditor's Report.
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10. PROCEEDINGS AT GENERAL MEETINGS
10.1 General: Save as provided in Clause 12.8 and Part IV, all business of
Pool Members shall be transacted at general meetings of Pool Members,
the proceedings for the conduct of which are set out in this Clause
10.
10.2 Quorum: No business shall be transacted at any general meeting of Pool
Members unless a quorum of Pool Members is present at the time when
the meeting proceeds to business. Save as herein otherwise provided, a
quorum shall be Pool Members present in person representing:-
10.2.1 50 per cent. or more of the aggregate number of Weighted
Votes to which all Generators are entitled under Clause
11.2.1; and
10.2.2 50 per cent. or more of the aggregate number of Weighted
Votes to which all Suppliers are entitled under Clause
11.2.2.
10.3 Lack of quorum: If within half an hour from the time appointed for the
general meeting a quorum is not present, the meeting shall stand
adjourned to the same day in the next week, at the same time and place
or to such other day and at such other time and place as the Executive
Committee may determine and, if at the adjourned meeting a quorum is
not present within half an hour from the time appointed for the
meeting, the Pool Member(s) present shall be a quorum.
10.4 Chairman: The Pool Chairman shall preside as chairman at every general
meeting and separate general meeting of Pool Members (other than one
convened to consider his removal) or, if there is no Pool Chairman or
if he shall not be present within 15 minutes after the time appointed
for the holding of the meeting or is unwilling to act or if the
relevant meeting has been convened to consider the removal of the Pool
Chairman, the Chief Executive (if any) shall preside as chairman or,
if the Chief Executive shall not be present or is unwilling to act or
if the relevant meeting has been convened to consider the removal of
the Chief Executive, the Pool Members present shall choose one of
their number to be chairman of the meeting.
10.5 Adjournments: The chairman of the meeting may, with the consent of any
general meeting of Pool Members at which a quorum is present (and
shall if so directed by the meeting) adjourn the meeting from time to
time and from place to place, but no business shall be transacted at
any adjourned meeting other than the business left unfinished at the
meeting from which the adjournment took place. When a meeting is
adjourned for 30 days or more, notice of the adjourned meeting shall
be given as in the case of an original meeting. Save as aforesaid, it
shall not be necessary to give any notice of an adjournment or of the
business to be transacted at an adjourned meeting.
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10.6 Demand for a poll: At any general meeting of Pool Members a resolution
put to the vote of the meeting shall be decided on a show of hands
unless a poll is (before or on the declaration of the result of the
show of hands) demanded:-
10.6.1 by the chairman of the meeting; or
10.6.2 by at least two Pool Members present in person or by proxy;
or
10.6.3 by any Pool Member present in person or by proxy and holding
not less than two per cent. of the Total Weighted Votes of
all Pool Members.
Unless a poll be so demanded a declaration by the chairman of the
meeting that a resolution has on a show of hands been carried or
carried unanimously, or by a particular majority, or lost and an entry
to that effect in the book containing minutes of the proceedings of
general meetings shall be conclusive evidence of the fact without
proof of the number or proportion of the votes recorded in favour of
or against such resolution. The demand for a poll may be withdrawn.
10.7 Timing of poll: Except as hereinafter provided in this Clause 10.7, if
a poll is duly demanded it shall be taken in such manner as the
chairman of the meeting directs, and the result of the poll shall be
deemed to be the resolution of the meeting at which the poll was
demanded. A poll demanded on the election of the chairman of the
meeting or on a question of adjournment shall be taken forthwith. A
poll demanded on any other question shall be taken at such time as the
chairman of the meeting directs, and any business other than that upon
which a poll has been demanded may be proceeded with pending the
taking of the poll.
10.8 No casting vote: In the case of an equality of votes, whether on a
show of hands or on a poll, the chairman of the meeting at which the
show of hands takes place or at which the poll is demanded, shall not
be entitled to a second or casting vote.
10.9 Representation of non-Pool Members: Each of the Chief Executive (if
any) or his duly appointed representative, the Settlement System
Administrator, the Pool Funds Administrator, the Grid Operator and the
Ancillary Services Provider shall be obliged to attend, and each other
Party, each Committee Member, the Pool Auditor and the Director (or
its or his duly appointed representative) shall have the right to
attend, at each general meeting of Pool Members, and each of them
shall have the right to speak (but not to vote) thereat.
10.10 Minutes: The Secretary shall prepare minutes of all general meetings
of Pool Members and shall circulate copies thereof to all Parties,
each Committee Member, the Pool Chairman, the Chief Executive (if
any), the Pool Auditor and the Director as soon as practicable (and in
any event within ten working days) after the relevant meeting has been
held.
<PAGE>
11. VOTING
11.1 Membership Votes: Each Pool Member shall be entitled to one vote by
reason of its Pool Membership (its "Membership Vote").
11.2 Weighted Votes: Subject as provided in the following provisions of
this Clause 11, in respect of any month:-
11.2.1 each Pool Member which is a Generator shall be entitled in
that capacity to one vote (each such vote a "Generator
Weighted Vote") for each GWh of Genset Metered Generation of
all its Allocated Generating Units for all Settlement
Periods falling in the Votes Calculation Period relative to
such month, as determined from the final run of Stage 1
Settlement for each such Settlement Period and with the
number of GWh being rounded up or down (0.5 being rounded
upwards) to the nearest whole number;
11.2.2 the number of votes (each a "Supplier Weighted Vote") to
which a Pool Member which is a Supplier shall be entitled in
that capacity shall be calculated in accordance with the
following formula:-
GWV x SV
---
(SIGMA)SV
where:-
SV is equal to the total GWh of Aggregate Demand
taken by the relevant Pool Member in all
Settlement Periods falling in the Votes
Calculation Period relative to the relevant month,
as determined, for each such Settlement Period,
from the final run of Stage 1 Settlement and the
Stage 2 Initial Settlement Run and with the number
of GWh being rounded up or down (0.5 being rounded
upwards) to the nearest whole number;
GWV is the total number of Generator Weighted Votes of
all Pool Members for such month; and
(SIGMA) means summed over the total SV of all Pool Members
for such month,
provided that the total number of Supplier Weighted Votes
shall at all times equal the total number of Generator
Weighted Votes and if, as a result of the foregoing, such
would not be the case, the Pool Member with the greatest
number of Generator Weighted Votes or of Supplier Weighted
Votes calculated as aforesaid shall have deducted that
number of Weighted Votes of the relevant class as will
ensure that the total number of Supplier Weighted Votes
equals the total number of Generator Weighted Votes.
<PAGE>
For the purposes of this Clause 11.2:-
(a) a Generating Unit shall be an Allocated Generating
Unit of a Pool Member (in this Clause, the
"Identified Pool Member") if it belongs to the
Identified Pool Member as of the date on which the
Executive Committee calculates the Weighted Votes
of Pool Members for the relevant month pursuant to
Clause 11.3.2. If at any time during such month an
Allocated Generating Unit shall belong to another
Pool Member (in this Clause, the "Transferee Pool
Member"), the Weighted Votes attributed to the
Identified Pool Member for such month by reason of
the Allocated Generating Unit belonging to it
shall (subject to Clause 11.4) be transferred to
the Transferee Pool Member as of the date on which
such Allocated Generating Unit first belongs to
the Transferee Pool Member (and the Identified
Pool Member and the Transferee Pool Member shall
jointly notify the Executive Committee in writing
of such date in good time before its occurrence);
(b) a Generating Unit shall belong to a Pool Member if
it is owned by that Pool Member and not leased to
another person or if it is leased by that Pool
Member from another person;
(c) a Pool Member shall notify the Executive Committee
promptly on request of its Allocated Generating
Units and the Executive Committee and each other
Party may rely on the information in that
notification and in any notification under
paragraph (a) above without further enquiry or
need to verify that information;
(d) in determining the meaning of "good time" for the
purposes of paragraph (a) above one factor to be
taken into account is that the Settlement System
Administrator must be allowed sufficient time to
effect the necessary changes in Settlement
associated with the transfer of the relevant
Allocated Generating Unit; and
(e) the Executive Committee may, upon application of
any Pool Member involved in any transfer of assets
between Pool Members during any month, adjust as
between the Pool Members involved in such
transfer, the number of Weighted Votes to which
they in their capacities as Suppliers are entitled
in respect of the remaining part of that month
and/or one or more succeeding months if, in the
opinion of the Executive Committee, such
adjustment would help accommodate the consequences
of such a transfer and not prejudice the interests
of any other Pool Member in any material respect.
<PAGE>
11.3 Calculation of Weighted Votes: Subject as provided in the following
provisions of this Clause 11:-
11.3.1 New Pool Members:
(a) until the Availability Date in respect of that
Pool Member, any Party who is admitted as a Pool
Member pursuant to Clause 8.2 shall have that
number of Weighted Votes as fall to be determined
in accordance with the following provisions of
this Clause 11.3.1. Thereafter, such Pool Member's
Weighted Votes shall be calculated in accordance
with Clause 11.2;
(b) until the Availability Date in respect of that
Pool Member, a Pool Member to whom paragraph (a)
applies shall have that number of Generator
Weighted Votes and/or Supplier Weighted Votes as
are accorded to it upon its admission as a Pool
Member by the Executive Committee (which the
Executive Committee shall do prior to the date of
such admission) in accordance with paragraphs (c),
(d) and/or (as the case may be) (e) below or as
are determined by the Director in accordance with
Clause 11.5;
(c) in determining the number of Generator Weighted
Votes in respect of a new Pool Member who is a
Generator, the Executive Committee shall have
regard to the estimated generation of that
Generator which is proposed to be sold pursuant to
this Agreement for the year following its
admission as a Pool Member (pro rated in respect
of each month or part of a month (as the case may
be)) and to such other factors as the Executive
Committee shall consider appropriate;
(d) in determining the number of Supplier Weighted
Votes in respect of a new Pool Member who is a
Supplier, the Executive Committee shall have
regard to the estimated total GWh which is
proposed to be taken by that Supplier pursuant to
this Agreement for the year following its
admission as a Pool Member (pro rated in respect
of each month or part of a month (as the case may
be)) and to such other factors as the Executive
Committee shall consider appropriate;
(e) in determining the number of Weighted Votes in
respect of a new Pool Member who is an External
Pool Member the Executive Committee shall have
regard to the estimated generation (if any) and to
the estimated level of demand for Active Energy
(if any) of that Pool Member across the relevant
External Interconnection for the year following
its admission as a Pool Member (pro rated in
respect of each month or part of a month (as the
case may be)) and to such other factors as the
Executive Committee shall consider appropriate;
<PAGE>
11.3.2 Calculation:
(a) the Executive Committee shall calculate the number
of Weighted Votes to which each Pool Member whose
Weighted Votes are to be calculated in accordance
with Clause 11.2 is entitled in its capacity as a
Generator or Supplier:-
(i) on each Calculation Date, in respect of
the Following Month; and
(ii) on each admission, resignation or
removal of a Party as a Pool Member or
change in the capacity in which it
participates as a Pool Member, for the
remainder of the then current month;
(b) the Executive Committee shall perform such
calculations on the basis of information to be
supplied by the Settlement System Administrator in
accordance with Service Line 10 (Service to CEO
and Pool Members) and by the Initial Settlement
and Reconciliation Agent pursuant to its Pool
Agent Contract;
(c) the Executive Committee shall, as soon as
practicable after any such calculation, notify
each Pool Member and the Director in writing of
the number of Generator Weighted Votes and
Supplier Weighted Votes of all Pool Members
(whether calculated in accordance with Clause 11.2
or 11.3.1); and
(d) subject to Clauses 11.5 and 11.6, the
determination of the Executive Committee as to the
number of Generator Weighted Votes and Supplier
Weighted Votes of each Pool Member shall (in the
absence of manifest error) be final and binding
for all purposes of this Agreement;
11.3.3 Attribution: if a Pool Member shall not receive any Weighted
Vote by reason of the calculations under Clause 11.2 or the
foregoing provisions of this Clause 11.3, such Pool Member
shall nevertheless be accorded one Generator Weighted Vote
and/or one Supplier Weighted Vote, depending on the
capacity(ies) in which it is participating as a Pool Member;
and
11.3.4 Additional capacity: for the purposes of this Clause 11 any
Pool Member who acquires an additional capacity in which it
participates as a Pool Member shall be deemed to have been
admitted as a new Pool Member pursuant to Clause 8.2 in that
additional capacity and until the Availability Date in
respect of that Pool Member, it shall have that number of
Weighted Votes in that additional capacity as fall to be
determined in accordance with the provisions of Clause
11.3.1. Thereafter, such Pool Member's Weighted Votes shall
be calculated in accordance with Clause 11.2.
<PAGE>
11.4 Cap on Weighted Votes:
11.4.1 The aggregate number of Weighted Votes to which a Pool
Member shall be entitled (in whatever capacity) under
Clauses 11.2 and 11.3 shall not at any time exceed 15 per
cent. of the Total Weighted Votes.
11.4.2 The aggregate number of Weighted Votes to which all Pool
Members which are members of the same Pool Member's Group
are entitled (in whatever capacity) under Clauses 11.2 and
11.3 shall not at any time exceed 15 per cent. of the Total
Weighted Votes.
11.4.3 If, by virtue of the number of Weighted Votes accorded to a
Pool Member or to Pool Members which are members of the same
Pool Member's Group pursuant to Clauses 11.2 and/or 11.3, a
Pool Member or Pool Members would in the absence of this
Clause 11.4.3 be in breach of Clause 11.4.1 or 11.4.2, the
number of Weighted Votes to which that Pool Member or (as
the case may be) those Pool Members which are members of the
same Pool Member's Group shall be entitled shall be
determined as follows:-
(a) in the case of a Pool Member which would otherwise
be in breach of Clause 11.4.1, the aggregate
number of Weighted Votes to which that Pool Member
shall be entitled shall be reduced by such number
(in this paragraph (a), the "Redistributed Votes")
as will ensure that, after redistribution of its
Weighted Votes in accordance with Clause 11.4.5,
such Pool Member shall have as nearly as
practicable (but not in excess of) 15 per cent. of
the Total Weighted Votes. The Redistributed Votes
shall:-
(i) consist of that number of Weighted Votes
in excess of 15 per cent. of the Total
Weighted Votes to which the relevant
Pool Member is entitled; and
(ii) comprise Generator Weighted Votes and
Supplier Weighted Votes in the same
proportion (as nearly as practicable) as
the total number of Generator Weighted
Votes and Supplier Weighted Votes of
that Pool Member (before such
redistribution) bear one to the other;
(b) in the case of Pool Members which are members of
the same Pool Member's Group and which would
otherwise be in breach of Clause 11.4.2, the
aggregate number of Weighted Votes to which those
Pool Members shall be entitled shall be reduced by
such number (in this paragraph (b), the
"Redistributed Votes") as will ensure that, after
redistribution of their Weighted Votes in
accordance with Clause 11.4.6, such Pool Members
shall together have as nearly as practicable (but
not
<PAGE>
in excess of) 15 per cent. of the Total Weighted
Votes. The Redistributed Votes shall:-
(i) consist of that number of Weighted Votes
in excess of 15 per cent. of the Total
Weighted Votes to which all Pool Members
which are members of that Pool Member's
Group are, in aggregate, entitled;
(ii) comprise Generator Weighted Votes and
Supplier Weighted Votes in the same
proportion (as nearly as practicable) as
the total number of Generator Weighted
Votes and Supplier Weighted Votes of all
Pool Members which are members of that
Pool Member's Group (before such
redistribution) bear one to the other;
and
(iii) be taken from each Pool Member which is
a member of that Pool Member's Group (in
the case of Redistributed Votes which
are Generator Weighted Votes) in the
proportion (as nearly as practicable)
which that Pool Member's Generator
Weighted Votes (if any) bear to the
total number of Generator Weighted Votes
of all Pool Members which are members of
that Pool Member's Group and (in the
case of Redistributed Votes which are
Supplier Weighted Votes) in the
proportion (as nearly as practicable)
which that Pool Member's Supplier
Weighted Votes (if any) bear to the
total number of Supplier Weighted Votes
of all Pool Members which are members of
that Pool Member's Group; and
(c) in the case where both paragraphs (a) and (b)
above apply in respect of a Pool Member, the
provisions of paragraph (a) above shall be applied
before those of paragraph (b) above.
11.4.4 Subject to Clause 11.4.7, where more than one Pool Member or
Pool Member's Group would, in the absence of Clause 11.4.3,
be in breach of Clause 11.4.1 or (as the case may be)
11.4.2, the redistribution of Weighted Votes pursuant to
Clause 11.4.5 or (as the case may be) 11.4.6 shall commence
with the Pool Member or Pool Member's Group that has the
greatest percentage of Total Weighted Votes, shall continue
with the Pool Member or Pool Member's Group with the next
greatest percentage and so on, and the process of
redistributing Weighted Votes in accordance with such
Clauses shall continue until such time as no Pool Member or
Pool Member's Group is in breach of Clause 11.4.1 or 11.4.2.
11.4.5 Where Clause 11.4.3(a) applies, the Redistributed Votes
shall (subject as provided in Clauses 11.4.7 and 11.4.8) be
allocated as follows:-
(a) the Redistributed Votes which are Generator
Weighted Votes shall be allocated across all other
Pool Members in the proportions (as nearly as
<PAGE>
practicable) which their respective Generator
Weighted Votes bear to each other (such
proportions to be calculated before any
redistribution of Weighted Votes pursuant to this
Clause 11.4); and
(b) the Redistributed Votes which are Supplier
Weighted Votes shall be allocated across all other
Pool Members in the proportions (as nearly as
practicable) which their respective Supplier
Weighted Votes bear to each other (such
proportions to be calculated before any
redistribution of Weighted Votes pursuant to this
Clause 11.4).
11.4.6 Where Clause 11.4.3(b) applies, the Redistributed Votes
shall (subject as provided in Clauses 11.4.7 and 11.4.8) be
allocated as follows:-
(a) the Redistributed Votes which are Generator
Weighted Votes shall be allocated across all other
Pool Members which are not members of the relevant
Pool Member's Group in the proportions (as nearly
as practicable) which their respective Generator
Weighted Votes bear to each other (such
proportions to be calculated before any
redistribution of Weighted Votes pursuant to this
Clause 11.4); and
(b) the Redistributed Votes which are Supplier
Weighted Votes shall be allocated across all other
Pool Members which are not members of the relevant
Pool Member's Group in the proportions (as nearly
as practicable) which their respective Supplier
Weighted Votes bear to each other (such
proportions to be calculated before any
redistribution of Weighted Votes pursuant to this
Clause 11.4).
11.4.7 Redistributed Votes shall not be allocated pursuant to
Clause 11.4.5 or 11.4.6 to any Pool Member which before such
allocation is or, but for Clause 11.4.3, would be in breach
of Clause 11.4.1 or 11.4.2.
11.4.8 Any allocation of Redistributed Votes in accordance with the
foregoing provisions of this Clause 11.4 shall not be
effected in the case of votes amounting to fractions of
whole numbers and any Redistributed Votes which are
incapable of allocation as a result of this or any other
provision of this Clause 11.4 ("Fractional Redistributed
Votes") shall, in the case of Generator Weighted Votes, be
allocated automatically to the largest Generator in terms of
Genset Metered Generation for the relevant month or, in the
case of Supplier Weighted Votes, to the largest Supplier in
terms of Aggregate Demand for the relevant month, to the
extent that this does not cause a breach of Clause 11.4.1 or
Clause 11.4.2. Thereafter, any unallocated Fractional
Redistributed Votes shall be allocated in accordance with
this Clause 11.4.8 to the next such largest Generator and/or
Supplier and the process shall continue until all Fractional
Redistributed Votes have been so allocated.
<PAGE>
11.5 New Pool Member's reference to the Director: If any Pool Member
referred to in Clause 11.3.1(a) shall dispute the calculation of or
the number of Weighted Votes accorded to it in accordance with Clause
11.3.1, such Pool Member may refer such dispute to the Director for
determination, whose determination as to the calculation of or the
number of Weighted Votes to which such person shall be entitled shall
be final and binding for all purposes of this Agreement.
11.6 Alteration of Weighted Votes: The Director may at any time by notice
to the Executive Committee alter the calculation of Weighted Votes set
out in Clauses 11.2.1 and 11.2.2 and/or the caps on Weighted Votes set
out in Clauses 11.4.1 and 11.4.2 if, in his opinion, such alteration
is required to achieve fair representation for all Pool Members.
11.7 Pool Member Group Information: Each Pool Member shall provide the
Executive Committee with such details of its Pool Member Group as the
Executive Committee may at any time and from time to time reasonably
require for the purposes of this Clause 11 and such Pool Member shall
be deemed to warrant to all other Pool Members that all such details
are true and accurate in all material respects as at the date they are
provided to the Executive Committee. The Executive Committee may rely
on such details without further enquiry or need to verify them.
11.8 [Not used.]
11.9 Records: The Executive Committee shall maintain, and retain for a
period of not less than eight years, a register recording the
Generator Weighted Votes and Supplier Weighted Votes of each Pool
Member, which register shall be open for inspection by any Party at
the office of the Secretary during normal business hours.
11.10 Voting on a show of hands: On a show of hands every Pool Member
present in person shall have only its Membership Vote (that is, one
vote).
11.11 Voting on a poll: On a poll every Pool Member shall have only its
Weighted Votes. On a poll votes may be given either personally or by
proxy.
11.12 Objections: No objection shall be raised to the qualification of any
voter except at the meeting or adjourned meeting at which the vote
objected to is given or tendered, and every vote not disallowed at
such meeting shall be valid for all purposes. Any such objection made
in due time shall be referred to the chairman of the meeting whose
decision shall be final and conclusive.
11.13 Scrutiny: At each meeting at which a Pool Member casts a vote, the
Secretary or another person specifically appointed for the purpose by
the Secretary shall ensure that proper scrutiny of all such votes
takes place, such that he is entirely satisfied that every vote cast
was so cast properly and in accordance with all relevant provisions of
this Agreement and any other applicable agreement between all Pool
Members or rules or regulations governing such votes.
<PAGE>
12. PROXIES
12.1 Authority: Any Pool Member entitled to attend and vote at any general
meeting of Pool Members shall be entitled to appoint another person
(whether a Pool Member or not) as its proxy to attend, speak and vote
in its place, save that a proxy shall not be entitled to vote except
on a poll.
12.2 Authentication of proxy: The instrument appointing a proxy shall be in
writing either under seal or under the hand of an officer or attorney
duly authorised. A proxy need not be a Pool Member.
12.3 Deposit of proxy: The instrument appointing a proxy and the power of
attorney or other authority, if any, under which it is signed or a
certified copy of that power or authority shall be deposited at the
office of the Secretary or at such other place within the United
Kingdom as is specified for that purpose in the notice convening the
relevant general meeting of Pool Members, not less than 48 hours
before the time for holding the meeting or adjourned meeting, at which
the person named in the instrument proposes to vote, or, in the case
of a poll, not less than 24 hours before the time appointed for the
taking of the poll, and in default the instrument of proxy shall not
be treated as valid.
12.4 Form of proxy (1): An instrument appointing a proxy shall be in the
following form or a form as near thereto as circumstances admit:-
"POOLING AND SETTLEMENT AGREEMENT FOR THE ELECTRICITY
INDUSTRY IN ENGLAND AND WALES dated 30th March, 1990 (as
amended)
We, ___________, of _____________, being a Pool Member (as
defined in the above-mentioned Agreement), hereby appoint
___________ of ___________ or ____________, failing him,
___________ of _______________, as our proxy to vote for us
on our behalf at the [annual or extraordinary, as the case
may be] general meeting of Pool Members, to be held on the
_____ day of ___________ 19__, and at any adjournment
thereof.
Signed this __________ day of _______ 19__."
12.5 Form of proxy (2): Where it is desired to afford Pool Members an
opportunity of voting for or against a resolution the instrument
appointing a proxy shall be in the following form or a form as near
thereto as circumstances admit:-
"POOLING AND SETTLEMENT AGREEMENT FOR THE ELECTRICITY
INDUSTRY IN ENGLAND AND WALES dated 30th March, 1990 (as
amended)
We, __________, of __________, being a Pool Member (as
defined in the above-mentioned Agreement), hereby appoint
___________ of ________ or, failing him, __________ of
___________, as our proxy to vote for us on our behalf at
the [annual or extraordinary, as the case may be] general
meeting of Pool Members, to be held on the ________ day of
________ 19__, and at any adjournment thereof.
<PAGE>
Signed this __________ day of _________ 19__.
This form is to be used in favour of the resolution. against
Unless otherwise instructed, the proxy will vote as he
thinks fit.
Strike out whichever is not desired."
12.6 Authority to demand a poll: The instrument appointing a proxy shall be
deemed to confer authority to demand or join in demanding a poll.
12.7 Proxy valid: A vote given in accordance with the terms of an
instrument of proxy shall be valid notwithstanding the previous
revocation of the proxy or of the authority under which the proxy was
executed, provided that no intimation in writing of such revocation
shall have been received by the Secretary at his office before the
commencement of the meeting or adjourned meeting at which the proxy is
used.
12.8 Resolution in writing: A resolution in writing signed by all the Pool
Members for the time being entitled to receive notice of and to attend
and vote at general meetings of Pool Members (or by their duly
authorised representatives) shall be as valid and effective as if the
same had been passed at a general meeting of Pool Members duly
convened and held and may consist of several instruments in like form
and executed by or on behalf of one or more Pool Members.
12.9 Corporations acting by representatives at meetings: Any company,
corporation, partnership, firm, joint venture, trust, association or
other organisation which is a Pool Member may by resolution of its
directors or other governing body authorise such person as it thinks
fit to act as its representative at any general meeting of Pool
Members, and references in this Agreement to a Pool Member acting in
person (howsoever expressed) shall be deemed to include Pool Members
acting by their duly authorised representatives.
13. MATTERS RESERVED TO THE GENERAL MEETING: CLASS RIGHTS
13.1 Matters reserved generally:
13.1.1 As between the Pool Members each of the matters referred to
in Clause 13.1.2 shall require the prior approval of Pool
Members in general meeting before effect is given to the
same, such approval to be (subject as provided in Sections
15, 16 and 17 of Schedule 4) by resolution of Pool Members
passed by not less than 65 per cent. of the Membership Votes
or (as the case may be) Weighted Votes of such Pool Members
as (being entitled to do so) vote in person or by proxy at a
general meeting of Pool Members of which notice specifying
the intention to propose the resolution has been duly given.
<PAGE>
13.1.2 The matters referred to in Clause 13.1.1 are:-
(a) the removal of the Settlement System
Administrator;
(b) the appointment and removal of the Pool Auditor;
(c) any amendment to or variation of this Agreement
(other than any amendment or variation referred to
in Clause 13.2.1, 13.2.2 or 13.2.3 or any
amendment of or variation to Schedule 9 (including
any amendment thereto made pursuant to Clause
56.2) or to Schedule 15 or to the Menu of EPFAL
Services Prices);
(d) the approval pursuant to Clause 5.8 of any
Recommendation and pursuant to Clause 5.11 of any
Works Programme and any approval pursuant to
Clause 5.14;
(e) the removal of the Pool Chairman; and
(f) such other matters (not being matters referred to
in Clause 9.1.6) which are otherwise designated
under this Agreement for reference to the Pool
Members in general meeting.
13.2 Matters reserved to particular classes of Pool Members:
13.2.1 As between the Pool Members any amendment to or variation of
this Clause 13.2 shall require the prior approval of the
Generators in separate general meeting.
13.2.2 As between the Pool Members each of the following matters
shall require the prior approval of the Suppliers in
separate general meeting:-
(a) the introduction of, or any change to any of, the
Codes of Practice applicable to Metering Equipment
comprising Stage 2 Metering Systems;
(b) any change to the standards of accuracy of
Metering Equipment referred to in Clause 60.7 or
sub-section 7.2 of Schedule 28;
(c) any amendment to or variation of Part XI and/or
Schedule 18; and
(d) any amendment to or variation of this Clause 13.2.
13.2.3 As between the Pool Members any amendment to or variation of
Clause 10.2, 10.6, 13.4, 13.5, 15, 16.2, 19.2, 22 or 83, or
this Clause 13.2 shall, in addition to the applicable
requirements of Clauses 13.2.1 and 13.2.2, require the prior
approval of Pool Members in general meeting, such approval
to be by resolution of Pool Members passed by not less than
84 per cent. of the Membership Votes or (as the case may be)
Weighted Votes of such Pool Members as (being entitled to
<PAGE>
do so) vote in person or by proxy at a general meeting of
Pool Members of which notice specifying the intention to
propose the resolution has been duly given.
13.2.4 To every separate general meeting referred to in this Clause
13.2 the provisions of this Part III relating to general
meetings of Pool Members (other than Clause 10.9, save in
respect of the attendance by the Pool Auditor or the
Director or its or his duly appointed representative) shall
apply mutatis mutandis but so that:-
(a) in the case of the Generators, the necessary
quorum shall be two Pool Members of that class;
(b) in the case of the Suppliers, the necessary quorum
shall be eight Pool Members of that class; and
(c) notice of any such separate general meeting need
be given only to those entitled to attend the
same,
and any resolution put to any such separate general meeting
shall, to be passed, require (in the case of the Generators)
75 per cent. and (in the case of the Suppliers) a simple
majority of the Membership Votes or (as the case may be)
Weighted Votes of such Pool Members as (being entitled to do
so) vote in person or by proxy at such separate general
meeting of which notice specifying the intention to propose
the resolution has been duly given provided that any such
resolution shall be deemed passed if it would have been
passed but for the resolution being opposed by a single Pool
Member or one or more Pool Members of a single Pool Member's
Group.
13.2A Variation of Schedule 22: As between the Pool Members any amendment to
or variation of Schedule 22 shall require the approval of the Public
Electricity Suppliers in separate general meeting in accordance with
the provisions of that Schedule.
13.2B Variation of Schedule 29: As between the Pool Members any amendment to
or variation of Section 2 of Schedule 29 shall require the approval of
the Public Electricity Suppliers in separate general meeting in
accordance with the provisions of sub-section 2.10 thereof.
13.3 Provisions cumulative: The provisions of Clauses 13.1, 13.2, 13.2A and
13.2B are cumulative and not exclusive one of the other.
13.4 Executive Committee's referral: In the event of receipt by the
Secretary from one or more of the Committee Members of a request that
any matter resolved upon on a poll by the Executive Committee (or upon
which it has been unable or has refused to resolve other than where
the taking of a vote has been deferred pursuant to Clause 22.1) be
remitted to the Pool Members in general meeting, such request having
been received no later than five working days after the date on which
the results of such poll were notified to Committee Members (exclusive
of the date on which notice was given) (or, as the case
<PAGE>
may be, the date of its failure or refusal so to resolve), the matter
the subject of the relevant resolution shall be remitted to the Pool
Members in general meeting and, pending the decision of Pool Members
in general meeting, such resolution shall not have effect. The
provisions of this Clause 13.4 are subject to the provisions of Clause
61.9.
13.5 Dissentient Pool Member's right of appeal:
13.5.1 Any Pool Member who:-
(a) voted against a resolution passed or in favour of
a resolution not passed by Pool Members in general
meeting; or
(b) voted against a resolution passed or in favour of
a resolution not passed by Generators or (as the
case may be) Suppliers in separate general
meeting; or
(c) is directly affected by Pool Creditors passing or
failing to pass a resolution of Pool Creditors
(but only where such resolution does not concern
the enforcement or non-enforcement of any payment
obligation),
and each Externally Interconnected Party (not being a Pool
Member) (each such Pool Member a "Dissentient Pool Member",
which expression shall include each such Externally
Interconnected Party) shall be entitled within ten working
days after the date of such resolution to apply in writing
to the Director seeking a ruling that the relevant
resolution shall or shall not have effect on the grounds
that either:-
(i) the interests of a group of Pool Members
(including the Dissentient Pool Member) or of the
Dissentient Pool Member under this Agreement have
been, are or will be unfairly prejudiced by the
passing of or the failure to pass such resolution;
or
(ii) such resolution will breach, or will cause the
Dissentient Pool Member to be in breach of, one or
more provisions of this Agreement or of its
Licence or of the Act.
Any such application shall give detailed reasons and
evidence in support and shall be copied to the Executive
Committee. The Dissentient Pool Member shall be entitled to
mark all or any part of such application as confidential and
the Executive Committee shall give such weight as it sees
fit to such marking in the copying of such application to
those persons to whom it is obliged to copy such
application. The Executive Committee shall promptly notify
all other Pool Members, each Externally Interconnected Party
(not being a Pool Member), the Pool Chairman, the Settlement
System Administrator and the Pool Funds Administrator and
(if the Executive Committee considers it appropriate) any
Pool
<PAGE>
Agent of receipt of such application. At the same time as
the Executive Committee shall notify all such other Pool
Members, each Externally Interconnected Party (not being a
Pool Member), the Pool Chairman, the Settlement System
Administrator and the Pool Funds Administrator of such
receipt, the Executive Committee shall send each of them
(and may send any Pool Agent) a copy of the relevant
application (amended, if appropriate, to take account of any
such marking where the Executive Committee shall have seen
fit so to do). The Executive Committee, each Pool Member,
each Externally Interconnected Party (not being a Pool
Member), the Pool Chairman, the Settlement System
Administrator and the Pool Funds Administrator and (if
invited by the Director) the Pool Auditor shall each be
entitled to make representations to the Director. If the
Pool Auditor shall be so invited to make any such
representations, the Executive Committee will provide it
with a copy of the relevant application (amended, if
appropriate, as aforesaid).
13.5.2 Any determination of the Director in respect of any such
application as is referred to in Clause 13.5.1 shall be
final and binding. Pending any determination of the Director
in respect of any such application, the relevant resolution
(if passed) shall not have effect provided that, if the
Director shall decline to accept a reference or to make a
determination (in either case, for whatsoever reason), such
resolution shall take effect from the date that the Director
notifies the Executive Committee that he declines to accept
the reference or to make the determination.
13.5.3 The Parties acknowledge and agree that the satisfaction of
either of the grounds referred to in Clause 13.5.1(i) or
(ii) shall not of itself entitle the Dissentient Pool Member
to a determination by the Director in its favour.
<PAGE>
PART IV
THE EXECUTIVE COMMITTEE
14. ESTABLISHMENT OF THE EXECUTIVE COMMITTEE
Establishment: The Pool Members hereby establish the Executive Committee upon
the terms and subject to the conditions of this Agreement.
15. MEMBERSHIP OF THE EXECUTIVE COMMITTEE
15.1 Number of Committee Members: The maximum number of Committee Members
shall not at any time exceed twelve or such lesser number (subject to
a minimum of six) as Pool Members may decide in general meeting not
later than 90 days before each annual general meeting of Pool Members.
Any such lesser number so decided upon prior to an annual general
meeting of Pool Members shall be the maximum number of Committee
Members during the entire term of office (according to Clause 15.4) of
those Committee Members elected at that annual general meeting (or, as
the case may be, a subsequent extraordinary general meeting). On the
expiry of that term of office, the maximum number of Committee Members
shall be twelve unless a lesser number shall have been decided upon in
accordance with the procedures set out in this Clause 15.1.
15.2 Maximum number of Committee Members fewer than twelve: If Pool Members
decide on a maximum number of Committee Members fewer than twelve in
accordance with Clause 15.1, then:-
15.2.1 the number of Committee Members to be appointed in
accordance with the provisions of Clause 15.5 shall be two
fewer than the agreed maximum number of Committee Members
and the number of Committee Members to be appointed in
accordance with Clause 15.6 shall be two; and
15.2.2 the references to "ten" and its derivatives in Clauses
15.5.3(g) and 15.5.3(i) shall be substituted by the number
that is two fewer than the maximum number of Committee
Members agreed by Pool Members and the references to "nine"
and "eleven" (and their respective derivatives) in Clause
15.5.3(i) shall be correspondingly altered.
15.3 Appointment and Removal: As from 1st April, 1997 and subject as
provided in Clauses 15.2 and 15.8, ten Committee Members shall be
appointed and removed in accordance with the provisions of Clauses
15.5 and 15.10 and two Committee Members shall be appointed and
removed in accordance with the provisions of Clauses 15.6 and 15.10.
15.4 Term of Office: Subject to Clause 15.11, the term of office of
Committee Members shall be from 1st April in the year of appointment
to 31st March in the next following year provided that, if the meeting
at which any Committee Member is appointed is held after 1st April,
his term of office shall commence from the time of his appointment. A
<PAGE>
Committee Member whose term of office has expired or is to expire
shall be eligible for re-election.
15.5 MP Committee Member election procedure: The procedures set out in this
Clause 15.5 shall apply to the election of those Committee Members who
are not RS Committee Members ("MP Committee Members"):-
15.5.1 Each MP Pool Member shall be entitled, by notice to the
Executive Committee given no earlier than 90 days and no
later than 30 days before each annual general meeting of
Pool Members or, failing election of any MP Committee
Members at such meeting, no later than 15 days before an
extraordinary general meeting convened for such purpose to
propose, one individual (an "MP Nominee") to be an MP
Committee Member. The MP Nominee need not be an officer or
employee of a Pool Member but shall not be the Chief
Executive or Pool Chairman or any then current nominee for
the position of Chief Executive or Pool Chairman. Any such
proposal to be valid shall be accompanied by a written
statement from the MP Nominee stating that he is aware of
the proposal and would be prepared to serve as a Committee
Member if elected.
15.5.2 No later than 10 days before the date of the annual general
meeting (or, as the case may be, extraordinary general
meeting) the Executive Committee shall circulate (or cause
to be circulated) to all Pool Members and the Director a
list of all the names of the MP Nominees and of the Pool
Members who proposed them (the "MP Nominee List"). The MP
Nominee List shall also be circulated at the annual general
meeting or, as the case may be, extraordinary general
meeting to all Pool Members present in person; and
15.5.3 At the annual general meeting or extraordinary general
meeting (as the case may be) of Pool Members held to appoint
Committee Members the following procedures shall be applied
in sequence:-
(a) each MP Pool Member shall be given a voting paper
(in this Clause 15.5, a "Voting Paper") with the
name of every MP Nominee who appears on the MP
Nominee List;
(b) subject to paragraphs (c) and (d) below, an MP
Pool Member shall rank each MP Nominee on its
Voting Paper in order of preference by marking the
MP Nominee which is its first choice for
membership of the Executive Committee (its
"Preferred MP Nominee") with the number "1" and
continuing numbering sequentially in order of
preference until it is indifferent as to the
preference it accords to any remaining MP
Nominees;
(c) if an MP Pool Member has proposed an MP Nominee in
accordance with Clause 15.5.1, then such MP Pool
Member must choose that MP Nominee as its
Preferred MP Nominee;
<PAGE>
(d) all MP Pool Members that are members of the same
Pool Member's Group shall be obliged to rank the
same MP Nominees in the same order of preference;
(e) the Moderator shall collect in all Voting Papers
and for each Preferred MP Nominee shall calculate
the number of Weighted Votes cast by those MP Pool
Members in his favour and for this purpose each MP
Pool Member shall be deemed to have cast all its
Weighted Votes in favour of its Preferred MP
Nominee;
(f) the Moderator shall prepare a list (the "MP
Preference List") ranking the Preferred MP
Nominees in order according to the number of
Weighted Votes cast for each such Preferred MP
Nominee, with the Preferred MP Nominee with the
most number of Weighted Votes being at the head of
the list;
(g) when there are more than ten MP Nominees on the MP
Preference List then, if the MP Nominee ranked
tenth on the MP Preference List has more Weighted
Votes cast in his favour than the sum of all
Weighted Votes cast for all those MP Nominees
ranked below him on the MP Preference List, those
MP Nominees ranked first to tenth on the MP
Preference List shall be elected as Committee
Members and the voting procedure in this Clause
15.5.3 shall terminate;
(h) if the condition in paragraph (g) above is not
satisfied, the MP Nominee whose name appears last
on the MP Preference List shall be removed from
the MP Preference List and shall take no further
part in the election process for the MP Committee
Members and the Moderator shall transfer the
Weighted Votes of all those MP Pool Members who
voted for that MP Nominee to the MP Nominee(s) who
is their respective second preference. The
Moderator shall then prepare a revised MP
Preference List to which paragraph (g) above shall
be applied and the procedure set out in this
paragraph (h) shall be repeated as often as may be
necessary until the condition in paragraph (g)
above is satisfied (on each occasion the MP
Nominee whose name appears last on the MP
Preference List being removed from it and the
Moderator transferring the Weighted Votes of all
those MP Pool Members attributable to that MP
Nominee to the MP Nominee(s) who is their next
respective preference); and
(i) if the provisions of paragraph (h) above have been
followed with the result that only eleven MP
Nominees appear on the MP Preference List, and if
the MP Nominee ranked tenth has more Weighted
Votes cast in his favour than the MP Nominee
ranked eleventh, then those MP Nominees ranked
first to tenth on the MP Preference List shall be
elected as Committee Members. If, however, the
Weighted Votes cast in favour of the MP Nominees
ranked tenth and eleventh on the MP Preference
List
<PAGE>
Pare equal, then those MP Nominees ranked first to
ninth on the MP Preference List shall be elected
as Committee Members and the selection of the
tenth Committee Member from the tenth and eleventh
MP Nominee on the MP Preference List shall be
decided by the drawing of lots in a manner to be
determined by the Pool Chairman.
15.6 RS Committee Member election procedures: The procedures set out in
this Clause 15.6 shall apply to the election of the RS Committee
Members:-
15.6.1 each RS Pool Member shall be entitled, by notice to the
Executive Committee given no earlier than 90 days and no
later than 30 days before each annual general meeting of
Pool Members or, failing election of either RS Committee
Member at such meeting, no later than 15 days before an
extraordinary general meeting convened for such purpose to
propose one individual (a "RS Nominee") to be a RS Committee
Member. The RS Nominee need not be an officer or employee of
a Pool Member but shall not be the Chief Executive or Pool
Chairman or any then current nominee for the position of
Chief Executive or Pool Chairman. Any such proposal to be
valid shall be accompanied by a written statement from the
RS Nominee stating that he is aware of the proposal and
would be prepared to serve as a Committee Member if elected
and identifying whether he is standing for the position of
SG Committee Member or IS Committee Member;
15.6.2 no later than 10 days before the annual general meeting (or,
as the case may be, the extraordinary general meeting) the
Executive Committee shall circulate (or cause to be
circulated) to all Pool Members and the Director a list of
all the names of the RS Nominees and of the Pool Members who
nominated them (the "RS Nominee List"). The Director may
object to any RS Nominee by notice to the Executive
Committee no later than 5 working days before the annual
general meeting on the grounds that such RS Nominee could
not reasonably be expected to represent the interests of
Small Generators or (as the case may be) Independent
Suppliers on the Executive Committee. Any RS Nominee to whom
the Director so objects shall not be eligible for election
at the relevant meeting of Pool Members as an RS Committee
Member and his name shall be deleted from the RS Nominee
List. The RS Nominee List (amended, if necessary, to take
account of the Director's objections) shall be circulated at
the annual general meeting or, as the case may be,
extraordinary general meeting to all Pool Members present in
person and (if practicable) to all Pool Members in advance
of such meeting;
15.6.3 if there is no RS Nominee or no RS Nominee eligible for
election as the SG Committee Member or (as the case may be)
the IS Committee Member, the Director shall be entitled to
appoint and remove an individual to serve in that capacity
for the term of office referred to in Clause 15.4 and the
procedures in Clause 15.6.4 shall not apply to the election
of such RS Nominee;
<PAGE>
15.6.4 at the annual general meeting or extraordinary general
meeting (as the case may be) of Pool Members the following
procedures shall be applied (subject to Clause 15.6.5) in
sequence first for the election of the SG Committee Member
and, secondly, for the election of the IS Committee Member
immediately following the conclusion of the election
procedures for the MP Committee Members in Clause 15.5:-
(a) each RS Pool Member shall be given a voting paper
(in this Clause 15.6, a "Voting Paper") with the
name of every RS Nominee who appears on the RS
Nominee List (amended, if appropriate, in
accordance with Clause 15.6.2);
(b) SG Pool Members shall be entitled to vote only for
RS Nominees nominated by SG Pool Members and whose
names appear on the Voting Paper ("SG Nominees");
(c) IS Pool Members shall be entitled to vote only for
RS Nominees nominated by IS Pool Members and whose
names appear on the Voting Paper ("IS Nominees");
(d) in the case of the election of the SG Committee
Member, each SG Pool Member shall rank each SG
Nominee on its Voting Paper in order of preference
by marking the SG Nominee which is its first
choice for membership of the Executive Committee
(its "Preferred SG Nominee") with the number "1"
and continuing numbering sequentially in order of
preference until it is indifferent as to the
preference it accords to any remaining SG
Nominees;
(e) in the case of the election of the IS Committee
Member, each IS Pool Member shall rank each IS
Nominee on its Voting Paper in order of preference
by marking the IS Nominee which is its first
choice for membership of the Executive Committee
(its "Preferred IS Nominee") with the number "1"
and continuing numbering sequentially in order of
preference until it is indifferent as to the
preference it accords to any remaining IS
Nominees. Preferred SG Nominees and Preferred IS
Nominees are, for the purposes of this Clause
15.6, known as the "Preferred RS Nominees";
(f) if a RS Pool Member has proposed a SG Nominee or
an IS Nominee in accordance with Clause 15.6.1,
then such RS Pool Member must choose that SG
Nominee or (as the case may be) IS Nominee as its
Preferred RS Nominee;
(g) the Moderator shall collect in all Voting Papers
and for each SG Nominee and each IS Nominee shall
calculate the number of Weighted Votes cast by RS
Pool Members in his favour and for this purpose
each RS Pool
<PAGE>
Member shall be deemed to have cast all its
Weighted Votes in favour of its Preferred RS
Nominee;
(h) the Moderator shall prepare a list (the "SG
Preference List") ranking the Preferred SG
Nominees in order according to the number of
Weighted Votes cast for each such Preferred SG
Nominee, with the Preferred SG Nominee with the
most number of Weighted Votes being at the head of
the list;
(i) the Moderator shall prepare a list (the "IS
Preference List") ranking the Preferred IS
Nominees in order according to the number of
Weighted Votes cast for each such Preferred IS
Nominee, with the Preferred IS Nominee with the
most number of Weighted Votes being at the head of
the list;
(j) if the RS Nominee ranked first on the SG
Preference List or (as the case may be) IS
Preference List has more Weighted Votes cast in
his favour than the sum of all Weighted Votes cast
for all those RS Nominees ranked below him on the
same list, the RS Nominee ranked first on the
relevant list shall be elected as the SG Committee
Member or (as the case may be) IS Committee Member
and the voting procedure in this Clause 15.6.4
shall terminate;
(k) if the condition in paragraph (j) above is not
satisfied, the RS Nominee whose name appears last
on the SG Preference List or (as the case may be)
IS Preference List shall be removed from that list
and shall take no further part in the election
process for the relevant RS Committee Members and
the Moderator shall transfer the Weighted Votes of
all those RS Pool Members who voted for that RS
Nominee to the RS Nominee(s) who is their
respective second preference. The Moderator shall
then prepare a revised SG Preference List or (as
the case may be) IS Preference List in each case
to which paragraph (j) above shall be applied and
the procedure set out in this paragraph (k) shall
be repeated as often as may be necessary until the
condition in paragraph (j) above is satisfied in
relation to the relevant list (on each occasion
the RS Nominee whose name appears last on the SG
Preference List or (as the case may be) IS
Preference List being removed from it and the
Moderator transferring the Weighted Votes of all
those RS Pool Members attributable to that RS
Nominee to the RS Nominee(s) who is their next
respective preference); and
(l) if (where applicable, after the provisions of
paragraph (k) above have been followed) only two
RS Nominees appear on the SG Preference List or
(as the case may be) the IS Preference List and
the Weighted Votes cast in favour of both such RS
Nominees are equal then the selection of the SG
Committee Member or (as the case may be) the IS
Committee
<PAGE>
Member shall be decided by the drawing of lots in
a manner to be determined by the Pool Chairman;
and
15.6.5 if a SG Pool Member is a member of a Pool Member's Group of
which an IS Pool Member is also a member (or vice versa) and
there are no MP Pool Members in that Pool Member's Group,
the SG Pool Member and the IS Pool Member shall jointly
notify the Secretary upon receipt of the RS Nominee List at
the annual general meeting or, as the case may be,
extraordinary general meeting whether the SG Pool Member
will participate in the election of the SG Committee Member
or the IS Pool Member will participate in the election of
the IS Committee Member. In the former case, the IS Pool
Member shall not have the right to participate in the
election of either RS Nominee and, in the latter case, the
SG Pool Member shall not have the right to participate in
the election of either RS Nominee. If no such notification
is received by the Secretary before the election procedure
for the RS Nominees begins, the votes of both the SG Pool
Member and the IS Pool Member shall be discounted and
ignored.
15.7 Spoilt papers: If any Voting Paper is incorrectly completed or
otherwise spoilt, the Moderator shall take no account of it or of the
Weighted Votes purported to be cast by it in the conduct of the
procedures set out in Clause 15.5 and/or 15.6.
15.8 Default appointment: If the procedures set out in Clause 15.5 or 15.6
(other than Clause 15.6.3) shall result in less than the prescribed or
(as the case may be) agreed maximum number of Committee Members
permitted under Clause 15.1 being appointed (including where there are
insufficient nominees nominated to fill the seats), the Director shall
have the right to appoint and remove individuals to the Executive
Committee as Committee Members in such numbers as may be necessary to
provide for such maximum number of Committee Members until such time
as another election pursuant to Clause 15.5.3 or (as the case may be)
15.6.4 takes place. Any Committee Member appointed pursuant to this
Clause 15.8 shall, for the purposes of Clause 23.6, represent the
interests of all Pool Members for the time being and from time to
time.
15.9 Notification of Committee Members: The Secretary shall promptly notify
all Pool Members and the Director of the appointment and removal of
any Committee Member.
15.10 Removal of Committee Members:
15.10.1 A Committee Member may be removed by vote of all those Pool
Members whose Weighted Votes were cast in favour of that
Committee Member in his election pursuant to Clause 15.5 or
Clause 15.6, such vote to be passed requiring a majority of
65 per cent. of the total number of Weighted Votes of all
such Pool Members (after deduction of any Weighted Votes of
persons who were Pool Members at the time of his election
and who voted in favour of him but who are no longer Pool
Members). For the purposes of such vote, relevant Pool
Members may cast only that number of Weighted Votes which
they cast in favour of such Committee Member in his election
pursuant to Clause 15.5 or 15.6.
<PAGE>
15.10.2 A separate general meeting of those Pool Members entitled to
vote may be convened for the purpose of removing a Committee
Member and to every such separate general meeting the
provisions of Part III relating to general meetings of Pool
Members (other than Clause 10.9, save in respect of the
attendance by the Pool Auditor or the Director or its or his
duly appointed representative) shall apply mutatis mutandis
but so that:-
(a) the necessary quorum shall be one Pool Member
entitled to vote thereat; and
(b) notice of any such separate general meeting need
be given only to those entitled to attend the
same.
15.11 Vacation of office by Committee Members: The office of a Committee
Member shall be vacated if:-
15.11.1 he resigns his office by notice delivered to the Secretary;
or
15.11.2 he becomes bankrupt or compounds with his creditors
generally; or
15.11.3 he becomes of unsound mind or a patient for any purpose of
any statute relating to mental health; or
15.11.4 he and his alternate fail to attend more than three
consecutive meetings of the Executive Committee; or
15.11.5 he dies; or
15.11.6 he is removed from office pursuant to Clause 15.10.
15.12 Election of replacement Committee Members: At the time of the vacation
of office of a Committee Member (for the purposes of this Clause 15.12
an "Outgoing Committee Member") or as soon as is reasonably
practicable thereafter , a replacement Committee Member shall be
elected following the procedures set out in, in the case of an MP
Committee Member, Clause 15.5 or, in the case of an RS Committee
Member, Clause 15.6, provided that:-
(a) only Pool Members whose Weighted Votes were cast in favour
of the Outgoing Committee Member in an election pursuant to
Clause 15.5 or 15.6 and who were, at the time of his
vacation of office, represented by him pursuant to Clause
23.6.1 or 23.6.2; and
<PAGE>
(b) only those persons who have become Pool Members in the
period of the Outgoing Committee Member's term of office and
who were, at the time of his vacation of office, represented
by him pursuant to Clause 23.6.4
may take part in the election of a replacement Committee Member
pursuant to this Clause 15.12.
15.13 Alternates:
15.13.1 Each Committee Member shall have the power to appoint any
person (who may be an existing Committee Member) to be his
alternate and may at his discretion remove an alternate
Committee Member so appointed. Any appointment or removal of
an alternate Committee Member shall be effected by notice in
writing executed by the appointor and delivered to the
Secretary who shall forthwith notify all other Committee
Members of such appointment. If his appointor so requests,
an alternate Committee Member shall be entitled to receive
notice of all meetings of the Executive Committee or of
sub-committees or sub-groups of which his appointor is a
member and to receive a voting paper on a poll instead of
the appointor. He shall also be entitled to attend, speak
and vote as a Committee Member at any such meeting at which
the Committee Member appointing him is not personally
present and at the meeting to exercise and discharge all the
functions, powers and duties of his appointor as a Committee
Member and for the purposes of the proceedings at the
meeting the provisions of this Part IV shall apply as if he
were a Committee Member. He shall also be entitled to demand
a poll (whether at or after the meeting) pursuant to Clause
22.3, to carry out consultations with Pool Members
contemplated by Clause 22.8 insofar as his appointor shall
be unable to do so, to act on the instructions of Pool
Members duly given to his appointor or to him on behalf of
his appointor and to complete his appointor's voting paper
on a poll on behalf of his appointor.
15.13.2 Except on a poll, every person acting as an alternate
Committee Member shall have one vote for each Committee
Member for whom he acts as alternate, in addition to his own
vote if he is also a Committee Member. On a poll, an
alternate Committee Member shall be entitled (if his
appointor is unable to do so) to exercise (on behalf of his
appointor and by completion of the appointor's separate
voting paper) all of the votes which his appointor is
entitled to cast, in addition to any votes which the
alternate is entitled to cast in his own capacity if he is
also a Committee Member. Execution by an alternate Committee
Member of any resolution in writing of the Executive
Committee shall, unless the notice of his appointment
provides to the contrary, be as effective as execution by
his appointor.
15.13.3 An alternate Committee Member shall ipso facto cease to be
an alternate Committee Member if his appointor ceases for
any reason to be a Committee Member.
<PAGE>
15.13.4 References in this Agreement to a Committee Member shall,
unless the context otherwise requires, include his duly
appointed alternate.
16. POOL CHAIRMAN
16.1 Pool Chairman: There shall at all times be a Chairman of the pooling
and settlement arrangements for the electricity industry in England
and Wales established by this Agreement (the "Pool Chairman").
16.2 Appointment and Term:
16.2.1 The election of a Pool Chairman shall take place either:-
(i) at the annual general meeting or (as the case may
be) an extraordinary general meeting of Pool
Members convened for that purpose (where
practicable) held not less than three months
before the end of the term of the then current
Pool Chairman; or
(ii) should the Executive Committee so decide, by a
postal vote in accordance with Clause 16.4, such
postal vote to have a closing date which (where
practicable) is not less than three months before
the end of the term of the then current Pool
Chairman.
16.2.2 Subject to Clause 16.2.4, the term of office of the Pool
Chairman shall be from 1st April in the year of his election
to the 31st March falling two years thereafter provided
that:-
(i) where the Pool Chairman is to be elected at an
annual general meeting or (as the case may be) an
extraordinary general meeting of Pool Members, if
the meeting at which he is elected is held after
1st April, his term of office shall commence from
such date as the Pool Members in general meeting
shall resolve (being no earlier than the date of
such meeting);
(ii) where the Pool Chairman is to be elected by postal
vote, if the closing date of such postal vote is
after 1st April, his term of office shall commence
from such date as shall be set out in the notice
of postal vote which shall have been sent to all
Pool Members by the Chief Executive in accordance
with Clause 16.4; and
(iii) his term of office shall expire before 31st March
if he resigns or is unable for whatever reason to
continue to act or if a successor Pool Chairman is
elected with a term of office which Pool Members
either in general meeting or (as the case may be)
by the terms of a postal vote resolve is to
commence before that date.
<PAGE>
16.2.3 The appointment of the Pool Chairman shall be on such terms
and conditions (including, but not limited to, terms and
conditions in relation to reimbursement, hours of work and
removal (subject to Clause 13.1.2)) as have been approved by
Pool Members in general meeting. Any amendment to those
terms and conditions shall require the prior approval of
Pool Members in general meeting.
16.2.4 Not later than three months prior to the end of the then
current term of office of the Pool Chairman, Pool Members
may either (i) call and hold a general meeting or (ii) call
and hold a postal vote and, if the Pool Chairman agrees, may
resolve to extend the term of office of the Pool Chairman by
one year. If the resolution is approved in accordance with
the terms of this Agreement then his term of office shall be
so extended provided that no person shall hold office as
Pool Chairman for more than six consecutive years.
16.2.5 If at any time the Pool Chairman shall resign or be unable
for whatever reason to continue to act, an extraordinary
general meeting shall be called in accordance with Clause
9.4 or a postal vote shall be called in accordance with
Clause 16.4 for the purposes of electing a successor Pool
Chairman. Unless that successor Pool Chairman himself is
removed, resigns or is unable for whatever reason to
continue to act, he shall hold office until the 31st March
falling closest to the date two years after the date of his
election and his term of office may be extended in
accordance with Clause 16.2.4.
16.3 Transitional Provisions: The appointment of the Pool Chairman whose
two year term of office starts on 1st April, 1996 is hereby ratified
and confirmed by all Pool Members.
16.4 Election procedure (postal vote): The Executive Committee may (where
practicable) resolve to call a postal vote to elect a Pool Chairman.
Where the Executive Committee so resolves, such postal vote shall be
held in accordance with the following principles:-
16.4.1 the Executive Committee shall instruct the Chief Executive,
who shall send a notice to Pool Members, stating that a
postal vote has been called and inviting nominations to be
sent to the Chief Executive within a period of not less than
21 days from the date of such notice;
16.4.2 once such period for nomination has closed, the Chief
Executive shall send to all Pool Members a ballot paper
containing a list of all eligible nominees and a closing
date for the receipt by the Chief Executive of completed
ballot papers, such date being no less than 21 days from the
date of such ballot paper; and
16.4.3 each Pool Member shall have one vote and the successor Pool
Chairman shall be elected by single transferable vote in
accordance with the procedures approved by the Executive
Committee.
<PAGE>
16.5 Election procedure (general meeting):
16.5.1 Where any successor Pool Chairman is to be elected at an
annual general meeting or (as the case may be) extraordinary
general meeting, nominations shall be delivered no later
than 21 days prior to the relevant annual general meeting or
(as the case may be) extraordinary general meeting.
16.5.2 At the relevant annual general meeting or (as the case may
be) extraordinary general meeting, all eligible nominees
shall be proposed by the Pool Chairman (failing whom, the
Chief Executive). Each Pool Member shall have one vote and
the successor Pool Chairman shall be elected by single
transferable vote in accordance with the procedures approved
by the Executive Committee.
16.6 Nominations: Any Pool Member can nominate any one person, whether or
not an employee of a Pool Member, to be Pool Chairman. Nominations
made pursuant to this Clause 16.6 shall be delivered in writing to the
Chief Executive within any time period specified pursuant to Clause
16.4 or (as the case may be) Clause 16.5. Any such nomination shall
only be valid where accompanied by a written statement from the
nominee stating that he is aware of the proposal and would be prepared
to serve as Pool Chairman in accordance with this Agreement and the
relevant terms and conditions if elected.
16.7 Functions: The Pool Chairman shall have and carry out only such duties
and responsibilities and exercise such powers as are expressly
provided in this Agreement and in his terms of reference approved by
the Executive Committee from time to time. The Pool Chairman shall
exercise impartially all such duties, responsibilities and powers.
16.8 No voting rights: The Pool Chairman in his capacity as Pool Chairman
shall have no voting rights under this Agreement.
16.9 Indemnity: The Pool Chairman shall be indemnified and kept indemnified
jointly and severally by all Pool Members (and, as between the Pool
Members, rateably in the proportion which their respective
Contributory Shares bear one to the other at the time of receipt of
the request for indemnification) from and against any and all costs
(including legal costs), charges, expenses, damages or other
liabilities properly incurred or suffered by him in relation to his
office as Pool Chairman or the due exercise by him of his powers,
duties and responsibilities as Pool Chairman and all claims, demands
or proceedings arising out of or in connection with the same except
any such costs, charges, expenses, damages or other liabilities which
are suffered or incurred or occasioned by the wilful default or bad
faith of, or breach of duty or trust by, the Pool Chairman. The Pool
Members shall, upon request, provide the Pool Chairman with a written
deed of indemnity to that effect.
<PAGE>
17. CHIEF EXECUTIVE, SECRETARIAT AND SECRETARY
17.1 Chief Executive:
17.1.1 A chief executive of the Executive Committee (the "Chief
Executive") shall be appointed and be subject to removal and
replacement by resolution of the Executive Committee passed
by 70 per cent. or more of the votes of all Committee
Members (after consultation with the Pool Chairman). The
Chief Executive shall be appointed on such terms and
conditions as they see fit.
17.1.2 The Chief Executive shall undertake such duties and
responsibilities and exercise such powers in relation to the
Executive Committee and its activities as the Executive
Committee may from time to time assign to or vest in him.
17.1.3 The Chief Executive shall have the right and shall be
obliged to attend all meetings of the Executive Committee
and all meetings of the Pool Members in general meeting. The
Chief Executive in his capacity as Chief Executive shall
have no voting rights under this Agreement. If for any
reason the Chief Executive is unable to attend any such
meeting, he shall nominate a representative to attend in his
place.
17.1.4 The Executive Committee shall make arrangements for the
remuneration of the Chief Executive and the payment of his
costs and expenses and the same shall be recovered in
accordance with the PFA Accounting Procedure or as otherwise
directed by the Executive Committee from time to time.
17.2 Secretariat:
17.2.1 The Executive Committee may from time to time appoint and
remove, or make arrangements for the appointment and removal
of, such personnel as the Executive Committee requires to
assist the Executive Committee, any sub-committee or
sub-group of the Executive Committee, the chairman of the
Executive Committee or any such sub-committee or sub-group,
the Pool Chairman, the Chief Executive or the Secretary in
the proper performance of its or his duties and
responsibilities, in each such case upon such terms and
conditions as the Executive Committee sees fit.
17.2.2 Any personnel referred to in Clause 17.2.1 shall undertake
such duties and responsibilities and exercise such powers as
the Executive Committee may from time to time assign to or
vest in him, it or them.
17.2.3 The Executive Committee shall make arrangements for the
remuneration of such personnel as are referred to in Clause
17.2.1 and the payment of their costs and expenses and the
same shall be recovered in accordance with the PFA
Accounting Procedure or as otherwise directed by the
Executive Committee from time to time.
<PAGE>
17.3 Secretary:
17.3.1 The Executive Committee may from time to time appoint and
remove, or make arrangements for the appointment and removal
of, the Secretary on such terms and conditions as it sees
fit.
17.3.2 The Secretary in his capacity as Secretary shall have no
voting rights under this Agreement.
17.3.3 The Secretary shall have and carry out only such duties and
responsibilities as are expressly provided in this Agreement
and such other reasonable secretarial and administrative
duties and responsibilities as may from time to time be
delegated to it by the Executive Committee. If at any time
there is no Secretary, the responsibilities and duties of
the Secretary under this Agreement shall become those of the
Chief Executive or, if there shall be no Chief Executive,
the Executive Committee until such time as a Secretary is
appointed pursuant to Clause 17.3.1 or a Chief Executive is
appointed pursuant to Clause 17.1.1 (and notices to the
Secretary under this Agreement shall be re-addressed
accordingly).
17.3.4 The Secretary shall be entitled to receive such remuneration
(if any) as the Executive Committee may from time to time
approve, such remuneration to be paid to it at such times
and in such manner as the Executive Committee shall from
time to time direct and to be recovered in accordance with
the PFA Accounting Procedure or as otherwise directed by the
Executive Committee from time to time. Further, the
Secretary shall be paid its reasonable travelling, hotel and
incidental expenses of attending and returning from meetings
of the Executive Committee or any sub-committee or sub-group
thereof and any general meetings and separate general
meetings of Pool Members and all costs and expenses properly
and reasonably incurred by it in the performance of its
duties and responsibilities under this Agreement. All such
costs and expenses shall be recovered in accordance with the
PFA Accounting Procedure or as otherwise directed by the
Executive Committee from time to time.
17.4 Indemnity:
17.4.1 All Pool Members shall jointly and severally indemnify and
keep indemnified the Chief Executive, the Contract Manager,
the personnel referred to in Clause 17.2.1, the Secretary
and each member of any sub-committee of the Executive
Committee or of any sub-group established by any such
sub-committee (other than a Committee Member, but without
prejudice to Clause 23.3.4) (and, as between the Pool
Members, according to their respective Contributory Shares
at the time of receipt of the request for indemnification)
from and against any and all costs (including legal costs),
charges, expenses, damages or other liabilities properly
incurred or suffered by the Chief Executive in relation to
his office as Chief Executive or (as the case may be) the
Secretary in relation to its office as Secretary or the due
exercise by the Chief Executive, the Contract Manager, the
<PAGE>
said personnel, the Secretary or (as the case may be) any
such member of his, their or its powers, duties and
responsibilities under this Agreement and all claims,
demands or proceedings arising out of or in connection with
the same except any such costs, charges, expenses, damages
or other liabilities which are suffered or incurred or
occasioned by the wilful default or bad faith of, or breach
of obligation by, the Chief Executive, the Contract Manager,
such personnel, the Secretary or (as the case may be) any
such member.
17.4.2 The Pool Members undertake to enter into an indemnity in
favour of any employer of the Chief Executive, the Contract
Manager, any personnel referred to in Clause 17.2.1, the
Secretary or (as the case may be) any such member of any
sub-committee of the Executive Committee or of any sub-group
established by any such sub-committee as is referred to in
Clause 17.4.1 under which they shall jointly and severally
indemnify and keep indemnified any such employer in respect
of all acts and omissions of the Chief Executive, the
Contract Manager, such personnel, the Secretary or (as the
case may be) any such member in the performance of his,
their or its rights, powers, duties and responsibilities
under this Agreement (and, as between the Pool Members,
according to their respective Contributory Shares at the
time of receipt of the request for indemnification under the
relevant indemnity).
18. PROCEEDINGS OF THE EXECUTIVE COMMITTEE
18.1 Meetings:
18.1.1 Meetings of the Executive Committee (other than special
meetings referred to in Clause 18.1.3) shall be held at
least quarterly (or at such shorter regular intervals as may
be agreed from time to time by the Executive Committee) at
such time and place in any jurisdiction in which any Pool
Member is incorporated or has its principal place of
business as may be agreed from time to time by the Executive
Committee (or, in default of agreement, as stipulated by the
Pool Chairman).
18.1.2 Meetings of the Executive Committee shall be convened by the
Secretary upon giving to the Committee Members, the Pool
Chairman, the Chief Executive (if any), the Settlement
System Administrator, the Director and the Pool Auditor and
(where matters the subject of the agenda referred to in
Clause 18.1.4 concern directly the functions, duties or
responsibilities of any Externally Interconnected Party (not
being a Pool Member), the Pool Funds Administrator, the Grid
Operator and/or the Ancillary Services Provider) the
relevant one(s) of them at least five working days' notice
of the place, the day and the hour of the relevant meeting.
18.1.3 Special meetings of the Executive Committee shall be
convened upon the request of any Committee Member, the Pool
Chairman or the Chief Executive. Such request shall be made
in writing to the Secretary and shall state the matters to
be
<PAGE>
considered at that special meeting. Upon receipt of such
request the Secretary shall convene in accordance with
Clause 18.1.2 without delay such special meeting for a date
occurring as soon as practicable thereafter but not less
than five nor more than ten working days after receipt of
such request. If the Secretary shall fail so to convene a
special meeting the Committee Member which made such
request, the Pool Chairman or (as the case may be) the Chief
Executive may himself convene a special meeting, but any
meeting so convened shall not be held after the expiration
of two months from the date of such request. A special
meeting convened under this Clause 18.1.3 by a Committee
Member, the Pool Chairman or the Chief Executive shall be
convened in the same manner, as nearly as possible, as that
in which meetings of the Executive Committee are to be
convened by the Secretary pursuant to Clause 18.1.2.
18.1.4 Any notice given under Clause 18.1.2 shall be exclusive of
the day on which it is served or deemed to be served and of
the day for which it is given and shall be accompanied by an
agenda of the matters to be considered at the relevant
meeting together with any supporting documents or papers
then available to the Secretary. Any Committee Member may
advise additional matters which he wishes to be considered
at such meeting by notice to all other Committee Members,
the Pool Chairman, the Chief Executive (if any), the
Secretary, the Settlement System Administrator, the Director
and the Pool Auditor and (where such additional matters
concern directly the functions, duties or responsibilities
of any Externally Interconnected Party (not being a Pool
Member), the Pool Funds Administrator, the Grid Operator
and/or the Ancillary Services Provider) the relevant one(s)
of them given no later than three working days before the
date of such meeting. Only matters identified in such agenda
or so advised shall be discussed or resolved upon at such
meeting. The accidental omission to give notice of a meeting
or accompanying agenda or supporting documents or papers to,
or the non-receipt of notice of a meeting or accompanying
agenda or supporting documents or papers by, any person
entitled to receive notice shall not invalidate the
proceedings at that meeting.
18.1.5 For any meeting of the Executive Committee, the periods and
methods of notice referred to in the foregoing provisions of
this Clause 18 may be waived prospectively or
retrospectively with the consent in writing of all such
persons as are entitled to attend the relevant meeting.
18.1.6 The Secretary shall prepare minutes of all meetings of the
Executive Committee and shall provide copies thereof to all
such persons as were entitled to attend the relevant meeting
as soon as practicable (and in any event within ten working
days) after the relevant meeting has been held. Each person
who attended such meeting shall notify his approval or
disapproval of the minutes thereof to the Secretary no later
than ten working days after receipt thereof and, if he fails
to do so, he or it shall be deemed to have approved the
same. The Secretary shall record any such disapproval in the
minutes unless the same shall have been withdrawn or the
minutes amended with the agreement of the Executive
<PAGE>
Committee. The Secretary shall provide copies of minutes of
meetings of the Executive Committee to any other Party
within a reasonable time after request therefor provided
that the said time for approving or disapproving the same
has expired. Further, the Secretary shall provide copies of
such minutes to such persons as the Executive Committee may
from time to time direct within a reasonable time after
receipt of such direction.
18.1.7 The Executive Committee shall (if it considers it
appropriate in any particular case) invite any Pool Agent or
the Certification Agent to attend all or any part of a
meeting of the Executive Committee at which a matter is to
be considered which concerns directly the functions, duties
or responsibilities of that Pool Agent or (as the case may
be) the Certification Agent.
19. CONDUCT OF EXECUTIVE COMMITTEE MEETINGS
19.1 General; Chairman:
19.1.1 Subject as provided in Clauses 13, 18 and 22 and this Clause
19, the Executive Committee may meet for the transaction of
business, and adjourn and otherwise regulate its meetings,
as it shall see fit.
19.1.2 The Pool Chairman shall preside as chairman at every meeting
of the Executive Committee provided that:-
(a) if the Pool Chairman is unable to attend any
meeting, he shall nominate another individual to
preside as chairman at that meeting in his place.
Such individual shall be a director or senior
executive of one of the Pool Members but shall not
be a Committee Member or an alternate for any
Committee Member; and
(b) if there is no Pool Chairman or the Pool Chairman
or his duly appointed nominee shall not be present
within 15 minutes after the time appointed for the
holding of the meeting or the Pool Chairman is
unwilling to act, the Committee Members present
may appoint one of their number to be chairman of
the meeting.
19.1.3 The chairman of the meeting in his capacity as chairman
shall not have any vote at meetings of the Executive
Committee.
19.2 Quorum: No business shall be transacted at a meeting of the Executive
Committee unless a quorum is present throughout that meeting. Six
Committee Members present in person or by their respective alternates
shall constitute a quorum.
19.3 Lack of Quorum: If, within half an hour from the time appointed for
holding any meeting of the Executive Committee, a quorum is not
present, the meeting shall be adjourned to the same day in the next
week at the same time and place and if at the
<PAGE>
adjourned meeting a quorum is not present within half an hour from the
time appointed for holding the meeting, those present shall constitute
a quorum.
19.4 Representation of non-Committee Members: Each of the Pool Chairman,
the Director and the Pool Auditor (or its or his duly appointed
representative) shall have the right to attend and speak (but not to
vote) at meetings of the Executive Committee. The Settlement System
Administrator shall have the right to attend and speak (but not to
vote) at meetings at the Executive Committee except in relation to
matters which do not relate to or affect the Stage 1 Settlement
System. Each Externally Interconnected Party (not being a Pool Member)
and each of the Pool Funds Administrator, the Grid Operator and the
Ancillary Services Provider (or its duly appointed representative)
shall be entitled to attend and speak (but not vote) at meetings of
the Executive Committee only where matters directly concerning its
functions, duties or responsibilities have been identified or advised
as provided in Clause 18.1.4 or if so requested by the Executive
Committee. The Chief Executive (or his duly appointed representative)
shall have the right to attend and speak (but not vote) at meetings of
the Executive Committee and shall be obliged so to attend. With the
exception of attendances by the Pool Chairman, the Chief Executive and
the Pool Auditor, no payment shall be made to any person who has the
right by virtue of this Clause 19.4 to attend Executive Committee
meetings in respect of any such attendance.
19.5 Written resolutions: A resolution in writing, executed by or on behalf
of each Committee Member, shall be as valid and effectual as if it had
been passed at a meeting of the Executive Committee duly convened and
held and may consist of several instruments in like form and executed
by or on behalf of one or more of such Committee Members. Any proposed
resolution in writing shall be circulated to all those persons who
would have been entitled to attend a meeting of the Executive
Committee at which such resolution could properly have been passed.
19.6 Default in appointment: All acts done by any meeting of the Committee
Members or of a sub-committee of the Executive Committee shall,
notwithstanding that it be afterwards discovered that there was some
defect in the appointment of such Committee Member, be as valid as if
such person had been duly appointed.
20. DELEGATION
20.1 Sub-committees: The Executive Committee may establish sub-committees.
Each sub-committee:-
20.1.1 shall be composed of such persons (whether or not Committee
Members) and shall discharge such rights, powers, duties and
responsibilities as from time to time the Executive
Committee considers desirable to delegate to it; and
20.1.2 in the exercise of its rights and powers and the performance
of its duties and responsibilities delegated to it by the
Executive Committee shall at all times conduct itself and
its affairs in a manner which it considers best designed to
give
<PAGE>
effect to the principal objects and purpose set out in
Clause 4.1.2 and to promote, and not obstruct, the fair and
efficient operation of the procedures referred to in Clause
4.1.3 so that the objectives set out in Clause 4.1.3 are
thereby achieved; and
20.1.3 shall be given written terms of reference and, unless
otherwise varied by the Executive Committee, the provisions
of Clauses 18 and 19 shall apply mutatis mutandis to
meetings of such sub-committee and the provisions of Clauses
19.4, 23.3.1, 23.3.2 and 23.3.3 shall apply mutatis mutandis
in relation to any such sub-committee and the members
thereof; and
20.1.4 may establish sub-groups to assist in the discharge of the
rights, powers, duties and responsibilities of such
sub-committee, each of which sub-groups shall be given
written terms of reference and, unless otherwise varied by
the Executive Committee or any sub-committee acting on the
authority of the Executive Committee, the provisions of
Clauses 18 and 19 shall apply mutatis mutandis to meetings
of such sub-groups and the provisions of Clauses 23.3.1,
23.3.2, and 23.3.3 shall apply mutatis mutandis in relation
to each such sub-group and the members thereof.
20.2 Nominees: Upon written request of the Executive Committee or, in the
case of the Settlement System Administrator, Order issued by the
Contract Manager under Schedule 4, each Pool Member and the Settlement
System Administrator shall:-
20.2.1 nominate one or more persons knowledgeable in the matters
referred to, or the subject of consideration by, the
relevant sub-committee to attend at meetings of, and
otherwise participate as a member of, any sub-committee
established by the Executive Committee; and
20.2.2 procure that such nominee(s) shall so attend and participate
at such time or times as the Executive Committee or such
sub-committee may require,
provided that a Pool Member shall not be required in any period of 12
months to make available nominees for more than 60 days in aggregate.
Save as provided by Clause 23.5 no payment shall be made to Pool
Members in respect of any such attendance or participation.
20.3 Member's responsibilities: To the extent not inconsistent with the
provisions of Clauses 20.1.1, 20.1.2 and 20.1.3 a member of any
sub-committee established by the Executive Committee shall be free to
represent the interests of the person or persons which nominated him
to that sub-committee but each such person acknowledges and agrees the
subordination of those interests to the responsibilities of such
sub-committee under Clause 20.1.2.
<PAGE>
20.4 Chief Executive: The Executive Committee may from time to time
delegate all or any of its rights, powers, duties and responsibilities
under this Agreement to the Chief Executive upon such terms and
conditions as the Executive Committee thinks fit.
20.5 Effect of decisions: Resolutions of sub-committees shall not have
binding effect (a) unless and then only to the extent that the
Executive Committee shall have delegated the relevant decision-making
powers to the sub-committee, or (b) unless approved by resolution of
the Executive Committee (and then subject to Clause 13). Meetings of
such sub-committees shall, so far as possible, be arranged so that
minutes of such meetings can be circulated to each Committee Member in
sufficient time for consideration before the next following regular
meeting of the Executive Committee. Resolutions of sub-groups shall
not have binding effect. The Executive Committee shall remain at all
times responsible for the actions of all its sub-committees and
sub-groups.
20.6 Other delegation: Subject to any direction to the contrary by Pool
Members in general meeting but without prejudice to the Executive
Committee's rights under Clauses 20.1 and 20.4, the Executive
Committee may from time to time delegate in any particular case all or
any of its rights, powers, duties and responsibilities under this
Agreement, including any decision-making powers and the conduct of any
review or consultation and the preparation and submission of any
report required of it under this Agreement, to such person or persons
as it thinks fit and on such terms and conditions as it thinks fit and
shall require that, in the performance of the delegated duties, such
person or persons shall conform to any regulations that may be imposed
on it or them by the Executive Committee.
21. [Not used.]
22. VOTING
22.1 Voting: The chairman of the relevant meeting of the Executive
Committee and any Committee Member may demand that any question or
matter arising at a meeting of the Executive Committee be put to a
vote of Committee Members. Any vote so demanded shall be taken
forthwith or at such other time as such chairman directs not being
later than the date of the next meeting of the Executive Committee.
Any demand for a vote may, before the vote is taken, be withdrawn.
22.2 Simple majority: Subject as provided in the following provisions of
this Clause 22, any question or matter arising at a meeting of the
Executive Committee shall be decided by a simple majority of the votes
cast at the meeting by Committee Members. On any such question or
matter each Committee Member shall be entitled to one vote. In the
event of an equality of votes on any resolution put to the Executive
Committee, the matter the subject of the relevant resolution shall be
remitted to the Committee Members for decision on a poll.
<PAGE>
22.3 Demand for a poll: In respect of any matter or question which is put
to a vote of Committee Members a poll may be demanded (before or after
the simple majority vote) either:-
22.3.1 at the meeting at which the simple majority vote takes
place, by the chairman of the meeting or by any Committee
Member; or
22.3.2 by no later than five working days after such meeting, by
notice in writing to the Chief Executive by any Committee
Member (whether or not present at the relevant meeting).
22.4 Effect of decision: A decision duly made at a meeting of the Executive
Committee shall (unless otherwise determined by the Executive
Committee or otherwise provided by the terms of the decision) have
immediate effect, unless a poll be duly demanded in accordance with
Clause 22.3, in which case, pending the outcome of the vote on a poll,
the decision shall cease to or shall not have effect.
22.5 Withdrawal of demand: Any demand for a poll may be withdrawn by the
person who made it at any time provided that notice of withdrawal is
received by the Chief Executive by no later than the seventh working
day following the date of the Executive Committee meeting at which the
vote took place. The Chief Executive shall as soon as reasonably
practicable notify all Parties and all other persons entitled or
required to attend general meetings of Pool Members of receipt of any
such notice of withdrawal.
22.6 Conduct of a poll: The Secretary shall without delay following the
demand for, or the remittance of a matter for decision on, a poll
despatch to each Committee Member a voting paper in such form as shall
be agreed by the chairman of the Executive Committee meeting at which
the matter in question was considered or (failing him) the Chief
Executive but which shall in any event set out the full text of the
resolution in respect of which the poll is required (which shall be
the same as the resolution which was put to a simple majority vote),
shall provide for each Committee Member to cast votes for or against
the resolution and shall specify the date by which votes must be
lodged by Committee Members. The Secretary shall at the same time give
notice to all Parties that a poll has been demanded and shall specify
in such notice the resolution on which the poll has been called (if
applicable), the identity of the person (or persons) who has demanded
the poll and the date by which votes must be lodged by the Committee
Members. The accidental omission to issue a voting paper or to give
notice of a poll, or the non-receipt of a voting paper or such a
notice by, any person entitled to receive the voting paper or (as the
case may be) the notice shall not invalidate the conduct of the poll
or the result thereof.
22.7 Votes on a poll: On a vote on a poll:-
22.7.1 the Committee Members shall in aggregate be entitled to a
number of votes equal to the number of votes which the Pool
Members would have been entitled to cast on a poll at a
general meeting if such meeting had taken place on the day
<PAGE>
of the Executive Committee meeting at which the matter in
question was considered;
22.7.2 each Committee Member shall have the votes attributable to
his Constituents and shall cast such votes in accordance
with the individual written instructions of each such
Constituent, but so that no Constituent shall be entitled to
instruct that the votes attributable to it be cast more than
once;
22.7.3 in the absence of any written instructions from any
Constituent, a Committee Member shall not be entitled to
cast any votes on behalf of that Constituent;
22.7.4 a Constituent may instruct the relevant Committee Member to
abstain from casting any or a specified number of votes on
its behalf;
22.7.5 the votes cast by a Committee Member shall not be valid
unless:-
(a) the relevant voting paper shall have been received
by the Secretary on or before the date falling 10
working days after the date on which the voting
papers were despatched to Committee Members and
the votes cast in such voting paper accord with
the written instructions referred to in paragraph
(b) below;
(b) accompanied by a copy of the written instructions
given by or on behalf of the Constituent(s) whose
votes the Committee Member is entitled to cast;
and
(c) the Committee Member in other respects shall have
complied with the procedures for votes on a poll
(if any) from time to time established by the
Executive Committee; and
22.7.6 any Constituent on whose instructions a Committee Member is
required to act in accordance with the foregoing provisions
shall be entitled to make arrangements with any other
Constituent on whose instructions that same Committee Member
is required to act for the requisite written instructions to
be given on its behalf by that other Constituent. Details of
any such arrangement shall promptly be given to the
Secretary.
22.8 65 per cent. majority: A resolution on a poll shall be decided by a
majority of not less than 65 per cent. of the votes duly cast. The
Secretary shall as soon as reasonably practicable after the expiry of
the 10 working day period for return of voting papers referred to in
Clause 22.7.5(a) ascertain the results of the poll in consultation
with the Pool Chairman or (failing him) the Chief Executive and the
Chief Executive or (failing him) the Secretary shall as soon as
practicable thereafter notify all Parties and all other persons
entitled or required to attend general meetings of Pool Members of the
outcome of the poll. The result of the poll shall be deemed to be the
resolution of the meeting at which or after which the poll was
demanded.
<PAGE>
22.9 Responsibilities of Committee Members: The Committee Members shall
consult the Pool Members whose votes they are entitled to cast as soon
as reasonably practicable following the demand for a poll and shall be
required to cast, or to refrain from casting, the votes of such Pool
Members in accordance with their individual instructions. The
provisions of Clause 23.1 shall not apply in respect of any vote
conducted on a poll.
22.10 Referral to general meetings: The provisions of this Clause 22 are
subject to the requirements of referral to the Pool Members in general
meeting described in Clause 13.4.
22.11 Civil emergencies: The provisions of this Clause 22 are subject to the
provisions of Clause 61.9.
23. COMMITTEE MEMBERS' RESPONSIBILITIES AND PROTECTIONS; POOL MEMBER
REPRESENTATION
23.1 Executive Committee's responsibilities: In the exercise of its powers
and the performance of its duties and responsibilities under this
Agreement the Executive Committee shall at all times conduct itself
and its affairs in a manner which it considers best designed to give
effect to the principal objects and purpose set out in Clause 4.1.2
and to promote, and not obstruct, the fair and efficient operation of
the procedures referred to in Clause 4.1.3 so that the objectives set
out in Clause 4.1.3 are thereby achieved. To the extent not
inconsistent with the responsibilities of the Executive Committee
under this Clause 23.1 a Committee Member shall be free to give effect
to his responsibilities under Clause 23.2 but each of the Pool Members
whom such Committee Member represents acknowledges and agrees the
subordination of such Committee Member's responsibilities under Clause
23.2 to the responsibilities of the Executive Committee under this
Clause 23.1.
23.2 Committee Members' responsibilities: In the exercise of his powers and
the performance of his duties and responsibilities as a Committee
Member under this Agreement a Committee Member shall represent those
Pool Members which he is required to represent from time to time in
accordance with the provisions of Clause 23.6.
23.3 Protections:
23.3.1 The Executive Committee, each Committee Member, the Pool
Chairman, the Chief Executive, the Contract Manager and the
Secretary shall be entitled to rely upon any communication
or document reasonably believed by it or him to be genuine
and correct and to have been communicated or signed by the
person by whom it purports to be communicated or signed and
shall not be liable to any of the Parties for any of the
consequences of such reliance.
23.3.2 The Executive Committee, each Committee Member, the Pool
Chairman, the Chief Executive, the Contract Manager and the
Secretary may in relation to any act, matter or thing
contemplated by this Agreement act on the opinion or advice
<PAGE>
of, or any information from, any lawyer, banker, valuer,
broker, accountant or any other specialist or professional
adviser given within the field of expertise usually ascribed
to persons of such description or the specialist field of
expertise for which he has been retained and duly instructed
so to act by the Executive Committee, and shall not be
liable for the consequences of so acting. The appointment of
any such adviser to the Executive Committee shall be
approved by the Executive Committee before any such cost is
charged to the PFA Accounting Procedure.
23.3.3 In the event of any conflict or inconsistency, any
directions and instructions of the Director (which the
Director is entitled under his statutory or regulatory
powers to issue or give) shall prevail over the duties and
responsibilities of the Executive Committee or the Secretary
under this Agreement and no liability whatsoever shall
attach to the Executive Committee or any Committee Member or
the Pool Chairman or the Chief Executive or the Contract
Manager or the Secretary (as the case may be) as a result of
due compliance by it or him with any such directions and
instructions.
23.3.4 Each Committee Member shall be indemnified and kept
indemnified jointly and severally by all Pool Members and,
as between all Pool Members, rateably in the proportion
which their respective Contributory Shares bear one to the
other at the time of receipt of the request for
indemnification from and against any and all costs
(including legal costs), charges, expenses, damages or other
liabilities properly incurred or suffered by him in relation
to the Executive Committee or his office as Committee Member
or the due exercise by him of his powers, duties and
responsibilities as a Committee Member and all claims,
demands or proceedings arising out of or in connection with
the same except any such costs and expenses referred to in
Clause 23.4 which have been recovered in accordance with the
PFA Accounting Procedure and any such costs, charges,
expenses, damages or other liabilities which are suffered or
incurred or occasioned by the wilful default or bad faith
of, or breach of duty or trust by, such Committee Member.
23.3.5 The Pool Funds Administrator acknowledges and agrees that it
holds the benefit of Clause 23.3.4 as trustee and agent for
each Committee Member.
23.3.6 Each Pool Member shall, upon request by any Committee
Member, provide that Committee Member with a written deed of
indemnity in the terms set out in Clause 23.3.4.
23.4 Committee Members' costs and expenses: Each Committee Member and each
member of any sub-committee or sub-group of the Executive Committee
may be paid his reasonable travelling, hotel and incidental expenses
of attending and returning from meetings of the Executive Committee or
any such sub-committee or sub-group and shall be paid all expenses
properly and reasonably incurred by him in the conduct of the business
of the Executive Committee or the relevant sub-committee or sub-group
or in the discharge of
<PAGE>
his duties as a Committee Member or (as the case may be) a member of the
relevant sub-committee or sub-group. All such expenses shall be recovered in
accordance with the PFA Accounting Procedure.
23.5 Committee's costs and expenses: The Executive Committee and each of
its sub-committees and sub-groups shall be entitled to recover all its
costs and expenses properly incurred in accordance with the PFA
Accounting Procedure. For this purpose, the costs and expenses of the
Executive Committee shall include properly incurred costs, expenses
and liabilities of or associated with any business accommodation and
services required by the Executive Committee, the Chief Executive, the
Secretary or the personnel referred to in Clause 17.2.1, the properly
incurred costs and expenses of any consultant or adviser retained by
the Executive Committee or any such person in the proper performance
of its or his duties and responsibilities and properly incurred costs,
expenses and liabilities of or associated with any of the activities
referred to in Clause 24.2.17.
23.6 Pool Member representation: Each Pool Member will be represented on
the Executive Committee as follows:-
23.6.1 subject as provided in Clause 23.6.3, if the first preferred
MP Nominee or RS Nominee of a Pool Member is elected to the
Executive Committee pursuant to Clause 15.5 or 15.6, that MP
Nominee or RS Nominee in its capacity as a Committee Member
will represent the interests of that Pool Member;
23.6.2 if the first preferred MP Nominee or RS Nominee of a Pool
Member is not elected to the Executive Committee pursuant to
Clause 15.5 or 15.6, or if a Pool Member did not vote in any
such election, then that Pool Member shall within five
working days after the relevant meeting of Pool Members at
which the Committee Members are elected notify the Secretary
of the identity of the Committee Member whom it wishes to
represent its interests on the Executive Committee and,
subject to Clause 23.6.3, such Committee Member will
represent those interests;
23.6.3 subject to the prior written agreement of the Committee
Member concerned (such agreement not to be unreasonably
withheld or delayed) and to the relevant Pool Member having
first consulted the Pool Chairman, a Pool Member may by
written notice to the Secretary elect, on no more than two
occasions during the Committee Members' term of office, to
have its interests on the Executive Committee represented by
a Committee Member other than the Committee Member referred
to in Clause 23.6.1 or 23.6.2 (as the case may be);
23.6.4 a person becoming a Pool Member during the Committee
Members' term of office shall be represented by the
Committee Member of their choice, such choice to be notified
in writing to the Director and the Secretary within five
working days of that person becoming a Pool Member. That
person shall continue to be represented by his chosen
Committee Member (or his successor) until the expiry of that
Committee Member's term of office (or, if earlier, its
ceasing to be a Pool
<PAGE>
Member) and will not during that period be entitled to the
benefit of Clause 23.6.3; and
23.6.5 a Pool Member will be a Constituent of the Committee Member
representing its interests on the Executive Committee for
the time being and from time to time.
23.7 Notification: The Secretary shall notify all Pool Members and the
Director promptly after the meeting of Pool Members at which Committee
Members are elected of the Pool Members and their respective Committee
Member representatives and of any subsequent nomination or change of
representation during the term of office of the Committee Members.
24. POWERS OF THE EXECUTIVE COMMITTEE
24.1 General power: Subject as otherwise provided in this Agreement, the
Executive Committee shall, as between itself and the Pool Members in
general meeting, exercise overall supervision of the Settlement System
and its operations.
24.2 Specific powers: Subject as otherwise provided in this Agreement, the
powers, duties and responsibilities of the Executive Committee shall,
as between itself and the Pool Members in general meeting, include:-
24.2.1 monitoring on a regular basis the Settlement System
Administrator in its operation of the Stage 1 Settlement
System (including deciding whether to propose to the Pool
Members in general meeting for their approval the removal of
the Settlement System Administrator);
24.2.2 monitoring on a regular basis each of the Pool Funds
Administrator, the Grid Operator and the Ancillary Services
Provider in the performance of its obligations under this
Agreement;
24.2.3 monitoring on a regular basis the performance of Pool
Agents, the performance of PESs as providers of PES
Registration Services in their compliance with the Pool
Requirements for the MRA, the performance by Suppliers of
their obligations under this Agreement and compliance by
Supplier Agents with the provisions of the Service Lines;
24.2.4 the power to enter into on behalf of Pool Members any
agreement or arrangement with the Pool Funds Administrator
in substitution for that set out in Schedule 15;
24.2.5 opening, maintaining and closing bank accounts for its own
purposes and crediting and debiting sums thereto;
24.2.6 dealing promptly and efficiently with any dispute referred
to it concerning Settlement or its operation (including with
respect to data);
<PAGE>
24.2.7 if requested by the Director, conveying any direction or
request of the Director to any Party or the Pool Auditor or
any Pool Agent;
24.2.8 appointing, remunerating and removing in accordance with the
Grid Code one or more persons to represent the Executive
Committee on the Grid Code Review Panel;
24.2.9 appointing, remunerating and removing lawyers, bankers,
valuers, brokers, accountants and other professional and
specialist advisers to assist the Executive Committee or any
of its sub-committees in the performance of its duties and
responsibilities under this Agreement;
24.2.10 subject to any applicable confidentiality provisions,
monitoring any litigation, arbitration or other proceedings
affecting or which may affect the Settlement System;
24.2.11 subject to any applicable confidentiality provisions,
advising any Party or Pool Agent of decisions of the
Executive Committee applicable to them or the relevant
one(s) of them and liaising with all such persons on an
ongoing and regular basis;
24.2.12 advising each of the Pool Auditor and the Director of
decisions of the Executive Committee and of Pool Members in
general meeting or separate general meeting and liaising
with each of the Pool Auditor and the Director on an ongoing
and regular basis;
24.2.13 investigating any complaints made by any Pool Member
concerning the Settlement System, the Funds Transfer System
(or any part or aspect of any thereof), the Settlement
System Administrator, the Managed Data Network, any PES in
respect of the provision of PES Registration Services (so
far as concerns the Pool Requirements for the MRA), any
Supplier or Supplier Agent, the Pool Funds Administrator,
the Grid Operator, the Ancillary Services Provider, any Pool
Agent, the Pool Auditor, the Pool Banker or the Custodian;
24.2.14 approving the Pool Banker and giving instructions for, or
consenting to, the removal of the same;
24.2.15 considering and dealing with any other matter relating to
the Settlement System, the Funds Transfer System (or any
part or aspect of any thereof) or its or their operation
referred to the Executive Committee by the Pool Members in
general meeting or separate general meeting, any Pool
Member, the Pool Chairman, the Pool Auditor or the Director
and any other matter which is otherwise designated under
this Agreement for reference to it;
24.2.16 acting as, and performing the functions of, the Performance
Assurance Board on the terms and subject to the conditions
of Schedule 8;
<PAGE>
24.2.17 subject to any applicable confidentiality provisions,
exchanging information and know-how with participants in, or
promoters of, settlement systems or exchanges relating to
electricity or other energy sources in any part of the world
and participating in the establishment, direction or
operation of any such settlement systems or exchanges, in
any case where the Executive Committee considers in good
faith that such activity would be in the interests of Pool
Members generally; and
24.2.18 the specific powers, duties, discretions and obligations as
are conferred on the Executive Committee under this
Agreement.
24.3 Exclusion of general meeting powers: Pool Members in general meeting
shall have no powers in relation to the matters expressly reserved
under this Agreement to the Executive Committee except to the extent
that such matters are remitted to the Pool Members in general meeting
under Clause 13.4.
<PAGE>
PART V
LIMITATION OF LIABILITY
25. LIMITATION OF LIABILITY
25.1 Limitation of liability: Subject to Clause 25.2 and save where any
provision of this Agreement provides for an indemnity or for the
payment of liquidated damages (by whatever name known), each Party
agrees and acknowledges that no Party (excluding for this purpose the
Settlement System Administrator) (the "Party Liable") or any of its
officers, employees or agents shall be liable to any of the other
Parties for loss arising from any breach of this Agreement other than
for loss directly resulting from such breach and which at the date of
this Agreement was reasonably foreseeable as not unlikely to occur in
the ordinary course of events from such breach in respect of:-
25.1.1 physical damage to the property of any of the other Parties
or its or their respective officers, employees or agents;
and/or
25.1.2 the liability of any such other Party to any other person
for loss in respect of physical damage to the property of
any other person.
25.2 Death and personal injury: Nothing in this Agreement shall exclude or
limit the liability of the Party Liable for death or personal injury
resulting from the negligence of the Party Liable or any of its
officers, employees or agents and the Party Liable shall indemnify and
keep indemnified each of the other Parties, its officers, employees or
agents from and against all such and any loss or liability which any
such other Party may suffer or incur by reason of any claim on account
of death or personal injury resulting from the negligence of the Party
Liable or any of its officers, employees or agents.
25.3 Exclusion of certain types of loss: Subject to Clause 25.2 and save
where any provision of this Agreement provides for an indemnity or for
the payment of liquidated damages (by whatever name known), neither
the Party Liable nor any of its officers, employees or agents shall in
any circumstances whatsoever be liable to any of the other Parties
for:-
25.3.1 any loss of profit, loss of revenue, loss of use, loss of
contract or loss of goodwill; or
25.3.2 any indirect or consequential loss; or
25.3.3 loss resulting from the liability of any other Party to any
other person howsoever and whensoever arising save as
provided in Clauses 25.1.2 and 25.2.
25.4 Trust: Each Party acknowledges and agrees that each of the other
Parties holds the benefit of Clauses 25.1, 25.2 and 25.3 for itself
and as trustee and agent for its officers, employees and agents.
<PAGE>
25.5 Survival: Each of Clauses 25.1, 25.2, 25.3 and 25.4 shall:-
25.5.1 be construed as a separate and severable contract term, and
if one or more of such Clauses is held to be invalid,
unlawful or otherwise unenforceable the other or others of
such Clauses shall remain in full force and effect and shall
continue to bind the Parties; and
25.5.2 survive termination of this Agreement.
25.6 Saving: For the avoidance of doubt, nothing in this Part V shall
prevent or restrict any Party enforcing any obligation (including
suing for a debt or for the payment of liquidated damages (by whatever
name known)) owed to it under or pursuant to this Agreement.
25.7 Full negotiation: Each Party acknowledges and agrees that the
foregoing provisions of this Part V have been the subject of
discussion and negotiation and are fair and reasonable having regard
to the circumstances as at the date of this Agreement.
<PAGE>
PART VI
THE SETTLEMENT SYSTEM ADMINISTRATOR
26. APPOINTMENT
ESIS is hereby appointed by each Pool Member and agrees to act as the initial
Settlement System Administrator on and subject to the terms and conditions of
the SSA Arrangements.
27. [Not used.]
28. [Not used.]
<PAGE>
PART VII
THE SETTLEMENT SYSTEM ADMINISTRATOR'S RESPONSIBILITIES
29. RESPONSIBILITIES
Responsibilities: Without prejudice to the generality of the duties,
responsibilities and obligations of the Settlement System Administrator provided
elsewhere in the SSA Arrangements:-
29.1 Provision of information: The Settlement System Administrator shall
upon request provide each Pool Member, the Ancillary Services Provider
and the Grid Operator with a certified copy of such records, data and
other information derived from the Stage 1 Settlement System
concerning amounts payable by or to such Pool Member, the Ancillary
Services Provider and the Grid Operator as such Pool Member, the
Ancillary Services Provider or the Grid Operator may reasonably
request for the purpose of establishing the amounts which are owed to
or by such Pool Member, the Ancillary Services Provider or the Grid
Operator in accordance with this Agreement, and in any event with such
information as any Pool Member, the Ancillary Services Provider or the
Grid Operator may request from the Settlement System Administrator in
order to establish or prove a claim to any amounts due or claimed to
be due. The Settlement System Administrator shall provide such
information forthwith upon request or (if so required by the
Settlement System Administrator) upon delivery of a certificate from
the Pool Member's, the Ancillary Service Provider's or the Grid
Operator's counsel certifying that such information is required for
such purpose. Each of the Parties agrees to the release of all such
records, data and other information in the circumstances described in
this Clause 29.1.
29.2 Arrangements with the Grid Operator and Ancillary Services Provider:
Each of the Settlement System Administrator, the Grid Operator and the
Ancillary Services Provider shall make and maintain arrangements with
each other whereby such data and other information as may be collected
or received by any of them or necessary for the purposes of the Stage
1 Settlement System, the Ancillary Services Business or (as the case
may be and subject to Clause 68) the operation of the NGC Transmission
System or the performance by the Grid Operator of its obligations
under the NGC Transmission Licence shall be provided to such other(s)
to the extent necessary to enable such other(s) to perform its or
their respective obligations under this Agreement, the Grid Code, any
Ancillary Services Agreement and/or the NGC Transmission Licence. Each
of the Parties agrees to the release of all such data and other
information in the circumstances described in this Clause 29.2.
<PAGE>
29.3 Arrangements with the Pool Funds Administrator: The Settlement System
Administrator and the Pool Funds Administrator shall make and maintain
arrangements with each other whereby:-
(a) sufficient data and other information is provided by the
Settlement System Administrator to the Pool Funds
Administrator as to enable the Pool Funds Administrator to
perform its obligations under this Agreement and the Funds
Transfer Agreement; and
(b) sufficient data and other information is provided by the
Pool Funds Administrator to the Settlement System
Administrator as to enable the Settlement System
Administrator to perform its obligations under this
Agreement.
Each of the Parties agrees to the release of all such data and other
information in the circumstances described in this Clause 29.3.
29.4 Arrangements with the Initial Settlement and Reconciliation Agent: The
Settlement System Administrator shall:-
(a) make and maintain arrangements with the Initial Settlement
and Reconciliation Agent whereby sufficient data and other
information is provided by the Settlement System
Administrator to the Initial Settlement and Reconciliation
Agent in accordance with Service Line 2 (Stage 1 Settlement
Process); and
(b) use all reasonable endeavours to make and maintain
arrangements with the Initial Settlement and Reconciliation
Agent whereby sufficient data and other information is
provided by the Initial Settlement and Reconciliation Agent
to the Settlement System Administrator as to enable the
Settlement System Administrator to perform its obligations
under this Agreement.
Each of the Parties agrees to the release of all such data and other
information in the circumstances described in this Clause 29.4.
30. [Not used.]
31. [Not used.]
32. [Not used.]
33. [Not used.]
34. COSTS, FEES AND EXPENSES
34.1 Schedule 4: The provisions of Schedule 4 shall have effect.
<PAGE>
34.2 Fees:
34.2.1 Each Party which is not a Pool Member (other than the
Settlement System Administrator, the Pool Funds
Administrator, the Grid Operator and the Ancillary Services
Provider and any Pool Agent (if a Party)) shall pay the
Settlement System Administrator a fee as provided in Section
8 of Part G of the Appendix to Schedule 4 in respect of the
provision to such Party of all data and other information
which is required by the terms and conditions of Service
Line 10 (Service to CEO and Pool Members) to be made
available to it by the Settlement System Administrator.
34.2.2 A Party may at any time by notice in writing to the
Settlement System Administrator elect not to be provided
with all or some of the data and other information to which
it is entitled from the Settlement System Administrator
under this Agreement and may change such election at any
time upon further written notice to the Settlement System
Administrator.
34A. SECOND TIER SYSTEM CHARGES
The provisions of Clause 34A as in force immediately prior to this revised
Clause 34A taking effect shall continue to apply to the extent necessary to give
effect to the collection of such charges as may have arisen thereunder and, for
such purpose, defined terms used in those provisions and Schedule 4 shall have
the meaning given to them in this Agreement immediately prior to this revised
Clause 34A taking effect.
<PAGE>
PART VIII
THE SETTLEMENT SYSTEM AND COMPUTER OPERATIONS
35. DEVELOPMENT OF THE SETTLEMENT SYSTEM
35.1 Development: The Settlement System shall be developed under the
overall control of the Executive Committee. All developments of and
changes to the Computer Systems shall be made in accordance with the
terms of the Development Policies save in respect of all Settlement
Goal Enhancements and Generation Schedule Goal Enhancements which
shall be made in accordance with Section 6 of Schedule 35.
35.2 Delegation: Save as provided by the Development Policies, the
Executive Committee shall be entitled to delegate all or any of its
rights, powers and duties under Clause 35.1 and the Development
Policies to such person(s) and on such terms and conditions as from
time to time it may see fit.
35.3 Stage 1 Development Policies:
35.3.1 (a) The matters addressed by the Stage 1 Development
Policies are set out in the list of contents in
the Stage 1 Development Policies. These general
headings define the scope of the Stage 1
Development Policies.
(b) The scope of the Stage 1 Development Policies may
be amended at any time and from time to time by
written agreement of the Executive Committee and
the Settlement System Administrator.
(c) Any amendment to any of the matters addressed by
the Stage 1 Development Policies or any addition
or substitution to the Stage 1 Development
Policies which does not extend or restrict (other
than in a way or to an extent which can reasonably
be regarded as de minimis) the scope of the Stage
1 Development Policies may be made at any time and
from time to time, and shall be effective if so
made, by the Executive Committee after
consultation with the Settlement System
Administrator unless such matter is one covered by
the headings in Schedule 16 in which event such
amendment, addition or substitution may be made
and shall be effective only by written agreement
of the Executive Committee and the Settlement
System Administrator.
35.3.2 Without prejudice to Clause 35.3.1(c), Schedule 16 may be
changed at any time and from time to time by written
agreement of the Executive Committee and the Settlement
System Administrator.
35.3.3 Each of the Parties undertakes to comply with (and the Pool
Members undertake to ensure that the Executive Committee
complies with) the Stage 1 Development Policies.
<PAGE>
35.3A Stage 2 Development Policies:
35.3A.1 (a) The matters addressed by the Stage 2 Development Policies
are set out in the list of contents in the Stage 2
Development Policies. These general headings define the
scope of the Stage 2 Development Policies.
(b) The scope of the Stage 2 Development Policies may be amended
at any time by the Executive Committee upon notification to
all Parties and any such change shall be binding on all
Parties without further action being required on the part of
any person.
35.3A.2 Each of the Parties undertakes to comply with (and the Pool Members
undertake to ensure that the Executive Committee complies with) the
Stage 2 Development Policies.
35.4 SSA's comments: The Executive Committee or the particular
sub-committee or sub-group in respect of any development of the Stage
1 Settlement System shall take into account all reasonable comments of
the Settlement System Administrator in relation to the specification,
design, testing and implementation requirements of any development of
or affecting the Stage 1 Settlement System where such comments relate
to the operational compatibility or consistency with the Stage 1
Settlement System or the ability of the Settlement System
Administrator to comply with this Agreement, the Act or NGC's
Transmission Licence.
35.5 Provision of data and information: Each Party shall ensure that all
data and information necessary to enable any testing of the Settlement
System or any development thereof or change thereto required under the
Development Policies and which is permitted to be released (a) by the
Settlement System Administrator under the Pool Rules or (b) as
otherwise expressly provided herein or (c) (as notified from time to
time by the Executive Committee) as expressly provided in any Pool
Agent Contract is, in any such case, supplied to the Executive
Committee or as it may direct and to the Settlement System
Administrator (if relevant to the Stage 1 Settlement System) or, if
the Executive Committee so requires where relevant to the Stage 2
Settlement System, to the Initial Settlement and Reconciliation Agent
and each Party shall use all reasonable endeavours to co-operate with
and support any such testing.
35.6 Provision of data and information to authorised persons: The Parties
shall provide or ensure that the Settlement System Administrator
provides all data and information required under Clause 35.5 to such
persons as may from time to time be authorised by the Executive
Committee to receive the same provided that such persons shall have
executed a confidentiality undertaking in such form as the Executive
Committee may from time to time determine. If the Settlement System
Administrator is not permitted or required to release any data and
information by reason only of the confidential nature of
<PAGE>
such data and information it shall and may provide representative data
to the extent required for such testing.
35.6A Provision of data by Initial Settlement and Reconciliation Agent:
Without prejudice to Clause 35.6, Pool Members shall procure that the
Executive Committee gives such instructions as are necessary in order
that the Initial Settlement and Reconciliation Agent provides the data
and information required under Clause 35.5 to such persons as may from
time to time be authorised by the Executive Committee to receive the
same provided that such persons shall have executed a confidentiality
undertaking in such form as the Executive Committee may from time to
time determine. If the Initial Settlement and Reconciliation Agent is
not permitted or required to release any data and information by
reason only of the confidential nature of such data and information,
Pool Members shall procure that the Executive Committee requests it to
provide representative data to the extent required for such testing.
36. CHANGE MANAGEMENT
36.1 Change Management Policies: In order to ensure that developments of
and changes to the Settlement System are brought into effect in an
ordered and controlled manner, each of the Parties undertakes to
comply with the Change Management Policies.
36.2 Amendments: The Change Management Policies may be amended at any time
and from time to time by the Executive Committee after consultation
with the Settlement System Administrator.
37. SOFTWARE
37.1 Saving: This Clause 37 is to be read subject to Section 37 of Schedule
4.
37.2 Warranties: Without prejudice to Service Line 19 (System Integration)
and Section 9 of Schedule 4, nothing in this Agreement shall imply or
impose any requirement on the Settlement System Administrator to give
any warranty with respect to any Stage 1 Software.
37.3 No liability: Each Party acknowledges that neither NGC nor Energy
Settlements and Information Services Limited shall have any liability
in respect of any software developed before the Effective Date. Each
Party acknowledges that NGC shall have no liability in respect of the
software which is referred to in Schedule 35 except as expressly
stated to the contrary in any licences granted by NGC in accordance
with, or any support and maintenance arrangements entered into
pursuant to, the provisions of Schedule 35.
38. [Not used.]
39. [Not used.]
<PAGE>
40. [Not used.]
41. NOTIFICATION OF DEFECTS BY POOL MEMBERS
41.1 Each Pool Member undertakes to the Settlement System Administrator and
each other Pool Member promptly to notify the Settlement System
Administrator and the Executive Committee in writing of any defects of
which it is or becomes aware in the Stage 1 Software or its operation
or which it knows or should reasonably know will affect the Stage 1
Software or its operation and to provide such further information as
may reasonably be required by the Settlement System Administrator to
identify, isolate and correct such defect.
41.2 Each Pool Member undertakes to each other Pool Member promptly to
notify the Executive Committee in writing and, in such manner as may
from time to time be required by the Executive Committee, the Initial
Settlement and Reconciliation Agent of any defects of which it is or
becomes aware in the Stage 2 Software or its operation and to provide
such further information as may reasonably be required by the
Executive Committee or the Initial Settlement and Reconciliation Agent
to identify, isolate and correct such defect.
42. [Not used.]
43. [Not used.]
44. [Not used.]
45. ESCROW ARRANGEMENTS
45.1 Escrow Agreement: On 17th March, 1992 the Settlement System
Administrator (for itself and on behalf of the Pool Members acting
through the Executive Committee) entered into an escrow agreement (the
"Escrow Agreement") in the form set out in Schedule 7 with The
National Computing Centre Limited (the "Custodian"). The Settlement
System Administrator has deposited or will deposit as soon as it comes
into existence:-
45.1.1 a copy of the source code and load (machine executable)
modules relating to all Developed Application Software
together with all job control language and licensed software
system tables, each in a machine readable form and the
source code and job control language in a hard copy form;
and
45.1.2 a copy of all related manuals and other associated
documentation, including:-
(a) any user requirement documents, together with all
associated authorised change requests;
<PAGE>
(b) any functional specification documents associated
with those documents described in paragraph (a)
above, together with all authorised change
requests associated with the relevant functional
specification;
(c) to the extent available to the Settlement System
Administrator, any design specification documents
associated with those documents described in
paragraphs (a) and (b) above, together with all
authorised change requests associated with the
relevant design specification;
(d) any program and/or user guides prepared to assist
in the day-to-day operation and future development
of the computer programs (including records of
test cases together with the associated test input
and output data used for validation purposes);
(e) any relevant test strategy schedules and
acceptance test schedules as specified for
functional and operational end to end testing;
(f) any relevant test acceptance certificates and
reports for all tests recording comments and
observations made on the appropriate tests where
such tests are commissioned by the Settlement
System Administrator;
(g) any relevant client acceptance certificates and
Pool Auditor's reports, together with any reports
recording such clients' and the Pool Auditor's
observations and comments on the tests;
(h) any relevant compilation or detailed operating
procedures required in connection with any of the
relevant paragraphs in this Clause 45.1.2;
(i) all software licences for Licensed Application
Software; and
(j) a list detailing all versions of Licensed
Application Software (including operating systems
and compilers) used in creating each version of
the object code detailing the version numbers used
and any program temporary fixes or equivalent
mode,
(together the "Material").
If, after consultation with the Settlement System Administrator, the
Executive Committee shall so request:-
(A) the Settlement System Administrator shall use its reasonable
endeavours (which may include the payment of a fee or
further fee recoverable through the Charging Procedure) to
procure that any licence for any Licensed Application
<PAGE>
Software is on terms or amended terms that permit the
deposit of such Licensed Application Software with a
reputable software escrow agent approved by the Executive
Committee on the terms of an escrow agreement approved by
the Executive Committee and the Settlement System
Administrator (in the case of the Settlement System
Administrator such approval not to be unreasonably
withheld); and
(B) NGC shall use its reasonable endeavours to procure that any
licence for any Licensed Application Software licensed by it
to the Settlement System Administrator is on terms or
amended terms that permit the deposit of such Licensed
Application Software with a reputable software escrow agent
approved by the Executive Committee on the terms of an
escrow agreement approved by the Executive Committee and NGC
(in the case of NGC such approval not to be unreasonably
withheld).
45.2 Updating: The Settlement System Administrator shall ensure that the
Material deposited with the Custodian is kept fully up-to-date and
reflects all Modifications and shall deposit a copy of all
Modifications with the Custodian as soon as the same are available,
all in accordance with the terms and subject to the conditions of the
Escrow Agreement.
45.3 Notification to Executive Committee: The Settlement System
Administrator shall notify the Executive Committee promptly of the
delivery of each Modification to the Custodian.
45.4 Amendments: Any amendment to or variation of the Escrow Agreement
shall be made in accordance with its terms provided that the
Settlement System Administrator shall not make or agree to any such
amendment or variation without the prior written consent of the
Executive Committee.
45.5 Disapplication: The provisions of this Clause 45 shall not apply in
relation to the software which is referred to in Schedule 35, the
escrow arrangements relating to such software being as set out in
Schedule 35 and subject to such escrow arrangements the Settlement
System Administrator shall have no further obligations under this
Clause 45 in respect of such software.
46. [Not used.]
<PAGE>
PART IX
THE POOL AUDITOR AND SCHEDULING AND DESPATCH REVIEWS
47. THE POOL AUDITOR AND SCHEDULING AND DESPATCH REVIEWS
47.1 Appointment and removal: The Executive Committee shall (after
consultation with the Settlement System Administrator if the functions
of the relevant firm of accountants relate to the Stage 1 Settlement
System) from time to time appoint one or more firms of accountants of
internationally recognised standing to carry out the following work:-
47.1.1 audits of the calculations and allocations performed by the
Stage 1 Settlement System and/or the Stage 2 Settlement
System, such audits to be carried out annually;
47.1.2 audits of the Funds Transfer System, such audits to be
carried out annually;
47.1.3 tests and/or checks on new items or versions of Software;
47.1.4 reviews of Agreed Procedures, Service Lines and Codes of
Practice, as required from time to time by the Executive
Committee; and
47.1.5 audits, reviews, tests and/or checks of such other matters
as are otherwise designated under this Agreement for
reference to it and, where not so designated, such other
audits, reviews, tests and/or checks as the Executive
Committee may from time to time reasonably require (having
regard, in particular, to the disruptive effect of the same
on the business and operations of the Parties),
and to assist, upon request of the Executive Committee, in the
preparation of Works Programmes pursuant to Clause 5.9.
The Executive Committee shall have the right at any time and from time
to time (after consultation with the Settlement System Administrator
if the functions of that Pool Auditor relate to the Stage 1 Settlement
System) to remove from office as Pool Auditor any firm of accountants
so appointed by it, but the Executive Committee shall ensure that
there shall at all times be a Pool Auditor.
47.2 Scheduling and Despatch Review:
47.2.1 The Grid Operator shall (after consultation with the
Executive Committee) decide upon the appointment from time
to time of such firm of accountants of internationally
recognised standing as the Executive Committee shall approve
(such approval not to be unreasonably withheld or delayed)
to carry out
<PAGE>
reviews ("Scheduling and Despatch Reviews") of the
Scheduling and Despatch processes under the Grid Code, such
reviews to be carried out, until the first anniversary of
the Effective Date, at such time or times as shall be agreed
between the Grid Operator and the Executive Committee and,
thereafter, annually. The objective and scope of each such
review is set out in Schedule 19.
47.2.2 The Grid Operator shall have the right at any time and from
time to time (after consultation with the Executive
Committee) to decide upon the removal from office of the
firm of accountants so appointed by it with the consent of
the Executive Committee (such consent not to be unreasonably
withheld or delayed).
47.2.3 The auditor carrying out the Scheduling and Despatch Review
shall report to the Grid Operator.
47.3 Terms of engagement - scope of work:
47.3.1 (a) The terms of engagement and scope of the work to
be carried out by the Pool Auditor shall be in
accordance with the terms of this Agreement and as
determined from time to time by the Executive
Committee (after consultation with the Pool
Auditor and, where appropriate, the Settlement
System Administrator or the Pool Funds
Administrator) and shall provide that the Pool
Auditor shall report to the Executive Committee.
The Executive Committee shall, upon request,
provide each Pool Member, the Director, any Party
which has applied pursuant to Clause 8.2 to become
a Pool Member and (as appropriate) the Settlement
System Administrator or the Pool Funds
Administrator with a copy of such terms of
engagement and may also provide any other firm of
accountants engaged pursuant to Clause 47.1 with a
copy of such terms of engagement.
(b) The exclusions from and limitations of liability
of the Pool Auditor shall be as set out in its
terms of engagement and shall apply to this
Agreement as if the same were set out in full
herein.
(c) Each Pool Member and any other person entitled
pursuant to Clause 48.2 to rely upon the Pool
Auditor's opinion or report shall comply with any
arrangements made from time to time by the
Executive Committee relating to the making of
claims against the Pool Auditor and to the sharing
of any recoveries from the Pool Auditor the amount
of which may be affected by any limitations of
liability of the Pool Auditor as referred to in
paragraph (b) above. In particular, each Pool
Member and each such other person shall notify the
Executive Committee of any
<PAGE>
claim brought by it against the Pool Auditor where
it is not practicable for the claim to be
conducted by the Executive Committee on its behalf
and shall keep the Executive Committee fully
informed as to the conduct of such a claim.
47.3.2 Any opinion or report of the auditor carrying out the
Scheduling and Despatch Review shall be addressed to the
Grid Operator (for its own benefit) and a copy thereof shall
be sent to the Executive Committee and to each Pool Member,
the Director, the Settlement System Administrator and the
Pool Funds Administrator (each of whom shall be entitled to
rely on it).
47.4 Notification of disputes: Upon written request of the Pool Auditor or,
where the dispute relates to Scheduling and Despatch, the auditor
carrying out the Scheduling and Despatch Review, a Party shall
promptly provide the Pool Auditor or (as the case may be) the auditor
carrying out the Scheduling and Despatch Review with a written
statement of all disputes under or in connection with this Agreement
or any Ancillary Services Agreement which are then outstanding and
which involve such Party or which the relevant Party believes may
arise and are likely to involve such Party, and (subject to any
supervening obligations of confidentiality binding on such Party) such
statement shall include reasonable details of each such dispute.
48. AUDIT INSTRUCTIONS
48.1 Frequency:
48.1.1 Audits, tests, reviews and checks pursuant to Clause 47.1
shall be carried out at such time or times as the Executive
Committee shall determine (after consultation with the Pool
Auditor and, where appropriate, the Settlement System
Administrator or the Pool Funds Administrator) and any such
audit, test, review or check shall relate to such period(s)
as the Executive Committee and the Pool Auditor shall agree.
48.1.2 The review pursuant to Clause 47.2 shall be carried out at
such time or times as the Grid Operator shall determine and
the Executive Committee shall approve (such approval not to
be unreasonably withheld or delayed).
48.1.3 In good time before each annual general meeting of Pool
Members:-
(a) the Executive Committee shall instruct the Pool
Auditor to prepare the report referred to in
Clause 9.7.1; and
(b) the Grid Operator shall instruct the auditor
carrying out the Scheduling and Despatch Review to
prepare the report referred to in Clause 47.2.3.
<PAGE>
48.2 Opinions and reports: Any opinion or report of the Pool Auditor
required by the Executive Committee shall be addressed to the
Executive Committee for the benefit of all Pool Members and to such
other person(s) as the Executive Committee may direct (each of whom
shall be entitled to rely on it) and a copy thereof shall be sent by
the Executive Committee to each Pool Member and the Director and, if
requested and the Executive Committee approves, the Settlement System
Administrator and the Pool Funds Administrator and, if the Executive
Committee so resolves, any Pool Agent (and the Settlement System
Administrator and the Pool Funds Administrator and, if the Executive
Committee so resolves, any such Pool Agent shall be entitled to rely
upon the same in any legal proceedings (including arbitration)).
48.3 Concerns and recommendations:
48.3.1 In instructing the Pool Auditor in respect of any of the
matters referred to in Clause 47.1 the Executive Committee
shall require the Pool Auditor:-
(a) forthwith to report any material concerns with
respect to matters the subject of the relevant
audit, test, review and/or check; and
(b) to make such recommendations as to changes in the
procedures, controls and/or audit coverage as the
Pool Auditor considers appropriate.
Upon receipt of any such report or recommendation the
Executive Committee shall, after consultation with those
persons responsible for operating the relevant system,
prepare and send or cause to be prepared and sent a report
to the Director, the Pool Auditor, the Settlement System
Administrator (if the report concerns Stage 1 Settlement),
Pool Agents and to such other persons as the Executive
Committee shall decide (which may include those persons
responsible for operating the relevant system) enclosing a
copy of the Pool Auditor's report or recommendation. The
Executive Committee shall instruct the Settlement System
Administrator, the Pool Funds Administrator or (as the case
may be) the relevant Pool Agent to carry out such corrective
action as the Pool Members in general meeting may approve or
(where such approval is not required by the terms of this
Agreement) as the Executive Committee may resolve consequent
upon receipt of the Executive Committee's report (which the
Settlement System Administrator and the Pool Funds
Administrator undertake promptly to do).
48.3.2 In instructing the auditor in respect of the Scheduling and
Despatch Review the Grid Operator shall require the auditor
to make the reports and recommendations referred to in
Clauses 48.3.1(a) and (b). Upon receipt of a copy of any
such report or recommendation the Executive Committee shall,
after consultation with the Settlement System Administrator
and the Grid Operator, prepare or send or cause to be
prepared and sent a report to Pool
<PAGE>
Members, the auditor carrying out the Scheduling and
Despatch Review and the Settlement System Administrator
enclosing a copy of the report or recommendation. The
Executive Committee may instruct the Grid Operator to carry
out such corrective action as may be reasonable and
practicable in all the circumstances and which is consistent
with the Grid Code which the Pool Members in general meeting
shall approve. The Executive Committee shall have the right,
after consultation with the Grid Operator, to notify the
Pool Agents (or any of them) of any matter arising from any
such report or recommendation of the said auditor, giving
reasonable details thereof, which the Executive Committee
believes is or would be of concern to the Pool Agents (or
the relevant one of them) in the performance of their or its
obligations under their respective Pool Agent Contracts.
48.4 Access:
48.4.1 The following provisions of this Clause 48.4 shall be
subject to the terms of Section 5 of Schedule 35 insofar as
they relate to rights of access to the Goal Source Code (as
defined in Schedule 35) and the Confidential Sections of the
Datum Document.
48.4.2 To the extent that the Pool Auditor reasonably requires in
order to be satisfied that the Pool Funds Administrator is
complying with its obligations under this Agreement and the
Agreed Procedures, the Pool Funds Administrator shall permit
the Pool Auditor unrestricted access to its operation of the
Funds Transfer System, the Funds Transfer Hardware and the
Funds Transfer Software and all data used, information held
and records kept by the Pool Funds Administrator or its
agents in the conduct of that operation and shall make
available members of its staff to explain such operation and
such other issues as the Pool Auditor considers relevant.
48.4.3 The Grid Operator shall permit the auditor carrying out the
Scheduling and Despatch Review unrestricted access to that
part of its business as relates to Scheduling and Despatch
and the operation of Generation Schedule Goal and all data
used, information held and records kept by the Grid Operator
in the conduct of such business and shall make available
members of its staff to explain such operations and such
other issues as the auditor considers relevant.
48.4.4 Without prejudice to specific rights of access granted
elsewhere to the Pool Auditor, each of the Parties shall use
its reasonable endeavours to procure for the Pool Auditor
access to premises, personnel, data, information and records
sufficient to enable the Pool Auditor properly to perform
the work allocated to it pursuant to Clause 47.1.
<PAGE>
48.5 Costs:
48.5.1 The costs of any corrective action on the part of the
Settlement System Administrator pursuant to Clause 48.3.1
shall be as agreed by the Executive Committee in
consultation with the Settlement System Administrator and
shall be borne in accordance with the PFA Accounting
Procedure.
48.5.2 The costs of any audit, test, review or check pursuant to
Clause 47.1.1 to 47.1.5 (inclusive) and any corrective
action on the part of the Pool Funds Administrator pursuant
to Clause 48.3.1 shall be as agreed by the Executive
Committee (in consultation with the Pool Funds Administrator
in the case of any such corrective action) and shall be
borne by the Pool Funds Administrator and recovered by it in
accordance with the PFA Accounting Procedure.
48.5.3 The costs of any review pursuant to Clause 47.2 and any
corrective action on the part of the Grid Operator pursuant
to Clause 48.3.2 shall be borne by the Grid Operator.
48.5.4 The costs of any corrective action on the part of a Pool
Agent pursuant to Clause 48.3.1 shall be as agreed by the
Executive Committee in consultation with the relevant Pool
Agent and Pool Members undertake to procure that the
Executive Committee uses all reasonable endeavours to
procure that such costs are borne by that Pool Agent.
48.6 Conflict: The Executive Committee shall require the Pool Auditor and
the auditor carrying out the Scheduling and Despatch Review to
disclose to the Executive Committee the existence and nature of all
audit assignments with any Party or Pool Agent.
48.7 Own auditors' review: Each Pool Member may request of the Executive
Committee that its own external auditors be permitted to liaise with
the Pool Auditor and the auditor carrying out the Scheduling and
Despatch Review in accordance with normal professional standards,
including provision of access to working papers. The Executive
Committee shall take such steps as may reasonably be required of it to
ensure that each of the Pool Auditor and the auditor carrying out the
Scheduling and Despatch Review co-operates accordingly (subject to
Clause 48.9).
48.8 Pool Auditor's rights: The Pool Auditor shall be entitled to attend
and speak at meetings of the Executive Committee and at general
meetings and separate general meetings of Pool Members. The Pool
Auditor shall be entitled to resign upon giving prior notice to the
Executive Committee (the period of such notice (if any) to be as set
out in the terms of its appointment). Should the Pool Auditor resign,
be removed from office or not be reappointed the Pool Auditor shall
have the right to communicate directly with Pool Members if it
believes there are matters which should be brought to their attention.
<PAGE>
48.9 Confidentiality:
48.9.1 The Pool Auditor shall as a condition precedent to its
appointment execute a confidentiality undertaking in favour
of each of the Settlement System Administrator, the Pool
Funds Administrator, the Grid Operator and the Ancillary
Services Provider and the Executive Committee on behalf of
all Pool Members in such form as may be reasonably required
from time to time by the Executive Committee.
48.9.2 The auditor carrying out the Scheduling and Despatch Review
shall as a condition precedent to its appointment execute a
confidentiality undertaking in such form as may be
reasonably required from time to time by the Grid Operator
and which shall be approved by the Executive Committee (such
approval not to be unreasonably withheld or delayed).
48.9.3 If requested by the Settlement System Administrator, the
Pool Funds Administrator, the Grid Operator or the Ancillary
Services Provider, the auditor carrying out the Scheduling
and Despatch Review shall execute a confidentiality
undertaking in favour of the relevant one of them in such
form as the Executive Committee may from time to time
approve (such approval not to be unreasonably withheld or
delayed).
48.9.4 If requested by a Pool Agent or a Supplier Agent or, with
the prior consent of the Executive Committee, any other
person (not being the Settlement System Administrator, the
Pool Funds Administrator, the Grid Operator or the Ancillary
Services Provider), the Pool Auditor shall execute a
confidentiality undertaking in favour of that Pool Agent or
Supplier Agent in such form as may be reasonably required
from time to time by the Executive Committee.
48.10 Scheduling and Despatch Auditor: The auditor appointed to carry out
the Scheduling and Despatch Review shall be entitled to attend and
speak at meetings of the Executive Committee and at general meetings
and separate general meetings of Pool Members where matters relating
to Scheduling and Despatch are to be discussed or considered. The
auditor shall be entitled to resign upon giving prior notice to the
Grid Operator (who shall send a copy forthwith to the Executive
Committee) (the period of such notice, if any, to be as set out in the
terms of its appointment). Should the auditor resign, be removed from
office or not be reappointed it shall have the right to communicate
directly with Pool Members if it believes that there are matters which
should be brought to their attention.
48.11 Certification Agent:
48.11.1 If, and for so long as, the Pool Auditor is also appointed
as the Certification Agent, the Executive Committee may
agree with the Performance Assurance
<PAGE>
Board that the terms of engagement of the Certification
Agent shall be incorporated in the terms of engagement and
scope of work to be carried out by the Pool Auditor, in
which event the terms of engagement of the Certification
Agent shall be agreed, amended and substituted by the
Executive Committee instead of the Performance Assurance
Board.
48.11.2 In its capacity as Certification Agent, the Pool Auditor
shall not be required to comply with the provisions of
Clause 48.2 or 48.3 and the provisions of Clause 48.7 shall
not apply.
<PAGE>
PART X
THE GRID OPERATOR'S RESPONSIBILITIES
49. RESPONSIBILITIES
49.1 The Grid Operator shall have the following duties, responsibilities
and obligations under this Agreement:-
49.1.1 PORTHOLE: Ensuring that, insofar as relevant to the
operation of the Settlement System and the Pool Rules,
PORTHOLE will in its operation comply with its user and
functional specifications.
49.1.2 Services: Making available to any successor Settlement
System Administrator those services necessary for the proper
functioning of the Settlement System which the Grid Operator
made available to the incumbent Settlement System
Administrator at any time in the twelve month period prior
to the resignation or removal of such incumbent Settlement
System Administrator, in any such case upon such terms as
may be agreed between the Grid Operator, such successor
Settlement System Administrator and the Executive Committee.
49.1.3 Transport Uplift: Making payments in relation to Transport
Uplift.
49.1.4 Generally: Such other duties, responsibilities and
obligations as are set out in this Agreement.
49.2 No amendment, variation or replacement of any provision of this
Agreement (which, for the avoidance of doubt, includes the Pool Rules)
which is reasonably likely to affect in any material respect Transport
Uplift or any constituent element thereof or the obligations of the
Grid Operator related thereto, shall become effective except with the
prior written agreement of the Grid Operator (such consent not to be
unreasonably withheld or delayed).
50. STANDARD OF CARE
50.1 Standard of care: In the exercise of its duties and responsibilities
under this Agreement the Grid Operator shall exercise that degree of
care, diligence, skill and judgment which would ordinarily be expected
of a reasonably prudent operator of the NGC Transmission System taking
into account the circumstances actually known to the Grid Operator,
its officers and employees at the relevant time or which ought to have
been known to it or them had it or they made such enquiries as were
reasonable in the circumstances.
<PAGE>
50.2 Miscellaneous:
50.2.1 (a) The Grid Operator shall be entitled to rely upon
any direction or instruction of the Executive
Committee or the Chief Executive (if any) if the
same is signed by way of authority in accordance
with Clause 50.2.4 on behalf of two or more
Committee Members or on behalf of the Chief
Executive and shall not be obliged to comply with
any direction or instruction of any sub-committee
of the Executive Committee or any delegate of the
Executive Committee other than the Chief Executive
(unless such direction or instruction is shown as
having been ratified by the Executive Committee).
(b) The Grid Operator shall be entitled to rely upon
any communication or document reasonably believed
by it to be genuine and correct and to have been
communicated or signed by the person by whom it
purports to be communicated or signed and shall
not be liable to any of the Parties for any of the
consequences of such reliance.
50.2.2 Compliance with the Director's directions: No liability
whatsoever shall attach to the Grid Operator as a result of
due compliance by it with any directions and instructions of
the Director, provided that in complying with such
directions and instructions the Grid Operator is at all
times acting in good faith.
50.2.3 Prior approval: Where by the terms of this Agreement the
Grid Operator is required to obtain the prior directions,
instructions, approval or consent of the Executive Committee
or the Chief Executive, the Grid Operator shall have no
authority to, and shall not, act unless the requisite
directions, instructions, approval or consent have first
been obtained. Notwithstanding the foregoing sentence,
nothing in this Agreement shall prevent the Executive
Committee from ratifying any act of the Grid Operator.
50.2.4 Express authority: All directions and instructions of the
Executive Committee or the Chief Executive to the Grid
Operator shall, as between the Grid Operator and the Pool
Members, be deemed to have the express authority of, and
shall be binding without reservation upon, all Pool Members.
50.2.5 Authority of Pool Members: The Grid Operator shall not be
bound to act in accordance with the directions or
instructions of the Pool Members unless the Pool Members act
through the Executive Committee.
50.2.6 General Meetings: The Grid Operator shall not be obliged to
take any steps to ascertain whether any resolution of Pool
Members in general meeting or of any class of Pool Members
in separate general meeting which it is advised by the
Executive Committee or the Chief Executive as having been
passed was in fact
<PAGE>
passed or passed by the requisite majority and until the
Grid Operator shall have express written notice to the
contrary from the Executive Committee or the Chief Executive
it shall be entitled to assume that the relevant resolution
was passed or (as the case may be) the relevant requisite
majority was obtained.
50.2.7 Exceptions: Notwithstanding the foregoing provisions of this
Clause 50.2, in the performance of its duties and
responsibilities under this Agreement the Grid Operator
shall not be bound to act in accordance with the directions
or instructions of the Executive Committee or the Chief
Executive:-
(a) if to do so would cause the Grid Operator to
breach any of its obligations under the Act or its
Transmission Licence; or
(b) if the Grid Operator has reasonable grounds for
believing that it would so breach any of such
obligations and has consulted the Director and the
Director has not indicated that in his view it
would not involve any such breach; or
(c) unless the Director has indicated that,
notwithstanding any such actual or potential
breach, the Director would not be minded to
enforce compliance with those obligations under
the Act or its Transmission Licence and the Grid
Operator has received an indemnity reasonably
satisfactory to it in respect of its acting in
accordance with such directions and instructions.
In any such event the Grid Operator shall promptly notify
the Executive Committee.
50.2.8 Reference to the Director: If at any time the Grid Operator
has a concern which is properly and reasonably founded that,
in acting in accordance with any direction or instruction of
the Executive Committee or the Chief Executive, it will
breach one or more of its obligations under the Act or its
Transmission Licence, then, if having discussed the matter
with the Executive Committee the matter remains unresolved,
the Grid Operator shall either comply with such direction or
instruction or by notice in writing refer the same to the
Director, such notice to set out in full the directions or
instructions given to the Grid Operator and the grounds for
such concern and to be copied to the Executive Committee.
Pending any guidance from the Director in response to any
such reference and, provided that the Director shall not
express any view that such reference is misconceived,
vexatious or in respect of an improperly or unreasonably
founded concern, the Grid Operator shall not be liable to
any of the other Parties for refusing to act in accordance
with the relevant direction or instruction. If the Director
shall express such a view, the Grid Operator shall be so
liable.
<PAGE>
PART XI
ANCILLARY SERVICES AND THE
ANCILLARY SERVICES PROVIDER
51. ANCILLARY SERVICES
51.1 Obligations: The obligations of the Ancillary Services Provider and
the Grid Operator pursuant to this Clause 51 shall be owed to each and
every Supplier.
51.2 Obligations of Ancillary Services Provider: The Ancillary Services
Provider shall:-
51.2.1 implement, maintain and operate all such systems as are
necessary to enable it properly to carry on the Ancillary
Services Business in accordance with the Transmission
Licence;
51.2.2 operate the Ancillary Services Business in an efficient and
economic manner;
51.2.3 maintain such records, data and other information as the
Pool Auditor may from time to time by notice in reasonable
detail to the Ancillary Services Provider reasonably require
for the purposes of this Part XI or as may otherwise be
reasonably necessary to enable the Ancillary Services
Provider to comply promptly and fully with its obligations
under this Agreement;
51.2.4 retain in electronic or machine readable form for a period
of not less than eight years (or such longer period as the
Pool Auditor may from time to time reasonably require),
copies of all records, data and information referred to in
Clause 51.2.3 in respect of the Ancillary Services;
51.2.5 provide to the Settlement System Administrator who shall
promptly provide the same to each Supplier monthly and
annual statements giving aggregate payment details
separately in respect of each of the following items:-
(a) Reactive Energy;
(b) frequency control;
(c) Black Start Capability;
(d) lost opportunity costs;
(e) supplies of Ancillary Services to Externally
Interconnected Parties;
<PAGE>
(f) adjustments for disputes which have been settled
or otherwise determined; and
(g) the Ancillary Services Provider's business
charges,
together with a statement of the sum of all such items, and
each of the Parties agrees to such information being so
provided;
51.2.6 not transfer or seek to transfer any of its duties or
responsibilities as Ancillary Services Provider save to
NGC's successor as Grid Operator where NGC is removed as
Grid Operator (but not further or otherwise);
51.2.7 upon a successor Grid Operator being appointed (so far as it
is able), transfer to such successor all data, records,
other information, assets, equipment, facilities, rights and
know-how which it has (excluding freehold and leasehold real
property) and which are necessary to carry out the duties
and responsibilities of the Ancillary Services Provider and
which are not otherwise readily obtainable by such successor
including all original and copy material relating to the
same and, in consideration for such transfer, the Suppliers
shall jointly and severally pay to the Ancillary Services
Provider a reasonable sum to reflect the costs of, and the
costs of transferring, such material, such sum to be
determined pursuant to Clause 83 in default of agreement
between the Suppliers and Ancillary Services Provider; and
51.2.8 ensure that all agreements or arrangements for the provision
of Ancillary Services to Externally Interconnected Parties
are on the best commercial terms reasonably available.
51.3 Obligations of Grid Operator: The Grid Operator shall:-
51.3.1 pay the Ancillary Services Provider for Ancillary Services
in accordance with this Agreement; and
51.3.2 enforce the Master Connection and Use of System Agreement
and each Supplemental Agreement (insofar as it concerns the
provision of Ancillary Services) in accordance with their
respective terms in all circumstances in which it is
reasonable to do so having regard to its obligations under
the Act, the Transmission Licence and the Grid Code.
51.4 [Not used.]
<PAGE>
51.5 Audit of Ancillary Services:
51.5.1 The Suppliers may require the Pool Auditor to carry out
audits, tests, checks or reviews in relation to the
operation by the Ancillary Services Provider of the
Ancillary Services Business as Suppliers may from time to
time reasonably require (having regard, in particular, to
the disruptive effect of the same on the business and
operations of the Ancillary Services Provider). The terms of
engagement for any such audit, test, check or review shall
be made available to the Ancillary Services Provider.
51.5.2 The Suppliers shall not require more than two audits, tests,
checks and reviews pursuant to Clause 51.5.1 in any
Accounting Period.
51.5.3 On instructing the Pool Auditor pursuant to Clause 51.5.1,
the Supplier(s) concerned may require the Pool Auditor:-
(a) forthwith to report any material concerns with
respect to matters the subject of the relevant
audit, test, check or review; and
(b) to make such recommendations as to changes in the
procedures, controls and/or audit coverage of the
Ancillary Services Business as the Pool Auditor
considers appropriate.
51.5.4 The Ancillary Services Provider shall permit the Pool
Auditor such access to its Ancillary Services' operations
and all records, documents, data and other information
(other than Excluded Information) held by the Ancillary
Services Provider in the conduct of such operations in each
case as the Pool Auditor may reasonably require and shall
make available members of its staff to explain such
operations and such other issues as the Pool Auditor
considers relevant. The Pool Auditor shall not disclose and
shall not be obliged to disclose to any Supplier details of
prices paid to each Generator by the Ancillary Services
Provider.
In this Clause 51.5 "Excluded Information" means all
records, documents, data and other information provided in
the course of the discussions or negotiations with any
person with whom the Ancillary Services Provider contracts
or considers contracting for the provision of Ancillary
Services other than as stated in any Ancillary Services
Agreement whether such discussions or negotiations take
place before contracting or as part of any price review
during the term of any Ancillary Services Agreement.
51.5.5 The Pool Auditor shall report to the Suppliers and a copy of
any report by the Pool Auditor relating to an audit, test,
check or review pursuant to Clause 51.5.1 shall be provided
to the Ancillary Services Provider. The Pool Auditor
<PAGE>
shall owe a duty of confidentiality to the Ancillary
Services Provider save to the extent necessary to carry out
the particular audit, test, check or review provided that
any matter or thing set out in any report to the Suppliers
shall not be subject to any such obligation and provided
always that nothing in this Clause 51.5.5 shall prevent the
disclosure of any information pursuant to Clause 68. The
Ancillary Services Provider shall be entitled to rely on any
such report in any legal proceedings (including
arbitration).
51.5.6 If the Suppliers so resolve, the Ancillary Services Provider
shall promptly implement any recommendations made by the
Pool Auditor in a report relating to an audit, test, check
or review pursuant to Clause 51.5.1 and, in the event of any
dispute, such dispute shall be referred to arbitration in
accordance with Clause 83.
51.5.7 The cost of any audit, test, check or review pursuant to
Clause 51.5.1 shall be borne by the requisitioning
Supplier(s). The costs of implementing any recommendations
pursuant to Clause 51.5.6 may be recovered by the Ancillary
Services Provider in accordance with the ASP Accounting
Procedure.
51.6 Basis of Payment: The Ancillary Services Provider shall calculate the
total amount payable under Ancillary Services Agreements in respect of
each Settlement Day together with any amendments to calculations made
for previous Settlement Days based upon information derived from the
Grid Operator and the Settlement System Administrator. The charges to
the Grid Operator for Ancillary Services shall comprise the costs so
calculated together with the charges of the Ancillary Services
Provider calculated in accordance with Schedule 18. The Ancillary
Services Provider shall notify a provisional sum to the Settlement
System Administrator within three working days after receipt of such
information from the Grid Operator and the Settlement System
Administrator so as to be despatched by the Settlement System
Administrator to the Grid Operator in accordance with the relevant
Agreed Procedure to enable the Settlement System Administrator to
apportion this sum to the sale of Active Energy according to the Pool
Rules. The Ancillary Services Provider shall notify a final sum to the
Settlement System Administrator by such time as will enable the
Settlement System Administrator to take into account the final
Settlement Run for each Settlement Day. Any unresolved amount shall be
included in the final Settlement Run on an interim basis pending
resolution. Thereafter it may be included (together with any errors or
omissions subsequently arising) in any appropriate Settlement Run.
51.7 Lost opportunity costs:
51.7.1 Subject to Clause 51.6, where the Ancillary Services
Provider pays any Generator an amount in respect of lost
opportunity costs, the Ancillary Services Provider shall use
reasonable endeavours to include any such amount in its
<PAGE>
Ancillary Service charge to the Grid Operator in the
Settlement Day on which it arises or as soon as possible
thereafter.
51.7.2 As soon as the Ancillary Services Provider is notified by
any Generator that any obligation to pay any lost
opportunity costs may arise, it shall consult the Suppliers
and the Grid Operator and, without prejudice to the
Ancillary Services Provider's right to recover such lost
opportunity costs from the Grid Operator in accordance with
Clause 51.6 or Clause 51.7.1, the Ancillary Services
Provider shall, if requested by the Suppliers or Grid
Operator, collect payment from the Grid Operator on account
of or by way of recovery of such costs over such period as
may be agreed between the Ancillary Services Provider, the
Suppliers and the Grid Operator and, in default of
agreement, over such period as the Ancillary Services
Provider considers to be reasonable.
51.8 Independent Contractor: The Ancillary Services Provider shall act as
an independent contractor in carrying out its duties pursuant to this
Agreement and (unless expressly authorised to the contrary) shall
neither act nor hold itself out nor be held out as acting as agent for
any of the other Parties.
51.9 Standard of care: In the exercise of its duties and responsibilities
under this Agreement the Ancillary Services Provider shall exercise
that degree of care, diligence, skill and judgment which would
ordinarily be expected of a reasonably prudent operator of the
Ancillary Services Business taking into account the circumstances
actually known to the Ancillary Services Provider, its officers and
employees at the relevant time or which ought to have been known to it
or them had it or they made such enquiries as were reasonable in the
circumstances.
51.10 Miscellaneous:
51.10.1 (a) The Ancillary Services Provider shall be entitled
to rely upon any direction or instruction of the
Executive Committee or the Chief Executive (if
any) if the same is signed by way of authority in
accordance with Clause 51.10.4 on behalf of two or
more Committee Members or on behalf of the Chief
Executive and shall not be obliged to comply with
any direction or instruction of any sub-committee
of the Executive Committee or any delegate of the
Executive Committee other than the Chief Executive
(unless such direction or instruction is shown as
having been ratified by the Executive Committee);
(b) The Ancillary Services Provider shall be entitled
to rely upon any communication or document
reasonably believed by it to be genuine and
correct and to have been communicated or signed by
the person by whom it purports to be communicated
or signed and shall not be liable to any of the
Parties for any of the consequences of such
reliance.
<PAGE>
51.10.2 Compliance with the Director's directions: No liability
whatsoever shall attach to the Ancillary Services Provider
as a result of due compliance by it with any directions and
instructions of the Director, provided that in complying
with such directions and instructions the Ancillary Services
Provider is at all times acting in good faith.
51.10.3 Prior approval: Where by the terms of this Agreement the
Ancillary Services Provider is required to obtain the prior
directions, instructions, approval or consent of the
Executive Committee or the Chief Executive, the Ancillary
Services Provider shall have no authority to, and shall not,
act unless the requisite directions, instructions, approval
or consent have first been obtained. Notwithstanding the
foregoing sentence, nothing in this Agreement shall prevent
the Executive Committee from ratifying any act of the
Ancillary Services Provider.
51.10.4 Express authority: All directions and instructions of the
Executive Committee or the Chief Executive to the Ancillary
Services Provider shall, as between the Ancillary Services
Provider and the Pool Members, be deemed to have the express
authority of, and shall be binding without reservation upon,
all Pool Members.
51.10.5 Authority of Pool Members: The Ancillary Services Provider
shall not be bound to act in accordance with the directions
or instructions of the Pool Members unless the Pool Members
act through the Executive Committee.
51.10.6 General Meetings: The Ancillary Services Provider shall not
be obliged to take any steps to ascertain whether any
resolution of Pool Members in general meeting or of any
class of Pool Members in separate general meeting which it
is advised by the Executive Committee or the Chief Executive
as having been passed was in fact passed or passed by the
requisite majority and until the Ancillary Services Provider
shall have express written notice to the contrary from the
Executive Committee or the Chief Executive it shall be
entitled to assume that the relevant resolution was passed
or (as the case may be) the relevant requisite majority was
obtained.
51.10.7 Exceptions: Notwithstanding the foregoing provisions of this
Clause 51.10, in the performance of its duties and
responsibilities under this Agreement the Ancillary Services
Provider shall not be bound to act in accordance with the
directions or instructions of the Executive Committee or the
Chief Executive:-
(a) if to do so would cause the Ancillary Services
Provider to breach any of its obligations under
the Act or its Transmission Licence; or
<PAGE>
(b) if the Ancillary Services Provider has reasonable
grounds for believing that it would so breach any
of such obligations and has consulted the Director
and the Director has not indicated that in his
view it would not involve any such breach; or
(c) unless the Director has indicated that,
notwithstanding any such actual or potential
breach, the Director would not be minded to
enforce compliance with those obligations under
the Act or its Transmission Licence and the
Ancillary Services Provider has received an
indemnity reasonably satisfactory to it in respect
of its acting in accordance with such directions
and instructions.
In any such event the Ancillary Services Provider shall
promptly notify the Executive Committee.
51.10.8 Reference to the Director: If at any time the Ancillary
Services Provider has a concern which is properly and
reasonably founded that, in acting in accordance with any
direction or instruction of the Executive Committee or the
Chief Executive, it will breach one or more of its
obligations under the Act or its Transmission Licence, then,
if having discussed the matter with the Executive Committee
the matter remains unresolved, the Ancillary Services
Provider shall either comply with such direction or
instruction or by notice in writing refer the same to the
Director, such notice to set out in full the directions or
instructions given to the Ancillary Services Provider and
the grounds for such concern and to be copied to the
Executive Committee. Pending any guidance from the Director
in response to any such reference and, provided that the
Director shall not express any view that such reference is
misconceived, vexatious or in respect of an improperly or
unreasonably founded concern, the Ancillary Services
Provider shall not be liable to any of the other Parties for
refusing to act in accordance with the relevant direction or
instruction. If the Director shall express such a view, the
Ancillary Services Provider shall be so liable.
51.11 Suppliers' Resolutions: Where any matter is reserved under this Part
XI or Schedule 18 for the Suppliers to resolve, that matter shall be
decided upon by the Suppliers in separate general meeting.
51A. TRANSMISSION SERVICES
It is expressly acknowledged by the Parties that neither the termination or
expiry of previous Clauses in this Agreement which related to UMIS, UMIS2, the
Transmission Services Scheme, the Transmission Services Scheme 2 and/or the
Energy Uplift and Transmission Losses Scheme (each as were therein defined) nor
any addition to or amendment of any other provision of this Agreement effected
pursuant to such Clauses whilst in force shall prejudice the accrued rights
<PAGE>
and liabilities of any Consumer (as then defined in the Pool Rules) or the Grid
Operator (in whatever capacity) under each such scheme or arrangement at the
date of such termination or expiry which accrued rights shall include, for the
avoidance of doubt, the ability to adjust sums calculated under UMIS, UMIS 2,
the Transmission Services Scheme, the Transmission Services Scheme 2 and/or the
Energy Uplift and Transmission Losses Scheme in respect of disputes arising
before or after such termination or expiry in respect of periods falling before
such termination or expiry.
51B. ENERGY UPLIFT AND TRANSMISSION LOSSES SCHEME 2
51B.1 General: Notwithstanding any other provision of this Agreement, the
provisions of this Clause shall govern the rights and obligations of
the Parties in relation to the Energy Uplift and Transmission Losses
Scheme 2.
51B.2 Meaning of "Energy Uplift and Transmission Losses Scheme 2": In this
Clause 51B, in Schedule 9 and in Schedule 11, the term "Energy Uplift
and Transmission Losses Scheme 2" means the scheme to provide an
incentive for the Grid Operator to minimise (taking into account other
associated costs) a proportion of the costs arising under this
Agreement and which provides for payments between the Grid Operator
(acting through its agent the Ancillary Services Provider) and
Consumers and Stage 2 Suppliers in relation to an Energy Uplift Daily
Payment and a Transmission Losses Daily Payment in the form agreed
pursuant to Clause 51B.6 as the same may be amended, varied or
replaced from time to time in accordance with the terms of that
Clause.
51B.3 Duration of Scheme:
(a) The Parties agree (and agree that they will procure that the
Executive Committee will so agree) that in the period from
00.00 hours on 1st April, 1998 to 24.00 hours on 31st March,
1999 the Energy Uplift and Transmission Losses Scheme 2, the
amendments and/or additions to the Pool Rules to implement
the Energy Uplift and Transmission Losses Scheme 2 and the
provisions of this Clause, shall apply. This Clause 51B.3(a)
may not be amended without the prior written consent of all
Parties.
(b) The provisions of this Clause 51B, the Energy Uplift and
Transmission Losses Scheme 2 and any addition to or
amendment of any other provisions of this Agreement or the
Pool Rules effected pursuant to this Clause 51B shall
terminate at 24.00 hours on 31st March, 1999, except for any
provision, addition or amendment which is required to
continue beyond that day to give effect to the operation of
the Energy Uplift and Transmission Losses Scheme 2 in
respect of any period before that date.
51B.4 Obligations: The Parties agree:-
<PAGE>
(a) to be bound by the terms, conditions and other provisions of
the Energy Uplift and Transmission Losses Scheme 2;
(b) that the Grid Operator (acting through its agent the
Ancillary Services Provider) and each Consumer and Stage 2
Supplier shall make such payments as are required and
determined by the provisions of the amendments and/or
additions to the Pool Rules to implement the Energy Uplift
and Transmission Losses Scheme 2; and
(c) that for the period during which this Clause 51B applies,
the following changes shall be made to the provisions of
this Agreement:-
(i) in sub-section 5.4, sub-section 5.14, paragraph
17.1.4 and sub-section 17.6 of Schedule 11 and the
defined terms used in that Schedule, references to
the Ancillary Services Provider shall be deemed to
be references to itself and as agent for the Grid
Operator in relation to the Energy Uplift and
Transmission Losses Scheme 2;
(ii) in sub-section 2.1 of Schedule 11, the words "and
the Energy Uplift and Transmission Losses Scheme
2" shall be inserted after the words "Ancillary
Services";
(iii) in sub-section 5.14 of Schedule 11, the words "or
in respect of the Energy Uplift and Transmission
Losses Scheme 2" shall be inserted after the
expression "Ancillary Services" where it first
appears and the words "or in respect of the Energy
Uplift and Transmission Losses Scheme 2" shall be
inserted after the words "that same day", and in
sub-section 5.15 of Schedule 11 the words "or the
Ancillary Services Provider" shall (except where
they already appear) be inserted after the
expression "Pool Member" wherever it occurs in
that paragraph; and
(iv) in Part 4 of Schedule 11, references to
information in respect of Ancillary Services shall
be deemed to include information in respect of the
Energy Uplift and Transmission Losses Scheme 2, in
paragraph 17.1.4 of Schedule 11 the information
required shall include the total amount payable by
the Ancillary Services Provider (exclusive of
United Kingdom Value Added Tax) pursuant to the
Energy Uplift and Transmission Losses Scheme 2 in
respect of each Settlement Day, in sub-section
17.6 of Schedule 11 the Pool Funds Administrator
shall include in its reconciliation the amount
shown to be payable by the Ancillary Services
Provider pursuant to the Energy Uplift and
Transmission Losses Scheme 2 in respect of each
Settlement Day, and in sub-section 22.4 of
Schedule 11 the Confirmation Notices shall include
the total amount payable by the Ancillary Services
<PAGE>
Provider pursuant to the Energy Uplift and
Transmission Losses Scheme 2 in respect of each
Settlement Day.
51B.5 Further assurance: The Suppliers and the Grid Operator may request the
Parties and the Executive Committee promptly (and in any event before
the date the Energy Uplift and Transmission Losses Scheme 2 is to take
effect) to execute and do all such acts, matters and things (including
effecting amendments to the Pool Rules) as may be necessary to give
effect to the Energy Uplift and Transmission Losses Scheme 2. The
Parties shall not refuse (and agree that they will procure that the
Executive Committee shall not refuse) any such request on the grounds
of any objections to any provisions of any of the Annexes of Appendix
3 to the Pool Rules as agreed from time to time between the Suppliers
and the Grid Operator.
51B.6 Effectiveness: Neither this Clause 51B (other than Clauses 51B.2,
51B.5 and this Clause 51B.6), nor the Energy Uplift and Transmission
Losses Scheme 2, nor any amendment, variation or replacement of either
of them, nor any amendment, variation or replacement to the Pool Rules
relating to the Energy Uplift and Transmission Losses Scheme 2, shall
become effective except with the prior agreement of the Suppliers
(which agreement shall be given by the passing of a resolution in a
separate class meeting) and the prior written agreement of the Grid
Operator.
51B.7 Survival:
(a) Termination or expiry of the provisions of this Clause 51B,
the Energy Uplift and Transmission Losses Scheme 2 and/or
any addition to or amendment of any other provision of this
Agreement effected pursuant to this Clause shall not
prejudice the accrued rights and liabilities of any Consumer
or Stage 2 Supplier or the Grid Operator under the Energy
Uplift and Transmission Losses Scheme 2 at the date of such
termination or expiry, which accrued rights shall, for the
avoidance of doubt, include the ability to adjust sums
calculated under the Energy Uplift and Transmission Losses
Scheme 2 in respect of disputes arising after such
termination or expiry in respect of periods falling before
such termination or expiry.
(b) The provisions of this Clause 51B.7 and Clause 51B.3(b)
shall survive the termination of the Energy Uplift and
Transmission Losses Scheme 2.
51B.8 Definitions: In, and in relation to, this Clause 51B the terms
"Consumer" and "Stage 2 Supplier" shall bear the respective meanings
given to those terms in the Pool Rules.
51C. OBLIGATORY REACTIVE POWER SERVICE
Notwithstanding the provisions of the Works Programme for reactive power
ancillary services agreed by Pool Members on 1st March, 1994, as adopted from
1st August, 1994, the payments to
<PAGE>
be made by the Ancillary Services Provider to Users for the provision of the
Obligatory Reactive Power Service (as defined in the Master Connection and Use
of System Agreement) in all Ancillary Services Agreements under which Users are
or will be paid for the Obligatory Reactive Power Service shall in respect of
all periods from (and including) 1st October, 1997 be determined in accordance
with the terms of the Master Connection and Use of System Agreement.
<PAGE>
PART XII
[Not used.]
<PAGE>
PART XIII
RISK MANAGEMENT SCHEME
53. APPLICATION
53.1 Request: The Executive Committee shall send any Pool Member a Scheme
Admission Application within 28 days after receipt of a request for
the same from that Pool Member.
53.2 Scheme Admission Application: Any Pool Member may apply to the
Executive Committee to have any Centrally Despatched Generating Unit
admitted to the Scheme by completing and submitting to the Executive
Committee a duly completed Scheme Admission Application not less than
40 days before the proposed date of admission to the Scheme of that
Centrally Despatched Generating Unit.
53.3 Admission: The Executive Committee shall admit any Centrally
Despatched Generating Unit to the Scheme in respect of which all
Scheme Admission Conditions are met.
53.4 Notification (1): If the Executive Committee determines that, in
respect of any Centrally Despatched Generating Unit, the Scheme
Admission Conditions have been met it shall forthwith and in any event
within 40 days after receipt of the Scheme Admission Application
notify the relevant Pool Member and the Settlement System
Administrator accordingly.
53.5 Notification (2): If the Executive Committee determines that, in
respect of any Centrally Despatched Generating Unit, the Scheme
Admission Conditions have not been met it shall forthwith and in any
event within 40 days after receipt of the Scheme Admission Application
notify the relevant Pool Member of the reasons why the Scheme
Admission Conditions have not been met.
53.6 Reference to the Director: In the event of any dispute between the
Executive Committee and the relevant Pool Member over whether such
Pool Member has fulfilled the Scheme Admission Conditions the same may
be referred by the Executive Committee or the relevant Pool Member to
the Director for determination, whose determination shall be final and
binding for all purposes.
54. SCHEME ADMISSION CONDITIONS
The Scheme Admission Conditions are that:-
54.1 no person has an Accountable Interest in the Centrally
Despatched Generating Unit which is the subject of the
Scheme Admission Application which, when added to the
Accountable Interests of that person in other Generating
Units
<PAGE>
(whether situate within England and Wales or elsewhere),
exceeds in aggregate 1500MW;
54.2 the Pool Member does not have an Accountable Interest
(excluding any Accountable Interest of less than 10MW) in
more than four Generating Units (whether situate within
England and Wales or elsewhere). For the avoidance of doubt
a combined cycle module shall be deemed for these purposes a
single Generating Unit;
54.3 the Centrally Despatched Generating Unit which is the
subject of the Scheme Admission Application has not at the
date of the Scheme Admission Application been Commissioned;
54.4 the Centrally Despatched Generating Unit shall be admitted
for seven calendar years from the date of its admission to
the Scheme specified in the Scheme Admission Application;
and
54.5 the Pool Member shall specify in the Scheme Admission
Application the proposed Scheme Planned Availability for
each Settlement Period in the proposed first Scheme Year for
the Centrally Despatched Generating Unit.
55. RIGHTS AND OBLIGATIONS OF POOL MEMBERS
55.1 Notification of unavailability: In respect of each Scheme Year for
each Scheme Genset (other than the first) the Pool Member shall not
later than 28 days before the start of that Scheme Year for each
Scheme Genset notify the Executive Committee of all Settlement Periods
in that Scheme Year during which the Scheme Genset is intended to be
unavailable.
55.2 Scheme Planned Availability: All Settlement Periods in that Scheme
Year other than those notified under Clause 55.1 shall together
constitute the Scheme Planned Availability in respect of that Scheme
Genset for that Scheme Year.
55.3 Failure to notify: If the Pool Member fails to notify the Executive
Committee in accordance with Clause 55.1 of the Scheme Planned
Availability in respect of that Scheme Genset for the following Scheme
Year, the Scheme Planned Availability shall be deemed to be the same
as the Scheme Planned Availability for the current Scheme Year.
55.4 No amendment: The Scheme Planned Availability for any Scheme Year
notified in accordance with Clause 55.1 or deemed in accordance with
Clause 55.3 may not be amended.
<PAGE>
55.5 Payment rights: The Pool Member shall make or be entitled to receive
payments in respect of each Scheme Genset as determined in accordance
with Section 27 of Schedule 9 notwithstanding the expiry of the period
referred to in Clause 50.4.
55.6 No withdrawal: The Pool Member may not withdraw any Scheme Genset from
the Scheme during any period referred to in Clause 50.4 applicable to
that Scheme Genset.
55.7 Actual planned availability: In respect of each Scheme Genset, the
Pool Member shall use all reasonable endeavours to ensure that the
Scheme Planned Availability for each Scheme Year is the actual planned
availability of such Scheme Genset.
56. REVIEW
56.1 Review: Within two months after the end of the third Scheme Year in
respect of which the first Scheme Genset has been admitted to the
Scheme and each subsequent anniversary of that date the Executive
Committee shall (with the consent of the Director) appoint an
independent firm of accountants of internationally recognised standing
to review the Scheme to establish whether or not any element of the
Scheme (or the Scheme taken as a whole) gives rise to a systematic
imbalance which is likely to prevent the payments to the Scheme
balancing payments from the Scheme and to submit to the Executive
Committee and the Director a report setting out details of any such
imbalance and his findings and recommendations for amending the Scheme
designed to correct any such imbalance.
56.2 Amendments: The Executive Committee may make such amendments to the
provisions of Section 27 of Schedule 9 as are required to implement
the recommendations referred to in Clause 56.1. Any such amendments
shall apply in respect of any Scheme Admission Application received
after the date such amendments become effective and shall constitute a
new Scheme.
56.3 Existing rights and obligations continue: Any Pool Member shall remain
entitled to the benefits and subject to the obligations of the Scheme
with respect to any Scheme Genset in effect at the time of admission
of that Scheme Genset to the Scheme.
<PAGE>
PART XIV
FUEL SECURITY
57. [Not used.]
58. PAYMENT INSTRUCTIONS
58.1 Effect of a Payment Instruction: Following delivery of a Payment
Instruction to the Pool Funds Administrator:-
58.1.1 any Fuel Security Payment specified in that Payment
Instruction (together with any Fuel Security Interest in
relation thereto) shall be treated as an amount which is due
to that Generator from those persons specified in that
Payment Instruction and which is payable on the basis
provided in that Payment Instruction; and
58.1.2 any Fuel Security Reimbursement specified in that Payment
Instruction (together with any Fuel Security Interest in
relation thereto) shall be treated as an amount which is due
from that Generator to those persons specified in that
Payment Instruction and which is payable on the basis
provided in that Payment Instruction; and
58.1.3 subject to Clauses 58.2 and 58.3, the Pool Funds
Administrator shall arrange for such Fuel Security Payment
or such Fuel Security Reimbursement (together with any Fuel
Security Interest in relation thereto) to be paid to or, as
the case may be, paid by that Generator by or, as the case
may be, to those persons specified in that Payment
Instruction in accordance with the provisions of such
Payment Instruction; and
58.1.4 such Payment Instruction (including any calculation,
determination or other matter stated or specified therein)
shall, save in the case of fraud, be conclusive and binding
upon all Parties.
58.2 Clarification: If the Pool Funds Administrator considers either that
the basis of payment of a Fuel Security Payment or a Fuel Security
Reimbursement provided for in a Payment Instruction is unclear,
contradictory or incomplete or that it is impossible to implement in
full the basis of payment provided for in a Payment Instruction, then
the Pool Funds Administrator must, promptly on becoming aware of the
same, notify the Director in reasonable detail of the same and, until
that matter is clarified, the Pool Funds Administrator shall only be
obliged to implement the payment specified in that Payment Instruction
to the extent that without clarification such implementation is
possible.
<PAGE>
58.3 Failure to specify or clarify: If a Payment Instruction fails to
specify the basis upon which the Fuel Security Payment or a Fuel
Security Reimbursement specified in that Payment Instruction must be
paid or if the Director fails to clarify any matter notified to it in
accordance with Clause 58.2 within ten Business Days of such
notification then the Pool Funds Administrator shall arrange for the
relevant payment to be made on such basis as the Executive Committee
shall, with the written approval of the Director, determine to be
appropriate.
59. RECORD KEEPING AND PAYMENTS
59.1 Fuel Security Ledgers:
59.1.1 Following delivery of a Payment Instruction to the Pool
Funds Administrator, the Pools Funds Administrator shall, if
he has not already done so, open and thereafter maintain a
Fuel Security Ledger in the name of that Generator and shall
record therein all amounts (together with any Fuel Security
Interest in relation thereto) due to and from that Generator
that are specified in Payment Instructions and shall also
record therein all transactions arranged by the Pool Funds
Administrator for payments to be made to and from that
Generator in accordance with the provisions of Payment
Instructions.
59.1.2 The Pool Funds Administrator shall from the time that a Fuel
Security Ledger is opened until it records a nil balance
provide to each Generator and to each Supplier on the last
Business Day of each calendar month a statement reflecting
all entries recorded in the Fuel Security Ledger of that
Generator over the course of the previous month.
59.1.3 The Fuel Security Ledger of a Generator shall, except as
required by Clause 59.1.2 or Part IX, be kept confidential
in accordance with Part XX.
59.1.4 Each monthly statement provided under Clause 59.1.2 shall,
save in the case of manifest error, be deemed prima facie
evidence of the contents of that part of the Fuel Security
Ledger to which it relates.
59.1.5 Each Party shall promptly review each monthly statement
provided to it under Clause 59.1.2 and shall (without
prejudice to any of its rights under this Agreement) where
practicable within ten Business Days after receiving each
such statement notify the Pool Funds Administrator of any
inaccuracies in such statement of which it is aware.
59.1.6 If the Pool Funds Administrator at any time receives from a
Generator or any Supplier a notice disputing the accuracy of
the Fuel Security Ledger of that Generator, the Pool Funds
Administrator shall consult with the Party giving the notice
and use all reasonable endeavours to rectify any inaccuracy.
In the event
<PAGE>
that any inaccuracy in a Fuel Security Ledger of a Generator
is rectified, the Pool Funds Administrator shall advise that
Generator and the Suppliers of the inaccuracy that was
rectified.
59.2 Fuel Security Payments: Following delivery to the Pool Funds
Administrator of a Payment Instruction specifying a Fuel Security
Payment, the Pool Funds Administrator shall enter in the Fuel Security
Ledger of that Generator as a credit (a) the amount of the Fuel
Security Payment, and (b) thereafter, any Fuel Security Interest in
relation thereto.
59.3 Fuel Security Reimbursements: Following delivery to the Pool Funds
Administrator of a Payment Instruction specifying a Fuel Security
Reimbursement, the Pool Funds Administrator shall enter in the Fuel
Security Ledger of that Generator as a debit (a) the amount of the
Fuel Security Reimbursement, and (b) thereafter, any Fuel Security
Interest in relation thereto.
59.4 Other Entries: Any amount paid to or, as the case may be, paid by a
Generator in accordance with the provisions of a Payment Instruction
shall be entered as a debit or, as the case may be, a credit in the
Fuel Security Ledger of that Generator.
59.5 Set off: The Pool Funds Administrator shall, unless it reasonably
believes that it would be unlawful to do so, from time to time where
possible set off any amounts shown as credits in the Fuel Security
Ledger of a Generator against any amounts shown as debits in the Fuel
Security Ledger of that Generator in the order in which they were
entered. Any balance shown in the Fuel Security Ledger of a Generator
shall, if it is a credit, be paid to or, if it is a debit, be paid by
that Generator to the extent that it relates to a Payment Instruction
on the basis provided for in that Payment Instruction. The
entitlements and liabilities of a Generator (and the corresponding
liabilities and entitlements of the respective debtors and creditors
of that Generator) shall, to the extent that they have been set off as
aforesaid, be deemed satisfied and extinguished.
59.6 Schedule 11: All payments made to or by any Generator in accordance
with the provisions of a Payment Instruction shall, subject to any
contrary instruction contained in the provisions of a Payment
Instruction, be effected by the Pool Funds Administrator through the
Banking System and the Billing System established in accordance with
Schedule 11.
<PAGE>
PART XV
STAGE 1 METERING
60. STAGE 1 METERING
60.1 Introduction:
60.1.1 This Part XV and Schedule 21 set out the rights and
obligations of each Party regarding the accurate measurement
using Stage 1 Metering Systems of electricity traded under
this Agreement.
60.1.2 Schedule 28 sets out the rights and obligations of each
Party regarding the accurate measurement using Stage 2
Metering Systems of electricity traded under this Agreement.
60.2 General:
60.2.1 For the purposes of this Agreement the quantities of Active
Energy and Reactive Energy Exported or Imported by Parties
and in respect of which Settlement takes place within Stage
1 Settlement shall be measured and recorded through Metering
Equipment installed, operated and maintained and otherwise
provided for as set out in this Part XV and in Schedule 21.
Each Generating Unit (excluding for this purpose Generation
Trading Blocks) which is subject to Central Despatch shall
have separate Metering Equipment.
60.2.2 Each Party is required to register or procure that there is
registered with the Settlement System Administrator a Stage
1 Metering System at each Site which is of a type listed in
Clauses 60.2.3(i) to (vii) (inclusive) below (and, in the
case of Sites of the type listed in Clauses 60.2.3(vi) and
(vii), which fulfil the conditions therein specified) and
where such Party Exports or Imports electricity except where
such electricity is not sold or purchased in accordance with
the Pool Rules.
60.2.3 With effect from the relevant GSP Group Implementation Date
a Metering System may be registered as a Stage 1 Metering
System only if that Metering System is at a Site which is:-
(i) a Grid Supply Point; or
(ii) a point of connection with a Generator; or
(iii) a point of connection with an External Pool
Member; or
<PAGE>
(iv) a point of connection between Distribution
Systems; or
(v) a point of connection with a Non-Embedded
Customer; or
(vi) at premises which are 100kW Premises in
circumstances where the relevant Metering System
was registered in ERS in accordance with this Part
XV before the relevant GSP Group Implementation
Date and then only for so long as that Metering
System continues to be registered; or
(vii) a point of connection with a Stage 1 Non-Pooled
Generator in circumstances where the relevant
Metering System was registered in ERS in
accordance with this Part XV before the relevant
GSP Group Implementation Date and then only for so
long as that Metering System continues to be
registered,
provided that the Executive Committee shall have the
absolute discretion at any time and from time to time to
require or permit any Metering System which is (a) at
premises which are 100kW Premises or (b) a point of
connection with a Stage 1 Non-Pooled Generator to be
registered as a Stage 1 Metering System even if it was not
registered in ERS before the relevant GSP Group
Implementation Date.
60.3 Registrants:
60.3.1 A Stage 1 Metering System shall have a Registrant and
Operator (and shall be commissioned in accordance with the
relevant Code of Practice) before the Settlement System
Administrator is required to take such Stage 1 Metering
System and the data derived therefrom into account for the
purposes of Settlement.
60.3.2 (a) A PES shall act as the Registrant in accordance
with Clause 60.3.1 of any and all Stage 1 Metering
Systems at Sites which are points of connection
between the Distribution System of that PES and
the NGC Transmission System.
(b) In relation to a Stage 1 Metering System at a Site
which is a point of connection between two or more
Distribution Systems, the Public Electricity
Suppliers which own or operate those Distribution
Systems shall agree between themselves and shall
nominate the Registrant of such Stage 1 Metering
System in accordance with the relevant Agreed
Procedure.
60.3.3 Each Stage 1 Metering System (and the identities of its
respective Registrant and Operator) which the Settlement
System Administrator shall take into
<PAGE>
account for the purposes of Stage 1 Settlement shall be as
set out, for the time being and from time to time, in the
Register.
60.3.4 A Registrant's role in relation to a Stage 1 Metering System
under this Agreement shall continue until:-
(i) such Registrant ceases to be a Party or another
Party complying with the definition of Registrant
accepts such role as Registrant in accordance with
the provisions of this Agreement by service of a
duly completed notice in the form prescribed by
the relevant Agreed Procedure (but without
prejudice to any accrued liabilities of the
previous Registrant); or
(ii) the Plant or Apparatus of the Registrant, in
respect of such Stage 1 Metering System, ceases to
be connected at the relevant Site (as indicated in
the notification to the Settlement System
Administrator in the form prescribed by the
relevant Agreed Procedure); or
(iii) the Metering System is registered in a PES
Registration Service as a Stage 2 Metering System.
60.3.5 The Settlement System Administrator shall inform the
relevant Host PES of:-
(i) the identity of any new Registrant; and
(ii) any change in the identity of any existing
Registrant,
of a Stage 1 Metering System in respect of which that Public
Electricity Supplier is Host PES, after such change is
notified to the Settlement System Administrator in
accordance with the terms of this Agreement, and the Host
PES may only use such information for the purposes of the
operation of the Distribution System and the calculation of
charges for use of and connection to the Distribution
System.
60.3.6 There must always be one and, at any point in time, no more
than one Registrant for each Stage 1 Metering System which
is registered with the Settlement System Administrator.
60.3.7 Any notice of a new, or of a change in an existing,
Registrant, Equipment Owner, Operator, Stage 1 Customer,
Stage 1 Non-Pooled Generator or Host PES or any Form of
Acknowledgement required under this Part XV or Schedule 21
shall be in such form and given to such person at such
time(s) and accompanied by payment of such fees (if any) as
is prescribed by the relevant Agreed Procedures.
<PAGE>
60.3.8 If, other than by reason of the fault or negligence of the
Settlement System Administrator, a Stage 1 Metering System
ceases to have a Registrant who is not replaced as
Registrant in relation to the relevant Metering System, the
Settlement System Administrator shall not be obliged to take
the relevant Stage 1 Metering System into account for the
purposes of Stage 1 Settlement. The Settlement System
Administrator shall forthwith notify the Host PES and the
Executive Committee that it will not be taking such Stage 1
Metering System into account for the purposes of Stage 1
Settlement and the Parties shall comply with any directions
given by the Director in this matter.
60.3.9 A Registrant may not resign or retire as Registrant except
in accordance with Clause 60.3.4.
60.3.10 The Registrant in respect of any Stage 1 Metering System
shall provide to the Settlement System Administrator such
information as may be required by the relevant Agreed
Procedures.
60.3.11 The Settlement System Administrator shall not enter on the
Register in respect of a Stage 1 Metering System a
Registrant in respect of which evidence of consent of the
Equipment Owner has not been provided in accordance with the
relevant Agreed Procedure.
60.3.12 A Stage 1 Metering System for recording the output of a
Stage 1 Non-Pooled Generator must be capable of being
identified separately for the purposes of Stage 1 Settlement
from any Stage 1 Metering System recording demand. For the
avoidance of doubt, it is acknowledged that one set of
Metering Equipment may comprise more than one
separately-identified Stage 1 Metering System.
60.4 Operators:
60.4.1 There must always be one and, at any point in time, no more
than one Operator for each Stage 1 Metering System which is
registered with the Settlement System Administrator. A
replacement Operator of such Stage 1 Metering System may be
appointed from time to time in accordance with the
provisions of this Part XV, Schedule 21 and the relevant
Agreed Procedure.
60.4.2 All Stage 1 Metering Systems at the site of a Stage 1
Non-Pooled Generator, which contain all or any part of the
same Metering Equipment, must have the same Operator.
60.4.3 Any notice of a new Operator or of a change in Operator
(including upon resignation, removal or cessation in
accordance with the provisions of Schedule 21) or any Form
of Acknowledgement required under this Part XV or Schedule
21 shall be in such form and given to such person at such
time(s) and
<PAGE>
accompanied by payment of such fees (if any) as is
prescribed by the relevant Agreed Procedures. Where any
Meter Operator Party has not acknowledged its appointment as
Operator the Settlement System Administrator shall notify
the Registrant in accordance with the relevant Agreed
Procedure.
60.4.4 The Registrant in respect of a Stage 1 Metering System shall
ensure that there is appointed from time to time an
Operator, which is a Meter Operator Party, in accordance
with, and for the purposes of, Schedule 21 as Operator in
respect of that Stage 1 Metering System.
60.4.5 If a person which is an Operator in respect of any Stage 1
Metering System ceases to be an Operator in respect thereof
for whatever reason (including upon removal or resignation)
or ceases to be a Meter Operator Party (including upon
removal or resignation) and there has not been appointed, at
that time, a replacement Operator in respect of the relevant
Stage 1 Metering System(s) in accordance with the provisions
of this Part XV and Schedule 21, such person's
responsibilities as Operator of such Metering Equipment
shall upon such cessation be assumed by the Registrant in
respect of such Metering Equipment who shall be deemed to be
the Operator therefor (notwithstanding that it shall not be
registered as such by the Settlement System Administrator)
in accordance with the provisions of this Clause (the
"deemed Operator").
60.4.6 If a person which is an Operator in respect of any Stage 1
Metering System at the site of a Stage 1 Non-Pooled
Generator ceases to be an Operator in respect thereof for
whatever reason (including upon removal or resignation) or
ceases to be a Meter Operator Party (including upon removal
or resignation) and there has not been appointed, at that
time, a replacement Operator in respect of the relevant
Stage 1 Metering System(s) in accordance with the provisions
of this Part XV and Schedule 21, such person's
responsibilities as Operator of the relevant Metering
Equipment shall upon such cessation be assumed by the
Registrant of the Stage 1 Metering System registered for
supply with respect to such Metering Equipment. Such
Registrant shall be deemed to be the Operator therefor
(notwithstanding that it shall not be registered as such by
the Settlement System Administrator) in accordance with the
provisions of this Clause (the "deemed Operator").
60.4.7 As soon as any Registrant has reasonable grounds to believe
that an Operator of any Stage 1 Metering System in respect
of which it is the Registrant has ceased to act as Operator
therefor in accordance with substantially all of its
responsibilities as set out in Schedule 21 it shall remove
such Operator in respect of such Stage 1 Metering System in
accordance with sub-section 6.1 of Schedule 21.
<PAGE>
60.4.8 If the Settlement System Administrator has reasonable
grounds to believe that an Operator of any Stage 1 Metering
System has ceased to act as Operator therefor in accordance
with substantially all of its responsibilities as set out in
Schedule 21 the Settlement System Administrator shall notify
the Registrant in accordance with the relevant Agreed
Procedure.
60.4.9 Any Registrant which is deemed to be the Operator of a Stage
1 Metering System pursuant to the provisions of Clause
60.4.5 or 60.4.6 shall, subject to Clauses 60.4.10 and
60.4.11, continue to act as the Operator in respect of any
Stage 1 Metering System to which that Clause applies, or
shall appoint an agent or contractor which shall continue to
act as the Operator in respect of such Stage 1 Metering
System, for a period of 10 Business Days (which shall
commence at the time of the cessation referred to in Clause
60.4.5 or, as the case may be, 60.4.6) or, if a new Operator
is registered in respect of that Stage 1 Metering System
prior to the expiry of that period, for a period ending on
the date of such registration.
60.4.10 If a Registrant to which Clause 60.4.9 applies does not act
as Operator in accordance with the provisions thereof or
does not appoint an agent or contractor who shall act as
Operator, or if the 10 Business Day period referred to in
Clause 60.4.9 shall expire without a replacement Operator
being registered with the Settlement System Administrator in
respect of that Stage 1 Metering System in accordance with
Section 4 of Schedule 21, that Registrant shall:-
(i) undertake to cease forthwith to supply or to
generate or to take a supply of electricity for
the purposes of the sale or acquisition of
electricity pursuant to this Agreement at the Site
where such supply or generation is measured,
recorded and communicated to the Settlement System
Administrator by that Stage 1 Metering System;
(ii) notify the Settlement System Administrator in
accordance with the relevant Agreed Procedure of
that fact; and
(iii) comply with any directions given by the Director
in this matter.
<PAGE>
60.4.11 During the period in which a Registrant is the deemed
Operator in accordance with this Clause it shall be required
(save only as expressly provided to the contrary in this
Agreement or in any directions provided by the Director
under Clause 60.4.10(iii)) to comply with the requirements
of this Part XV and Schedule 21 as Operator provided that,
but without prejudice to any liability to pay for Active
Energy or Reactive Energy traded by it in its capacity as a
Supplier, such Registrant as deemed Operator:-
(i) shall not be required to be registered as Operator
with the Settlement System Administrator nor to
comply with the prescribed conditions for
registration as Operator from time to time in
accordance with the provisions of Schedule 21; and
(ii) shall not at any time when it is the deemed
Operator be required to incur significant capital
expenditure in the fulfilment of obligations
contained in this Part XV or Schedule 21 where:-
(a) the Metering Equipment shall have become
defective, inaccurate or in want of
repair (the "defective Metering
Equipment") as a direct consequence of
the act or omission of any previous
Operator; and
(b) the Registrant shall upon becoming aware
of the same have taken all steps to
cease forthwith to supply or to generate
electricity for the purposes of the sale
or acquisition of electricity pursuant
to this Agreement at or in relation to
the Site where such supply or generation
is measured, recorded and communicated
to the Settlement System Administrator
by the defective Metering Equipment; and
(c) the Registrant shall have notified the
Settlement System Administrator in
accordance with the relevant Agreed
Procedure of the fact that the supply or
generation has ceased.
Where (x) the Settlement System Administrator proposes to
exercise its right under Section 18 of Schedule 21 to
replace, renew or repair the defective Metering Equipment
(the "remedial work"); (y) the exercise of such right would
result in the incurring of significant capital expenditure;
and (z) the Register indicates that such Registrant is
acting as deemed Operator, the Settlement System
Administrator shall notify the Registrant before undertaking
such remedial work and shall give such Registrant the
opportunity to comply with paragraphs (ii)(b) and (c) above
before commencing such remedial work.
<PAGE>
60.5 Maintenance of Register and documents:
60.5.1 The Settlement System Administrator shall keep a register
recording:-
(i) each Stage 1 Metering System which is accepted for
the purposes of Stage 1 Settlement;
(ii) the respective identities in respect of each such
Stage 1 Metering System of:-
(a) the Registrant;
(b) the Operator;
(c) the Equipment Owner;
(d) the Host PES (where applicable);
(e) any Stage 1 Customer or Stage 1
Non-Pooled Generator in respect of a
supply to which that Stage 1 Metering
System is being used; and
(f) any agent which may be appointed from
time to time by the Settlement System
Administrator for the purpose of data
collection or, where appropriate, of any
Second Tier Agent in respect of such
Stage 1 Metering System or, where the
Settlement System Administrator does not
appoint or have currently appointed such
agent or Second Tier Agent in respect of
a Stage 1 Metering System, a note to
this effect;
(iii) loss adjustment details whether by meter biasing
or by software;
(iv) whether the Metering Equipment comprising a Stage
1 Metering System is the subject of a dispensation
agreed in accordance with Section 14 of Schedule
21; and
(v) the relevant Code(s) of Practice in respect of
such Stage 1 Metering System.
60.5.2 For the purposes of this Agreement, the Settlement System
Administrator shall refer only to the Register to identify
the Registrant, Operator, Equipment Owner, Host PES, Stage 1
Customer, Stage 1 Non-Pooled Generator, agent or Second Tier
Agent referred to in Clause 60.5.1 relating to each Stage 1
Metering System and shall not be obliged to acknowledge or
be bound by any
<PAGE>
other agreement or arrangement entered into by any
Registrant, Operator, Equipment Owner, Host PES, Stage 1
Customer or Stage 1 Non-Pooled Generator.
60.5.3 The Settlement System Administrator shall keep the Register
up to date, noting changes to Registrants, Operators,
Equipment Owners, Host PESs, Non-Embedded Customers, Stage 1
Customers, Stage 1 Non-Pooled Generators, Metering
Equipment, dispensations and any Site disconnections as
notified to it pursuant to this Agreement and any changes to
any agent or Second Tier Agent. The Settlement System
Administrator shall also record in the Register any other
information regarding each Stage 1 Metering System as may be
reasonably required by the Executive Committee.
60.6 Communication links and central collector stations:
60.6.1 The Settlement System Administrator shall collect (or
procure the collection of) and estimate data relating to
quantities of Active Power and Reactive Power Imported or
Exported by any Party as may be required for the proper
functioning of Stage 1 Settlement in accordance with the
provisions of this Clause 60.6.
60.6.2 The Settlement System Administrator shall collect or procure
the collection of all such data referred to in Clause 60.6.1
as is available from Outstations either by means of remote
interrogation or by means of manual on-site interrogation.
60.6.3 (a) For the purposes of remote interrogation the
Settlement System Administrator shall enter into,
manage and monitor contracts or other arrangements
to provide for the maintenance of all
communication links by which information is passed
from Outstations to the Settlement System
Administrator or its agent other than exchange
links which form part of Communications Equipment.
(b) In the event of any fault or failure of any
communication link or any error or omission in
such data or all necessary data not being
available from Outstations the Settlement System
Administrator shall collect or procure the
collection of such data by manual on-site
interrogation in accordance with the relevant
Agreed Procedures.
60.6.4 The Settlement System Administrator shall be responsible for
the installation and maintenance of central collector
stations.
60.6.5 The Settlement System Administrator shall collect or procure
the collection of data for the purposes of Stage 1
Settlement from Embedded Generators, Suppliers, operators of
any electricity distribution system which is directly
<PAGE>
connected to the NGC Transmission System (not being a
Distribution System), Stage 1 Customers, Stage 1 Non-Pooled
Generators and inter-Distribution System connections in
accordance with the relevant Agreed Procedures.
60.6.6 The obligation to maintain communications links in respect
of Metering Equipment shall not apply where and with effect
from the date on which a person receiving a supply of or
generating electricity recorded by such Metering Equipment
ceases to be a Stage 1 Customer, a Stage 1 Non-Pooled
Generator, a Generator or a PES.
60.6.7 With effect from 1st April, 1998 the Registrant in relation
to a Metering System which is registered in ERS shall pay
the Settlement System Administrator in accordance with the
Charging Procedure the following amounts which in each case
are set out in the Menu of ERS Metering Prices (as referred
to in the definition of "Menus of Prices" in the Appendix to
Schedule 4):-
(i) the amount of any costs which are incurred by the
Settlement System Administrator:-
(a) resulting from the absence of any
Communications Equipment relating to
such Metering System; or
(b) in respect of an ad hoc validation test
carried out at the request of the
Operator of such Metering System; or
(ii) the amount by which data collection costs incurred
by the Settlement System Administrator in respect
of a Metering System which is registered in ERS
comprising Communications Equipment and which
includes Cellnet remote interrogation equipment
exceed the data collection costs which would have
been incurred by the Settlement System
Administrator in respect of such Metering System
if the Metering System comprised Communications
Equipment which did not include Cellnet remote
interrogation equipment.
60.7 Class rights:
60.7.1 The levels of accuracy for Metering Equipment at points of
connection of Stage 1 Customers and at new points of
connection between two or more Distribution Systems shall be
as specified by the Executive Committee subject to the
consent of any relevant class of Pool Members.
60.7.2 The levels of accuracy for Metering Equipment at points of
connection of Stage 1 Non-Pooled Generators shall be as
specified by the Executive Committee subject to the consent
of any relevant class of Pool Members.
<PAGE>
60.7.3 Any change to the standards of accuracy of Metering
Equipment required for Stage 1 Non-Pooled Generators shall
be a change to the class rights of Suppliers.
60.8 Sealing: Metering Equipment comprising a Stage 1 Metering System shall
be as secure as is practicable in all the circumstances and for this
purpose:-
(i) all such Metering Equipment shall comply with the relevant
Agreed Procedure; and
(ii) the Executive Committee and the Settlement System
Administrator shall regularly review Agreed Procedures for
security arrangements in relation to such Metering
Equipment.
60.9 Discrepancies between meter advance and half hourly value totals: The
Parties acknowledge that, in transmitting metered data, impulses
representing quantities of electricity may be lost between the
relevant Meter and the Outstations giving rise to inaccuracies in half
hourly values notwithstanding that Metering Equipment comprising a
Stage 1 Metering System is complying with the standards required by
this Agreement. In such circumstances any differences between
electricity flows recorded on Meters and the total of the half hourly
values recorded in the Stage 1 Settlement System will be noted at the
time that the Meter is inspected and read by the Settlement System
Administrator pursuant to Section 10 of Schedule 21 and will be dealt
with as provided in the relevant Agreed Procedure. In any other
circumstances where Metering Equipment comprising a Stage 1 Metering
System is not complying with the standards required by this Agreement
such difference will be dealt with in accordance with Section 11 of
Schedule 21.
60.10 Meter Failure:
60.10.1 If at any time any Metering Equipment comprising a Stage 1
Metering System ceases to function or is found to be outside
the prescribed limits of accuracy referred to in paragraph
7.3.1 of Schedule 21 for whatever reason then, except in the
circumstances referred to in Clause 60.10.2:-
(i) in the case of such Metering Equipment ceasing to
function, during the period from the date of such
cessation; or
(ii) in any other case, during the period from the time
when such inaccuracy first occurred or, if such
time is unknown, from the midnight preceding the
day during which the disputed reading occurred,
until, in either such case, the date of adjustment,
replacement, repair or renewal of such Metering Equipment
under sub-section 8.4 of Schedule 21, the
<PAGE>
meter readings shall be deemed to be those calculated
pursuant to the relevant Agreed Procedure.
60.10.2 If at any time a voltage transformer fuse on a circuit
supplying a Meter fails with the result that the Metering
Equipment comprising a Stage 1 Metering System is outside
the prescribed limits of accuracy referred to in paragraph
7.3.1 of Schedule 21, the meter readings from the time the
failure is deemed to have occurred until the voltage
transformer circuit is again restored to that Meter shall be
deemed to be those calculated pursuant to the relevant
Agreed Procedure. A failure shall be deemed to have occurred
at the point in time provided for in the relevant Agreed
Procedure.
60.11 Disputes:
60.11.1 Any dispute regarding the accuracy of data recorded or
transmitted by Metering Equipment comprising a Stage 1
Metering System in respect of any Settlement Day which is to
be used for the purposes of Stage 1 Settlement and where the
purpose of the resolution of such dispute is solely to
affect payments arising from a Settlement Run shall, if
there is a relevant Agreed Procedure, be dealt with in
accordance with such Agreed Procedure. If, having exhausted
such Agreed Procedure, any Party is not satisfied with the
outcome, such Party may refer the matter to the Executive
Committee. If there shall be no relevant Agreed Procedure,
such dispute shall be referred to the Executive Committee.
If, in either case, any Party is not satisfied with the
decision of the Executive Committee, the matter may be
referred by such Party to arbitration in accordance with
Clause 83.
60.11.2 Any dispute regarding Metering Equipment comprising a Stage
1 Metering System (other than a dispute referred to in
Clause 60.11.1) shall be referred to the Executive
Committee. If any Party is not satisfied with the decision
of the Executive Committee, the matter may be referred by
such Party to arbitration in accordance with Clause 83.
60.11.3 It is hereby expressly acknowledged and agreed by the
Parties that the resolution of any dispute referred to in
Clause 60.11.1 or 60.11.2 shall in all cases be without
prejudice to the bringing or pursuing of any claim, by or
against, or the resolving of any issue between any one or
more of such Parties or any other Party arising out of the
same facts or circumstances, or facts or circumstances
incidental to the facts and circumstances giving rise to
such dispute, or upon the basis of which such dispute has
been resolved, in favour of, or against, a Meter Operator
Party or Meter Operator Parties.
60.11.4 Upon the request of any Party which is a party to a dispute
referred to in Clause 60.11.1 or 60.11.2 any relevant data
derived from Metering Equipment
<PAGE>
comprising a Stage 1 Metering System may be submitted by the
Settlement System Administrator to the body then having
jurisdiction in respect of the relevant dispute for the
purposes of resolving such dispute.
60.12 Information:
60.12.1 If a Pool Member or Party intends to make or provide or make
a significant alteration to a connection to the NGC
Transmission System or to a Distribution System which
connection is of 100MW or more in capacity and which may
require a new Stage 1 Metering System to be registered into
the Stage 1 Settlement System or which may require a
significant change to a Stage 1 Metering System to be
registered into the Stage 1 Settlement System or which may
have any other significant effect on Stage 1 Settlement, the
Pool Member or Party shall inform the Settlement System
Administrator as soon as possible and, in any event, not
later than three months prior to the date on which the Pool
Member or Party expects to make or provide the connection or
change. Such information will be regarded as confidential to
the Pool Member or Party providing it, and will be used by
the Settlement System Administrator only for the purpose of
preparing the Stage 1 Settlement System to take account of
the Stage 1 Metering System when it is registered.
60.12.2 Any information regarding or data acquired by the Settlement
System Administrator or its agent from Metering Equipment
comprising a Stage 1 Metering System at any Site which is a
point of connection to a Distribution System shall, and may,
be passed by the Settlement System Administrator or its
agent to the operator of the relevant Distribution System.
The said operator of the relevant Distribution System may
only use the same for the purposes of the operation of the
Distribution System and the calculation of charges for use
of and connection to the Distribution System.
60.13 Ownership of Metering Data, access, use and use of Communications
Equipment:
60.13.1 The Registrant of any Stage 1 Metering System shall own the
data acquired therefrom provided that it shall not exercise
its rights in relation to such data in such a way as to
interfere with the operation of either Stage 1 Settlement or
Stage 2 Settlement. Each Registrant hereby expressly agrees
and acknowledges that a Stage 1 Customer or Stage 1
Non-Pooled Generator of that Registrant in respect of which
such data is generated shall be entitled at all times
without charge by the Registrant to access, obtain and use
such data provided that:-
(i) such access, obtaining or use, or the method of
such access, obtaining or use, does not interfere
with the operation of either Stage 1 Settlement or
Stage 2 Settlement;
<PAGE>
(ii) nothing in this Clause 60.13.1 shall require the
Registrant actively to provide such data to such
Stage 1 Customer or Stage 1 Non-Pooled Generator
or so to provide such data free of charge; and
(iii) such access shall not be by using any
communications link used by the Settlement System
Administrator for the purposes of Clause 60.6
without the prior written consent of the
Settlement System Administrator.
60.13.2 The Settlement System Administrator and, for the purposes of
the performance by the Pool Auditor of its functions under
Part IX, the Pool Auditor are hereby authorised to use all
data which is owned by the Registrant pursuant to Clause
60.13.1 as may be permitted pursuant to this Agreement, and
the Settlement System Administrator or, as the case may be,
the Pool Auditor may only release such data to others to the
extent set out in this Agreement. It is hereby expressly
agreed that the Settlement System Administrator is permitted
to and shall against request and payment of a reasonable
charge therefor release to a Stage 1 Customer or Stage 1
Non-Pooled Generator such data relating to it as is referred
to in Clause 60.13.1.
60.13.3 Communications Equipment need not be dedicated exclusively
to the provision of data to the Settlement System
Administrator for the purposes of Stage 1 Settlement
provided that any other use shall not interfere at any time
with the operation of either Stage 1 Settlement or Stage 2
Settlement and subject also to the relevant provisions (if
any) in the Tariff.
60.14 Ancillary Services: Until the RP Date, the Ancillary Services Provider
shall be entitled at its own cost and expense (which shall not be
charged or recharged to Pool Members) to prepare and submit to the
Suppliers in separate class meeting a works programme relating to the
method of recovery from Pool Members for the supply of Reactive Energy
by reference to the actual amount of Reactive Energy consumed by Pool
Members as measured by MVAr Metering Equipment at each relevant Site,
and, if approved by the Suppliers in separate class meeting, such
works programme shall be deemed to be an approved Works Programme for
all purposes of this Agreement and the provisions of Clauses 5.13 and
5.14 shall apply mutatis mutandis.
60.15 Appointment of Agents by Settlement System Administrator:
Notwithstanding the provisions of paragraph 7.2.2 of Schedule 4 the
Settlement System Administrator may appoint one or more agents to
perform any or all of its obligations under this Part XV and Schedule
21.
<PAGE>
60.16 Appointment of Second Tier Agents by Settlement System Administrator
with effect from 31st March, 1994:
60.16.1 If, for the purposes of Clause 60.15, the Settlement System
Administrator appoints one or more agents for the purpose of
carrying out the obligations of the Settlement System
Administrator under or in connection with this Part XV or
Schedule 21 in relation to Stage 1 Metering Systems referred
to in Clauses 60.2.3(vi) and 60.2.3(vii) as the Settlement
System Administrator may direct, then the provisions of
Clauses 60.16.1 to 60.16.5 (inclusive) and Clause 60.17
shall, inter alia, apply to such arrangements.
60.16.2 The Settlement System Administrator shall, prior to
appointing any Second Tier Agent pursuant to Clause 60.15,
consult with the Executive Committee as to the
appropriateness of the appointment of such Second Tier Agent
and the terms upon which, if appropriate, such agent is to
be appointed and shall have due regard to the wishes
expressed pursuant to this Clause 60.16.2 by the Executive
Committee.
60.16.3 The Settlement System Administrator shall use reasonable
endeavours to procure that each Second Tier Agent shall
promptly and properly input data and other information as it
may receive pursuant to the terms of its appointment into
its Second Tier Computer Systems and shall review and
validate data and other information in accordance with the
relevant Agreed Procedures to establish the completeness
thereof and to identify any inconsistencies therein.
60.16.4 The Settlement System Administrator shall use reasonable
endeavours to procure that each Second Tier Agent shall keep
secure and confidential and not disclose, during the period
of its appointment or following its resignation or removal,
information, data and documentation obtained by the Second
Tier Agent in such capacity so as to cause a breach by the
Settlement System Administrator of its obligations pursuant
to Clause 68.
60.16.5 The Settlement System Administrator shall use reasonable
endeavours to procure that upon the reasonable request of
the Settlement System Administrator and in any event upon
the removal or resignation of any Second Tier Agent, such
Second Tier Agent shall make over to the Settlement System
Administrator or its nominee all such records, manuals and
data and other information in the ownership or under the
control of the Second Tier Agent and relating to the
operation, and necessary for the proper functioning, of the
Second Tier Data Collection System.
<PAGE>
60.17 [Not used.]
60.18 Software for FMS: The Settlement System Administrator shall use and
run appropriate computer software for the purposes of collecting and
aggregating data in connection with Stage 1 Settlement following the
FMS Date.
60.19 Obligation on Suppliers to install half-hourly metering and register
above 100kW customers: Each Supplier shall use all reasonable
endeavours to ensure that half-hourly metering and the necessary
communications links are installed in respect of all Embedded
Non-Franchise Sites (as defined in this Agreement immediately prior to
the date on which this bracketed phrase first takes effect) in respect
of which it is Supplier by no later than 1st October, 1997 and that
all Metering Systems associated with such Embedded Non-Franchise Sites
are registered in ERS by no later than 31st December, 1997, in
accordance with the approach specified by the Executive Committee
provided that there shall be no obligation to install metering and
communications links in respect of sites relating to Equivalent
Unmetered Supplies and provided further that, without prejudice to any
accrued rights and liabilities of any Party, this Clause 60.19 shall
cease to be of any effect on and from the date of completion of the
transfer of all Metering Systems relating to Stage 1 Customers from
ERS to the PES Registration Services.
60.20 Unmetered Supplies: The Parties shall comply with their respective
obligations under Agreed Procedure AP140 in relation to unmetered
supplies of electricity.
<PAGE>
PART XVI
POOL CIVIL EMERGENCIES
61. POOL CIVIL EMERGENCIES
61.1 [Not used.]
61.2 APPLICATION AND STATEMENT OF INTENT
61.2.1 General Statement of Intended Application: It is intended
that this Part shall apply where there is in existence an
event, or series of events which does or do not generally
occur as part of normal market operating conditions and
which affect(s) the operation of the market for the
generation, transmission and/or supply of electricity in
England and Wales and which, as a result, cause(s) or is or
are likely to cause materially changed pool prices to arise
and continue (a "Pool Civil Emergency"). The following
conditions set out in this Part are intended to reflect the
circumstances in which it is envisaged that it would likely
be the case that such event or events shall have so
occurred.
61.2.2 Interrelationship with Act: The Act and the Energy Act 1976
contain legislation conferring wide powers upon the
Secretary of State to regulate the generation, transmission
and/or supply of electricity in an emergency. It is intended
that the provisions of this Part shall coexist in
application with such legislation.
61.3 CONDITIONS FOR EXISTENCE OF A POOL CIVIL EMERGENCY
61.3.1 Determination of a Pool Civil Emergency: A Pool Civil
Emergency shall exist upon any resolution to that effect
passed by the Executive Committee in accordance with the
provisions of this Part whereafter, subject to the following
provisions of this Part, a Pool Civil Emergency Period shall
commence.
61.3.2 Conditions: The Executive Committee shall resolve that a
Pool Civil Emergency exists only if it has formed the
opinion that a Pool Civil Emergency Event has occurred. A
Pool Civil Emergency Event shall occur whenever:-
(a) materially changed pool prices exist or are likely
to exist and, in either case, are likely to
continue; and
<PAGE>
(b) such materially changed pool prices are the direct
result of any one or more of the following:-
(i) a major failure affecting the operation
of the NGC Transmission System;
(ii) a major operational failure of one or
more Distribution Systems; or
(iii) an inability of any Generator to
generate or the loss of generating plant
availability of any Generator; and
(c) the event within (i), (ii), or as the case may be,
(iii) of paragraph (b) above has itself resulted
from any one or more of the following:-
(i) any action taken by or on behalf of Her
Majesty's Government pursuant to and in
accordance with the emergency provisions
set out in sections 1 to 4 of the Energy
Act 1976 or section 96 of the Act;
(ii) any act, order, regulation, direction or
directive, legislation or restraint of
Parliament or any governmental
authority, or agent or instrument of the
foregoing;
(iii) any act of public enemy or terrorist,
act of war or hostilities (whether
declared or undeclared), threat of war
or hostilities, blockade, revolution,
riot, insurrection, civil commotion or
unrest or demonstration;
(iv) any strike, lock-out or other industrial
action;
(v) any act of sabotage or vandalism;
(vi) lightning, earthquake, hurricane, storm,
fire, flood, drought, accumulation of
snow or ice, or any other extreme
weather or environmental condition; or
(vii) any other event provided that in such a
case any resolution of the Executive
Committee determining that a Pool Civil
Emergency exists must be carried by a
majority of not less than 75 per cent.
of the Total Weighted Votes of all
Committee Members entitled to vote at a
meeting of the Executive Committee
whether or not present.
<PAGE>
61.4 CONDITIONS FOR EXISTENCE OF A POOL RULES CIVIL EMERGENCY PERIOD
Pool Rules Civil Emergency Period: A Pool Rules Civil Emergency Period
shall, subject to the following provisions of this Part, commence as
part of a Pool Civil Emergency Period whenever (i) a Pool Civil
Emergency Period is current and (ii) the Pool Rules Civil Emergency
Condition is satisfied and (iii) Section 28 of Schedule 9 is not in
effect.
61.5 PROCEDURE FOR INITIATION OF A POOL CIVIL EMERGENCY PERIOD AND
COMMENCEMENT OF A POOL RULES CIVIL EMERGENCY PERIOD
61.5.1 Right to requisition:
(a) Each Pool Member, the Settlement System
Administrator, the Grid Operator, the Director and
the Secretary of State shall have the several
right to have convened a special meeting of the
Executive Committee for it to consider whether a
Pool Civil Emergency exists (and accordingly
whether a Pool Civil Emergency Period is to
commence).
(b) To requisition a meeting of the Executive
Committee the relevant Party, the Director or, as
the case may be, the Secretary of State shall
notify in writing:-
(i) in the case of a Pool Member, its
appointed Committee Member, the Pool
Chairman or the Chief Executive; and
(ii) in the case of the Settlement System
Administrator, the Grid Operator, the
Director or the Secretary of State, the
Pool Chairman or the Chief Executive,
that it wishes such a meeting to be convened
giving as full an explanation as it is able of the
event or events which it believes constitute(s)
the relevant Pool Civil Emergency Event.
(c) Upon receipt of a written requisition in
accordance with (b), the relevant Committee
Member, the Pool Chairman or, as the case may be,
the Chief Executive shall convene a special
meeting of the Executive Committee in accordance
with Clause 18 to take place within 48 hours after
receipt of such requisition, and the provisions
relating to notice periods in Clause 18 shall be
varied for the purposes of this Part accordingly.
61.5.2 Initiation by the Executive Committee:
Pool Civil Emergency Period: If the Executive Committee
shall resolve that a Pool Civil Emergency exists then,
subject to the right of veto in Clause 61.5.7
<PAGE>
being exercised, a Pool Civil Emergency Period shall
commence upon the expiry of the time limit for the exercise
of such veto and shall continue until terminated in
accordance with Clause 61.7.
61.5.3 Pool Rules Civil Emergency Period:
(a) Commencement: A Pool Rules Civil Emergency Period
shall, subject to the right of veto in (b) below
and in Clause 61.5.7 being exercised, commence in
accordance with Clause 61.4 at the expiry of the
period for the exercise of the Executive
Committee's veto in (b) below and shall continue
until terminated in accordance with the provisions
of Clause 61.7.
(b) Executive Committee's Right of Veto: The Executive
Committee shall have the right to veto the
commencement of a Pool Rules Civil Emergency
Period by the passing of a resolution to that
effect carried by a majority of not less than 65
per cent. of the Total Weighted Votes of all
Committee Members entitled to vote at such meeting
whether or not present, provided that the
Executive Committee shall only be able to exercise
such right of veto prior to the Relevant Time
relative to the time at which the Secretary
receives a notification given by the Settlement
System Administrator pursuant to Clause 61.5.4.
(c) Effect of Veto: Where the Executive Committee
exercises its right of veto in accordance with
paragraph (b) above, the relevant Pool Rules Civil
Emergency Period shall not commence.
61.5.4 (a) Settlement System Administrator's Notification:
The Settlement System Administrator shall notify
forthwith by telephone (and confirm in writing as
soon as is practicable thereafter to) the Chief
Executive, Pool Chairman, Secretary, Director and
Secretary of State whenever it becomes aware that
the Pool Rules Civil Emergency Condition is
satisfied.
(b) Executive Committee's Notification: The Executive
Committee shall ensure that the Initial Settlement
and Reconciliation Agent and (if the Executive
Committee considers it appropriate) any other Pool
Agent is advised as soon as is reasonably
practicable after a notification given by the
Settlement System Administrator pursuant to Clause
61.5.4(a) is received by the Chief Executive, the
Pool Chairman or the Secretary.
61.5.5 Reasons: The Executive Committee shall give reasons for the
passing of any resolution pursuant to this Clause or the
exercising of any right of veto
<PAGE>
conferred on it by this Clause, to be notified to the
relevant parties by the Secretary in accordance with Clause
61.5.6.
61.5.6 Notification (1): The Secretary shall in accordance with
Clause 75:-
(a) notify all Parties, the Director and the Secretary
of State and in addition notify the Initial
Settlement and Reconciliation Agent and (if he
considers it appropriate) any other Pool Agents of
the result of any vote taken on a resolution of
the Executive Committee pursuant to this Part,
giving reasons in outline explaining such result,
immediately following the conclusion of the
meeting at which the vote was taken; such
notification may be given by telephone or by
facsimile transmission. An outline statement of
reasons shall be circulated by the Secretary to
the same persons as soon as is reasonably
practicable thereafter; and
(b) where there has been no exercise within the time
limit provided therefor of a right of veto
pursuant to either Clause 61.5.3 by the Executive
Committee or Clause 61.5.7 by the Director or the
Secretary of State, immediately notify all
Parties, the Director and the Secretary of State
and in addition notify the Initial Settlement and
Reconciliation Agent and (if he considers it
appropriate) any other Pool Agents of the
commencement of a Pool Rules Civil Emergency
Period.
61.5.7 Right of Veto:
(a) Right of Veto: The Director and the Secretary of
State shall each have a several right to veto the
commencement of any Pool Civil Emergency Period
or, as the case may be, Pool Rules Civil Emergency
Period by giving written notice of an exercise of
such right of veto addressed to the Executive
Committee, the Pool Chairman and the Chief
Executive within the time periods specified below.
To be validly given, such notice shall specify in
sufficient detail (in the case of a Pool Civil
Emergency Period) the relevant resolution of the
Executive Committee or (in the case of a Pool
Rules Civil Emergency Period) the relevant
notification of the Settlement System
Administrator, in respect of which the right of
veto is being exercised.
(b) Effect of Veto: Where the Director or the
Secretary of State exercises his veto in
accordance with this Clause 61.5.7, the relevant
Pool Civil Emergency Period or, as the case may
be, Pool Rules Civil Emergency Period shall not
commence.
<PAGE>
(c) Time Limits: Any veto given by, or on behalf of,
either of the Director or Secretary of State must
be received by or on behalf of the Executive
Committee:-
(i) in respect of a resolution initiating a
Pool Civil Emergency Period, before the
expiry of a period of 48 hours
commencing upon the receipt by the
Director or, as appropriate, the
Secretary of State, of the notification
of the result of the vote upon the
relevant resolution; or
(ii) in the case of a veto in respect of the
commencement of a Pool Rules Civil
Emergency Period, before the expiry of
the time for the exercise of the
Executive Committee's right of veto
pursuant to Clause 61.5.3.
For the avoidance of doubt, such veto may be given
at any time before the commencement of such
period.
(d) Reasons: The Director shall upon exercising a
right of veto conferred by this Clause give
reasons to the Executive Committee supporting the
exercise of that right and the Parties would
expect the Secretary of State also to give reasons
upon any exercise of his right of veto conferred
by this Clause.
(e) Notification (2): Upon receipt by or on behalf of
the Executive Committee of a notice of exercise of
veto pursuant to this Clause, the Secretary, on
behalf of the Executive Committee, shall as soon
as is possible thereafter give notice in
accordance with Clause 75 of the exercise of such
veto.
61.6 EFFECT OF POOL AND POOL RULES CIVIL EMERGENCY PERIODS
61.6.1 Effect of a Pool Civil Emergency Period:
(a) Upon a determination that a Pool Civil Emergency
exists in accordance with Clause 61.2.1:-
(i) Suppliers shall be entitled during the
Pool Civil Emergency Period, for the
purposes of payments to be made by them
pursuant to this Agreement during such
period, to utilise the Civil Emergency
Pool Credit Facility; and
(ii) sub-sections 32.1 and 32.2 of Schedule 9
shall enter into force and effect.
<PAGE>
(b) The Pool Members expressly acknowledge the fact
that during the currency of any Pool Civil
Emergency Period Suppliers shall be entitled to
operate credit facilities in accordance with and
subject to any conditions of their respective
Licences (where relevant).
61.6.2 Effect of a Pool Rules Civil Emergency Period: Upon the
commencement of a Pool Rules Civil Emergency Period in
accordance with Clause 61.5.3(a), the provisions of
sub-section 32.3 of Schedule 9 shall enter into full force
and effect and shall continue in full force and effect until
such time as that Pool Rules Civil Emergency Period is
terminated in accordance with Clause 61.7.
61.7 TERMINATION OF A POOL CIVIL EMERGENCY PERIOD
61.7.1 Director's determination of end of Pool Civil Emergency
Period: A Pool Civil Emergency Period and, where applicable,
any concurrent Pool Rules Civil Emergency Period, shall
terminate upon any determination of the Director to that
effect.
61.7.2 Consultation: The Director shall only determine that a Pool
Civil Emergency Period and, where applicable, any concurrent
Pool Rules Civil Emergency Period shall terminate after
having fully consulted and taken into consideration the
views of all relevant Parties and after having obtained the
approval of the Secretary of State.
61.7.3 Notification (3): The Director shall notify in writing the
Secretary, the Pool Chairman and the Chief Executive as soon
as is possible of any determination made pursuant to this
Clause 61.7 giving reasons for any determination so made and
the Secretary shall immediately notify all Parties and the
Initial Settlement and Reconciliation Agent and (if he
considers it appropriate) any other Pool Agents of such
determination upon receipt.
61.7.4 Confirmation: The Director shall confirm to the Executive
Committee upon any determination pursuant to this Clause
61.7 that a Pool Civil Emergency Period shall terminate,
that he has taken full account of all relevant matters, the
views of such relevant Parties and has obtained the approval
of the Secretary of State.
61.7.5 Termination of a Pool Rules Civil Emergency Period within a
continuing Pool Civil Emergency Period:
(a) The Executive Committee may, by resolution carried
by a majority of not less than 65 per cent. of the
Total Weighted Votes of all Committee Members
whether or not present, terminate any current Pool
Rules Civil Emergency Period whenever it
considers, in its absolute discretion, that
<PAGE>
the continued application of the modified Pool
Rules as set out in sub-section 32.3 of Schedule 9
to be, in the circumstances, no longer
appropriate.
(b) The relevant Pool Rules Civil Emergency Period
shall terminate following the passing of that
resolution at the Relevant Time relative to the
time at which that resolution is passed.
(c) The Secretary, on behalf of the Executive
Committee, shall as soon as is possible after the
passing of such resolution give notice to all
Parties, the Director and the Secretary of State
in accordance with Clause 75 and to the Initial
Settlement and Reconciliation Agent and (if he
considers it appropriate) any other Pool Agent
that the relevant Pool Rules Civil Emergency
Period is to so terminate.
(d) Whenever Section 28 of Schedule 9 enters into
force and effect, in accordance with this
Agreement, any Pool Rules Civil Emergency Period
then current shall terminate at the time that such
section so enters into force and effect.
61.7.6 Effect of Termination:
(a) Pool Civil Emergency Period: Upon the termination
of any Pool Civil Emergency Period the Civil
Emergency Pool Credit Facility shall forthwith
cease to be utilised and, where there is a
concurrent Pool Rules Civil Emergency Period, the
provisions of Section 32 of Schedule 9 shall
forthwith cease to be effective.
(b) Pool Rules Civil Emergency Period within a current
and continuing Pool Civil Emergency Period: Upon
the termination of any Pool Rules Civil Emergency
Period within a current and continuing Pool Civil
Emergency Period the provisions of sub-section
32.3 of Schedule 9 shall forthwith cease to be
effective.
61.8 REFERENCE TO DIRECTOR
61.8.1 Reference to the Director: If any dispute shall arise
between the Executive Committee and any Pool Member:-
(a) as to whether the Executive Committee ought to
have concluded that the conditions for the
initiation of a Pool Civil Emergency Period in
accordance with Clause 61.3.2 were satisfied
either as a matter of fact or such that there was
a Pool Civil Emergency within the spirit of the
statement of intent set out at Clause 61.2.1; or
<PAGE>
(b) as to whether the Executive Committee ought or
ought not to have exercised its right of veto
pursuant to Clause 61.5.3(b) in respect of the
commencement of a Pool Rules Civil Emergency
Period; or
(c) as to whether a Pool Rules Civil Emergency Period
within a current and continuing Pool Civil
Emergency Period ought or ought not to have been
terminated by the Executive Committee in
accordance with Clause 61.7.5,
the dispute may be referred by notice of the dispute given
in writing by the relevant Pool Member to the Director and
as if such Pool Member were exercising a Dissentient Pool
Member's right of appeal pursuant to Clause 13.5. The
Director shall determine the matter within 60 days of
receipt of such referral. Notice of any such referral shall
be given to the Executive Committee at the same time that
the dispute is so referred.
61.8.2 Content and Effect of Determination:
(a) If the Director shall determine in accordance with
Clause 61.8.1 that a Pool Civil Emergency Period
or Pool Rules Civil Emergency Period should
commence or, as the case may be, resume, then:-
(i) in the case of a Pool Civil Emergency
Period, upon such determination having
been notified to the Secretary in
accordance with Clause 61.8.3, a Pool
Civil Emergency Period shall commence
or, as the case may be, resume; and
(ii) in the case of a Pool Rules Civil
Emergency Period, such period shall
commence at the Relevant Time relative
to the time at which such determination
has been notified to the Secretary in
accordance with Clause 61.8.3; or
(b) If the Director shall determine in accordance with
Clause 61.8.1 that a continuing Pool Civil
Emergency Period or Pool Rules Civil Emergency
Period should terminate, then:-
(i) in the case of a Pool Civil Emergency
Period, upon such determination having
been notified to the Secretary in
accordance with Clause 61.8.3, the then
current Pool Civil Emergency Period
shall terminate; and
(ii) in the case of a Pool Rules Civil
Emergency Period, the then current such
period shall terminate at the Relevant
Time relative
<PAGE>
to the time at which such determination
has been notified to the Secretary in
accordance with Clause 61.8.3.
61.8.3 Notification (4): The Director shall notify in writing the
Secretary, the Pool Chairman and the Chief Executive as soon
as is possible of any determination made pursuant to this
Clause 61.8 giving reasons for any determination so made and
the Secretary shall immediately notify all Parties and the
Initial Settlement and Reconciliation Agent and (if he
considers it appropriate) any other Pool Agent of such
determination upon receipt.
61.9 MODIFICATION OF PROCEDURES
Modification of Procedures: Neither the procedures for a poll set out
in Clause 22 nor the provisions of Clause 13.4 shall apply to any
resolution of the Executive Committee referred to in this Part XVI,
and there shall be no right of referral of the matter the subject of
such resolution to the Pool Members in general meeting.
<PAGE>
PART XVII
TRADING SITE
62. TRADING SITE
Trading Site: The provisions of Schedule 17 shall have effect.
<PAGE>
PART XVIII
THE POOL FUNDS ADMINISTRATOR, BILLING AND SETTLEMENT
63. THE POOL FUNDS ADMINISTRATOR
63.1 Responsibilities: The Pool Funds Administrator shall have the
following duties, responsibilities and obligations, namely:-
63.1.1 to comply with all the obligations set out in this Agreement
and the Agreed Procedures in respect of the establishment,
maintenance and operation of the Funds Transfer System and
to carry out its obligations under the Funds Transfer
Agreement;
63.1.2 to keep under review and to make recommendations to the
Executive Committee on its own initiative or whenever
requested by the Executive Committee concerning:-
(a) any change to the Funds Transfer System (or any
part or aspect thereof);
(b) the appointment of a new Pool Banker;
(c) any change to Schedule 11 or Schedule 15; and
(d) any change to the Funds Transfer Agreement,
which the Pool Funds Administrator may consider desirable.
In making such recommendations, the Pool Funds Administrator
shall have regard to, and shall provide details of, the cost
of implementing such changes (which cost would be charged or
recharged to Pool Members) and shall recommend whether, in
light of those costs, certain parties or categories of party
to this Agreement should be exempted from such changes or
whether special provisions for such parties or categories of
party should be adopted;
63.1.3 (a) to maintain such records, data and other
information as the Pool Auditor may, after
consultation with the Executive Committee, from
time to time by notice in writing and in
reasonable detail to the Pool Funds Administrator,
require for the purposes of Part IX, or as may
otherwise be reasonably necessary to enable the
Pool Funds Administrator to comply promptly and
fully with all its obligations under this
Agreement, the Agreed Procedures or the Funds
Transfer Agreement, in either such case in such
form as the Pool Auditor may from time to time by
notice to the Pool Funds Administrator require or
(in the absence of such notification)
<PAGE>
in such form as a reasonably prudent operator of
the Funds Transfer System would adopt; and
(b) to maintain such records, data and other
information as H.M. Customs and Excise may from
time to time require of the Pool Funds
Administrator;
63.1.4 to retain in machine readable form or hard copy form for a
period of not less than eight years (or such longer period
as any applicable law may require) and in any event in hard
copy form (which for these purposes shall include
microfiche) for a period of not less than one year copies of
the records, data and other information received and
processed by the Pool Funds Administrator in connection with
its performance of the Services including:-
(a) (to the extent relevant for the performance of the
Services) Settlement Runs, Settlement Re-runs and
Reconciliation Runs;
(b) Advice Notes and Confirmation Notices;
(c) bank statements in respect of the Pool Accounts;
(d) Pool Ledger Accounts;
(e) Payments Calendars;
(f) a record of all Default Interest Rates and Reserve
Interest Rates calculated from time to time
(including the period to which each interest rate
relates);
(g) details of Security Cover supplied and to be
supplied by each Providing Member or the Grid
Operator, as the case may be; and
(h) correspondence between the Pool Funds
Administrator, on the one hand, and the Executive
Committee, the Pool Chairman, the Chief Executive,
any Pool Member, the Pool Banker, any Settlement
Bank, the Settlement System Administrator, the
Initial Settlement and Reconciliation Agent, any
Pool Agent, the Ancillary Services Provider, the
Director, the Pool Auditor, the Grid Operator and
any other relevant bank or institution, on the
other hand;
63.1.5 to provide to the Executive Committee and the Chief
Executive upon request records, data and other information
concerning the Funds Transfer System (and any part thereof)
(unless disclosure would breach any duty of confidentiality
imposed on the Pool Funds Administrator) and which the Pool
<PAGE>
Funds Administrator is required to retain under Clause
63.1.3 or 63.1.4 (and each of the Parties agrees to the
release of all such records, data and other information in
the circumstances and manner described in this Clause
63.1.5);
63.1.6 to provide to the Pool Auditor upon request records, data
and other information concerning the Funds Transfer System
(and any part thereof) and which the Pool Funds
Administrator is required to maintain and retain under
Clause 63.1.3 or 63.1.4 (and each of the Parties agrees to
the release of all such records, data and other information
in the circumstances and manner described in this Clause
63.1.6);
63.1.7 to provide a certified copy of such records, data and other
information concerning the Funds Transfer System (and any
part thereof) and amounts payable by or to any Pool Member,
the Ancillary Services Provider or the Grid Operator as the
relevant Pool Member, the Ancillary Services Provider or (as
the case may be) the Grid Operator may reasonably request
for the purpose of establishing the amounts which are owed
to or by such Pool Member, the Ancillary Services Provider
or the Grid Operator in accordance with this Agreement, and
in any event such information as any Pool Member, the
Ancillary Services Provider or the Grid Operator may request
from the Pool Funds Administrator in order to establish or
prove a claim to any amounts due or claimed to be due. The
Pool Funds Administrator shall forthwith upon such request
provide such information upon delivery (if so required by
the Pool Funds Administrator) of a certificate from the
counsel of such Pool Member, the Ancillary Services Provider
or the Grid Operator certifying that, in such counsel's
opinion, such information is required for such purpose;
63.1.8 to issue Advice Notes and Confirmation Notices within the
times and containing the details required by Schedule 11;
63.1.9 upon request, promptly to supply on its own behalf and on
behalf of Pool Members, the Ancillary Services Provider and
the Grid Operator (with a copy to the Pool Member concerned,
the Ancillary Services Provider and the Grid Operator) any
information (including copies of documents) to H.M. Customs
and Excise, and to co-operate in any investigation by H.M.
Customs and Excise or H.M. Inspector of Taxes relating to
the Funds Transfer System (or any part or aspect thereof);
63.1.10 in respect of each calendar quarter, to issue to all Pool
Members, the Executive Committee, the Chief Executive, the
Settlement System Administrator, the Initial Settlement and
Reconciliation Agent, the Ancillary Services Provider and
the Grid Operator no later than the fifth Business Day after
each calendar quarter a statement enabling the
identification of who may constitute Majority
<PAGE>
Default Calling Creditors during that calendar quarter (and
the Parties hereby agree to such disclosure being made);
63.1.11 to pay all moneys received by it from a Pool Member, the
Ancillary Services Provider or the Grid Operator in
accordance with Schedule 11 into a Pool Account to be held
in trust in accordance with the provisions of Schedule 11;
and
63.1.12 to comply with all its other obligations under this
Agreement (including Schedules 11 and 15) and the Agreed
Procedures.
63.2 Standard of care: In the exercise of its duties and responsibilities
under this Agreement and the Agreed Procedures the Pool Funds
Administrator shall exercise that degree of care, diligence, skill and
judgment which would ordinarily be expected of a reasonably prudent
operator of the Funds Transfer System taking into account the
circumstances actually known to the Pool Funds Administrator, its
officers and employees at the relevant time or which ought to have
been known to it or them had it or they made such enquiries as were
reasonable in the circumstances. In particular, but without prejudice
to the generality of the foregoing, in the absence of directions and
instructions given to it by the Executive Committee under this
Agreement and having due regard to the resources available to it, the
Pool Funds Administrator shall at all times conduct itself in a manner
calculated to achieve the principal objects and purpose of this
Agreement set out in Clauses 4.1.2 and 4.1.3.
63.3 UK value added tax indemnity:
63.3.1 Indemnity (1): Without prejudice to Clause 63.3.2 all Pool
Members and the Grid Operator shall jointly and severally
indemnify and keep indemnified the Pool Funds Administrator,
its officers, employees and agents (but so that, as between
Pool Members and the Grid Operator, their liability shall be
apportioned so that the Grid Operator is liable for 5 per
cent. of the indemnified amount and the Pool Members are
liable for the balance of such indemnified amount in
proportion to their respective Contributory Shares at the
time of receipt of the request for indemnification
calculated on the basis that the points allocated to the
Pool Member in default are disregarded) against any
liability which the Pool Funds Administrator may incur as a
result of the failure of any Pool Member, the Grid Operator
or the Ancillary Services Provider (as the case may be)
properly to account to H.M. Customs & Excise for all amounts
of United Kingdom Value Added Tax payable or receivable by
it in respect of any supplies of electricity, Ancillary
Services or Transport Uplift.
63.3.2 Indemnity (2): If any Pool Member, the Ancillary Services
Provider or the Grid Operator shall fail properly to account
for any amount of United Kingdom Value Added Tax payable or
receivable by it, that person shall indemnify and
<PAGE>
keep indemnified each non-defaulting Pool Member and (if it
is not in default) the Grid Operator (on an after tax basis,
but taking account of any tax relief available to the
relevant Pool Member or the Grid Operator, as the case may
be) against any liability which such non-defaulting Pool
Member and (if it is not in default) the Grid Operator shall
incur pursuant to Clause 63.3.1.
63.4 Schedule 15:
63.4.1 Subject to the rights of each of the Parties under this
Agreement, all Parties hereby agree promptly to execute and
deliver all agreements and other documentation necessary to
give effect to any act, matter or thing done by the
Executive Committee in accordance with Schedule 15
(including the transfer to a third party of certain
responsibilities and assets of the Pool Funds Administrator,
the removal of the incumbent Pool Funds Administrator and
the appointment of a successor in accordance with the terms
thereof).
63.4.2 Schedule 15 provides that certain matters may be referred by
the Executive Committee to arbitration pursuant to Clause
83. In making any such reference or in alleging that any
such reference is being made pursuant to Clause 83 the
Executive Committee shall act (and is hereby irrevocably
authorised by each of the Pool Members to act) as the sole
and exclusive representative of all the Pool Members and the
Pool Funds Administrator hereby agrees that the Executive
Committee shall have the authority so to act.
64. PROCEDURES MANUAL
64.1 Preparation: Within 28 days after the Effective Date (or such longer
period as the Executive Committee may approve) the Pool Funds
Administrator shall prepare, or cause to be prepared, a Procedures
Manual which it shall submit to the Executive Committee for its
review. The Executive Committee shall give its comments on the
Procedures Manual to the Pool Funds Administrator within 28 days after
receipt thereof and the Pool Funds Administrator shall revise, or
cause to be revised, the Procedures Manual to the satisfaction of the
Executive Committee within 21 days after receipt of such comments (or
such longer period as the Executive Committee may approve). Promptly
thereafter the Pool Funds Administrator shall provide the Executive
Committee with sufficient copies of the revised Procedures Manual for
distribution by the Executive Committee to all Parties, the Pool
Auditor, the Pool Banker and the Director.
64.2 Amendments: Where from time to time any amendments to the Procedures
Manual are necessary to reflect changes in the systems and/or
procedures associated with the Funds Transfer System, the procedure
set out in Clause 64.1 shall apply mutatis mutandis.
64.3 Costs: The costs of producing, revising and amending the Procedures
Manual shall be borne by the Pool Funds Administrator and recovered by
it as part of its charges.
<PAGE>
65. BILLING AND SETTLEMENT
The provisions of Schedule 11 shall have effect.
<PAGE>
PART XIX
DEFAULT, TERM AND TERMINATION
66. DEFAULT
66.1 Default (1): At any time after the occurrence of any of the events
referred to in Clause 66.3.1, 66.3.2 or 66.3.3 and so long as such
event continues unremedied or unwaived by Majority Default Calling
Creditors:-
66.1.1 Majority Default Calling Creditors may, upon reaching a bona
fide conclusion that the reason for the failure by the
Defaulting Pool Member under Clause 66.3.1, 66.3.2 or 66.3.3
is other than administrative or banking error (having taken
into account the representations, if any, of the Defaulting
Pool Member made within 24 hours after request therefor is
made to the Defaulting Pool Member on behalf of the Majority
Default Calling Creditors, which request Majority Default
Calling Creditors shall be obliged to make), by notice to
the Defaulting Pool Member (copied to the Executive
Committee and the Director) declare such event an Event of
Default;
66.1.2 at the same time as Majority Default Calling Creditors
declare such an Event of Default or at any time thereafter,
Majority Default Calling Creditors may by notice to the
Executive Committee (copied to the Defaulting Pool Member
and the Director) require the Executive Committee to suspend
(which the Executive Committee shall forthwith do) all
voting rights of the Defaulting Pool Member under this
Agreement for a specified period (being not more than 90
days) and, upon the Executive Committee giving notice to
such effect to the Defaulting Pool Member (copied to the
Director), such voting rights (but not any other rights or
any liabilities or obligations of the Defaulting Pool
Member) shall be suspended for such period; and
66.1.3 where:-
(a) the Defaulting Pool Member is a Public Electricity
Supplier, no earlier than 28 days after the date
of the notice referred to in Clause 66.1.1; and
(b) in any other case, at the same time as Majority
Default Calling Creditors declare such an Event of
Default or at any time thereafter,
Majority Default Calling Creditors may by notice to the
Defaulting Pool Member (copied to the Executive Committee,
the Settlement System Administrator, the Grid Operator, the
Pool Funds Administrator, the Ancillary Services Provider
and the Director) require the Defaulting Pool Member to
cease to be a Party
<PAGE>
with effect from the date of its De-energisation and until
such date all voting rights of the Defaulting Pool Member
under this Agreement (but not any other rights or any
liabilities or obligations of the Defaulting Pool Member)
shall be automatically suspended.
For the avoidance of doubt, Majority Default Calling
Creditors shall be at liberty to give notice under Clause
66.1.2 and, upon expiry of the specified period referred to
therein and subject as provided in the foregoing provisions
of this Clause 66.1, to give notice under Clause 66.1.3.
66.2 Default (2): At any time after the occurrence of any of the events
referred to in Clause 66.3 (other than (a) any of the events referred
to in Clause 66.3.1, 66.3.2 and 66.3.3 and (b) in the case where the
Defaulting Pool Member is unable to pay its debts as referred to in
Clause 66.3.6(a), unless any of the other events referred to in Clause
66.3 has occurred and is continuing) and so long as such event
continues unremedied or unwaived by the Pool Members in general
meeting the Executive Committee may (and shall if so directed by the
Pool Members in general meeting):-
66.2.1 by notice to the Defaulting Pool Member (copied to the
Director) declare such event an Event of Default and suspend
all voting rights of the Defaulting Pool Member under this
Agreement for a specified period (being not more than 90
days) whereupon such voting rights (but not any other rights
or any liabilities or obligations of the Defaulting Pool
Member) shall be suspended for such period; and
66.2.2 upon the expiry of such period by notice to the Defaulting
Pool Member (copied to the Settlement System Administrator,
the Grid Operator, the Pool Funds Administrator, the
Ancillary Services Provider and the Director) require the
Defaulting Pool Member to cease to be a party to this
Agreement with effect from the date of its De-energisation
and until such date all voting rights of the Defaulting Pool
Member under this Agreement (but not any other rights or any
liabilities or obligations of the Defaulting Pool Member)
shall be automatically suspended.
66.3 Events of Default: The events referred to in the foregoing provisions
of this Clause 66 are:-
66.3.1 the Pool Member in question (the "Defaulting Pool Member")
shall fail to provide or maintain or renew in accordance
with Schedule 11 the requisite amount of Security Cover
determined pursuant to that Schedule; or
66.3.2 the Defaulting Pool Member shall fail to pay in the manner
provided in this Agreement any sum payable by it to any Pool
Creditor within three Business Days after its due date; or
<PAGE>
66.3.3 the Defaulting Pool Member shall fail to pay in the manner
provided in this Agreement any sum payable by it hereunder
to the Settlement System Administrator or the Pool Funds
Administrator within 28 days after the Settlement System
Administrator or (as the case may be) the Pool Funds
Administrator has given notice to it (copied to the
Executive Committee and the Director) that payment has not
been received and requiring such default to be remedied; or
66.3.4 the Defaulting Pool Member shall fail to pay in the manner
provided in this Agreement any sum payable by it hereunder
to the Executive Committee within 28 days after the
Executive Committee has given notice to it (copied to the
Director) that payment has not been received and requiring
such default to be remedied; or
66.3.5 the Defaulting Pool Member shall fail in any material
respect to perform or comply with any of its other
obligations under this Agreement and such default (if it is
capable of remedy) is not remedied within a reasonable
period of time (not exceeding 90 days) after the Executive
Committee has given notice to the Defaulting Pool Member
(copied to the Director) of the occurrence thereof and
requiring the same to be remedied; or
66.3.6 the Defaulting Pool Member:-
(a) is unable to pay its debts (within the meaning of
section 123(1) or (2) of the Insolvency Act 1986,
but subject as hereinafter provided in this Clause
66.3.6) or if any voluntary agreement is proposed
in relation to it under section 1 of that Act or
enters into any scheme of arrangement (other than
for the purpose of reconstruction or amalgamation
upon terms and within such period as may
previously have been approved in writing by the
Executive Committee);
(b) has a receiver (which expression shall include an
administrative receiver within the meaning of
section 29 of the Insolvency Act 1986) of the
whole or any material part of its assets or
undertaking appointed;
(c) has an administration order under section 8 of the
Insolvency Act 1986 made in relation to it;
(d) passes any resolution for winding-up other than a
resolution previously approved in writing by the
Executive Committee; or
(e) becomes subject to an order by the High Court for
winding-up.
<PAGE>
For the purposes of paragraph (a) above section 123(1)(a) of
the Insolvency Act 1986 shall have effect as if for
"(pound)750" there was substituted (pound)10,000 and,
further, the Defaulting Pool Member shall not be deemed to
be unable to pay its debts for the purposes of paragraph (a)
above if any such demand as is mentioned in the said section
is being contested in good faith by the Defaulting Pool
Member with recourse to all appropriate measures and
procedures; or
66.3.7 the Licence (if any) granted to the Defaulting Pool Member
is determined or revoked or otherwise ceases to be in force
for any reason whatsoever,
in any such case for whatever reason and whether or not within the
control of the Defaulting Pool Member.
66.4 De-energisation:
66.4.1 If the Majority Default Calling Creditors shall give notice
to a Defaulting Pool Member under Clause 66.1.3 or the
Executive Committee shall give notice to a Defaulting Pool
Member under Clause 66.2.2 the Defaulting Pool Member shall
forthwith, and in compliance with the instructions of the
Grid Operator or (in the case of any connection to a User
System) the User whose System it is (the "Relevant User"),
take all such action as may be necessary to give effect to
the relevant De-energisation.
66.4.2 If the Defaulting Pool Member shall fail to take such action
as is referred to in Clause 66.4.1 within 48 hours after the
date of any such notice referred to therein, the Grid
Operator and/or, as the case may be, the Relevant User
undertakes to each of the other Parties and the Executive
Committee to use reasonable endeavours to effect or (as the
case may be) give instructions to effect such
De-energisation as quickly as practicable having regard to
all the circumstances affecting such De-energisation
(including any operational difficulties and relevant Licence
duties).
66.4.3 Each Pool Member hereby irrevocably and unconditionally
consents to its De-energisation by the Grid Operator and/or,
as the case may be, the Relevant User in the circumstances
set out in Clause 66.4.2.
66.5 Sharing of risk: Where an Event of Default is declared under Clause
66.1.1 or 66.2.1 in respect of a Defaulting Pool Member which is a
Public Electricity Supplier, then for the period beginning on the date
of the notice declaring such Event of Default until the earlier of:-
66.5.1 the date falling 28 days thereafter; and
<PAGE>
66.5.2 the date on which the Event of Default has been remedied or
waived by Majority Default Calling Creditors or (as the case
may be) the Pool Members in general meeting,
(but not further or otherwise) each Pool Member (other than the
Defaulting Pool Member) shall be severally liable for its Contributory
Share (calculated on the basis that the Points allocated to the
Defaulting Pool Member are disregarded) of all sums (including United
Kingdom Value Added Tax) which such Defaulting Pool Member is required
under this Agreement to pay in respect of electricity taken by the
Defaulting Pool Member and Ancillary Services during each complete
Settlement Day falling within such period and which are not paid on
the due date therefor by the Defaulting Pool Member. The Defaulting
Pool Member shall indemnify and keep indemnified each Pool Member on
demand against all sums properly paid by such Pool Member pursuant to
this Clause 66.5 together with interest thereon from the date of
payment by such Pool Member to the date of its reimbursement (as well
after as before judgment) at the Default Interest Rate.
66.6 Indemnity on De-energisation: Where under Clause 66.4 the Grid
Operator and/or the Relevant User is required to effect or (as the
case may be) give instructions to effect a De-energisation the
Defaulting Pool Member, failing which, each Pool Member (but, in the
case of each Pool Member, only in respect of its Contributory Share at
the time of receipt of the request for indemnification, calculated on
the basis that the Points allocated to the Defaulting Pool Member are
disregarded) shall indemnify and keep indemnified the Grid Operator
and/or the Relevant User (as the case may be) on demand against any
and all liability, loss or damage which it may suffer or incur by
reason of effecting or giving instructions to effect such
De-energisation.
66.7 Accrued rights and liabilities:
66.7.1 The suspension of a person as a Pool Member and the
cessation of a person as a Pool Member and/or a Party for
whatever reason shall not prejudice its accrued rights and
liabilities under this Agreement as at the date of its
suspension or (as the case may be) cessation or its rights
and liabilities under this Agreement which may accrue in
relation to the period during which it was not so suspended
or (as the case may be) it was a Party or any of its
obligations under this Agreement which are expressed to
continue notwithstanding such suspension or cessation.
66.7.2 Without prejudice to the generality of Clause 66.7.1, a
Defaulting Pool Member shall be liable for all sums
(including United Kingdom Value Added Tax) which it is
required under this Agreement to pay in respect of
electricity taken by it and Ancillary Services pending its
De-energisation pursuant to Clause 66.4.
<PAGE>
67. TERM AND TERMINATION
67.1 Term: This Agreement shall have no fixed duration.
67.2 Suspension of Pool Member's voting rights: A Pool Member's voting
rights shall be suspended only in the circumstances and to the extent
specified in Clauses 66.1.2 and 66.2.1.
67.3 Termination as a Party: A Pool Member shall cease to be a Party only:-
67.3.1 in the circumstances and to the extent specified in Clauses
8.7 to 8.10 (inclusive);
67.3.2 in the circumstances and to the extent specified in Clauses
66.1.3 and 66.2.2; or
67.3.3 if, by unanimous resolution of all Committee Members, the
Executive Committee shall so reasonably determine and the
prior written consent of the Director shall have been
obtained.
67.4 Termination of the Agreement:
67.4.1 This Agreement may be terminated if a resolution of Pool
Members in general meeting is unanimously carried by those
Pool Members present in person or by proxy at the relevant
general meeting and the prior written consent of the
Director has been obtained.
67.4.2 The termination shall take effect from whichever is the
later in time of the date of the resolution referred to in
Clause 67.4.1 and the consent in writing of the Director
referred to in that Clause.
67.5 Clause exhaustive: The Pool Members agree that the foregoing
provisions of this Clause 67, when read with the Clauses referred to
herein and Clause 8.11, are exhaustive of the rights of suspension of
a Pool Member's voting rights, of termination of Pool Membership, of
cessation as a Party and of termination of this Agreement.
<PAGE>
PART XX
CONFIDENTIALITY
68. CONFIDENTIALITY FOR NGC AND ITS SUBSIDIARIES
68.1 Protection of Protected Information: NGC and its subsidiaries in each
of their capacities in this Agreement shall secure that Protected
Information is not:-
68.1.1 divulged by Business Personnel to any person unless that
person is an Authorised Recipient;
68.1.2 used by Business Personnel for the purposes of obtaining for
NGC or any of its subsidiaries or for any other person:-
(a) any electricity licence; or
(b) any right to purchase or otherwise acquire, or to
distribute, electricity (including rights under
any electricity purchase contract, as defined in
the NGC Transmission Licence); or
(c) any contract or arrangement for the supply of
electricity to Customers or Suppliers; or
(d) any contract for the use of any electrical lines
or electrical plant belonging to or under the
control of a Supplier; or
(e) control of any body corporate which, whether
directly or indirectly, has the benefit of any
such licence, contract or arrangement; and
68.1.3 used by Business Personnel for the purpose of carrying on
any activities other than Permitted Activities,
except with the prior consent in writing of the Party to whose affairs
such Protected Information relates.
68.2 Exceptions: Nothing in this Clause shall apply:-
68.2.1 to any Protected Information which, before it is furnished
to Business Personnel, is in the public domain; or
<PAGE>
68.2.2 to any Protected Information which, after it is furnished to
Business Personnel:-
(a) is acquired by NGC or any subsidiary of NGC in
circumstances in which this Clause does not apply;
or
(b) is acquired by NGC or any subsidiary of NGC in
circumstances in which this Clause does apply and
thereafter ceases to be subject to the
restrictions imposed by this Clause; or
(c) enters the public domain,
and in any such case otherwise than as a result of (i) a
breach by NGC or any subsidiary of NGC of its obligations in
this Clause or (ii) a breach by the person who disclosed
that Protected Information of that person's confidentiality
obligation and NGC or any of its subsidiaries is aware of
such breach; or
68.2.3 to the disclosure of any Protected Information to any person
if NGC or any subsidiary of NGC is required or expressly
permitted to make such disclosure to such person:-
(a) in compliance with the duties of NGC or any
subsidiary of NGC under the Act or any other
requirement of a Competent Authority; or
(b) in compliance with the conditions of the NGC
Transmission Licence or any document referred to
in the NGC Transmission Licence with which NGC or
any subsidiary of NGC is required by virtue of the
Act or the NGC Transmission Licence to comply; or
(c) in compliance with any other requirement of law;
or
(d) in response to a requirement of any stock exchange
or regulatory authority or the Panel on Take-overs
and Mergers; or
(e) pursuant to the arbitration rules for the
Electricity Arbitration Association or pursuant to
any judicial or other arbitral process or tribunal
having jurisdiction in relation to NGC or its
subsidiaries; or
68.2.4 to any Protected Information to the extent that NGC or any
of its subsidiaries is expressly permitted or required to
disclose that information under the terms of any agreement
or arrangement (including this Agreement, the Grid Code, the
Distribution Codes and the Fuel Security Code) with the
Party to whose affairs such Protected Information relates;
or
<PAGE>
68.2.5 to any Protected Information but only to the extent that it
has been properly provided to NGC or any subsidiary of NGC
by the Settlement System Administrator pursuant to any
provision of the Pool Rules.
68.3 Use of information by NGC: NGC and each of its subsidiaries may use
all and any information or data supplied to or acquired by it from or
in relation to the other Parties in performing Permitted Activities
including, for the following purposes:-
68.3.1 the operation and planning of the NGC Transmission System;
68.3.2 the calculation of charges and preparation of offers of
terms for connection to or use of the NGC Transmission
System;
68.3.3 the operation and planning of the Ancillary Services
Business and the calculation of charges therefor;
68.3.4 the operation of the Stage 1 Settlements Business;
68.3.5 the provision of information under the British Grid Systems
Agreement and the EdF Documents,
and may pass the same to subsidiaries of NGC which carry out such
activities and the Parties agree to provide all information to NGC and
its subsidiaries for such purposes.
68.4 Restrictions on Business Personnel: NGC undertakes to each of the
other Parties that, having regard to the activities in which any
Business Person is engaged and the nature and effective life of the
Protected Information divulged to him by virtue of such activities,
neither NGC nor any of its subsidiaries shall unreasonably continue
(taking into account any industrial relations concerns reasonably held
by it) to divulge Protected Information or permit Protected
Information to be divulged by any subsidiary of NGC to any Business
Person who has notified NGC or the relevant subsidiary of his
intention to become engaged as an employee or agent of any other
person (other than of NGC or any subsidiary thereof) who is:-
68.4.1 authorised by licence or exemption to generate, transmit or
supply electricity; or
68.4.2 an electricity broker or who is known to be engaged in the
writing of electricity purchase contracts (as hereinbefore
defined); or
68.4.3 known to be retained as a consultant to any such person who
is referred to in Clause 68.4.1 or 68.4.2,
<PAGE>
save where NGC or such subsidiary could not, in all the circumstances,
reasonably be expected to refrain from divulging to such Business
Person Protected Information which is required for the proper
performance of his duties.
68.5 Identification of Protected Information: Without prejudice to the
other provisions of this Clause, NGC shall procure that any additional
copies made of the Protected Information, whether in hard copy or
computerised form, will clearly identify the Protected Information as
protected.
68.6 Corporate Functions Person: NGC undertakes to use all reasonable
endeavours to procure that no employee is a Corporate Functions Person
unless the same is necessary for the proper performance of his duties.
68.7 Charge restriction condition variable: Without prejudice to Clause
68.3, NGC and each of its subsidiaries may use and pass to each other
all and any Period Metered Demand data supplied to or acquired by it
and all and any information and data supplied to it pursuant to
Section OC6 of the Grid Code for the purposes of Demand Control (as
defined in the Grid Code), but in each case only for the purposes of
its estimation and calculation from time to time of the variable
"system maximum ACS demand" (as defined in Condition 4 of the NGC
Transmission Licence).
68.8 Metering data - Distribution System: Any information regarding, or
data acquired by the Settlement System Administrator or its agent
from, Metering Equipment at Sites which are a point of connection to a
Distribution System shall and may be passed by the Settlement System
Administrator or his agent to the operator of the relevant
Distribution System. The said operator of the relevant Distribution
System may use the same only for the purposes of the operation of such
Distribution System and the calculation of charges for use of and
connection to such Distribution System.
68.9 Metering data - Qualifying Arrangements: The Settlement System
Administrator and the Grid Operator shall and may pass any relevant
information and data relating to the Genset Metered Generation
(including, for the avoidance of doubt, all relevant Metered Data) of
any of the Generating Units which are the subject of qualifying
arrangements (as defined in section 33 of the Act) to such person as
may be specified from time to time pursuant to such qualifying
arrangements.
69. CONFIDENTIALITY (OTHER THAN FOR NGC, ITS SUBSIDIARIES AND POOL AGENTS)
69.1 Application of Clause: This Clause 69 applies to all Restricted
Parties.
69.2 General confidentiality obligations: Each Restricted Party hereby
undertakes with each other Party that it shall preserve the
confidentiality of, and shall not directly or indirectly
<PAGE>
Disclose or use for its own purposes, Confidential Information. The
exceptions to this obligation are set out in Clause 69.3.
69.3 Exceptions to the confidentiality obligation: A Restricted Party shall
be entitled to Disclose or use Confidential Information if and to the
extent that one or more of the following apply:-
69.3.1 the Restricted Party is required or permitted to Disclose or
use Confidential Information pursuant to the terms of a
Nominated Agreement, to the extent of such requirement or
permission; or
69.3.2 the Restricted Party believes, on reasonable grounds, that
market arrangements set out or contemplated by this
Agreement require or permit it to Disclose Confidential
Information to another person or to use Confidential
Information, to the extent of such requirement or
permission; or
69.3.3 the person to whose affairs the Confidential Information
relates gives its prior written consent to the Disclosure or
use, to the extent of such consent; or
69.3.4 the Confidential Information, before it is furnished to the
Restricted Party, is in the public domain; or
69.3.5 the Confidential Information, after it is furnished to the
Restricted Party:-
(a) is acquired by the Restricted Party in
circumstances in which this Clause does not apply;
or
(b) is acquired by the Restricted Party in
circumstances in which this Clause does apply and
thereafter ceases to be subject to the
restrictions imposed by this Clause; or
(c) enters the public domain,
and in any such case otherwise than as a result of (i) a
breach by the Restricted Party of its obligations in this
Clause or (ii) a breach by the person who disclosed that
Confidential Information of that person's confidentiality
obligation and the Restricted Party is aware of such breach;
or
69.3.6 the Restricted Party is required or permitted to Disclose to
any person Confidential Information or to use Confidential
Information:-
(a) in compliance with any provisions of any Relevant
Instrument; or
<PAGE>
(b) in compliance with any other requirement of law or
of a Competent Authority; or
(d) in response to a requirement of any stock exchange
or regulatory authority or the Panel on Take-overs
and Mergers; or
(e) pursuant to the arbitration rules for the
Electricity Arbitration Association or pursuant to
any judicial or other arbitral process or tribunal
having jurisdiction in relation to the Restricted
Party including any disputes committee established
under the terms of this Agreement, the Settlement
Agreement for Scotland or the Master Registration
Agreement; or
69.3.7 the Restricted Party Discloses Confidential Information to
its affiliates or related undertakings or to its employees,
directors, agents, consultants and professional advisers or
those of its affiliates or related undertakings or, where
the Restricted Party is a Supplier, to any Relevant Exempt
Supplier, in each case on the basis set out in Clause 69.7
(but as if references therein to "Restricted Party" were to
the relevant affiliate or related undertaking); or
69.3.8 the Restricted Party Discloses Confidential Information to
the Director; or
69.3.9 the Restricted Party is a Public Electricity Supplier and
the Confidential Information relates to information in
respect of a customer which information it has previously
acquired through its Distribution Business, to the extent
that Disclosure is made by the Public Electricity Supplier
to the person who supplied electricity to the relevant
customer at the time the Confidential Information was
acquired by the Public Electricity Supplier.
69.4 Continuing nature of confidentiality: Confidential Information which a
Party is permitted or obliged to Disclose or use pursuant to Clause
69.3 shall not cease to be regarded as Confidential Information in all
other circumstances by virtue of such Disclosure or use.
69.5 Licence related provisions: Each Party agrees that where a Public
Electricity Supplier Discloses or uses Confidential Information in
accordance with Clause 69.3, such information need not be treated as
confidential to the extent of such Disclosure or use for the purposes
of Condition 12 of the PES Licence in England and Wales or Condition 9
of Part V of the PES Licence in Scotland.
69.6 No commercial advantage: Each Public Electricity Supplier agrees not
to use any Confidential Information in a manner which may obtain for
the Public Electricity Supplier any commercial advantage in the
operation of its supply or second tier supply business except in
relation to any Confidential Information which it holds in respect of
a
<PAGE>
customer which information it has previously acquired through its
Distribution Business, where the Public Electricity Supplier supplied
electricity to the relevant customer at the time the Confidential
Information was acquired by the Public Electricity Supplier.
69.7 Internal procedures: With effect from the date of this Agreement each
Restricted Party shall adopt procedures within its organisation for
ensuring the confidentiality of all Confidential Information which it
is obliged to preserve as confidential under Clause 69.2. These
procedures are:-
69.7.1 the Confidential Information will be disseminated within the
Restricted Party only on a "need to know" basis;
69.7.2 employees, directors, agents, consultants and professional
advisers of the Restricted Party in receipt of Confidential
Information will be made fully aware of the Restricted
Party's obligations of confidence in relation thereto; and
69.7.3 any copies of the Confidential Information, whether in hard
copy or computerised form, will clearly identify the
Confidential Information as confidential.
69.8 Affiliate or Related Undertaking: Each Restricted Party shall procure
that each of its affiliates and related undertakings observes the
restrictions in Clauses 69.2, 69.3 and 69.7 (and, if such affiliate or
related undertaking is a Public Electricity Supplier, Clauses 69.5 and
69.6) as if in each such Clause there was substituted for the name of
the Restricted Party the name of such affiliate or related
undertaking.
70. CONFIDENTIALITY FOR POOL AGENTS
70.1 Terms of engagement: The terms of engagement of a Pool Agent shall
include such provision as the Executive Committee reasonably considers
appropriate requiring that Pool Agent to keep confidential any data or
information made available to it under any Nominated Agreement or
concerning any Nominated Agreement or the affairs of any Party.
70.2 Pool Agent as a Party: If a Pool Agent becomes a Party it shall
continue to be bound by its obligations of confidence in its terms of
engagement referred to in Clause 70.1 unless the Pool Agent and the
Executive Committee agree that the provisions of Clause 69 shall apply
to it instead.
71. THE EXECUTIVE COMMITTEE AND CONFIDENTIALITY
71.1 Executive Committee's discretion to keep material confidential: The
Parties acknowledge that, for the Executive Committee and each of its
sub-committees properly to carry out its duties and responsibilities
under this Agreement, the Executive
<PAGE>
Committee may decide or be obliged to keep confidential to it (and may
instruct its sub-committees to keep confidential) matters, reports,
data and other information produced by or for, or made available to or
held by, the Executive Committee or the relevant sub-committee and, in
any such case, Committee Members shall neither disclose the same to
the Pool Member(s) which they represent nor be required by such Pool
Member(s) so to disclose. Each of the Parties agrees to respect the
position of the Executive Committee, its sub-committees and the
Committee Members accordingly.
71.2 Provision of information to the Executive Committee:
71.2.1 Each of the Parties other than the Settlement System
Administrator, the Grid Operator, the Ancillary Services
Provider and the Pool Funds Administrator agrees, subject to
any relevant confidentiality restriction binding on it, to
provide the Executive Committee, the Chief Executive and the
personnel referred to in Clause 17.2.1 with all data and
other information reasonably requested by the Executive
Committee and necessary for the Executive Committee, the
Chief Executive or (as the case may be) such personnel
properly to carry out its or his duties and responsibilities
under this Agreement.
71.2.2 The Grid Operator and the Ancillary Services Provider each
agree, subject to any relevant confidentiality restriction
binding on it, to provide the Executive Committee, the Chief
Executive and the personnel referred to in Clause 17.2.1
with such data and other information relating to its duties,
responsibilities or obligations under this Agreement which
the Executive Committee shall reasonably request and which
is necessary for the Executive Committee, the Chief
Executive or (as the case may be) such personnel properly to
carry out its or his duties and responsibilities under this
Agreement.
71A. GENERAL DISCLOSURE
71A.1 General release of data: At the request of the Executive Committee or
any person who is not a Party and against payment by or on behalf of
the person to whom the data or other information is to be released of
a fee or charge therefor calculated mutatis mutandis on the basis set
out in Clause 34.2, the Settlement System Administrator shall provide
to such person(s) as the Executive Committee may nominate or (as the
case may be) to the person requesting the same, data and other
information received by the Settlement System Administrator in or
derived from the operation of the Settlement System provided that:-
71A.1.1 the Pool Rules specify that such data or other information
may be so released; or
71A.1.2 the Party to whose affairs such data or other information
relates has given its prior consent in writing to such
disclosure.
<PAGE>
71A.2 Informing the Executive Committee: Upon request by the Executive
Committee, the Settlement System Administrator shall notify the
Executive Committee in writing of any request received by it from any
person under Clause 71A.1 and of the name of such person and shall
give details of the data and other information provided.
71A.3 Consent to disclosure: Each of the Parties agrees to the release of
data and other information in the circumstances described in Clause
71A.1.
71A.4 Release of PSA: Notwithstanding any foregoing provisions of this Part
XX, the Parties agree that each of them shall be at liberty to provide
copies of this Agreement and any supplemental agreement to it to any
third party, and each of the Parties consents to disclosure by any
other Party of the fact that it is a party to this Agreement and,
where such is the case, a Pool Member.
71B. GENERAL CONFIDENTIALITY PROVISIONS
71B.1 Breaches of the Pool Rules: Each Party acknowledges and agrees that no
Party shall be in breach of any obligation of confidentiality owed by
it pursuant to this Agreement in reporting under Clause 6.10 any
breach of the Pool Rules or its belief that any such breach has
occurred.
71B.2 Continuation of confidentiality obligations: Notwithstanding any other
provision of this Agreement, the provisions of this Part XX shall
continue to bind a person after its cessation as a Party for whatever
reason.
<PAGE>
PART XXI
THE PARTICIPATION OF NGC
72. THE PARTICIPATION OF NGC
72.1 As Grid Operator: For so long as NGC is the Grid Operator, references
in this Agreement to the Grid Operator shall be read and construed as
references to NGC acting in its capacity as Grid Operator, and all
rights, benefits, duties, responsibilities, liabilities and
obligations under this Agreement with regard to the Grid Operator
shall be those of NGC acting in that capacity.
72.2 As Ancillary Services Provider: For so long as NGC is the Ancillary
Services Provider, references in this Agreement to the Ancillary
Services Provider shall be read and construed as references to NGC
acting in its capacity as Ancillary Services Provider, and all rights,
benefits, duties, responsibilities, liabilities and obligations under
this Agreement with regard to the Ancillary Services Provider shall be
those of NGC acting in that capacity. The Ancillary Services Provider
shall have the benefit of the obligations and undertakings entered
into by the Settlement System Administrator and Pool Funds
Administrator in this Agreement.
72.3 As Pool Member: The Parties acknowledge that NGC is not in any of its
capacities under this Agreement a Pool Member.
72.4 Wholly-owned subsidiary: NGC shall procure that so long as Energy
Settlements and Information Services Limited is appointed Settlement
System Administrator it shall at all times remain a wholly-owned
subsidiary of, and wholly controlled by, NGC.
73. [Not used.]
<PAGE>
PART XXII
MISCELLANEOUS
74. FORCE MAJEURE
74.1 Force Majeure: Where the Settlement System Administrator, the Grid
Operator, the Pool Funds Administrator or the Ancillary Services
Provider (the "Non-Performing Party") is unable to carry out all or
any of its obligations under the Settlement Arrangements by reason of
Force Majeure (but subject, in the case of the Settlement System
Administrator, to Section 33 of Schedule 4):-
74.1.1 the Settlement Arrangements shall remain in effect; but
74.1.2 (a) the Non-Performing Party's relevant obligations;
(b) the obligations of each of the other Parties owed
to the Non-Performing Party under the Settlement
Arrangements; and
(c) any other obligations (not being payment
obligations) of such other Parties under the
Settlement Arrangements owed inter se which the
relevant Party is unable to carry out directly as
a result of the suspension of the Non-Performing
Party's obligations
shall be suspended for a period equal to the Force Majeure
provided that:-
(i) the suspension of performance is of no greater
scope and of no longer duration than is required
by the Force Majeure;
(ii) no obligations of any Party are excused as a
result of the Force Majeure; and
(iii) in respect of the suspension of the Non-Performing
Party's obligations:-
(A) the Non-Performing Party gives the
Executive Committee (which shall
promptly inform the other Parties, the
Pool Auditor and the Director) prompt
notice describing the circumstance of
Force Majeure, including the nature of
the occurrence and its expected
duration, and continues to furnish daily
reports with respect thereto during the
period of Force Majeure; and
(B) the Non-Performing Party uses all
reasonable efforts to remedy its
inability to perform.
<PAGE>
74.2 Discussions: As soon as practicable after the occurrence of the Force
Majeure the Non-Performing Party shall discuss with the Executive
Committee how best to continue its operations and give effect to its
obligations so far as possible in accordance with this Agreement.
75. NOTICES
75.1 Addresses: Save as otherwise expressly provided in the Settlement
Arrangements, any notice or other communication to be given by one
Party to another under, or in connection with the matters contemplated
by, the Settlement Arrangements shall be addressed to the recipient
and sent to the address or facsimile number of such other Party given
in the Settlement Arrangements for the purpose and marked for the
attention of the person so given or to such other address and/or
facsimile number and/or marked for such other attention as such other
Party may from time to time specify by notice given in accordance with
this Clause 75 to the Party giving the relevant notice or other
communication to it.
75.2 Executive Committee: Any notice or other communication to be given to
the Executive Committee under, or in connection with the matters
contemplated by, the Settlement Arrangements shall be sent to the
Secretary at the address or facsimile number given in the Settlement
Arrangements for the purpose or to such other address or facsimile
number as the Secretary may from time to time specify by notice given
in accordance with this Clause 75 to the Parties.
75.3 Deemed receipt: Save as otherwise expressly provided in the Settlement
Arrangements, any notice or other communication to be given by any
Party to any other Party under, or in connection with the matters
contemplated by, the Settlement Arrangements shall be in writing and
shall be given by letter delivered by hand or sent by first class
prepaid post (airmail if overseas) or facsimile, and shall be deemed
to have been received:-
75.3.1 in the case of delivery by hand, when delivered; or
75.3.2 in the case of first class prepaid post, on the second day
following the day of posting or (if sent airmail overseas or
from overseas) on the fifth day following the day of
posting; or
75.3.3 in the case of facsimile, on acknowledgement by the
addressee's facsimile receiving equipment (where such
acknowledgement occurs before 1700 hours on the day of
acknowledgement) and in any other case on the day following
the day of acknowledgement.
<PAGE>
76. ASSIGNMENT
A Party shall not assign and/or transfer and shall not purport to assign and/or
transfer any of its rights and/or obligations under the Settlement Arrangements
provided that any Party may assign by way of security only all or any of its
rights over receivables arising under the Settlement Arrangements.
77. COUNTERPARTS
This Agreement may be executed in any number of counterparts and by the
different Parties on separate counterparts, each of which when executed and
delivered shall constitute an original, but all the counterparts shall together
constitute but one and the same instrument.
78. WAIVERS; REMEDIES NOT CUMULATIVE
78.1 Waivers: No delay by or omission of any Party in exercising any right,
power, privilege or remedy under the Settlement Arrangements shall
operate to impair such right, power, privilege or remedy or be
construed as a waiver thereof. Any single or partial exercise of any
such right, power, privilege or remedy shall not preclude any other or
further exercise thereof or the exercise of any other right, power,
privilege or remedy.
78.2 Remedies not cumulative: The rights and remedies provided by the
Settlement Arrangements to the Parties are exclusive and not
cumulative and exclude and are in place of all substantive (but not
procedural) rights or remedies express or implied and provided by
common law or statute in respect of the subject matter of the
Settlement Arrangements (other than any such rights or remedies
provided under section 58 of the Act or any directions (if any) issued
thereunder), including any rights any Party may possess in tort which
shall include actions brought in negligence and/or nuisance.
Accordingly, each of the Parties hereby waives to the fullest extent
possible all such rights and remedies provided by common law or
statute, and releases a Party which is liable to another (or others),
its officers, employees and agents to the same extent from all duties,
liabilities, responsibilities or obligations provided by common law or
statute in respect of the matters dealt with in this Agreement and
undertakes not to enforce any of the same except as expressly provided
herein.
78.3 Director's and Secretary of State's rights: For the avoidance of
doubt, the Parties acknowledge and agree that nothing in the
Settlement Arrangements shall exclude or restrict or otherwise
prejudice or affect any of the rights, powers, privileges, remedies,
duties and obligations of the Secretary of State or the Director under
the Act or any Licence or otherwise howsoever.
<PAGE>
79. SEVERANCE OF TERMS
If for any reason whatever any provision of the Settlement Arrangements is or
becomes invalid, illegal or unenforceable, or is declared by any court of
competent jurisdiction or any other Competent Authority to be invalid, illegal
or unenforceable or if such Competent Authority:-
(a) refuses, or formally indicates an intention to refuse, authorisation
of, or exemption to, any of the provisions of or arrangements
contained in the Settlement Arrangements (in the case of a refusal
either by way of outright refusal or by way of requiring the amendment
or deletion of any provision of the Settlement Arrangements and/or the
inclusion of any provision in the Settlement Arrangements and/or the
giving of undertakings or the acceptance of conditions as to future
conduct before such authorisation or exemption can be granted); or
(b) formally indicates that to continue to operate any provision of the
Settlement Arrangements may expose the Parties to sanctions under any
law, order, enactment or regulation, or requests any Party to give
undertakings or to accept conditions as to future conduct in order
that such Party may not be subject to such sanctions
and, in all cases, whether initially or at the end of any earlier period or
periods of exemption then, in any such case, the Parties will negotiate in good
faith with a view to agreeing one or more provisions which may be substituted
for such invalid, unenforceable or illegal provision which substitute
provision(s) is(are) satisfactory to the Competent Authority(ies) and produce(s)
as nearly as is practicable in all the circumstances the appropriate balance of
the commercial interests of the Parties.
80. ENTIRE AGREEMENT
The Settlement Arrangements contain or expressly refer to the entire agreement
between the Parties with respect to the subject matter thereof and expressly
exclude any warranty, condition or other undertaking implied at law or by custom
and supersedes all previous agreements and understandings between the Parties
with respect thereto and each of the Parties acknowledges and confirms that it
does not enter into this Agreement in reliance on any representation, warranty
or other undertaking not fully reflected in the terms of the Settlement
Arrangements.
81. LANGUAGE
Each notice, instrument, certificate or other document to be given by one Party
to another hereunder shall be in the English language.
82. RESTRICTIVE TRADE PRACTICES ACT 1976
If after the commencement of section 100 of the Act (the "RTP Section") this
Agreement is subject to registration under the Restrictive Trade Practices Act
1976, and if it is not a
<PAGE>
non-notifiable agreement under that Act, then NGC undertakes, no earlier than
five months but no later than six months after the commencement of the RTP
Section, to furnish to the Director General of Fair Trading particulars of this
Agreement and of any agreement of which it forms part. Before furnishing such
particulars NGC will consult with the Founder Generators and the Founder
Suppliers as to the nature of the particulars to be so furnished and will
consult with the Founder Generators and Founder Suppliers regularly regarding
the progress of discussions with the Director General of Fair Trading in regard
to the agreement(s) so furnished.
83. ARBITRATION
83.1 Referral to arbitration: Save where expressly stated in this Agreement
to the contrary and subject to any contrary provision of the Act or
any Licence or the rights, powers, duties and obligations of the
Director or the Secretary of State under the Act, any Licence or
otherwise howsoever, any dispute or difference of whatever nature
howsoever arising under, out of or in connection with the Settlement
Arrangements between any one or more Parties shall be and is hereby
referred to arbitration pursuant to the arbitration rules of the
Electricity Arbitration Association in force from time to time.
83.2 Proper law: Whatever the nationality, residence or domicile of any
Party and wherever the dispute or difference or any part thereof arose
the law of England shall be the proper law of any reference to
arbitration hereunder and in particular (but not so as to derogate
from the generality of the foregoing) the seat of any such arbitration
shall be England and Wales and the provisions of the Arbitration Act
1996 shall apply to any such arbitration wherever the same or any part
of it shall be conducted.
83.3 Third Party Claims (1): Subject always to Clause 83.6, if any tariff
customer (as defined in section 22(4) of the Act) brings any legal
proceedings in any court (as defined in the Rules of the Supreme Court
1965 and in the County Courts Act 1984) against one or more persons,
any of which is a Party (the "Defendant Contracting Party"), and the
Defendant Contracting Party wishes to make a Third Party Claim (as
defined in Clause 83.5) against any other Party (a "Contracting
Party") which would but for this Clause 83.3 have been a dispute or
difference referred to arbitration by virtue of Clause 83.1 then,
notwithstanding the provisions of Clause 83.1 which shall not apply
and in lieu of arbitration, the court in which the legal proceedings
have been commenced shall hear and completely determine and adjudicate
upon the legal proceedings and the Third Party Claim not only between
the tariff customer and the Defendant Contracting Party but also
between either or both of them and any other Contracting Party whether
by way of third party proceedings (pursuant to the Rules of the
Supreme Court 1965 or the County Court Rules 1981) or otherwise as may
be ordered by the court.
83.4 Third Party Claims (2): Where a Defendant Contracting Party makes a
Third Party Claim against any Contracting Party and such Contracting
Party wishes to make a Third Party Claim against a further Contracting
Party the provisions of Clause 83.3 shall apply
<PAGE>
mutatis mutandis as if such Contracting Party had been the Defendant
Contracting Party and similarly in relation to any such further
Contracting Party.
83.5 Third Party Claims (3): For the purposes of this Clause 83 "Third
Party Claim" shall mean:-
83.5.1 any claim by a Defendant Contracting Party against a
Contracting Party (whether or not already a party to the
legal proceedings) for any contribution or indemnity; or
83.5.2 any claim by a Defendant Contracting Party against such a
Contracting Party for any relief or remedy relating to or
connected with the subject matter of the legal proceedings
and substantially the same as some relief or remedy claimed
by the tariff customer; or
83.5.3 any requirement by a Defendant Contracting Party that any
question or issue relating to or connected with the subject
matter of the legal proceedings should be determined not
only as between the tariff customer and the Defendant
Contracting Party but also as between either or both of them
and a Contracting Party (whether or not already a party to
the legal proceedings).
83.6 Limitation: Clause 83.3 shall apply only if at the time the legal
proceedings are commenced no arbitration has been commenced between
the Defendant Contracting Party and another Contracting Party raising
or involving the same or substantially the same issues as would be
raised by or involved in the Third Party Claim. The tribunal in any
arbitration which has been commenced prior to the commencement of
legal proceedings shall determine the question, in the event of
dispute, whether the issues raised or involved are the same or
substantially the same.
83.7 Emergency relief: Notwithstanding the rest of this Clause 83, any
Party may apply at any time to any court of competent jurisdiction for
emergency interim interlocutory relief as may be necessary.
84. JURISDICTION
84.1 Submission to jurisdiction: Subject and without prejudice to Clauses
83 and 84.4, all the Parties irrevocably agree that the courts of
England are to have exclusive jurisdiction to settle any disputes
which may arise out of or in connection with the Settlement
Arrangements and that accordingly any suit, action or proceeding
(together in this Clause 84 referred to as "Proceedings") arising out
of or in connection with the Settlement Arrangements may be brought in
such courts.
84.2 Waiver: Each Party irrevocably waives any objection which it may have
now or hereafter to the laying of the venue of any Proceedings in any
such court as is referred to in this
<PAGE>
Clause and any claim that any such Proceedings have been brought in an
inconvenient forum and further irrevocably agrees that a judgment in
any Proceedings brought in the English courts shall be conclusive and
binding upon such Party and may be enforced in the courts of any other
jurisdiction.
84.3 Agent for service of process: Each Party which is not incorporated in
any part of England or Wales agrees that if it does not have, or shall
cease to have, a place of business in England or Wales it will
promptly and hereby does appoint the Settlement System Administrator
(or such other person as shall be acceptable to the Executive
Committee) irrevocably to accept service of process on its behalf in
any Proceedings in England.
84.4 Arbitration: For the avoidance of doubt nothing contained in the
foregoing provisions of this Clause 84 shall be taken as permitting a
Party to commence Proceedings in the courts where this Agreement
otherwise provides for Proceedings to be referred to arbitration.
85. GOVERNING LAW
The Settlement Arrangements shall be governed by, and construed in all respects
in accordance with, English law.
<PAGE>
SCHEDULE 1
This Schedule reflects the parties as at 30th March, 1990
The Founder Generators
Registered Registered or
Name Number Principal Office
National Power PLC 2366963 Sudbury House
15 Newgate Street
London
EC1A 7AU
PowerGen plc 2366970 53 New Broad Street
London
EC2M 1JJ
Nuclear Electric plc 2264251 Barnett Way
Barnwood
Gloucester
GL4 7RS
The National Grid Company plc 2366977 National Grid House
(Pumped Storage Business Division) Sumner Street
London
SE1 9JU
Electricite de France, Service - 3 Rue de Messine
National 75008 Paris
France
Scottish Power plc 117120 Cathcart House
Spean Street
Glasgow
G44 4BE
Scotland
Scottish Hydro-Electric PLC 117119 16 Rothesay Terrace
Edinburgh
EH3 7SE
Scotland
British Nuclear Fuels plc 1002607 Risley
Warrington
Cheshire
WA3 6AS
The United Kingdom Atomic Energy - 11 Charles II Street
Authority London SW1 4QT
<PAGE>
Registered Registered or
Name Number Principal Office
Central Power Limited 2251099 Mucklow Hill
Halesowen
West Midlands
B62 8BP
<PAGE>
SCHEDULE 2
This Schedule reflects the parties as at 30th March, 1990
The Founder Suppliers
Part A
Public Electricity Suppliers
Registered Registered or
Name Number Principal Office
Eastern Electricity plc 2366906 Wherstead Park
Wherstead
Ipswich
Suffolk
IP9 2AQ
East Midlands Electricity plc 2366923 398 Coppice Road
Arnold
Nottingham
NG5 7HX
London Electricity plc 2366852 Templar House
81-87 High Holborn
London
WC1V 6NU
Manweb plc 2366937 Sealand Road
Chester
CH1 4LR
Midlands Electricity plc 2366928 Mucklow Hill
Halesowen
West Midlands
B62 8BP
Northern Electric plc 2366942 Carliol House
Market Street
Newcastle upon Tyne
NE1 6NE
<PAGE>
Registered Registered or
Name Number Principal Office
NORWEB plc 2366949 Talbot Road
Manchester
M16 6NE
SEEBOARD plc 2366867 Grand Avenue
Hove
East Sussex
BN3 2LS
Southern Electric plc 2366879 Littlewick Green
Maidenhead
Berkshire
SL6 3QB
South Wales Electricity plc 2366985 Newport Road
St Mellons
Cardiff
CF3 9XW
South Western Electricity plc 2366894 800 Park Avenue
Aztec West
Almondsbury
Bristol
BS12 4SE
Yorkshire Electricity Group plc 2366995 Wetherby Road
Scarcroft
Leeds
LS14 3HS
<PAGE>
Part B
Second Tier Suppliers
Registered Registered or
Name Number Principal Office
National Power PLC 2366963 Sudbury House
15 Newgate Street
London
EC1A 7AU
PowerGen plc 2366970 53 New Broad Street
London
EC2M 1JJ
Nuclear Electric plc 2264251 Barnett Way
Barnwood
Gloucester
GL4 7RS
SEEBOARD plc 2366867 Grand Avenue
Hove
East Sussex
BN3 2LS
British Nuclear Fuels plc 1002607 Risley
Warrington
Cheshire
WA3 6AS
<PAGE>
Part C
Others
Registered Registered or
Name Number Principal Office
Electricite de France, Service - 3 Rue de Messine
National 75008
Paris
France
Scottish Power plc 117120 Cathcart House
Spean Street
Glasgow
G44 4BE
Scotland
Scottish Hydro-Electric PLC 117119 16 Rothesay Terrace
Edinburgh
EH3 7SE
Scotland
<PAGE>
SCHEDULE 3
Form of Accession Agreement
THIS SUPPLEMENTAL AGREEMENT is made on [_____________] BETWEEN:-
(1) [____________________], a company incorporated [with limited
liability] under the laws of [_______________] [(registered number
[___________])] and having its [registered] [principal] office at
[_______________________] (the "New Party"); and
(2) [___________________] (the "Nominee") on behalf of all the parties to
the Pooling and Settlement Agreement referred to below.
WHEREAS:-
(A) by an agreement dated 30th March, 1990 made between the Founder
Generators named therein (1), the Founder Suppliers named therein (2),
NGC Settlements Limited now known as Energy Settlements and
Information Services Limited as Settlement System Administrator (3),
Energy Pool Funds Administration Limited as Pool Funds Administrator
(4), The National Grid Company plc as Grid Operator and Ancillary
Services Provider (5), and Scottish Power plc and Electricite de
France, Service National as Externally Interconnected Parties (6) (as
amended, varied, supplemented, modified or suspended, the "Pooling and
Settlement Agreement") the parties thereto agreed to give effect to
and be bound by certain rules and procedures for the operation of an
electricity trading pool and the operation of a settlement system; and
(B) the New Party has requested that it be admitted as a Party pursuant to
Clause 3 of the Pooling and Settlement Agreement and each of the
Parties hereby agrees to such admission.
NOW IT IS HEREBY AGREED as follows:-
1. Unless the context otherwise requires, words and expressions defined
in the Pooling and Settlement Agreement shall bear the same meanings
respectively when used herein.
2. The Nominee (acting on behalf of each of the Parties) hereby admits
the New Party as an additional Party under the Pooling and Settlement
Agreement on the terms and conditions hereof and with effect from
[insert effective date of admission].
3. The New Party hereby accepts its admission as a Party and undertakes
with the Nominee (acting on behalf of each of the Parties) to perform
and to be bound by the terms and conditions of the Pooling and
Settlement Agreement as a Party as from the [insert effective date of
admission].
<PAGE>
4. For all purposes in connection with the Pooling and Settlement
Agreement the New Party shall as from the [insert effective date of
admission] be treated as if it had been a signatory of the Pooling and
Settlement Agreement as a [[Generator]/[Supplier]/[Externally
Interconnected Party]]*, and as if this Agreement were part of the
Pooling and Settlement Agreement, and the rights and obligations of
the Parties shall be construed accordingly.
5. This Agreement and the Pooling and Settlement Agreement shall be read
and construed as one document and references in the Pooling and
Settlement Agreement to the Pooling and Settlement Agreement
(howsoever expressed) shall be read and construed as references to the
Pooling and Settlement Agreement and this Agreement.
6. This Agreement shall be governed by and construed in all respects in
accordance with English law and the provisions of Clauses 83 and 84 of
the Pooling and Settlement Agreement shall apply hereto mutatis
mutandis.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first above written
[New Party]
By:
Notice details (Clause 75 of the Pooling and Settlement Agreement)
Address:
Facsimile number:
Attention:
[Nominee]
(for a3nd on behalf of each of the parties to the Pooling and Settlement
Agreement)
By:
- --------------------------------------------------------------------------------
* Delete/complete as appropriate.
Note: this form will require adaptation in the circumstances described in
Clauses 3.11 to 3.14 inclusive.
<PAGE>
SCHEDULE 4
Terms of Engagement of the Settlement System Administrator
1. DEFINITIONS
1.1 Definitions: In this Schedule and the Appendix hereto, except where
the context otherwise requires:-
"Account Manager" means the person or his alternate who has been
nominated as such by the Settlement System Administrator in accordance
with sub-section 5.2;
"Anticipated Fixed Standing Charges" has the meaning given to that
term in the Appendix hereto;
"Committed Additional Services Charges" has the meaning given to that
term in the Appendix hereto;
"Compensation" means the aggregate of:-
(a) 75 per cent. of the Profit Element attributable to the
Anticipated Fixed Standing Charges; and
(b) the Profit Element attributable to the Committed Additional
Services Charge;
"Contract Management Rules" means the procedures of that name in the
agreed form as amended, modified or varied in accordance with
sub-section 31.2;
"Contract Manager" means the person or his alternate who has been
nominated as such by the Executive Committee in accordance with
sub-section 5.3;
"Deferred Settlement Project Expenditure" has the meaning given to
that term in the Appendix hereto;
"ERS Account" has the meaning given to that term in sub-section 3.2 of
Part G of the Appendix hereto;
"Extension Notice" has the meaning given to that term in sub-section
20.1;
"Extension Period" has the meaning given to that term in sub-section
20.1;
"Gross Margin" means, in respect of each SSA Accounting Period, the
aggregate of the Total Sum Due invoiced in respect of such SSA
Accounting Period less those costs which
<PAGE>
can be directly related to the provision of Services hereunder (but
disregarding for the purposes of such costs, tax, interest charges and
Infrastructure Costs);
"Infrastructure" means those assets and resources which are not
dedicated to or directly attributable to the provision of part or
parts of the Services. For the avoidance of doubt, Infrastructure
includes the general manager, finance staff, personnel staff and
procurement staff and the buildings (or parts thereof) attributable to
such staff;
"Infrastructure Costs" means those costs incurred by the Settlement
System Administrator in the provision of Infrastructure. For the
avoidance of doubt, Infrastructure Costs include the following costs
to the extent that they are not directly attributable to a part or
parts of the Services:-
(a) legal except where (i) such costs are agreed to be treated
as Third Party Costs, or (ii) such costs relate to the third
(or more) Supplemental Agreement in an SSA Accounting
Period, in which case they shall not be treated as
Infrastructure Costs;
(b) training;
(c) audit;
(d) insurance;
(e) travelling;
(f) public relations;
(g) general depreciation; and
(h) group charges,
but do not include professional indemnity insurance costs or costs
related to Deferred Settlement Project Expenditure;
"in the agreed form" means in a form which is agreed on the one hand
by either the Account Manager or the Settlement System Administrator
and on the other hand by either the Contract Manager or the Executive
Committee;
"Irremediable Removal Notice" means a notice given by the Executive
Committee to the Settlement System Administrator pursuant to
sub-section 17.2, 17.3 or (as the context may require) 17.4;
"Menus of Prices" has the meaning given to that term in the Appendix
hereto;
<PAGE>
"Millennium Compliant" means that neither the performance, nor the
functionality, nor the interpretability of the Stage 1 Software, the
Developed Application Software, the Licensed Application Software, the
SSA System or the Stage 1 Hardware or any part of any thereof is or
will be effected by dates prior to, during or after the Year 2000, and
in particular (but without limitation) that each of the foregoing and
each part thereof has the ability to provide all of the following
functions:-
(a) no value for current date causes or will cause any
interruption in operation;
(b) date base functionality behaves and will behave consistently
for duties prior to, during and after the Year 2000;
(c) for all interfaces and data storage, the century in any date
is and will be specified either explicitly or by unambiguous
algorithms or inferencing rules; and
(d) the Year 2000 is and will be recognised as a leap year;
"Order" has the meaning given to that term in the Appendix hereto;
"Outstanding Liabilities" means all liabilities incurred by the
Settlement System Administrator in providing the Services or to enable
it to provide the Services and which as at the Termination Date remain
to be discharged in whole or in part, other than the Pool Agreed
Liabilities;
"Performance Improvement Programme" means a programme agreed between
the Executive Committee and the Settlement System Administrator in
accordance with Section 10 of Part B of the Appendix hereto to improve
the cost-effectiveness of Services;
"Pool Agreed Liabilities" means all liabilities (including Deferred
Settlement Project Expenditure) incurred by the Settlement System
Administrator under any contract or arrangement entered into or
renewed by the Settlement System Administrator at the express written
request or with the express written approval of the Executive
Committee or the Contract Manager and which as at the Termination Date
remain to be discharged in whole or in part;
"Pool Apportioned Outstanding Liabilities" means all Outstanding
Liabilities which as at the Termination Date and according to their
terms at such date fall to be discharged on or before 31st March, 1999
provided that no such Outstanding Liability may be treated as a Pool
Apportioned Outstanding Liability:-
(a) where the Settlement System Administrator accounts for such
Outstanding Liability during the period following the giving
of a Removal Notice on a different basis from that used to
account for such Outstanding Liability on the date which is
12 months prior to such Removal Notice, unless the Executive
<PAGE>
Committee or the Contract Manager has consented to such
different basis (such consent not to be unreasonably
withheld) or such different basis of accounting is required
by law or applicable accounting standard; or
(b) to the extent that the amount of the Outstanding Liability
increases in a non-immaterial respect after the giving of a
Removal Notice except where such increase is necessary for
the Settlement System Administrator to provide Services
under an Order;
"Post-Termination Period" means a period of up to twelve months after
the Termination Date;
"Profit Element" means the Gross Margin for the twelve month period
ending on the date of the Removal Notice as reported by the Settlement
System Administrator's auditor pursuant to sub-section 32.1, reduced
by 9.4 per cent. on account of overhead costs;
"Remediable Removal Notice" means a notice given by the Executive
Committee to the Settlement System Administrator pursuant to
sub-section 17.1;
"Removal Notice" means a notice given by the Executive Committee to
the Settlement System Administrator pursuant to Section 15 or 16 or
(as the case may be) sub-section 17.5;
"Resignation Notice" means a notice given by ESIS to the Executive
Committee and the Director pursuant to Section 14;
"Service Credits" has the meaning given to that term in the Appendix
hereto;
"Service Line" means a legally binding operating document which is
agreed for the time being and from time to time by the Settlement
System Administrator and the Executive Committee to be a Service Line
in respect of a particular Service;
"Services" has the meaning given to that term in the Appendix hereto;
"Sole Supplier Index" has the meaning given to that term in the
Appendix hereto;
"SSA Accounting Period" means each successive period of 12 months
beginning on 1st April in each year or of such other length and/or
beginning on such other date as may be agreed between the Settlement
System Administrator and the Executive Committee. The first SSA
Accounting Period shall begin on 1st April, 1994;
"SSA Apportioned Outstanding Liabilities" means all Outstanding
Liabilities other than the Pool Apportioned Outstanding Liabilities;
<PAGE>
"Termination Date" means the date upon which the appointment of ESIS
as Settlement System Administrator is terminated pursuant to Section
13.2, 14, 15, 16 or (as the context may require) 17, as the same may
be postponed pursuant to Section 20;
"Third Party Costs" has the meaning given to that term in the Appendix
hereto;
"Total Sum Due" has the meaning given to that term in the Appendix
hereto; and
"Transition Costs" means:-
(a) the costs incurred by the Settlement System Administrator
during the period from the date of the Removal Notice or the
Resignation Notice to the Termination Date in providing
reasonable training for the person who becomes the successor
Settlement System Administrator, such training to be a
single programme delivered once and to be to the same
standards and to use the same practices and procedures as
are then set out in the Service Lines at the date on which
the consultation procedure prior to serving a Removal Notice
or a Resignation Notice commences;
(b) reasonable costs incurred by the Settlement System
Administrator in supporting the commissioning and proving of
the successor Settlement System such that the successor
Settlement System Administrator is capable of operating on
the same basis and to the same frequencies as are set out in
the Service Lines at the date on which the consultation
procedure prior to serving a Removal Notice or a Resignation
Notice commences;
(c) the costs incurred by the Settlement System Administrator in
physically moving, relocating or handing over to the
successor Settlement System Administrator the property
required to be made available by ESIS (but not, for the
avoidance of doubt, the consideration payable therefor);
(d) the costs incurred by the Settlement System Administrator in
preparing and supplying to the successor Settlement System
Administrator procedural or practice documentation not
already recorded in writing; and
(e) the travelling and accommodation costs of the Settlement
System Administrator's employees in attending upon the
successor Settlement System Administrator for all or any of
the purposes in paragraph (a), (b) or (c) above.
1.2 Executive Committee's and Contract Manager's obligations: Where in
this Schedule and the Appendix hereto an obligation is expressed to be
undertaken by the Executive Committee or the Contract Manager, the
Pool Members shall procure that the Executive Committee or, as the
case may be, the Contract Manager performs that obligation and any
breach, failure or action on the part of the Executive Committee or
the Contract
<PAGE>
Manager shall be deemed to be a breach, failure or action on the part
of all Pool Members.
2. ORDERING AND PROVISION OF SERVICES
Ordering and provision of Services: Services shall be Ordered and provided in
accordance with and pursuant to the Appendix hereto and the provisions of that
Appendix shall have effect.
3. THE SETTLEMENT SYSTEM ADMINISTRATOR'S CHARGES
Payment for Services: The Settlement System Administrator shall be entitled to
recover from the Pool Members and Parties charges in accordance with and
pursuant to the Appendix hereto.
4. STANDARD OF CARE, LIMITATION OF LIABILITY AND INDEMNITY
4.1 Standard of care: Subject to sub-sections 4.2 and 4.3, in the exercise
of its duties and responsibilities under the SSA Arrangements the
Settlement System Administrator shall exercise that degree of care,
diligence, skill and judgment which would ordinarily be expected of a
reasonably prudent operator of the Stage 1 Settlement System taking
into account the circumstances actually known to the Settlement System
Administrator, its officers and employees at the relevant time or
which ought to have been known to it or them had it or they made such
enquiries as were reasonable in the circumstances. In particular, but
without prejudice to the generality of the foregoing, in the absence
of directions and instructions given to it by the Executive Committee
or the Contract Manager under the SSA Arrangements and having due
regard to the constraints imposed on the Settlement System
Administrator by the Charging Procedure and the resources available to
it, the Settlement System Administrator shall at all times conduct
itself in a manner calculated to achieve the principal objects and
purpose of this Agreement set out in Clauses 4.1.2 and 4.1.3.
4.2 Service Line: If the standard required of the Settlement System
Administrator for the performance of a Service is included in the
Service Line for that Service, such standard shall be deemed to be the
standard to which the Settlement System Administrator will be required
to perform to discharge its duty of care under sub-section 4.1 in
respect of that Service.
4.3 Qualification to the standard of care: If the Executive Committee or
the Contract Manager orders from a third party software design or
integration services which are similar to the software design or (as
the case may be) integration services that are the subject of Service
Line 19 (System Integration), then the Settlement System Administrator
shall not be deemed to be in breach of its standard of care under the
SSA Arrangements set out in sub-section 4.1 if and to the extent that
such breach is a direct result of the Settlement System Administrator
being required to operate new or changed software components to the
Stage 1 Settlement System which have been so designed
<PAGE>
and/or integrated by the third party without the Settlement System
Administrator being given a reasonable opportunity to satisfy itself
about the design of such components or (as the case may be) the manner
of such integration.
4.4 Limitation of liability: Subject to sub-sections 4.5 and 4.12 and save
where any provision of this Agreement provides for an indemnity to be
payable, each Party agrees and acknowledges that neither the
Settlement System Administrator nor any of its officers, employees or
agents shall be liable to any of the other Parties for loss arising
from any breach of the SSA Arrangements other than for loss directly
resulting from such breach and which at the date of this Agreement was
reasonably foreseeable as not unlikely to occur in the ordinary course
of events from such breach in respect of:-
(i) physical damage to the property of any of the other Parties
or its or their respective officers, employees or agents;
and/or
(ii) the liability of any such other Party to any other person
for loss in respect of physical damage to the property of
any other person.
4.5 Death and personal injury: Nothing in the SSA Arrangements shall
exclude or limit the liability of the Settlement System Administrator
for death or personal injury resulting from the negligence of the
Settlement System Administrator or any of its officers, employees or
agents and the Settlement System Administrator shall indemnify and
keep indemnified each of the other Parties, its officers, employees
and agents from and against all such and any loss or liability which
any such other Party may suffer or incur by reason of any claim on
account of death or personal injury resulting from the negligence of
the Settlement System Administrator or any of its officers, employees
or agents.
4.6 Exclusion of certain types of loss: Subject to sub-sections 4.5 and
4.12 and save where any provision of this Agreement provides for an
indemnity to be payable, neither the Settlement System Administrator
nor any of its officers, employees or agents shall in any circumstances
whatsoever be liable to any of the other Parties for:-
(i) any loss of profit, loss of revenue, loss of use, loss of
contract or loss of goodwill; or
(ii) any indirect or consequential loss; or
(iii) loss resulting from the liability of any other Party to any
other person howsoever and whensoever arising save as
provided in sub-section 4.4(ii) and sub-section 4.5.
4.7 Trust: Each Party acknowledges and agrees that each of the other
Parties holds the benefit of sub-sections 4.4, 4.5 and 4.6 for itself
and as trustee and agent for its officers, employees and agents.
<PAGE>
4.8 Survival: Each of sub-sections 4.4, 4.5, 4.6 and 4.7 shall:-
(i) be construed as a separate and severable contract term, and
if one or more of such sub-sections is held to be invalid,
unlawful or otherwise unenforceable the other or others of
such sub-sections shall remain in full force and effect and
shall continue to bind the Parties; and
(ii) survive termination of the appointment of ESIS as Settlement
System Administrator.
4.9 Saving: For the avoidance of doubt, nothing in this Section 4 shall
prevent or restrict any Party enforcing any obligation (including
suing for a debt) owed to it under or pursuant to this Agreement.
4.10 Full negotiation: Each Party acknowledges and agrees that the
foregoing provisions of this Section 4 have been the subject of
discussion and negotiation and are fair and reasonable having regard
to the circumstances as at the date of this Agreement.
4.11 Indemnity:
(a) In this sub-section 4.11 "Losses" means all losses, costs,
damages, expenses, liabilities and claims suffered or
reasonably incurred by the Settlement System Administrator,
its officers, employees or agents.
(b) Each Pool Member (or, in the case of any agreement entered
into for or on behalf of any class of Pool Members, each
Pool Member of that class) shall (but only in respect of its
Contributory Share at the time of receipt of the request for
indemnification) severally indemnify and keep indemnified
the Settlement System Administrator, its officers, employees
and agents against all Losses arising directly or indirectly
out of a third party claim made against the Settlement
System Administrator, its officers, employees or agents
under or pursuant to any agreement which the Settlement
System Administrator, against an Order or a request of the
Executive Committee issued or made as permitted by Part E of
the Appendix hereto, has entered into as agent for, or
otherwise on behalf of, the Pool Members and/or any class of
Pool Members and/or the Executive Committee (other than any
Losses recoverable under the Charging Procedure or arising
from the wilful default, bad faith or negligence of, or
breach of its obligations under the SSA Arrangements by, the
Settlement System Administrator, its officers, employees or
agents). For the purposes of this sub-section 4.11 the Pool
Members in general meeting shall be deemed to have approved
the Escrow Agreement and each Accession Agreement executed
prior to 1st October, 1991 and the relevant class of Pool
Members which are parties thereto shall be deemed to have
approved each deed of indemnity entered into
<PAGE>
in favour of a Pool Chairman where his period of appointment
began on or before 1st April, 1993.
4.12 Service Credits: Nothing contained in sub-sections 4.4 and 4.6 shall
in any way affect or prejudice the Settlement System Administrator's
obligation or liability to make payments in respect of Service Credits
in accordance with the terms of this Schedule.
5. PERSONNEL
5.1 Standard of Personnel: In and for the performance of the Services the
Settlement System Administrator shall engage only persons who are to
the Settlement System Administrator's knowledge suitably qualified,
skilled and honest and shall (where appropriate) provide such persons
with the requisite training for the work which they are to perform.
5.2 Account Manager: The Settlement System Administrator:-
(a) shall from time to time, after consultation with the Chief
Executive, nominate a person with responsibility for liaison
with the Contract Manager regarding the provision of the
Services;
(b) may also from time to time nominate up to two alternates for
that person; and
(c) shall have the right to remove the Account Manager at any
time provided that the Settlement System Administrator shall
ensure that there shall at all times be an Account Manager.
The Settlement System Administrator shall notify the Executive
Committee forthwith in writing of each nomination and removal of an
Account Manager and shall procure that the Account Manager shall be
available to be contacted by the Contract Manager at all reasonable
times during the provision of the Services.
5.3 Contract Manager: The Executive Committee:-
(a) shall from time to time, after consultation with the
Settlement System Administrator, nominate a person with
responsibility for liaison with the Account Manager
regarding the provision of the Services;
(b) may also from time to time nominate up to two alternates for
that person; and
(c) shall have the right to remove the Contract Manager at any
time provided that the Executive Committee shall ensure that
there shall at all times be a Contract Manager.
<PAGE>
The Executive Committee shall notify the Settlement System
Administrator forthwith in writing of each nomination and removal of a
Contract Manager and shall procure that the Contract Manager shall be
available to be contacted by the Account Manager at all reasonable
times.
5.4 Restriction on recruiting Personnel:
5.4.1 From 1st April, 1994 until the date falling twelve months
(or such other period as the Settlement System Administrator
and the Executive Committee may agree) after the Termination
Date or, if there is a Post-Termination Period, the last day
of the Post-Termination Period:-
(a) ESIS shall not without the prior written consent
of the Chief Executive employ, solicit or entice
or endeavour to solicit or entice away from the
Chief Executive's Office any person who at that
time is, or was within the previous six months, an
employee or member of staff of the Chief
Executive's Office or of another person seconded
to the Chief Executive's Office; and
(b) Pool Members shall procure that neither the Chief
Executive nor any member of the Chief Executive's
Office nor any Committee Member shall without the
prior written consent of ESIS employ, solicit or
entice or endeavour to solicit or entice away from
ESIS any person who at that time is, or was within
the previous six months, an employee or member of
staff of ESIS.
Each undertaking contained in this paragraph 5.4.1 shall be
construed as a separate undertaking and if one or more of
the undertakings is held to be against the public interest
or unlawful or in any way an unlawful restraint of trade,
the remaining undertakings shall continue to bind the
relevant Party.
5.4.2 Breach by ESIS of its obligations under paragraph 5.4.1(a)
above shall not entitle the Executive Committee to terminate
the appointment of ESIS as Settlement System Administrator
under this Agreement and breach by a Pool Member of its
obligations under paragraph 5.4.1(b) above shall not
constitute a breach by a Pool Member of its obligations for
the purposes of Section 28, but in each case shall only
entitle such other party to claim damages or to bring
proceedings for an injunction.
6. DUTIES AND RESPONSIBILITIES OF THE SETTLEMENT SYSTEM ADMINISTRATOR
Responsibilities: Without prejudice to the generality of the duties,
responsibilities and obligations of the Settlement System Administrator provided
elsewhere in the SSA Arrangements, the Settlement System Administrator shall:-
<PAGE>
6.1 The Stage 1 Settlement System: Comply with its obligations under the
SSA Arrangements in respect of the day-to-day operation of the Stage 1
Settlement System;
6.2 Back-up arrangements: In accordance with Service Line 7 (Disaster
Recovery), maintain back-up arrangements for the day-to-day operation
of the Stage 1 Settlement System;
6.3 Metering: Comply with its obligations under Part XV of and Schedule 21
to this Agreement;
6.4 Works Programmes: Subject to the availability of resources, co-operate
in the preparation, finalisation and implementation of all Works
Programmes in respect of which the Settlement System Administrator is
not appointed Works Programme Manager;
6.5 Recommendations: At the invitation of the Executive Committee or of
its own initiative, recommend to the Executive Committee changes to
the Settlement System and the SSA Arrangements;
6.6 Records: In accordance with Service Line 6 (Off-site Security), on the
instruction of the Executive Committee maintain such records, data and
other information as the Pool Auditor may from time to time by notice
in reasonable detail to the Executive Committee require for the
purposes of Part IX of this Agreement provided that this obligation
shall cease to apply to the Settlement System Administrator following
its resignation or removal;
6.7 Provision of information (1): Subject to any statutory or Licence
obligations, provide the Executive Committee upon request with
reports, data and other information concerning the Stage 1 Settlement
System (other than information which is exclusively confidential to
and the property of the Settlement System Administrator) required by
the Executive Committee and which the Settlement System Administrator
is required to retain under sub-section 6.6. Each of the Parties
agrees to the release of all such reports, data and other information
in the circumstances described in this sub-section 6.7;
6.8 Provision of information (2): Provide the Pool Auditor upon request
with reports, data and other information concerning the Stage 1
Settlement System required by the Pool Auditor and which the
Settlement System Administrator is required to retain under
sub-section 6.6. Each of the Parties agrees to the release of all such
reports, data and other information in the circumstances described in
this sub-section 6.8;
6.9 Provision of information (3): Provide each Pool Member, the Ancillary
Services Provider and the Grid Operator upon request with a certified
copy of such records, data and other information concerning amounts
payable by or to such Pool Member, the Ancillary Services Provider and
the Grid Operator in accordance with Service Line 10 (Service to
<PAGE>
CEO and Pool Members). Each of the Parties agrees to the release of
all such records, data and other information in the circumstances
described in this sub-section 6.9;
6.10 Pool Rules: Perform those specific duties and responsibilities
ascribed to it in the Pool Rules;
6.11 Arrangements with the Grid Operator and Ancillary Services Provider:
Make and maintain arrangements with the Grid Operator and the
Ancillary Services Provider in accordance with Clause 29.2;
6.12 Arrangements with the Pool Funds Administrator: Make and maintain
arrangements with the Pool Funds Administrator in accordance with
Clause 29.3; 6.12A Arrangements with the Initial Settlement and
Reconciliation Agent: Make and maintain arrangements with the Initial
Settlement and Reconciliation Agent in accordance with Clause 29.4.
6.13 Notification of arrangements: Provide, upon request, the Executive
Committee with details of its arrangements for the time being in
effect with each of the Grid Operator, the Ancillary Services
Provider, the Pool Funds Administrator and the Initial Settlement and
Reconciliation Agent referred to in sub-section 6.11, 6.12 or (as the
case may be) 6.12A;
6.14 Estimates for the Pool Funds Administrator: Without prejudice to its
obligations under sub-section 17.8 of Schedule 11, where the
Settlement System Administrator is unable for whatever reason to
provide the Pool Funds Administrator with the actual information
required from it in respect of each Settlement Day for each Pool
Member, the Ancillary Services Provider and the Grid Operator, provide
the Pool Funds Administrator in accordance with Service Line 2 (Stage
1 Settlement Process) with its best estimates of that information by
the same time as it is required to provide the actual information;
6.14A Estimates for ISRA: Without prejudice to its obligations under Clause
29.4, where the Settlement System Administrator is unable for whatever
reason to provide the Initial Settlement and Reconciliation Agent with
the actual information required from it in respect of each Settlement
Day, provide the Initial Settlement and Reconciliation Agent in
accordance with Service Line 2 (Stage 1 Settlement Process) with its
best estimates of that information by the same time as it is required
to provide the actual information;
6.15 Advisory obligations:
6.15.1 Report to the Executive Committee and/or the Contract
Manager on those matters set out or referred to in the
Service Lines in the manner and within the timescales
prescribed thereby;
<PAGE>
6.15.2 Report promptly in writing to the Executive Committee:-
(a) any problem with the Settlement System or its then
current operation that is putting pressure on the
due and punctual performance by the Settlement
System Administrator of any Service; and
(b) any problem of which the Settlement System
Administrator is or becomes aware about the likely
future operation of the Settlement System arising
out of the way in which the Settlement System is
then currently being operated;
6.16 Quality management system and procedures:
6.16.1 Establish and keep under review a quality management system
that is designed to enable the Settlement System
Administrator to meet the standards set out or referred to
in sub-sections 4.1 and 4.2 and under that system prepare
and keep under review procedures to meet such standards;
6.16.2 Provide the Executive Committee on request with copies of
such procedures and notify the Executive Committee of any
changes made thereto or, where such changes require
contribution or input from all or any of the Parties or Pool
Agents, any proposed changes thereto; and
6.16.3 Consider any comments or any proposed changes on or to such
procedures made by or on behalf of the Executive Committee
from time to time;
6.17 Documentation: Maintain up-to-date manuals, specifications and similar
documentation for the provision of the Services and provide the
Executive Committee on request with copies of such manuals,
specifications and similar documentation;
6.18 Long-term forecasting procedures: Having regard to its knowledge of
the requirements of the Executive Committee and the Pool Members:-
(a) consult the Contract Manager in respect of the Settlement
System Administrator's long term planning for the use and
allocation of resource cover;
(b) following consultation with the Contract Manager pursuant to
paragraph (a) above, plan for anticipated future
requirements of the Executive Committee and Pool Members;
(c) maintain internal financial controls to ensure that the
objectives of this Schedule and the Appendix hereto are met;
and
<PAGE>
(d) provide the Executive Committee as appropriate or on request
with a report of the results and/or impact of the matters
arising from the consultation referred to in paragraph (a)
above;
6.19 Provision of Stage 1 Hardware:
6.19.1 Provide Stage 1 Hardware subject to compliance by the
Settlement System Administrator with its obligations under
the remainder of this sub-section;
6.19.2 Be entitled to change the Stage 1 Hardware provided that:-
(a) the Settlement System Administrator has given to
the Executive Committee reasonable prior notice of
the intention to change the Stage 1 Hardware;
(b) the Settlement System Administrator has given to
the Executive Committee reasonable details of the
proposed change, together with a timetable for
implementation, at the time notice is given under
paragraph (a) above;
(c) the impact (if any) on the Stage 1 Software is
detailed in the notice given under paragraph (a)
above and, if there shall be any such impact, the
proposed change to the Stage 1 Software shall
proceed in accordance with the Change Management
Policies save that Settlement Goal Enhancements
and Emergency Fixes (other than, for the avoidance
of doubt, interfaces from other Stage 1 Software)
shall be implemented in accordance with Section 6
of Schedule 35;
(d) any such change will not materially affect the
operation or function of the Settlement System;
and
(e) all costs associated with any such change shall be
met by the Settlement System Administrator (and
shall not be recharged to Pool Members) except
where any such change is agreed as a Settlement
Goal Enhancement (as defined in Schedule 35);
6.19.3 Subject to any restrictions relating to Equipment (as
defined in the Type 1 Goal Licence) contained in the Type 1
Goal Licence, make changes to the Stage 1 Hardware required
by Pool Members, acting through the Executive Committee
(including such changes to such hardware caused or
occasioned by the introduction of a Settlement Goal
Enhancement), provided that the Settlement System
Administrator shall notify Pool Members in accordance with
the Change Management Policies and appropriate changes to
the Service Lines and/or the Menus of Prices shall be agreed
in accordance with the Appendix hereto;
<PAGE>
6.20 Performance Improvement Programme: Seek to identify and give support
to initiatives which may form the basis of Performance Improvement
Programmes;
6.21 Data input and validation:
6.21.1 Promptly and properly input such data and other information
as it may receive pursuant to the terms of this Agreement;
6.21.2 Review and validate data and other information in accordance
with the Agreed Procedures to establish the completeness
thereof and to identify any inconsistencies therein;
6.22 Software Development:
6.22.1 Be entitled to attend the Development Project Board (as
defined in the Stage 1 Development Policies) for each
development project undertaken pursuant to the Stage 1
Development Policies and where the project will impact the
Stage 1 Settlement System (but shall not have any voting
rights as an attendee at the Development Project Board);
6.22.2 Be obliged to attend the Development Project Board
throughout the entire project life cycle of the relevant
development project from the initiation of such development
project until successful completion of integration, system
and user acceptance testing therefor and acceptance of such
development project by the Development Project Board; and
6.22.3 Be obliged to raise in a timely manner with the Development
Project Board any concerns which the Settlement System
Administrator may have about the development project in
question or its progress.
7. PERFORMANCE OF DUTIES
7.1 Independent contractor: In carrying out its duties and
responsibilities under the SSA Arrangements, the Settlement System
Administrator shall act as an independent contractor and (unless
expressly authorised to the contrary) shall neither act nor hold
itself out nor be held out as acting as agent for any of the other
Parties.
7.2 Delegation:
7.2.1 Subject as provided in paragraphs 7.2.2 and 7.2.3, the
Settlement System Administrator may delegate the performance
of all or any of its duties and responsibilities under the
SSA Arrangements to agents or contractors.
<PAGE>
7.2.2 The Settlement System Administrator shall be entitled to
delegate the performance of all or any of its duties and
responsibilities under the SSA Arrangements provided that
they are not duties or responsibilities which are in respect
of any significant matter (unless the prior written approval
of the Executive Committee under paragraph 7.2.3 has been
given).
7.2.3 In giving any such approval as is referred to in paragraph
7.2.2 the Executive Committee shall specify the particular
duties and responsibilities which may be delegated and to
whom and for what period. On receipt of such approval the
Settlement System Administrator may delegate its duties and
responsibilities only to the extent of the terms of such
approval.
7.2.4 As between the Settlement System Administrator and the other
Parties, no delegation pursuant to this sub-section 7.2 or
pursuant to Clause 60.15 nor the terms or conditions of any
contract pursuant to which any such delegation is effected
shall relieve the Settlement System Administrator of any of
its duties or responsibilities under the SSA Arrangements.
The Settlement System Administrator shall at all times
properly supervise the performance of all such delegates.
7.2.5 For the avoidance of doubt, the term "delegation" as used in
this sub-section 7.2 includes sub-contracting.
The right to delegate as set out in this sub-section 7.2 is subject to
the restrictions contained in any Type 1 Goal Licence granted to the
Settlement System Administrator pursuant to the provisions of Schedule
35.
8. RESPONSIBILITY FOR THE SSA SYSTEM
8.1 The SSA System: The Settlement System Administrator shall have control
of the running and development of the SSA System, subject to the
restrictions set out in this Section 8.
8.2 Developed software:
8.2.1 (i) In relation to any Software developed by the
Settlement System Administrator, the Settlement
System Administrator shall procure that all
intellectual property rights therein shall vest in
the Settlement System Administrator absolutely;
(ii) in the case of Software commissioned from a third
party or where rights in Software are purchased,
the Settlement System Administrator shall procure
that all intellectual property rights therein are
transferred to the Settlement System
Administrator; and
<PAGE>
(iii) where the Settlement System Administrator
customises, or commissions the customisation of,
any Software licensed from any third party, the
Settlement System Administrator shall procure that
all intellectual property rights in such Software
shall vest in the Settlement System Administrator.
8.2.2 Pool Members confirm and agree:-
(i) that they have no objection to intellectual
property rights referred to in paragraph 8.2.1
being held in this way; and
(ii) that, subject to the remaining provisions of this
Section 8 and to Section 9, the Settlement System
Administrator shall have the right of use of such
intellectual property rights as an absolute owner.
8.2.3 The Settlement System Administrator hereby grants to Pool
Members a royalty free, non-exclusive, irrevocable,
perpetual and transferable licence to use, copy and develop
the Software referred to in paragraph 8.2.1 without
limitation or restriction for the purposes of operating the
Settlement System within the United Kingdom. The licence
granted hereunder may be assigned by Pool Members, without
limitation or restriction, to their nominee. If Pool Members
or their nominee, as the case may be, should wish to use,
copy or develop any such Software in any territory outside
the United Kingdom or for any purpose other than the
operation of the Settlement System, then the Settlement
System Administrator shall grant to Pool Members or their
nominee, as the case may be, a licence so to use, copy or
develop such Software in such territory on fair and
reasonable commercial terms.
8.2.4 For the avoidance of doubt, this sub-section 8.2 shall not
apply to Settlement Goal.
8.3 Licensed software: In respect of any other Software, not developed
internally, purchased or commissioned, the Settlement System
Administrator shall ensure that it has a fully transferable licence
(such transfer to include the transfer to any successor Settlement
System Administrator) to use and develop such Software, together with
(unless the Executive Committee otherwise notifies the Settlement
System Administrator) suitable escrow arrangements for any Software
for which the source code and full documentation has not been provided
or which is not freely available. No further fee shall be payable in
respect of any transfer of the licence to any nominee of Pool Members
under Section 21 except to the extent that the licensor may continue
to charge the same licence fees to the transferee.
8.4 Third party maintenance: Except in circumstances beyond the Settlement
System Administrator's control, the SSA System shall be fully
maintained, by third party
<PAGE>
maintenance organisations to the extent that the Software is not
developed internally, and the SSA System shall be fully documented so
that it can be operated by any successor to the Settlement System
Administrator. The Settlement System Administrator shall promptly
notify the Executive Committee upon the Settlement System
Administrator becoming aware that the SSA System will cease to be
maintained by such a third party maintenance organisation.
8.5 SSA System changes: The Settlement System Administrator shall be free
to make any changes to the SSA System, except to the extent that (a)
the modification necessitates any change to the Developed Application
Software or Licensed Application Software or (b) it detrimentally
affects the operation of the Settlement System or (c) it necessitates
any change to the ISRA System or the Stage 2 Software or any other
aspect of the Stage 2 Settlement System to and from which the SSA
System (or any part thereof) has an interface.
8.6 Maintenance of the SSA System Software: Without prejudice to Section
10, in respect of any Software related to the SSA System which is
written, commissioned or customised by the Settlement System
Administrator, the Settlement System Administrator shall maintain
support for, and where necessary fix any bugs in, such Software from
the Termination Date until the expiry of the Post-Termination Period,
if any, and the costs of maintaining that support and fixing the bugs
shall be as agreed between the Settlement System Administrator and the
Contract Manager and shall be recovered in accordance with the Charging
Procedure.
8.7 Settlement Goal:
8.7.1 The Settlement System Administrator shall be deemed to have
complied with its obligations set out in sub-section 8.3
solely in so far as they relate to Settlement Goal if it has
entered into and has in force a licence agreement with NGC
in the terms of the Type 1 Goal Licence.
8.7.2 The Settlement System Administrator shall be deemed to have
complied with its obligations set out in the first sentence
of sub-section 8.4 solely in so far as they relate to
Settlement Goal if it has entered into and has in force a
support and maintenance agreement with NGC in the terms of
the Type 1 Support and Maintenance Agreement.
8.7.3 Where the introduction of a Settlement Goal Enhancement or
Emergency Fix to Settlement Goal causes or occasions changes
to be required to the SSA System, all costs associated with
such changes shall be recharged to Pool Members in
accordance with the Charging Procedure.
<PAGE>
9. SOFTWARE
9.1 Definitions: In this Section 9:-
"Developed Application Software" means those computer programs and
codes described in the Contract Management Rules from time to time and
all copyright and other intellectual property rights therein and all
documents and materials forming part thereof or relating thereto; and
"Licensed Application Software" means those computer programs and
codes (including for the avoidance of doubt Settlement Goal) described
in the Contract Management Rules from time to time.
9.2 Ownership and licensing of software:
9.2.1 The Settlement System Administrator hereby declares and
undertakes that it holds all existing and future
intellectual property rights that exist or may exist in the
Developed Application Software, including all past, present
and future modifications, alterations or amendments thereto,
in trust and as nominee for the Pool Members and the
Settlement System Administrator undertakes, at the request
of the Executive Committee or any nominee of Pool Members,
to assign to Pool Members or such nominee (as the case may
be) all such intellectual property rights that subsist in
such Developed Application Software. The trust hereby
created shall pursuant to section 1(1) of the Perpetuities
and Accumulations Act 1964 be of a duration of 80 years from
1st April, 1998.
9.2.2 If intellectual property rights in Developed Application
Software are assigned to Pool Members or their nominee
pursuant to paragraph 9.2.1, Pool Members undertake to grant
(or, as the case may be, procure that their nominee grants)
contemporaneously:-
(i) to the Settlement System Administrator:-
(a) a royalty free, perpetual and
non-transferable licence to use and
develop such Developed Application
Software solely for the purpose of
providing the Services (such licence to
include the right to copy, adapt and
modify such Developed Application
Software for such purpose); and
(b) upon Pool Members or, as the case may
be, their nominee agreeing fair and
reasonable commercial terms and
conditions with the Settlement System
Administrator, including the payment of
royalties to the Pool Members or their
nominee, a
<PAGE>
licence to use and develop such
Developed Application Software for its
own commercial purposes; and
(ii) to NGC, a royalty free and perpetual licence to
use and develop the CDCS software (if any) forming
part of the Developed Application Software the
intellectual property rights in which are so
assigned to Pool Members or their nominee for the
following purposes:-
(a) the operation and planning of the NGC
Transmission System;
(b) the calculation of charges and
preparation of offers of terms for
connection to or use of the NGC
Transmission System;
(c) the operation and planning of the
Ancillary Services Business and the
calculation of charges therefor;
(d) the operation of the Stage 1 Settlements
Business; and
(e) the provisions of information under the
British Grid Systems Agreement and the
EdF Documents,
such licence to be non-transferable except as
between NGC and its affiliates or, as the case may
be, between affiliates of NGC.
9.2.3 The Settlement System Administrator shall have the right
upon the appointment of any successor Settlement System
Administrator to assign to such successor Settlement System
Administrator all such intellectual property rights that
subsist in the Developed Application Software and as a
consequence of such assignment terminate the trust created
pursuant to paragraph 9.2.1. Pool Members shall use their
reasonable endeavours to ensure that any such successor
Settlement System Administrator accepts such assignment.
9.2.4 The Settlement System Administrator:-
(i) represents, warrants and undertakes that the
Licensed Application Software is, and for so long
as the Settlement System Administrator remains as
such will remain, the subject of a non-exclusive
licence in favour of the Settlement System
Administrator transferable to its successor
Settlement System Administrator provided that the
Settlement System Administrator shall be deemed to
have complied with the provisions of this
paragraph 9.2.4(i), solely in so far as they
relate to Settlement Goal, if it has entered into
and has a current Type 1 Goal Licence; and
<PAGE>
(ii) undertakes to use all reasonable endeavours to:-
(a) assign or novate, or procure the
assignment or novation, of any licence
for Licensed Application Software to the
successor Settlement System
Administrator as soon as is reasonably
practicable and to obtain any consent
necessary for that purpose; or
(b) procure the grant by the relevant
licensor to the successor Settlement
System Administrator of a licence in
respect of Licensed Application Software
as soon as is reasonably practicable,
so that the licence held by the successor
Settlement System Administrator is on terms no
less favourable to it than the terms of the
licence held by the Settlement System
Administrator and without payment of a fee by Pool
Members or the successor Settlement System
Administrator (except to the extent that the
licensor may continue to charge the same licence
fee to the transferee or in the case of a Type 1
Goal Licence such other fee as may be specified in
sub-section 3.2 of Schedule 35).
9.3 Re-engineered Settlement System: For the avoidance of doubt, all
Parties agree that all existing and future intellectual property
rights of whatsoever nature subsisting in the Re-engineered Settlement
System (as defined in the Appendix) shall vest in Pool Members or, at
the direction of the Executive Committee, in a nominee of Pool
Members. The Settlement System Administrator hereby assigns to Pool
Members or their nominee, as the case may be, with full title
guarantee all such existing and (to the extent that future assignment
is permitted by law) all future intellectual property rights that
exist or may exist in the Re-engineered Settlement System and, to the
extent that such future intellectual property rights that exist, or
may exist, in such Re-engineered Settlement System are not hereby
assigned to Pool Members or their nominee, as the case may be, the
Settlement System Administrator undertakes to do all such acts and
execute all such documents as may be necessary or desirable to give
full effect to the assignment of such intellectual property rights.
10. MAINTENANCE ARRANGEMENTS
Maintenance arrangements: The Settlement System Administrator shall
without prejudice to the terms of any Type 1 Goal Licence granted to
the Settlement System Administrator:-
(a) ensure that at all times it has in full force and effect
proper arrangements for the maintenance of (and the prompt
rectification of defects in) the Stage 1
<PAGE>
Hardware and Stage 1 Software provided that in relation to
Developed Application Software such maintenance shall not be
required to extend beyond the implementation of a corrective
procedure or a remedy to such Software to allow for the
continued running of such Software in accordance with its
specification provided that the Settlement System
Administrator shall be deemed to have complied with the
provisions of this sub-section 10(a), solely in so far as
they relate to Settlement Goal, if it has entered into and
has a current Type 1 Support and Maintenance Agreement;
(b) upon reasonable request of the Executive Committee or its
nominee, confirm to the Executive Committee or its nominee
in writing the existence of such maintenance arrangements in
respect of the Stage 1 Hardware and the SSA System; and
(c) upon reasonable request of the Executive Committee or its
nominee, supply evidence reasonably satisfactory to the
Executive Committee or its nominee of the existence and
nature of such maintenance arrangements in respect of the
Developed Application Software and the Licensed Application
Software.
11. AUDIT ACCESS
Access:
11.1 The Settlement System Administrator shall subject to the terms of any
Type 1 Goal Licence granted to the Settlement System Administrator:-
(a) permit the Pool Auditor unrestricted access to the Stage 1
Settlement System, the Stage 1 Hardware and the Stage 1
Software and all data used, information held and records
kept by the Settlement System Administrator or its agent or
sub-contractors in operating the Stage 1 Settlement System;
(b) use reasonable endeavours to procure that each Second Tier
Agent, each Second Tier Agent's agent (if any) and each
Second Tier Agent's sub-contractor (if any) permits the Pool
Auditor unrestricted access to the Second Tier Hardware and
Second Tier Software, to its agency or sub-contracting
operations and to all data used, information held and
records kept by each such Second Tier Agent, Second Tier
Agent's agent and/or Second Tier Agent's sub-contractor, in
each case for so long as such agent or other person
continues to perform the relevant functions and thereafter
for so long as reasonably required by the Executive
Committee;
(c) make available members of its staff to explain the operation
of the Stage 1 Settlement System and such other issues as
the Pool Auditor considers relevant; and
<PAGE>
(d) use reasonable endeavours to procure that each Second Tier
Agent, each Second Tier Agent's agent (if any) and each
Second Tier Agent's sub-contractor (if any) makes available
members of its staff to explain its operation of its agency
or sub-contracting operations, the Second Tier Hardware and
the Second Tier Software and such other issues as the Pool
Auditor considers relevant, in each case for so long as such
agent or other person continues to perform the relevant
functions and thereafter for so long as reasonably required
by the Executive Committee.
11.2 ESIS in its capacity as Settlement System Administrator shall procure
that, in addition to ESIS's auditor auditing the annual accounts of
ESIS for a particular financial year, that auditor shall report in
writing to the Executive Committee the Gross Margin for that financial
year and shall deliver that report to the Executive Committee no later
than the date upon which such annual accounts are laid before ESIS in
general meeting or otherwise published or issued (if earlier).
11.3 The Settlement System Administrator shall permit an auditor appointed
by the Executive Committee access to the operations and business of
the Settlement System Administrator to confirm that the quality
management procedures and billing practices applied by the Settlement
System Administrator under the terms of the SSA Arrangements are being
complied with. The terms of reference for each such audit will be
agreed by the auditor with ESIS, such agreement not to be unreasonably
withheld.
12. INSURANCE RESPONSIBILITIES
12.1 Insurance requirements: Subject to the availability in the insurance
market of such insurances, the Settlement System Administrator shall
effect and maintain in full force and effect with first class insurers
the following insurances:-
12.1.1 insurance with respect to (a) physical loss or damage to
each of the Hardware (including Second Tier Hardware) and
Software (including Second Tier Software) and (b) corruption
of the Software (including Second Tier Software) and related
computer data, in each case in an amount equivalent to its
replacement cost, except, with effect from 1st April, 1994,
insofar as concerns any Second Tier Hardware and Second Tier
Software owned and/or operated by any particular Second Tier
Agent where such Second Tier Agent has agreed with the
Settlement System Administrator substantially to the effect,
inter alia, that:-
(a) the Second Tier Agent will effect and maintain in
full force and effect with first class insurers
insurance with respect to (i) physical loss or
damage to each of such Second Tier Hardware and
Second Tier Software and (ii) corruption of such
Second Tier Software and related computer data, in
each case in an amount equivalent to its
correction cost;
<PAGE>
(b) the Second Tier Agent shall promptly on request
provide to the Settlement System Administrator an
insurance broker's certificate having a form and
content as specified in sub-section 12.3 and
evidence that the Second Tier Agent has paid the
relevant premiums; and
(c) if the Second Tier Agent has not so insured and
paid the relevant premiums the Settlement System
Administrator shall, on behalf of the Second Tier
Agent, take out such insurance and pay such
premiums and recover the cost of the same from the
Second Tier Agent; and
provided that, in the case of paragraph (c) above, where:-
(i) the Settlement System Administrator is
aware that the Second Tier Agent has not
so insured in accordance with paragraph
(a) above; and
(ii) a period of fourteen days since the
Settlement System Administrator first
became aware that the Second Tier Agent
had not insured in accordance with
paragraph (a) above has elapsed, during
which period the Second Tier Agent has
not so insured in accordance with
paragraph (a) above,
the Settlement System Administrator shall so take out such
insurance in the name of such Second Tier Agent unless,
after having sought, to the extent that it is able, such
information from the Second Tier Agent as is necessary for
the purposes of obtaining such insurance, it has failed to
obtain such information; and
12.1.2 professional indemnity insurance as Settlement System
Administrator in an amount of not less than
(pound)20,000,000 any one claim and (pound)20,000,000 all
claims in any one year (or such greater amount as may from
time to time be reasonably required by the Executive
Committee after consultation with the Settlement System
Administrator or such lesser amount as may from time to time
be agreed between the Executive Committee and the Settlement
System Administrator).
12.2 Application of proceeds: The Settlement System Administrator shall use
all reasonable endeavours:-
(a) in the case of insurance referred to above where it is the
insured to make and collect claims promptly; and
(b) in the case of insurance where its Second Tier Agent is the
insured, to procure that such Second Tier Agent makes and
collects claims promptly,
<PAGE>
and shall apply and, as appropriate, shall procure that its Second
Tier Agent applies, all moneys so received by it in respect of the
insurance referred to in this Section 12 in or towards making good the
loss and fully repairing the damage or (as the case may be) satisfying
the relevant liability in respect of which such moneys were receivable
or reimbursing the cost of the same.
12.3 Information requirements: The Settlement System Administrator shall
promptly supply the Executive Committee upon request from time to time
with an insurance broker's certificate in form and content reasonably
satisfactory to the Executive Committee confirming that cover has been
effected, whether by it or its Second Tier Agent, in respect of the
insurance referred to in sub-section 12.1 and giving reasonable
details of the terms and conditions of such insurance.
12.4 Default: If the Settlement System Administrator shall default in the
performance of its obligations under this Section 12, the Executive
Committee shall have the right (but shall not be obliged) to make the
appropriate insurance arrangements and shall have the right to recover
from the Settlement System Administrator any costs incurred (including
any handling fee).
12.5 Change in insurance requirements:
12.5.1 If at the request of the Executive Committee the sums
insured under the Settlement System Administrator's
professional indemnity insurance are increased, the amount
of any resultant increase in the insurance premium shall be
recovered by the Settlement System Administrator (assuming
that it has borne the same) in accordance with the Charging
Procedure.
12.5.2 If at the request of the Executive Committee the amount of
the excess or deductible under the Settlement System
Administrator's professional indemnity insurance is
increased and there is a resultant decrease in the insurance
premium payable, the amount of such decrease shall be
reimbursed by the Settlement System Administrator to Pool
Members under the Charging Procedure (assuming that Pool
Members have already paid the Settlement System
Administrator on the basis of a higher premium) provided
that in the event of a claim against the Settlement System
Administrator in respect of which a payment is or (but for
such increase in the excess or deductible) would have been
made to the Settlement System Administrator under its
professional indemnity insurance Pool Members shall be
required themselves to bear in aggregate the first part of
any such claim up to the amount of such increased excess or
deductible and in satisfaction of that obligation shall
reimburse the same to the Settlement System Administrator in
accordance with the Charging Procedure.
12.5.3 If in any other case the sums insured under the Settlement
System Administrator's professional indemnity insurance are
changed from the amounts
<PAGE>
referred to in paragraph 12.5.1 or the amount of the excess
or deductible thereunder is changed from the amount referred
to in paragraph 12.5.2, any resultant increase in the
insurance premium payable shall be for the Settlement System
Administrator's own account and shall not be recoverable by
it from the other Parties.
12.6 Type 1 Goal Licence: The provisions of this Section 12 are without
prejudice to the terms of any Type 1 Goal Licence granted to the
Settlement System Administrator.
13. TERM AND TERMINATION OF THE APPOINTMENT OF ESIS
13.1 Term and Termination: ESIS's appointment as Settlement System
Administrator shall be for a term (subject to sub-section 13.2 and
Section 17) expiring on 31st March, 2002 and shall continue thereafter
until:-
(a) this Agreement is terminated pursuant to Clause 67.4, in
which event the provisions of sub-section 13.2 shall apply;
or
(b) ESIS resigns its appointment in accordance with Section 14;
or
(c) ESIS is removed as Settlement System Administrator in
accordance with Section 15, 16 or 17.
13.2 Termination pursuant to Clause 67.4: If this Agreement is terminated
pursuant to Clause 67.4 then:-
(a) if the effective date of termination of this Agreement is
after 31st March, 1999, the Termination Date shall be deemed
for the purposes of allocating costs between ESIS and Pool
Members to be 31st March, 1999 and the provisions of Section
23 shall apply mutatis mutandis; and
(b) if the effective date of termination of this Agreement is on
or before 31st March, 1999, the Termination Date shall be
deemed for the purposes of allocating costs between ESIS and
Pool Members to be 31st March, 1999 and the provisions of
Section 24 shall apply mutatis mutandis.
14. RESIGNATION BY ESIS
Resignation procedure: After consultation between the Settlement System
Administrator and the Executive Committee, and the Director having given his
prior written consent, ESIS may give 12 months' notice in writing (the
"Resignation Notice") to the Executive Committee (which shall forthwith notify
all Pool Members) and the Director of its intention to resign as Settlement
System Administrator to take effect on a date (in this Section 14, the
"Termination Date") not
<PAGE>
earlier than 1st April, 2002 and, subject to Section 20, the appointment of ESIS
as Settlement System Administrator shall terminate on the Termination Date.
15. REMOVAL OF ESIS AFTER 31ST MARCH, 2004
Removal procedure: After consultation between the Settlement System
Administrator and the Executive Committee ESIS may be removed as Settlement
System Administrator at any time after 31st March, 2004 where:-
(a) a resolution of the Pool Members in general meeting
resolving to remove ESIS as Settlement System Administrator
has been passed by either:-
(i) Pool Members holding not less than 80 per cent. of
the Total Weighted Votes of Pool Members who are
entitled to vote in person or by proxy at a
general meeting of Pool Members or deemed
effective pursuant to Clause 13.5; or
(ii) Pool Members holding less than 80 per cent. of the
Total Weighted Votes of Pool Members who are
entitled to vote in person or by proxy at a
general meeting of Pool Members, but only where
there is no more than one dissentient Pool Member;
(b) the Director has given his prior written consent in the
light of the resolution passed in accordance with paragraph
(a) above; and
(c) the Executive Committee has given the Settlement System
Administrator after such resolution has been passed or
deemed effective (which the Executive Committee shall
promptly do) 12 months' notice in writing (in this Section
15, the "Removal Notice") of such removal (or such longer
period of notice as the Director may determine in response
to the application made to him for the purposes of paragraph
(b) above) to take effect on the date being no earlier than
1st April, 2004 specified in the Removal Notice (in this
Section 15, the "Termination Date") and, subject to Section
20, the appointment of ESIS as Settlement System
Administrator shall terminate on the Termination Date.
16. REMOVAL OF ESIS ON OR BEFORE 31ST MARCH, 2004
Removal procedure: Subject to sub-section 13.1, ESIS may be removed as
Settlement System Administrator at any time on or before 31st March, 2004
where:-
(a) (i) the Executive Committee has carried out one or
more market tests of the price of the Production
Services pursuant to section 9 of Part B of the
Appendix and the results of such market test(s)
indicate that, taken as a
<PAGE>
whole, the Production Services could be obtained
at a lower comparable price from one or more other
suppliers; or
(ii) Pool Members in general meeting have resolved that
a contract to perform the functions of both
Settlement System Administrator and Initial
Settlement and Reconciliation Agent should be
awarded to a single person and that an invitation
to tender for that combined role should be issued;
(b) a resolution of the Pool Members in general meeting
resolving to remove ESIS as Settlement System Administrator
has been passed by either:-
(i) Pool Members holding not less than 80 per cent. of
the Total Weighted Votes of Pool Members who are
entitled to vote in person or by proxy at a
general meeting of Pool Members or deemed
effective pursuant to Clause 13.5; or
(ii) Pool Members holding less than 80 per cent. of the
Total Weighted Votes of Pool Members who are
entitled to vote in person or by proxy at a
general meeting of Pool Members, but only where
there is no more than one dissentient Pool Member;
(c) the Director has given his prior written consent in the
light of the resolution passed in accordance with paragraph
(b) above; and
(d) the Executive Committee has given the Settlement System
Administrator after such resolution has been passed or
deemed effective (which the Executive Committee shall
promptly do) 12 months' notice in writing (in this Section
16, the "Removal Notice") of such removal (or such longer
period of notice as the Director may determine in response
to the application made to him for the purposes of paragraph
(b) above) to take effect on the date falling before 1st
April, 2004 specified in the Removal Notice (in this Section
16, the "Termination Date") and, subject to Section 20, the
appointment of ESIS as Settlement System Administrator shall
terminate on the Termination Date.
17. REMOVAL OF ESIS
17.1 Breach of obligations capable of remedy: If the Settlement System
Administrator fails in any persistent, material respect or in any
single, major respect to perform or comply with any of the obligations
expressed to be assumed by it under the SSA Arrangements and such
failure, in the reasonable opinion of the Executive Committee, is
capable of remedy, the Executive Committee shall have the right to
give notice in writing (the "Remediable Removal Notice") to the
Settlement System Administrator giving details of the relevant failure
and requiring that such failure be remedied within 30 days (or such
longer period
<PAGE>
as may be necessary but in any event within 90 days or any longer
period as may be reasonable and agreed between the Settlement System
Administrator and the Executive Committee) from the date of receipt by
the Settlement System Administrator of the Remediable Removal Notice
and, if a longer period is reasonable, that within 30 days from the
said date of receipt the Settlement System Administrator agree a
timetable with the Executive Committee for the remedy of such failure
(such agreement not to be unreasonably withheld).
17.2 Breach of obligations incapable of remedy: If the Settlement System
Administrator fails in any persistent, material respect or in any
single, major respect to perform or comply with any of the obligations
expressed to be assumed by it under the SSA Arrangements and such
failure, in the reasonable opinion of the Executive Committee, is
incapable of remedy, the Executive Committee shall have the right to
give notice in writing (in this sub-section 17.2, the "Irremediable
Removal Notice") to the Settlement System Administrator giving details
of the relevant failure and stating that, in the reasonable opinion of
the Executive Committee, the Settlement System Administrator is in
breach of the terms of the SSA Arrangements and such breach is
incapable of remedy.
17.3 Insolvency: If the Settlement System Administrator:-
(a) is unable to pay its debts (within the meaning of section
123(1) or (2) of the Insolvency Act 1986, but subject as
hereinafter provided in this sub-section 17.3) or if any
voluntary agreement is proposed in relation to it under
section 1 of that Act or if the Settlement System
Administrator enters into any scheme of arrangement (other
than for the purpose of reconstruction or amalgamation upon
terms and within such period as may previously have been
approved in writing by the Executive Committee); or
(b) has a receiver (which expression shall include an
administrative receiver within the meaning of section 29 of
the Insolvency Act 1986) of the whole or any material part
of its assets or undertaking appointed; or
(c) has an administration order under section 8 of the
Insolvency Act 1986 made in relation to it; or
(d) passes any resolution for winding-up other than a resolution
previously approved in writing by the Executive Committee;
or
(e) becomes subject to an order by the High Court for
winding-up,
the Executive Committee shall have the right to give notice in writing
(in this sub-section 17.3, the "Irremediable Removal Notice") to the
Settlement System Administrator referring to such event.
<PAGE>
For the purposes of paragraph (a) above section 123(1)(a) of the
Insolvency Act 1986 shall have effect as if for "(pound)750" there
were substituted "(pound)250,000" and, further, the Settlement System
Administrator shall not be deemed to be unable to pay its debts for
the purposes of paragraph (a) above if any such demand as is mentioned
in the said section is being contested in good faith by the Settlement
System Administrator with recourse to all appropriate measures and
procedures.
17.4 Change of Status: If ESIS ceases to be a wholly-owned subsidiary of
NGC then, subject to the prior written consent of the Director having
been obtained, the Executive Committee shall have the right to give
notice in writing (in this sub-section 17.4, the "Irremediable Removal
Notice") to the Settlement System Administrator referring to such
event.
17.5 Removal Procedure: Subject to:-
(a) the Executive Committee having given the Settlement System
Administrator a Remediable Removal Notice, and either the
Settlement System Administrator having been unwilling or
unable to remedy the failure within 30 days from the date of
receipt of the Remediable Removal Notice (or such longer
period as may be permitted under sub-section 17.1) or, as
the case may be, within the period provided in the timetable
agreed with the Executive Committee for the remedy of such
failure; or
(b) the Executive Committee having given the Settlement System
Administrator an Irremediable Removal Notice,
ESIS may be removed as Settlement System Administrator where:-
(i) a resolution of the Pool Members in general meeting
resolving to remove ESIS as Settlement System Administrator
has been passed by either:-
(a) Pool Members holding not less than 80 per cent. of
the Total Weighted Votes of Pool Members who are
entitled to vote in person or by proxy at a
general meeting of Pool Members or deemed
effective pursuant to Clause 13.5; or
(b) Pool Members holding less than 80 per cent. of the
Total Weighted Votes of Pool Members who are
entitled to vote in person or by proxy at a
general meeting of Pool Members, but only where
there is no more than one dissentient Pool Member;
(ii) the Director has given his prior written consent in the
light of the resolution passed in accordance with
sub-paragraph (i) above; and
<PAGE>
(iii) the Executive Committee has given the Settlement System
Administrator after such resolution has been passed or
deemed effective (which the Executive Committee shall
promptly do) 12 months' notice in writing (in this Section
17, the "Removal Notice") of such removal to take effect on
the date specified in the Removal Notice (in this Section
17, the "Termination Date") and, subject to Section 20, the
appointment of ESIS as Settlement System Administrator shall
terminate on the Termination Date.
18. POWERS OF EXECUTIVE COMMITTEE ON RESIGNATION AND REMOVAL
Executive Committee Powers: At any time and from time to time on or after a
Resignation Notice or a Removal Notice has been given by or on behalf of the
Executive Committee to the Settlement System Administrator, the Executive
Committee shall have the right:-
(a) subject to all security, safety and operational constraints
of the Settlement System Administrator current at the time
the Resignation Notice or (as the case may be) the Removal
Notice is given, to enter (and any third party reasonably
nominated by the Executive Committee shall have the right to
enter) upon reasonable notice any premises where the
Settlement System Administrator performs any of its
functions relating to the Stage 1 Settlement System to
inspect any aspect of the Stage 1 Settlement System, to
ensure maintenance of service levels and to facilitate the
transfer of service, responsibilities and assets pursuant to
Section 21; and
(b) on such reasonable basis as may be agreed with the
Settlement System Administrator (such agreement not to be
unreasonably withheld), to communicate with and consult such
of the Settlement System Administrator's staff as are
available as the Executive Committee reasonably considers to
be essential to the Stage 1 Settlement System for a period
up to 12 months following the Termination Date.
19. APPOINTMENT OF SUCCESSOR SETTLEMENT SYSTEM ADMINISTRATOR
19.1 Approval of the Director: The Parties undertake with each other that
no successor Settlement System Administrator shall be appointed
without the written approval of the Director first having been
obtained.
19.2 Discharge: With effect from the Termination Date ESIS in its capacity
as Settlement System Administrator shall (save as provided in
sub-sections 5.4, 8.6, 12.2, 20.2 and Section 21 and save as regards
any rights and liabilities accrued as at the date of its retirement or
removal) be discharged from any further obligation and shall have no
further rights under the SSA Arrangements but shall remain entitled to
the benefit of the provisions of sub-sections 4.3 to 4.9 (inclusive)
and any other provision of this Agreement providing for an indemnity
or the payment of other costs or charges in favour
<PAGE>
of the Settlement System Administrator, and its successor and (save as
provided in this sub-section 19.2) each of the other Parties shall
have the same rights and obligations amongst themselves as they would
have had if such successor had been a party to this Agreement in place
of ESIS as Settlement System Administrator.
20. CONTINUATION OF SERVICES
20.1 Continuation of Services: Subject to sub-section 20.5, the Executive
Committee shall have the right to postpone the Termination Date beyond
its original date on a maximum of four occasions and, on each
occasion, for a period of three months (each an "Extension Period")
and ESIS agrees to continue to act as Settlement System Administrator
for the duration of each Extension Period. The Executive Committee
shall exercise such right by written notice to the Settlement System
Administrator specifying the duration of each Extension Period (each
an "Extension Notice"), and the Termination Date shall thereupon be
postponed to the last day of the then proposed Extension Period.
20.2 Post-Termination Services: The Contract Manager may, by placing an
Order, request the Settlement System Administrator to provide such
training and support services as are set out in the Menu of
Consultancy Services Prices and the Menu of Development Services
Prices (each as defined in the Appendix hereto) as the Executive
Committee may reasonably require for the Post-Termination Period. Any
such Order shall specify the length of time for which such services
are required. Subject to sub-section 20.4, the Settlement System
Administrator shall be entitled to charge for such services in
accordance with the Menu of Prices current immediately prior to the
Termination Date (subject to indexation in accordance with the terms
of the Appendix hereto) but shall only be required to provide such
services to the extent that the resources are at the time employed by
ESIS or were formerly employed by ESIS and are at the time employed
within the NGC group of companies.
20.3 Extension Period Charges: The Settlement System Administrator shall
have the right to charge for Services rendered during the Extension
Period in accordance with Section 1 of Part H of the Appendix hereto.
20.4 Post-Termination Period Charges: The Settlement System Administrator
shall charge only a nominal sum (being not more than (pound)100 in the
aggregate) for such training and support services rendered in
accordance with sub-section 20.2 where the Termination Date is
referable to a Resignation Notice given by ESIS pursuant to Section 14
or a Removal Notice given by the Executive Committee pursuant to
Section 17.
20.5 Two year limit: Notwithstanding any other provision of this Agreement,
the Executive Committee shall not be entitled to require ESIS to
remain appointed as Settlement System Administrator after the date
falling 24 months after the date on which:-
<PAGE>
(a) the Settlement System Administrator gives the Executive
Committee a Resignation Notice; or (as the case may be)
(b) the Executive Committee gives the Settlement System
Administrator a Removal Notice.
20.6 Full force and effect: All the provisions of this Schedule and the
Appendix hereto shall remain in full force and effect for the duration
of the Extension Period (if any) and the Post-Termination Period (if
any) to the extent necessary to give effect to the terms of this
Section 20.
21. TRANSFER OF SERVICES, RESPONSIBILITIES AND ASSETS
21.1 Transfer of services, responsibilities and assets: Upon a successor
Settlement System Administrator being appointed under Section 19 and
accepting such appointment ESIS in its capacity as outgoing Settlement
System Administrator shall:-
(a) grant to a nominee of the Pool Members (who may be the
successor Settlement System Administrator) a royalty free,
non-exclusive, irrevocable, perpetual and transferable
licence of all Software which for the avoidance of doubt
shall exclude Settlement Goal, all related documentation and
other similar intellectual property rights belonging to the
outgoing Settlement System Administrator free of charge, to
use, copy, adapt and translate such Software and other
property for any purpose related to the operation of the
Stage 1 Settlement System;
(b) use all reasonable endeavours to novate, or procure the
novation of, any licence or other agreement to use and/or
maintain software and other property related to the
operation of the Stage 1 Settlement System provided that in
respect of Settlement Goal such obligation shall be subject
to the provisions of the Type 1 Goal Licence;
(c) transfer to such successor all Hardware belonging to the
outgoing Settlement System Administrator and essential to
such successor to carry out such successor's duties and
responsibilities under the SSA Arrangements and which is not
otherwise readily obtainable by such successor;
(d) make over to such successor copies of all such records,
manuals and data and other information not referred to in
sub-section 21.1(a) and in the ownership or under the
control of the outgoing Settlement System Administrator and
relating to the operation, and necessary for the proper
functioning of the Stage 1 Settlement System; and
(e) without prejudice to the foregoing provisions of this
Section 21, transfer or otherwise make available to such
successor all assets (excluding freehold and
<PAGE>
leasehold property), equipment, facilities, rights, know-how
and transitional assistance which it possesses and which is
necessary for such successor to have to operate the Stage 1
Settlement System in accordance with the SSA Arrangements
and which is not otherwise readily obtainable by such
successor,
in each case on such reasonable terms (other than as to consideration)
as may be agreed between ESIS, such successor and the Executive
Committee (and, in default of agreement, the dispute shall be referred
to arbitration in accordance with Clause 83) and in consideration of
the payment of such sums as are referred to in sub-section 21.2. ESIS
further agrees, in consideration of the payment of such sums as are
referred to in sub-section 21.2, to co-operate with any such successor
and the Executive Committee so that the transfer of duties, services,
responsibilities, assets and know-how to such successor is carried out
causing as little disruption to the operation of the Settlement System
and inconvenience to the Parties and Pool Agents as is practical in
all the circumstances.
21.2 Asset Transfer Costs:
21.2.1 The consideration referred to in sub-section 21.1 is:-
(a) in respect of:-
(i) the right to use all Software, related
documentation and other similar
intellectual property rights under
paragraph 21.1(a), a peppercorn rental;
(ii) all Hardware referred to in paragraph
21.1(b), the fair market value of the
same as at the date of transfer; and
(iii) the copies referred to in paragraph
21.1(c), the cost to the outgoing
Settlement System Administrator of
making such copies;
(b) in respect of:-
(i) charges to Pool Members which the
Executive Committee has expressly
requested ESIS in its capacity as
Settlement System Administrator to defer
and the Deferred Settlement Project
Expenditure, the principal amount
deferred and any interest due and
outstanding on that principal amount and
all other amounts payable in discharging
any financing arrangements undertaken in
relation to such deferred expenditure
provided that in the case of Deferred
Settlement Project Expenditure the
consideration shall be the net book
value of the Software at that date; and
<PAGE>
(ii) the co-operation referred to in the last
sentence of sub-section 21.1 and such
other matters as are within sub-section
21.1 (other than those in paragraph
21.1(b) for which there shall be no
charge made) but not paragraphs (a) or
(b)(i) or (ii) above, a nominal amount
only in respect of the co-operation
(with no additional charge for matters
such as management time expended) and
otherwise at fair market value.
21.2.2 Any payment made by all or any of the Pool Members to ESIS
in its capacity as outgoing Settlement System Administrator
under this Section 21 shall be without prejudice to any
rights and remedies which the Pool Members (or any of them)
may have against ESIS as Settlement System Administrator
arising under the SSA Arrangements.
21.3 Transition services: During the period from the date of the Removal
Notice or, as the case may be, the Resignation Notice to the
Termination Date or, as the case may be, the last day of the
Post-Termination Period, the Contract Manager may give the outgoing
Settlement System Administrator an Order requesting the outgoing
Settlement System Administrator to:-
(a) provide training and systems support for the successor
Settlement System Administrator;
(b) provide parallel running with the successor Settlement
System Administrator;
(c) move, relocate or hand over to the successor Settlement
System Administrator the property it is required to transfer
pursuant to paragraphs 21.1(a) to 21.1(e) (inclusive);
(d) supply to the successor Settlement System Administrator
procedural or practice documentation not already recorded in
writing; and
(e) provide employees to attend upon the successor Settlement
System Administrator for all or any of the purposes referred
to in paragraphs (a), (b) or (c) above.
21.4 Disputes: Any dispute arising under or in connection with this Section
21 shall be referred to arbitration in accordance with Clause 83.
22. ALLOCATION OF COSTS ON RESIGNATION
Allocation of costs on resignation: Subject to Section 28(b), if the appointment
of ESIS as Settlement System Administrator shall be terminated by the
resignation of ESIS in accordance with Section 14:-
<PAGE>
(a) the Pool Members shall reimburse ESIS the Pool Agreed
Liabilities; and
(b) ESIS shall be responsible for, and shall not have recourse
to any Pool Member for all or any part of:-
(i) the Transition Costs (and shall refund to Pool
Members in accordance with sub-section 2.7 of Part
J of the Appendix hereto any sums already received
by ESIS on that account); and
(ii) the Outstanding Liabilities; and
(c) the liability of Pool Members for the payment of charges for
the provision of Services up to the Termination Date and
during the Post-Termination Period shall be as set out
elsewhere in this Schedule and the Appendix hereto.
23. ALLOCATION OF COSTS ON REMOVAL AFTER 31ST MARCH, 1999
Allocation of costs on removal: Subject to Section 28(b), if the appointment of
ESIS as Settlement System Administrator shall be terminated by the removal of
ESIS at any time after 31st March, 1999 in accordance with Section 15 or (as the
case may be) 16:-
(a) the Pool Members shall reimburse ESIS the Pool Agreed
Liabilities;
(b) ESIS shall be responsible for, and shall not have recourse
to any Pool Member for all or any part of, the Outstanding
Liabilities; and
(c) the liability of Pool Members for the payment of charges for
the provision of Services up to the Termination Date and
during the Post-Termination Period shall be as set out
elsewhere in this Schedule and the Appendix hereto.
24. ALLOCATION OF COSTS ON REMOVAL ON OR BEFORE 31ST MARCH, 1999
Allocation of costs on removal: If the appointment of ESIS as Settlement System
Administrator shall be terminated by the removal of ESIS at any time on or
before 31st March, 1999 in accordance with Section 16:-
(a) the Pool Members shall reimburse ESIS:-
(i) the Pool Agreed Liabilities;
(ii) the Pool Apportioned Outstanding Liabilities; and
(iii) the Compensation;
<PAGE>
(b) ESIS shall be responsible for, and shall not have recourse
to any Pool Member for all or any part of, the SSA
Apportioned Outstanding Liabilities; and
(c) the liability of Pool Members for the payment of charges for
the provision of Services up to the Termination Date and
during the Post-Termination Period shall be as set out
elsewhere in this Schedule and the Appendix hereto.
ESIS shall take all reasonable steps and shall otherwise use all
reasonable endeavours to mitigate the Pool Apportioned Outstanding
Liabilities.
25. ALLOCATION OF COSTS ON REMOVAL
Allocation of costs on removal: Subject to Section 28(b), if the appointment of
ESIS as Settlement System Administrator shall be terminated by the removal of
ESIS in accordance with Section 17:-
(a) the Pool Members shall reimburse ESIS the Pool Agreed
Liabilities; and
(b) ESIS shall be responsible for, and shall not have recourse
to any Pool Member for all or any part of:-
(i) the Transition Costs (and shall refund to Pool
Members in accordance with sub-section 2.7 of Part
J of the Appendix hereto any sums already received
by ESIS on that account); and
(ii) the Outstanding Liabilities; and
(c) the liability of Pool Members for the payment of charges for
the provision of Services up to the Termination Date and
during the Post-Termination Period shall be as set out
elsewhere in this Schedule and the Appendix hereto.
26. REIMBURSEMENT BY POOL MEMBERS
Reimbursement by Pool Members: In respect of any sum to be reimbursed by Pool
Members to the Settlement System Administrator pursuant to Section 22, 23, 24 or
25:-
(a) ESIS may recover such sum in accordance with sub-paragraph
2.3 of Part J of the Appendix hereto;
(b) Pool Members shall be liable on a several basis according to
their respective Contributory Shares as at the Termination
Date provided that, if a Pool Member shall fail to pay its
Contributory Share of such sum within 45 days after the due
date for payment therefor, the other Pool Members shall be
jointly and severally liable to pay such unpaid sum (and
liable as between themselves according to
<PAGE>
their respective Contributory Shares, calculated on the
basis that the Points allocated to the defaulting Pool
Member are disregarded); and
(c) any Pool Member (a "non-paying Pool Member") which fails to
pay its Contributory Share in the circumstances of Section
26(b) shall indemnify and keep indemnified each Pool Member
on demand against all sums properly paid by such Pool Member
in relation to that non-paying Pool Member's Contributory
Share pursuant to Section 26(b).
27. DIRECTOR'S INVOLVEMENT
Director's involvement: If, in giving written consent pursuant to Section 14,
15(b), 16(c) or 17.5(ii) the Director shall impose conditions or qualifications
which render it impracticable to give effect to the terms of any of Sections 19
to 26 (inclusive) as written, ESIS and the Executive Committee shall promptly
negotiate in good faith to agree amendments to the SSA Arrangements (including,
if appropriate, to the charging principles) to give effect to the Director's
conditions or qualifications and, in default of agreement as to such amendments
within six months after the commencement of such negotiations, the Settlement
System Administrator or the Executive Committee or any Pool Member shall be
entitled to refer the dispute to arbitration in accordance with Clause 83. In
the conduct of such negotiations, ESIS and the Executive Committee shall have
regard both to the Menus of Prices and to the costs which will be incurred by
ESIS in continuing to provide Services to satisfy the Director's conditions or
qualifications, it being understood that, where such costs are properly
incurred, it is the parties' intention that ESIS should be entitled to recover
the same from Pool Members.
28. POOL MEMBER AND EXECUTIVE COMMITTEE BREACHES
Breach by Pool Members and/or Executive Committee: Without prejudice to Clause
66 if the Pool Members acting collectively, the Executive Committee, the
Contract Manager or the Chief Executive's Office fail, or any of the same is
deemed pursuant to sub-section 1.2 or Section 29 to have failed, in any
persistent, material respect or in any single, major respect to perform or
comply with any of its or their obligations under the SSA Arrangements and, if
such failure is not capable of remedy or is capable of remedy, but is not
remedied within 30 days from the date of receipt by the Executive Committee of
notice from the Settlement System Administrator giving details of the relevant
failure and requiring its remedy (or such longer period as may be necessary but
in any event within 90 days or any longer period as may be reasonable and agreed
between the Settlement System Administrator and the Executive Committee) and,
where such reasonable period is longer than 30 days, a timetable for the remedy
of such failure is not agreed by the Executive Committee with the Settlement
System Administrator (such agreement not to be unreasonably withheld) within 30
days from the said date of receipt, then ESIS may (the prior written consent of
the Director having been obtained):-
(a) give not less than 12 months' notice in writing to the
Executive Committee (which shall forthwith notify all Pool
Members) and the Director of its
<PAGE>
resignation specifying the date thereof, and the appointment
of ESIS as Settlement System Administrator shall terminate
on that date and the provisions of Section 24 shall apply as
if the appointment of ESIS as Settlement System
Administrator shall have been terminated by its removal in
accordance with Section 16 (but disregarding for this
purpose any requirement to pay Compensation if the
appointment of ESIS as Settlement System Administrator in
fact terminates after 31st March, 1999); or
(b) give notice to all Pool Members, the Executive Committee and
the Chief Executive's Office identifying such irremediable
breach or failure to remedy or agree a timetable for remedy
of a remediable breach and, if at any time after the service
of such notice and while such breach is continuing, the
Settlement System Administrator resigns or is removed
pursuant to Section 14, 15, 16 or 17 then, notwithstanding
Sections 22, 23 and 25, the provisions of Section 24 shall
apply as if the appointment of ESIS as Settlement System
Administrator shall have been terminated by its removal in
accordance with Section 16 (but disregarding for this
purpose any requirement to pay Compensation if the
appointment of ESIS as Settlement System Administrator in
fact terminates after 31st March, 1999).
29. VARIATION OF SERVICE LINES
If the Executive Committee engages a person other than the Settlement System
Administrator to perform a Service contained in a Service Line or part thereof
which is listed in the Sole Supplier Index there shall be deemed to be a failure
by the Executive Committee in a single, major respect to comply with its
obligations under the SSA Arrangements or the Settlement System Administrator
shall be entitled to insist upon due and proper performance of the SSA
Arrangements provided that the mere variation of any Service Line to a state
where no Service is to be provided or can be Ordered thereunder shall not be
deemed to be such a failure.
30. EXTENSION OF TIME
If performance of the terms of the SSA Arrangements by the Settlement System
Administrator is delayed by reason of the act or default of a Party (not being
the Settlement System Administrator), a Meter Operator Party or a Pool Agent or
a nominee to whom intellectual property rights in the Software have been
transferred pursuant to Section 8 or 9, the Settlement System Administrator
shall be entitled to a reasonable extension of time for performance and to any
reasonable additional costs which it can demonstrate to the Executive Committee
were directly incurred as a result of such delay provided always and on
condition that the Settlement System Administrator shall notify the Executive
Committee in writing within a reasonable time of the circumstances giving rise
to the delay in performance.
<PAGE>
31. CONTRACT MANAGEMENT RULES
31.1 Contract Management Rules: The Parties agree that, whilst the Contract
Management Rules do not constitute or evidence legally binding
obligations, they are indicative of best practice with respect to
certain aspects of the day-to-day operation of the SSA Arrangements
and include practices and procedures which either have been proven or
are expected to facilitate that day-to-day operation. The Parties
agree that a failure by a Party to comply with the Contract Management
Rules shall not of itself constitute a breach of the SSA Arrangements
nor give rise to any sanction against that Party.
31.2 Amendments to the Contract Management Rules: The Contract Management
Rules may be amended, modified or varied by agreement between the
Account Manager and the Contract Manager in accordance with procedures
to be agreed between themselves from time to time.
31.3 List of Licensed Application Software: Following a request from NGC
the Executive Committee shall promptly provide NGC with a list of the
Licensed Application Software as referred to in the Contract
Management Rules and will notify NGC of any amendment, modification or
variation of such list.
32. GROSS MARGIN
32.1 Auditor's Report: The Settlement System Administrator shall procure
that its auditor reports to the Executive Committee within one month
after (a) the signature of the Settlement System Administrator's
annual accounts and (b) a Removal Notice being given pursuant to
Section 16 the figure that represents the Gross Margin for the
financial year in respect of which such annual accounts have been
prepared or (as the case may be) the twelve month period ending on the
date of the Removal Notice.
32.2 Negotiations:
32.2.1 If, in respect of the SSA Accounting Period to which the
annual accounts referred to in sub-section 32.1 relate, the
Gross Margin expressed as a percentage of the aggregate of
the Total Sum Due for that period is more than 25 per cent.
or less than 15 per cent., Pool Members (acting through the
Executive Committee) or the Settlement System Administrator
may by notice to the other request that the Menus of Prices
be reviewed.
32.2.2 If notice is given as provided in paragraph 32.2.1 above,
the Executive Committee and the Settlement System
Administrator may (but shall not be obliged to) agree to
conduct such a review of the Menus of Prices but if they do
so agree and reach agreement as to the changes in prices,
any such price change
<PAGE>
shall be effective from the beginning of the SSA Accounting
Period immediately following the SSA Accounting Period
referred to in paragraph 32.2.1 above.
32.2.3 The provisions of this sub-section 32.2 are without
prejudice to any other review or revision of the Menus of
Prices required or permitted pursuant to other provisions of
this Schedule or the Appendix hereto.
33. FORCE MAJEURE
If by reason of Force Majeure the Settlement System Administrator shall be
unable to carry out all or any of its obligations under this Agreement, the
provisions of Clause 74 shall have effect provided that the Settlement System
Administrator shall have the right to recover in respect of any period of Force
Majeure (to the extent that it would not otherwise have been able to recover by
reason of the Force Majeure):-
(a) the standing charge for Consultancy Services referred to in
sub-section 4.1 of Part G of the Appendix hereto
time-apportioned for that period;
(b) the standing charge for Development Services referred to in
sub-section 5.1 of Part G of the Appendix hereto
time-apportioned for that period;
(c) to the extent that the sum of (a) and (b) above falls short
of the Minimum Contract Price (if any) time-apportioned to
that period, the amount of that shortfall;
(d) Deferred Settlement Project Expenditure;
(e) Third Party Costs invoiced to the Settlement System
Administrator in that period; and
(f) the Suppliers' ERS Charges (as that term is defined in the
Appendix to this Schedule) time-apportioned for that period
together with any under-recovery and less any over-recovery
on the ERS Account.
34. CONFIDENTIALITY
Pool Members shall jointly and severally procure that the Executive Committee,
the Chief Executive's Office and the Contract Manager shall use all reasonable
endeavours to preserve the confidentiality of, and not directly or indirectly
reveal, report, publish, disclose or transfer the Menus of Prices or the Gross
Margin, or any part of or any information contained in or relating to the Menus
of Prices or the Gross Margin (the "Relevant Information") except:-
<PAGE>
(a) where the Relevant Information is in the public domain
otherwise than by breach by a Pool Member, the Executive
Committee, the Chief Executive's Office or the Contract
Manager of this Agreement;
(b) to the extent that the Settlement System Administrator gives
its prior consent in writing, it being acknowledged that
such consent has been given for disclosure of the Relevant
Information relating to the Accounting Period beginning on
1st April, 1994;
(c) to the extent required by law, any Act of Parliament or any
Competent Authority;
(d) to comply with the conditions of any Licence or any document
referred to in the Licence with which the party is required
to comply;
(e) to the Executive Committee's consultants or professional
advisers or to the Pool Auditor; or
(f) to the extent required by any judicial or arbitral process
having jurisdiction over the Pool Members, the Executive
Committee, the Chief Executive's Office or the Contract
Manager, as the case may be,
provided that the Executive Committee and its staff shall be entitled to keep on
display and make available for inspection to (but not copying by) Pool Members
(and to notify Pool Members that there is on display and available for
inspection) at the office of the staff of the Executive Committee all Relevant
Information.
35. NOTICES
Notices: For the purposes of this Schedule 4 and the Appendix hereto, Clause 75
shall apply as if each of the Account Manager and the Contract Manager is a
Party with the following address and facsimile number:-
(a) Account Manager: Energy Settlements and Information
Services Limited,
Fairham House,
Green Lane,
Clifton,
Nottingham NG11 9LN
Facsimile number: 0115-945 6807;
<PAGE>
(b) Contract Manager: The Electricity Pool of England
and Wales,
10th Floor,
338 Euston Road,
Regent's Place,
London NW1 3BP
Facsimile number: 0171-380 0407.
36. CONTRACT TRANSFER
If Pool Members so resolve in general meeting, the Settlement System
Administrator and the Executive Committee shall negotiate in good faith to give
effect to the terms of engagement of ESIS as Settlement System Administrator by
means of an agreement separate from this Agreement between the Settlement System
Administrator and a nominee of Pool Members (such nominee to be a limited
liability company in which some or all of the Pool Members are investors or some
or all of the obligations of which, including its obligations to ESIS as
Settlement System Administrator, they financially support). The terms and
conditions of such substitute agreement shall (taken as a whole) not be
materially less favourable to the parties thereto than are enjoyed by the
Parties under the SSA Arrangements and each Party agrees that it will not
unreasonably withhold its consent to any amendment to the SSA Arrangements or,
if required, to the substitute agreement in order to give effect to the
foregoing provisions of this Section.
37. YEAR 2000 COMPLIANCE
37.1 Software Compliant: The Settlement System Administrator warrants and
undertakes to ensure that the Stage 1 Software, the Developed
Application Software, the Licensed Application Software, all as
existing as at 31st December, 1997, are and will remain Millennium
Compliant for a period of 368 days commencing at 00.00 hours on 31st
December, 1999 save that the provisions of this sub-section 37.1 shall
not apply to Settlement Goal.
37.2 ESIS Compliant: The Settlement System Administrator warrants and
undertakes to ensure that the Stage 1 Hardware and the SSA System are
and will remain Millennium Compliant for a period of 368 days
commencing on 31st December, 1999.
37.3 No breach for non-compliant data: For the avoidance of doubt, the
Settlement System Administrator shall not be deemed to be in breach of
its obligations under this Section 37 where the Stage 1 Settlement
System or the SSA System is unable to process results because its data
input validation software rejects data not originating from the Stage
1 Settlement System or (as the case may be) the SSA System where such
data is itself not Millennium Compliant.
<PAGE>
37.4 Continuance: The warranties and undertakings of the Settlement System
Administrator under sub-sections 37.1 and 37.2 shall survive the
resignation or termination for any reason of the appointment of ESIS
as Settlement System Administrator.
<PAGE>
APPENDIX TO SCHEDULE 4
THE SERVICES
PART A: PRELIMINARY
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions: In this Appendix, except where the context otherwise
requires:-
"Ad Hoc Production Services" means those Production Services described
in sub-section 2.4 of Part B;
"Anticipated Fixed Standing Charges" means (without double counting)
the aggregate of:-
(a) the sum of all charges for (i) all Production Services
Ordered and (ii) all Consultancy Services and Development
Services Ordered, in each case as at the date of the Removal
Notice; and
(b) the sum of all charges for (i) all Production Services and
(ii) all Consultancy Services and Development Services
which, taking into account the business plan referred to in
Clause 9.1.1 current at the date of the Removal Notice,
would have been Ordered for delivery in the period from the
Termination Date to 31st March, 1999;
"Average RPI" means, in respect of any SSA Accounting Period, the
percentage increase in retail prices over the previous 12 months
ending in the October immediately prior to the start of such SSA
Accounting Period determined by reference to the "All items" index
(excluding, except in relation to the indexation of the Menu of ERS
Metering Prices, mortgage interest) in the Retail Prices Index
published by the Office for National Statistics or, if such index is
no longer published in such form or by the Office for National
Statistics, any replacement or alternative index therefor which is
agreed between the Settlement System Administrator and the Executive
Committee to be appropriate in the circumstances or, if the Settlement
System Administrator and the Executive Committee cannot reach
agreement within a reasonable period of time, the replacement or
alternative index determined by arbitration pursuant to Clause 83 to
be appropriate;
"Change Management Procedure" has the meaning given to that term in
Agreed Procedure 40;
"Committed Additional Services Charges" means the sum of all charges
for all Consultancy Services and Development Services Ordered as at
the date of the Removal Notice;
<PAGE>
"Consultancy Services" means the Services described as Consultancy
Services in Section 3 of Part B;
"Continuous Production Services" means those Production Services
described in sub-section 2.3 of Part B;
"Deferred Settlement Project Expenditure" means an amount of that name
which is to be recovered by the Settlement System Administrator as
charges on a deferred basis pursuant to Part I;
"Development Services" means the Services described as Development
Services in Section 4 of Part B;
"Handling Charge" means, in respect of any item, such amount as when
added to the cost of such item is equal to ten per cent. of the sum of
such amount and such cost;
"Job Number" means a series of alpha-numeric digits relating to an
Order;
"Manpower Rates" mean the indicative prices for manpower that may be
provided in connection with Consultancy Services or, as the case may
be, Development Services, in each case as set out in the Menu of
Manpower Prices;
"Menu of Consultancy Services Prices" means the most recent document
with that title setting out prices for certain consultancy services
which is in the agreed form or which has been revised pursuant to Part
D;
"Menu of Development Services Prices" means the most recent document
with that title setting out prices for certain development services
which is in the agreed form or which has been revised pursuant to Part
D;
"Menu of Manpower Prices" means the most recent document with that
title setting out indicative prices for manpower which is in the
agreed form or which has been revised pursuant to Part D;
"Menu of Production Services Prices" means the most recent document
with that title setting out prices for certain production services
which is in the agreed form or which has been revised pursuant to Part
D;
"Menu of Service Credits" means the most recent document of that title
setting out the Service Credits payable by the Settlement System
Administrator which is in the agreed form or which has been revised
pursuant to Part D;
<PAGE>
"Menus of Prices" means all of:-
(a) the Menu of Consultancy Services Prices;
(b) the Menu of Development Services Prices;
(c) the Menu of Manpower Prices;
(d) the Menu of Production Services Prices (including as an
annex thereto the Menu of ERS Metering Prices);
(e) the Menu of Service Credits; and
(f) any other menu of prices in the agreed form;
"Minimum Contract Price" has the meaning given to that expression in
sub-section 11.3 of Part G;
"Minimum Support Level" means, in respect of any of the Consultancy
Services or Development Services, such manpower (expressed in terms of
numbers of personnel and skill categories to be available for a
period) as may be agreed from time to time between the Account Manager
and the Contract Manager;
"Non-Menu Services" means the Services referred to in Section 5 of
Part B;
"Order" means a request in the agreed form for Services given by the
Contract Manager to the Account Manager, and "Ordered" and "Ordering"
shall be construed accordingly;
"Post Charges" means those charges (net of Service Credits) in respect
of which an invoice statement is issued pursuant to sub-section 2.3 of
Part J;
"Price Control Factor" in respect of any SSA Accounting Period, means
the value of the Xg factor in force as of the first day of such SSA
Accounting Period as specified from time to time in Condition 4A of
the NGC Transmission Licence (or, if no such factor is specified, the
substitute factor therefor in the NGC Transmission Licence forming
part of the restriction on NGC's charges for the provision of
transmission services);
"Price on Request Items" means the items described as Price on Request
Items in Section 6 of Part B;
"Prior Charges" means those charges in respect of which an invoice
statement is issued pursuant to sub-section 2.1 of Part J;
<PAGE>
"Production Services" means the Services described as Production
Services in sub-section 2.1 of Part B;
"Rate of Inflation" in respect of any SSA Accounting Period, means:-
(a) in relation to the Menu of Production Services Prices in so
far as it relates to Continuous Production Services (other
than charges for rent and Deferred Settlement Project
Expenditure to which the Rate of Inflation shall not apply)
and the Menu of Service Credits, the Average RPI minus the
Price Control Factor provided that this paragraph (a) shall
cease to apply with effect from the Re-Engineered Settlement
System Introduction Date; and
(b) in relation to all other Menus of Prices (other than the
Menu of Manpower Prices, charges for general depreciation,
rent and Deferred Settlement Project Expenditure, in each
case to which the Rate of Inflation shall not apply), the
Average RPI (it being acknowledged that, in relation to
Service Line 14 (ERS Metering), mortgage interest will be
included in the calculation of Average RPI);
"Re-Engineered Settlement System" means a new settlement system
designed and built in accordance with a pre-identified re-engineering
process to replace and deliver the functionality of the Stage 1
Settlement System current as at the date on which the Executive
Committee approves the requirement specification for such new
settlement system;
"Re-Engineered Settlement System Introduction Date" means the date
upon which the Re-Engineered Settlement System commences operational
running ("live operation") as the Stage 1 Settlement System;
"Service Credits" means the Service Credits payable by the Settlement
System Administrator and described as such in the Menu of Service
Credits;
"Service Failure" has the meaning given to that expression in
sub-section 12.3 of Part G;
"Services" means the services to be provided by the Settlement System
Administrator pursuant to the SSA Arrangements, the categories of
which are set out in Section 1 of Part B;
"Sole Supplier Index" means the index with that title in the form
agreed by the Settlement System Administrator and the Executive
Committee setting out those Services or parts thereof which are
designated as having sole supplier status, as such index may be
amended or substituted from time to time by written agreement of the
Settlement System Administrator and the Executive Committee;
"Sole Supplier Services" means the Services referred to in sub-section
7.1 of Part B;
<PAGE>
"Suppliers' ERS Charges" means, in relation to any period, the
aggregate of Supplier's ERS Fixed Charges and Supplier's ERS Variable
Charges payable by all Suppliers in respect of that period;
"Supplier's ERS Fixed Charge" means the amount (if any) payable by a
Supplier in respect of any month pursuant to sub-section 4.2 of
Schedule 31, calculated by reference to the Fixed ERS Charge;
"Supplier's ERS Variable Charge" means the amount (if any) payable by
a Supplier in respect of any month pursuant to sub-section 3.2 of
Schedule 31, calculated by reference to the Variable ERS Charge;
"Third Party Contract" has the meaning given to that expression in
Section 7 of Part F;
"Third Party Costs" means costs under a Third Party Contract which are
invoiced to the Settlement System Administrator by the third party and
passed directly through to Pool Members, and shall include those costs
which are expressly stated in this Schedule to be treated as Third
Party Costs;
"Total Sum Due" has the meaning given to that expression in Section 1
of Part J; and
"Variation Menus" means the most recent set of documents of that title
setting out changes in prices for Services which is in the agreed
form, that set comprising as at the date this Schedule takes effect:-
(a) a Continuous Production Services Variation Menu; and
(b) a Manpower Variation Menu.
1.2 Interpretation: In this Appendix:-
(a) except where the context otherwise requires, references to a
particular Part, Section, sub-section or paragraph shall be
a reference to that Part of this Appendix or, as the case
may be, that Section, sub-section or paragraph of the
relevant Part; and
(b) where a notice period in relation to the provision of a
Service begins upon receipt of an Order therefor, such
notice period shall exclude the day upon which the Service
is required to be provided and (if received after 12:00
hours on any day) the day upon which notice is deemed to be
served.
<PAGE>
PART B: THE SERVICES
1. CATEGORIES OF SERVICES
Categories of Services: There are four categories of Services, being:-
(a) Production Services;
(b) Consultancy Services;
(c) Development Services; and
(d) Non-Menu Services.
2. PRODUCTION SERVICES
2.1 Production Services: Production Services are those Services described
as Production Services in the Service Lines set out in the Menu of
Production Services Prices.
2.2 Types of Production Services: Production Services are either
Continuous Production Services or Ad Hoc Production Services.
2.3 Continuous Production Services: Continuous Production Services are
those Production Services which the Settlement System Administrator is
to provide on a regular basis as described in the relevant Service
Line.
2.4 Ad Hoc Production Services: Ad Hoc Production Services are those
Production Services which the Settlement System Administrator is to
provide on an ad hoc basis as described in the relevant Service Line.
2.5 Limits on Production Services: There are physical constraints on the
Stage 1 Settlement System which are recognised through the maxima set
out in the Menu of Production Services Prices. This Appendix provides
in sub-section 4.2 of Part D how Services are to be Ordered and priced
outside certain maxima and minima limits.
3. CONSULTANCY SERVICES
Consultancy Services are those Services described as Consultancy Services in the
Service Lines set out in the Menu of Consultancy Services Prices.
4. DEVELOPMENT SERVICES
Development Services are those Services described as Development Services in the
Service Lines set out in the Menu of Development Services Prices.
<PAGE>
5. NON-MENU SERVICES
Non-Menu Services are those Services which:-
(a) are requested by the Executive Committee or the Contract
Manager, or are Ordered, to be provided by the Settlement
System Administrator in its capacity as Settlement System
Administrator;
(b) are not included in a Service Line; and
(c) if agreed to be provided, will not be included in a Service
Line or a Menu of Prices but will be provided on stand-alone
terms and conditions,
and, for the avoidance of doubt, any service or obligation of the Settlement
System Administrator pursuant to the SSA Arrangements which is not described in
a Service Line is a Non-Menu Service.
6. PRICE ON REQUEST ITEMS
Price on Request Items are those Services designated as Price on Request in the
Service Lines, being services for which there is a general description in one or
more of the Service Lines but for which there is no corresponding price stated
or referred to in any Menu of Prices and for which the Settlement System
Administrator will quote a price in accordance with Section 2 of Part C and
which may or may not be added to the relevant Menu of Prices.
7. SOLE SUPPLIER SERVICES
7.1 Sole Supplier Services: Those Services or parts thereof which for the
time being and from time to time are listed in the Sole Supplier Index
are known as Sole Supplier Services.
7.2 Status of Sole Supplier Services: Subject to sub-section 7.2 of
Schedule 4, Sole Supplier Services may only be provided by the
Settlement System Administrator. If the Executive Committee shall
engage a person other than the Settlement System Administrator to
perform a Sole Supplier Service, there shall be deemed to be a failure
by the Executive Committee in a single, major respect to comply with
its obligations under the SSA Arrangements for the purposes of Section
28 of Schedule 4 or the Settlement System Administrator shall be
entitled to insist upon due and proper performance by the Executive
Committee of its obligations under the SSA Arrangements.
7.3 Variations of Sole Supplier Services: The Executive Committee shall
have the right to vary the volume of Service under any Sole Supplier
Service to a level where no Service under the relevant Service Line is
capable of being provided or can be Ordered. Exercise
<PAGE>
of this right will not constitute a failure or deemed failure by the
Executive Committee to comply with its obligations under the SSA
Arrangements.
7.4 Review of Sole Supplier Index: Within a period of six months after
each of 31st March, 1999 and 31st March, 2002 the Settlement System
Administrator shall review the Sole Supplier Index in consultation
with the Executive Committee to assess whether it is appropriate to
amend or, as the case may be, further amend the list of Services which
are designated as Sole Supplier Services. If as a result of either
such review or at any other time the Settlement System Administrator
and the Executive Committee shall agree to amend or substitute the
list of Services in whole or in part, the Sole Supplier Index shall be
revised accordingly.
8. MANAGEMENT OF RESOURCES
The Settlement System Administrator shall manage and schedule its resources and
the resources available to it as it sees fit. Neither the Contract Manager nor
Pool Members shall be entitled to specify that particular individuals be
provided in relation to Services other than named project managers pursuant to
Service Line 16 (Management Services), but the Contract Manager and Pool Members
shall have the right to specify skill categories.
9. MARKET TESTS
9.1 Market Tests: The Executive Committee shall have the right to carry
out market tests of the price of Services in accordance with the
following provisions of this Section.
9.2 Timing: Market tests shall be carried out at the request of the
Executive Committee from time to time and shall be conducted by or on
behalf of the Executive Committee.
9.3 Settlement System Administrator's involvement:
(a) If the Executive Committee wishes the Settlement System
Administrator to take account of a market test, then the
Executive Committee shall use its reasonable endeavours to
commission a market test on a "like for like" basis for the
provision of the Service in question (including as to
quality, timeliness and flexibility) from a supplier of
equal standing to the Settlement System Administrator agreed
between the Executive Committee and the Settlement System
Administrator (such agreement not to be unreasonably
withheld) and shall permit the Settlement System
Administrator to appraise the method and results of the
market test and to request clarification of the method and
clarification and correction of the results.
(b) If the market test shall result in an indication that the
Service in question may be obtained at a lower comparable
price from another supplier, the Settlement System
Administrator shall either demonstrate within a reasonable
time why it is
<PAGE>
unable to adopt the lower comparable price or accept the
results of the market test and forthwith adopt the lower
comparable price.
(c) If the Settlement System Administrator shall seek to
demonstrate why it is unable to adopt the lower comparable
price rather than accept the results of the market test but
the Executive Committee disputes that the Settlement System
Administrator either has done so within a reasonable time as
required by paragraph (b) above or has adequately
demonstrated why it is unable to adopt the lower comparable
price, and in either case should therefore accept the
results of the market test and adopt the lower comparable
price, the Executive Committee may refer the dispute to
arbitration in accordance with Clause 83.
10. PERFORMANCE IMPROVEMENT PROGRAMMES
10.1 Performance Improvement Programmes: The Executive Committee and the
Settlement System Administrator may from time to time agree to conduct
programmes designed to improve the cost-effectiveness of the Services.
All such programmes shall be conducted in accordance with the
principles set out in the following provisions of this Section and the
Settlement System Administrator shall be obliged to participate in all
such programmes.
10.2 Close Co-operation: Performance Improvement Programmes shall require
close co-operation and an exchange of information between the
Executive Committee and the Settlement System Administrator to a
greater degree than is contemplated elsewhere by the terms of this
Agreement.
10.3 Cost-benefit Sharing: The purpose of a Performance Improvement
Programme is to yield cost-benefit sharing and any such programme will
involve an analysis of actual costs rather than the prices that are
contained in the Menus of Prices.
10.4 Procedure: The procedure for conducting a Performance Improvement
Programme is set out in the Contract Management Rules.
10.5 Costs of PIPs: The costs of all Performance Improvement Programmes
shall be borne by Pool Members according to their respective
Contributory Shares and shall be recovered in accordance with the
Charging Procedure.
10.6 Division of Cost Savings: If a Performance Improvement Programme shall
demonstrate a saving in all or any of the costs that are incurred by
the Settlement System Administrator in providing the Services, then
that saving shall be shared equally between the Settlement System
Administrator on the one hand and Pool Members on the other hand at
that time and in the manner agreed between the Account Manager and the
Contract Manager from time to time provided that the Pool Members
shall have the right to receive the entire benefit of that saving
until such time as they have received in full
<PAGE>
through that saving an amount equal to the costs incurred by them
referred to in sub-section 10.5 above.
10.7 Cost Savings by Pool Members: If a Performance Improvement Programme
shall demonstrate a saving in all or any of the costs that are
incurred by Pool Members (other than costs payable to the Settlement
System Administrator under the SSA Arrangements), the relevant Pool
Members shall have the right to the entire benefit of that saving and
shall not be required to share all or any part of that benefit.
10.8 Non-PIP Modifications: The following actions with regard to any
Service provided by the Settlement System Administrator shall not be
the subject of a Performance Improvement Programme and any cost
savings caused by such action shall not be dealt with in accordance
with the principles of the Performance Improvement Programmes:-
(a) a change in the volume and/or frequencies of any Service
under a Service Line within the maximum and minimum limits
stated for that Service in the relevant Menu of Prices;
(b) a change in the level of quality, fault tolerance or
security for a particular Service where the commercial
objectives (as stated in the relevant Service Lines) are not
amended in respect of that change;
(c) replacement of any Hardware or Software in the normal course
of business;
(d) where a Performance Improvement Programme is undertaken in
respect of one or more particular Service Lines, any
concomitant modification to a Service Line which is not the
subject of that particular Performance Improvement
Programme; and
(e) where the Settlement System Administrator discovers that,
through its own efforts, it has performed Services in a more
efficient manner than it originally planned.
11. CONTRACT REPORTING
Reports: The Settlement System Administrator shall provide the Contract Manager
with reports in accordance with Service Line 10 (Service to CEO and Pool
Members).
<PAGE>
PART C: NEW REQUIREMENTS
1. CHANGES TO SERVICES
1.1 Changes to Services: Without prejudice to Parties' rights generally to
amend this Agreement, the Contract Manager may from time to time
request the Settlement System Administrator:-
(a) to provide a new Service; or
(b) to amend a Service currently included in a Service Line or
to amend a Non-Menu Service; or
(c) to delete a Service currently included in a Service Line.
1.2 Negotiation: Upon receipt of any such request the Account Manager will
negotiate in good faith with the Contract Manager to amend in
accordance with the Change Management Procedure, the applicable
Service Line, Menu of Prices and Variation Menu (or, if the Service is
a Non-Menu Service, to agree or amend documentation recording the
terms and conditions on which the Non-Menu Service is to be provided)
and, if necessary, to amend other elements of the SSA Arrangements to
give effect to such request provided that:-
(a) neither the Settlement System Administrator nor the
Executive Committee nor Pool Members shall be obliged to
agree any such amendment or documentation; and
(b) there shall be no obligation on the Account Manager or the
Contract Manager to continue such negotiations if it is or
becomes evident that there is no agreement to provide the
Service or make the change referred to in sub-section 1.1
above or as to the amendments required to give effect to
such new Service or change.
As part of the negotiations for the provision of a new or amended
Service, the Account Manager shall provide the Contract Manager with
(in the case of a new Service) a price for the Service together with a
statement of the incremental (but not necessarily pro rata) resource
requirement and an accompanying written explanation, and (in the case
of an amended Service) a revised price for that Service justified by
reference to the prices in the relevant Menu of Prices and accompanied
by a written explanation.
1.3 Agreed Changes to Services: The SSA Arrangements, applicable Service
Lines, Menus of Prices and Variation Menus (or, if a Non-Menu Service
is affected, the documentation recording the terms and conditions on
which the Non-Menu Service is to be provided) shall be amended as
required to reflect any agreement between the Pool Members and the
Settlement System Administrator to:-
2
<PAGE>
(a) vary the SSA Arrangements, the Settlement System or the
Stage 1 Development Policies; or
(b) include an Ad Hoc Production Service as a Continuous
Production Service,
in accordance, where appropriate, with the Contract Management Rules.
1.4 Formal documentation: Any new Service or change to Service referred to
in sub-section 1.1 above shall take effect as from the date specified
in the formal documentation giving effect to such new Service or
change and in accordance with the terms of such documentation.
1.5 Addition to Sole Supplier Index: Where a new Service Line is created
as part of the formal documentation giving effect to a new Service or
change to a Service the Settlement System Administrator and the
Executive Committee shall consider whether such new Service Line
should be added to the Sole Supplier Index and, if they so agree, it
shall be so added.
2. PRICE ON REQUEST
2.1 Request for a price: The Contract Manager may from time to time
request the Account Manager on behalf of the Settlement System
Administrator to quote a price for any Price on Request Item and the
Settlement System Administrator will within a reasonable time quote
such a price.
2.2 Basis of the price: The price quoted by the Settlement System
Administrator shall be calculated by taking account of the Menu of
Prices for the category of Services which most closely corresponds to
the relevant Price on Request Item and, if applicable, to the price
payable for any third party resources for which the Settlement System
Administrator will need to contract to provide such Price on Request
Item.
2.3 Price on Request: The request and quotation procedure in sub-sections
2.1 and 2.2 above is known as the Price on Request procedure.
2.4 Amendment Procedure: Upon receipt of the Settlement System
Administrator's price the Contract Manager may (but shall not be
obliged to) agree the price quoted. If the Contract Manager shall
notify the Account Manager that he agrees the price, the Account
Manager and the Contract Manager shall ordinarily amend the applicable
Menu of Prices to include the quoted price and the applicable
Variation Menu and, if necessary, the applicable Service Line to
include more detail as to the Service to be provided, unless the
Contract Manager and the Account Manager agree that the price of a
Price on Request Item shall not be added to the applicable Menu of
Prices in which case such Price on Request Item shall remain a Price
on Request Item. Upon such amendment(s) being made the relevant Price
on Request Item shall cease to be a Price on Request Item and
3
<PAGE>
shall become a Production Service, a Development Service or a
Consultancy Service (as appropriate) which may then be Ordered.
<PAGE>
PART D: VARIATION MECHANICS
1. INDEXATION
1.1 Indexation: With effect from the first day of each SSA Accounting
Period, beginning with the SSA Accounting Period starting in 1995:-
(a) the Variation Menus shall be automatically adjusted by the
applicable Rate of Inflation; and
(b) the Menus of Prices shall be automatically adjusted by the
applicable Rate of Inflation,
but in each case only where and to the extent expressly provided in
the relevant Menu.
1.2 Mechanics: No later than two months before the first day of each SSA
Accounting Period, beginning with the SSA Accounting Period starting
in 1995, the Settlement System Administrator shall prepare and deliver
to the Contract Manager revised Menus of Prices and Variation Menus
adjusted in accordance with sub-section 1.1 above and, in the case of
Menus of Prices, sub-section 2.1 below together with a report from the
Settlement System Administrator's auditor confirming that it has
reviewed the revised Menus of Prices and Variation Menus and that they
have been correctly adjusted in accordance with such sub-sections.
2. VARIATION MENUS
2.1 Variation Menus: With effect from the first day of each SSA Accounting
Period, beginning with the SSA Accounting Period starting in 1995,
and/or at such other times as may be prescribed in the relevant
Variation Menu, the Menus of Prices (other than as from 1st April,
1998 the Menu of Manpower Prices) shall be automatically adjusted as
provided in the Variation Menus, as such Variation Menus have
themselves first been adjusted as appropriate by the applicable Rate
of Inflation pursuant to sub-section 1.1 above.
2.2 Mechanics:
(a) In the preparation of revised Menus of Prices in accordance
with sub-section 1.2 above, the Settlement System
Administrator shall ensure that the adjustments to the Menus
of Prices prescribed by the Variation Menus as referred to
in sub-section 2.1 above are taken fully into account.
(b) If an adjustment to a Menu of Prices is prescribed pursuant
to sub-section 2.1 above otherwise than with effect from the
first day of an SSA Accounting Period,
4
<PAGE>
the Settlement System Administrator shall prepare and
deliver to the Contract Manager a revised Menu of Prices
before the adjustment is to take effect.
3. [Not used.]
4. VOLUME CHANGES
4.1 Units of Variation: Menus of Prices may provide for units of variation
and prices per unit of variation to Services in which case the units
of variation can be Ordered at the price per unit stated upon the
requisite period of notice of variation (if any) being given.
4.2 Limits: Menus of Prices may provide maximum and minimum limits of a
particular Service. Services required in excess of any such maximum
shall be treated as new Services and Services required below any such
minimum shall, at the request of the Contract Manager, be provided at
a revised lower price where determined in accordance with a
Performance Improvement Programme.
5. STANDING CHARGES
The standing charges referred to in sub-sections 4.1 and 5.1 of Part G shall be
varied automatically at the times and in the manner provided in the relevant
Service Line.
6. MONTHLY MINIMUM MANPOWER CHARGE COMMITMENT: SAVING PROVISION
The provisions of this Schedule 4 relating to the Monthly Minimum Manpower
Charge Commitment as in effect immediately before this Section 6 was amended to
include this saving provision shall continue to apply to the extent necessary to
determine and make all payments, recoveries and reconciliations in respect of,
or determined by reference to, the Monthly Minimum Manpower Charge Commitment
for any SSA Accounting Period expiring on or before 31st March, 1998 (or for any
period forming part of such SSA Accounting Period).
7. MANPOWER RATES
The Settlement System Administrator shall be entitled to amend all or any of the
Manpower Rates from time to time on not less than one month's notice to the
Contract Manager provided that:-
(a) no such amendment shall have retrospective effect;
(b) without prejudice to paragraphs (c) and (d) below, any such
amendment shall have effect only in respect of Orders given
after the expiry of the said period of notice of amendment;
5
<PAGE>
(c) the Manpower Rates current at the time of receipt of an
Order for a project will continue to apply unamended for all
work associated with such project which is to be charged in
accordance with the Manpower Rates and to all extensions and
modifications to such project made under project change
control in accordance with the Contract Management Rules;
and
(d) the Manpower Rates shall not be amended at any time after a
Remediable Removal Notice has been given and for so long as
the same is current or an Irremediable Removal Notice or a
Removal Notice or a Resignation Notice has been given (save
for such Manpower Rates being automatically adjusted by
Average RPI with effect from the first day of each SSA
Accounting Period falling after the date on which any such
notice is given).
8. MARKET TESTS AND PERFORMANCE IMPROVEMENT PROGRAMMES
The Menus of Prices shall be further adjusted following a market test or the
implementation of a Performance Improvement Programme in accordance with the
agreement (if any) reached between the Settlement System Administrator and the
Executive Committee.
9. INCONSISTENCIES IN THE SSA ARRANGEMENTS
If there is a change or variation to any part of the SSA Arrangements which
creates an inconsistency in the obligations to be discharged by the Settlement
System Administrator under the SSA Arrangements, the Settlement System
Administrator may request the Contract Manager (in the case of a Service Line)
or Pool Members, through the Executive Committee (in the case of any other part
of the SSA Arrangements) to make such amendments to the SSA Arrangements as it
considers necessary to remove such inconsistency and the Contract Manager or, as
the case may be, the Executive Committee shall act accordingly to make such
amendments as soon as reasonably possible.
<PAGE>
PART E: ORDERING SERVICES: GENERAL PROVISIONS
1. GENERAL REQUIREMENT FOR ORDERS
Save as provided in Section 2 below, an Order shall be required to be given to
the Settlement System Administrator for each and every Service. Save as so
provided, the Settlement System Administrator shall not, and shall not be
required to, provide any Service, carry out or comply with any request or enter
into any contract or other arrangement or do any other thing under or pursuant
to the SSA Arrangements unless an Order is given to and received by the
Settlement System Administrator in accordance with this Part and (if applicable)
Part F.
2. EXCEPTIONS TO THE REQUIREMENT FOR ORDERS
No Order is required to be received by the Settlement System Administrator in
respect of:-
(a) Services provided under Service Line 14 (ERS Metering)
unless and until an ordering procedure is agreed between the
Settlement System Administrator and the Executive Committee;
(b) Services provided to an individual Pool Member under Service
Line 10 (Service to CEO and Pool Members) or Service Line 11
(Listing and Load Modules) for which a request is received
by the Settlement System Administrator directly from that
Pool Member and where the Pool Member is charged directly
for those Services;
(c) Services provided to the Director or his staff in response
to a request therefrom under Service Line 9 (Service to the
Director General of Electricity Supply);
(d) Services provided under Service Line 8 (Service to Pool
Auditor) in response to a request from the Pool Auditor;
(e) requests of the description in sub-section 3.1(a) below;
(f) Services provided or acts carried out where, in the
reasonable opinion of the Settlement System Administrator,
there will be a breach of NGC's obligations under the Act or
NGC's Transmission Licence unless such Services are provided
or such acts are carried out by the Settlement System
Administrator;
(g) Services provided or acts carried out by the Settlement
System Administrator in good faith where the Contract
Manager or his alternate was unavailable to give an Order
and, in the reasonable opinion of the Settlement System
Administrator, it was necessary to act without an Order
having been received from the Contract Manager in order to
ensure the continued provision of the Services under the SSA
Arrangements provided that, for the Settlement System
Administrator to
<PAGE>
have the right to charge for such Services or acts, an Order
shall be required to be issued after the event and, unless
the Settlement System Administrator has not acted in good
faith, the Contract Manager shall issue such an Order; and
(h) requests from Pool Members, the Executive Committee, the
Chief Executive's Office or the Contract Manager for access
to persons involved in the provision of Production Services
and no charge shall be made where such requests do not
exceed the limits set out in the Contract Management Rules.
3. ISSUING, AND COMPLYING WITH, ORDERS AND REQUESTS
3.1 Entitlement to issue Orders and requests: The only persons entitled to
issue Orders to or to make requests of the Settlement System
Administrator under the SSA Arrangements are:-
(a) if the request has no material cost consequence for the
Settlement System Administrator, the Executive Committee
(either acting by itself or through the Chief Executive) or
the Contract Manager;
(b) if the request has such a material cost consequence, the
Contract Manager by means of an Order;
(c) individual Pool Members by request under Service Line 10
(Service to CEO and Pool Members) or Service Line 11
(Listing and Load Modules);
(d) the Director or his staff by request under Service Line 9
(Service to the Director General of Electricity Supply); and
(e) the Pool Auditor by request under Service Line 8 (Service to
Pool Auditor).
3.2 Compliance with Orders and requests: Subject to the other provisions
of this Section 3, the Settlement System Administrator shall at all
times observe and comply with all requests made by:-
(a) the Executive Committee or the Contract Manager; or
(b) individual Pool Members under Service Line 10 (Service to
CEO and Pool Members) or Service Line 11 (Listing and Load
Modules); or
(c) the Director or his staff under Service Line 9 (Service to
the Director General of Electricity Supply); or
(d) the Pool Auditor under Service Line 8 (Service to Pool
Auditor),
<PAGE>
and all Orders which fulfil the criteria set out in sub-section 3.6
given by the Contract Manager.
3.3 Signature of requests: The Settlement System Administrator shall be
entitled to rely upon any request of the Executive Committee if the
same is signed by or on behalf of two or more Committee Members or by
or on behalf of the Chief Executive.
3.4 Signature of Orders: The Settlement System Administrator shall be
entitled to rely upon an Order if the same is signed by the Contract
Manager.
3.5 Limited delegation: The Settlement System Administrator shall not act
on the directions or instructions of any sub-committee of the
Executive Committee or any delegate of the Executive Committee other
than the Chief Executive or (in the case of Orders) the Contract
Manager.
3.6 Criteria for Orders: An Order shall:-
(a) be in writing and be clear and unequivocal (and an Order
shall be deemed such until such time as the Settlement
System Administrator requests any necessary clarification);
(b) have due regard to the resources of the Settlement System
Administrator available to give effect to such Order;
(c) not increase the liabilities of the Settlement System
Administrator beyond those contemplated under the SSA
Arrangements without proper compensation. For this purpose,
without limitation, compensation for increased liabilities
shall be proper if an indemnity is given to the Settlement
System Administrator which is reasonably satisfactory to it
or other compensation reasonably satisfactory to the
Settlement System Administrator is provided to it;
(d) not conflict with the terms of the SSA Arrangements; and
(e) not cause the Settlement System Administrator to breach any
of NGC's obligations under the NGC Transmission Licence.
3.7 Authority of Pool Members, the Executive Committee and the Chief
Executive: Save as provided in sub-section 3.1(a) and in respect of
Services under Service Line 10 (Service to CEO and Pool Members) or
Service Line 11 (Listing and Load Modules):-
(a) none of the Pool Members, the Executive Committee and the
Chief Executive may issue requests or Orders to the
Settlement System Administrator; and
<PAGE>
(b) the Settlement System Administrator shall not act in
accordance with any request of the Pool Members, Chief
Executive or Executive Committee unless the Pool Members,
the Executive Committee or the Chief Executive act through
the Contract Manager.
3.8 Refusing Orders (1): The Settlement System Administrator shall be
entitled to refuse to accept an Order for Consultancy Services or
Development Services (other than for impact analyses of assessments
under Service Line 12 to the level determined and agreed from time to
time between the Contract Manager and the Account Manager and set out
in the Contract Management Rules provided in each case that:-
(a) the Settlement System Administrator promptly (and in any
event within the period prescribed by the Contract
Management Rules) notifies the person who issued the Order
(with a copy to the Contract Manager) of its refusal and the
reason therefor;
(b) the Order is not in respect of an extension or modification
to an existing project in respect of which Orders have been
previously accepted by the Settlement System Administrator
where such extension or modification has been made under
project change control in accordance with the Contract
Management Rules; and
(c) the Order is not in respect of Services which have been
Ordered on a fixed price basis (whether pursuant to Section
3 of Part F or otherwise).
3.9 Refusing Orders (2): The Settlement System Administrator shall not be
entitled to refuse to accept an Order which does not exceed the
Minimum Support Level for key areas of the Services described in, and
procured in accordance with, the Contract Management Rules.
4. SETTLEMENT SYSTEM ADMINISTRATOR'S PROTECTIONS
4.1 Recovery of charges: Nothing in this Part E and no omission on the
part of the Contract Manager to issue an Order or to issue an Order
for sufficient Services to cover the Minimum Contract Price (if any)
shall prevent the Settlement System Administrator from invoicing and
recovering from Pool Members in accordance with Parts G and J, the
Minimum Contract Price (if any) and the standing charges referred to
in sub-sections 4.1 and 5.1 of Part G.
4.2 Compliance with the Director's directions: No liability whatsoever
shall attach to the Settlement System Administrator as a result of due
compliance by it with any directions and instructions of the Director,
provided that in complying with such directions and instructions the
Settlement System Administrator is at all times acting in good faith.
<PAGE>
4.3 Ratification: Nothing in the SSA Arrangements shall prevent the
Executive Committee or the Contract Manager from ratifying any act of
the Settlement System Administrator such ratification to be, where
applicable, by way of an Order.
4.4 Express authority: All requests of the Executive Committee and Orders
or requests of the Contract Manager to the Settlement System
Administrator shall, as between the Settlement System Administrator
and the Pool Members, be deemed to have the express authority of and
shall be binding without reservation upon all Pool Members.
4.5 Reliance on documents believed genuine: The Settlement System
Administrator shall be entitled to rely upon any communication or
document reasonably believed by it to be genuine and correct and to
have been communicated or signed by the person by whom it purports to
be communicated or signed and shall not be liable to any of the
Parties for any of the consequences of such reliance.
4.6 General meetings: The Settlement System Administrator shall not be
obliged to take any steps to ascertain whether any resolution of Pool
Members in general meeting or of any class of Pool Members in separate
general meeting which it is advised by the Executive Committee or the
Chief Executive as having been passed was in fact passed or passed by
the requisite majority and until the Settlement System Administrator
shall have express written notice to the contrary from the Executive
Committee or the Chief Executive it shall be entitled to assume that
the relevant resolution was passed or (as the case may be) the
relevant requisite majority was obtained.
4.7 Exceptions: Notwithstanding the foregoing provisions of Section 3, in
the performance of its duties and responsibilities under the SSA
Arrangements the Settlement System Administrator shall not be bound to
act in accordance with any request of the Executive Committee or the
Contract Manager or any individual Pool Member under Service Line 10
(Service to CEO and Pool Members) or Service Line 11 (Listing and Load
Modules), or an Order if:-
(a) to do so would cause the Settlement System Administrator to
breach any of NGC's obligations under the Act or NGC's
Transmission Licence; or
(b) the Settlement System Administrator has reasonable grounds
for believing that it would so breach any of such
obligations and has consulted the Director and:-
(i) the Director has not indicated that in his view it
would not involve any such breach; or
(ii) the Director has indicated that, notwithstanding
any such actual or potential breach, the Director
would not be minded to enforce compliance with
those obligations and the Settlement System
<PAGE>
Administrator has received an indemnity reasonably
satisfactory to it in respect of its acting in
accordance with such requests or Orders.
In any such event the Settlement System Administrator shall promptly
notify the Executive Committee.
4.8 Reference to the Director: If at any time the Settlement System
Administrator has a concern which is properly and reasonably founded
that, in acting in accordance with any requests of the Executive
Committee or the Contract Manager or an individual Pool Member or any
Order, it will breach one or more of NGC's obligations under the Act
or NGC's Transmission Licence, then, if having discussed the matter
with the Executive Committee the matter remains unresolved, the
Settlement System Administrator shall either comply with such request
or Order or by notice in writing refer the same to the Director, such
notice to set out in full the request or be accompanied by a copy of
the Order (as the case may be) given to the Settlement System
Administrator and the grounds for such concern and to be copied to the
Executive Committee and (if applicable) the individual Pool Member.
Pending any guidance from the Director in response to any such
reference and, provided that the Director shall not express any view
that such reference is misconceived, vexatious or in respect of an
improperly or unreasonably founded concern, the Settlement System
Administrator shall not be liable to any of the other Parties for
refusing to act in accordance with the relevant request or Order. If
the Director shall express such a view, the Settlement System
Administrator shall be so liable.
5. JOB NUMBERS
5.1 Job Numbers: The Contract Manager shall ensure that each Order that he
issues shall have a Job Number and a stated objective. Where Orders
issued by the Contract Manager have a common stated objective they
will bear a related Job Number.
5.2 Extensions to Orders: Extensions to Orders may be made only if the
Order in respect of such extension bears the same stated objective as
the earlier Order.
6. SUPPLEMENTAL PROVISIONS
6.1 Changing resources: Once the Contract Manager has become aware of the
identity of a particular person to be allocated to a particular Order
whose responsibilities include direct communication with the Executive
Committee or the Contract Manager (as the case may be) in connection
with that Order, that person shall not be changed without prior
consultation with and the agreement of the Executive Committee or the
Contract Manager.
6.2 [Not used.]
<PAGE>
6.3 Resource records: The Settlement System Administrator shall maintain a
record showing by Job Number where a Service has been Ordered but no
work delivered or (as the case may be) no added value provided in the
provision of that Service.
6.4 Dedication of resource: The resource represented by an Order shall be
dedicated wholly and exclusively to the provision of the Service
Ordered and shall not be made available to any third party or for any
other purpose without the prior written consent of the Contract
Manager.
6.5 Failure to supply resource: Where a resource has been Ordered but is
not delivered in accordance with the terms of that Order, that
resource shall be delivered at no further cost to Pool Members at such
time or times as may be reasonably required by the Contract Manager
and subject to such limits as may be agreed from time to time by the
Account Manager and the Contract Manager.
<PAGE>
PART F: ORDERING SERVICES: SPECIFIC PROVISIONS
1. ORDERING PRODUCTION SERVICES
1.1 Continuous Production Services: The minimum period for which a
Continuous Production Service can be Ordered is one month.
1.2 Volume changes: If there shall be a change in the volume of Continuous
Production Services for which no Order has been given, the Settlement
System Administrator shall promptly notify the Contract Manager who
shall promptly issue an Order with retrospective effect for such
change.
1.3 Ad Hoc Production Services: The Contract Manager shall have the right
to Order Ad Hoc Production Services in accordance with the Menu of
Production Services Prices.
2. [Not used.]
3. ORDERING DEVELOPMENT SERVICES
The Contract Manager and the Settlement System Administrator may agree from time
to time that Development Services shall be Ordered on a fixed price basis and,
if so agreed, shall record the terms of that fixed price agreement (including
payment terms) in writing.
4. ORDERING NON-MENU SERVICES
A Non-Menu Service may not be Ordered unless and until documentation recording
the terms and conditions on which it is to be provided has been agreed as
provided in Section 1 of Part C.
5. REQUESTS BY DIRECTOR
The Director or his staff may make requests for Services under and in accordance
with Service Line 9 (Service to the Director General of Electricity Supply).
6. INDIVIDUAL POOL MEMBER REQUESTS
Individual Pool Members may make requests for Services under and in accordance
with Service Line 10 (Service to CEO and Pool Members) or Service Line 11
(Listing and Load Modules). The Pool Auditor may make requests for Services
under and in accordance with Service Line 8 (Service to Pool Auditor).
7. THIRD PARTY PROCUREMENT
7.1 Third Party Contract: Subject to sub-section 7.2 below, upon receipt
of an Order and on and subject to the terms and conditions thereof,
the Settlement System Administrator
<PAGE>
shall enter into or (as the case may be) amend, vary or modify (or
agree to an amendment, variation or modification of) a contract or
other arrangement with a third party for the provision of a resource
to or for the benefit of the Settlement System Administrator to enable
it to provide a Service the costs of which are to be passed directly
to Pool Members (a "Third Party Contract"), but shall not do any of
the foregoing in the absence of such an Order.
7.2 Exceptional circumstances: If by reason of:-
(a) a term in any licence of Licensed Application Software (as
defined in Section 9 of Schedule 4); or
(b) the Service requiring the provision of skill sets outside
the defined scope of the Menu of Manpower Prices; or
(c) the Service requiring product knowledge outside the defined
scope of the SSA Arrangements,
the Settlement System Administrator has no option but to contract with
a third party for the provision of a resource to or for the benefit of
the Settlement System Administrator to enable it to provide a Service,
it shall request the Contract Manager to issue an Order to that effect
and shall give a written explanation in support of that request and
allow the Contract Manager sufficient time to consult the Executive
Committee provided that the Contract Manager shall have no obligation
to issue any such Order and, if no such Order is issued, the
Settlement System Administrator shall not enter into any such
contract.
<PAGE>
PART G: CHARGES FOR SERVICES: GENERAL PRINCIPLES
1. GENERAL
The Settlement System Administrator shall have the right to charge Pool Members
for Services it has provided or is to provide and to recover from them the
charges set out in this Part G and in Part H upon and subject to the terms and
conditions set out in such Parts. A summary of the charges recoverable by the
Settlement System Administrator in respect of any month is set out in Section 9
below.
2. CHARGES FOR PRODUCTION SERVICES
2.1 Continuous Production Services: The charge for each Continuous
Production Service shall be the corresponding price set out in the
Menu of Production Services Prices.
2.2 Ad Hoc Production Services: The charge for each Ad Hoc Production
Service shall be the corresponding price set out in the Menu of
Production Services Prices.
3. CHARGES FOR ERS METERING
3.1 Charges: The Settlement System Administrator shall have the right to
charge for the provision of Services in Service Line 14 (ERS Metering)
in accordance with the Menu of ERS Metering Prices (being an annex to
the Menu of Production Services Prices).
3.2 Separate Account: The Settlement System Administrator shall open and
maintain a separate account (the "ERS Account") to which it shall
credit monthly the Suppliers' ERS Charges received for that month.
3.3 Debits against Account: The Settlement System Administrator shall
debit the ERS Account each month with the amount that it is entitled
to charge in accordance with sub-section 3.1 above for the provision
of Services in Service Line 14 (ERS Metering) in respect of any period
beginning on or after 1st April, 1998.
3.4 Interest: Interest shall accrue and be chargeable on credit and debit
balances on the ERS Account as follows:-
(a) the Settlement System Administrator shall have the right to
charge interest on any debit balance on the ERS Account; and
(b) the Settlement System Administrator shall be liable to pay
interest on any credit balance on the ERS Account.
<PAGE>
The rate of interest shall be agreed from time to time between the
Executive Committee and the Settlement System Administrator and shall
accrue from day to day on the basis of a 365-day year on the credit or
debit balances outstanding.
3.5 Over-recovery: If at the end of an SSA Accounting Period there shall
be a credit balance on the ERS Account the Settlement System
Administrator shall account for that balance to such persons as the
Executive Committee shall direct.
3.6 Maintenance of STSSC Account: The Settlement System Administrator
shall, if so required by the Executive Committee, transfer any credit
balance on the STSSC Account (as that term was defined immediately
prior to this sub-section 3.6 taking effect) to an account with the
Pool Funds Administrator (or with such other person as may be notified
to it by the Executive Committee) to be administered in accordance
with paragraph 2.2.5 of Schedule 31.
3.7 Migration from ERS: The Settlement System Administrator acknowledges
that the provisions of this Section 3 shall cease to have effect on
and after the later of (i) 1st October, 1999 and (ii) the completion
of the transfer of all customer metering systems from ERS to the PES
Registration Services, as notified to it by the Executive Committee.
4. CHARGES FOR CONSULTANCY SERVICES
4.1 Standing Charge: The Settlement System Administrator shall have the
right to recover in respect of each month the standing charge for
Consultancy Services set out in the Menu of Consultancy Services
Prices, whether or not Consultancy Services are Ordered or the volume
of service under the relevant Service Line has been reduced to zero or
the relevant Service Line cancelled. It is agreed that standing
charges for Consultancy Services are applicable only to Service Lines
8 (Service to Pool Auditor), 10 (Service to CEO and Pool Members), 12
(Management of Settlement Change) and 13 (Consultancy, Committee
Support and Training Services).
4.2 Manpower Charges: The Settlement System Administrator shall have the
right to charge for manpower provided for Consultancy Services at the
relevant Manpower Rates.
5. CHARGES FOR DEVELOPMENT SERVICES
5.1 Standing Charge: The Settlement System Administrator shall have the
right to recover in respect of each month the standing charge for
Development Services set out in the Menu of Development Services
Prices, whether or not Development Services are Ordered or the volume
of service under the relevant Service Line has been reduced to zero or
the relevant Service Line cancelled. It is agreed that standing
charges for Development Services are applicable only to Service Lines
15 (Design Authority), 18 (System Development) and 19 (System
Integration).
<PAGE>
5.2 [Not used.]
5.3 Manpower Charges: The Settlement System Administrator shall have the
right to charge for manpower provided or to be provided for
Development Services at the relevant Manpower Rates.
5.4 Fixed Charges: Notwithstanding the provisions of sub-section 5.3
above, if Development Services have been Ordered on a fixed price
basis in accordance with sub-section 3.2 of Part F, the Settlement
System Administrator shall charge for such Development Services on the
terms of the written fixed price agreement referred to in that
sub-section and not on the terms of sub-section 5.3 above (but without
prejudice to the Settlement System Administrator's right to recover
the standing charge referred to in sub-section 5.1 above).
6. CHARGES FOR NON-MENU SERVICES
The charge for each Non-Menu Service shall be the price set out in the agreed
documentation for the provision of such Non-Menu Service.
7. THIRD PARTY PROCUREMENT COSTS
In respect of any Third Party Contract where in accordance with the terms of the
Order relating thereto the Third Party Costs are to be invoiced to the
Settlement System Administrator and passed directly through to Pool Members, the
Settlement System Administrator shall have the right to recover the Handling
Charge in respect of such Third Party Costs.
8. POOL DATA CATALOGUE FEES
8.1 Amount of Pool Data Catalogue Fees: The fee payable by a Party
pursuant to Clause 34.2.1 (the "Pool Data Catalogue Fee") shall be
determined from time to time by the Executive Committee and confirmed
by Order, but shall not be less than the aggregate of (a) the cost to
the Settlement System Administrator of providing all such data and
other information or (as the case may be) such of it as is requested
by such Party, and (b) the Handling Charge, provided that the
Executive Committee may, in its discretion, determine that such fee
shall be less than the aggregate of (a) and (b) but, in such event,
such Order shall also specify that the difference between such fee and
such aggregate amount shall be charged to all Pool Members as if it
were a Third Party Cost.
8.2 Payment of Pool Data Catalogue Fees: The Pool Data Catalogue Fee shall
be payable in arrears within 15 days after the issue by the Settlement
System Administrator of an invoice therefor or within such other
period as may be agreed from time to time by the relevant Party and
the Settlement System Administrator. All such payments shall be made
in sterling in cleared funds in full without set-off or counter-claim,
withholding or deduction of any kind whatsoever but without prejudice
to any other remedy.
<PAGE>
8.3 Disputes: In the event of any dispute regarding payment of the Pool
Data Catalogue Fee, a Party may not withhold payment of any invoiced
amount therefor but may refer such dispute to arbitration in
accordance with Clause 83 following payment.
8.4 Interest on non-payment: The provisions of sub-section 3.3 of Part J
shall apply mutatis mutandis to any amount due to the Settlement
System Administrator pursuant to sub-section 8.2 above which is not
received on the due date.
8.5 Absence of Order: In the absence of an Order confirming the Pool Data
Catalogue Fee, the Settlement System Administrator may charge Parties
a fee pursuant to Clause 34.2.1 equal to the aggregate of (a) the cost
to the Settlement System Administrator of providing all such data and
other information or (as the case may be) such of it as is requested
by the relevant Party and (b) the Handling Charge.
9. SUMMARY OF CHARGES RECOVERABLE
9.1 Charges Recoverable: In respect of any month and subject as provided
in sub-section 9.2 below, the Settlement System Administrator shall
have the right to recover from all Pool Members the following amounts
in respect of Services provided or to be provided during that month:-
(a) charges for all Continuous Production Services provided or
to be provided during such month, determined as provided in
sub-section 2.1 above;
(b) charges for all Ad Hoc Production Services provided or to be
provided during such month, determined as provided in
sub-section 2.2 above;
(c) charges for the provision of Services in Service Line 14
(ERS Metering) provided or to be provided during such month,
determined as provided in sub-section 3.1 above;
(d) the monthly standing charge for Consultancy Services,
determined as provided in sub-section 4.1 above;
(e) charges for all Consultancy Services provided or to be
provided during each month, determined as provided in
sub-section 4.2 above;
(f) the monthly standing charge for Development Services,
determined as provided in sub-section 5.1 above;
(g) charges for all Development Services provided or to be
provided during such month, determined as provided in
sub-section 5.3 or 5.4 above;
(h) charges for Services provided or to be provided during such
month:-
<PAGE>
(i) requested by the Director or his staff pursuant to
Service Line 9 (Service to the Director General of
Electricity Supply) (or a substitute Service Line
in agreed form); or
(ii) requested by the Pool Auditor pursuant to Service
Line 8 (Service to Pool Auditor);
(i) charges for all Non-Menu Services, determined as provided in
Section 6 above;
(j) Third Party Costs that have been invoiced to the Settlement
System Administrator during such month, and the Handling
Charge in respect thereof; and
(k) any charges which are expressed in this Agreement as
recoverable "in accordance with the Charging Procedure"
provided that with the exception of:-
(i) the recovery of the standing charges for Consultancy
Services and Development Services;
(ii) until such time as an ordering procedure is agreed between
the Settlement System Administrator and the Executive
Committee, the recovery of charges for Services referred to
in paragraph (c) above;
(iii) the recovery of charges for Services referred to in
paragraph (h) above;
(iv) the recovery of the Minimum Contract Price (if any); and
(v) the recovery of charges for Services referred to in Sections
2(b) and 2(e) of Part E,
the Settlement System Administrator shall not have the right to
recover charges in respect of Services provided or to be provided
unless an Order in respect of those Services has been received by the
Settlement System Administrator.
9.2 Service Credits: The amounts recoverable by the Settlement System
Administrator from Pool Members pursuant to sub-section 9.1 above in
respect of any month shall be reduced by the aggregate amount of all
Service Credits payable by the Settlement System Administrator in
respect of such month (such aggregate amount not to exceed the maximum
aggregate amount of Service Credits, if any, payable by the Settlement
System Administrator as provided in the Menu of Service Credits).
10. [Not used.]
<PAGE>
11. MINIMUM CONTRACT PRICE
11.1 Annual recovery: If in respect of any SSA Accounting Period the
aggregate of the charges referred to in paragraphs (a), (b), (d), (e),
(f) and (g) of Section 9 above (but excluding any such charges under
paragraphs (a), (b), (e) and (g) of Section 9 referable to Services
provided under Service Lines 9, 11, 14, 16, 17, 18 and 21) recovered
for all months in such SSA Accounting Period shall be less than the
Minimum Contract Price, the Settlement System Administrator shall have
the right to recover the amount of such shortfall without an Order in
the first monthly invoice to be issued under Part J after the end of
such SSA Accounting Period.
11.2 Monthly recovery: If in any SSA Accounting Period it appears to the
Account Manager (acting reasonably) after consultation with the
Contract Manager and by reference to Orders received that the sum of
the charges referred to in sub-section 11.1 above for the remainder of
such SSA Accounting Period when aggregated with the sum of such
charges already recovered in such SSA Accounting Period will be less
than the Minimum Contract Price, the amount of such shortfall may be
recovered without an Order in monthly instalments over the remaining
months of such SSA Accounting Period, the amount of such instalments
being agreed in advance by the Contract Manager and the Account
Manager, such agreement not to be unreasonably withheld.
11.3 Minimum Contract Price: The Minimum Contract Price in respect of any
SSA Accounting Period shall be the amount set out against such SSA
Accounting Period in the document entitled Minimum Contract Price Menu
in the agreed form.
11.4 Reduction in Minimum Contract Price: With effect from the
Re-Engineered Settlement System Introduction Date the Minimum Contract
Price shall be reduced by such amount as the Settlement System
Administrator and the Executive Committee shall agree reflects the
reduction in Production Services required as from that date.
12. SERVICE CREDITS
12.1 Service Credits: If at any time any of the Services shall fail for
whatever reason to be performed or carried out by the Settlement
System Administrator in accordance with the required levels of
performance specified in the relevant Service Line, the Settlement
System Administrator shall (unless otherwise agreed by it with the
Executive Committee) credit Pool Members with any applicable Service
Credit in respect of the month(s) in which such failure occurred or
(as the case may be) continued by way of a reduction of an amount
equivalent to the Service Credit(s) in the next following invoice of
Post Charges (or, if there shall be no such invoice, by payment of the
aggregate amount of such Service Credit(s) to Pool Members within 14
days after the end of the month to which they relate).
<PAGE>
12.2 Service Credits not exhaustive: Each Party acknowledges and confirms
that the Service Credits represent a genuine pre-estimate of the loss
likely to be suffered by Pool Members as a result of a failure by the
Settlement System Administrator to perform or carry out the relevant
Service in accordance with the required levels of performance
specified in the relevant Service Line.
12.3 Remediable Removal Notices: If the Settlement System Administrator
fails for whatever reason to perform or carry out Production Services
in accordance with the required level of performance specified in the
relevant Service Line (each such failure being a "Service Failure")
and in any relevant period prescribed for this purpose in the Contract
Management Rules the number of Service Failures exceeds such number as
is prescribed for this purpose in the Contract Management Rules, the
Executive Committee shall have the right at any time thereafter to
give the Settlement System Administrator a Remediable Removal Notice
in accordance with sub-section 17.1 of Schedule 4 as if there had been
a failure by the Settlement System Administrator of the type described
in such sub-section and sub-section 17.5 of Schedule 4 shall then
apply (but without the right under paragraph (a) thereof for the
Settlement System Administrator to remedy such failure).
Notwithstanding the giving of a Remediable Removal Notice by the
Executive Committee pursuant to this sub-section, the provisions of
sub-section 12.1 shall apply for each such Service Failure.
<PAGE>
PART H: CHARGES FOR SERVICES: EXCEPTIONAL ITEMS
1. EXTENSION PERIOD CHARGES
The Settlement System Administrator shall be entitled to charge in accordance
with the Charging Procedure for all and any Services provided during the
Extension Period by the Settlement System Administrator as follows:-
(a) where the first Extension Notice is served on the Settlement
System Administrator at least six months before the
Termination Date:-
(i) for the first three months of all Extension
Periods (taken together), the Settlement System
Administrator shall be entitled to charge for
Services in accordance with the appropriate rates
for those Services in the relevant Menu of Prices
multiplied by 1.0; and
(ii) for the second three months of all Extension
Periods (taken together), the Settlement System
Administrator shall be entitled to charge for
Services in accordance with the appropriate rates
for those Services in the relevant Menu of Prices
multiplied by 1.1; and
(iii) for any period thereafter, the Settlement System
Administrator shall be entitled to charge for
Services in accordance with the appropriate rates
for those Services in the relevant Menu of Prices
multiplied by 1.2;
(b) where the first Extension Notice is served on the Settlement
System Administrator less than six months but more than
three months before the Termination Date:-
(i) for the first three months of all Extension
Periods (taken together), the Settlement System
Administrator shall be entitled to charge for
Services in accordance with the appropriate rates
for those Services in the relevant Menu of Prices
multiplied by 1.1; and
(ii) for any period thereafter, the Settlement System
Administrator shall be entitled to charge for
Services in accordance with the appropriate rates
for those Services in the relevant Menu of Prices
multiplied by 1.2; and
(c) where the first Extension Notice is served on the Settlement
System Administrator less than three months before the
Termination Date, the Settlement System Administrator shall
be entitled to charge for Services in the Extension Period
in accordance with the appropriate rates for those Services
in the relevant Menu of Prices multiplied by 1.2.
<PAGE>
If the aggregate of any additional or consequential costs (other than
manpower costs) properly incurred in any Extension Period and reported
on by the auditor of the Settlement System Administrator exceeds the
aggregate of the incremental rates charged in any such Extension
Period in accordance with paragraphs (a) to (c) above the amount of
such cost shall be recoverable by the Settlement System Administrator.
2. BAD DEBTS
The total cost of any bad debts (including interest thereon) of the Settlement
System Administrator in providing the Services and arising in any SSA Accounting
Period may be recovered by the Settlement System Administrator in any subsequent
SSA Accounting Period as if it were a Third Party Cost (but the Settlement
System Administrator shall not have the right to recover the Handling Charge in
respect thereof).
3. NEW TAXES OR NEW LEGISLATION
3.1 New taxes: If by reason of the introduction of a new tax (other than a
tax on overall net income) the cost to the Settlement System
Administrator of providing the Services is increased or the amount of
any payment received or receivable by the Settlement System
Administrator under the SSA Arrangements for providing the Services is
reduced, then:-
(a) forthwith upon becoming aware of the happening of such event
the Settlement System Administrator shall notify the
Executive Committee who shall thereupon notify the Pool
Members;
(b) the Settlement System Administrator shall, as soon as is
reasonably practicable, give the Executive Committee (who
shall thereupon notify the Pool Members) a certificate
giving details of the new tax and the amount of such
additional cost or reduction and the calculation thereof and
the period to which it applies together with a report from
its auditors confirming that they have reviewed the basis of
the calculation of the additional cost or reduction and
confirming the accuracy of the calculation; and
(c) subject to the Settlement System Administrator complying
with its obligations under paragraphs (a) and (b) above, the
Settlement System Administrator shall have the right to
recover from Pool Members the amount of such additional cost
or reduction through an adjustment to the Menus of Prices or
in such other manner as may be agreed with the Executive
Committee as will in either case ensure that the Settlement
System Administrator is kept whole in respect of such
additional cost or reduction.
3.2 New legislation: If at any time the Settlement System Administrator
becomes subject to either a new statute passed by the government of
the United Kingdom or a new European Union regulation which is
directly applicable, in either case under which the
<PAGE>
Settlement System Administrator is obliged to act in a manner which
materially increases the cost to it of providing the Services then it
shall notify the Executive Committee of such a change and if the
Executive Committee is satisfied, in its sole discretion, that:-
(a) the Settlement System Administrator is obliged to act in
accordance with the new legislation; and
(b) the cost to the Settlement System Administrator of providing
the Services as a whole will be materially increased as a
result of complying with such legislation,
the Executive Committee shall enter into good faith negotiations with
the Settlement System Administrator to agree (but with no absolute
obligation on the Executive Committee or the Settlement System
Administrator to agree) amendments to the Menus of Prices to reflect
such increased costs.
4. EXCEPTIONAL ITEMS
If, where Service Line 21 (Emergency Services) is invoked by the Executive
Committee, the Settlement System Administrator shall necessarily incur
additional costs in running the Stage 1 Settlements Business during a Security
Period, those costs shall be regarded as beyond the control of the Settlement
System Administrator and the Settlement System Administrator may recover the
same, together with an administration charge of 2.5 per cent., as if they were
Third Party Costs (but shall not have the right to recover the Handling Charge
in respect thereof) provided that such costs have been verified as additional
costs by the Settlement System Administrator's auditors. Pool Members shall be
obliged to pay the actual amount of such costs and all reasonable costs of the
Settlement System Administrator's auditors in verifying the same.
5. MARKET TEST COSTS
Where any market test is commissioned by the Executive Committee, Pool Members
shall be liable according to their Contributory Shares for:-
(a) all Third Party Costs (if any) incurred in contracting for
the market test services; and
(b) all costs (if any) directly and properly incurred by ESIS in
appraising the result of a market test of which the
Settlement System Administrator has been asked to take
account pursuant to sub-section 9.3 of Part B and in
requesting clarification of the method and clarification and
correction of the results thereof.
6. PIP REBATES
If as a result of the implementation of a Performance Improvement Programme
there shall be any rebate due to Pool Members in respect of the charges of the
Settlement System Administrator for
<PAGE>
the provision of Services, Pool Members will be credited a proportionate sum of
such rebate according to their Contributory Shares in the next invoice issued by
the Settlement System Administrator under Part J.
<PAGE>
PART I: DEFERRED SETTLEMENT PROJECT EXPENDITURE
1. SOFTWARE EXPENDITURE ALREADY CAPITALISED
The Settlement System Administrator shall have the right to recover Stage 1
Software expenditure capitalised in its books at 1st April, 1994 at the
aggregate of (a) its net book value at that date, (b) a margin of 6 per cent.
per annum on the reducing balance of such value and (c) a financing interest
charge on such reducing balance at a rate per annum equal to the base rate from
time to time of Barclays Bank PLC plus 2 per cent.. Such recovery shall be made
monthly as Deferred Settlement Project Expenditure from 1st April, 1994 through
the charges for Continuous Production Services spread evenly over the remainder
of the agreed depreciation period relating to the relevant item of Stage 1
Software expenditure.
2. EXISTING WORK IN PROGRESS AS AT APRIL, 1994
The Settlement System Administrator shall have the right to recover Stage 1
Software development work in progress recorded in its books at 1st April, 1994
on a monthly basis as Deferred Settlement Project Expenditure through the
charges for Continuous Production Services spread evenly over 60 months starting
with the month following commissioning of the Stage 1 Software. The aggregate
amount to be recovered shall be:-
(a) the net book value of all such Stage 1 Software development
work in progress at 1st April, 1994;
(b) the cost of the Settlement System Administrator's manpower
used since 1st April, 1994 in developing such Stage 1
Software, calculated on the basis of the then current Menu
of Manpower Prices;
(c) Third Party Costs (if any) since 1st April, 1994 in
developing such Stage 1 Software;
(d) a margin of 6 per cent. per annum on the reducing balance of
the value referred to in (a) above starting from 1st April,
1994; and
(e) a financing interest charge as agreed from time to time by
the Executive Committee and the Settlement System
Administrator on such reducing balance, and over such
periods as may be agreed by the Executive Committee and the
Settlement System Administrator, through an appropriate
amendment to the Menu of Prices for Continuous Production
Services.
3. NEW PROJECTS SINCE APRIL, 1994
In respect of Stage 1 Software development projects Ordered on or after 1st
April, 1994, the Settlement System Administrator shall have the right to recover
the price for any such project as
<PAGE>
revenue charges when incurred unless in Ordering the project the Contract
Manager agrees with the Settlement System Administrator that the price should be
recovered on a deferred basis as Deferred Settlement Project Expenditure in
which event it shall be recovered (together with an interest charge and
arrangement fee, if agreed) over such period as may be so agreed through the
charges for Continuous Production Services by an appropriate amendment to the
Menu of Production Services Prices.
<PAGE>
PART J: COST RECOVERY
1. CHARGES RECOVERABLE BY THE SETTLEMENT SYSTEM ADMINISTRATOR
The Settlement System Administrator shall have the right to recover from all
Pool Members all sums due to it from them under the SSA Arrangements provided
that such sums are invoiced in accordance with this Part. All sums to be
recovered must be included in an invoice for Prior Charges, an invoice for Post
Charges or an invoice for Suppliers' ERS Charges. In respect of any month, the
amounts invoiced on an invoice for Prior Charges, on an invoice for Post Charges
and on an invoice for Suppliers' ERS Charges shall together be known as the
Total Sum Due in respect of that month. Amounts to be recovered representing
Total Second Tier System Charges (as that term is defined in the definition of
100kW Shortfall Amount) shall be recoverable by the Settlement System
Administrator only pursuant to paragraph 2.2.5 of Schedule 31 and shall
accordingly not form part of the Total Sum Due or be subject to the remaining
provisions of this Part (and Pool Members shall procure that the Executive
Committee complies with the provisions of paragraph 2.2.5 of Schedule 31
relating to the application of funds). For the avoidance of doubt, the Total Sum
Due shall be net of Service Credit. The provisions of Section 5 below shall
apply notwithstanding any other provision of this Part J.
2. INVOICING
2.1 Invoice Statement for Prior Charges: The Settlement System
Administrator shall send the Contract Manager an invoice statement for
Prior Charges in the agreed form in respect of each month no later
than 45 days prior to the commencement of such month.
2.2 Content of Invoice Statement: Each invoice statement for Prior Charges
shall specify the amount due in respect of Services to be provided
during the relevant month as follows:-
(a) the charge for Continuous Production Services;
(b) the monthly standing charge for Consultancy Services;
(c) the monthly standing charge for Development Services; and
(d) the anticipated under-recovery (if any) in the SSA
Accounting Period to date of charges for the provision of
Services in Service Line 14 (ERS Metering), plus or minus
the interest accrued on the debit or credit balance (as the
case may be) on the ERS Account.
2.3 Invoice Statement for Post Charges: The Settlement System
Administrator shall send the Contract Manager an invoice statement for
Post Charges in the agreed form in respect of each month no later than
ten days after the end of such month.
<PAGE>
2.4 Content of Invoice Statement: Each invoice statement for Post Charges
shall specify the amount due in respect of Services provided during
the relevant month and not contained in the invoice statement for
Prior Charges for such month as follows:-
(a) the charge for Continuous Production Services not charged
under sub-section 2.2(a) above;
(b) the charge for Ad Hoc Production Services;
(c) the charge for Consultancy Services and Development Services
(d) the charge for Non-Menu Services;
(e) any Third Party Costs together with the associated Handling
Charge;
(f) any charges for Services provided during such month
requested by the Director or his staff under Service Line 9
(Service to the Director General of Electricity Supply);
(g) any charge for Services provided under Service Line 8
(Service to Pool Auditor) requested by the Pool Auditor; and
(h) any charges for items expressly stated to be otherwise
recoverable "in accordance with the Charging Procedure",
and shall specify the amount of any and all Service Credits payable by
the Settlement System Administrator in respect of such month.
2.5 Disputes: The Contract Manager shall raise, in writing, any concerns
in relation to any such invoice statements as are referred to in
sub-section 2.1 or 2.3 above within five working days of receipt of
the same, but shall not be precluded from raising any such concerns at
any later stage. If any concerns are not settled by the date the
invoices are required to be despatched to Pool Members, such invoices
may be despatched by the Settlement System Administrator on the basis
it reasonably believes to be correct insofar as they relate to Prior
Charges or Post Charges which are not disputed by the Contract
Manager. Any Prior Charges or Post Charges which are believed in good
faith to be wrong by the Contract Manager and continue to be disputed
in good faith may not be included in any invoice until the amount
outstanding has been settled between the Settlement System
Administrator and the Contract Manager. Where, after investigation, it
is agreed between the Contract Manager and the Settlement System
Administrator that the amount disputed has in fact been correctly
calculated by the Settlement System Administrator, the Settlement
System Administrator shall have the right to charge interest on such
Prior Charges or Post Charges in accordance with and on the basis set
out in sub-section 3.3 below from the date upon which they would have
been due for
<PAGE>
payment if undisputed. Any adjustment following settlement of
outstanding concerns will be made through the next invoice issued
under this Part.
2.6 Invoices to Pool Members: The Settlement System Administrator shall
send each Pool Member an invoice:-
(a) in respect of an invoice for Prior Charges, no later than
the first day of the month prior to the month in respect of
which the relevant charges are to be recovered; and
(b) in respect of an invoice for Post Charges, no later than ten
days after such statement is sent to the Contract Manager,
in each case for an amount determined in accordance with Part K
provided that where the aggregate amount of Post Charges in any month
does not exceed (pound)100,000 the Settlement System Administrator may
include such Post Charges in the next following invoice for Prior
Charges issued subject to sub-section 2.6(a) above.
2.6A Invoices for Suppliers' ERS Charges: No later than the fifth working
day of each month, the Settlement System Administrator shall send to
each Supplier an invoice determined in accordance with Part K in
respect of:-
(a) the Supplier's ERS Variable Charge for that month,
calculated as specified in Section 3 of Schedule 31 (the
Settlement System Administrator being entitled, for this
purpose, to rely on information provided to it by the
Executive Committee); and
(b) the Supplier's ERS Fixed Charge for that month, calculated
as specified in Section 4 of Schedule 31 (the Settlement
System Administrator being entitled, for this purpose, to
rely on information provided to it by the Executive
Committee).
2.7 Resignation or removal of the Settlement System Administrator: Where
the Settlement System Administrator resigns in accordance with Section
14 of Schedule 4 or is removed in accordance with Section 17 of
Schedule 4, the Settlement System Administrator shall be responsible
for all Transition Costs. Accordingly:-
(a) Orders placed by Pool Members cannot be used to defray
Transition Costs; and
(b) the Settlement System Administrator shall not include any
Transition Costs in any future invoice statements.
<PAGE>
3. PAYMENTS
3.1 Payments by Pool Members: Pool Members shall settle any invoices
delivered to them pursuant to Section 2 above on, and the due date for
payment shall be:-
(a) in the case of an invoice for Prior Charges, the last
working day of the month prior to the month in respect of
which the charges relate; and
(b) in the case of an invoice for Post Charges, the last working
day of the month in which the invoice is delivered to Pool
Members, except where such Post Charges are included in the
next following invoice for Prior Charges, pursuant to
sub-section 2.6 above, when the due date for payment shall
be the due date for payment of the relevant invoice for
Prior Charges; and
(c) in the case of an invoice issued pursuant to sub-section
2.6A above, thirty days from the date of such invoice.
All amounts shall be paid in sterling in cleared funds and in full
without set-off or counter claim, withholding or deduction of any kind
whatsoever but without prejudice to any other remedy. All charges are
exclusive of United Kingdom Value Added Tax which shall be added to
such charges, if applicable.
3.2 Disputes: If there is any dispute regarding charges in any month, a
Pool Member may not withhold payment of any invoiced amount but, for
the avoidance of doubt, may refer such dispute to arbitration in
accordance with Clause 83 following payment.
3.3 Interest on non-payment: If any amount due to a Party under this
Schedule is not received on the due date that the other Party is
required to pay such amount, such other Party shall pay interest to
the recipient Party on such amount from and including the date of
default up to but excluding the date of actual payment (after as well
as before judgment) at the rate which is 4 per cent. per annum above
the base rate from time to time during each period of default of
National Westminster Bank plc.
3.4 Payment of charges: Each Pool Member shall pay its due proportion of
the Settlement System Administrator's charges for each SSA Accounting
Period determined in accordance with Part K.
4. ALLOCATION OF CHARGES
4.1 Allocation: The Settlement System Administrator shall allocate its
charges (net of Service Credits) amongst Pool Members in accordance
with Part K.
4.2 New and former Pool Members: Any Pool Member which is a Pool Member
for part only of any month shall pay charges on an interim basis of
such amount apportioned on a
<PAGE>
daily basis for each day that it was a Pool Member during that month
on the basis of the allocation of charges set out in Part K.
Adjustments to charges on all Pool Members as a result of existing
Pool Members leaving or new Pool Members joining will be set out in
the invoice published for the Post Charges for the relevant month
whereupon the Pool Members and/or former Pool Members shall be
required to pay such additional amount or shall be entitled to such
reimbursement.
5. ATTRIBUTION OF COSTS TO EPFAL
5.1 Specified costs recoverable from EPFAL: The costs of the Settlement
System Administrator which fall to be treated as 1998 Programme Costs
(as defined in Schedule 22) or as Stage 2 Operational Costs and any
other specified costs agreed between the Settlement System
Administrator and the Executive Committee which would otherwise be
recoverable from Pool Members shall instead be recoverable by the
Settlement System Administrator from EPFAL. Such costs shall
accordingly not form part of the Total Sum Due.
5.2 Procedures for recovery: Any costs for the time being specified for
the purposes of sub-section 5.1 above shall be recoverable from EPFAL
in accordance with procedures agreed from time to time between the
Settlement System Administrator and the Executive Committee. The
provisions of Sections 2 and 3 above shall (unless otherwise agreed by
the Settlement System Administrator and the Executive Committee) apply
mutatis mutandis in respect of any such costs, as if references to
Pool Members were references to EPFAL.
<PAGE>
PART K: ALLOCATION OF CHARGES
1. THE SETTLEMENT SYSTEM ADMINISTRATOR'S CHARGES
1.1 Payment of Total Sum Due: Each Pool Member shall be obliged to pay the
amount allocated to it in accordance with this Part K. The total
aggregate amount allocated to all Pool Members in respect of any month
shall equal the Total Sum Due in respect of such month.
1.2 Allocation of Total Sum Due: The Total Sum Due in respect of each
month shall be allocated amongst Pool Members as follows:-
(a) first, each Pool Member:-
(i) shall pay the costs (if any), as detailed in the
relevant invoice, associated with any change to
the Stage 1 Software necessitated by such Pool
Member's request for:-
(A) data from Stage 1 Settlement additional
to that which is generally provided to
other Pool Members of the same class; or
(B) for reporting of data in a format
different from that in which data are
generally provided to other Pool Members
of the same class
(which costs shall, in the first SSA Accounting
Period that they are charged to such Pool Member,
have added to them a single lump sum payment for
maintenance equal to 40 per cent. of the costs of
such charge, as reasonably determined by the
Settlement System Administrator);
(ii) shall pay the costs (if any and as far as the same
are directly referable to such Pool Member) for
the use by such Pool Member of electronic mail,
the provision and maintenance of telecommunication
circuits from data collector outstations and any
other services procured or provided by the
Settlement System Administrator which are directly
referable to such Pool Member;
(iii) if it is a Supplier, shall pay its Supplier's ERS
Variable Charge for that month; and
(iv) if it is a Supplier, shall pay its Supplier's ERS
Fixed Charge for that month;
<PAGE>
(b) secondly:-
(i) each Generator shall pay (pound)500 (or such other
amount as the Executive Committee and the
Settlement System Administrator may agree) for
each of its Generating Units in respect of which
standing data have been submitted; and
(ii) each Pool Member shall pay (pound)750 (or such
other amount as the Executive Committee and the
Settlement System Administrator may agree) for
each Metering System in respect of which it is the
Registrant;
(c) thirdly, but only in respect of the first month in an SSA
Accounting Period in which a Generator or Supplier is a Pool
Member:-
(i) subject as provided in paragraphs (ii) to (vii)
inclusive below, each Pool Member shall pay an
annual membership fee as follows:-
Category Fee
-------- ---
(A) Small
(1) A Supplier with a maximum demand at any time (pound)9,000
during such year (as reasonably determined by
the Executive Committee) of less than 200MW
or a Generator with an aggregate Registered
Capacity of less than 50MW (other than a
Supplier or Generator referred to in (2)
below)
(2) A Supplier with a maximum demand at any time (pound)2,500
during such year (as reasonably determined by
the Executive Committee) of less than 200MW
or a Generator with aggregate Registered
Capacity of less than 50MW, in either case
which requires to have delivered to it only
its own trading information
(B) Intermediate
A Supplier with a maximum demand at any time (pound)20,000
during such year (as reasonably determined by
the Executive Committee) of 200MW or more up
to (but excluding)
<PAGE>
2000MW or a Generator with
aggregate Registered Capacity of 50MW or more
up to (but excluding) 1000MW
(C) Large
A Supplier with a maximum demand at any time (pound)45,000
during such year (as reasonably determined by
the Executive Committee) of 2000MW or more or
a Generator with aggregate Registered
Capacity of 1000MW or more
(ii) any Pool Member which is both a Generator and a
Supplier shall pay only one membership fee, being
that fee which is the greater of its annual
membership fee as a Generator and its annual
membership fee as a Supplier (and, if both are the
same amount, such Pool Member shall pay only its
membership fee as a Generator): such fee shall
continue to be payable regardless of any change
during the relevant year in the capacity(ies) in
which such Pool Member participates as a Pool
Member;
(iii) unless otherwise resolved by the Executive
Committee with respect to the relevant Pool
Member, a Pool Member with no demand or generation
shall not pay any membership fee and, if the
Executive Committee shall so resolve, shall pay
only that membership fee referable to a Pool
Member falling within the relevant sub-category of
paragraph (i)(A) above;
(iv) if, in its reasonable opinion, the Executive
Committee considers:-
(A) any Pool Member (not being a Pool Member
referred to in paragraph (iii) above) to
be insignificant in terms of generation
or demand, it may waive the membership
fee for such Pool Member until further
notice; and
(B) if inequitable or otherwise
inappropriate to levy the full amount of
the membership fee that would otherwise
be payable by any Pool Member, it may
waive all or part of such fee on such
terms and for such period(s) as it
reasonably sees fit;
(v) (A) any Pool Member falling within
sub-category (2) of paragraph (i)(A)
above which wishes to receive data by
electronic mail shall be required to pay
an additional monthly membership fee of
one-twelfth of (pound)800; and
<PAGE>
(B) any Pool Member which wishes to receive
data by courier shall be required to pay
an additional monthly membership fee of
one-twelfth of (pound)1,000;
(vi) the Executive Committee may from time to time
amend the categories of membership and the fees
(with the consent of the Settlement System
Administrator, such consent not to be unreasonably
withheld or delayed);
(vii) the charges referred to in paragraph (b) above and
in this paragraph (c) shall be adjusted in
relation to each Pool Member, Generator or
Supplier, as the case may be, by reference to the
number of days during each year for which such
Party was a Pool Member and (where appropriate)
the number of Generating Units or Metering Systems
allocated to it during such period; and
(d) fourthly, 100 per cent. of the balance of the Total Sum Due
during any month not recovered pursuant to paragraphs (a) to
(c) (inclusive) above shall be allocated amongst all Pool
Members during such month by reference to the Contributory
Shares of each Pool Member.
For this purpose:-
(i) each Pool Member's due proportion of the charges
shall be assessed first by reference to the then
latest Contributory Shares of all Pool Members
calculated by the Executive Committee for the
period and each part thereof to which such charges
relate (or, if and to the extent that the charges
relate to a period for which no such calculation
has yet been made, by reference to the then most
recently calculated current Contributory Shares of
all Pool Members) and shall thereafter be
readjusted from time to time for each day within
the relevant period following changes to the
Contributory Shares of Pool Members for all or any
part of such period or (as the case may be)
following the calculation or (as the case may be)
re-calculation of the Contributory Shares for such
period; and
(ii) in calculating any such readjustment from time to
time, the Total Sum Due shall, as between Pool
Members, be calculated in respect of any month
after September 1998 on the basis that the Total
Sum Due attributable to each month in an SSA
Accounting Period (or, in respect of the SSA
Accounting Period ending on 31st March, 1999, each
of the last six months of that SSA Accounting
Period) shall be equal and that the amount so
attributable to each such month shall accrue on a
daily basis.
<PAGE>
Provided that, in calculating the balance of the Total Sum
Due payable by each Pool Member in any month, the annual
membership fee payable by each Pool Member in accordance
with paragraph (c) above shall be divided by the number of
complete months in the SSA Accounting Period remaining after
the date of payment of such annual membership fee and the
resultant figure (after rounding to the nearest (pound)1)
shall be credited to the relevant Pool Member for offset
against its proportionate share of the Total Sum Due for
each such remaining month.
1.3 Prima facie evidence: The Settlement System Administrator's
determination of the allocation of all costs during any month shall,
in the absence of manifest error, be prima facie evidence thereof.
1.4 Contributory Shares: The Settlement System Administrator shall advise
each Pool Member of its Contributory Share and how such Contributory
Share is calculated.
1.5 Minimum payment: The Settlement System Administrator shall not issue
any invoice, nor shall any Pool Member be required to pay any amount
(whether by way of payment to the Settlement System Administrator or
by way of adjustment), if the aggregate amount otherwise payable by
that Pool Member pursuant to this Part is less than the minimum amount
from time to time agreed by the Executive Committee with the
Settlement System Administrator provided that if in respect of an SSA
Accounting Period such aggregate amount is less than such minimum
amount, the Settlement System Administrator shall issue an invoice in
respect thereof (which the Pool Member shall be required to pay)
immediately after the Final Calculation Date for the Accounting Period
correlating to the SSA Accounting Period in question. Where the
minimum applies, a Pool Member shall remain liable for any amounts
payable by it but shall not be required to make any such payment until
such time as the amount in question is permitted to be, and is,
included in an invoice. Sub-section 3.3 of Part J shall be construed
accordingly.
<PAGE>
SCHEDULE 5
[Not used.]
<PAGE>
SCHEDULE 6
[Not used.]
<PAGE>
SCHEDULE 7
Form of Escrow Agreement
THIS AGREEMENT is made on [____________________________]
BETWEEN:-
(1) NGC SETTLEMENTS LIMITED (registered number 2444282) whose registered
office is situate at National Grid House, Sumner Street, London SE1
9JU for itself and on behalf of the Pool Members (as defined in the
Pooling and Settlement Agreement hereinafter referred to) acting
through the Executive Committee (as hereinafter defined) (the
"Settlement System Administrator", which expression shall include the
Settlement System Administrator's successors in title); and
(2) THE NATIONAL COMPUTING CENTRE LIMITED (registered number 881195) whose
registered office is situate at Oxford Road, Manchester M1 7ED (the
"Custodian").
WHEREAS:-
(A) by various agreements (the "Pooling and Settlement Arrangements")
details of which are set out in Schedule A NGC Settlements Limited has
agreed to act as Settlement System Administrator and operate a
settlements system requiring the use of certain computer package(s)
comprising computer programs and related systems;
(B) certain technical information and documentation describing or
otherwise relating to the said computer programs and related systems
is required for the understanding, maintaining, modifying and
correcting of the said computer programs and related systems; and
(C) the Settlement System Administrator acknowledges that in certain
circumstances a successor Settlement System Administrator may require
possession of the said technical information and documentation,
up-to-date and in good order,
NOW IT IS HEREBY AGREED as follows:-
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement:-
"Director" means the Director General of Electricity Supply;
"Executive Committee" means the Executive Committee established under
the Pooling and Settlement Arrangements and "Committee Member" means a
member of the Executive Committee;
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"Material" means the source code and load (machine executable) modules
and the technical information, manuals and other documentation
described in Schedule B;
"Modifications" means the source code and load (machine executable)
modules and the technical information, manuals and other documentation
relating to all modifications, updates and changes to the Material as
accepted from time to time by the Executive Committee for use in the
settlement process; and
"Receptacle" means the receptacle to contain a copy of the Material
pursuant to Clause 2.2 and copies of all Modifications delivered
pursuant to Clause 3.1.
1.2 Unless the context otherwise requires, words and expressions defined
in the Pooling and Settlement Arrangements shall bear the same
meanings respectively when used herein.
2. DEPOSIT
2.1 Forthwith upon execution and delivery of this Agreement, the
Settlement System Administrator will deposit and the Custodian will
accept as custodian for the Pool Members (acting through the Executive
Committee) a copy of the Material.
2.2 The Custodian will place the copy of the Material in the Receptacle.
2.3 The Custodian shall bear no obligation or responsibility to any person
to determine the existence, relevance, completeness, accuracy or any
other aspect of the Material and/or Modifications. The Custodian shall
have no responsibility to determine that whatever is deposited or
accepted by it for deposit is or is not Material and/or Modifications.
3. MODIFICATIONS
3.1 Subject to and in accordance with the Pooling and Settlement
Arrangements, the Settlement System Administrator will deposit a copy
of all Modifications with the Custodian within 28 days of such
Modifications being accepted by the Executive Committee.
3.2 The Custodian shall as soon as possible confirm receipt of all
Modifications in writing to the Executive Committee and the Settlement
System Administrator.
3.3 The Custodian will place a copy of all Modifications in the
Receptacle.
4. RELEASE
4.1 The Custodian shall forthwith release to any successor Settlement
System Administrator appointed pursuant to and in accordance with the
Pooling and Settlement Arrangements the copy(ies) of the Material
and/or all the Modifications upon the written request of the
<PAGE>
Executive Committee provided that the Settlement System Administrator
has resigned or has been removed as Settlement System Administrator
under the Pooling and Settlement Arrangements and has not complied
with its obligations relevant to the Material under Clauses 28.1.1 and
28.1.4 of the Pooling and Settlement Agreement for the Electricity
Industry in England and Wales dated 30th March, 1990 (as amended,
varied, supplemented, modified or suspended from time to time, the
"Pooling and Settlement Agreement").
4.2 Any written request of the Executive Committee referred to in Clause
4.1 shall be in the form of a statutory declaration by one or more
Committee Members setting out the grounds on which release is sought
and exhibiting such documentation in support thereof as the Custodian
shall reasonably require.
4.3 Where any dispute shall arise as to the occurrence of the event set
out in Clause 4.1, such dispute will be referred at the instance of
either the Settlement System Administrator, the Custodian or the
Executive Committee to the Director whose decision shall be final and
binding.
5. CONFIDENTIALITY
The Custodian agrees to maintain all information and/or documentation
coming into its possession or to its knowledge under this Agreement in
strictest confidence and secrecy, not to make use thereof other than
for the purposes of this Agreement and not to disclose or release it
other than in accordance with the terms hereof.
6. FEES
The Settlement System Administrator will pay the Custodian's fees as
detailed in Schedule C as amended from time to time by written
agreement between the parties. Such fees shall be invoiced monthly and
paid within one month of the date of the invoice.
7. TERMINATION
7.1 This Agreement shall terminate upon the release of the copy of the
Material and copies of all Modifications in accordance with Clause
4.1.
7.2 This Agreement may be terminated by the Custodian by giving not less
than 90 days' written notice to both the Executive Committee and the
Settlement System Administrator.
7.3 This Agreement may be terminated by the Settlement System
Administrator giving not less than 90 days' written notice to the
Custodian provided that it may not terminate this Agreement without
the consent of the Executive Committee first being given in writing
<PAGE>
unless it has been removed or has resigned as Settlement System
Administrator and has complied with its obligations relevant to the
Material under Clauses 28.1.1 and 28.1.4 of the Pooling and Settlement
Agreement.
7.4 Upon termination under the provisions of Clause 7.2 or 7.3 the
Custodian will deliver the copy(ies) of the Material and all the
Modifications to the Settlement System Administrator (unless jointly
instructed to the contrary by the Settlement System Administrator and
the Executive Committee).
7.5 Termination of this Agreement for whatever reason will not relieve the
Custodian from the obligations of confidentiality contained in Clause
5.
8. TESTS
The Executive Committee shall be entitled to require the Custodian to
carry out such tests in the presence of the Settlement System
Administrator which in the reasonable opinion of the Custodian would
reasonably establish that the Material and Modifications contain true
and accurate versions of the source codes and load (machine
executable) modules in use at the time of testing in the settlement
process. Any reasonable charges and expenses incurred by the Custodian
in carrying out such tests will be paid by the Settlement System
Administrator.
9. OBSOLETE MATERIAL AND MODIFICATIONS
9.1 The Executive Committee shall be entitled to review from time to time
the Material and Modifications on deposit with the Custodian. Where
the Executive Committee is satisfied that any part of the Material or
Modifications on deposit has ceased to be used in the settlement
process and will be of no further use, whether directly or indirectly,
it may request the Custodian to release any such part to the then
current Settlement System Administrator. Such request shall be in
writing and identify the part or parts of the Material or
Modifications to be released by the Custodian and state that the
reason for such release is that such part or parts is or are no longer
of use. The Custodian shall release such part or parts to the then
current Settlement System Administrator as soon as conveniently
possible after receipt of any such written request from the Executive
Committee.
9.2 Notwithstanding the release of any part or parts of the Material or
Modifications to the Settlement System Administrator pursuant to
Clause 9.1, in the event that any such released Material or
Modifications or copies thereof are subsequently used in the
settlement process such Material or Modifications shall be placed on
deposit and held in escrow pursuant to this Agreement on the same
terms and conditions as any Modification.
<PAGE>
10. NOTICES
10.1 Any notice or other communication to be given by one person to another
person under, or in connection with the matters contemplated by, this
Agreement shall be addressed to the recipient and sent to the address,
telex number or facsimile number or such other person given in this
Agreement for the purpose and marked for the attention so given or to
such other address, telex number and/or facsimile number and/or marked
for such other attention as such other person may from time to time
specify by notice given in accordance with this Clause to the person
giving the relevant notice or other communication to it.
10.2 Any notice or other communication to be given to the Settlement System
Administrator shall be given to:-
Address: Fairham House,
Green Lane,
Clifton,
Nottingham NG11 9LN
Telex No: N/A
Facsimile No: 0602 456728
Attention: General Manager
Any notice or other communication to be given to the Custodian shall
be given to:-
Address: Oxford House,
Oxford Road,
Manchester M1 7ED
Telex No: 66 8962
Facsimile No: 061-228 2579
Attention: Legal Department
Any notice or other communication to be given to the Executive
Committee shall be given to:-
Address: Chief Executive (Pooling and Settlement)
30 Millbank,
London SW1P 4RD
<PAGE>
Telex No: N/A
Facsimile No: 071-233 8254
Attention: Chief Executive
10.3 Any notice or other communication to be given by one person to another
person under, or in connection with the matters contemplated by, this
Agreement shall be in writing and shall be given by letter delivered
by hand or sent by first class prepaid post (airmail if overseas) or
telex or facsimile, and shall be deemed to have been received:-
10.3.1 in the case of delivery by hand, when delivered; or
10.3.2 in the case of first class prepaid post, on the second day
following the day of posting or (if sent airmail overseas or
from overseas) on the fifth day following the day of
posting; or
10.3.3 in the case of telex, on the transmission of the automatic
answer-back of the addressee (where such transmission occurs
before 1700 hours on the day of transmission) and in any
other case on the day following the day of transmission; or
10.3.4 in the case of facsimile, on acknowledgement by the
addressee's facsimile receiving equipment (where such
acknowledgement occurs before 1700 hours on the day of
acknowledgement) and in any other case on the day following
the day of acknowledgement.
11. COUNTERPARTS
This Agreement may be executed in counterpart by the parties on
separate counterparts each of which when executed and delivered shall
constitute an original but which shall together constitute one and the
same instrument.
12. DISPUTE RESOLUTION
12.1 Save where expressly stated in this Agreement to the contrary, and
subject to any contrary provision of the Act or any Licence or the
rights, powers, duties and obligations of the Director or Secretary of
State under the Act, any Licence or otherwise howsoever, any dispute
or difference of whatever nature howsoever arising under, out of or in
connection with this Agreement between the parties shall be and is
hereby referred to arbitration pursuant to the arbitration rules of
the Electricity Arbitration Association in force from time to time.
<PAGE>
12.2 Whatever the nationality, residence or domicile of either party and
wherever the dispute or difference or any part thereof arose the law
of England shall be the proper law of any reference to arbitration
hereunder and in particular (but not so as to derogate from the
generality of the foregoing) the provisions of the Arbitration Acts
1950 (notwithstanding anything in Section 34 thereof) to 1979 shall
apply to any such arbitration wherever the same or any part of it
shall be conducted.
13. GOVERNING LAW
This Agreement shall be governed by, and construed in all respects in
accordance with, English law.
<PAGE>
SCHEDULE A
Details of the Pooling and Settlement Arrangements
(A) Pooling and Settlement Agreement for the Electricity Industry in
England and Wales dated 30th March, 1990 and made between the Founder
Generators named therein (1), the Founder Suppliers named therein (2),
NGC Settlements Limited as Settlement System Administrator (3), Energy
Pool Funds Administration Limited as Pool Funds Administrator (4), The
National Grid Company plc as Grid Operator and Ancillary Services
Provider (5) and Scottish Power plc and Electricite de France, Service
National as Externally Interconnected Parties(6).
(B) Initial Settlement Agreement for the Electricity Industry in England
and Wales dated 30th March, 1990 and made between the Founder
Generators named therein (1), the Founder Suppliers named therein (2),
NGC Settlements Limited as Settlement System Administrator (3), Energy
Pool Funds Administration Limited as Pool Funds Administrator (4), The
National Grid Company plc as Grid Operator and Ancillary Services
Provider (5) and Scottish Power plc and Electricite de France, Service
National as Externally Interconnected Parties (6).
(C) Two Supplemental Agreements relating to the Initial Settlement
Agreement and the Pooling and Settlement Agreement for the Electricity
Industry in England and Wales, each dated as of 30th June, 1990 and
made between the Founder Generators named therein (1), the Founder
Suppliers named therein (2), NGC Settlements Limited as Settlement
System Administrator (3), Energy Pool Funds Administration Limited as
Pool Funds Administrator (4), The National Grid Company plc as Grid
Operator and Ancillary Services Provider (5) and Scottish Power plc
and Electricite de France, Service National as Externally
Interconnected Parties (6).
(D) Third Supplemental Agreement relating to the Initial Settlement
Agreement and the Pooling and Settlement Agreement for the Electricity
Industry in England and Wales dated as of 15th October, 1990 and made
between the Founder Generators named therein (1), the Suppliers named
therein (2), NGC Settlements Limited as Settlement System
Administrator (3), Energy Pool Funds Administration Limited as Pool
Funds Administrator (4), The National Grid Company plc as Grid
Operator and Ancillary Services Provider (5) and Scottish Power plc
and Electricite de France, Service National as Externally
Interconnected Parties (6).
(E) Fourth Supplemental Agreement relating to the Initial Settlement
Agreement and the Pooling Settlement Agreement for the Electricity
Industry in England and Wales dated as of 15th October, 1990 and made
between the Founder Generators named therein (1), the Suppliers named
therein (2), NGC Settlements Limited as Settlement System
Administrator (3), Energy Pool Funds Administration Limited as Pool
Funds Administrator (4), The National Grid Company plc as Grid
Operator and Ancillary
<PAGE>
Services Provider (5) and Scottish Power plc and Electricite de
France, Service National as Externally Interconnected Parties (6).
<PAGE>
SCHEDULE B
The Material
SYSTEM REF ITEM
SMP 101 Source Code - Hardcopy
102 Source Code - Tape
103 Executable Code - Tape
104 DCL - Hardcopy
105 DCL - Tape
106 User Requirement Specification
107 Design Specification
108 Test Plan
109 Program Upgrades Test Specification
110 Acceptance Test Schedule
111 Test Schedule(s)
112 Test Specification
113 User Guide
114 Quality Assurance
115 Licensed software list
116 Licensed software licences
117 Licensed software system tables
118 Acceptance certificates
CDCS 201 Source Code - Tape: GRID02
202 Source Code - Hardcopy
203 Executes clists
204 DB2 Database Request Modules
205 Declaration Libraries
206 Compilation JCL
207 Compilation JCL - Hardcopy
208 Load Modules
209 Menu Library
<PAGE>
SYSTEM REF ITEM
210 Skeleton Execution JCL
211 Skeleton Execution JCL - Hardcopy
212 Backup JCL and clists
213 System Test Specification
214 User Acceptance Test Specification
215 User Requirement Specification
216 Logical Design Specification
217 User Guide
218 First Line Support Procedures
219 Licensed software list
220 Licensed software certificates
221 Compilation Instructions
222 Special Fixes List
223 Licensed software system tables
224 Acceptance certificates
L&G 301 Source Code - Hardcopy
302 Source Code - 3.5" Diskette
303 DOS Batch Files - Hardcopy
304 DOS Batch Files - 3.5"> Diskette
305 Executables - 3.5" Diskette
306 System Documentation
307 Documentation Source Files (VMS Backup save set)
308 Acceptance Test Specification
309 Guide for 2nd-line Maintenance
310 CEGB(NGD) Power Station Collectors Manual
311 Licensed software list
312 Licensed software certificates
313 Compilation Instructions
314 Licensed software system tables
<PAGE>
SYSTEM REF ITEM
315 Acceptance certificates
LOLP 401 Source Code - Hardcopy
402 Source Code - Disk
403 Object Code - Disk
404 Batch Files - Hardcopy
405 Batch Files - Disk
406 Test Plan and Specification
407 Acceptance Test Data Ph1
408 Test Schedule FAT Ph1
409 Test Schedule SAT Ph1
410 Test Schedule SAT Overview Ph1
411 Format Spec. LOLP to Sys Ops.
412 User Guide
413 User Requirements Spec.
414 Functional Spec.
415 Basic Info. Flow
416 Statement of Principles
417 Project Report
418 Op. Procedures Manual
419 Test Plan LOLP 5.0
420 System Test Execution Vol. 1-4
421 LOLP PEC site Acc. Test Review
422 Regression Test Matrix
423 Model Parameters - Vesting Day Vals
424 Promod Vol. 1-2
425 Software Release 4.7
426 S/W Install and Update Guidelines
427 Software Releases 4.0 to 4.8
428 Licensed software list
429 Licensed software licences
430 Acceptance certificates
<PAGE>
SYSTEM REF ITEM
SD-SCICON 501 Source Code Fortran, ProFortran, SQL Forms: HCPY
S2/SC1
502 Source Code Fortran, ProFortran, SQL Forms: TPE
503 Executable Fortran, ProFortran, SQL Forms: TPE
504 Executable DCL, SQL-PLUS, SQL-RPT: (inc *.MMS)
505 Acceptance Test Specification
506 Test Schedules
507 Test Schedule SAT
508 Op Subsystem Design Specification
509 CR Subsystem Design Specification
510 SY Subsystem Design Specification
511 DT Subsystem Design Specification
512 Level 1 Design Specification
513 CSM Team Guide
514 Process Leader User Guide
515 Training Course - Input Clerks
516 Training Course - Process Leader
517 Training Course - Team Leader
518 Training Course - Data Trans Clerk
519 Input Clerk User Guide
520 Team Leader User Guide
521 Data Trans Clerk User Guide
522 Auditor User Guide
523 Work Breakdown Structure
524 Functional Specification
525 Performance Scoping Study
526 Regression Testing Matrix
527 Migration From SID to 2.21
528 Review of Initial Pool Rules vs Func. Spec.
529 PMW Project Standards
530 Implementation Guide
531 System Build Instructions
<PAGE>
SYSTEM REF ITEM
532 User Requirements Specification
533 Acceptance Cert: Functional Spec.
534 Acceptance Cert: Acceptance Test Spec.
535 Acceptance Cert: Test Schedules and Data
536 Licensed software list
537 Licensed software certificates
GOALPOST 601 Source Code - Hardcopy
602 Source Code - Tape
603 Executable - Tape
604 Application File (JCL) - Tape
605 Test Document
606 Module Design Specification
607 User Manual
608 Quality Assurance Plan
609 User Requirements Specification
610 Licensed software list
611 Licensed software certificates
612 Compilation Instructions
613 Licensed software system tables
614 Acceptance certificates
GOAL 701 Source Code - Hardcopy
702 Source Code - Tape
703 Executable Code - Tape
704 JCL - Hardcopy
705 JCL - Tape
<PAGE>
SCHEDULE C
The Custodian's fees
1. Initial fee - (pound)2,000
2. Annual fee - (pound)500
3. Release fee - (pound)500 plus reasonable expenses
4. Storage fee -(pound)20 per cubic foot per annum (reduced
proportionately for part of any year)
5. Update fee - (pound)100 per update
6. Additional work (testing, etc.) - normal senior consultancy rates from
time to time published by the Custodian.
All such fees are exclusive of VAT and are to be specified in reasonable detail
in each invoice by the Custodian.
IN WITNESS whereof this Agreement has been duly executed the day and year first
above written
As Settlement System Administrator
- ----------------------------------
(for itself and on behalf of the Pool Members
acting through the Executive Committee)
THE COMMON SEAL of )
NGC SETTLEMENTS LIMITED )
was hereunto affixed in the )
presence of:- )
Director
Director/Secretary
<PAGE>
As Custodian
THE COMMON SEAL of )
THE NATIONAL COMPUTING CENTRE LIMITED was )
hereunto affixed in the presence of:- )
)
Director
Director/Secretary
<PAGE>
SCHEDULE 8
Performance Assurance Board
PART 1 : INTERPRETATION
1. INTERPRETATION
In this Schedule, except where the context otherwise requires, references to a
particular Part, Section, sub-section or paragraph shall be a reference to that
Part, Section, sub-section or paragraph of this Schedule.
PART 2 : THE PERFORMANCE ASSURANCE BOARD
2. THE PERFORMANCE ASSURANCE BOARD
2.1 Appointment and removal of the Performance Assurance Board and
indemnification:
2.1.1 The Executive Committee shall act as, and shall perform the
functions of, the Performance Assurance Board pursuant to
Clause 24.2.16 (and Pool Members shall procure that the
Executive Committee so acts and performs) until such time as
Pool Members in general meeting otherwise resolve.
2.1.2 Pool Members in general meeting shall have the right to
appoint and remove the Performance Assurance Board from time
to time and (subject to sub-section 2.3) to agree, amend and
substitute the terms of engagement of the Performance
Assurance Board.
2.1.3 Unless otherwise determined by Pool Members in general
meeting, the costs, fees, expenses, liabilities and losses
of, and all other amounts incurred or paid by, the
Performance Assurance Board shall be dealt with in
accordance with the PFA Accounting Procedure.
2.1.4 In addition and without prejudice to paragraph 2.1.3, all
Pool Members shall jointly and severally indemnify and keep
indemnified:-
(a) the Executive Committee and each of the Committee
Members (including, for the avoidance of doubt,
their respective alternates) from and against any
and all costs (including legal costs), charges,
expenses, damages or liabilities incurred or
suffered by it or him in acting as, and in
performing the functions of, the Performance
Assurance Board or (as the case may be) a member
of the Performance Assurance Board; and
<PAGE>
(b) the Performance Assurance Administrator and any
sub-committee or sub-group of the Executive
Committee which provides advice to the Performance
Assurance Board or the Performance Assurance
Administrator or which undertakes work at the
request of the Performance Assurance Board and
each member thereof from and against any and all
costs (including legal costs), charges, expenses,
damages or liabilities incurred or suffered by it
or him in providing such advice or (as the case
may be) undertaking such work,
and, as between the Pool Members, according to their
respective Contributory Shares at the time of receipt of the
request for indemnification. The Pool Members shall, upon
request, provide the members of the Performance Assurance
Board, the Performance Assurance Administrator and the
members of any such sub-committee or sub-group with a
written deed of indemnity to that effect.
2.1.5 The Pool Funds Administrator acknowledges and agrees that it
holds the benefit of paragraph 2.1.4 as trustee and agent
for each Committee Member, the Performance Assurance
Administrator and each member of the sub-committees and
sub-groups referred to in that paragraph.
2.2 Performance Assurance Board's functions:
2.2.1 The functions, duties and responsibilities of the
Performance Assurance Board shall be:-
(a) the conduct and administration of (including the
making of determinations not otherwise reserved to
Pool Members under) the PRS Entry Process and the
Supplier Entry Process in accordance with this
Agreement and Agreed Procedures AP511 and AP512;
(b) the Certification (and removal of Certification)
of each of the Agency Systems of, and the
Accreditation (and removal of Accreditation) of,
Accredited Persons in accordance with Schedule 25
and Agreed Procedure AP531, the conduct and
administration of the Certification Process and
the Accreditation Process and such other
functions, duties and responsibilities as are
accorded to it pursuant to that Schedule or Agreed
Procedure;
(c) the determination of whether a Supplier has failed
to comply with any of the Serials and of the
associated charges payable in accordance with Part
3 of Schedule 31 and such other functions, duties
and responsibilities as are accorded to it
pursuant to that Schedule;
<PAGE>
(d) the conduct and administration of (including the
making of determinations not otherwise reserved to
Pool Members under) the performance assurance
standards and tests set out or referred to in
Agreed Procedure AP532 including the conduct and
administration of, and publication of the results
of, any peer group comparison associated with any
such performance assurance standards and tests;
(e) the carrying out of those functions, duties and
responsibilities accorded to it in Agreed
Procedures AP526 and AP535 together with such
monitoring and technical assurance functions,
duties and responsibilities referred to in
sub-section 2.3 of Schedule 28 as are assigned to
it by the Executive Committee from time to time;
and
(f) such other functions, duties and responsibilities
as may be accorded to it from time to time under
or pursuant to this Agreement.
2.2.2 The Performance Assurance Board shall have such powers,
authorities and discretions as are necessary for or
incidental to the performance of the PAB Functions.
2.2.3 The Performance Assurance Board shall have the right to
develop, implement and amend such working practices and
procedures as it considers necessary or appropriate for its
proper performance of the PAB Functions provided that such
working practices and procedures shall not conflict with any
other provisions of this Schedule (and, in particular
sub-section 2.3), its terms of engagement or the other
Schedules, processes and procedures (including Agreed
Procedures) referred to in paragraph 2.2.1.
2.3 Executive Committee as Performance Assurance Board: The provisions of
Clauses 15.13, 16.9, 17.4, 18, 19, 20.4 and 22 to 24 (inclusive) shall
apply in relation to the Executive Committee, the Committee Members,
the Pool Chairman, the Chief Executive, the personnel referred to in
Clause 17.2.1 and the Secretary when the Executive Committee is acting
as, and performing the functions of, the Performance Assurance Board
provided that (subject to sub-section 2.1 of Schedule 25):-
2.3.1 notice of meetings of the Performance Assurance Board need
be given only to the Committee Members, the Pool Chairman,
the Chief Executive (if any) and the Pool Auditor. Clause
18.1.2 shall be modified accordingly;
2.3.2 if any Committee Member wishes to advise additional matters
which he wishes to be considered at a meeting of the
Performance Assurance Board he shall give notice to all
other persons entitled to attend that meeting no later than
three working days before the date of the meeting (or such
lesser period
<PAGE>
as the Performance Assurance Board may from time to time
determine). Clause 18.1.4 shall be modified accordingly;
2.3.3 minutes of meetings of the Performance Assurance Board shall
be confidential and copies shall be required to be provided
only to those persons who were entitled to attend the
relevant meeting. Clause 18.1.6 shall be modified
accordingly;
2.3.4 the quorum for a meeting of the Performance Assurance Board
shall be immediately reduced on the day after the GSP Group
Implementation Date for the final GSP Group from six to four
Committee Members present in person or by their respective
alternates. Clause 19.2 shall be modified accordingly;
2.3.5 each of the Pool Chairman, the Chief Executive and the Pool
Auditor (or his or its respective duly appointed
representative) shall have the right to attend and speak
(but not to vote) at meetings of the Performance Assurance
Board. The Chief Executive (or his duly appointed
representative) shall be obliged so to attend. With the
exception of the final sentence of Clause 19.4, that Clause
shall not apply;
2.3.6 with the exception of Clause 20.4, Clause 20 shall not
apply;
2.3.7 any question or matter arising at a meeting of the
Performance Assurance Board shall be decided by a 75 per
cent. majority of the votes cast at the meeting by Committee
Members entitled to vote. On any such question or matter
each Committee Member shall be entitled to one vote. Clause
22.2 shall not apply;
2.3.8 a decision duly made at a meeting of the Performance
Assurance Board shall (unless otherwise determined by the
Performance Assurance Board or otherwise provided by the
terms of the decision) have immediate effect. Clause 22.4
shall not apply;
2.3.9 Clauses 22.3 and 22.5 to 22.11 (inclusive) shall not apply:
in particular, but without prejudice to the generality of
the foregoing, no decision of the Performance Assurance
Board shall be referred to Pool Members in general meeting;
2.3.10 Clauses 23.1, 23.2, 23.3.4, 23.6 and 23.7 shall not apply;
2.3.11 a Committee Member in his capacity as a member of the
Performance Assurance Board shall be required to act
independently of the interests of his employer, of any
affiliate of his employer and of those Pool Members whose
<PAGE>
interests he represents when acting as a member of the
Executive Committee, and shall declare all such interests to
the Performance Assurance Board (which declaration may be
made by a general notice to the Performance Assurance
Board); and
2.3.12 references to a Committee Member shall for the purposes of
this Schedule include a reference to a Committee Member in
his capacity as a member of the Performance Assurance Board.
2.4 Delegation:
2.4.1 The Performance Assurance Board shall have the right at any
time and from time to time to delegate or procure the
delegation of all or any part of the day-to-day
administration of the PAB Functions.
2.4.2 The Performance Assurance Board shall be responsible for
every act, breach, omission, neglect and failure of each
delegate appointed pursuant to paragraph 2.4.1.
2.5 Responsibilities owed to Pool Members alone: In acting as the
Performance Assurance Board, the Executive Committee shall have due
regard to the collective interests of Pool Members. The
responsibilities of the Performance Assurance Board under this
Agreement are owed exclusively to Pool Members collectively, and to no
other person.
PART 3: THE PERFORMANCE ASSURANCE ADMINISTRATOR
3.1 Appointment and removal of the Performance Assurance Administrator:
The Performance Assurance Administrator shall be appointed and removed
from time to time by the Performance Assurance Board acting on behalf
of all Pool Members. The Performance Assurance Board shall have the
right on behalf of all Pool Members to agree, amend and substitute the
terms of engagement of the Performance Assurance Administrator.
3.2 Pool Members' authorisation: Pool Members hereby irrevocably and
unconditionally authorise the Performance Assurance Board to appoint
and remove, and to agree, amend and substitute the terms of engagement
of, the Performance Assurance Administrator on their behalf and
undertake not to withdraw or change that authority.
3.3 Functions of Performance Assurance Administrator:
3.3.1 The Performance Assurance Administrator shall perform such
functions associated with the day-to-day administration of
the PAB Functions as are delegated to it from time to time
by the Performance Assurance Board. A copy of any such
delegated functions will be made available by the
Performance
<PAGE>
Assurance Board to members of the Performance Assurance
Board and to Pool Members on request.
3.3.2 The Performance Assurance Administrator shall keep
confidential information that it receives in its capacity as
Performance Assurance Administrator on terms agreed from
time to time by it with the Performance Assurance Board.
3.4 Responsibility for the Performance Assurance Administrator: The
Performance Assurance Board shall be responsible for every act,
breach, omission, neglect and failure of the Performance Assurance
Administrator.
PART 4 : LIMITATION OF LIABILITY
4. LIMITATION OF LIABILITY
4.1 The total aggregate liability of the Performance Assurance Board and
the Performance Assurance Administrator to an Interested Person
whether in contract, tort (including negligence or breach of statutory
duty) or otherwise arising directly or indirectly out of or in
connection with the performance or non-performance of its functions
(including the contents of any opinion or report prepared by the
Performance Assurance Board or the Performance Assurance
Administrator) shall in no circumstances exceed (pound)1,000,000 per
claim or series of related claims.
4.2 Neither the Performance Assurance Board nor the Performance Assurance
Administrator shall be liable to any Interested Person for any loss of
profit, loss of revenue, loss of contract, loss of goodwill or any
indirect or consequential loss arising out of or in connection with
the performance or non-performance of its functions.
4.3 Sub-sections 4.1 and 4.2 shall not exclude the liability of the
Performance Assurance Board or the Performance Assurance Administrator
for fraud.
4.4 The exclusions from and limitations of liability of the Performance
Assurance Board and the Performance Assurance Administrator under this
Section shall not apply to death or personal injury caused by the
negligence of the relevant one of the Performance Assurance Board or
the Performance Assurance Administrator.
4.5 The exclusions from and limitations of liability of the Performance
Assurance Board and the Performance Assurance Administrator under this
Section are reasonable because of (amongst other matters) the
likelihood that the amount of damages awardable to the Interested
Person from the Performance Assurance Board or the Performance
Assurance Administrator would otherwise be disproportionate to the
charges which it makes in connection with the performance of its
functions and because of the limited resources and expertise of the
Performance Assurance Board and the Performance Assurance
Administrator.
<PAGE>
4.6 The exclusions from and limitations of liability of the Performance
Assurance Board and the Performance Assurance Administrator under this
Section shall be considered severally and the invalidity or
unenforceability of any one sub-section shall not affect the validity
or enforceability of any other sub-section.
PART 5 : DISAPPLICATION PROVISIONS
5. DISAPPLICATION
Parts III and V of this Agreement shall not apply in or to this Schedule except,
in the case of Part III, in respect of any action under this Schedule which Pool
Members in general meeting are entitled or required by the terms of this
Schedule to take.
<PAGE>
SCHEDULE 9
The Pool Rules
[Note: the sequential page numbering is suspended for
Schedule 9 and resumes at Schedule 10]
<PAGE>
SCHEDULE 10
[Not used.]
<PAGE>
SCHEDULE 11
Billing and Settlement
PART 1: PRELIMINARY
1. INTRODUCTION
1.1 Interpretation:
1.1.1 In this Schedule, except where the context otherwise
requires, references to a particular Annex, Part, Section,
sub-section, paragraph or sub-paragraph shall be a reference
to that Annex to or Part of this Schedule or, as the case
may be, that Section, sub-section, paragraph or
sub-paragraph in this Schedule.
1.1.2 In this Schedule references to any amount being exclusive or
inclusive of United Kingdom Value Added Tax shall mean that
that amount is exclusive or inclusive (as the case may be)
of a sum equal to such amount, if any, of United Kingdom
Value Added Tax as is properly chargeable on the supply to
which the first-mentioned amount is attributable as being
all or part of the consideration for that supply.
1.2 Banking and billing procedures:
1.2.1 The banking and billing procedures set out in this Schedule
provide an administratively convenient method of arranging
financial settlement on a Settlement Day basis between Pool
Members, the Ancillary Services Provider and the Grid
Operator in respect of sales and purchases of electricity
under this Agreement, the provision of Ancillary Services
and sums payable by the Grid Operator in relation to
Transport Uplift. The Parties are content for these banking
and billing procedures to be used in the ordinary course of
electricity trading under this Agreement.
1.2.2 The Parties acknowledge however that using the banking and
billing procedures set out in this Schedule will not in all
circumstances result in the payments required to be made
between Pool Members, the Ancillary Services Provider and
the Grid Operator (or some of them) being the same as those
that would result from the strict application of the Pool
Rules (and, in particular, sub-section 24.8 of Schedule 9).
1.2.3 The Parties further acknowledge the provisions of Clause 6.8
(which provide for the Pool Rules to prevail over the other
provisions of this Agreement in the event of any
inconsistency or conflict) and irrevocably and
unconditionally authorise the Pool Funds Administrator to
issue accounts from time to time when instructed to do so by
the Executive Committee (but subject to the Pool Funds
Administrator having received the information requested
under sub-section 7.1 so as to enable it to issue such
accounts) to Pool Members, the Ancillary Services Provider
and the Grid Operator providing for payments to be made
between
<PAGE>
them (or some of them) to correct any imbalances between
amounts paid and received (or payable and receivable)
pursuant to the operation of the banking, billing and
payment default procedures set out in this Schedule and the
amounts that would have been due between them had the Pool
Rules been strictly applied (and, in particular, had claims
been identified and settled in accordance with sub-section
24.8 of Schedule 9).
<PAGE>
PART 2: ESTABLISHMENT OF SYSTEMS
2. PAYMENTS CALENDAR
2.1 Preparation: No later than 31st January in each year the Executive
Committee shall prepare or cause to be prepared (in consultation with
the Pool Funds Administrator, the Settlement System Administrator and
the Initial Settlement and Reconciliation Agent) a Payments Calendar
showing, for the period from 1st April in that year to 31st March in
the next succeeding year (both dates inclusive), the following dates:-
2.1.1 the Settlement Payment Dates on which Notified Payments
pursuant to this Schedule in respect of supplies of
electricity, the provision of Ancillary Services and in
respect of sums payable by the Grid Operator in relation to
Transport Uplift on each Settlement Day are required to be
settled;
2.1.2 the Notification Dates on which Stage 1 Settlement Runs and
Stage 2 Initial Settlement Runs in respect of supplies of
electricity shall be delivered by the Settlement System
Administrator and the Initial Settlement and Reconciliation
Agent respectively to the Pool Funds Administrator;
2.1.3 the Reconciliation Payment Dates on which Notified Payments
pursuant to this Schedule are required to be settled as a
result of a Timetabled Reconciliation Run; and
2.1.4 the Reconciliation Notification Dates on which Timetabled
Reconciliation Runs shall be delivered by the Initial
Settlement and Reconciliation Agent to the Pool Funds
Administrator.
2.2 Principles: Each Payments Calendar shall give effect to the following
principles:-
2.2.1 the Stage 1 Settlement Run and the Stage 2 Initial
Settlement Run shall be required to be delivered by the
Settlement System Administrator and the Initial Settlement
and Reconciliation Agent respectively to the Pool Funds
Administrator no later than the 24th day after the
Settlement Day to which the relevant Settlement Run relates
(or, if such day is not a Business Day, the next succeeding
day which is a Business Day);
2.2.2 the Settlement Payment Date shall not fall earlier than two
clear Business Days after the day on which the relevant
Settlement Run is required to be delivered by the Settlement
System Administrator or the Initial Settlement and
Reconciliation Agent, as the case may be, to the Pool Funds
Administrator;
<PAGE>
2.2.3 expressed as an average over the entire period covered by
the Payments Calendar, the Settlement Payment Date shall
fall, as near as practicable, 28 days after the Settlement
Day to which it relates;
2.2.4 each Settlement Payment Date shall fall as close as is
reasonably practicable to the 28th day after the Settlement
Day to which it relates;
2.2.5 the Payments Calendar shall include provision for the number
of Timetabled Reconciliation Runs and the related
Reconciliation Notification Dates determined by the
Executive Committee; and
2.2.6 each Reconciliation Payment Date shall not fall earlier than
two clear Business Days after the day on which the relevant
Timetabled Reconciliation Run is required to be delivered by
the Initial Settlement and Reconciliation Agent to the Pool
Funds Administrator,
and shall be prepared in accordance with the relevant Agreed
Procedure.
2.3 Form: The Payments Calendar shall be in such form as the Executive
Committee shall from time to time decide.
2.4 Distribution: Any Payments Calendar prepared pursuant to this Section
2 shall be distributed promptly to each Pool Member, the Settlement
System Administrator, the Initial Settlement and Reconciliation Agent,
the Pool Funds Administrator, the Ancillary Services Provider, the
Grid Operator, the Pool Banker, the Pool Auditor and the Director.
3. INFORMATION SYSTEMS
3.1 Provision of information: Unless otherwise required by the Executive
Committee, all written information to be given by or to the Pool Funds
Administrator in connection with the Banking System and the Billing
System shall be provided in the following manner:-
3.1.1 for information flowing between the Pool Funds
Administrator, the Settlement System Administrator, the
Ancillary Services Provider and the Grid Operator by
electronic mail as designated from time to time by the
recipient in a written notice to the sender of the
information or by such other means as the sender and the
recipient (with the prior written consent of the Executive
Committee) shall agree;
3.1.2 for information flowing between the Pool Funds Administrator
and the Pool Banker, in the manner prescribed in the Funds
Transfer Agreement or in such other manner as may be agreed
between the Pool Funds Administrator and the Pool Banker;
<PAGE>
3.1.3 for information flowing between the Pool Funds Administrator
and a Settlement Bank, in the manner prescribed in the
relevant Settlement Bank Mandate or in such manner as may be
agreed between the Pool Funds Administrator and the
Settlement Bank;
3.1.4 for information flowing between the Pool Funds Administrator
and any Pool Member who has installed an electronic mail
transfer system compatible with the Pool Funds
Administrator's electronic mail transfer system, by
electronic mail as designated from time to time by the
recipient in a written notice to the sender of the
information;
3.1.5 for information flowing between the Pool Funds Administrator
and any other Pool Member, by facsimile transmission and
addressed for the attention of the Authorised Person for
such Pool Member and sent to the then latest facsimile
number of such Authorised Person notified to the Pool Funds
Administrator pursuant to sub-section 3.3 provided that, if
at the relevant time there is no Authorised Person for such
Pool Member, such information shall be sent by facsimile
transmission and addressed for the attention of the company
secretary of such Pool Member and sent to the facsimile
number of its registered or principal office; and
3.1.6 for information flowing between the Pool Funds Administrator
and the Initial Settlement and Reconciliation Agent, in the
manner described in paragraph 3.1.1 or by such other means
as the Pool Funds Administrator and the Initial Settlement
and Reconciliation Agent (with the prior written consent of
the Executive Committee) shall agree.
3.2 Communications Equipment: Each Party undertakes to exercise reasonable
skill and care to ensure that its communications equipment at all
times is adequate to transmit and receive information in connection
with the Banking System and the Billing System. In the case of any
breakdown, failure or non-availability of the communications or other
equipment, each Party affected shall use all reasonable efforts to
agree promptly on the use and implementation of alternative, effective
and secure means of communication. In default of agreement, notices or
other communications shall be by letter delivered or sent in
accordance with Clause 75 and, in the case of communications to the
Initial Settlement and Reconciliation Agent, as the Executive
Committee may direct.
3.3 Authorised persons:
3.3.1 Upon written request of the Pool Funds Administrator each
Pool Member shall (and may of its own accord) provide the
Pool Funds Administrator in writing with the name of, and
communication details for, one or more individuals
("Authorised Persons") who are authorised (and, until it
receives written notice to the contrary, the Pool Funds
Administrator shall be entitled to assume that
<PAGE>
they are authorised) to take action on behalf of such Pool
Member in respect of all communications and other dealings
under this Schedule between the Pool Funds Administrator and
such Pool Member.
3.3.2 Each Pool Member shall promptly advise the Pool Funds
Administrator in writing of any change of any such
individual or his communication details.
3.3.3 The Pool Funds Administrator shall notify all Pool Members
and the Executive Committee of the names and communication
details of all Authorised Persons and of any change in any
such individual or his communication details.
4. BANKING SYSTEM
4.1 Funds Transfer Agreement: On the Effective Date the Pool Funds
Administrator, the Pool Banker, each Pool Member and NGC (in each case
as at such date) entered into the Funds Transfer Agreement.
4.2 Establishment of Pool Accounts:
4.2.1 The Pool Funds Administrator shall establish and operate in
accordance with this Agreement and the Funds Transfer
Agreement:-
(a) a Pool Clearing Account to and from which all
payments calculated in accordance with this
Schedule are to be made;
(b) a Pool Reserve Account from which any debit
balances on the Pool Clearing Account at the close
of banking business on each Business Day shall be
settled or reduced in accordance with this
Schedule; and
(c) a Collection Account at each bank at which, from
time to time, any Pool Member, the Ancillary
Services Provider or the Grid Operator maintains a
Settlement Account.
4.2.2 The Pool Funds Administrator shall further establish and
operate in accordance with this Agreement such other
accounts (including a Pool Borrowing Account on which the
Pool Funds Administrator may make drawings under the Credit
Facility) as the Pool Funds Administrator (with the prior
written consent of the Executive Committee) considers
desirable to enable it efficiently to perform any
obligations imposed on it pursuant to this Schedule.
4.2.3 Each Pool Account shall be in the name of the Pool Funds
Administrator and (save for the Pool Borrowing Account)
shall be designated as being held in trust in accordance
with the provisions of Section 5.
<PAGE>
4.2.4 The Pool Funds Administrator shall not commingle any funds
standing to the credit of any Pool Account with its own
personal funds.
4.3 Rights and obligations under Funds Transfer Agreement:
4.3.1 The Pool Funds Administrator is authorised by the Pool
Members, the Ancillary Services Provider and the Grid
Operator to exercise the rights granted to it under, and
shall perform its obligations pursuant to, the Funds
Transfer Agreement except that it shall not remove the Pool
Banker without the prior written consent of the Executive
Committee; and that at the request of the Executive
Committee it shall remove the Pool Banker in accordance with
the Funds Transfer Agreement.
4.3.2 Subject to the agreement of the Pool Banker, the Parties
agree promptly to give effect to any amendment to the Funds
Transfer Agreement as may be required by the Executive
Committee.
4.4 Settlement Account: Each Pool Member, the Ancillary Services Provider
and the Grid Operator shall deliver to the Pool Funds Administrator:-
4.4.1 in the case of a Pool Member, not later than the later of
the Effective Date and 10 Business Days (or such lesser
number of Business Days as the Executive Committee may, in
respect of any Pool Member, by notice to such Pool Member
and the Pool Funds Administrator specify) before it is
admitted as a Pool Member;
4.4.2 in the case of the Ancillary Services Provider, not later
than the later of the Effective Date and the date of its
admission as a Party; and
4.4.3 in the case of the Grid Operator, not later than the date on
which the Grid Operator first becomes a Pool Debtor,
a duly completed and signed Settlement Account Designation providing
details of the Settlement Account to which the Pool Funds
Administrator is instructed to make payments to such person and, if
such person wishes to designate a second account as its Settlement
Account from which payments due from such person are to be transferred
in accordance with this Schedule, providing details of such other
account.
4.5 Further information: Each Pool Member, the Ancillary Services Provider
and the Grid Operator shall also supply to the Pool Funds
Administrator and the Executive Committee such information or (as the
case may be) further information concerning its Settlement Account as
shall be reasonably requested by the Executive Committee or the Pool
Funds Administrator.
<PAGE>
4.6 Change of Settlement Account: Each Pool Member, the Ancillary Services
Provider and the Grid Operator may change its Settlement Account at
any time by delivering to the Pool Funds Administrator a duly
completed and signed notice substantially in the form set out in Part
2 of Annex 3 (or in such other form as may from time to time be
specified by the Executive Committee) specifying the effective date of
the change (which shall be no less than 10 Business Days after the
notice is received by the Pool Funds Administrator).
4.7 Maintenance of Settlement Account and Settlement Bank Mandate: Each
Pool Member, the Ancillary Services Provider and the Grid Operator
shall, unless otherwise agreed by the Executive Committee, at all
times maintain a Settlement Account and the Pool Funds Administrator
shall enter into and maintain a Settlement Bank Mandate with each of
the relevant Settlement Banks.
4.8 Details of Accounts: The Pool Funds Administrator shall supply full
details to each Pool Member, the Ancillary Services Provider and the
Grid Operator of the Pool Clearing Account, the Pool Reserve Account
and any relevant Collection Account and, for so long as it is
maintained, the Pool Borrowing Account and shall supply the Executive
Committee with full details of all Pool Accounts and Settlement
Accounts.
5. ESTABLISHMENT OF TRUSTS
5.1 Trusts:
5.1.1 Subject to paragraph 5.1.2, the Pool Funds Administrator
shall hold all moneys deposited with or paid to it, and such
rights as may from time to time be vested in it with regard
to payment by Pool Members, by and from each Pool Debtor or
with regard to the provision of Security Cover by each Pool
Member or the Grid Operator including:-
(a) subject as provided in sub-section 5.2, all moneys
from time to time standing to the credit of each
Pool Account other than the Pool Reserve Account
and the Pool Borrowing Account;
(b) all rights of the Pool Funds Administrator to call
for payment or Security Cover;
(c) the Letters of Credit and all rights to, and
(subject to sub-section 15.5) moneys representing,
any proceeds therefrom other than proceeds
repayable by loan in accordance with paragraph
5.12.5 and sub-section 5.16; and
(d) any interest received or receivable in respect of
a Pool Debt or a Pool Account (other than interest
on the Pool Reserve Account),
<PAGE>
on trust for Pool Creditors in accordance with their
respective individual entitlements as they arise in
accordance with this Schedule. Upon termination of the said
trust any residual balance after satisfaction of the
entitlement of all Pool Creditors shall be held for
Providing Members, the Ancillary Services Provider and the
Grid Operator in accordance with their respective individual
entitlements as they arise in accordance with this Schedule.
5.1.2 Paragraph 5.1.1 shall not apply to:-
(a) Pool Reserve Assets;
(b) any moneys (including fees) owed or paid, or owing
or payable, to the Pool Funds Administrator:-
(i) in the performance of its Services
including under Schedules 15, 22 and 31
(except to the extent that such moneys
relate to the Pool Funds Administrator's
obligations under this Schedule);
(ii) in the performance of services as the
contracting agent or representative of
Pool Members; or
(iii) without limiting the generality of
sub-paragraph (i) above, in connection
with the collection and payment of Pool
Administration Costs or the operation of
the ERS Account; and
(c) any amounts owed or paid, or owing or payable, to
the Pool Funds Administrator in connection with
the expiry of its appointment as such or its
removal or resignation as such.
5.2 Trusts in respect of the Credit Facility: The Pool Funds Administrator
shall hold all moneys from time to time standing to the credit of the
Pool Clearing Account:-
5.2.1 first, on trust for the Facility Bank to the extent that
there is an aggregate amount outstanding under the Credit
Facility but on terms that no funds shall be withdrawn in
favour of the Facility Bank except in satisfaction of a
payment due to the Facility Bank under the terms of the
Credit Facility or in accordance with this Schedule and on
terms that the Pool Funds Administrator will be entitled to
make payments out of the account to Pool Members and other
Parties in accordance with the other provisions of this
Schedule; and
5.2.2 secondly, on the trusts set out in paragraph 5.1.1.
5.3 Rights of Pool Creditors other than the Ancillary Services Provider:
The respective rights of Pool Creditors other than the Ancillary
Services Provider to the assets held by
<PAGE>
the Pool Funds Administrator on the trusts set out in paragraph 5.1.1
shall be determined in accordance with the following principles:-
5.3.1 the extent of each Pool Creditor's individual rights shall
be deemed to consist of the aggregate of the claims (to the
extent not paid or otherwise satisfied) of such Pool
Creditor in respect of each Settlement Period; and
5.3.2 the assets referred to in paragraph 5.1.1 shall be deemed to
consist of a series of funds, each fund representing the
rights or moneys owed, paid, held or otherwise attributable
to each Settlement Period. The Pool Funds Administrator
shall not be obliged to segregate moneys into separate
funds.
5.4 Rights of Ancillary Services Provider: The rights of the Ancillary
Services Provider to assets held on trust shall be determined in
accordance with Section 23 of Schedule 9.
5.5 Trusts in respect of Pool Reserve Assets: The Pool Funds Administrator
shall stand possessed of the Pool Reserve Assets on the following
trusts, that is to say:-
5.5.1 at any time when no amounts owed by Pool Debtors are
overdue, on trust to repay (subject to and in accordance
with the provisions of sub-sections 5.8 and 5.9) to each
Providing Member and the Grid Operator the respective share
of such Providing Member or (as the case may be) the Grid
Operator (determined in accordance with sub-section 5.13) of
the Pool Reserve Assets; and
5.5.2 with automatic effect as soon as any amount owed by a Pool
Debtor becomes overdue, to hold an amount of the moneys
credited from time to time to the Pool Reserve Account equal
to the Notified Payment Shortfall or the amount held in the
Pool Reserve Account attributable to such Pool Debtor
(whichever is less) on the trusts set out in paragraph 5.1.1
and the balance (if any) shall be held on the trusts set out
in paragraph 5.5.1.
5.6 Overdue amounts: In respect of a Pool Debtor and for the purposes of
sub-section 5.5, an amount shall be deemed to become overdue at the
time at which the Pool Funds Administrator becomes aware that such
Pool Debtor has not made or will not make by 12.30 hours payment in
full to the credit of the Collection Account of such Pool Debtor of
such an amount as it is required on such day to make and, for as long
as the Credit Facility remains unconditionally available, the Pool
Funds Administrator considers in good faith that the amount in default
is not likely to be remedied on the next Business Day.
5.7 Notified Payment Shortfall: The term "Notified Payment Shortfall"
means the amount from time to time of Notified Payments which have
become overdue by application of the rule set out in sub-section 5.6
and which have not subsequently been paid (whether by
<PAGE>
remittance from a Pool Debtor, payment out of the Pool Reserve Account
or a call under a Letter of Credit). To the extent that the Pool Funds
Administrator is unable to determine the precise amount of a Notified
Payment Shortfall, it shall be deemed to be such amount as the Pool
Funds Administrator and the Pool Banker shall agree or, failing
agreement, the entire amount of the Notified Payment.
5.8 Providing Members' and the Grid Operator's rights to funds:
5.8.1 Each Providing Member and the Grid Operator remitting funds
for credit to the Pool Reserve Account agrees that the
following terms shall apply. None of the remittances shall
be repayable until a Providing Member has ceased to be a
Pool Member or (as the case may be) the Grid Operator has
ceased to be a Party and has paid in full all amounts
actually or contingently owed by it to any Pool Creditor,
the Settlement System Administrator or the Pool Funds
Administrator pursuant to this Schedule.
5.8.2 Furthermore, if and to the extent that, at any time when an
amount would be repayable to a Providing Member or the Grid
Operator pursuant to this sub-section 5.8, all or any part
of the Providing Member's or the Grid Operator's interest in
the Pool Reserve Assets is represented by a loan to a Pool
Member or the Grid Operator deemed to be made in accordance
with paragraph 21.1.3 or 21.1.5, the rights of a Providing
Member or (as the case may be) the Grid Operator as against
the Pool Funds Administrator to receive a payment of its
share in the Pool Reserve Assets (or the relevant portion of
such share) shall be conditional on repayment in full of the
relevant loan.
5.9 Funds not to be withdrawn: Each Providing Member and the Grid Operator
undertakes not to seek withdrawal of any funds to which it may be
entitled except in the circumstances permitted by sub-section 5.10 or
16.7. The Pool Funds Administrator shall be entitled to disregard any
purported notice of withdrawal not complying with this sub-section
5.9.
5.10 Providing Members' and Grid Operator's rights to withdraw funds:
Notwithstanding sub-sections 5.8 and 5.9, if a Providing Member or (as
the case may be) the Grid Operator is not in default in respect of any
amount owed to a Pool Creditor:-
5.10.1 the Pool Funds Administrator shall transfer to the relevant
Providing Member or the Grid Operator quarterly its share of
interest credited to the Pool Reserve Account; and
5.10.2 the Pool Funds Administrator shall transfer to such
Providing Member or the Grid Operator within a reasonable
time after a written request of such Providing Member or (as
the case may be) the Grid Operator therefor any amount of
cash which exceeds the amount which such Providing Member or
<PAGE>
the Grid Operator is required to maintain in the Pool
Reserve Account from time to time in accordance with Section
16.
5.11 Waiver of Providing Members' and Grid Operator's rights: Each
Providing Member and the Grid Operator waives any right it might
otherwise have to set off against any obligation owed to the Pool
Funds Administrator, the Pool Banker, any Pool Member, the Ancillary
Services Provider or the Grid Operator any claims such Providing
Member or the Grid Operator may have to or in respect of the Pool
Reserve Assets.
5.12 Pool Reserve Assets: "Pool Reserve Assets" means the aggregate of:-
5.12.1 amounts from time to time credited to the Pool Reserve
Account;
5.12.2 amounts which any Providing Member or the Grid Operator is
from time to time obliged to pay to the Pool Funds
Administrator for credit to the Pool Reserve Account and
claims in respect of such amounts;
5.12.3 interest accrued and accruing on the Pool Reserve Account;
5.12.4 any amounts credited to the Pool Reserve Account pursuant to
paragraph 15.4.3; and
5.12.5 any loans deemed to be made from any amounts credited to the
Pool Reserve Account pursuant to paragraph 21.1.3 or 21.1.5.
5.13 Providing Members' and Grid Operator's rights and interests in the
Pool Reserve Account: At any time when it is necessary to determine
the respective rights and interests of Providing Members and the Grid
Operator in and to funds standing to the credit of the Pool Reserve
Account, such rights shall be determined in accordance with the
following rules:-
5.13.1 any amount withdrawn from the Pool Reserve Account following
the occurrence of a Notified Payment Shortfall which the
Pool Funds Administrator has determined to be attributable
to a particular Providing Member or (as the case may be) the
Grid Operator (the "Relevant Provider") (irrespective of the
existence or otherwise of actual fault on the part of the
Relevant Provider) shall in the first instance reduce pro
tanto the Relevant Provider's interest in the Pool Reserve
Assets;
5.13.2 if, in any circumstances described in paragraph 5.13.1, the
Notified Payment Shortfall exceeds the Relevant Provider's
interest in the Pool Reserve Account, then any excess
required to be withdrawn from the Pool Reserve Account shall
reduce the respective interests of Providing Members and the
Grid Operator,
<PAGE>
other than the Relevant Provider, in proportion to their
respective interests in the Pool Reserve Account prior to
the withdrawal;
5.13.3 any proceeds of a Letter of Credit which are to be credited
to the Pool Reserve Account pursuant to sub-section 5.16,
and any amounts paid by a Relevant Provider to make up a
payment out of the Pool Reserve Account, shall be applied in
priority in or towards reinstating (rateably among
themselves) the respective interests of Providing Members
and the Grid Operator other than the Relevant Provider in
the Pool Reserve Account;
5.13.4 subject to the rules set out in paragraphs 5.13.1 to 5.13.3
(inclusive), the respective rights of each Providing Member
and the Grid Operator in and to funds standing to the credit
of the Pool Reserve Account shall be to receive (subject to
sub-sections 5.8 and 5.9) an amount equal to the aggregate
amounts remitted by the Providing Member and the Grid
Operator to the Pool Reserve Account and not subsequently
withdrawn, together with a proportionate share of any
interest from time to time credited to the Pool Reserve
Account; and
5.13.5 in the absence of a Notified Payment Shortfall, any amounts
credited to the Pool Reserve Account following a call under
a Letter of Credit pursuant to sub-section 15.5 shall be
considered as an interest in the Pool Reserve Assets of the
Relevant Provider in respect of the relevant Letter of
Credit.
5.14 Overpayments to be held on trust:
5.14.1 If and to the extent that payments under this Schedule
actually made on any day by the Pool Funds Administrator to
Pool Members or the Ancillary Services Provider in respect
of supplies of electricity under this Agreement or the
provision of Ancillary Services do not correspond exactly
with their respective payment entitlements established in
accordance with this Schedule in relation to supplies of
electricity or the provision of Ancillary Services in
respect of that same day, then the person receiving any
overpayment shall receive and be deemed to hold the amount
of such overpayment on trust for the Pool Member or rateably
for the Pool Members, the Ancillary Services Provider or (as
the case may be) for the Grid Operator which, in respect of
that same day was (were) underpaid (and, if none of them was
in fact underpaid, for the person(s) who overpaid the
amount).
5.14.2 The person receiving any overpayment shall, on the written
instruction of the Pool Funds Administrator, pay the amount
of such overpayment to the Pool Funds Administrator for
redistribution.
<PAGE>
5.15 Reimbursement of overpayments: Subject to sub-sections 5.8 and 5.14,
all payments under this Schedule shall be made on the basis that a
Pool Member or the Grid Operator shall only be entitled to claim
reimbursement of an overpayment made by it (whether to the Pool Funds
Administrator or (through the Pool Funds Administrator) to another
Pool Member, the Ancillary Services Provider or the Grid Operator) if,
and then only to the extent that:-
(a) the aggregate amounts paid by the Pool Member or (as the
case may be) the Grid Operator in respect of the relevant
Payment Date
exceed
(b) the total amounts payable by that Pool Member or (as the
case may be) the Grid Operator to Pool Creditors in respect
of that Payment Date together with all amounts (if any)
overdue by that Pool Member or (as the case may be) the Grid
Operator in respect of periods prior to the relevant Payment
Date.
5.16 Repayment of loans: Notwithstanding their rights pursuant to paragraph
5.1.1 in and to Letters of Credit and the proceeds thereof, Pool
Creditors agree that if:-
5.16.1 a payment is received under a Letter of Credit after a sum
has been withdrawn from the Pool Reserve Account to make
good (in whole or in part) a discrepancy between amounts
owed and amounts received by the due time on a particular
Payment Date; and
5.16.2 the aggregate of the amounts paid out of the Pool Reserve
Account and paid under the Letter of Credit exceeds the
amounts owed in respect of the relevant Payment Date,
then any excess paid under the Letter of Credit over the amount then
remaining unpaid in respect of the relevant Payment Date shall be
credited to the Pool Reserve Account. Where appropriate, any such
credit shall pro tanto constitute repayment of any loans deemed to be
made pursuant to paragraph 21.1.3 or 21.1.5.
5.17 No claim for breach of trust: Provided that the Pool Funds
Administrator carries out its duties under this Agreement, none of the
Pool Members, Ancillary Services Provider nor the Grid Operator shall
have any claim against the Pool Funds Administrator for breach of
trust or fiduciary duty arising solely out of any discrepancy between
payments actually made in respect of any day and the entitlement of
Pool Members, Ancillary Services Provider or the Grid Operator under
this Schedule to receive payments in respect of that same day.
<PAGE>
6. POOL LEDGER ACCOUNTS
6.1 Maintenance of Pool Ledger Accounts: The Pool Funds Administrator
shall maintain ledger accounts showing all amounts payable and
receivable by each Pool Member, the Ancillary Services Provider and
the Grid Operator according to calculations made and notifications
issued by the Pool Funds Administrator pursuant to this Schedule.
6.2 Ledger extracts: Each Pool Member, the Ancillary Services Provider and
the Grid Operator shall be entitled to receive a quarterly extract of
the ledger account which is relevant to it showing all amounts debited
and credited to its account provided that if a Pool Member, the
Ancillary Services Provider or the Grid Operator so requests of the
Pool Funds Administrator, it shall be entitled to receive a monthly
extract of such ledger account.
6.3 Certified copy extracts: Without prejudice to the generality of the
general duties and responsibilities of the Pool Funds Administrator
set out in Schedule 15, in the event of any enforcement proceedings
being brought by a Pool Creditor against a non-paying Pool Member or
the Grid Operator, the Pool Funds Administrator shall forthwith upon
request being made to it at the cost of the requesting Pool Creditor
provide a certified copy of an extract of the ledger accounts
sufficient to establish the details of each transaction in respect of
which the Pool Creditor has a claim against the non-paying Pool Member
or the Grid Operator.
6.4 Confidentiality: The ledger accounts maintained by the Pool Funds
Administrator shall be kept confidential from Committee Members and
from all Pool Members, the Ancillary Services Provider and the Grid
Operator except as required:-
6.4.1 pursuant to Clause 63.1.5, 63.1.6 or 63.1.7 or sub-section
6.2 or 6.3; or
6.4.2 for the purposes of calculating the amount of Security Cover
to be provided by a Providing Member or the Grid Operator or
monitoring or enforcing compliance by a Providing Member or
the Grid Operator with its obligations with respect to the
provision and maintenance of Security Cover,
6.4.3 to be disclosed to the Pool Auditor for the purpose of any
audit requested to be conducted pursuant to Part IX of this
Agreement.
6.5 Information: Any extract of a ledger account of any other records,
data or information provided pursuant to Clause 63.1.5, 63.1.6 or
63.1.7 or sub-section 6.2 (collectively referred to in this Section 6
as the "information") shall, save in the case of manifest error, be
deemed prima facie evidence of its contents.
6.6 Review of extracts: Each Pool Member, the Ancillary Services Provider
and the Grid Operator shall promptly review all extracts of ledger
accounts sent to it and shall
<PAGE>
(without prejudice to any of its rights under this Agreement) where
practicable within 10 Business Days after receiving such information
notify the Pool Funds Administrator of any errors in such account of
which it is aware.
6.7 Dispute of accuracy: If the Pool Funds Administrator at any time
receives a notice disputing the accuracy of any ledger account,
records, data or information, it shall consult with the Pool Member
who gave the notice, the Ancillary Services Provider or (as the case
may be) the Grid Operator and each shall use all reasonable endeavours
to agree the information. Promptly after agreement is reached, the
Pool Funds Administrator shall, if necessary, issue corrected
information and notifications under the provisions of Section 17.
7. PROVISION OF INFORMATION
Upon request from time to time of the Pool Funds Administrator:-
7.1 the Settlement System Administrator, the Initial Settlement and
Reconciliation Agent, Pool Members, the Ancillary Services Provider
and the Grid Operator shall provide the Pool Funds Administrator
promptly with all records, data and other information as the Pool
Funds Administrator may reasonably require for it to be able to
calculate or re-calculate claims and payments between Pool Members,
the Ancillary Services Provider and the Grid Operator on a Settlement
Period (rather than a Settlement Day) basis; and
7.2 where on any day a Pool Member, the Ancillary Services Provider or the
Grid Operator makes a single payment in respect of more than one
outstanding amount due from it under this Schedule, the relevant Pool
Member or the Ancillary Services Provider or the Grid Operator, as the
case may be, shall provide the Pool Funds Administrator promptly with
written notification of how it considers the amount of such payment
should be allocated as between all such outstanding amounts. The Pool
Funds Administrator shall not be bound to allocate the amount of such
payment in accordance with the allocation notified by the relevant
Pool Member, the Ancillary Services Provider or the Grid Operator, as
the case may be, but shall allocate such amount in accordance with the
provisions of this Schedule (in particular, sub-section 19.8).
8. [Not used.]
9. [Not used.]
10. [Not used.]
11. [Not used.]
12. [Not used.]
<PAGE>
13. [Not used.]
14. [Not used.]
<PAGE>
PART 3: SECURITY COVER AND CREDIT MONITORING
15. SECURITY COVER
15.1 Provision of Security Cover: Each Providing Member and the Grid
Operator shall provide Security Cover from time to time in accordance
with the following provisions:-
15.1.1 each Providing Member and the Grid Operator (with the
exception of any entity of or wholly-owned or Controlled by
the United Kingdom Government) shall:-
(a) deliver to the Pool Funds Administrator evidence
reasonably satisfactory to the Executive Committee
that:-
(i) it presently holds an Approved Credit
Rating; or
(ii) it has provided and is not in default
under alternative or additional security
as may be approved from time to time by
unanimous decision of all Committee
Members (Committee Members being under
no obligation to approve any such
security); or
(b) comply with the provisions of paragraph 15.1.3;
15.1.2 in addition to the provisions of paragraph 15.1.1 but
subject as provided in sub-section 21.12 and Section 25:-
(a) each Supplier (including any Supplier which is an
entity of or wholly-owned or Controlled by the United
Kingdom Government) shall, not later than the date of
its admission as a Pool Member, deliver to the Pool
Funds Administrator:-
(i) a Letter of Credit (available for an
initial period of not less than 12
months); and
(ii) cash for credit to the Pool Reserve
Account,
in both cases in such amount as shall be notified
by the Executive Committee in accordance with
Section 16; and
(b) each Providing Member, not being a Supplier,
(including any entity of or wholly-owned or
Controlled by the United Kingdom Government and
not referred to in paragraph 15.1.2(a) above)
shall, not later than the date of its admission as
a Pool Member or 31st March, 1995 (whichever is
the
<PAGE>
later) and the Grid Operator shall, not later than
1st April, 1997, deliver to the Pool Funds
Administrator:-
(i) a Letter of Credit (available for an
initial period of not less than 12
months); and
(ii) cash for credit to the Pool Reserve
Account,
in both cases in such amount as shall be notified
by the Executive Committee in accordance with
Section 16;
15.1.3 each Providing Member and the Grid Operator mentioned in
paragraph 15.1.1 to which paragraph (b) of paragraph 15.1.1
applies and (if paragraph (b) of paragraph 15.1.1 applies to
it) the Grid Operator shall immediately be required (in
addition to its obligations, if any, under paragraph 15.1.2)
to deliver to the Pool Funds Administrator a Letter of
Credit (available for an initial period of not less than 12
months) or cash for credit to the Pool Reserve Account in
such amount and in such proportions as shall be notified by
the Executive Committee in accordance with Section 16.
15.2 Letters of Credit: For the avoidance of doubt nothing in sub-section
15.1 or 15.6 shall prevent any Providing Member or the Grid Operator
from delivering a single Letter of Credit in respect of its
obligations under paragraphs 15.1.2 and 15.1.3.
15.3 Cash deposit: Any cash amount delivered to the Pool Funds
Administrator for credit to the Pool Reserve Account shall be held on
the terms set out in Section 5. Amounts standing to the credit of the
Pool Reserve Account shall bear interest at the Reserve Interest Rate.
15.4 Maintenance of Security Cover: Each Providing Member and the Grid
Operator shall be required to provide and at all times thereafter
maintain a Security Amount equal to or more than the Security Cover
applicable to it in such aggregate amount as shall be set from time to
time in accordance with this Part 3. Immediately upon any reduction
occurring in the Security Amount provided by any Providing Member or
the Grid Operator or any Letter of Credit being for any reason drawn
down (and including the deemed making of any loan to that Providing
Member or the Grid Operator under the provisions of paragraph 21.1.3
or 21.1.5) the Providing Member or (as the case may be) the Grid
Operator will procure that new Letters of Credit are issued or
existing Letters of Credit are reinstated (to the satisfaction of the
Pool Funds Administrator) to their full value or that cash is placed
to the credit of the Pool Reserve Account in an amount required to
restore the Security Amount to an amount at least equal to the
Security Cover applicable to the Providing Member or (as the case may
be) the Grid Operator and in such proportions of Letters of Credit and
cash as this Part 3 requires. Not later than 10 Business Days before
any outstanding Letter of Credit is due to expire, the Providing
<PAGE>
Member or the Grid Operator providing such Letter of Credit shall
procure to the satisfaction of the Pool Funds Administrator that its
required Security Amount will be available for a further period of not
less than 12 months which may be done in one of the following ways:-
15.4.1 (subject to the issuing bank continuing to have the credit
rating referred to in sub-section 15.6) provide the Pool
Funds Administrator with confirmation from the issuing bank
that the validity of the Letter of Credit has been extended
for a period of not less than 12 months on the same terms
and otherwise for such amount as is required by this Part 3;
or
15.4.2 provide the Pool Funds Administrator with a new Letter of
Credit issued by an issuing bank with the credit rating
required by this Schedule for an amount at least equal to
the required Security Amount applicable to it (less its
balance on the Pool Reserve Account) which Letter of Credit
shall be available for a period of not less than 12 months;
or
15.4.3 procure such transfer to the Pool Funds Administrator for
credit to the Pool Reserve Account as shall ensure that the
credit balance applicable to it standing to the credit of
the Pool Reserve Account shall be at least equal to the
required Security Amount.
15.5 Failure to supply Security Cover: If a Providing Member or the Grid
Operator fails at any time to provide Security Cover to the
satisfaction of the Pool Funds Administrator in accordance with the
provisions of this Section 15, the Pool Funds Administrator may at any
time while such default continues, and if at such time any Letter of
Credit forming part of the Security Cover is due to expire within nine
Business Days it shall immediately, and without notice to such
Providing Member or (as the case may be) the Grid Operator, demand
payment of the entire amount of any outstanding Letter of Credit and
shall credit the proceeds of the Letter of Credit to the Pool Reserve
Account to be held on the terms and on the trusts set out in Section
5.
15.6 Substitute Letter of Credit: If the bank issuing the Letter of Credit
of any Providing Member or the Grid Operator ceases to have the credit
rating as is set out in the definition in Part I of this Agreement of
"Letter of Credit", such Providing Member or (as the case may be) the
Grid Operator shall forthwith procure the issue of a substitute Letter
of Credit by a bank that has such credit rating.
16. CREDIT MONITORING
16.1 Determination of Security Cover: The amount of Security Cover which
each Providing Member and the Grid Operator shall be required to
maintain and, in respect of the amounts of Security Cover to be
provided under paragraph 15.1.2 (so long as applicable) and paragraph
15.1.3 the proportions as between cash and Letter of Credit that may
be
<PAGE>
permitted, shall be determined from time to time by the Executive
Committee in consultation with the Pool Funds Administrator in
accordance with this Section 16 and on the basis of the criteria set
out in sub-section 16.2, and shall be notified to such Providing
Member or (as the case may be) the Grid Operator, and to the Pool
Funds Administrator.
16.2 Criteria for provision of Security Cover:
16.2.1 If paragraph (b) of paragraph 15.1.1 applies to a Providing
Member or the Grid Operator, the amount of Security Cover
required to be provided by such Providing Member or (as the
case may be) the Grid Operator in addition to the amounts
referred to in paragraph 15.1.2 (so long as applicable)
shall be provided by Letter of Credit in an amount to be
assessed by the Executive Committee in consultation with the
Pool Funds Administrator as the aggregate amounts payable
pursuant to this Agreement by the relevant Providing Member
or (as the case may be) the Grid Operator in respect of
purchases of, or as the case may be, prospective purchases
of electricity (including Ancillary Services) made by the
relevant Providing Member or in respect of sums payable in
accordance with Clause 49 of this Agreement by the Grid
Operator over a 28 day period, as determined by the
Executive Committee provided that with the approval of the
Executive Committee, all or part of the required Security
Cover may be provided in cash credited to the Pool Reserve
Account.
16.2.2 In respect of all Providing Members and the Grid Operator,
the amounts required to be provided by each of them which
are referred to in paragraph 15.1.2 (so long as applicable)
shall (subject as provided in sub-section 21.12 and Section
25) be initially as to a minimum of 20 per cent. in cash and
the remainder by way of Letter of Credit, and thereafter as
revised by the Executive Committee. Such amounts shall be
assessed by the Executive Committee in consultation with the
Pool Funds Administrator to cover banking error and to
minimise reductions of payments to Pool Creditors.
16.3 Six monthly variation: In respect of paragraphs 16.2.1 and 16.2.2, the
Executive Committee shall calculate two amounts for the two six-month
periods commencing 1st April and 1st October in each year and shall
advise the Pool Funds Administrator and the relevant Providing Members
or (as the case may be) the Grid Operator accordingly. Such six
monthly variation shall not apply to paragraph 16.2.2 where Section 25
is applicable.
16.4 Review of Security Cover: The Pool Funds Administrator shall keep
under review the Security Amounts relating to each Providing Member
and the Grid Operator and shall promptly advise the Executive
Committee, the relevant Providing Member or (as the case may be) the
Grid Operator whenever the Security Cover maintained by such Providing
<PAGE>
Member or (as the case may be) the Grid Operator is significantly more
or less than the amount required to be maintained pursuant to this
Part 3.
16.5 Increase or Decrease of Security Cover: If, after considering the
recommendations of the Pool Funds Administrator and any
representations which may be made by the relevant Providing Member or
(as the case may be) the Grid Operator, the Executive Committee
determines that the Security Cover of a Providing Member or the Grid
Operator should be increased or decreased, it shall so notify the
Providing Member or the Grid Operator (as the case may be), the Pool
Funds Administrator and the Director. If the Executive Committee
determines that such Security Cover should be decreased, the Providing
Member or (as the case may be) the Grid Operator consents and the
Director so approves, that reduction shall take place. The Pool Funds
Administrator shall consent to an appropriate reduction in the
available amount of any outstanding Letter of Credit and/or shall
repay to the Providing Member or (as the case may be) the Grid
Operator such part of the deposit held in the Pool Reserve Account for
the account of such Providing Member or the Grid Operator (together
with all accrued interest on the part to be repaid) sufficient to
reduce the Providing Member's or Grid Operator's Security Amount to
the level of Security Cover applicable to it. If the Executive
Committee determines that the Providing Member's or the Grid
Operator's Security Cover should be increased, the relevant Providing
Member or (as the case may be) the Grid Operator shall, within five
Business Days of notice as aforesaid, procure an additional or
replacement Letter of Credit or transfer to the Pool Funds
Administrator a cash deposit for credit to the Pool Reserve Account in
an amount sufficient to increase its Security Amount so as to be at
least equal to the level of Security Cover applicable to it.
16.6 Notification in respect of Security Cover: The Pool Funds
Administrator shall notify the Executive Committee, the Settlement
System Administrator and the Director promptly if:-
16.6.1 a Providing Member or the Grid Operator fails to provide,
extend or renew a Letter of Credit which it is required to
maintain pursuant to Section 15; or
16.6.2 the Pool Funds Administrator shall make a call under any
such Letter of Credit; or
16.6.3 the Pool Funds Administrator becomes aware that a Providing
Member or the Grid Operator (a) shall cease to retain an
Approved Credit Rating, or (b) shall be placed on credit
watch by the relevant credit rating agency (or becomes
subject to an equivalent procedure) which in any case casts
doubt on the Providing Member or the Grid Operator retaining
an Approved Credit Rating, or (c) shall be in default under
the additional or alternative security referred to in
paragraph 15.1.1; or
<PAGE>
16.6.4 the Security Amount in relation to any Providing Member or
the Grid Operator is at any time less than the level of its
required Security Cover for the time being; or
16.6.5 the Pool Funds Administrator becomes aware that any bank
that has issued a Letter of Credit which has not expired
ceases to have the credit rating required by this Schedule.
16.7 Release from Security Cover obligations: A Providing Member or (as the
case may be) the Grid Operator shall be released from its obligation
to maintain Security Cover, and the Pool Funds Administrator shall
consent to the revocation of any outstanding Letter of Credit, upon:-
16.7.1 the Providing Member or the Grid Operator (as the case may
be) ceasing to be a Party;
16.7.2 all its accrued liabilities under this Agreement having been
discharged; and
16.7.3 all its liabilities under this Agreement which may accrue in
relation to the period during which it was a Party
(including amounts payable by it as a result of a Final
Reconciliation Run for any Settlement Day which falls during
that period), the Funds Transfer Agreement and any agreement
referred to in Clause 8.8.1(c), having been discharged.
16.8 No liability for amount of Security Cover: Any recommendations made by
the Pool Funds Administrator pursuant to this Section 16 shall be
given in good faith. Any instructions given by the Executive Committee
in respect of the amount of Security Cover to be maintained by a
Providing Member or the Grid Operator if given in good faith shall,
insofar as applicable in terms of this Schedule, be binding on all
Pool Members, the Ancillary Services Provider and the Grid Operator
and neither the Pool Funds Administrator nor any Committee Member
shall incur any liability by reason of the Security Cover of a
Providing Member or the Grid Operator proving to be inadequate or
excessive.
<PAGE>
PART 4: BILLING AND PAYMENT PROCEDURES
17. RECEIPT AND RECONCILIATION OF INFORMATION
17.1 Stage 1 Settlement Run: Not later than 10.00 hours on the Notification
Date the Pool Funds Administrator shall require of, and take all steps
available to it to procure from, the Settlement System Administrator,
and the Settlement System Administrator shall use its best endeavours
to provide to the Pool Funds Administrator, the information referred
to in paragraphs 17.1.1 to 17.1.4 (inclusive) concerning supplies of
electricity, the provision of Ancillary Services and the sums payable
in relation to Transport Uplift in respect of each Settlement Day.
17.1.1 The information required in respect of each Settlement Day
is as follows:-
(a) the Settlement Day;
(b) the corresponding Settlement Payment Date;
(c) the Settlement Run identification number;
(d) the total amount owing in accordance with this
Agreement (exclusive of United Kingdom Value Added
Tax) in respect of electricity supplied and
Ancillary Services provided and Transport Uplift
due during each Settlement Day;
(e) the total amount owing (exclusive of United
Kingdom Value Added Tax) in respect of Ancillary
Services provided during each Settlement Day;
(f) the total amount owing (exclusive of United
Kingdom Value Added Tax) in respect of Transport
Uplift for each Settlement Day; and
(g) the GSP Group Control Total in respect of each
Settlement Day.
17.1.2 The information required in respect of each Pool Member
providing electricity during each Settlement Day is as
follows:-
(a) each identification of the Pool Member used in
Settlement;
(b) the Pool Member's name; and
(c) the total amount owing in accordance with this
Agreement (exclusive of United Kingdom Value Added
Tax) in respect of electricity provided by such
Pool Member during each Settlement Day.
<PAGE>
17.1.3 The information required in respect of each Pool Member
taking electricity in each Settlement Day (to the extent
that it does not form part of the GSP Group Control Total)
is as follows:-
(a) each identification of the Pool Member used in
Settlement;
(b) the Pool Member's name; and
(c) the total amount owing in accordance with this
Agreement (exclusive of United Kingdom Value Added
Tax) in respect of electricity taken by such Pool
Member (to the extent that it does not form part
of the GSP Group Control Total) during each
Settlement Day.
17.1.4 The information required in relation to the Ancillary
Services Provider and the Grid Operator in respect of each
Settlement Day is the total amount receivable in accordance
with this Agreement by the Ancillary Services Provider
(exclusive of United Kingdom Value Added Tax) for the
provision of Ancillary Services during each Settlement Day
and the total amount (exclusive of United Kingdom Value
Added Tax) payable by the Grid Operator in relation to
Transport Uplift (including in relation to Ancillary
Services) during each Settlement Day.
17.2 Stage 2 Initial Settlement Run: Not later than 10.00 hours on the
Notification Date the Pool Funds Administrator shall require of, and
take all steps available to it to procure from, the Initial Settlement
and Reconciliation Agent, and the Initial Settlement and
Reconciliation Agent shall use its best endeavours to provide to the
Pool Funds Administrator, the information referred to in paragraphs
17.2.1 and 17.2.2.
17.2.1 The information required in respect of each Settlement Day
is as follows:-
(a) the Settlement Day;
(b) the corresponding Settlement Payment Date; and
(c) the Settlement Run identification number.
17.2.2 The information required in respect of each Pool Member
taking electricity in each Settlement Day is as follows:-
(a) each identification of the Pool Member used in
Settlement;
(b) the Pool Member's name; and
(c) in relation to each GSP Group, the total amount
owing in accordance with this Agreement (exclusive
of United Kingdom Value Added Tax) in
<PAGE>
respect of electricity taken by such Pool Member
(and settled through Stage 2 Settlement) during
each Settlement Day.
17.3 Timetabled Reconciliation Run: Not later than 10.00 hours on the
Reconciliation Notification Date the Pool Funds Administrator shall
require of, and take all steps available to it to procure from, the
Initial Settlement and Reconciliation Agent, and the Initial
Settlement and Reconciliation Agent shall use its best endeavours to
provide to the Pool Funds Administrator, the information referred to
in paragraphs 17.3.1 and 17.3.2.
17.3.1 The information required in respect of each Settlement Day
is as follows:-
(a) the Settlement Day;
(b) the corresponding Reconciliation Payment Date; and
(c) the Timetabled Reconciliation Run identification
number.
17.3.2 The information required in respect of each Pool Member
taking electricity in each Settlement Day is as follows:-
(a) each identification of the Pool Member used in
Settlement;
(b) the Pool Member's name; and
(c) on the basis solely of the information derived
from the relevant Timetabled Reconciliation Run,
in relation to each GSP Group the total amount
owing in accordance with this Agreement (exclusive
of United Kingdom Value Added Tax) in respect of
electricity taken by such Pool Member (and settled
through Stage 2 Settlement) during each Settlement
Day.
17.4 [Not used.]
17.5 [Not used.]
17.6 Reconciliation by Pool Funds Administrator:
17.6.1 Upon receipt of the information supplied by the Settlement
System Administrator, the Pool Funds Administrator shall
determine by process of reconciliation whether, on the basis
of such information:-
(a) the sum of the amounts shown to be receivable by
each Pool Member in respect of its sales of
electricity plus the amount shown to be payable to
<PAGE>
the Ancillary Services Provider in respect of its
provision of Ancillary Services on the relevant
Settlement Day
is equal to
(b) the sum of:-
(i) the GSP Group Control Total in respect
of that Settlement Day;
(ii) the amounts shown to be payable by each
Pool Member in respect of its purchases
of electricity on that Settlement Day
(to the extent that it does not form
part of the GSP Group Control Total);
and
(iii) the amounts shown to be payable by the
Grid Operator in relation to Transport
Uplift.
17.6.2 Upon receipt of the information supplied by the Initial
Settlement and Reconciliation Agent, the Pool Funds
Administrator shall determine by process of reconciliation
whether, on the basis of such information and of the
information provided by the Settlement System
Administrator:-
(a) the sum of the amounts shown to be receivable by
each Pool Member in respect of its sales of
electricity (to the extent that it does form part
of the GSP Group Control Total) by GSP Group
is equal to
(b) the sum of the amounts shown to be payable by each
Pool Member in respect of its purchases of
electricity (settled through Stage 2 Settlement)
in that GSP Group.
17.6A Calculation by Pool Funds Administrator:
17.6A.1 Upon receipt of the information supplied by the Initial
Settlement and Reconciliation Agent in a Timetabled
Reconciliation Run, the Pool Funds Administrator shall
calculate, on the basis of such information, the difference
(if any) between:-
(a) the amount shown in that Timetabled Reconciliation
Run to be payable by each Pool Member in relation
to each GSP Group in respect of purchases of
electricity on a Settlement Day; and
<PAGE>
(b) the corresponding amount shown to be payable by
that Pool Member in the related Stage 2 Initial
Settlement Run for the same Settlement Day or, if
a Timetabled Reconciliation Run has already been
delivered in respect of that Settlement Day, in
the most recent Timetabled Reconciliation Run
previously delivered for that Settlement Day.
17.6A.2 On the basis of the calculations made pursuant to paragraph
17.6A.1, the Pool Funds Administrator shall calculate in
respect of each Pool Member the aggregate of the additional
amounts (if any) shown to be payable by it or (as the case
may be) payable to it by way of adjustment in respect of
purchases of electricity for the relevant Settlement Day.
17.7 Deemed Reconciliation: Unless the Pool Funds Administrator shall, by
close of business on the Notification Date or (as the case may be) on
the Reconciliation Notification Date, otherwise inform the Settlement
System Administrator (in respect of a Notification Date), the Initial
Settlement and Reconciliation Agent (in respect of a Reconciliation
Notification Date), each Pool Member, the Ancillary Services Provider
and the Grid Operator to the contrary, the information provided by the
Settlement System Administrator or (as the case may be) the Initial
Settlement and Reconciliation Agent shall be deemed to be reconciled.
17.8 Rectification of Errors:
17.8.1 If the Pool Funds Administrator determines that the
information provided by the Settlement System Administrator
or the Initial Settlement and Reconciliation Agent cannot be
reconciled in accordance with sub-section 17.6, it shall as
soon as possible notify the Settlement System Administrator
or (as the case may be) the Initial Settlement and
Reconciliation Agent and (in either case) each Pool Member,
the Ancillary Services Provider and the Grid Operator
accordingly and require the Settlement System Administrator
or (as the case may be) the Initial Settlement and
Reconciliation Agent to correct any errors and obtain the
Pool Funds Administrator's reconciliation of the corrected
information as quickly as possible.
17.8.2 As soon as the Pool Funds Administrator determines that the
information provided by the Settlement System Administrator
or (as the case may be) the Initial Settlement and
Reconciliation Agent can be reconciled in accordance with
sub-section 17.6, the Pool Funds Administrator shall notify
the Settlement System Administrator or (as the case may be)
the Initial Settlement and Reconciliation Agent and (in
either case) each Pool Member, the Ancillary Services
Provider and the Grid Operator of the reconciled information
required to be given pursuant to sub-section 17.6.
17.8.3 Where the discrepancy lies with information originally
provided by the Settlement System Administrator, the
Settlement System Administrator shall
<PAGE>
use its best endeavours to provide such corrected
information as may be necessary for the Pool Funds
Administrator to carry out and issue the reconciliation.
17.8.4 Where the discrepancy lies with information originally
provided by the Initial Settlement and Reconciliation Agent,
the Initial Settlement and Reconciliation Agent shall use
its best endeavours to provide such corrected information as
may be necessary for the Pool Funds Administrator to carry
out and issue the reconciliation.
17.9 Amounts in Advice Notes; Adjustments:
17.9.1 The amounts to be incorporated in the Advice Notes in
accordance with sub-section 18.1 (and in all cases together
with United Kingdom Value Added Tax thereon) shall be:-
(a) if the amounts have been reconciled in accordance
with paragraphs 17.6.1 and 17.6.2, the full
relevant amounts so reconciled;
(b) to the extent that reconciliation can reasonably
be made in circumstances where all the information
cannot be fully reconciled as described in
paragraphs 17.6.1 and 17.6.2, those amounts which
are shown against the name of each Pool Debtor in
such information as is received under the
provisions of sub-sections 17.1, 17.2 and 17.3
(whether or not such information is an estimate
only), and such amounts will be shared amongst the
relevant Pool Creditors in the proportion which
the amount shown as due to each of them in such
information as aforesaid bears to the amounts
which are so shown as due to all of them;
(c) to the extent that for any reason whatever the
amounts to be paid cannot be reconciled at all as
described in paragraph 17.6.2 or the appropriate
calculations to permit payment in accordance with
sub-paragraph (b) above cannot properly be made
(but, in either case, reconciliation has been made
in accordance with paragraph 17.6.1), the amount
payable by each Pool Member in respect of
electricity taken by it (and settled through Stage
2 Settlement) shall bear the same proportion to
the total amounts payable by all Pool Members in
respect of their purchases of such electricity as
were applicable in relation to the last same day
of the week in respect of which payments were
reconciled under paragraphs 17.6.1 and 17.6.2
(provided that any Pool Member who was not at that
earlier time a Pool Member, or vice versa, shall
be ignored and such adjustment made as the Pool
Funds Administrator considers appropriate); and
<PAGE>
(d) to the extent that for any reason whatever the
amounts to be paid cannot be reconciled at all as
described in paragraphs 17.6.1 and 17.6.2
(including application of Force Majeure and
failure to provide information on the part of the
Settlement System Administrator or the Initial
Settlement and Reconciliation Agent) or the
appropriate calculations to permit payment in
accordance with sub-paragraph (b) above cannot
properly be made, the same as the amounts
calculated as being payable by and to Pool
Members, to the Ancillary Services Provider and by
the Grid Operator in respect of the last same day
of the week in respect of which payments were
reconciled under paragraphs 17.6.1 and 17.6.2
(provided that any Pool Member who was not at that
earlier time a Pool Member, or vice versa, shall
be ignored and such adjustment made as the Pool
Funds Administrator considers appropriate).
17.9.2 If payments are made in the circumstances set out in
paragraph 17.9.1(b), (c) or (d), the Settlement System
Administrator in conjunction with the Pool Funds
Administrator and (if applicable) the Initial Settlement and
Reconciliation Agent shall, as soon as actual reconciliation
can thereafter be made, make such adjustments as may be
necessary (and, where relevant, apply interest at the Base
Rate or at such other rate as shall be set from time to time
by the Executive Committee) to account for any differences
between payments made and actual reconciled payment
information.
17.9.3 The amounts to be incorporated in the Advice Notes in
accordance with sub-section 18.1 (and in all cases together
with United Kingdom Value Added Tax thereon) as a result of
the calculations to be made in accordance with sub-section
17.6A shall be the amounts (if any) determined pursuant to
that sub-section to be payable by each Pool Member on that
Reconciliation Payment Date, together with such adjustments
as may be necessary (which shall include interest accrued as
specified in sub-section 17.10 at the Base Rate or at such
other rate as shall be set from time to time by the
Executive Committee) to account for the difference between
amounts previously paid by Pool Members and those payable on
that Reconciliation Payment Date.
17.9.4 To the extent that for any reason the amounts to be paid on
any Reconciliation Payment Date cannot be calculated in
accordance with sub-section 17.6A, any difference between
the amounts paid by a Pool Member and the amounts
subsequently shown to be payable by that Pool Member
(together with any related adjustments) shall be dealt with
at the next Reconciliation Payment Date following full
reconciliation of the information unless the Executive
Committee determines in any particular case that an
adjustment shall be made at an earlier date.
<PAGE>
17.10 Postponed Payments:
17.10.1 If for any reason beyond the reasonable control of the Pool
Funds Administrator it is not possible, after application of
paragraph 17.9.1, for the Pool Funds Administrator to
determine by the close of business on the Notification Date
the amounts to be incorporated in the Advice Notes, the Pool
Funds Administrator shall inform the Settlement System
Administrator, each Pool Member, the Ancillary Services
Provider and the Grid Operator that the relevant Settlement
Payment Date shall be postponed so that it falls on the
second Business Day after the day on which the Pool Funds
Administrator reconciles the information provided by the
Settlement System Administrator pursuant to sub-section 17.6
(any such Payment Date being the "Postponed Settlement
Payment Date" and a reference to a Settlement Payment Date
in this Schedule shall where applicable include a reference
to a Postponed Settlement Payment Date).
17.10.2 On the Postponed Settlement Payment Date, each Pool Member
who took electricity on the Settlement Day to which the
Postponed Settlement Payment Date applies and the Grid
Operator shall pay interest on all such amounts for each day
from and including the originally scheduled Settlement
Payment Date to (but excluding) the Postponed Settlement
Payment Date at such rate as shall be set from time to time
by the Executive Committee or, in the absence of such rate,
at the Base Rate and all Pool Members who supplied
electricity and the Ancillary Services Provider on such
Settlement Day shall be entitled to receive, in addition to
the amounts that they are entitled to receive in respect of
such supplies, interest on such amounts for each day during
the same period and at the same rate. Interest shall accrue
from day to day and shall be calculated by the Pool Funds
Administrator on a 365 day year basis.
17.10.3 If for any reason beyond the reasonable control of the Pool
Funds Administrator it is not possible, after the
application of paragraph 17.9.1, for it to determine by the
close of business on a Reconciliation Notification Date the
amounts to be incorporated in the Advice Notes in respect of
reconciliation adjustments, the Pool Funds Administrator
shall forthwith inform the Executive Committee. Unless
otherwise directed by the Executive Committee, the Pool
Funds Administrator shall arrange to deal with such amounts
at the next Reconciliation Notification Date following the
necessary information becoming available. Where the
necessary information is not available by the final
Reconciliation Notification Date, the amounts shall be dealt
with as determined by the Executive Committee.
17.11 Further notification: Where instructed by the Executive Committee, or
where there is an award by a court of competent jurisdiction or an
arbitrator, or a decision of the Pool Auditor or where rendered
appropriate by Section 62 of Schedule 9, the Pool Funds
<PAGE>
Administrator shall issue further or other notification to the Pool
Members, the Ancillary Services Provider and the Grid Operator in
accordance with the provisions of this Section 17; and the Business
Day which falls five Business Days after the date of such notification
or earlier if practicable shall be a Payment Date.
17.12 Payment by Pool Debtors:
17.12.1 Each Pool Debtor shall without defence, set-off or
counterclaim (but without prejudice to any other rights or
remedies available to such Pool Debtor) make payment on the
relevant Payment Date of the full amount (including United
Kingdom Value Added Tax) so notified as being payable by it
for the account of those Pool Members and, as the case may
be, the Ancillary Services Provider so notified as being
entitled to receive payments. Payment shall be made in
accordance with the terms of this Schedule.
17.12.2 For the avoidance of doubt no payment made shall be treated
as being paid on account or subject to any condition or
reservation, notwithstanding the provisions for the making
of subsequent adjusting payments provided in this Schedule.
17.12.3 The provisions of sub-section 5.14 shall apply to any
payment insofar as it is or may constitute an overpayment.
17.13 Liability several: Save as otherwise expressly provided, the liability
of each Pool Member and the Grid Operator for amounts payable by it
pursuant to this Schedule is several and no Pool Member shall be
liable for the default of any other Pool Member or the Grid Operator
and the Grid Operator shall not be liable for the default of any Pool
Member.
18. ADVICE NOTES
18.1 Despatch of Advice Notes: Not later than 17.00 hours on the relevant
Notification Date or (as the case may be) Reconciliation Notification
Date (and, if this is not practicable, in good time (as that
expression is explained in more detail in the relevant Agreed
Procedure) to enable Pool Members, the Ancillary Services Provider and
the Grid Operator to give all necessary instructions for payments to
be effected on the relevant Payment Date) the Pool Funds Administrator
shall:-
18.1.1 despatch to Pool Members, the Ancillary Services Provider
and the Grid Operator Advice Notes showing amounts
(inclusive of United Kingdom Value Added Tax) which,
according to its calculations, are to be paid by or to each
Pool Member, the Ancillary Services Provider and the Grid
Operator on each Payment Date in respect of supplies of
electricity, the provision of Ancillary Services and sums to
be paid in relation to Transport Uplift during each
<PAGE>
Settlement Day to which that Notification Date or (as the
case may be) Reconciliation Notification Date relates;
18.1.2 notify each Settlement Bank of amounts payable by the Pool
Members, the Ancillary Services Provider or the Grid
Operator maintaining a Settlement Account at the relevant
Settlement Bank; and
18.1.3 notify the Pool Banker of the amount to be remitted to the
Pool Clearing Account by each Settlement Bank.
18.2 Method of despatch: All Advice Notes shall be despatched by the means
established in accordance with paragraphs 3.1.1 and 3.1.5, or by such
other means as the Executive Committee may reasonably direct.
18.3 Content of Advice Notes: All Advice Notes will include an appropriate
indication if payment is being made under the provisions of paragraph
17.9.1(b), 17.9.1(c), 17.9.1(d), 17.9.2 or 17.9.3 and shall specify
the interest component in any such amount.
18.4 Interest: Where interest is payable by or to any Pool Member, the
Ancillary Services Provider or the Grid Operator pursuant to this
Schedule, the Pool Funds Administrator shall, at the same time as it
despatches the Advice Notes, despatch to each Pool Member and the
Ancillary Services Provider who is required to pay interest and to
each Pool Member, the Ancillary Services Provider and the Grid
Operator who is entitled to receive interest a statement showing the
amount of interest payable or receivable by it, the rate of interest
applicable thereto and the amount (if any) of tax to be withheld.
19. PAYMENT PROCEDURE
19.1 Instructions for payment:
19.1.2 Each Pool Member, the Ancillary Services Provider and the
Grid Operator shall, in respect of each Payment Date on
which it is under an obligation to make a payment under this
Schedule, make such arrangements as will ensure that such
payment is credited to the relevant Collection Account in
sufficient time to allow such Settlement Bank to make
irrevocable arrangements to remit to the Pool Clearing
Account by 12.30 hours the amount payable by that Pool
Member, the Ancillary Services Provider or (as the case may
be) the Grid Operator in respect of that Payment Date.
19.1.2 Each Pool Member, the Ancillary Services Provider and the
Grid Operator shall ensure all remittances by its bank to
the relevant Collection Account shall be remittances for
value on the relevant Payment Date.
<PAGE>
19.2 Pool Funds Administrator's responsibilities:
19.2.1 As soon as practicable and in any event not later than 13.00
hours on each Payment Date the Pool Funds Administrator
shall take such action as is required to ensure that all
amounts required to be credited to each Collection Account
on such Payment Date have been so credited (or if not so
credited, the reason therefor established).
19.2.2 As soon as practicable and in any event not later than 13.30
hours on each Payment Date the Pool Funds Administrator
shall take such action as is required to ensure that all
amounts credited to each Collection Account on such Payment
Date in accordance with sub-section 19.1 have been remitted
to the Pool Clearing Account.
19.2.3 As soon as practicable and in any event not later than 14.30
hours on each Payment Date the Pool Funds Administrator
shall take such action as is required to ensure that it
reconciles the actual amounts credited to each Collection
Account and remitted to the Pool Clearing Account on or
before 13.30 hours on that Payment Date and the aggregate of
such amounts.
19.3 Non-payment: If a Pool Member or the Grid Operator becomes aware that
a payment for which it is responsible will not be credited to the
relevant Collection Account by 12.30 hours on the relevant Payment
Date, it will immediately notify the Pool Funds Administrator, giving
all details available to the Pool Member or (as the case may be) the
Grid Operator. The Pool Funds Administrator shall, as soon as it
becomes aware that a payment will not be remitted, use its best
endeavours to establish the cause of non-payment.
19.4 Excess payments:
19.4.1 If by 12.30 hours on any Payment Date the Pool Funds
Administrator is advised by a Settlement Bank that the
Settlement Bank will be making a payment in excess of the
amount notified to the Pool Member or the Grid Operator
pursuant to sub-section 18.1 in respect of that Payment
Date, or if the Pool Banker notifies the Pool Funds
Administrator by 13.30 hours that amounts greater than the
amounts notified to the Pool Banker pursuant to paragraph
18.1.3 have been credited to the Pool Clearing Account, the
Pool Funds Administrator shall use its best endeavours to
ascertain the nature of the excess payment, to calculate the
entitlement to such payment and to instruct the Pool Banker
by 14.30 hours that day to credit the appropriate Settlement
Account(s) with the amount determined by the Pool Funds
Administrator as falling due to each Pool Creditor in
accordance with this Schedule provided that, where an
External Pool Member makes a payment in excess of the amount
owing by it on any Payment Date and the reason for such
overpayment is the difficulty in
<PAGE>
remitting funds on a future Payment Date because of the
mismatch of bank and public holidays between countries, the
Pool Funds Administrator shall instruct the Pool Banker to
credit the Pool Reserve Account with the amount of the
excess.
19.4.2 Any Pool Member or the Grid Operator who instructs its bank
to make a payment in excess of the amount owing by that Pool
Member or (as the case may be) the Grid Operator on any
Payment Date shall simultaneously with giving such
instructions advise the Pool Funds Administrator in writing
of the amount of the excess payment providing a description
of what the Pool Member or the Grid Operator considers the
excess payment relates to.
19.5 Payment to Pool Creditors:
19.5.1 The Pool Funds Administrator shall, prior to 14.30 hours on
each day, calculate the amounts available for distribution
to Pool Creditors on that day.
19.5.2 As soon as practicable and not later than 14.30 hours on
that day the Pool Funds Administrator shall arrange for the
remittance from the Pool Clearing Account to the relevant
Settlement Accounts maintained by the Pool Creditors of the
aggregate of amounts determined by the Pool Funds
Administrator to be available for payment to Pool Creditors
and, if required, arrange for the transfer of amounts from
the Pool Reserve Account or the Pool Borrowing Account to
the Pool Clearing Account or vice versa. 19.6 Making good
the Pool Reserve Account: If the Pool Reserve Account is
debited or credited in or towards clearing the Pool Clearing
Account, the Pool Funds Administrator shall as soon as
possible thereafter take the necessary steps, including
making any calculations or taking any action in accordance
with Section 21, to reverse the debit or credit to the Pool
Reserve Account and/or to make a call under a Letter of
Credit.
19.7 Prohibition on transfers: The Pool Funds Administrator shall not at
any time instruct the Pool Banker to transfer any sum from a Pool
Account to another account (not being a Pool Account) unless that
account is a Settlement Account.
19.8 Application of payments: Where payments in respect of more than one
Settlement Day are required to be settled on a Payment Date, payments
shall be, and shall be deemed to be, settled in the following order of
priority:-
19.8.1 first, in or towards settlement of amounts outstanding under
this Schedule in respect of Timetabled Reconciliation Runs
(with the longest outstanding Settlement Day to which a
Timetabled Reconciliation Run relates being settled first);
and
<PAGE>
19.8.2 secondly, in or towards settlement of amounts outstanding
under this Schedule in respect of Stage 1 Settlement Runs
and Stage 2 Initial Settlement Runs (with the longest
outstanding Settlement Day to which a Settlement Run relates
being settled first).
19.9 Bank contacts:
19.9.1 Upon written request of the Pool Funds Administrator each
Pool Member, the Ancillary Services Provider and the Grid
Operator shall provide the Pool Funds Administrator in
writing with the name of, and communication details for, one
or more individuals at the branch of its Settlement Bank
from which payments or payment instructions required to be
made or given by it pursuant to this Schedule originate (the
"Local Branch") who is (are) familiar with the payment
procedures set out in this Section 19 applicable to such
Pool Member, the Ancillary Services Provider or (as the case
may be) the Grid Operator, and shall promptly advise the
Pool Funds Administrator in writing of any change of any
such individual or his communication details.
19.9.2 Each Pool Member, the Ancillary Services Provider and the
Grid Operator hereby authorises the Pool Funds Administrator
to contact any such individual to enquire in respect of any
Payment Date whether and in respect of what amount
instructions have been given for the remittance of any
payment required to be made by such Pool Member, the
Ancillary Services Provider or (as the case may be) the Grid
Operator under this Schedule and/or whether such payment has
been remitted or otherwise made as provided for in this
Schedule, and undertakes not to withdraw, qualify or revoke
such authority at any time.
19.9.3 Each Pool Member, the Ancillary Services Provider and the
Grid Operator shall instruct its Local Branch to co-operate
with the Pool Funds Administrator accordingly and to provide
the Pool Funds Administrator with all such information as is
necessary to answer such enquiries. The Pool Funds
Administrator shall comply with all reasonable security
arrangements imposed by the relevant Pool Member, the
Ancillary Services Provider or the Grid Operator or any
Local Branch.
20. ALTERNATIVE PAYMENT PROCEDURE
20.1 Alternative Payment procedure: Without prejudice to other obligations
in this Agreement not substituted by the provisions of this Section
20, the provisions set out in this Section 20 shall apply if, for any
reason, it is not possible to apply the procedures contemplated by the
Notified Payments System and for so long as it is not possible to
apply such procedures.
<PAGE>
20.2 Pool Debtor to effect remittance: Each Pool Debtor shall, in respect
of each Payment Date on which it is under an obligation to make a
payment under this Agreement, give instructions to its bank, which it
undertakes not to qualify, withdraw or revoke, to effect remittance to
the Pool Clearing Account of the amount payable by that Pool Debtor to
be received on that Payment Date.
20.3 Receipt of remittance: Any remittance must be received by the Pool
Banker in the Pool Clearing Account no later than 12.30 hours on the
Payment Date unless arrangements have been made between the Pool
Banker and the relevant Pool Member or the Grid Operator (as the case
may be) which shall be notified to the Pool Funds Administrator and
which are satisfactory to the Pool Banker such that funds will be
received for value on that Payment Date. The Pool Members and the Grid
Operator shall ensure that instructions are given to their banks in
sufficient time to ensure that their respective banks comply with this
time limit.
20.4 Method of remittance: The Parties acknowledge and agree that when
practicable to give effect to sub-section 20.3 a Pool Debtor shall
cause remittances to be effected through CHAPS but, where not
practicable or where the amount payable is less than the minimum
individual amount then processed through CHAPS, the Pool Member and
the Grid Operator shall ensure by whatever means at their disposal
that remittance for value on the relevant Payment Date is made for
credit to the Pool Clearing Account not later than 12.30 hours.
20.5 Notification of non-payment: The Parties acknowledge and agree that if
a Pool Debtor becomes aware that a payment for which it is responsible
will not be remitted to the Pool Banker by 12.30 hours on the relevant
day, and where satisfactory arrangements, as referred to in
sub-section 20.3, have not been made, it shall immediately notify the
Pool Funds Administrator, giving all details available to that Pool
Debtor.
20.6 Payment default: If the Pool Funds Administrator determines at any
time after 12.30 hours on any day that a remittance which should have
been credited on that day to the Pool Clearing Account has not been
made (or that the credit has not been received) (in whole or in part)
and where satisfactory arrangements, as referred to in sub-section
20.3, have not been made, the provisions of Section 21 shall apply
mutatis mutandis.
20.7 Late payment: If, after the Pool Funds Administrator has either
debited the Pool Reserve Account or made a call under a Letter of
Credit, the Pool Banker receives the remittance which had not been
credited to the Pool Clearing Account by 12.30 hours, then such
remittance shall be credited to the Pool Reserve Account.
20.8 Payments to Pool Creditors: The Pool Funds Administrator shall, prior
to 14.30 hours on each day, calculate the amounts available for
distribution to Pool Creditors on that day (including amounts
resulting from the application of sub-section 20.6). Not later than
14.30 hours on that day the Pool Funds Administrator shall give
instructions to the Pool
<PAGE>
Banker, which it undertakes not to qualify, withdraw or revoke, to
make same day value remittances to the Pool Creditors.
20.9 Construction: Where the provisions of this Section 20 apply references
in Sections 5 and 18 and sub-section 21.1 to "Settlement Bank" and
"Collection Account" shall be construed as references to "bank" and
"Pool Clearing Account" respectively.
21. PAYMENT DEFAULT
21.1 Payment default: Subject to sub-section 21.12, if, by 12.30 hours on a
Payment Date, the Pool Funds Administrator has been notified by a
Settlement Bank or it otherwise has reason to believe that a
Settlement Bank will not remit to the Pool Clearing Account all or any
part (the "Amount in Default") of any amount which has been notified
by the Pool Funds Administrator as being payable by a Pool Debtor (the
"Non-paying Pool Debtor") on the relevant Payment Date in sufficient
time to ensure that such amount can be cleared through the Pool
Clearing Account not later than the close of banking business on such
Payment Date, the Pool Funds Administrator shall act in accordance
with the following provisions (or whichever of them shall apply) in
the order in which they appear until the Pool Funds Administrator is
satisfied that the Pool Clearing Account will clear not later than the
close of business on the relevant Payment Date:-
21.1.1 if the Pool Funds Administrator has been able to identify
the Non-paying Pool Debtor in sufficient time to apply this
paragraph 21.1.1 and to the extent that the Non-paying Pool
Debtor is entitled to receive payment from any Pool Debtor
pursuant to this Schedule on the relevant Payment Date, then
the Pool Funds Administrator shall (unless it reasonably
believes that such set-off shall be unlawful) set off the
amount of such entitlement against the Amount in Default;
21.1.2 if the Pool Funds Administrator has been able to identify
the Non-paying Pool Debtor in sufficient time to apply this
paragraph 21.1.2, the Pool Funds Administrator shall debit
the Pool Reserve Account and credit the Pool Clearing
Account with a sum not exceeding the amount of funds
standing to the credit of the Non-paying Pool Debtor in the
Pool Reserve Account;
21.1.3 subject to sub-section 21.2, the Pool Funds Administrator
shall debit the Pool Reserve Account and credit the Pool
Clearing Account with a sum not exceeding the amount of
funds then standing to the credit of the Pool Reserve
Account to the extent that they represent Security Cover
provided in accordance with paragraph 15.1.2, the transfer
of such amount as is not attributable to the funds standing
to the credit of the Non-paying Pool Debtor being deemed to
give rise to a series of loans to the Non-paying Pool Debtor
by each Providing Member and the Grid Operator rateably
according to its share of the funds standing to the credit
of the Pool Reserve Account to the extent
<PAGE>
that they represent Security Cover provided in accordance
with paragraph 15.1.2, at the time immediately prior to the
transfer, such loans to be repayable on demand and to carry
interest at the Base Rate (or at such other rate as shall be
set from time to time by the Executive Committee) and in any
case repayable not later than two Business Days after they
arise after which, to the extent that any such loans remain
outstanding, such loans shall carry interest at the Default
Interest Rate (which interest shall be credited to the Pool
Ledger Account of the relevant Providing Member and (where
applicable) the Grid Operator). Each Providing Member and
the Grid Operator hereby irrevocably authorises the Pool
Funds Administrator to advance, collect in and enforce
payment of such loans for its account and on its behalf and
each Pool Member and the Grid Operator hereby irrevocably
consents to the making of such loans to the extent that such
Pool Member or (as the case may be) the Grid Operator has a
share in the Pool Reserve Account;
21.1.4 if the Pool Funds Administrator has been able to identify
the Non-paying Pool Debtor in sufficient time to apply this
paragraph 21.1.4 and provided that the Pool Funds
Administrator is satisfied that the proceeds of a call under
the Letter of Credit will be paid into the Pool Clearing
Account in sufficient time to ensure that it will clear not
later than the close of business on the relevant Payment
Date, the Pool Funds Administrator shall make a call under
the Letter of Credit supplied by the Non-paying Pool Debtor
in a sum not exceeding the available amount of such Letter
of Credit, and the Pool Funds Administrator shall cause the
proceeds of such call to be paid into the Pool Clearing
Account;
21.1.5 subject to sub-section 21.2 and provided that the Pool Funds
Administrator is satisfied that the proceeds of a call under
a Letter of Credit will be paid into the Pool Clearing
Account in sufficient time to ensure that it will clear not
later than the close of business on the relevant Payment
Date, the Pool Funds Administrator shall make a call under
one or more Letters of Credit supplied by Pool Members or
the Grid Operator (other than the Non-paying Pool Debtor) in
a total sum not exceeding the total available amount of all
such Letters of Credit to the extent that such amount
represents Security Cover provided in accordance with
paragraph 15.1.2, and the Pool Funds Administrator shall
cause the proceeds of such call or calls to be paid into the
Pool Clearing Account. The transfer of such proceeds into
the Pool Clearing Account shall be deemed to give rise to a
series of loans to the Non-paying Pool Debtor by each
Providing Member or the Grid Operator whose Letter of Credit
was called rateably according to the amounts called under
their respective Letter of Credit, such loans to be
repayable on demand and to carry interest at the Base Rate
(or at such other rate as shall be set from time to time by
the Executive Committee) and in any case repayable not later
than two Business Days after they arise after which, to the
extent that any such loans remain outstanding, such loans
shall carry interest at the Default Interest Rate (which
interest shall
<PAGE>
be credited to the Pool Ledger Account of the relevant
Providing Member and (where applicable) the Grid Operator).
Each Providing Member and the Grid Operator hereby
irrevocably authorises the Pool Funds Administrator to
advance, collect in and enforce payment of such loans for
its account and on its behalf and each Pool Member and the
Grid Operator hereby irrevocably consents to the making of
such loans to the extent that such Pool Member or (as the
case may be) the Grid Operator has a share in the Pool
Reserve Account; and
21.1.6 if and to the extent that, notwithstanding application of
the foregoing measures, it is not possible to clear the Pool
Clearing Account by any of the foregoing means, the Pool
Funds Administrator shall reduce payments to all Pool
Creditors in proportion to the amounts payable to them on
the relevant Payment Date by an aggregate amount equal to
the amount necessary to clear the Pool Clearing Account and
shall account for such reduction in the Pool Ledger Accounts
as amounts due and owing by the Non-paying Pool Debtor to
each Pool Creditor whose payments were reduced.
21.2 Amount in default likely to be remedied: The Pool Funds Administrator
shall not apply paragraph 21.1.3 or 21.1.5 unless it considers in good
faith that the Amount in Default is likely to be remedied by the
Non-paying Pool Debtor no later than the next Business Day and in such
a case the Pool Funds Administrator shall only apply paragraphs 21.1.2
and 21.1.4 to the extent of any amounts provided by way of Security
Cover pursuant to paragraph 15.1.2.
21.3 Loans part of Pool Reserve Assets: Any loans arising pursuant to
paragraph 21.1.3 or 21.1.5 shall be deemed to constitute part of the
Pool Reserve Assets and all repayments of such loans, together with
interest thereon, shall be paid into the Pool Reserve Account for the
account of each Providing Member or the Grid Operator who is deemed to
have made such loan.
21.4 Repayment of loans: If any loans to a Non-paying Pool Debtor arising
pursuant to paragraph 21.1.3 or 21.1.5 shall not have been repaid in
full (together with interest at the rate or rates specified therein)
by 12.00 hours on the next Business Day after such loan is deemed to
have arisen, the Pool Funds Administrator shall make a call under the
Letter of Credit (if any) which shall have been supplied by the
Non-paying Pool Debtor and which remains outstanding in an amount not
exceeding the amount necessary to repay such loans and all accrued
interest in full and, if the proceeds of any Letter of Credit are
insufficient to repay all outstanding loans to the relevant Non-paying
Pool Debtor, such proceeds shall be applied towards repayment of each
such outstanding loan rateably.
21.5 Reduction of payments to Pool Creditors: If, after the date that any
loans to a Non-paying Pool Debtor arise pursuant to paragraph 21.1.3
or 21.1.5, the Pool Funds
<PAGE>
Administrator shall reasonably be of the opinion that the Non-paying
Pool Debtor will not repay forthwith all of such loans and all accrued
interest in full or the loans have not been repaid with all interest
within two Business Days after they arose (whichever occurs first),
the Pool Funds Administrator shall reduce payments to all Pool
Creditors in proportion to the amounts payable to them on the Payment
Date to which the default relates and any succeeding Payment Dates as
may be required by an aggregate amount necessary to restore the
balance in the Pool Reserve Account to the sum for the time being
required under this Schedule to be deposited by the Pool Members and
the Grid Operator other than the Non-paying Pool Debtor, to the intent
that all loans arising under paragraphs 21.1.3 and 21.1.5 and
remaining undischarged after application of the Non-paying Pool
Debtor's Letter of Credit are discharged in full together with
interest thereon at the Base Rate (or at such rate as shall be set
from time to time by the Executive Committee).
21.6 Obligation to make calls: If and whenever the Pool Funds Administrator
has not applied the provisions of paragraph 21.1.4, and has reduced
payments to Pool Creditors in accordance with paragraph 21.1.6, it
shall, on the relevant Payment Date or so soon thereafter as the
Non-paying Pool Debtor has been identified (but, in any event, not
later than the close of business on the Business Day following such
Payment Date) make a call under the Letter of Credit supplied by the
Non-paying Pool Debtor in a sum sufficient to cover the reduction made
under paragraph 21.1.6 (but not exceeding the available amount of all
such Letters of Credit) and the Pool Funds Administrator shall cause
the proceeds of such call to be paid forthwith into the Pool Reserve
Account. On the next Business Day following receipt of such proceeds,
the Pool Funds Administrator shall pay such amounts as have been
credited to the Pool Reserve Account to the Pool Creditors whose
payments were reduced in full or (as the case may be) in proportion to
their respective entitlements including interest on such amounts at
the Base Rate (or at such rate as shall be set from time to time by
the Executive Committee). 21.7 Indemnification by Non-paying Pool
Debtor:
21.7.1 The Non-paying Pool Debtor shall indemnify and keep indemnified each
Pool Member and the Grid Operator whose Letter of Credit is called
under paragraph 21.1.5 and/or who is deemed to have made loans under
paragraph 21.1.3 or 21.1.5 on demand against all costs, expenses and
losses (including the costs of management time) suffered or incurred
by such Pool Member or (as the case may be) the Grid Operator arising
from its Letter of Credit being so called (including the costs of
reinstating the same) or such loans being deemed to have been made to
the extent that such Pool Member or (as the case may be) the Grid
Operator is not compensated under this Section 21. This indemnity
shall be in addition to and without prejudice to the liability of the
Non-paying Pool Debtor to repay the loan, together with accrued
interest, which arises pursuant to paragraph 21.1.5.
<PAGE>
21.7.2 The Pool Creditors, in proportion to the amounts payable to
them on the Payment Date to which a default relates in
respect of which the Pool Funds Administrator has operated
sub-section 21.5, and any succeeding Payment Dates as may be
required, shall indemnify and keep indemnified each Pool
Member as is referred to in paragraph 21.7.1 and the Grid
Operator to the extent of any failure by the Non-paying Pool
Debtor to fulfil its obligations under paragraph 21.7.1.
21.8 Notification to Pool Creditors: The Pool Funds Administrator shall use
all reasonable endeavours promptly to notify the relevant Pool
Creditors whenever it makes any such reduction as is referred to in
paragraph 21.1.6.
21.9 Default Interest: Save as otherwise provided in this Agreement
(including where an express rate of interest is provided), if any
amount payable by any Pool Debtor pursuant to this Schedule is not
given value for the due date by close of banking business on the due
date the Pool Debtor shall on written demand by the Pool Funds
Administrator pay to the Pool Funds Administrator, for the account of
the person or persons entitled to receive the Amount in Default,
interest on such amount from the due date up to the day of actual
receipt by the Pool Funds Administrator (after as well as before
judgment) at the Default Interest Rate.
21.10 Application of payments: Any amount received by the Pool Funds
Administrator from a Non-paying Pool Debtor for the credit of any Pool
Account shall be applied by the Pool Funds Administrator in or towards
payment of amounts payable by the Non-paying Pool Debtor to Pool
Creditors on each successive Payment Date in respect of which there is
an outstanding default (with the longest outstanding default being
settled first).
21.11 Clearing of Pool Clearing Account: All amounts standing to the credit
of the Pool Clearing Account at the close of business on any Payment
Date shall be transferred to the Pool Reserve Account so that the
balance in the Pool Clearing Account shall at the end of such day be
nil.
21.12 Credit Facility: If and for so long as the Credit Facility remains
unconditionally available, the provisions of this Section 21 shall
apply with the modifications provided by Section 25.
22. CONFIRMATION NOTICES IN RESPECT OF A PAYMENT DATE
22.1 Despatch of Confirmation Notices: Within two Business Days after each
Payment Date the Pool Funds Administrator shall issue a Confirmation
Notice to each Pool Member, the Ancillary Services Provider and the
Grid Operator in respect of the corresponding Payment Date setting out
the information required in sub-sections 22.2, 22.3 and 22.4.
<PAGE>
22.2 Information - taking of electricity: The information required on a
Confirmation Notice in respect of each Pool Member taking electricity
on each Settlement Day is as follows:-
22.2.1 the Pool Member's identification;
22.2.2 the Pool Member's name;
22.2.3 the total amount (inclusive of United Kingdom Value Added
Tax) received in the Pool Clearing Account on the relevant
Payment Date by the Pool Funds Administrator in respect of
electricity taken by such Pool Member during the Settlement
Day and Ancillary Services attributable thereto;
22.2.4 the amount received in the Pool Clearing Account on the
relevant Payment Date by the Pool Funds Administrator in
respect of electricity taken by such Pool Member during the
Settlement Day and Ancillary Services attributable thereto,
exclusive of United Kingdom Value Added Tax; and
22.2.5 the amount of United Kingdom Value Added Tax received in the
Pool Clearing Account on the Payment Day by the Pool Funds
Administrator in respect of electricity taken by such Pool
Member during the Settlement Day and Ancillary Services
attributable thereto and the applicable rate at which such
Value Added Tax is calculated.
22.3 Information - supplies of electricity: The information required on a
Confirmation Notice in respect of each Pool Member supplying
electricity on each Settlement Day shall include:-
22.3.1 the Pool Member's identification;
22.3.2 the Pool Member's name;
22.3.3 the Settlement Run or (as the case may be) Timetabled
Reconciliation Run identification number;
22.3.4 the total amount (inclusive of United Kingdom Value Added
Tax) paid out of the Pool Clearing Account on the relevant
Payment Date by the Pool Funds Administrator in respect of
electricity supplied by such Pool Member during the
Settlement Day;
22.3.5 the amount paid out and the date on which such amount is
paid out of the Pool Clearing Account on the relevant
Payment Date by the Pool Funds Administrator in respect of
electricity supplied by such Pool Member during the
Settlement Day exclusive of United Kingdom Value Added Tax;
and
<PAGE>
22.3.6 the amount of United Kingdom Value Added Tax paid out of the
Pool Clearing Account on the relevant Payment Date by the
Pool Funds Administrator in respect of electricity supplied
by such Pool Member during the Settlement Day.
22.4 Information - Ancillary Services Provider and Grid Operator: The
information required on a Confirmation Notice in respect of the
Ancillary Services Provider and the Grid Operator is as follows:-
22.4.1 the total amount receivable by the Ancillary Services
Provider for the provision of Ancillary Services and the
total amount payable by the Grid Operator in relation to
Transport Uplift (in each case exclusive of United Kingdom
Value Added Tax) during the Settlement Day;
22.4.2 the total amount receivable by the Ancillary Services
Provider for the provision of Ancillary Services and the
total amount payable by the Grid Operator in relation to
Transport Uplift (in each case inclusive of United Kingdom
Value Added Tax) during the Settlement Day; and
22.4.3 the total amount of United Kingdom Value Added Tax
receivable by the Ancillary Services Provider for the
provision of Ancillary Services and the total amount payable
by the Grid Operator in relation to Transport Uplift during
the Settlement Day.
22.5 Interest: Where interest has been paid to any Pool Member, the
Ancillary Services Provider or the Grid Operator, the Pool Funds
Administrator shall promptly after such payment provide to each Pool
Member, the Ancillary Services Provider or the Grid Operator (as the
case may be) a statement showing the amount of interest paid or
received, the rate of interest applicable thereto and the amount (if
any) of tax withheld. If applicable, the Pool Funds Administrator
shall provide to the relevant Pool Member, the Ancillary Services
Provider or the Grid Operator an appropriate tax deduction certificate
in respect of any withholding tax.
23. PAYMENT ERRORS
23.1 Overpayments: If for any reason whatsoever (including the negligence
of the Pool Banker or the Pool Funds Administrator) a Pool Creditor
receives on any Payment Date a payment in excess of the amount
disclosed in the Pool Ledger Account as calculated as being payable to
it (an "overpayment") (including the proceeds of any loan made or
deemed to be made in accordance with Section 21 or Section 25 to any
Non-paying Pool Debtor which becomes insolvent before such advance is
repaid) the provisions of sub-section 5.15 apply, and the Pool
Creditor shall forthwith notify the Pool Funds Administrator of the
amount of the overpayment and shall forthwith pay the overpayment as
directed by the Pool Funds Administrator.
<PAGE>
23.2 Repayment of overpayment:
23.2.1 If prior to a Pool Creditor notifying the Pool Funds
Administrator of the overpayment, the Pool Funds
Administrator receives notice (from the Pool Banker or
otherwise) of the overpayment, the Pool Funds Administrator
shall forthwith require (by written notice) that the
recipient of the overpayment pay the overpayment as directed
by the Pool Funds Administrator and any Pool Creditor who
receives such notice shall forthwith pay the amount to an
account specified by the Pool Funds Administrator.
23.2.2 If the overpayment is repaid within two Business Days of
receiving the notice, the overpayment (or any part not paid)
shall bear interest at the Base Rate or at such other rate
as shall be set from time to time by the Executive Committee
from the date the overpayment was received up to the date
that it is repaid in full to the person entitled thereto
(after as well as before judgment).
23.2.3 Any overpayment (or part thereof) not repaid within two
Business Days after demand therefor in accordance with this
Section 23 shall bear interest at the Default Interest Rate
from the expiry of that period and shall be recoverable in
accordance with Section 24.
23.2.4 The Pool Funds Administrator shall account to those entitled
to payment by reason of an overpayment.
23.3 [Not used.]
23.4 Underpayments:
23.4.1 If for any reason whatsoever (including the negligence of
the Pool Banker or the Pool Funds Administrator) a Pool
Creditor does not receive on the relevant Payment Date the
full amount disclosed as owing to it pursuant to the Pool
Ledger Account (an "underpayment") that Pool Creditor shall
forthwith notify the Pool Funds Administrator of the amount
of the underpayment, and the Pool Funds Administrator after
consultation with the Pool Banker shall use all reasonable
endeavours to identify such person as shall have received
any corresponding overpayment and promptly to correct the
underpayment.
23.4.2 If, by reason of negligence, the Pool Funds Administrator
holds or has under its control amounts which it ought
properly to have paid to Pool Members, the Ancillary
Services Provider or the Grid Operator, such Pool Members,
the Ancillary Services Provider or the Grid Operator shall
be entitled to interest on such amounts at the Default
Interest Rate and for such period as the Pool Funds
Administrator improperly holds or has such amounts under its
control.
<PAGE>
24. ENFORCEMENT OF CLAIMS
24.1 Notification of amount in default: Without prejudice to the provisions
of Section 21, if a Pool Member or the Grid Operator shall fail to pay
any amount payable pursuant to this Schedule on the due date, the Pool
Funds Administrator shall notify the Director, the Executive Committee
and each Pool Creditor to whom the amount in default is owed pursuant
to this Schedule of the name of the Non-paying Pool Debtor, the
aggregate Amount in Default and the amount owed to each Pool Creditor.
24.2 Duties of Pool Funds Administrator: Except as otherwise expressly
provided in this Schedule, the Pool Funds Administrator shall not be
required to ascertain or enquire as to the performance or observance
by any Pool Member, the Ancillary Services Provider or the Grid
Operator of its obligations under this Agreement and shall have no
duty to inform the Executive Committee or any Pool Member, the
Ancillary Services Provider or the Grid Operator of any default, other
than a failure to pay as may come to its attention.
24.3 Notice before action: Each Pool Creditor shall give notice to the Pool
Funds Administrator before instituting any action or proceedings in
any court to enforce payments due to it pursuant to this Schedule.
Upon receipt of any notice under this sub-section 24.3, the Pool Funds
Administrator will as soon as practicable notify the Executive
Committee, all Pool Members, the Settlement System Administrator, the
Ancillary Services Provider, the Grid Operator and the Director.
24.4 Proceedings to Recover Overdue Amounts: Without prejudice to the right
of any Pool Member or the Grid Operator to bring such proceedings as
it sees fit in connection with matters related to this Agreement, the
Pool Funds Administrator shall, if instructed to do so by the
Executive Committee, bring proceedings against a Pool Member or the
Grid Operator (on behalf of those Pool Members and/or (as the case may
be) the Grid Operator who have (has) indicated their (its) willingness
to the Executive Committee for the Pool Funds Administrator first so
to act) for the recovery of any amounts due by that Pool Member or (as
the case may be) the Grid Operator pursuant to this Schedule so long
as the Pool Funds Administrator has first reached agreement with the
Executive Committee, those Pool Members and/or (as the case may be)
the Grid Operator as to appropriate remuneration, is indemnified to
its reasonable satisfaction or, if it so requires, provided that it
shall have received such security as it may reasonably request against
all costs, claims, expenses (including legal fees) and liabilities
which it will or may sustain or incur in complying with such
instructions. Save as provided in the foregoing provisions of this
sub-section 24.4, the Pool Funds Administrator shall not be obliged to
bring any such proceedings.
25. CREDIT FACILITY: PAYMENT DEFAULTS
25.1 Purpose of Credit Facility: It is acknowledged that the Credit
Facility provides an alternative to the Security Cover referred to in
paragraph 15.1.2 and the Pool Funds
<PAGE>
Administrator will use the Credit Facility to cover banking error and
payment error and to minimise reductions of payments to Pool Creditors
unless it considers in good faith that an Amount in Default is not
likely to be remedied by the Non-paying Pool Debtor no later than the
next Business Day.
25.2 Modification of other provisions of this Schedule: If and so long as
the Credit Facility is unconditionally available to the Pool Funds
Administrator (whether or not there remains any amount undrawn),
paragraphs 15.1.2, 21.1.3 and 21.1.5 shall be of no effect and the
remaining provisions of this Schedule shall be implemented on the
basis that the following sub-sections apply.
25.3 Payment default: The Pool Funds Administrator shall operate the Credit
Facility on the following basis:-
25.3.1 the Credit Facility may be drawn down by the Pool Funds
Administrator if, by 12.30 hours on any Payment Date, there
is an Amount in Default unless the Pool Funds Administrator
considers in good faith that the Amount in Default is not
likely to be remedied by the Non-paying Pool Debtor no later
than the next Business Day;
25.3.2 if paragraph 25.3.1 applies such that the Credit Facility
may be drawn down, the Pool Funds Administrator will first
act in accordance with paragraph 21.1.1, will then draw on
the Credit Facility for an amount not exceeding the
available amount under the Credit Facility (after allowing
for any repayment to be made to the Facility Bank under
sub-section 25.6) and, if it is not possible to clear the
Pool Clearing Account by either or both of those means, it
will then act in accordance with paragraph 21.1.6; and
25.3.3 if paragraph 25.3.1 does not apply, then the Pool Funds
Administrator will act in accordance first with paragraph
21.1.1, then with paragraph 21.1.2, then with paragraph
21.1.4 and only then with paragraph 21.1.6.
25.4 Amounts in default: Each Non-paying Pool Debtor will be responsible in
relation to any Amount in Default in accordance with the following
paragraphs:-
25.4.1 each Non-paying Pool Debtor will be responsible for the
repayment of all amounts of principal drawn down under the
Credit Facility in respect of any Amount in Default relating
to that Pool Debtor as if the Pool Funds Administrator had
made a loan to such Pool Debtor of the relevant amount and
the amounts so payable are to be paid to, or otherwise made
available for credit to, the Pool Clearing Account as soon
as possible, but in any event no later than two Business
Days after the relevant Payment Date;
<PAGE>
25.4.2 each Non-paying Pool Debtor will be responsible also for
interest (determined in accordance with paragraph 25.4.4) on
all amounts of principal drawn down under the Credit
Facility in respect of any Amount in Default relating to
that Pool Debtor as if the Pool Funds Administrator had made
a loan to such Pool Debtor of the relevant amount and the
amount so payable by way of interest is to be paid to, or
otherwise made available for credit to, the Pool Clearing
Account by no later than the day notified by the Pool Funds
Administrator to such Pool Debtor for payment thereof (being
the date which is 2 Business Days prior to the date on which
interest is payable under the Credit Facility by the Pool
Funds Administrator to the Facility Bank for the month in
which the principal amount in question was outstanding);
25.4.3 each Non-paying Pool Debtor will further be responsible for
its proportionate share (determined in accordance with
paragraph 25.4.5) of any additional sum payable to the
Facility Bank pursuant to the terms of the Credit Facility
as if the Pool Funds Administrator had made a loan to such
Pool Debtor of the relevant amount and the amount so payable
is to be paid to, or otherwise made available for credit to,
the Pool Clearing Account forthwith on notification thereof
by the Pool Funds Administrator to the Pool Debtor in
question;
25.4.4 for the purposes of paragraph 25.4.2, interest is to be
calculated using the effective daily rate of interest
reasonably determined by the Pool Funds Administrator on the
basis of the aggregate interest (including any compound
interest) payable under the Credit Facility in relation to
any particular day; and
25.4.5 for the purposes of paragraph 25.4.3, the proportionate
share for a particular Non-paying Pool Debtor is the amount
(if any) which the Pool Funds Administrator reasonably
determines (after consultation with the Facility Bank) as
being the amount of any additional sum payable in accordance
with the terms of the Credit Facility attributable to
drawings under the Credit Facility made in respect of that
Pool Debtor.
25.5 Application of payments: On the Relevant Date the Pool Funds
Administrator shall, if the amount in question has not been received
in full from the Non-paying Pool Debtor:-
25.5.1 first debit the Pool Reserve Account and credit the Pool
Clearing Account with a sum not exceeding the amount of
funds (if any) standing to the credit of the Non-paying Pool
Debtor in the Pool Reserve Account;
25.5.2 if that sum is insufficient to repay in full the amount in
question, the Pool Funds Administrator shall call the Letter
of Credit (if any) provided by the Non-paying Pool Debtor
(for an amount not exceeding the available amount) and pay
or cause the proceeds thereof to be paid into the Pool
Clearing Account; and
<PAGE>
25.5.3 if the amount credited to the Pool Clearing Account after
following the foregoing procedure is insufficient, reduce
payments to all Pool Creditors in proportion to the amounts
payable to them on the Payment Date to which the default
relates,
so that, in any case, the Pool Funds Administrator has available to it
on the Pool Clearing Account sufficient funds to comply with
sub-section 25.6. For the purposes of this paragraph, the "Relevant
Date" is whichever of the following is applicable:-
(a) in relation to any principal amount for which a Non-paying
Pool Debtor is responsible under paragraph 25.4.1, the last
date specified for payment under paragraph 25.4.1;
(b) in relation to any principal amount as referred to in
sub-paragraph (a), the first date (if earlier than the date
referred to in sub-paragraph (a)) on which the Pool Funds
Administrator is reasonably of the opinion that the
Non-paying Pool Debtor will not repay forthwith all of the
amounts of principal in question;
(c) in relation to payment of interest under paragraph 25.4.2,
the last date for payment thereof; and
(d) in relation to an additional amount under paragraph 25.4.3
the last date for payment of this amount.
25.6 Payments to Facility Bank: To the extent of any payment by the
Non-paying Pool Debtor and/or if any of the circumstances described in
sub-section 25.5 occur, the Pool Funds Administrator will forthwith
repay to the Facility Bank by credit to the Pool Borrowing Account, if
applicable, an amount equal, in the former case, to the amount so paid
and, in the latter case, to the amount which should have been paid by
the Non-paying Pool Debtor.
25.7 Reduction in payments to Pool Creditors: A reduction in payments as
contemplated by paragraph 25.5.3 will also apply in the event of any
amounts drawn down under the Credit Facility being required to be
repaid in accordance with the terms of the Credit Facility and the
Pool Funds Administrator shall account for such reduction in the Pool
Ledger Accounts as amounts due and owing by the Non-paying Pool Debtor
to each Pool Creditor whose payments were reduced.
25.8 Enforcement of claims and other provisions: Sub-sections 21.7, 21.8,
21.9, 21.10 and Section 24 shall have effect in relation to amounts
due from a Non-paying Pool Debtor which arise under the foregoing
sub-sections.
25.9 Unavailability of Credit Facility: If at any time the Credit Facility
ceases to be unconditionally available and paragraph 15.1.2 shall
thereupon have become effective,
<PAGE>
the whole or any part of the Security Cover thereby required to be
provided by each Providing Member or the Grid Operator may be provided
by a credit to the Pool Reserve Account, unless otherwise determined
by the Executive Committee. The Executive Committee shall from time to
time assess (in consultation with the Pool Funds Administrator) and
determine the amount of Security Cover which would be required
pursuant to paragraph 15.1.2 as if that paragraph were in effect and
such assessment and determination shall apply for the purposes of
paragraph 16.2.2 if paragraph 15.1.2 becomes applicable, pending any
revised assessment by the Executive Committee.
25.10 Interpretation: Terms and expressions used in this Section 25 shall,
unless the context otherwise requires, have the same meanings as are
given to them for the purposes of Section 21.
26. CREDIT FACILITY: GENERAL
26.1 Notifications to the Executive Committee: The Pool Funds Administrator
shall notify the Executive Committee forthwith:-
26.1.1 on it becoming aware of any circumstances which might lead
to an event under the Credit Facility as a result of which
the Credit Facility might cease to be available; and
26.1.2 upon receipt of a written demand from the Facility Bank
pursuant to the terms of the Credit Facility as a result of
which the Facility ceases to be available; and
26.1.3 in the event that the Facility Bank requires any additional
amount to be paid under the Credit Facility by reason of any
increased costs to the Facility Bank or any changes in
circumstances.
26.2 Notifications to Providing Members and the Grid Operator: The Pool
Funds Administrator shall notify the Providing Members and the Grid
Operator as soon as reasonably practicable after receipt by it of a
notice from the Facility Bank that an additional amount will or may be
payable by the Pool Funds Administrator to the Facility Bank under the
terms of the Credit Facility.
26.3 Amendment and Cancellation:
26.3.1 The Pool Funds Administrator shall not:-
(a) amend or supplement, or agree to any amendment or
supplement to, the terms of the Credit Facility
without the approval of the Executive Committee;
or
<PAGE>
(b) cancel the Credit Facility unless either the
approval of the Executive Committee has been
obtained or paragraph 26.3.2 applies.
26.3.2 The Pool Funds Administrator shall cancel the Credit
Facility in full at any time if a resolution to that effect
is passed (on a simple majority vote) by the Providing
Members in separate general meeting and the Grid Operator
consents or if all Providing Members and the Grid Operator
have requested such cancellation.
26.4 Extension and Renewal: The Pool Funds Administrator shall negotiate
with the Facility Bank an extension or renewal of the Credit Facility
on the instructions of the Executive Committee and, in the absence of
such instructions, shall begin negotiations with the Facility Bank no
later than ten weeks before the Credit Facility is due to terminate in
accordance with its terms, with a view to the extension or renewal of
the Credit Facility on substantially the same terms for a further year
and, in any event, to keep the Executive Committee informed on a
timely basis of the progress of any such negotiations. The Pool Funds
Administrator shall, however, act only with the approval and consent
of the Executive Committee in agreeing any extension or renewal of the
Credit Facility and the Executive Committee shall be responsible for
deciding whether or not to renew or extend the Credit Facility and, if
so, on what terms and for what period.
26.5 Fees not attributable to a particular Providing Member or the Grid
Operator: Any fees (and any additional amounts payable under the terms
of the Credit Facility which are not the responsibility of any
particular Providing Member or the Grid Operator) charged under the
Credit Facility to the Pool Funds Administrator shall be recharged to
the Providing Members, in accordance with their respective Providing
Member Contributory Shares (to be calculated on the basis of those
current on the date on which the relevant fee (or the relevant portion
thereof) or additional amount is payable by the Pool Funds
Administrator under the Credit Facility and having deducted the
relevant Credit Facility Contribution).
26.6 Fees attributable to the Grid Operator: The Grid Operator shall, from
the date on which it first becomes a Pool Debtor and for the period
thereafter during which the Credit Facility is in place, pay each year
to the Pool Funds Administrator the Credit Facility Contribution on a
date agreed from time to time by the Grid Operator and the Pool Funds
Administrator (and, failing such agreement, on 31st January in each
year). If the Credit Facility is available for part of a year only,
the Credit Facility Contribution shall be adjusted accordingly on a
pro rata basis.
26.7 No additional charge: The Pool Funds Administrator shall not make any
additional charge for arranging, participating in or administering the
Credit Facility.
<PAGE>
ANNEX 1
Form of Advice Note
ADVICE NOTE
Energy Pool Funds Administration Ltd
Room 301
185 Park Street
London
SE1 9DY
Telephone (0171) 620 9789
Fax No (0171) 401 2799 Date
Name [GENERATOR X] [SUPPLIER X]
Address Advice Note
Payment Date
Page of
Fax No
THIS IS NOT A TAX INVOICE
Advice Note issued in accordance with Pooling & Settlement Agreement for the
Electricity Industry in England and Wales dated 30th March 1990 as amended,
varied or supplemented from time to time.
- --------------------------------------------------------------------------------
Settlement Sett Description Amount Total Inc Vat
Date Code
- --------------------------------------------------------------------------------
[Amount Receivable]
[Amount Payable]
- --------------------------------------------------------------------------------
Total Amount [Receivable] [Payable]
-------------------------
DO NOT NET YOUR PAYABLES TO YOUR RECEIVABLES
A wholly owned subsidiary of The National Grid Company plc. Regd. in England
No 2444187 VAT No 547 8630 11
<PAGE>
ANNEX 2
Form of Confirmation Notice
CONFIRMATION NOTICE
Energy Pool Funds Administration Ltd.
185 Park Street
London
Room 301
SE1 9DY
Telephone (0171) 620 9789
Fax No (0171) 401 2799 Date
Name [GENERATOR X] [SUPPLIER X]
Address Confirmation No
Advice Note
Payment Date
Fax No Page of
THIS IS NOT A TAX INVOICE
[THE TAX SHOWN IS YOUR OUTPUT TAX DUE TO CUSTOMS AND EXCISE]
[GENERATOR CONFIRMATION NOTICE ONLY]
Confirmation Notice issued in accordance with Pooling & Settlement Agreement for
the Electricity Industry in England and Wales dated 30th March 1990 as amended,
varied or supplemented from time to time.
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------
Settlement Sett Description Amount Exc Vat Vat Rate Vat Amount Total Inc Vat
Date Code
- ------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
[Amount Received]
[Amount Paid]
- ------------------------------------------------------------------------------------------------
Total Amount [Received] [Paid]
----------------
A wholly owned subsidiary of The National Grid Company plc. Regd. in England
No 2444187 VAT No 547 8630 11
</TABLE>
<PAGE>
ANNEX 3
Part 1
Form of Settlement Account Designation
To: Energy Pool Funds Administration Limited
as Pool Funds Administrator
Date:
Settlement Account Designation
1. [Insert name of Pool Member/Ancillary Service Provider/Grid Operator]
hereby designates the following account as its Settlement Account to
which you are instructed to remit all amounts which are payable to us
through the Pool Clearing Account in accordance with Schedule 11 to
the Pooling and Settlement Agreement for the Electricity Industry in
England and Wales dated 30th March, 1990, as amended, varied or
supplemented from time to time (the "Agreement").
Name of Bank Branch Address Sorting Code Name of Account Account No.
- ------------ -------------- ------------ --------------- -----------
2. We hereby designate the following account as our Settlement Account
from which all payments due from us in accordance with Schedule 11 to
the Agreement will be remitted.
Name of Bank Branch Address Sorting Code Name of Account Account No.
- ------------ -------------- ------------ --------------- -----------
Signed by .....................................
Position ......................................
For and on behalf of
[Name of Pool Member/Ancillary Services Provider/Grid Operator]
<PAGE>
ANNEX 3
Part 2
Form of Change of Settlement Account
To: Energy Pool Funds Administration Limited
as Pool Funds Administrator
In accordance with sub-section 4.6 of Schedule 11 to the Pooling and Settlement
Agreement [insert name] hereby gives you notice that, with effect from [insert
date] (or 10 Business Days after you receive this notice, whichever is later),
our new Settlement Account [from which payments due from the undersigned/to
which payments due to the undersigned]* will be paid shall be:-
Name of Bank Branch Address Sorting Code Name of Account Account No.
- ------------ -------------- ------------ --------------- -----------
Yours sincerely,
[ ]
for and on behalf of
[Name of Pool Member/Ancillary Services Provider/Grid Operator]
- --------------------------------------------------------------------------------
*Please complete as appropriate
<PAGE>
ANNEX 4
Form of Letter of Credit
To: Energy Pool Funds Administration Limited
as Pool Funds Administrator
At the request of [Providing Member] [the Grid Operator] we have opened in your
favour our irrevocable Letter of Credit Number ( ) for (pound)[ ] (amount in
words).
This Letter of Credit is available against your sight drafts accompanied by a
signed statement either that the applicant has failed to pay to you the amount
you are claiming under the terms of the Pooling and Settlement Agreement for the
electricity industry in England and Wales dated 30th March, 1990 (as amended)
(the "Agreement") or that the claim is being made under sub-section 15.5 or
Section 21 of Schedule 11 to the Agreement. Payments under this Letter of Credit
shall be effected immediately to [insert relevant account details].
Partial drawings are allowed hereunder.
Claims under this Letter of Credit shall be made at the counters of [insert
details of the branch of the issuing bank].
This Letter of Credit expires on [ ].
We waive any right to set off against any amount payable hereunder any claims we
may have against you.
Any demand hereunder must comply with all the above requirements [and signatures
thereon must be confirmed by your Bankers].
This Letter of Credit is subject to Uniform customs and practice for Documentary
Credits (1993 Revision) International Chamber of Commerce.
We undertake that drafts and documents drawn under and in strict conformity with
the terms of this credit will be honoured upon presentation.
This Letter of Credit shall be governed by and construed in accordance with
English law.
For and on behalf of [ ] Bank [Plc].
<PAGE>
448
<TABLE>
<CAPTION>
SCHEDULE 12
Transitional Arrangements
Transitional Arrangement New Principle Date for Date for submission of
- ------------------------ ------------- implementation Works Programme
-------------- ----------------------
<S> <C> <C> <C> <C>
GOAL
----
(1) [Not used]
(2) [Not used]
(3) [Not used]
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
449
Transitional Arrangement New Principle Date for Date for submission of
- ------------------------ ------------- implementation Works Programme
-------------- ----------------------
<S> <C> <C> <C> <C>
(4) Ancillary Service costs (i) Review the arrangements Reactive Power: April Reactive Power: December
charged by NGC as a lump for the payment to 1994 1993
sum per day generators for ancillary
services. Where Other services: April Other services: December
appropriate, recommend 1996 1995
and, if agreed, implement
changes to the level of
aggregation by payment
type and by time period,
and the method of
calculating payment.
Review the requirement
for the Ancillary
Services Provider to
contract for particular
ancillary services.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
450
Transitional Arrangement New Principle Date for Date for submission of
implementation Works Programme
- ------------------------ ------------- -------------- ----------------------
<S> <C> <C> <C> <C>
(ii) Review the arrangements Reactive Power: April Reactive Power: December
for charging consumers 1995 1994
for ancillary services
and, in particular, Other services: April Other Services: December
whether individual 1996 1995
consumers can be charged
for the impact of their
demands on reactive power
requirements.
(5) Scheduling, Despatch and Review arrangements to cater for:
Settlement
No special treatment (i) energy constrained plant; January 1998 April 1996 (GOAL
Replacement Phase 2)
(ii) plant with cost structures January 1998 April 1996 (GOAL
that cannot adequately be Replacement Phase 2)
expressed as a Willans line
(6) [Not used]
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
451
Transitional Arrangement New Principle Date for Date for submission of
implementation Works Programme
- ------------------------ ------------- -------------- ----------------------
<S> <C> <C> <C> <C>
(7) Dynamic Parameters Treatment of changes in generator April 1998 April 1996
dynamic parameters during the day
(8) Offer Prices submitted Review frequency at which revised
daily offer prices can be used in
Scheduling, Despatch and Settlement
e.g.:
(i) submitted for each April 1997 August 1995
scheduling period (control
phase);
(ii) submitted at any time for April 1997 August 1995
opportunity trading on
despatch timescales
(9) Out-of-merit costs Review demand forecasts entered by
shared NGC into Settlement, based on
information supplied by customers,
against actual demand figures.
Review and, if agreed, implement
changes in the:
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
452
Transitional Arrangement New Principle Date for Date for submission of
implementation Works Programme
- ------------------------ ------------- -------------- ----------------------
<S> <C> <C> <C> <C>
(i) [Not used];
(ii) allocation of out-of-merit July 1995 July 1994
costs associated with
deviations from forecast;
and
(iii) incentives and penalties July 1995 July 1994
associated with demand
forecast accuracy
(10) Three stage settlement Introduction of additional October 1995 October 1994
process (unconstrained stage(s), in particular, the
schedule, despatch transmission constrained schedule,
and out-turn) to allow further disaggregation of
difference between unconstrained
schedule costs and out-turn costs.
(Could be a phased implementation)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
453
Transitional Arrangement New Principle Date for Date for submission of
implementation Works Programme
- ------------------------ ------------- -------------- ----------------------
<S> <C> <C> <C> <C>
(11) Sharing cost across all
demand for:
(A) Transmission constraints Cost of out-of-merit generation April 1995 October 1994
required only to support stability
of a local network to be charged to
the owner of such network
(B) Transmission losses Review and, if agreed, implement July 1996 October 1994
changes in the arrangements for
allocating the costs of transmission
losses on the supergrid, e.g. to
reflect:
(i) electrical location of
generation and demand;
and/or
(ii) contractual arrangements
between Generators,
Suppliers and NGC; and/or
(iii) incentives for investment in
supergrid facilities
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
454
Transitional Arrangement New Principle Date for Date for submission of
implementation Works Programme
- ------------------------ ------------- -------------- ----------------------
<S> <C> <C> <C> <C>
(12) Metering data collection (i) [Not used] December 1999 December 1997
by Settlement Day (0000
hours to 2400 hours) (ii) Review change
to collecting
metering data by
variable scheduling
day (see (13)(A))
and implement if agreed
(13) Schedule Day parameters
(A) Schedule Day start and Review the introduction of varying December 1999 December 1997
finish (0500 hours to length Schedule Days based upon the
0500 hours) shape of the demand curve or other
factors and implement if and as
agreed
(B) Settlement Period duration Review the use of shorter scheduling December 1999 December 1997
set at 0.5 hours periods and implement if agreed
</TABLE>
<PAGE>
SCHEDULE 13
Contributory Shares
1. CONTRIBUTORY SHARE
The Contributory Share of a Pool Member shall be calculated in accordance with
the following provisions of this Schedule.
2. POINTS
Subject as provided in Section 3, in respect of each month:-
2.1 each Pool Member which is a Generator shall receive in that capacity
one point (a "Point") for each MWh of Genset Metered Generation of all
Allocated Generating Units for all Settlement Periods falling in the
Calculation Period relative to such month; and
2.2 each Pool Member which is a Supplier shall receive in that capacity
such number of points (each a "Point") as is equal to the total MWh of
Aggregate Demand taken by that Pool Member in all Settlement Periods
falling in the Calculation Period relative to such month.
For the purposes of this Section 2:-
(A) a Generating Unit shall be an Allocated Generating Unit of a Pool
Member (in this Section, the "Identified Pool Member") if it belongs
to the Identified Pool Member as of the date on which the Executive
Committee calculates the Contributory Shares of Pool Members for the
relevant month pursuant to Section 6. If at any time during such month
an Allocated Generating Unit shall belong to another Pool Member (in
this Section, the "Transferee Pool Member"), the Contributory Shares
attributed to the Identified Pool Member for such month by reason of
the Allocated Generating Unit belonging to it shall be transferred to
the Transferee Pool Member as of the date on which such Allocated
Generating Unit first belongs to the Transferee Pool Member (and the
Identified Pool Member and the Transferee Pool Member shall jointly
notify the Executive Committee in writing of such date in good time
before its occurrence);
(B) a Generating Unit shall belong to a Pool Member if it is owned by that
Pool Member and not leased to another person or if it is leased by
that Pool Member from another person;
(C) a Pool Member shall notify the Executive Committee promptly on request
of its Allocated Generating Units and the Executive Committee and each
other Party may rely on the information in that notification and in
any notification under paragraph (A) above without further enquiry or
need to verify that information;
(D) in determining the meaning of "good time" for the purposes of
paragraph (A) above one factor to be taken into account is that the
Settlement System Administrator must be
<PAGE>
allowed sufficient time to effect the necessary changes in Settlement
associated with the transfer of the relevant Allocated Generating
Unit;
(E) the Executive Committee may, upon application of any Pool Member
involved in any transfer of assets between Pool Members during any
month, adjust as between the Pool Members involved in such transfer,
the number of Points to which they in their capacities as Suppliers
are entitled in respect of the remaining part of that month and/or one
or more succeeding months if, in the opinion of the Executive
Committee, such adjustment would help accommodate the consequences of
such a transfer and not prejudice the interests of any other Pool
Member in any material respect; and
(F) no adjustment made pursuant to the foregoing paragraphs shall be made
so as to affect the number of Points attributable to a Pool Member in
respect of a month until after the end of that month unless the
information which gives rise to the adjustment is available as at
close of business on the Business Day immediately before the
Calculation Date preceding that month.
3. NEW POOL MEMBERS
Until the Availability Date in respect of that Pool Member, any Party which is
admitted as a Pool Member pursuant to Clause 8.2 shall receive that number of
Points as is equal to one thousand times the number of Weighted Votes to which
such Pool Member would have been entitled under Clause 11.3.1(b) had:-
3.1 the provisions of Clause 11.3.3 been ignored; and
3.2 any applicable restrictions under Clause 11.4 been ignored,
as determined by the Executive Committee. Thereafter, such Pool Member's Points
shall be calculated in accordance with Section 2. Any allocation of Points
pursuant to this Section shall not be taken into account for the purpose of
Section 6 until the first Calculation Date following such Party's admission as a
Pool Member.
4. CALCULATION OF POINTS
4.1 The Executive Committee shall:-
4.1.1 on each Calculation Date, calculate for the Following Month
the number of Points which each Pool Member whose Points are
to be calculated in accordance with Section 2 shall receive;
4.1.2 on each Calculation Date, calculate for each of the previous
months (if any) in the then current Accounting Period the
adjusted number of Points attributable in respect of that
month to each Pool Member whose Points are to be calculated
in accordance with Section 2; and
4.1.3 on the Final Calculation Date, calculate for each month in
the relevant Accounting Period the adjusted number of Points
attributable in respect of that
<PAGE>
month to each Pool Member whose Points are to be calculated
in accordance with Section 2.
4.2 The calculations to be performed by the Executive Committee pursuant
to sub-section 4.1 shall be made on the basis of:-
4.2.1 information to be supplied by the Settlement System
Administrator in accordance with Service Line 10 (Service to
CEO and Pool Members) and by the Initial Settlement and
Reconciliation Agent pursuant to its Pool Agent Contract;
4.2.2 information provided pursuant to Section 2; and
4.2.3 the final runs of Stage 1 Settlement and Stage 2 Initial
Settlement Runs available, as at the close of business on
the Business Day immediately preceding the Calculation Date
or (as the case may be) Final Calculation Date, in respect
of the Settlement Periods in the Calculation Period relating
to the relevant month.
4.3 The Executive Committee shall notify each Pool Member and the Director
in writing of the number of Points received by or (as the case may be)
the adjusted number of Points attributed to, all Pool Members (whether
calculated in accordance with Section 2 or 3). The determination of
the Executive Committee as to the number of Points of each Pool Member
(whether initially or following any adjustment to be made in
accordance with this Schedule) shall (in the absence of manifest
error) be final and binding for all purposes of this Agreement.
5. CONTRIBUTORY SHARES
The Contributory Share of a Pool Member shall be calculated in accordance with
the following formula:-
CS = X + Y
where:-
A
X = -------
2 x B
C
Y = -------
2 x D
and where:-
CS = the Contributory Share of such Pool Member, expressed as a
percentage
A = the number of Points for the time being of such Pool Member in
its capacity as a Generator
<PAGE>
B = the number of Points for the time being of all Pool Members which
are Generators, in their capacity as such
C = the number of Points for the time being of such Pool Member in its
capacity as a Supplier
D = the number of Points for the time being of all Pool Members which
are Suppliers, in their capacity as such.
6. CALCULATION OF CONTRIBUTORY SHARES
6.1 The Executive Committee shall:-
6.1.1 on each Calculation Date, calculate for the Following Month
the Contributory Share for the time being of each Pool
Member;
6.1.2 on each Calculation Date, calculate for each of the previous
months (if any) in the then current Accounting Period the
adjusted Contributory Shares in respect of that month
attributable to each Pool Member, based (subject as provided
in sub-section 6.2) on the latest available Stage 1
Settlement Runs and Stage 2 Initial Settlement Runs in
respect of Settlement Periods falling in the Calculation
Period relating to that month; and
6.1.3 on the Final Calculation Date, calculate for each month in
the relevant Accounting Period the adjusted Contributory
Shares attributable in respect of that month to each Pool
Member, based (subject as provided in sub-section 6.2) on
the final runs of Stage 1 Settlement and the Stage 2 Initial
Settlement Runs in respect of all Settlement Periods in the
relevant month.
6.2 If a Pool Member shall cease for whatever reason to participate as a
Pool Member in any particular capacity, then the Contributory Share of
that Pool Member in that capacity shall be reduced to zero with effect
from the date of such cessation. Such reduction shall not apply in
relation to any calculation to be performed on or after such cessation
in respect of any date or period before such cessation.
6.3 The Executive Committee shall notify each Pool Member and the Director
in writing of the Contributory Share or (as the case may be) adjusted
Contributory Share of each of the Pool Members. The determination of
the Executive Committee as to the Contributory Share of each Pool
Member (whether initially or following any adjustment made pursuant to
this Schedule) shall (in the absence of manifest error) be final and
binding for all purposes of this Agreement.
7. RECORDS
The provisions of Clause 11.9 shall apply mutatis mutandis in respect of each
Pool Member's Points and Contributory Share as if the reference to the period of
eight years were a reference to the period of eight years from the end of the
Accounting Period to which the Points and Contributory Share relate.
<PAGE>
8. ADDITIONAL CAPACITY
For the purposes of Section 3, any Pool Member who acquires an additional
capacity in which it participates as a Pool Member shall be deemed to have been
admitted as a new Pool Member pursuant to Clause 8.2 in that additional capacity
and, until the Availability Date in respect of that Pool Member, it shall
receive that number of Points as is equal to one thousand times the number of
Weighted Votes to which such Pool Member would have been entitled under Clause
11.3.1(b) had:-
8.1 the provisions of Clause 11.3.3 been ignored; and
8.2 any applicable restrictions under Clause 11.4 been ignored,
as determined by the Executive Committee. Thereafter, such Pool Member's Points
shall be calculated in accordance with Section 2. Any allocation of Points
pursuant to this Section shall not be taken into account for the purposes of
Section 6 until the first Calculation Date next following the acquisition of an
additional capacity.
<PAGE>
SCHEDULE 14
[Not used.]
<PAGE>
SCHEDULE 15
The Pool Funds Administrator's Contract
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions: In this Schedule, except where the context otherwise
requires:-
"1998 PFA Development Costs" means (pound)1,410,000, being the total
expenditure properly incurred or accrued by EPFAL as at 31st May, 1998
in respect of the development and modification of the Funds Transfer
1998 Software;
"1998 PFA Development Fee" means, in respect of each PFA Accounting
Period, the fee calculated in accordance with sub-section 8.5 which
EPFAL shall be entitled to recover from Pool Members in consideration
of the services provided by EPFAL before 31st May, 1998 in relation to
the development and modification of the Funds Transfer 1998 Software;
"Active Supplier" means a Supplier which buys electricity pursuant to
this Agreement on a regular basis;
"Active Trading Pool Member" means a Pool Member which buys and/or
sells electricity pursuant to this Agreement on a regular basis or
which is an Externally Interconnected Party;
"Active Trading Pool Member Identities" means at any time the sum of:-
(i) one;
(ii) the total number of Market Domain Identities at that time;
and
(iii) the aggregate number of Pool Member identities which at that
time have been accorded to all Active Trading Pool Members
by the Settlement System Administrator for the purposes of
its operation of the Stage 1 Settlement System;
"Additional Reconciliation Run" means any Reconciliation Run in
respect of a Settlement Day in excess of the fifth Reconciliation Run
for that Settlement Day;
"Additional Reconciliation Run Annual Charge" means, in respect of
each PFA Accounting Period, the aggregate of the sums which EPFAL
shall be entitled to recover from Pool Members pursuant to sub-section
8B.1 in respect of each month in that PFA Accounting Period;
"Additional Reconciliation Run Fee" means, in respect of each month in
a PFA Accounting Period, the fee calculated in accordance with
sub-section 8B.1 which EPFAL shall be entitled to recover from Pool
Members in consideration of the services provided by EPFAL pursuant to
Schedule 11 in respect of Additional Reconciliation Runs delivered by
the Initial Settlement and Reconciliation Agent;
<PAGE>
"Bank Charges" has the meaning given to that term in Section 16;
"Base Sum" has the following meanings:-
(i) in respect of the Basic Fee, the meaning given to that term
in paragraph 8.2.1; and
(ii) in respect of the Reconciliation Fee, the meaning given to
that term in paragraph 8.3.1;
"Basic Fee" means, in respect of each PFA Accounting Period, the fee
calculated in accordance with sub-section 8.2 which EPFAL is entitled
to recover from Pool Members in consideration of the services provided
by EPFAL under this Agreement other than for those matters for which
EPFAL is, is entitled to be or will be compensated through the
recovery of:-
(i) the 1998 PFA Development Fee;
(ii) the Additional Reconciliation Run Fee;
(iii) the Funds Transfer Software Development Costs;
(iv) the PFA Operating Costs;
(v) the PFA Termination Fee;
(vi) the Pool Administration Costs;
(vii) the Pool Administration Fee;
(viii) the Reconciliation Fee; and
(ix) the Special Run Fee;
"Consultants" means an independent firm of chartered accountants or
management consultants of international repute selected by the
Executive Committee in consultation with EPFAL;
"Current Term" has the meaning given to that term in sub-section 2.2;
"Existing Funds Transfer Software" means the Funds Transfer Software
referred to in Annex 4;
"Existing Funds Transfer 1998 Software" means the Funds Transfer
Software referred to in Annex 4A;
<PAGE>
"Funds Transfer 1998 Software" means all Funds Transfer Software
developed or modified by EPFAL for the purposes of the 1998 Programme,
including the Existing Funds Transfer 1998 Software;
"Funds Transfer Hardware" means all the computer equipment and
accessories whether existing or coming into existence in the future
which are used at any time by EPFAL in connection with the Funds
Transfer Business;
"Funds Transfer Software" means all computer programs and codes (both
source code and object code) and all documents and materials relating
thereto or developed therefrom (including those documents and
materials on which the programs and codes are embodied and all user
documentation) and whether existing or coming into existence in the
future which are used at any time by EPFAL in connection with the
Funds Transfer Business. It includes the Existing Funds Transfer
Software, the Existing Funds Transfer 1998 Software, the Funds
Transfer 1998 Software and the Future Funds Transfer Software;
"Funds Transfer Software Development Costs" means the total
expenditure properly incurred by EPFAL in respect of the development
and modification of the Funds Transfer Software (other than the 1998
PFA Development Costs), as agreed between EPFAL and the Executive
Committee in accordance with sub-section 19.4;
"Future Funds Transfer Software" has the meaning given to that term in
sub-section 7.2;
"Market Domain Identities" means at any time the sum of:-
(i) one; and
(ii) the aggregate number of identities which at that time have
been accorded to all Active Suppliers by the Initial
Settlement and Reconciliation Agent for the purposes of
processing Supplier values across GSP Groups in relation to
Final Runs and Reconciliation Runs;
"Menu of EPFAL Services Prices" means the most recent document with
that title setting out prices for certain services provided by EPFAL
from time to time agreed between EPFAL and the Executive Committee
provided that if EPFAL and the Executive Committee are unable to reach
agreement on the contents of the Menu of EPFAL Services Prices, EPFAL
or the Executive Committee may refer the dispute to arbitration in
accordance with Clause 83;
"Notice of PFA Annual Fees" means any notice of the PFA Annual Fees
prepared by EPFAL pursuant to sub-section 9.4;
"PFA Accounting Period" means each successive period of 12 months
beginning on 1st April in each year or of such other length and/or
beginning on such other date as may be agreed in writing between EPFAL
and the Executive Committee;
<PAGE>
"PFA Annual Fees" has the meaning given to that term in sub-section
8.1;
"PFA Budget" means any budget prepared by EPFAL pursuant to Section 9
and, in the case of the PFA Accounting Period beginning in 1998, the
budget set out in Annex 1;
"PFA Custodian" has the meaning given to that term in sub-section 1.1
of Annex 5;
"PFA Escrow Agreement" has the meaning given to that term in
sub-section 1.1 of Annex 5;
"PFA Implementation Date" means 1st April, 1998;
"PFA Material" has the meaning given to that term in paragraph 1.1.4
of Annex 5;
"PFA Operating Costs" means, in respect of any PFA Accounting Period
or part thereof, the total expenditure properly incurred or accrued by
EPFAL in such PFA Accounting Period or (as the case may be) the
relevant part thereof in respect of:-
(i) the costs of effecting and maintaining insurance in
accordance with the requirements of sub-section 6.2;
(ii) the costs of any tests of the Funds Transfer Hardware and
the Funds Transfer Software under sub-section 6.1;
(iii) audit fees for the Funds Transfer Business and the costs and
expenses of the Pool Auditor under sub-section 6.1;
(iv) bank administration charges levied by the Pool Banker on
EPFAL in respect of the operation of the Pool Banker
Accounts (as defined in the Funds Transfer Agreement) (and
excluding, for the avoidance of doubt, Bank Charges and any
interest charges);
(v) the fees and expenses of the PFA Custodian incurred in
respect of the updating of all historical data referred to
in paragraph 1.1.3 of Annex 5; and
(vi) the costs of the maintenance arrangements referred to in
sub-section 7.7,
together with the total amount of EPFAL's bad debts recognised in such
PFA Accounting Period and arising from a Pool Member's failure to pay
its due proportion of EPFAL's charges determined in accordance with
Section 17, as conclusively certified in the event of any dispute by
the auditors for the time being of EPFAL, at the cost and expense of
EPFAL;
"PFA Termination Fee" means the fee calculated in accordance with
sub-section 8A which EPFAL is entitled to recover from Pool Members as
a result of the termination of its appointment as the Pool Funds
Administrator pursuant to sub-section 3.2A;
"Pool Administration Costs" has the meaning given to it in Section 6.1
of Schedule 31;
<PAGE>
"Pool Administration Fee" means, in respect of each PFA Accounting
Period, the fee set out in box 3 of the Menu of EPFAL Services Prices
which EPFAL is entitled to recover from Pool Members in consideration
of the services provided by EPFAL pursuant to sub-section 20.1;
"Quality of Service Review" means a review of the manner and standard
of performance (both overall and on a day-to-day basis) by EPFAL of
those of its obligations under the Agreement (including this Schedule)
and the Agreed Procedures, the performance of which is called into
question by reason of the notification received by the Executive
Committee under sub-section 11.1;
"Reconciliation Fee" means, in respect of each PFA Accounting Period,
the fee calculated in accordance with sub-section 8.3 which EPFAL
shall be entitled to recover from Pool Members in consideration of the
services (other than those services in respect of which EPFAL shall be
entitled to recover the Additional Reconciliation Run Fee or the
Special Run Fee) provided by EPFAL on or after the PFA Implementation
Date in relation to all Reconciliation Runs delivered by the Initial
Settlement and Reconciliation Agent during that PFA Accounting Period;
"Retail Price Index" means the general index of retail prices
published by the Office for National Statistics each month in respect
of all items provided that if:-
(i) the index for any month in any year shall not have been
published on or before the last day of the third month after
such month; or
(ii) there is a material change in the basis of the index,
the Executive Committee and EPFAL shall agree a substitute index for
such month or (as the case may be) a substitute index (and, in default
of agreement, the matter shall be referred to arbitration pursuant to
Clause 83);
"Review Report" has the meaning given to that term in sub-section
11.4;
"RPIp" means, in relation to the calculation of any fee pursuant to
this Schedule and the Menu of EPFAL Services Prices, the percentage
change (whether of a positive or negative value) in the Retail Price
Index between that published in, or (as the case may be) the
substitute index for, December 1997 and that published in, or the
substitute index for, the December before the anniversary from which
the relevant adjusted fee is to take effect;
"Special Run" means, in respect of transactions occurring during any
Settlement Day for which payments are to be settled pursuant to
Schedule 11, the data and information which is to be delivered to the
Parties or certain of them in connection with a run of Settlement:-
(i) not being a Provisional Run, an Initial Settlement Run, a
Final Run, a Settlement Re-run or a Reconciliation Run
(including any Reconciliation Run for which EPFAL is
entitled to charge an Additional Reconciliation Run Fee);
but
<PAGE>
(ii) including a Dispute Final Run and a Dispute Final
Reconciliation Run;
"Special Run Annual Charge" means, in respect of each PFA Accounting
Period, the aggregate of the sums which EPFAL shall be entitled to
recover from Pool Members pursuant to sub-section 8B.2 in respect of
each month in that PFA Accounting Period;
"Special Run Fee" means, in respect of each month in any PFA
Accounting Period, the fee calculated in accordance with sub-section
8B.2 which EPFAL shall be entitled to recover from Pool Members in
consideration of the services provided by EPFAL in relation to all
Special Runs during that month;
"Statement of PFA Charges" means the statement of charges required to
be submitted by EPFAL pursuant to sub-section 10.7 in the form from
time to time agreed in writing between EPFAL and the Executive
Committee showing the total charges to be made by EPFAL on all Pool
Members in accordance with Sections 15 and 16;
"Statement of PFA Costs and Fees" means any statement of costs and
fees required to be submitted by EPFAL pursuant to Section 10 which
shall be substantially in the form set out in Annex 3 or in such other
form as EPFAL and the Executive Committee may from time to time agree
in writing; and
"Total PFA Sum Due" means, in respect of any PFA Accounting Period,
the total aggregate amount chargeable by EPFAL for that PFA Accounting
Period in respect of the charges and fees referred to in sub-sections
15.1 and 15.1A and the PFA Termination Fee.
1.2 Interpretation: In this Schedule, except where the context otherwise
requires, references to a particular Annex, Section, sub-section,
paragraph or sub-paragraph shall be a reference to that Annex to this
Schedule or, as the case may be, that Section, sub-section, paragraph
or sub-paragraph in this Schedule.
1.3 Pool Funds Administrator's consent: The Parties acknowledge and agree
that, notwithstanding any other provision of the Agreement, insofar as
directly affects in any material respect the rights, benefits, duties,
responsibilities, liabilities and/or obligations of the Pool Funds
Administrator, no amendment to or variation of any of the matters
dealt with in any of the following provisions of the Agreement shall
take effect:-
1.3.1 without the prior written consent of EPFAL (but only for so
long as it is the Pool Funds Administrator):-
(a) the definitions in Clause 1.1 of "Authorised
Recipient", "Business Person", "Business
Personnel", "Confidential Information", "Corporate
Functions Person", "Disclose", "Main Business",
"Main Business Person", "Main Business Personnel",
"Nominated Agreements", "Permitted Activities",
"Protected Information", "Relevant Instrument",
"Restricted Party" and (insofar as the definition
relates to the Pool Funds Administrator)
"Services";
(b) Clauses 7.3, 9.5, 10.9, 19.4, 25, 66, 68, 74 and
78.2 of the Agreement;
<PAGE>
(c) the definition of "Pool Intellectual Property" in
sub-section 2.1 of Schedule 33 (but only to the
extent of any amendment or variations of that
definition which affects the exclusion therefrom
of the Funds Transfer Software or any other
software used by EPFAL in the Funds Transfer
Business); and
(d) this sub-section 1.3; and
1.3.2 without the prior written consent of EPFAL (but only for so
long as it is the Pool Funds Administrator), such consent
not to be unreasonably withheld or delayed:-
(a) the definitions in Clause 1.1 of "Advice Note",
"Amount in Default", "Approved Credit Rating",
"Authorised Persons", "Banking System", "Base
Rate", "Billing System", "CHAPS", "Collection
Account", "Confirmation Notice", "Credit
Facility", "Credit Facility Contribution",
"Default Interest Rate", "ERS Account", "Facility
Bank", "Final Reconciliation Run", "Funds Transfer
Agreement", "Funds Transfer Business", "Funds
Transfer System", "GSP Group Control Total",
"Information Systems", "Letter of Credit", "Local
Branch", "Non-paying Pool Debtor", "Notification
Date", "Notified Payment", "Notified Payment
Shortfall", "Notified Payments System",
"overpayment", "Payment Date", "Payments
Calendar", "Pool Accounts", "Pool Banker", "Pool
Borrowing Account", "Pool Clearing Account", "Pool
Creditor", "Pool Debt", "Pool Debtor", "Pool
Ledger Accounts", "Pool Reserve Account", "Pool
Reserve Assets", "Postponed Payment Date",
"Providing Member", "Reconciliation Notification
Date", "Reconciliation Payment Date", "Relevant
Provider", "Reserve Interest Rate", "Security
Amount", "Security Cover", "Settlement Account",
"Settlement Account Designation", "Settlement
Bank", "Settlement Bank Mandate", "Settlement
Payment Date", "Settlement Run", "Special Run",
"Stage 1 Settlement Run", "Stage 2 Initial
Settlement Run", "Timetabled Reconciliation Run"
and "underpayment";
(b) Clauses 18.1.2, 69, 71, 71A and 71B of the
Agreement;
(c) Part XVIII (other than Clause 63.1), Part XXII
(other than Clauses 74 and 78.2) of the Agreement;
(d) Schedule 11;
(e) Sections 6 and 7 of Schedule 31; and
(f) this Schedule (other than this sub-section 1.3).
2. APPOINTMENT
2.1 Continuation of Appointment: This Schedule sets out the terms and
conditions on and subject to which EPFAL shall continue and agrees to
continue to act as the Pool Funds
<PAGE>
Administrator for the period referred to in sub-section 2.2 (as such
period may be extended or further extended in accordance with the
terms of this Schedule).
2.2 Term: On 1st April, 1992 EPFAL was appointed by each Pool Member and
the Ancillary Services Provider as the Pool Funds Administrator for a
period of three years commencing on 1st April, 1992 and ending on 31st
March, 1995. EPFAL's appointment as the Pool Funds Administrator was
then extended beyond 31st March, 1995 for a period ending on 31st
March, 1999 and has been subsequently renewed on and subject to the
terms and conditions set out in this Schedule for a period starting on
the PFA Implementation Date and, subject as hereinafter provided in
this Schedule, ending on 31st March, 2003 (the period from the PFA
Implementation Date to 31st March, 2003 (both dates inclusive) being
the "Current Term").
2.3 Extension of term: EPFAL's appointment as the Pool Funds Administrator
may be extended beyond the expiry of the Current Term or (as the case
may be) any extended or further extended term either:-
2.3.1 if it successfully tenders pursuant to sub-section 4.3 for
continuation of its appointment and then on and subject to
the terms and conditions of the tender; or
2.3.2 if at any time prior to that expiry EPFAL and the Executive
Committee so agree in writing and then on and subject to
such terms and conditions as are so agreed.
2.4 Wholly-owned subsidiary: NGC shall procure that, so long as EPFAL acts
or is obliged to act as the Pool Funds Administrator, EPFAL at all
times remains a wholly-owned subsidiary of NGC.
2.5 Independent Contractor: In carrying out its duties and
responsibilities and otherwise in acting as the Pool Funds
Administrator under the Agreement, EPFAL shall act as an independent
contractor and (unless expressly authorised to the contrary) shall
neither act nor hold itself out nor be held out as acting as agent for
any of the other Parties.
2.6 Restriction on business: For so long as EPFAL is the Pool Funds
Administrator EPFAL undertakes to each Party and the Executive
Committee that it shall not render to any other Party any billing
service or any other service of any nature whatsoever which is likely
to give rise to a conflict of interest in the performance by EPFAL of
its duties and responsibilities as the Pool Funds Administrator under
the Agreement. EPFAL further undertakes that if it carries on any
business other than that of Pool Funds Administrator it shall maintain
separate accounts and records in respect of any other business. EPFAL
acknowledges and agrees that this undertaking has been the subject of
discussion and negotiation and is fair and reasonable having regard to
the revision of the terms and conditions of EPFAL's appointment as the
Pool Funds Administrator with effect from the PFA Implementation Date.
<PAGE>
3. EXPIRY OF TERM AND REMOVAL
3.1 Expiry of term: If on expiry of the Current Term (or, if EPFAL's term
of appointment has been extended or further extended in accordance
with paragraph 2.3.1 or 2.3.2, expiry of that extended or further
extended term) the term of EPFAL's appointment as the Pool Funds
Administrator has not been or will not be extended or (as the case may
be) further extended in accordance with paragraph 2.3.1 or 2.3.2,
EPFAL shall cease to serve as the Pool Funds Administrator unless it
is requested by the Executive Committee to continue to serve as the
Pool Funds Administrator for such additional period not exceeding one
year from the date of expiry of the Current Term (or, if EPFAL's term
of appointment has been extended or further extended in accordance
with paragraph 2.3.1 or 2.3.2, expiry of that extended or further
extended term) as the Executive Committee may request in order to
provide an opportunity for a successor to be appointed. The Executive
Committee shall make such a request as soon as possible after becoming
aware of the above circumstances but in any event no later than three
months (or such other period as EPFAL and the Executive Committee may
from time to time agree in writing) before the date of expiry of the
Current Term or (as the case may be) the extended or further extended
term.
3.2 Removal by Executive Committee: The Executive Committee may at any
time remove EPFAL as the Pool Funds Administrator forthwith or after
such period of notice as it thinks fit if:-
3.2.1 EPFAL shall have committed a material breach of any of its
obligations as the Pool Funds Administrator under the
Agreement or the Agreed Procedures (other than a technical
breach of trust covered by the provisions contained in
sub-section 5.17 of Schedule 11) and, if such breach is
capable of remedy, shall have failed to remedy such breach
within:-
(a) three Business Days (in the case of a failure to
make payment (other than where any Pool Member,
the Ancillary Services Provider or the Grid
Operator is in default which results in EPFAL's
inability to make such payment) or a failure to
call a Letter of Credit when required);
(b) 14 days (in the case of any breach of its
undertaking in sub-section 2.6); or
(c) 15 Business Days (in the case of any other
default),
in any such case after it shall have received written notice
from the Executive Committee specifying the breach and
requiring it to be remedied; or
3.2.2 EPFAL:-
(i) is unable to pay its debts (within the meaning of
section 123(1) or (2) of the Insolvency Act 1986,
but subject as hereinafter provided in this
paragraph 3.2.2) or if any voluntary agreement is
proposed in relation to it under section 1 of that
Act or enters into any scheme of arrangement
<PAGE>
(other than for the purpose of reconstruction or
amalgamation upon terms and within such period as
may previously have been approved in writing by
the Executive Committee); or
(ii) has a receiver (which expression shall include an
administrative receiver within the meaning of
section 29 of the Insolvency Act 1986) of the
whole or any material part of its assets or
undertaking appointed; or
(iii) has an administration order under section 8 of the
Insolvency Act 1986 made in relation to it; or
(iv) passes any resolution for winding-up other than a
resolution previously approved in writing by the
Executive Committee; or
(v) becomes subject to an order by the High Court for
winding-up.
For the purposes of paragraph (i) above section 123(1) of
the Insolvency Act 1986 shall have effect as if for
"(pound)750" there was substituted "(pound)150,000" and,
further, EPFAL shall not be deemed to be unable to pay its
debts for the purposes of paragraph (i) above if any such
demand as is mentioned in the said section is being
contested in good faith by EPFAL with recourse to all
appropriate measures and procedures.
3.2A Earlier removal: Without prejudice to sub-section 3.2, the Executive
Committee shall have the right to remove EPFAL as the Pool Funds
Administrator at any time after 31st March, 2001 by giving not less
than 12 months' written notice to EPFAL (such notice expiring no
earlier than 31st March, 2001), provided that in the event of such
removal EPFAL shall be entitled to recover the PFA Termination Fee
from Pool Members in accordance with Section 8A.
3.3 Acknowledgement: EPFAL acknowledges and agrees that, for the purposes
of paragraph 3.2.1, any breach by it of its undertaking in sub-section
2.6 shall be deemed to be a material breach of its obligations under
the Agreement.
3.4 Removal as a Party:
3.4.1 Upon the expiry or termination for whatever reason of EPFAL
as the Pool Funds Administrator each of the Parties shall
promptly at its own cost and expense execute and deliver all
agreements and other documentation and do all such other
acts, matters and things as may be necessary to effect
(without prejudice to paragraph 3.4.2) EPFAL's release as
the Pool Funds Administrator and (if appropriate) as a
Party.
3.4.2 The expiry or termination for whatever reason of EPFAL's
appointment as the Pool Funds Administrator shall be without
prejudice to any accrued rights and liabilities of the
Parties (including EPFAL as the Pool Funds Administrator)
under the Agreement.
<PAGE>
4. APPOINTMENT OF A SUCCESSOR
4.1 Right to appoint: The Executive Committee shall have the right to
appoint any successor Pool Funds Administrator. In making any such
appointment the Executive Committee shall take account of the views
(if any) expressed by any Pool Member, the Ancillary Services Provider
or the Grid Operator. The appointment of a successor Pool Funds
Administrator shall take effect upon the removal or, as the case may
be, expiry of the term of appointment of EPFAL as the Pool Funds
Administrator.
4.2 Appointment following removal: If EPFAL is removed pursuant to
sub-section 3.2 or sub-section 3.2A, the Executive Committee may
appoint a successor without being obliged to carry out or complete the
process set out in sub-section 4.3, such appointment to be on and
subject to such terms and conditions as the Executive Committee sees
fit.
4.3 Tender process:
4.3.1 The Executive Committee shall invite tenders for appointment
as successor Pool Funds Administrator:-
(a) not later than one year before the expiry of the
Current Term (or, if EPFAL's term of appointment
has been extended or further extended in
accordance with paragraph 2.3.2, not later than a
date agreed between EPFAL and the Executive
Committee and falling before the expiry of that
extended or further extended term); and
(b) if EPFAL's term of appointment has been extended
or further extended in accordance with paragraph
2.3.1 or EPFAL has been requested to continue to
serve as the Pool Funds Administrator pursuant to
sub-section 3.1, not later than six months (or
such other period as EPFAL and the Executive
Committee may agree in writing) before the expiry
of that extended or further extended term.
4.3.2 The persons invited to tender and the terms and conditions
of that invitation, of the tender procedure and of the
appointment shall be determined by the Executive Committee
provided that the tender process shall be completed and the
Executive Committee shall have made its decision as to the
successor (or shall have decided not to appoint a successor
from those persons who submitted tenders) no later than the
date falling three months before the expiry of the Current
Term or (as the case may be) the extended or further
extended term. The Executive Committee shall not be bound to
appoint the successor Pool Funds Administrator from any of
those persons who have submitted tenders. The Executive
Committee shall use its reasonable endeavours to ensure that
in the tender process the Executive Committee does not
discriminate unfairly between those eligible to tender or
the tenders received.
<PAGE>
5. TRANSFER OF RESPONSIBILITIES AND ASSETS TO SUCCESSOR POOL FUNDS
ADMINISTRATOR
5.1 Transfer of responsibilities and assets to successor Pool Funds
Administrator: Upon a successor Pool Funds Administrator being
appointed and accepting such appointment, EPFAL shall, at the request
of such successor:-
5.1.1 (a) at EPFAL's option either:-
(i) fully and effectively assign, transfer
and deliver to such successor all Funds
Transfer Software (and all copies
thereof) beneficially owned by EPFAL
together with all rights, title and
interest therein or thereunder vested in
EPFAL; or
(ii) irrevocably license such successor to
use all Funds Transfer Software
beneficially owned by EPFAL, which
licence shall be on terms enabling such
successor to grant sub-licences and
permitting the benefit of such licence
to be assigned to any further successor
Pool Funds Administrator and shall
include an undertaking by EPFAL promptly
to provide such access to source and
object codes and other documents and
materials thereto relating to the
operation of the Funds Transfer System
as each such successor may reasonably
require for the purpose of maintaining
and enhancing such Funds Transfer
Software;
(b) use its best endeavours to assign or novate or
procure the assignment or novation to such
successor of any licence or other agreement to (i)
use any Funds Transfer Software which is not
beneficially owned by EPFAL and (ii) to maintain
any Funds Transfer Software; and
(c) deliver to such successor two copies of the Funds
Transfer Software and any associated documentation
for use by such successor;
5.1.2 make over to such successor all such records, manuals, data
and other information which EPFAL is required to retain
pursuant to Clause 63.1.3 provided that EPFAL shall be
entitled to retain copies of such of those manuals as have
been prepared by EPFAL at its own cost and expense (and not
recharged to Pool Members pursuant to the Agreement);
5.1.3 use all reasonable endeavours to novate or procure the
novation of the Funds Transfer Agreement and any banking
facility or financial accommodation made available to EPFAL
as Pool Funds Administrator by the Pool Banker and to
transfer all Letters of Credit to such successor and cause
to be transferred to such successor to hold in its capacity
as Pool Funds Administrator all balances standing to the
credit of any Pool Account;
5.1.4 provide such training, assistance and systems support as
such successor may reasonably require and for such period as
such successor may reasonably require
<PAGE>
(not exceeding three months from the date of its removal or
expiry of its term as the Pool Funds Administrator) to
enable such successor to carry out its duties and
responsibilities as successor Pool Funds Administrator;
5.1.5 use all reasonable endeavours to transfer or otherwise make
available to such successor such of the freehold and
leasehold property as is owned or occupied by EPFAL and is
used by it in its capacity as the Pool Funds Administrator;
and
5.1.6 transfer or otherwise make available to such successor all
other assets, equipment (excluding computer hardware),
facilities, rights, know-how and transitional assistance
which it possesses and which is necessary or desirable for
such successor to have in order to enable such successor
efficiently to operate the Funds Transfer System in
accordance with the Agreement and the Agreed Procedures with
effect on and from the time of the removal of EPFAL or
expiry of EPFAL's term as the Pool Funds Administrator
(unless such removal is without notice in which case so soon
thereafter as is reasonably practicable),
and in any such case on such reasonable terms as may be agreed between
EPFAL and its successor as Pool Funds Administrator (but only, in the
case of such successor, after it has itself obtained the written
consent of the Executive Committee to such terms) within one month
after the commencement of negotiations (or such longer period as
EPFAL, such successor and the Executive Committee may agree in
writing) and, in default of agreement of terms, the dispute shall be
referred to arbitration in accordance with Clause 83.
5.2 Co-operation: EPFAL further agrees, in consideration of the payment of
such amount as may be agreed between EPFAL and its successor as Pool
Funds Administrator (but only, in the case of such successor, after it
has itself obtained the written consent of the Executive Committee to
such terms) within the period referred to in the final paragraph of
sub-section 5.1 (and, in default of agreement of terms, the dispute
shall be referred to arbitration in accordance with Clause 83), to
co-operate with any such successor and the Executive Committee so that
the transfer of duties, responsibilities, assets and know-how to such
successor is carried out causing as little disruption to the operation
of the Funds Transfer System and as little inconvenience to the
Parties as is practicable in all the circumstances.
5.3 PFA Unwinding Costs: Without prejudice to Section 18 and save as
otherwise provided in this Schedule, EPFAL's costs and expenses of, or
directly associated with, its removal or the expiry or termination for
whatever reason of its appointment as the Pool Funds Administrator
(including any redundancy or relocation costs or expenses and any
costs and expenses arising from the vacation or surrender of any
premises or disposal or its own re-deployment of any plant or
equipment used in the Funds Transfer Business) shall be borne
exclusively by EPFAL (and shall not be recharged to Pool Members).
5.4 Without prejudice to rights: Any payment made by all or any of the
Pool Members to EPFAL under this Section 5 shall be without prejudice
to any rights and remedies which the Pool Members (or any of them) may
have against EPFAL in its capacity as the Pool Funds Administrator
arising under the Agreement.
<PAGE>
5.5 Reference to Arbitration: If any matter is referred to arbitration
pursuant to this Section 5, EPFAL shall not by virtue of the reference
to such arbitration be entitled to delay in the handing over of the
Funds Transfer Software and any records, manuals, data or other
information referred to in sub-section 5.1 and EPFAL shall not be
entitled to withhold any training, assistance and system support but
shall continue to co-operate with the Executive Committee and the
successor Pool Funds Administrator including carrying out its
obligations set out in sub-sections 5.1 and 5.2 and accordingly EPFAL
shall not be entitled to withhold or delay the carrying out of its
obligations.
6. SPECIFIC DUTIES AND RESPONSIBILITIES
6.1 Tests of the Funds Transfer Hardware and the Funds Transfer Software:
6.1.1 EPFAL shall, upon receipt of not less than ten working days'
notice from the Pool Auditor and subject to availability of
computer time, arrange for such tests of the Funds Transfer
Hardware and the Funds Transfer Software as are from time to
time reasonably required by the Pool Auditor (either on its
own initiative or on the instructions of the Executive
Committee) for the performance of its functions under Part
IX of the Agreement. EPFAL shall, if so required by the Pool
Auditor, permit the Pool Auditor to carry out such tests
provided that the person or persons allocated to carry out
such tests by the Pool Auditor is or are suitably qualified
in the operation of computers and computer systems to carry
out such tests and, in any other case, EPFAL shall carry out
such tests.
6.1.2 EPFAL shall give the Pool Auditor reasonable access to the
Funds Transfer Hardware and the Funds Transfer Software for
the purpose of carrying out and monitoring any test under
paragraph 6.1.1.
6.1.3 The costs of any test under paragraph 6.1.1 shall be borne
by EPFAL and recovered by it as part of the PFA Operating
Costs in accordance with this Schedule.
6.2 Insurance:
6.2.1 Subject to the availability in the insurance market of such
insurances, EPFAL shall effect and maintain in full force
and effect with first class insurers the following
insurances:-
(a) professional indemnity insurance as Pool Funds
Administrator in an amount of not less than
(pound)60,000,000 any one claim and
(pound)60,000,000 all claims in any one year (or
such other amount as may from time to time be
reasonably required by the Executive Committee
after consultation with EPFAL); and
(b) employee fidelity insurance in an amount of
(pound)60,000,000.
6.2.2 All premia and other sums of money payable in respect of all
insurances effected or to be effected pursuant to paragraph
6.2.1 shall be borne by EPFAL and
<PAGE>
recovered by it as part of the PFA Operating Costs in
accordance with this Schedule.
6.2.3 EPFAL shall use all reasonable endeavours to make and
collect claims promptly and shall apply all moneys received
by it in respect of the insurances referred to in paragraph
6.2.1 in or towards making good the loss and fully repairing
the damage or (as the case may be) satisfying the relevant
liability in respect of which such moneys were receivable or
reimbursing the cost of the same.
6.2.4 EPFAL shall promptly supply the Executive Committee upon
request from time to time with an insurance broker's
certificate in form and content reasonably satisfactory to
the Executive Committee confirming that cover has been
effected in respect of the insurances referred to in
paragraph 6.2.1 and giving reasonable details of the terms
and conditions of such insurances.
6.3 Instructions: Without prejudice to Section 19, EPFAL shall comply with
all instructions and directions issued by the Executive Committee to
EPFAL in its capacity as the Pool Funds Administrator unless such
compliance would cause EPFAL to be in breach of any of its other
obligations as the Pool Funds Administrator under the Agreement or the
Agreed Procedures.
6.4 Changes: EPFAL in its capacity as the Pool Funds Administrator shall
not make any change in its operation of the Funds Transfer System (or
any part or aspect thereof) which in its reasonable opinion is or may
(either alone or together with any other change(s)) be material
without the prior written consent of the Executive Committee. If EPFAL
wishes to make any such change, it shall promptly notify the Executive
Committee in writing giving reasonable details of the proposed change.
6.5 General: EPFAL shall have such other duties, responsibilities,
obligations and liabilities as are attributed to it in the Agreement
and the Agreed Procedures.
7. FUNDS TRANSFER SOFTWARE
7.1 Representations and warranties: EPFAL hereby represents and warrants
to each of the Pool Members and the Executive Committee that:-
7.1.1 the Existing Funds Transfer Software is all the Funds
Transfer Software (excluding Funds Transfer 1998 Software)
used by EPFAL as at 31st March, 1998;
7.1.2 the Existing Funds Transfer 1998 Software is all the Funds
Transfer 1998 Software used by EPFAL as at 31st March, 1998;
7.1.3 it is the sole beneficial owner of the Existing Funds
Transfer Software referred to in Part 1 of Annex 4 and of
all the Existing Funds Transfer 1998 Software;
<PAGE>
7.1.4 it is the licensee of the Existing Funds Transfer Software
referred to in Part 2 of Annex 4 and that the details of the
licences set out in Part 2 of Annex 4 are correct;
7.1.5 save as disclosed in Annex 4, the Existing Funds Transfer
Software and the Existing Funds Transfer 1998 Software are
freely transferable to any successor Pool Funds
Administrator pursuant to Section 5;
7.1.6 the use of the Existing Funds Transfer Software and the
Existing Funds Transfer 1998 Software in connection with the
Funds Transfer Business does not infringe the rights of any
other person and EPFAL is not in breach of any of the terms
of the licences referred to in Part 2 of Annex 4; and
7.1.7 it has not received any claim or notice challenging its
title to, or its right to use, the Existing Funds Transfer
Software and the Existing Funds Transfer 1998 Software.
7.2 Future Funds Transfer Software: As from the PFA Implementation Date
EPFAL shall use its best endeavours to ensure it shall be the sole
beneficial owner of all Funds Transfer Software acquired or developed
by or for EPFAL after such date (the "Future Funds Transfer
Software"). If EPFAL is unable to ensure that it will be sole
beneficial owner of such Future Funds Transfer Software it shall use
its best endeavours to ensure that it shall be the exclusive licensee
thereof in relation to the Funds Transfer Business or any similar or
related businesses on terms which enable it to grant sub-licences and
to assign the benefit of such licence to any successor Pool Funds
Administrator.
7.3 Notification: EPFAL undertakes to notify the Executive Committee
forthwith in writing if:-
7.3.1 it is unable to ensure that it is the owner of, or licensee
on the terms set out in sub-section 7.2 under, any Future
Funds Transfer Software; or
7.3.2 it receives any claim or notice of any alleged infringement
of the rights of any other person by its use of any Funds
Transfer Software or challenging its title to, or its right
to use, any Funds Transfer Software; or
7.3.3 it is or becomes aware of any infringement by any third
party of its rights in any Funds Transfer Software,
and to consult with the Executive Committee as to any steps to be
taken in respect of any such situation.
7.4 Infringement: EPFAL hereby further represents and warrants to and
undertakes with each of the Pool Members and the Executive Committee
that the use of any Future Funds Transfer Software in connection with
the Funds Transfer Business will not infringe the rights of any other
person and that it shall not breach any of the terms of any licences
under which it holds Future Funds Transfer Software.
<PAGE>
7.5 Restrictions: EPFAL shall not, without the prior written consent of
the Executive Committee (not be to unreasonably withheld or delayed),
grant to any person (other than a successor Pool Funds Administrator)
any right, title or interest to, in or under any Funds Transfer
Software or give to such person a copy of, or permit such person to
use, Funds Transfer Software or otherwise derive any benefit or profit
therefrom (other than by itself using such Funds Transfer Software for
the purpose of the Funds Transfer Business).
7.6 Indemnity: EPFAL hereby agrees fully and effectively to indemnify and
keep indemnified each of the Pool Members and the Executive Committee
from and against any and all loss, liability, damages, costs and
expenses which it may suffer or incur arising out of or resulting from
any breach by the Pool Funds Administrator of any of the terms,
representations, warranties and undertakings contained in this Section
7 and of any of the terms and undertakings contained in Annex 5.
7.7 Maintenance: EPFAL shall ensure that at all times it has in full force
and effect proper arrangements for the maintenance of (and the prompt
rectification of defects in) the Funds Transfer Hardware and the Funds
Transfer Software and, upon the reasonable request of the Executive
Committee, shall supply evidence reasonably satisfactory to the
Executive Committee of the existence and nature of such arrangements.
The costs of all such maintenance arrangements shall be borne by EPFAL
and recovered by it as part of the PFA Operating Costs in accordance
with this Schedule.
7.8 Escrow arrangements: EPFAL shall comply with the provisions of Annex 5
which relate to escrow arrangements for the Funds Transfer Software.
8. PFA ANNUAL FEES
8.1 General: In consideration of the carrying out by EPFAL of its duties
and responsibilities as the Pool Funds Administrator as set out in the
Agreement and the Agreed Procedures (other than in respect of those
matters for which EPFAL is, is entitled to be or will be compensated
through the recovery of the PFA Operating Costs, the Pool
Administration Costs, the Funds Transfer Software Development Costs,
the Additional Reconciliation Run Fee and the Special Run Fee in
accordance with this Schedule or, as the case may be, Schedule 31)
EPFAL shall be paid the Basic Fee, the Reconciliation Fee, the Pool
Administration Fee and the 1998 PFA Development Fee. The sum of those
fees shall constitute the annual fees paid to EPFAL as the Pool Funds
Administrator (together, the "PFA Annual Fees"). ---------------
8.2 Calculation of the Basic Fee:
8.2.1 In respect of the PFA Accounting Period beginning on the PFA
Implementation Date the Basic Fee for that PFA Accounting
Period shall be the sum shown as the Base Sum in box 1 of
the Menu of EPFAL Services Prices (the "Base Sum") in
respect of the Basic Fee.
<PAGE>
8.2.2 In respect of each PFA Accounting Period beginning on an
anniversary of the PFA Implementation Date the Basic Fee
(expressed in pounds sterling) for that PFA Accounting
Period shall be calculated in accordance with the following
formula:-
(Base Sum * (1 +(RPI(p) /100)))+(Base Sum * (I/100))
where I is the value shown in box 1 of the Menu of EPFAL
Services Prices in respect of the Basic Fee.
8.3 Calculation of the Reconciliation Fee:
8.3.1 In respect of the PFA Accounting Period beginning on the PFA
Implementation Date the Reconciliation Fee for that PFA
Accounting Period shall be the sum shown as the Base Sum in
box 2 of the Menu of EPFAL Services Prices (the "Base Sum")
in respect of the Reconciliation Fee.
8.3.2 In respect of each PFA Accounting Period beginning on an
anniversary of the PFA Implementation Date the
Reconciliation Fee (expressed in pounds sterling) for that
PFA Accounting Period shall be calculated in accordance with
the following formula:-
(Base Sum * (1 + (RPI(p)/100)))+(Base Sum * (I/100))
where I is the value shown in box 2 of the Menu of EPFAL
Services Prices in respect of the Reconciliation Fee.
8.4 Calculation of the Pool Administration Fee: In respect of each PFA
Accounting Period, EPFAL shall be entitled to recover from Pool
Members the Pool Administration Fee the amount of which (expressed in
pounds sterling) is shown in box 3 of the Menu of EPFAL Services
Prices in respect of the Pool Administration Fee.
8.5 Calculation of the 1998 PFA Development Fee: In respect of each PFA
Accounting Period beginning in the Current Term, EPFAL shall be
entitled to recover from Pool Members the 1998 PFA Development Fee
(expressed in pounds sterling) which shall be calculated in accordance
with the following formula:-
(1998 PFA Development Costs * 1.20)
-----------------------------------
5
8.6 Review of Basic Fee and Reconciliation Fee: Without prejudice to
Sections 8C, 18 and 19, the Basic Fee and the Reconciliation Fee shall
be reviewed in accordance with the following paragraphs:-
8.6.1 if during any PFA Accounting Period the number of Active
Trading Pool Member Identities or Market Domain Identities
shall change such that, were the Basic Fee or (as the case
may be) the Reconciliation Fee for that PFA Accounting
Period to be recalculated, it would yield a different result
from that originally calculated for that PFA Accounting
Period (or, as the case may be, from that most recently
<PAGE>
recalculated for that PFA Accounting Period pursuant to this
paragraph 8.6.1) EPFAL shall promptly recalculate the Basic
Fee or (as the case may be) the Reconciliation Fee and
notify the Executive Committee in writing of the amount
thereof. Such notification shall be accompanied by a
statement showing in reasonable detail the calculation of
such amount. Subject to sub-section 8C.3, such recalculated
Basic Fee or (as the case may be) Reconciliation Fee shall
take effect for the period from the date falling one month
after the receipt by the Executive Committee of such
notification until the end of the then current PFA
Accounting Period (or until further recalculated under this
paragraph 8.6.1);
8.6.2 if at any time the total number of Active Trading Pool
Member Identities shall exceed 225 or the total number of
Market Domain Identities shall exceed 85, EPFAL may request
the Executive Committee to review the basis of calculation
and/or the amount of the Basic Fee or (as the case may be)
the Reconciliation Fee in accordance with Section 8C; and
8.6.3 EPFAL and the Executive Committee shall within one month
after the date of the Statement of PFA Costs and Fees for
the PFA Accounting Period beginning on the PFA
Implementation Date negotiate in good faith for a period not
exceeding one month (or such longer period as EPFAL and the
Executive Committee may agree in writing) with a view to
agreeing any appropriate adjustment in the Base Sum of the
Reconciliation Fee to reflect the calculation of the
Reconciliation Fee as shown in that Statement of PFA Costs
and Fees. If EPFAL and the Executive Committee shall agree
any adjustment in the Base Sum of the Reconciliation Fee,
such adjustment shall take effect in accordance with the
terms of that agreement. If no agreement is reached under
this paragraph 8.6.3, EPFAL or the Executive Committee may
refer the dispute to arbitration in accordance with Clause
83.
8A. PFA TERMINATION FEE
8A.1 General: EPFAL shall be paid a termination fee if its appointment as
Pool Funds Administrator is terminated in accordance with sub-section
3.2A (the "PFA Termination Fee").
8A.2 Calculation of PFA Termination Fee: The PFA Termination Fee (expressed
in pounds sterling) shall be calculated as the sum of Y and Z where:-
Y is the amount shown in box 4 of the Menu of EPFAL Services
Prices in respect of the PFA Termination Fee; and
Z is the total amount of the 1998 PFA Development Costs which
are still to be recovered by EPFAL as at the date of the
termination of EPFAL's appointment as the Pool Funds
Administrator pursuant to sub-section 3.2A, being the amount
(if any) by which the 1998 PFA Development Costs exceeds the
aggregate of all 1998 PFA Development Fees recovered by
EPFAL under sub-section 8.5.
8A.3 Revision of the Termination Fee: The PFA Termination Fee may at any
time and from time to time be revised in accordance with Section 8C.
<PAGE>
8B. ADDITIONAL RECONCILIATION RUN FEE AND SPECIAL RUN FEE
8B.1 Additional Reconciliation Run Fee: In respect of each month in a PFA
Accounting Period, EPFAL shall be entitled to recover from Pool
Members the Additional Reconciliation Run Fee (expressed in pounds
sterling) which shall be calculated as the product of V and W where:-
V is the total number of Additional Reconciliation Runs
delivered by the Initial Settlement and Reconciliation Agent
in that month; and
W is the sum shown in box 5 of the Menu of EPFAL Services
Prices in respect of the Additional Reconciliation Run Unit
Price.
8B.2 Special Run Fee: In respect of each month in a PFA Accounting Period,
EPFAL shall be entitled to recover from Pool Members the Special Run
Fee (expressed in pounds sterling) which shall be calculated as the
product of T and U where:-
T is the total amount of Special Runs delivered during that
month; and
U is the sum shown in box 6 of the Menu of EPFAL Services
Prices in respect of the Special Run Unit Price.
8B.3 Revision of the Additional Reconciliation Run Fee and the Special Run
Fee: Each of the Additional Reconciliation Run Fee and the Special Run
Fee may at any time and from time to time be revised in accordance
with Section 8C.
8C. MENU OF EPFAL SERVICES PRICES
8C.1 Notice: Each of EPFAL and the Executive Committee may at any time and
from time to time, by written notice to the other, request any
amendment to the Menu of EPFAL Services Prices or to any item thereof.
Upon receipt of such notice the Executive Committee and EPFAL shall
negotiate in good faith for a period not exceeding three months (or
such longer period as EPFAL and the Executive Committee may agree in
writing) with a view to agreeing the amendment set out in that notice.
8C.2 Effective date: Any amendment agreed between EPFAL and the Executive
Committee pursuant to sub-section 8C.1 shall take effect in accordance
with the terms of that agreement.
8C.3 Arbitration: If no agreement is reached under sub-section 8C.1 or if
the Executive Committee shall dispute any calculation of the Basic Fee
or the Reconciliation Fee made by EPFAL and notified to the Executive
Committee pursuant to paragraph 8.6.1 or sub-section 9.4, EPFAL or the
Executive Committee may refer the dispute to arbitration in accordance
with Clause 83. Pending the award of the arbitrator(s) the Menu of
EPFAL Services Prices current as at the date of the notice referred to
in sub-section 8C.1 shall continue in force.
<PAGE>
9. PFA BUDGETS AND NOTICES OF PFA ANNUAL FEES
9.1 PFA Budgets: Not earlier than three nor later than two months prior to
the first day of each PFA Accounting Period EPFAL shall prepare and
submit to the Executive Committee a PFA Budget for such PFA Accounting
Period. Such PFA Budget shall be indicative only but shall be prepared
on a best estimates basis. The PFA Budget for the PFA Accounting
Period beginning in 1998 is set out in Annex 1.
9.2 Contents of PFA Budgets: Each PFA Budget (other than the PFA Budget
for the PFA Accounting Period beginning in 1998) shall compare each
item or category of budgeted expenditure shown therein with the
forecast expenditure in respect of such item or category for the
remainder of the then current PFA Accounting Period and report any
salient differences between any such forecast expenditure and the
budgeted expenditure in respect of each such item or category in the
immediately preceding PFA Budget.
9.3 Form of PFA Budgets: Each PFA Budget shall be substantially in the
form of that set out in Annex 1 (or in such other form as EPFAL and
the Executive Committee may from time to time agree in writing).
9.4 Notice of PFA Annual Fees: Each PFA Budget (other than the PFA Budget
for the PFA Accounting Period beginning in 1998) shall be accompanied
by a Notice of PFA Annual Fees prepared by EPFAL stating the PFA
Annual Fees for the PFA Accounting Period to which such PFA Budget
relates and setting out in reasonable detail the calculation of the
PFA Annual Fees. Subject to any revisions thereof in accordance with
this Schedule, the PFA Annual Fees so stated shall take effect for
such PFA Accounting Period.
10. STATEMENT OF PFA COSTS AND FEES
10.1 Statement of PFA Costs and Fees: No later than one month following the
date in any PFA Accounting Period of the publication of the audited
accounts for the Funds Transfer Business for the previous PFA
Accounting Period, EPFAL shall prepare and submit to the Executive
Committee and all Pool Members a Statement of PFA Costs and Fees for
such previous PFA Accounting Period. The audited accounts of EPFAL,
the instruction letter from EPFAL to its auditors giving instructions
for the auditing of those accounts and the auditors' management letter
(to the extent that it relates to the economy, efficiency,
effectiveness and quality of service of EPFAL in carrying out its
duties and responsibilities as the Pool Funds Administrator) shall
accompany each Statement of PFA Costs and Fees for each entire PFA
Accounting Period.
10.2 Form of Statement of PFA Costs and Fees: The Statement of PFA Costs
and Fees for any PFA Accounting Period:-
10.2.1 in relation to the PFA Operating Costs, shall attribute
actual and accrued expenditure for such period against,
inter alia, each of the categories and sub-categories set
out in the corresponding PFA Budget for such PFA Accounting
Period;
<PAGE>
10.2.2 in relation to the PFA Annual Fees, shall state the PFA
Annual Fees and any revisions thereto for such PFA
Accounting Period and shall set out in reasonable detail the
calculation thereof; and
10.2.3 in relation to the Additional Reconciliation Run Annual
Charge and the Special Run Annual Charge, shall state the
amount recovered by EPFAL during that period and shall set
out in reasonable detail the calculation of the Additional
Reconciliation Run Fees and the Special Run Fees during that
period.
10.3 Accompanying Report: Each PFA Budget and Statement of PFA Costs and
Fees for an entire PFA Accounting Period submitted to the Executive
Committee and, in the case of the Statement of PFA Costs and Fees,
Pool Members pursuant to sub-section 9.1 or 10.1 shall be supported by
a written report of EPFAL commenting in reasonable detail upon the
matters comprised in the categories of expenditure included in such
PFA Budget or Statement of PFA Costs and Fees.
10.4 Tender Costs:
10.4.1 If, during any PFA Accounting Period, the Pool Funds
Administrator reasonably believes that any of the category
of services within the definition of PFA Operating Costs are
likely to exceed the amount of that expenditure for that
category or sub-category or other items of cost provided for
in the PFA Budget by more than 5 per cent., the Pool Funds
Administrator shall notify the Executive Committee
accordingly and explain the reasons for the increase. The
Executive Committee may require the Pool Funds Administrator
to invite tenders for any of the categories or
sub-categories or items of cost which are so exceeded, in
accordance with paragraph 10.4.3.
10.4.2 If the Executive Committee considers that the amount
budgeted for any category or sub-category or other item of
cost in the PFA Budget is unreasonable then the Executive
Committee may require the Pool Funds Administrator to invite
tenders for any of the categories or sub-categories or other
items of cost in the PFA Budget in accordance with paragraph
10.4.3.
10.4.3 Within seven Business Days after receipt of a notice given
pursuant to paragraph 10.4.1 the Executive Committee shall
notify the Pool Funds Administrator in writing whether it
wishes the Pool Funds Administrator to seek a further tender
for the service in question. If the Executive Committee so
notifies the Pool Funds Administrator that it requires a
further tender to be sought, the Pool Funds Administrator
shall obtain a further tender and shall give the Executive
Committee reasonable details of that further tender and at
the same time shall notify the Executive Committee of which
tender it has chosen to accept together (if applicable) with
reasons as to why it has not chosen the lowest price tender.
10.4.4 If the Executive Committee fails to notify the Pool Funds
Administrator within the time period referred to in
paragraph 10.4.2 or notifies the Pool Funds Administrator
that it does not wish it to seek a further tender, the Pool
Funds Administrator may accept the original tender.
<PAGE>
10.5 Basis of preparation: All Statements of PFA Costs and Fees other than
a Statement of PFA Costs and Fees in respect of an entire PFA
Accounting Period shall be unaudited but prepared on a best estimates
basis. The Statement of PFA Costs and Fees in respect of an entire PFA
Accounting Period shall be audited by EPFAL's auditors.
10.6 Accounting Practices: Each PFA Budget and Statement of PFA Costs and
Fees shall be prepared on the basis of the accounting principles and
practices used to draw up the most recent audited accounts of EPFAL
and consistently applied. If any Statement of PFA Costs and Fees for
an entire PFA Accounting Period is not prepared on such basis, EPFAL
shall prepare and submit to the Executive Committee and all Pool
Members a pro-forma set of its audited accounts for such entire PFA
Accounting Period which is prepared on the basis of the accounting
principles and practices used to prepare the relevant Statement of PFA
Costs and Fees. Any changes in the accounting principles and practices
or their method of application used to prepare EPFAL's audited
accounts shall be noted in the next following PFA Budget or Statement
of PFA Costs and Fees, as the case may be.
10.7 Statement of PFA Charges: A Statement of PFA Charges shall accompany
each Statement of PFA Costs and Fees.
11. QUALITY OF SERVICE REVIEW
11.1 Complaints: If the Executive Committee shall receive from any Pool
Member written notification of a breach or an alleged breach of the
Agreement or an Agreed Procedure involving EPFAL in its capacity as
the Pool Funds Administrator it shall promptly notify EPFAL of receipt
and shall send a copy of such notification to EPFAL.
11.2 Report: Within one month after receipt from the Executive Committee of
any such notification as is referred to in sub-section 11.1 EPFAL
shall prepare and submit to the Executive Committee a written report
explaining in reasonable detail the circumstances which gave rise to,
and the causes of, the breach (or, if it asserts that there has not
been a breach, the reasons in support of that assertion), any remedial
action taken by it and the consequences of such action.
11.3 Quality of Service Review: Promptly after receipt of EPFAL's written
report referred to in sub-section 11.2 (or, if EPFAL shall fail to
submit a report within the period referred to in that sub-section,
promptly after expiry of that period) the Executive Committee shall
determine whether it wishes to commission a Quality of Service Review.
In making such determination the Executive Committee shall take into
account the nature and seriousness of the notified breach (or alleged
breach) and the said written report (if any). The Executive Committee
shall notify EPFAL in writing of any such determination.
11.4 Consultants: If the Executive Committee shall determine to commission
a Quality of Service Review, it shall instruct the Consultants to
conduct such review and to report in writing (a "Review Report") to
the Executive Committee and EPFAL.
11.5 Terms of engagement: The terms of engagement of the Consultants
(including the objectives and scope of the work to be performed and
the form of report to be issued) in
<PAGE>
respect of any Quality of Service Review shall (subject to sub-section
11.10) be determined by the Executive Committee in consultation with
EPFAL.
11.6 Review Report: EPFAL shall be given the opportunity to examine and
comment on any factual details contained in any Review Report before
it is submitted in final form. Such final form shall, if the
Consultants commissioned to carry out the Quality of Service Review
shall think fit, take into consideration the comments of EPFAL on any
factual details contained in the Review Report and include an
indication of the response and proposed action of EPFAL. A copy of the
final form of the Review Report shall be sent to EPFAL and may be
distributed by the Executive Committee to Pool Members and the
Director.
11.7 Implementation: Upon receipt of a Review Report, EPFAL shall (if so
required by and in consultation with the Executive Committee) give
effect to such recommendations, if any, as are set out in such report
as soon as is reasonably practicable following the date of receipt by
EPFAL of such report.
11.8 Arbitration: If EPFAL shall in good faith consider the recommendations
in any Review Report to be impractical or inappropriate, the same
shall be referred for resolution to arbitration in accordance with
Clause 83.
11.9 Access: For the purposes of any Review Report, EPFAL shall permit the
Consultants access to the Funds Transfer Hardware, the Funds Transfer
Software and all data used by EPFAL in the operation of the Funds
Transfer System and to such of its company books, accounts and
vouchers as relate to any of the items or categories of expenditure
which make up the PFA Operating Costs or the 1998 PFA Development
Costs as are necessary for the performance of the Quality of Service
Review. The Consultants shall also be entitled to require from EPFAL's
officers, employees or agents such information and explanations as are
necessary for the performance of the Quality of Service Review (but,
for the avoidance of doubt, the Consultants shall not have access to
any data used, information held or records kept in relation to any
Pool Member without such Pool Member's prior written consent).
11.10 Confidentiality: The terms of engagement of the Consultants
commissioned to carry out the Quality of Service Review shall include
a written obligation of the Consultants and signed on their behalf in
favour of EPFAL to keep confidential information made available by
EPFAL to the Consultants or to which the Consultants have access for
the purposes of the Quality of Service Review save that the
Consultants shall be entitled to disclose any such information:-
11.10.1 in the Review Report to the extent that the Consultants
reasonably consider appropriate (after consultation with
EPFAL) for the purposes of that report; or
11.10.2 with the prior written consent of EPFAL; or
<PAGE>
11.10.3 in compliance with any requirement of law or pursuant to the
arbitration rules of the Electricity Arbitration Association
or pursuant to any judicial or other arbitral process or
tribunal having jurisdiction.
11.11 Additional rights: The provisions of this Section 11 are in addition
to (and not in substitution for) and shall not prejudice any other
rights which the Executive Committee or any Pool Member may have in
respect of any such breach as is referred to in sub-section 11.1.
12. AUDITORS' OPINION
The Statement of PFA Costs and Fees in respect of an entire PFA Accounting
Period to be sent to the Executive Committee and all Pool Members pursuant to
sub-section 10.1 shall be accompanied by a report from EPFAL's auditors
considering whether in such auditors' opinion:-
(a) the Statement of PFA Costs and Fees is in agreement with
EPFAL's underlying books and records;
(b) PFA Operating Costs have been properly extracted from
EPFAL's audited financial statements;
(c) the calculations in respect of the PFA Annual Fees are in
accordance with the formulae set out in this Schedule and
the Menu of EPFAL Services Prices and are correct and in
agreement with EPFAL's underlying books and records; and
(d) the calculations in respect of the Additional Reconciliation
Run Fee and the Special Run Fee are in accordance with the
formulae set out in this Schedule and the Menu of EPFAL
Services Prices, and are correct and in agreement with
EPFAL's underlying books and records.
13. PFA ACCOUNTING PERIOD
Each PFA Accounting Period shall be for a period of 12 months unless otherwise
agreed in writing by EPFAL and the Executive Committee. If EPFAL wishes to
change its accounting reference date it shall give due notice thereof to the
Executive Committee which shall agree to enter into an amending agreement to the
Agreement in order to give effect to the same at EPFAL's cost and expense.
14. THE POOL FUNDS ADMINISTRATOR'S CHARGES
EPFAL shall be entitled to recover from all Pool Members the charges set out in
Sections 15 and 16 but, subject to Sections 19 and 20, shall not be entitled to
recover any other charges.
15. AMOUNT
15.1 Annual Charges: In respect of each PFA Accounting Period, EPFAL shall
be entitled to recover from Pool Members annual charges equal to the
aggregate of the following amounts:-
<PAGE>
15.1.1 the PFA Operating Costs for the relevant PFA Accounting
Period (as identified by the Statement of PFA Costs and Fees
for such period submitted pursuant to Section 10);
15.1.2 the PFA Annual Fees for such PFA Accounting Period; and
15.1.3 the Bank Charges.
15.1A Monthly Charges: In respect of each month in a PFA Accounting Period,
EPFAL shall be entitled to recover from Pool Members monthly charges
equal to the aggregate of the Additional Reconciliation Run Fee and
the Special Run Fee.
15.2 Recovery of Charges:
15.2.1 The due proportion (determined in accordance with
sub-section 15.4) of EPFAL's charges referred to in
sub-section 15.1, payable by each Pool Member for each PFA
Accounting Period shall be recovered by monthly payments in
advance from each Pool Member or, where EPFAL and the Pool
Member otherwise agree, semi-annually in advance (calculated
on a best estimates and reasonable basis to be one twelfth
or, as the case may be, one half of the annual charges
payable by such Pool Member by reference to the most recent
PFA Budget). EPFAL shall advise each Pool Member of such
amount by invoice despatched to each Pool Member
approximately 15 days prior to the first day of each month
or, as the case may be, other period. Such invoice shall be
paid no later than the first day of such month or such other
period. Each Pool Member shall pay the amount advised in the
relevant invoice within 15 days after the invoice date.
15.2.2 The due proportion (determined in accordance with
sub-section 15.4) of EPFAL's monthly charges referred to in
sub-section 15.1A payable by each Pool Member shall be
recovered monthly in arrear from each Pool Member. EPFAL
shall advise each Pool Member of such amount by invoice
despatched to each Pool Member approximately 15 days after
the first day of each month. Such invoice shall be paid no
later than the last day of that month. Each Pool Member
shall pay the amount advised in the relevant notice within
15 days after the invoice date.
15.2.3 The PFA Termination Fee payable by each Pool Member pursuant
to Section 8A shall be recovered monthly from each Pool
Member over a period of 12 months starting on the date of
the notice referred to in sub-section 3.2A. EPFAL shall
advise each Pool Member of such amount by invoice despatched
to each Pool Member approximately 15 days after the first
day of each month. Such invoice shall be paid no later than
the last day of that month. Each Pool Member shall pay the
amount advised in the relevant notice within 15 days of the
invoice date.
15.2.4 Each Pool Member shall pay all amounts due hereunder in
sterling in cleared funds in full without set off or
counterclaim, withholding or deduction of any kind
whatsoever but without prejudice to any other remedy. All
charges are exclusive of United Kingdom Value Added Tax
which shall be added to such charges, if applicable.
<PAGE>
15.2.5 In the event of any dispute regarding charges in any month
or period, no Pool Member may withhold payment of any
invoiced amount but may refer such dispute to arbitration in
accordance with Clause 83.
15.3 Interest on non-payment: If any amount due to EPFAL in its capacity as
the Pool Funds Administrator is not received on the due date the Pool
Member required to pay such amount shall pay interest to EPFAL on such
amount from and including the date of default to the date of actual
payment (as well after as before judgment) at the rate which is 4 per
cent. per annum above the Base Rate from time to time of National
Westminster Bank PLC during each period of default.
15.4 Payment of Charges: Each Pool Member shall pay its due proportion of
EPFAL's charges for each PFA Accounting Period determined in
accordance with Section 17.
15.5 Amount of Charges: The amount of each such payment referred to in
sub-section 15.4 shall be estimated initially by reference to the PFA
Budget. EPFAL shall adjust the amount of each such payment by
reference to the most recent Statement of PFA Costs and Fees and so as
to take into account the PFA Operating Costs, the PFA Annual Fees and
the Bank Charges during the previous PFA Accounting Period and
anticipated costs in respect of the same during the current PFA
Accounting Period and shall recover from or, as appropriate, credit to
each Pool Member its due proportion of the difference between the
actual and anticipated PFA Operating Costs, PFA Annual Fees and Bank
Charges and payments received in respect of such costs, fees and
charges in each case for the previous and the current PFA Accounting
Period. Such recovery or credit shall take place by reference to an
adjustment to each Pool Member's charges for the current PFA
Accounting Period.
15.6 New and Former Pool Members: Any Pool Member which is a Pool Member
for part only of any PFA Accounting Period shall pay charges on an
interim basis of such amount as the Executive Committee estimates to
be reasonable for such PFA Accounting Period on the basis of the
allocation of charges set out in Section 17. Adjustments to charges on
all Pool Members as a result of existing Pool Members leaving or new
Pool Members joining will be made following, and shall be set out in,
the Statement of PFA Charges submitted for the relevant PFA Accounting
Period pursuant to sub-section 10.7 whereupon the Pool Members and/or
former Pool Members shall be required to pay such additional amount or
be entitled to such reimbursement as may be determined in accordance
with the Agreement by an adjustment to charges in the then current PFA
Accounting Period.
16. BANK CHARGES
Bank Charges: EPFAL in its capacity as the Pool Funds Administrator shall
collect from Pool Members the amounts they are obliged to pay by way of bank
transaction charges towards the costs of the Pool Banker and all Settlement
Banks ("Bank Charges") and shall account for the same to the Pool Banker and
such Settlement Banks.
<PAGE>
17. ALLOCATION OF CHARGES
17.1 Total PFA Sum Due: In respect of each PFA Accounting Period, the Total
PFA Sum Due shall be allocated amongst Pool Members in accordance with
the following provisions of this Section 17.
17.2 Payment of Total PFA Sum Due:
Each Pool Member shall be obliged to pay the amount allocated to it in
accordance with this sub-section. The total aggregate amount allocated
to all Pool Members in respect of any PFA Accounting Period shall
equal the Total PFA Sum Due in respect of such PFA Accounting Period.
17.3 Allocation of Total PFA Sum Due:
17.3.1 The sum due in respect of the Reconciliation Fee, the 1998
PFA Development Fee, the Additional Reconciliation Run Fee
and the Special Run Fee shall be allocated amongst Pool
Members in accordance with Section 7 of Schedule 31.
17.3.2 The balance of the Total PFA Sum Due for such PFA Accounting
Period shall be allocated amongst Pool Members in the
following manner:-
(a) first, in order to recover the discrete costs
referable to each Pool Member during such PFA
Accounting Period, the costs incurred by EPFAL in
its capacity as the Pool Funds Administrator in
complying with a request of such Pool Member made
pursuant to Clause 63.1.7 or sub-section 6.3 of
Schedule 11 which are directly referable to such
Pool Member shall, as far as possible, be
allocated to such Pool Member; and
(b) secondly, 100 per cent. of such balance (less the
costs recovered pursuant to paragraph 17.3.2(a))
shall be allocated amongst all Pool Members during
such PFA Accounting Period according to their
respective Contributory Shares for such PFA
Accounting Period. For this purpose, each Pool
Member's due proportion of the charges shall be
assessed first by reference to the then latest
Contributory Shares of all Pool Members calculated
by the Executive Committee for the period and each
part thereof to which such charges relate (or, if
and to the extent that the charges relate to a
period for which no such calculation has yet been
made, by reference to the then most recently
calculated current Contributory Shares of all Pool
Members) and shall thereafter be readjusted from
time to time for each day within the relevant
period following changes to the Contributory
Shares of Pool Members for all or any part of such
period or (as the case may be) following the
calculation or re-calculation of the Contributory
Shares for such period.
17.4 Prima facie evidence: EPFAL's determination of the allocation of all
costs during any PFA Accounting Period shall, in the absence of
manifest error, be prima facie evidence thereof.
<PAGE>
17.5 Minimum payments: EPFAL shall not issue any invoice, nor shall any
Pool Member be obliged to make any payment (whether initially or by
way of adjustment), if the aggregate amount otherwise payable by that
Pool Member pursuant to this Section is less than the minimum from
time to time agreed by the Executive Committee with EPFAL provided
that if in respect of an Accounting Period such aggregate amount is
less than such minimum amount, EPFAL shall issue an invoice in respect
thereof (which the Pool Member shall be required to pay) immediately
after the Final Calculation Date for such Accounting Period. Where the
minimum applies, a Pool Member shall remain liable for any amounts
payable by it but shall not be required to make any payment until such
time as the amount in question is permitted to be, and is, included in
an invoice. Sub-section 15.3 shall be construed accordingly.
18. ADJUSTMENT
18.1 Revision of charges: If the Executive Committee requests EPFAL to
continue to serve as the Pool Funds Administrator pursuant to
sub-section 3.1 to allow a successor to be appointed, EPFAL and the
Executive Committee shall negotiate in good faith for a period not
exceeding six weeks (or such longer period as EPFAL and the Executive
Committee may agree in writing) with a view to agreeing a revision of
the following:-
18.1.1 the Base Sum to be used in the calculation of each of the
Basic Fee and the Reconciliation Fee for the duration of the
additional period referred to in sub-section 3.1; and
18.1.2 the amount of the Pool Administration Fee, the Additional
Reconciliation Run Fee and the Special Run Fee.
18.2 Amendment: Any amendment agreed between EPFAL and the Executive
Committee pursuant to sub-section 18.1 shall take effect in accordance
with the terms of that agreement.
18.3 Arbitration: If no agreement is reached within the said negotiation
period the Executive Committee or EPFAL may refer the dispute to
arbitration pursuant to Clause 83. Pending any such agreement being
reached or any such dispute being resolved by arbitration, EPFAL shall
continue to serve as the Pool Funds Administrator for the additional
period referred to in sub-section 3.1.
19. ADDITIONAL COMPENSATION
19.1 General: A direction or instruction of the Executive Committee to
EPFAL in its capacity as the Pool Funds Administrator shall not
materially increase the duties, responsibilities or liabilities of
EPFAL as the Pool Funds Administrator beyond those detailed in the
Agreement as at the PFA Implementation Date and as detailed in the
Agreed Procedures without proper compensation.
19.2 Compensation: If the Executive Committee gives a direction or
instruction to EPFAL in its capacity as the Pool Funds Administrator
which materially increases the duties, responsibilities or liabilities
of EPFAL as the Pool Funds Administrator beyond those
<PAGE>
detailed in the Agreement as at the PFA Implementation Date and as
detailed in the Agreed Procedures, then (subject to sub-section
19.3):-
19.2.1 EPFAL shall carry out that direction or instruction unless
it has reasonable grounds for refusing so to do in which
event it shall forthwith notify the Executive Committee in
writing of its refusal and its reasons therefor (and, for
this purpose, an increase in the duties, responsibilities or
liabilities of EPFAL in its capacity as the Pool Funds
Administrator shall not of itself constitute reasonable
grounds);
19.2.2 EPFAL and the Executive Committee shall negotiate in good
faith for a period not exceeding one month (or such longer
period as EPFAL and the Executive Committee may agree in
writing) with a view to agreeing an appropriate increase in
the following:-
(a) the Base Sum to be used in the calculation of each
of the Basic Fee and the Reconciliation Fee; and
(b) the amount of the Pool Administration Fee, the
Additional Reconciliation Run Fee and the Special
Run Fee;
19.2.3 any increase agreed between EPFAL and the Executive
Committee pursuant to paragraph 19.2.2 shall take effect in
accordance with the terms of that agreement; and
19.2.4 if there shall be any dispute as to whether that direction
or instruction does or did materially increase the duties,
responsibilities or liabilities of EPFAL as the Pool Funds
Administrator or whether EPFAL has reasonable grounds for
refusing to carry out that direction or instruction or if no
agreement is reached under paragraph 19.2.2, EPFAL or the
Executive Committee may refer the dispute to arbitration in
accordance with Clause 83.
19.3 Reservation: The performance by EPFAL of any direction or instruction
of the Executive Committee shall not prevent EPFAL from later claiming
that such direction or instruction materially increased its duties,
responsibilities or liabilities as the Pool Funds Administrator
provided always that EPFAL shall not be entitled so to claim unless it
gave written notice to the Executive Committee promptly (and in any
event within seven days) after first becoming aware that such
direction or instruction materially increased or was likely materially
to increase such duties, responsibilities or liabilities, such notice
to contain detailed reasons in support of why there has been or is
likely to be such an increase.
19.4 Funds Transfer Software Development Costs:
19.4.1 EPFAL may at any time and from time to time notify the
Executive Committee of the amount of any Funds Transfer
Software Development Costs with a view to agreeing the same
with the Executive Committee.
<PAGE>
19.4.2 EPFAL shall arrange for collection from Pool Members of
their respective proportionate share of the Funds Transfer
Software Development Costs in such manner as may be agreed
by EPFAL with the Executive Committee from time to time
(which may include collection in advance) and Pool Members
shall comply with such collection procedures and, in
particular, shall make payment within the time period
prescribed by such procedures.
19.4.3 Any agreement between EPFAL and the Executive Committee
pursuant to paragraphs 19.4.1 and 19.4.2 shall take effect
in accordance with the terms of that agreement.
19.4.4 If no agreement is reached under paragraph 19.4.1 within 30
days after receipt by the Executive Committee of EPFAL's
notification thereunder (or within such longer period as
EPFAL and the Executive Committee may agree) or if no
agreement is reached under paragraph 19.4.2, EPFAL or the
Executive Committee may refer the dispute to arbitration in
accordance with Clause 83.
20. POOL ADMINISTRATION COSTS AND STAGE 2 OPERATIONAL COSTS
20.1 Services: Subject to sub-section 20.2, EPFAL shall provide the
services referred to in, and shall recover the Pool Administration
Costs and the Stage 2 Operational Costs in accordance with, Sections 6
and 7 of Schedule 31.
20.2 Delegation by Executive Committee: The obligations and rights of EPFAL
under sub-section 20.1 shall subsist only in respect of the period for
which EPFAL is authorised to carry out the relevant function pursuant
to Section 6 or 7 of Schedule 31, as the case may be.
20.3 Transfer of responsibilities: If EPFAL is authorised to carry out one
or more of the functions referred to in sub-section 20.2 and that
authorisation is then withdrawn or otherwise ceases, EPFAL shall
co-operate with the Executive Committee or, as the case may be, the
successor nominee in the transfer of such function(s) so that as
little inconvenience to the Parties is caused as is practicable in all
the circumstances and shall make over all such records, manuals, data
and other information as the Executive Committee or the successor
nominee may reasonably require to enable it to carry out such
function(s).
<PAGE>
ANNEX 1
PFA Budget for the 1998 PFA Accounting Period
(A)
BUDGETED COSTS
Budgeted Cost
Category/Item (pound)000
- ------------- -------------
Insurance costs 210
Funds Transfer Hardware and Funds Transfer Software
testing and maintenance costs 100
Audit fees 40
Bank administration charges 100
Bad debt allowance --
--------------------
Total Sum Due 450
====================
<PAGE>
(B)
NOTICE OF ANNUAL FEES
1. Basic Fee
Basic Fee: the Basic Fee for the 1998 PFA
Accounting Period is(pound)1,250.
Calculation of Basic Fee:
2. Reconciliation Fee
Reconciliation Fee: the Reconciliation Fee for the 1998
PFA Accounting Period is (pound)400.
Calculation of
Reconciliation Fee:
3. Pool Administration Fee
Pool Administration Fee: the Pool Administration Fee for the
1998 PFA Accounting Period is (pound)
85.
Calculation of Pool
Administration Fee:
4. 1998 PFA Development Fee
1998 PFA Development Fee: the 1998 PFA Development Fee for the
1998 PFA Accounting Period is(pound)
338.
Calculation of 1998 PFA
Development Fee:
<PAGE>
ANNEX 2
[Not used.]
<PAGE>
ANNEX 3
Pro-forma Statement of Costs and Fees
(A)
BUDGETED COST/ACTUAL COST
Budgeted Cost for Actual Out-Turn
previous PFA for previous PFA
Accounting Period Accounting Period
----------------- -----------------
(pound)000 (pound)000
Insurance costs
Funds Transfer Hardware and Funds
Transfer Software testing and
maintenance costs
Audit fees
Bank administration charges
Bad debt allowance
----------------- -----------------
Total Sum Due
================= =================
<PAGE>
(B)
ANNUAL FEES
1. Basic Fee
Basic Fee (initial): the Basic Fee for the [19 ] PFA Accounting
Period was (pound)[ ].
Basic Fee (revisions): the Basic Fee for the [19 ] PFA Accounting
Period was revised as from [ ] to(pound)
[ ] [and as from [ ] to (pound)[ ]].
Calculation of Basic
Fee (initial and
revisions):
2. Reconciliation Fee
Reconciliation Fee
(initial): the Reconciliation Fee for the [19 ] PFA
Accounting Period was (pound)[ ].
Reconciliation Fee
(revisions): the Reconciliation Fee for the [19 ] PFA
Accounting Period was revised as from [ ]
to (pound)[ ] [and as from [ ] to
(pound)[ ]].
Calculation of
Reconciliation Fee
(initial and revisions):
3. Pool Administration Fee
Pool Administration Fee
(initial): the Pool Administration Fee for the [19 ]
PFA Accounting Period was
(pound)[ ].
Pool Administration Fee
(revisions): the Pool Administration Fee for the [19 ]
PFA Accounting Period was revised as from
[ ] to (pound)[ ] [and as from [ ]
to (pound)[ ]].
Calculation of Pool
Administration Fee
(initial and revisions):
4. 1998 PFA Development Fee
1998 PFA Development Fee
(initial): the 1998 PFA Development Fee for the
[19 ] PFA Accounting Period was
(pound)[ ].
<PAGE>
1998 PFA Development Fee
(revisions): the 1998 PFA Development Fee for the
[19 ] PFA Accounting Period was
revised as from [ ] to (pound)[ ]
[and as from [ ] to (pound)[ ]].
Calculation of 1998 PFA
Development Fee
(initial and revisions):
<PAGE>
(C)
ADDITIONAL RECONCILIATION RUN ANNUAL CHARGE
AND SPECIAL RUN ANNUAL CHARGE
1. Additional Reconciliation
Run Annual Charge
Additional Reconciliation
Run Annual Charge: (pound)[ ]
Calculation of Additional
Reconciliation Run Fees
(during relevant PFA
Accounting Period):
2. Special Run Annual Charge
Special Run Annual Charge: (pound)[ ]
Calculation of Special Run
Fees (during relevant PFA
Accounting Period):
<PAGE>
ANNEX 4
Existing Funds Transfer Software
Part 1
Beneficially Owned
Pool Funds Transfer System (PFTS) PHASE 1
System Administration - User Guide (2/5/90)
Clerical Procedures (3/5/90)
Self Study Training Module (4/7/90)
Billing Sub-Project - Test Specification v.1.0 (29/3/90), v.1.1 (3/4/90)
Test Plan - Issue 1.1 (3/4/90)
System Testing Log (4/4/90)
Quality Assurance Plan (16/5/90)
Test Data (2/4/90)
Test Schedules (3/4/90)
Implementation Paper - Security Controls (22/3/90)
Pool Funds Transfer System (PFTS) PHASE 1.1
Test Plan Issue 1.0 (18/6/90)
Summary Test Report (13/7/90)
Pool Funds Transfer System (PFTS) PHASE 2.0
Documentation EPFAL PFTS Phase II User Manual Version 1
Documentation EPFAL PFTS Phase II DBA Guide Version 1
Physical Design Documentation (volumes 1-4) (22/6/90)
Functional Specification - Appendices (April 1990)
Addendum to the Detailed Physical Design (May 1991)
<PAGE>
Part 2
Licensed
The licences in this Part 2 are not transferable with the exception of the VMS
Base licences (which can only be transferred with the computers).
Licences from Digital
NAS-150 Authorization: ALS-IL-1996FEB29-1761
NAS-150 Authorization: ALS-IL-1996JUL02-1198
VMS-Base Authorization: ALS-IL-1996JUL02-1200
VMS-Base Authorization: ALS-IL-1996FEB29-1763
VMS 1 User Licence Authorization: AL3-IL-1996JUL02-1201
VMS 4 User Licence Authorization: AL3-IL-1996JUL03-33
VMS 2 User Licence Authorization: AL3-IL-1996JUL03-32
VMS 1 User Licence Authorization: AL3-IL-1996FEB29-1764
VMS 2 User Licence Authorization: AL3-IL-1996MAR08-2063
VMS 4 User Licence Authorization: AL3-IL-1996MAR08-2062
Pathworks Combined Client version 5
1 User Authorization: AMA-IL-94054-6565
1 User Authorization: AMA-IL-94054-6566
1 User Authorization: AMA-IL-94054-6567
Pathworks Combined Client version 5.01
5 User Authorization: AMA-IL-94292-3598
1 User Authorization: AMA-IL-94290-2036
Pathworks Combined Client version 6
1 User Authorization: AMA-IL-1996APR23-137
1 User Authorization: AMA-IL-1996APR23-138
1 User Authorization: AMA-IL-1996NOV01-23
1 User Authorization: AMA-IL-1996NOV01-24
<PAGE>
1 User Authorization: AMA-IL-1996DEC03-19
1 User Authorization: AMA-IL-1996DEC03-21
1 User Authorization: AMA-IL-1996DEC03-20
Pathworks NT Combined Client version 4.01
1 User Authorization: AMA-IL-1996OCT16-264
1 User Authorization: AMA-IL-1996OCT17-842
1 User Authorization: AMA-IL-1996OCT16-265
1 User Authorization: AMA-IL-1997JAN08-15
Pathworks File & Print Client version 5.00
1 User Authorization: AMA-IL-1997MAY30-1480
1 User Authorization: AMA-IL-1997MAY30-1479
1 User Authorization: AMA-IL-1997JUL26-138
Pathworks Win95 Client version 7
1 User Authorization: AMA-IL-1997JUL26-139
1 User Authorization: AMA-IL-1997MAR18-1610
1 User Authorization: AMA-IL-1997MAR18-1609
1 User Authorization: AMA-IL-1997MAR18-1611
1 User Authorization: AMA-IL-1997MAR18-1608
1 User Authorization: AMA-IL-1997MAR18-1607
1 User Authorization: AMA-IL-1997AUG09-14
1 User Authorization: AMA-IL-1997AUG09-13
1 User Authorization: AMA-IL-1997AUG09-12
1 User Authorization: AMA-IL-1997AUG09-11
1 User Authorization: AMA-IL-1997AUG09-15
Pathworks 6 Client access
1 User Authorization: AMA-IL-1997DEC09-1139
<PAGE>
1 User Authorization: AMA-IL-1997DEC09-1138
Licences from ORACLE
8 User database licence
8 User database licence
8 User Developer 2000 licence
1 User Designer 2000 licence
Licences from Mocom Systems
NetFax software (10 User 8 line)
As a number of the above licences are not transferable, set out below is a list
of the licences that would be required for operation of the PFTS system (both
PFTS and PFTS98):
VMS Base licences for each Alpha computer
VMS user licences for each Alpha computer for the number of concurrent users
Pathworks 32 client and client access licences for each connected PC
Oracle database licence for the number of concurrent users for the production
Alpha
Oracle Developer 2000 licence - 1 User
NetFax software (10 User 8 line)
<PAGE>
ANNEX 4A
Existing Funds Transfer 1998 Software
FARCH010.FMB Oracle Form Archive Billing Runs
FARCH020.FMB Oracle Form Restore From Archive
FCALN010.FMB Oracle Form Calendar holiday entry screen
FCALN020.FMB Oracle Form Calendar generation/modification
screen
FCALN040.FMB Oracle Form Calendar report kick-off screen
FDEFT010.FMB Oracle Form Set Off Processing
FDEFT020.FMB Oracle Form Utilise Cash Deposit
FDEFT030.FMB Oracle Form Scale Down
FDEFT040.FMB Oracle Form Repay Scaledown
FDISP010.FMB Oracle Form Disputes entry screen
FDISP020.FMB Oracle Form Dispute Advice Note Listing
FDISP025.FMB Oracle Form Print Dispute Advice Notes
FDISP030.FMB Oracle Form Run Disputes Conf Note Listing
FDISP035.FMB Oracle Form Print Dispute Conf. Notices.
FDISP040.FMB Oracle Form Prepare Dispute Conf. Notes
FDISP080.FMB Oracle Form Process Disputes
FMAIN010.FMB Oracle Form Main entry screen
FMAIN020.FMB Oracle Form Logon screen
FMANA010.FMB Oracle Form Print Ledger Reports
FMANA020.FMB Oracle Form Credit Monitoring Reports
FMSTD010.FMB Oracle Form Maintain VAT Rates
FMSTD020.FMB Oracle Form Maintain Security Cover
FMSTD030.FMB Oracle Form Maintain Base Rates
FMSTD040.FMB Oracle Form GSP Group Maintenance
FMSTD050.FMB Oracle Form Maintain Bank Details
FMSTD060.FMB Oracle Form Maintain Credit Rating
FMSTD070.FMB Oracle Form Pool Member Maintenance
FMSTD071.FMB Oracle Form Pool Member Report
FMSTD080.FMB Oracle Form Banks Report
FMSTD090.FMB Oracle Form Base Rates Report
FMSTD100.FMB Oracle Form Maintain Letter Codes
FMSTD110.FMB Oracle Form Maintain PFA Address
FORMSKEL.FMB Oracle Form Template form - used as a basis for
new screens
FPAYM010.FMB Oracle Form Create Payments
FPAYM015.FMB Oracle Form Create Adjustments
FPAYM019.FMB Oracle Form Adjust Balance Errors
FPAYM020.FMB Oracle Form Create Advice Notes
<PAGE>
FPAYM025.FMB Oracle Form Run Advice Note Listing
FPAYM030.FMB Oracle Form Advice Notes Report Screen
FPAYM050.FMB Oracle Form Prepare Confirmation Notes
FPAYM060.FMB Oracle Form Run Confirmation Note Listing
FPAYM070.FMB Oracle Form Confirmation Notes Report
FPAYM080.FMB Oracle Form Run Expected Cash Report
FPAYM090.FMB Oracle Form Run Bank Advice Report
FPAYM099.FMB Oracle Form Reprint Advice/Conf. Note
FPHAS010.FMB Oracle Form Maintain Tests
FPHAS020.FMB Oracle Form Create Advice Notes for Tests
FPHAS030.FMB Oracle Form Calculate IFT Payments
FPHAS040.FMB Oracle Form Run Phase 4 Advice Note Listing
FPHAS050.FMB Oracle Form IFT Detail Advice Note Screen
FPHAS060.FMB Oracle Form Phase 4 Report Screen
FPHAS070.FMB Oracle Form Create Conf Nos for Tests
FPHAS080.FMB Oracle Form Phase 4 Conf Notes Listing
FPHAS090.FMB Oracle Form Phase4 Conf. Notes Report
FSYST010.FMB Oracle Form Maintain Functions
FSYST020.FMB Oracle Form Maintain Reference Codes
FSYST030.FMB Oracle Form Maintain Messages
FSYST040.FMB Oracle Form User Security
FSYST050.FMB Oracle Form Printer Control
FSYST060.FMB Oracle Form List Directory
FSYST070.FMB Oracle Form Display Batch Queue
FSYST080.FMB Oracle Form Batch Processes
FSYST090.FMB Oracle Form Maintain Document Types
FSYST100.FMB Oracle Form Transfer server files.
FTAKE040.FMB Oracle Form SSA Data Entry
FTAKE050.FMB Oracle Form ISRA Data Entry
FTAKE055.FMB Oracle Form Create / View Ad Hoc Runs
PFTS.FMB Oracle Form PFTS library form - holds all screen
standards
REPSKEL.FMB Oracle Form Template form - used as a basis for
new kick-off screens
RCALN041.RDF Oracle Report Settlement Calendar
RCALN042.RDF Oracle Report Settlement Calendar Reports
RDISP020.RDF Oracle Report Dispute Advice Note Listing
RDISP030.RDF Oracle Report Disputes Conf Note Listing
RDISP090.RDF Oracle Report Initial Dispute Backing Sheets
RDISP095.RDF Oracle Report Final Dispute Backing Sheets
RMANA011.RDF Oracle Report Pool Billing Ledger Report
RMANA020.RDF Oracle Report Credit Monitoring Summary Report
RMANA030.RDF Oracle Report Credit Monitoring Exception Report
<PAGE>
RMANA040.RDF Oracle Report Advice Note Backing Sheets
RMSTD071.RDF Oracle Report Pool Member Report
RMSTD080.RDF Oracle Report Banks Report
RMSTD090.RDF Oracle Report Base Rates Report
RPAYM010.RDF Oracle Report Balance Check Errors
RPAYM025.RDF Oracle Report Advice Note Report
RPAYM030.RDF Oracle Report Advice Note Report
RPAYM031.RDF Oracle Report Fax Advice Note.
RPAYM040.RDF Oracle Report Advice Note Backing Sheets
RPAYM060.RDF Oracle Report Confirmation Note Listing
RPAYM070.RDF Oracle Report Confirmation Notes Report
RPAYM080.RDF Oracle Report Expected Cash Report
RPAYM090.RDF Oracle Report Bank Advice Report
RPHAS040.RDF Oracle Report Phase 4 Advice Note Listing
RPHAS080.RDF Oracle Report Phase 4 Conf Notes Listing
FORMLIB.PLL Oracle Library Form library - holds common
procedures and functions
FORMMENU.MMB Oracle Menu In-form menu
PFTSMENU.MMB Oracle Menu PFTS main menu
BATLSTNR.PC Pro*C Program Batch deamon - handles client/server
communication
CBATC020.PC Pro*C Program Runs a VMS command (in batch)
CBATC030.PC Pro*C Program Runs an Oracle Report on the server
(in batch)
CTAKE020.PC Pro*C Program Data Load C program
PFTS_LIB.PC Pro*C Program Pro*C library - holds common Pro*C
routines
PRO_RATE.PC Pro*C Program Phase 4 process calculation
PFTS_LIB.H C Header File C PFTS library header file
PRO_RATE.H C Header File C library header file for Phase 4
processing
COMPILE.COM VMS Command File Compiles a Pro*C module (without OCI
or PFTS library calls)
COMPILE_ALL.COM VMS Command File Compiles all Pro*C modules
PFTSCOMP.COM VMS Command File Compile a Pro*C module (without OCI
calls but with PFTS library calls)
R25COMP.COM VMS Command File Compiles CBATC030 (new reports
executable)
REPCONV.COM VMS Command File Converts all RDF files to REP files
RUN_C.COM VMS Command File Used by PFTS to run a C program
RUN_CMD.COM VMS Command File Used by PFTS to run a VMS command
LD_ISRA.CTL SQL*Loader Control File ISRA load control file
LD_SSAG.CTL SQL*Loader Control File SSA Generator load control file
LD_SSAS.CTL SQL*Loader Control File SSA Supplier load control file
ADVN_BCK.SQL PL/SQL Package Advice Note Backing Sheets package
ARCHBRUN.SQL PL/SQL Package Archive Billing Run package
BATCH_IF.SQL PL/SQL Package Batch Interface package
<PAGE>
BATCH_JOB.SQL PL/SQL Package Batch Job package (used by Batch
Interface)
CR_PMIR.SQL PL/SQL Package Create Payments package
DATA_LOAD.SQL PL/SQL Package Data Load package
DISP_BCK.SQL PL/SQL Package Disputes Backing Sheet package
DISPUTES.SQL PL/SQL Package Disputes processing package
GENAUD.SQL PL/SQL Package Generates Audit Tables and Triggers
GENERAL.SQL PL/SQL Package General package - contains VAT and
Interest calculation routines
PPAYM011.SQL PL/SQL Package Balance checks package
PPAYM019.SQL PL/SQL Package Automatic Adjustment of Rounding
Errors package
RESTBRUN.SQL PL/SQL Package Restore Billing Run Package
UPD_JOB.SQL PL/SQL Package Update job package (called from all
reports)
ISRA_RUN.SQL SQL File SQL to simulate receipt of ISRA files
UPD_CAL.SQL SQL File SQL to remove reconciliations from
the calendar
prior to TA go-live
<PAGE>
ANNEX 5
Escrow Arrangements
1.1 EPFAL Escrow Agreement
No later than 1st February, 1993 (or such later date as EPFAL and the
Executive Committee may agree in writing) EPFAL in its capacity as the
Pool Funds Administrator (for itself and on behalf of the Pool Members
acting through the Executive Committee) shall enter into and deliver
an escrow agreement (the "PFA Escrow Agreement") in the form to be
agreed between EPFAL and the Executive Committee with a reputable
escrow agent to be agreed between EPFAL and the Executive Committee
(the "PFA Custodian"). Forthwith upon entering into the PFA Escrow
Agreement EPFAL shall deposit with the PFA Custodian to the extent
then in existence (and, if not in existence, as soon as possible after
it comes into existence):-
1.1.1 a copy of the source code and load (machine executable)
modules relating to all Funds Transfer Software beneficially
owned by it together with all job control language and
licensed software system tables, each in a machine readable
form and the source code and job control language in a hard
copy form;
1.1.2 a copy of all related manuals and other associated
documentation, including:-
(a) any user requirement documents, together with all
associated authorised change requests;
(b) any functional specification documents associated
with those documents described in paragraph (a)
above, together with all authorised change
requests associated with the relevant functional
specification;
(c) to the extent available to EPFAL, any design
specification documents associated with those
documents described in sub-paragraphs (a) and (b)
above, together with all authorised change
requests associated with the relevant design
specification;
(d) any program and/or user guides prepared to assist
in the day-to-day operation and future development
of the computer programs (including records of
test cases together with the associated test input
and output data used for validation purposes);
(e) any relevant test strategy schedules and
acceptance test schedules as specified for
functional and operational end to end testing;
(f) any relevant test acceptance certificates and
reports for all tests recording comments and
observations made on the appropriate tests where
such tests commissioned by EPFAL;
<PAGE>
(g) any relevant client acceptance certificates and
Pool Auditor's reports, together with any reports
recording such clients' and the Pool Auditor's
observations and comments on the tests;
(h) any relevant compilation or detailed operating
procedures required in connection with any of the
relevant paragraphs in this paragraph 1.1.2;
(i) all software licences for Funds Transfer Software
licensed to EPFAL; and
(j) a list detailing all versions of Funds Transfer
Software licensed to EPFAL (including operating
systems and compilers) used in creating such
versions of the object code detailing the version
numbers used and any program temporary fixes or
equivalent modes;
1.1.3 a copy of all historical data (including all transaction,
reference and audit data and changes to standing data)
relating to the operations of EPFAL in its capacity as Pool
Funds Administrator;
1.1.4 all the material referred to in paragraphs 1.1.1 to 1.1.3
above is hereafter together referred to in this Annex 5 as
the "PFA Material".
1.2 Licensed Funds Transfer Software
If, after consultation with EPFAL, the Executive Committee shall so
request, EPFAL shall use its reasonable endeavours to procure that the
owner of any Funds Transfer Software shall permit the deposit of such
Funds Transfer Software licensed to EPFAL with the PFA Custodian or
other reputable escrow agent on the terms of the Escrow Agreement or
similar agreement approved by the Executive Committee.
1.3 Updating
EPFAL shall ensure that the PFA Material deposited with the PFA
Custodian is kept fully up-to-date and reflects all Modifications (as
defined in the PFA Escrow Agreement) and shall deposit a copy of all
Modifications with the PFA Custodian as soon as the same are
available, all in accordance with the terms of and subject to the
conditions of the PFA Escrow Agreement. EPFAL shall notify the
Executive Committee promptly of the delivery of each Modification to
the PFA Custodian.
<PAGE>
SCHEDULE 16
Matters requiring consent of
the Settlement System Administrator
The Settlement System Administrator's membership of, and the procedures and
powers of, the Project Board
Terms of reference of project managers
Approval of project documents
Quality standards (including design, coding, testing, implementation and
documentation)
Role of Pool Auditor in systems development
Components of project life cycle
Ownership and warranties on development
Housekeeping
The Settlement System Administrator's responsibilities and rights
Use of the Settlement System Administrator's resources
Implementability of systems - technical compatibility with existing system
- use of the Settlement System Administrator's
facilities for testing
- parallel operation
- migration into production
- configuration control
- implementation planning
Operability of systems - operational feasibility
- operational support requirements
- operational testing
- interface design
- performance
<PAGE>
- security
- auditability
- reliability
Maintainability of systems - design integrity
- design documentation
- adherence to design and coding standards
- reliability
- configuration control
<PAGE>
SCHEDULE 17
Trading Sites
PART A : GENERAL
1. Introduction: A site shall be identified as a Trading Site for the
purposes of this Agreement in accordance with the following provisions
of this Schedule.
2. Application: A Party may apply to the Executive Committee for a site
to be treated as a Trading Site by sending to the Executive Committee
a written application in the form prescribed by the relevant Agreed
Procedure (in this Schedule, a "Trading Site Application") stating the
class of application and containing the other information and
supported by the documents and other matters referred to in Part C and
signed by or on behalf of the Generator concerned and the Supplier
concerned where there exists a Supplier in respect of that site
(together in this Schedule, the "Trading Site Applicants").
3. Decision: The Executive Committee shall consider any Trading Site
Application within 45 days after receipt in accordance with the
procedures set out in Part B and (subject to Section 5 of Part B)
shall within that period make a determination as to whether the site
the subject of such application (in this Schedule, the "Nominated
Site") shall be treated as a Trading Site and shall promptly notify
the Trading Site Applicants and the Settlement System Administrator of
its determination.
PART B : PROCEDURES
1. Classes: Every Trading Site Application shall state whether it is a
Class 1, Class 2, Class 3 or Class 4 application and the Executive
Committee shall consider a Trading Site Application by reference to
the provisions set out in this Part B for the stated class (or, in the
case of Section 5, as provided therein).
2. Class 1: If the Trading Site Application shall state that it is a
Class 1 application then the Executive Committee shall determine from
the Trading Site Application and supporting documentation and other
matters (and any further evidence provided in accordance with Section
6) if the Nominated Site is a Power Station which is or is to be
electrically configured in the same manner as is prescribed in one of
the line diagrams contained in the relevant Agreed Procedure and
fulfils all the conditions specified in such Agreed Procedure
applicable to a Class 1 application, in which event the Nominated Site
shall be treated as a Trading Site.
3. Class 2: If the Trading Site Application shall state that it is a
Class 2 application then the Executive Committee shall determine from
the Trading Site Application and supporting documentation and other
matters (and any further evidence provided in accordance with Section
6) if the generation and demand at the Nominated Site are electrically
connected solely by Dedicated Assets, in which event the Nominated
Site shall be treated as a Trading Site.
<PAGE>
In this Section, "Dedicated Assets" means assets and equipment which
are used solely to connect electrically (a) the location at which the
generation originates with (b) the location at which the demand is
taken (and no other), and additionally satisfy one of the diagrammatic
representations of Dedicated Assets contained in the relevant Agreed
Procedure.
4. Class 3: If the Trading Site Application shall state that it is a
Class 3 application then the Executive Committee shall determine from
the Trading Site Application and supporting documentation and other
matters (and any further evidence provided in accordance with Section
6) if the generation and demand at the Nominated Site are electrically
connected by Contiguous Assets, in which event the Nominated Site
shall be treated as a Trading Site.
In this Section:-
(a) "Contiguous Assets" means those Specified Assets and
Equipment at a location which connect by one continuous
electrical connection the location at which the generation
originates with the location at which the demand is taken,
which Specified Assets and Equipment are all owned by the
Trading Site Applicants and/or are Specified Assets and
Equipment in respect of which a contribution is or will be
made by the Trading Site Applicants to the provision and
installation or maintenance and repair costs thereof or
where such Specified Assets and Equipment are already
provided and installed, the maintenance and repair costs
thereof; and
(b) "Specified Assets and Equipment" means assets and equipment
identified and quoted in the Connection Agreement of either
Trading Site Applicant where such assets and equipment
include assets and equipment identified and quoted in the
Connection Agreements relating to both Trading Site
Applicants which form part of the continuous electrical
connection for the purposes of (a) above.
5. Class 4:
5.1 If the Trading Site Application shall state that it is a Class 4
application or if the Executive Committee shall determine that the
Nominated Site the subject of a Class 1, Class 2 or Class 3 Trading
Site Application does not satisfy the conditions specified in Section
2, 3 or (as the case may be) 4, the Executive Committee shall
determine from the Trading Site Application and supporting
documentation and other matters (and any further evidence provided in
accordance with Section 6) if the Nominated Site shall be treated as a
Trading Site having regard to the criteria set out in Section 5.2.
5.2 The criteria referred to in Section 5.1 are:-
(a) whether special circumstances existed before 30th March,
1990 which demonstrate to the reasonable satisfaction of the
Executive Committee that the generation and demand were
treated as being on a Trading Site;
<PAGE>
(b) whether special circumstances existed before 11th December,
1991 which demonstrate to the reasonable satisfaction of the
Executive Committee that the generation and demand should
have been treated as on a Trading Site;
(c) whether, although not satisfying the conditions applicable
to a Class 1, Class 2 or Class 3 Trading Site Application,
if, to the reasonable satisfaction of the Executive
Committee, the Trading Site Application demonstrates
sufficient similarities with sites which would satisfy those
conditions such that it would be unreasonable not to treat
the Nominated Site as a Trading Site;
(d) whether there are any other facts or evidence in support of
the Trading Site Application which in the reasonable opinion
of the Executive Committee demonstrate that the Nominated
Site ought to be treated as a Trading Site.
6. Further evidence: The Executive Committee may request a Trading Site
Applicant to produce such further evidence as the Executive Committee
may reasonably require in support of its Trading Site Application
before the Executive Committee makes any determination as to whether
the Nominated Site is to be treated as a Trading Site, and the
Executive Committee shall not be bound to make any determination on
the issue of whether the Nominated Site is a Trading Site pending
receipt of such further evidence.
7. Majorities: Any determination of the Executive Committee in favour of
treating a Nominated Site as a Trading Site shall require a simple
majority of the votes cast by Committee Members at the relevant
meeting provided that in the case of a Trading Site Application which
falls to be considered under Section 5 the necessary majority shall be
75 per cent. of all the votes cast by Committee Members.
8. Effect of determination: If the Executive Committee shall determine
pursuant to Section 2, 3, 4 or (as the case may be) 5 that a Nominated
Site is a Trading Site all metered values of all meters associated
with the Nominated Site and identified in the Trading Site Application
shall be aggregated in accordance with the provisions of sub-section
3.3 of, and Section 3.1 or 3.3 (as the case may be) of Appendix 6 to,
Schedule 9.
PART C : TRADING SITE APPLICATIONS
1. Every Trading Site Application shall contain the following
information:-
(a) the name and address of the Trading Site Applicants;
(b) a full description of the Nominated Site;
(c) a full description of the Metering Systems (if any) located
or to be located at the Nominated Site and of their location
together with a full description of the points at which all
electricity flows relative to the Nominated Site are to be
measured;
(d) such other information as may be specified in the relevant
Agreed Procedure; and
<PAGE>
(e) such other information as the Trading Site Applicants shall
consider relevant to their application.
2. Every Trading Site Application shall be accompanied by the following
documents and other matters:-
(a) line diagrams showing the electrical connections and energy
flows at the Nominated Site and the location of Metering
Systems (if any) and evidence demonstrating that the assets
and equipment electrically connecting the generation and
demand are capable of transmitting or distributing the
quantity of electricity to be transmitted or distributed to
the Nominated Site;
(b) confirmation from the Settlement System Administrator,
having duly notified the Grid Operator, that it is satisfied
that the metering arrangements at the Nominated Site are
compatible with the operation of Settlement;
(c) in the case of a Class 2 or Class 3 Trading Site
Application, other evidence demonstrating the existence of
Dedicated Assets or (as the case may be) Contiguous Assets
(including any Connection Agreements or relevant parts
thereof).
PART D : ADDITIONAL PROVISIONS
1. (a) The Settlement System Administrator, the Grid Operator and
each Public Electricity Supplier shall co-operate with the
Trading Site Applicants (insofar as is reasonable) to enable
them to prepare and deliver a Trading Site Application by
making available (upon reasonable notice) line diagrams
relevant to the Nominated Site.
(b) The Settlement System Administrator and the Grid Operator
shall review the Metering Systems relative to the Nominated
Site for the purposes of issuing confirmations required by
the Executive Committee and, where such confirmations are
considered appropriate by the Settlement System
Administrator and the Grid Operator, shall issue the
requisite confirmations.
(c) In relation to (a) and (b), the reasonable costs and
expenses of the Settlement System Administrator, the Grid
Operator and each relevant Public Electricity Supplier shall
be borne by the Trading Site Applicants.
2. A Nominated Site which the Executive Committee resolves should be
treated as a Trading Site (or is otherwise to be so treated) shall
cease to be treated as a Trading Site if the Executive Committee
reasonably determines that the site no longer fulfils the conditions
upon which the approval for it being so treated was based. The
Generator Trading Site Applicant shall forthwith notify the Executive
Committee if the site no longer fulfils such conditions.
<PAGE>
SCHEDULE 18
The Ancillary Services Accounting Procedure
1. INTERPRETATION
1.1 In this Schedule, except where the context otherwise requires,
references to a particular Section, sub-section or paragraph or to the
Annex shall be a reference to that Section, sub-section or paragraph
of, or the Annex to, this Schedule.
1.2 In this Schedule the expression "Rate of Inflation" means the Average
RPI (as that expression is defined in the Annex to Schedule 4, but as
if references to an SSA Accounting Period were references to an
Accounting Period and as if references to the Settlement System
Administrator were references to the Ancillary Services Provider).
2. ASP BUDGETS, STATEMENTS OF COSTS AND STATEMENTS OF CHARGES
Budgets
2.1 ASP Budgets: Not earlier than six nor later than three months prior to
the first day of each Accounting Period (other than the first) the
Ancillary Services Provider shall prepare and submit to the Suppliers
an ASP Budget for such Accounting Period. Such ASP Budget shall be
indicative only but prepared on a best estimates basis. The ASP Budget
for the first Accounting Period shall be that set out in Part 1 of the
Annex.
2.2 Contents of ASP Budgets: Each ASP Budget (other than the first) shall
compare each item or category of budgeted expenditure shown therein
with the forecast expenditure in respect of such item or category for
the remainder of the then current Accounting Period and report any
salient differences between any such forecast expenditure and the
budgeted expenditure in respect of each such item or category in the
immediately preceding ASP Budget.
2.3 Form of ASP Budgets: Each ASP Budget shall be substantially in the
form of that set out in Part 1 of the Annex (or in such other form as
the Ancillary Services Provider and the Suppliers in separate general
meeting (or their appointed representative) may from time to time
agree).
Statement of Costs
2.4 Statement of Costs: No later than one month following the date in any
Accounting Period of the publication of the audited accounts for the
Ancillary Services Business for the previous Accounting Period, the
Ancillary Services Provider shall prepare and submit to each Supplier
a Statement of Costs for such previous Accounting Period. The audited
accounts of the Ancillary Services Provider and the auditors'
management letter, to the extent it relates to the economy, efficiency
and effectiveness of the Ancillary Services Provider in carrying out
its duties, shall accompany each Statement of Costs for each entire
Accounting Period.
<PAGE>
2.5 Form of Statement of Costs: The Statement of Costs for any Accounting
Period shall attribute actual expenditure for such period against,
inter alia, each of the categories and sub-categories set out in the
corresponding ASP Budget for such Accounting Period.
2.6 Accompanying Report: Each ASP Budget and Statement of Costs for an
entire Accounting Period submitted to the Suppliers pursuant to
sub-section 2.1 or 2.4 shall be supported by a written report of the
Ancillary Services Provider commenting in reasonable detail upon the
matters comprised in the categories of expenditure included in such
ASP Budget or Statement of Costs drawing attention to and giving
reasons for any unusual commitment or item of expenditure proposed to
be incurred or which has been incurred and, in the case of a Statement
of Costs, explaining the difference (if material) between:-
2.6.1 the amount set against each item or category therein; and
2.6.2 the amount set against each corresponding item or category
in the immediately preceding ASP Budget.
2.7 Accounting Practices: Each ASP Budget and Statement of Costs shall be
prepared on the basis of the accounting principles and practices used
to draw up the most recent audited accounts of the Ancillary Services
Provider and consistently applied. If any Statement of Costs for an
entire Accounting Period is not prepared on such basis, the Ancillary
Services Provider shall prepare and submit to the Suppliers a
pro-forma set of audited accounts of the Ancillary Services Provider
for such entire Accounting Period which is prepared on the basis of
the accounting principles and practices used to prepare the relevant
Statement of Costs. Any changes in the accounting principles and
practices or their method of application used to prepare audited
accounts of the Ancillary Services Provider shall be noted in the next
following ASP Budget or Statement of Costs, as the case may be.
2.8 Statement of Charges: A Statement of Charges shall accompany each
Statement of Costs.
2.9 Bad debts: The total cost of any bad debts of the Ancillary Services
Provider arising in any Accounting Period may be taken into account by
the Ancillary Services Provider in its Statement of Costs for such
Accounting Period or any subsequent Accounting Period and accordingly
recovered as part of Total Operating Costs for any such Accounting
Period.
3. AUDITORS' OPINION
The Statement of Costs to be sent to the Suppliers pursuant to sub-section 2.4
shall be accompanied by a report from the auditors of the Ancillary Services
Provider considering whether in such auditors' opinion:-
3.1 the Statement of Costs is in agreement with the underlying books and
records of the Ancillary Services Provider; and
<PAGE>
3.2 Total Operating Costs and Depreciation have been properly extracted
from the audited financial statements.
Such auditors' report shall also contain such other matters as the Suppliers in
separate general meeting (or their appointed representative) may agree with the
auditors of the Ancillary Services Provider.
4. ACCOUNTING PERIOD
The first Accounting Period shall run from (and including) 31st March, 1990 to
(and including) 31st March, 1991. Thereafter, unless agreed by the Ancillary
Services Provider and the Suppliers in separate general meeting each Accounting
Period shall be for a period of twelve months. In the event that the Ancillary
Services Provider wishes to change its accounting reference date it shall give
due notice thereof to all Suppliers who shall agree to enter (either themselves
or through their appointed representative) into an amending agreement to give
effect to the same at the cost and expense of the Ancillary Services Provider.
5. ANCILLARY SERVICES PROVIDER'S CHARGES
5.1 Ancillary Services Provider's charges: In respect of each Accounting
Period, the Ancillary Services Provider shall be entitled to recover
from the Grid Operator in addition to the cost of Ancillary Services
the aggregate of:-
5.1.1 Total Operating Costs for the relevant Accounting Period (as
identified by the Statement of Costs for such Accounting
Period to be submitted pursuant to sub-section 2.4); and
5.1.2 the Margin.
5.2 Recovery of Charges: The Ancillary Services Provider's charges in
respect of any Accounting Period shall be recovered from the Grid
Operator on a daily basis in accordance with the Pool Rules and by
reference to the allocation provided therein by:-
5.2.1 estimating a daily amount necessary to recover the charge by
reference to the ASP Budget and, where appropriate, any
under- or over-recovery in respect of any previous
Accounting Period; and
5.2.2 adjusting that amount by reference to any subsequent
Statement of Costs.
5.3 Revision of Estimates: If the Ancillary Services Provider reasonably
believes that the amount which will be recovered under sub-section 5.2
is likely to be 10 per cent. more or less than the amount to which it
is entitled under sub-section 5.1 it shall, with the consent of the
Suppliers in separate general meeting or their appointed
representative (such consent not to be unreasonably withheld or
delayed), revise as appropriate the estimate made in accordance with
sub-section 5.2.
5.4 Sharing of Efficiency: The Ancillary Services Provider shall be
entitled to the benefit of all Efficiencies and, accordingly, to
charge Grid Operator the amount of all Efficiencies by
<PAGE>
including them in ASP Budgets and Statements of Cost in the following
manner. The amount of any Efficiency arising in any Accounting Period
shall be identified in the Statement of Costs for such Accounting
Period submitted pursuant to sub-section 2.4 and shall be taken into
account in the Statement of Costs for the two successive Accounting
Periods thereafter. Accordingly, the amount of any Efficiency may be
included in any Statement of Costs for the two Accounting Periods
following that in which the Efficiency is identified. In the Statement
of Costs for the third consecutive Accounting Period and all following
Accounting Periods thereafter the amount of such Efficiency shall be
eliminated.
6. CORPORATE OVERHEAD CHARGES AND PURCHASES
6.1 Corporate Overhead Charges: The Ancillary Services Business may take
into account in any ASP Budget or Statement of Costs (and consequently
its charges to Suppliers) all corporate overhead charges payable by
the Ancillary Services Provider to its immediate holding company or
any other division of the company of which it is a division provided
such corporate overhead charges are reasonable and in due proportion
to the corporate overhead charges payable by other affiliates of the
Ancillary Services Provider or divisions of the company of which the
Ancillary Services Provider is a division as reported upon by the
auditors of the Ancillary Services Provider.
6.2 Goods or services: Purchases of goods or services from affiliates of
the Ancillary Services Provider shall be on arm's length terms.
7. FUEL SECURITY
Except to the extent recoverable under any other provision of this Schedule, any
additional costs necessarily incurred by the Ancillary Services Provider in
running the Ancillary Services Business during a Security Period shall be
regarded as beyond the control of the Ancillary Services Provider, which may
recover the same in full from Suppliers provided such costs have been verified
as additional costs by the auditors of the Ancillary Services Provider.
Suppliers shall be obliged to pay the actual amount of such costs and expenses.
8. CAPITAL EXPENDITURE
8.1 Capital Expenditure (1): The following provisions apply to Capital
Expenditure by the Ancillary Services Provider in respect of the
Ancillary Services Business:-
8.1.1 save as provided below, Capital Expenditure by the Ancillary
Services Provider which may be recovered by Depreciation
charged to Suppliers shall require the prior approval of the
Suppliers in separate general meeting (or their appointed
representative), such approval to take into account an
appropriate sharing of the Efficiencies arising from such
Capital Expenditure;
8.1.2 Capital Expenditure which may be recovered by Depreciation
charged to Suppliers specified in any ASP Budget shall be
regarded as approved by the Suppliers in separate general
meeting or their appointed representative, as the case may
be unless the Suppliers in separate general meeting (or
their
<PAGE>
appointed representative) notify the Ancillary Services
Provider to the contrary within one month after receipt of
such ASP Budget;
8.1.3 in any Accounting Period the Ancillary Services Provider may
incur Capital Expenditure which may be recovered by
Depreciation charged to Suppliers without the need to
consult or obtain the approval of the Suppliers or their
appointed representative, as the case may be, up to a
maximum of the Individual Limit for each item of Capital
Expenditure and a maximum of the Overall Limit for all items
of Capital Expenditure and, in the event of the Ancillary
Services Provider incurring such Capital Expenditure, it
shall notify all Suppliers as soon as practicable
thereafter; and
8.1.4 the Ancillary Services Provider shall be entitled to incur
Capital Expenditure which may be recovered by Depreciation
charged to Suppliers of any amount without the need to
obtain the approval of the Suppliers in separate general
meeting (or, as the case may be, their appointed
representative) in circumstances where:-
(a) the Ancillary Services Provider would be in breach
of its duties under the NGC Transmission Licence
unless such Capital Expenditure were incurred; and
(b) it has not reached agreement with the Suppliers in
separate general meeting (or, as the case may be,
their appointed representative) on such Capital
Expenditure within a reasonable period of time.
8.2 Capital Expenditure (2): Capital Expenditure not falling within
sub-section 8.1 may not be charged as Depreciation to Suppliers.
<PAGE>
ANNEX
Part 1
ASP Budget for the First Accounting Period
(pound)M
--------
Purchases of Ancillary Services 85.00
Local Overheads 0.81
NGC Corporate Management Charge 0.48
NGC System Operations Charge 0.25
NGC Settlement Systems Charge 0.25
---------
86.79
=========
<PAGE>
Part 2
Pro-forma Statement of Costs
(pound)M
--------
Purchases of Ancillary Services
Local Overheads
NGC Corporate Management Charge
NGC System Operations Charge
NGC Settlement Systems Charge
<PAGE>
Part 3
Pro-forma Statement of Charges
- --------------------------------------------------------------------------------
Name Contributory Share Period to which charges relate Amount
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
SCHEDULE 19
Objective and Scope of
the Scheduling and Despatch Review
1. Objective: The objective of the Scheduling and Despatch Review will be
to establish that:-
1.1 scheduling and despatch is carried out in accordance with
the Scheduling and Despatch Code; and
1.2 information is entered into PORTHOLE in accordance with the
Pool Rules.
2. Scope: The scope of the review will be to:-
2.1 review internal scheduling and despatch operating procedures
for consistency with the Scheduling and Despatch Code;
2.2 review the internal checks that the Grid Operator has
established to ensure that the operation of scheduling and
despatch has been carried out in accordance with the
procedures referred to in sub-section 2.1;
2.3 perform compliance testing of the operation of the internal
checks referred to in sub-section 2.2;
2.4 review the operating procedures in relation to the use of
the Generation Schedule Goal program, including:-
(a) controls over the input of data and the output of
data to establish that they are appropriate to
ensure an adequate level of control; and
(b) procedures for the retention of records of the
nature and extent of and reasons for any manual
adjustments to Generation Schedule Goal output or
where Generation Schedule Goal is run using
non-standard parameters, for consistency with the
Scheduling and Despatch Code;
2.5 perform compliance testing of the operating procedures
referred to in sub-section 2.4;
2.6 review the operating procedures referred to in sub-sections
2.1, 2.2 and 2.4 to establish that there is no bias in
favour of or against any particular Pool Member on the part
of the Grid Operator;
2.7 review the operating procedures relating to the recording of
despatch instructions, availability declarations, generation
offer prices and the application of reason codes and the
entry of data into PORTHOLE for consistency with the Pool
Rules;
<PAGE>
2.8 perform compliance testing of the operating procedures
referred to in sub-section 2.7;
2.9 review the operating procedures referred to in sub-section
2.1 to establish that in the call for the delivery of
Ancillary Services by the Grid Operator there is no bias in
favour of or against any particular Pool Member on the part
of the Grid Operator;
2.10 review the call for the delivery of Ancillary Services;
2.11 compare the generation schedule forecast demand with actual
demand; and
2.12 review the generation schedule forecast demand for
consistency with Section OC1 of the Grid Code.
<PAGE>
SCHEDULE 20
Accountable Interest
1. [Not used.]
2. ACCOUNTABLE INTERESTS
The rules for determining whether or not any person has an Accountable Interest
in any Generating Unit and, if so, the MW in respect of which that person shall
be treated as having such an Accountable Interest shall, subject to the
following sections of this Schedule, be ascertained in such manner as the
Executive Committee with the approval of the Director may determine being the
appropriate share (namely the share representing that person's economic interest
therein) in the declared net capacity of any Generating Unit.
3. NET CAPACITY
There shall be attributed to the person the whole of the declared net capacity
represented by any Own Generating Unit.
4. DETERMINATION OF ACCOUNTABLE INTEREST
For the purposes of this Schedule and subject to Section 5, the person shall
have an Accountable Interest in a Generating Unit (not being an Own Generating
Unit) in circumstances where:-
4.1 the Operator is a related undertaking of the person or any affiliate
of the person; or
4.2 the person or any affiliate of the person is in partnership with or is
party to any arrangement for sharing profits or cost-savings or any
joint venture with the Operator or with any third party with regard to
the Operator; or
4.3 the person or any affiliate of the person has (directly or
indirectly):-
(a) any beneficial shareholding interest in the Operator; or
(b) any beneficial Underlying Interest in the Generating Unit;
or
(c) provided or agreed to provide finance to the Operator
otherwise than on arm's length terms; or
(d) provided or agreed to provide, or has determined or is
responsible for determining the price (or other terms
affecting the financial value) of, the fuel used in the
Generating Unit.
5. NO ACCOUNTABLE INTEREST
The person shall not be deemed to have an Accountable Interest in a Generating
Unit where:-
<PAGE>
5.1 such Generating Unit is owned and operated by NGC under a licence
granted pursuant to section 6 of the Act; or
5.2 the person's interest arises wholly under the terms of this Agreement
or under any electricity purchase or sale contract; or
5.3 the person's interest arises solely by virtue of arrangements for the
sharing with the Operator of any Generating Unit of the risks
associated with changes in the price of fuel used by the Generating
Unit during the term of any contract for the provision of electricity
from the Generating Unit to the person.
6. AMOUNT OF CAPACITY
The Pool Member submitting an Admission Application shall provide to the
Executive Committee and the Director a statement identifying (in such detail and
with such supporting documents or information as the Executive Committee or the
Director may require) the amount of capacity in MW represented by the Registered
Capacity of Generating Units in which any person who has an Accountable Interest
in the Generating Unit which is the subject of the Admission Application,
including the Pool Member, has an Accountable Interest, as at the date of the
statement.
7. ALTERNATIVE BASIS OF CALCULATIONS
Where the Executive Committee or the Director is satisfied that the basis of
calculation used by the Pool Member is not in conformity with this Schedule, the
Executive Committee or the Director may issue directions specifying an
alternative basis of calculation, and the basis of calculation provided by the
Pool Member shall be adjusted accordingly with effect from the date of issue of
the directions or such other date as may be specified in the directions.
<PAGE>
SCHEDULE 21
Meter Operators for Stage 1
PART 1: PRELIMINARY
1. INTRODUCTION
1.1 Definitions and constructions: The Parties and Meter Operator Parties
expressly agree and acknowledge that the words and expressions listed
below, and which are used for the purposes of this Schedule, shall not
be capable of amendment without the consent of Meter Operator Parties,
but that any word or expression which is not so listed in this
Schedule but is a definition for the purposes of this Agreement and is
used primarily for parts of this Agreement other than this Schedule
shall, subject to paragraph 2.2.3 and without prejudice to sub-section
2.5, be capable of being amended without such consent notwithstanding
that it may also be used in this Schedule:-
Active Energy;
Active Power;
Agreed Procedure;
Agreed Procedures Index;
Code of Practice;
Communications Equipment;
Equipment Owner;
ERS;
Export;
FMS Codes of Practice;
FMS Date;
FMS Metering Equipment;
Force Majeure;
Generic Dispensations;
Good Industry Practice;
Host PES;
Import;
Invitee;
Licence Restricted Party;
Meter;
Metering Equipment;
Meter Operator Party;
Meter Operator Party Accession Agreement;
Meter Operator Party Admission Application;
Meter Operator Party Resignation Notice;
New Meter Operator Party;
Non-Embedded Customer;
Operator;
Outstation;
Potential Operator;
<PAGE>
Reactive Energy;
Reactive Power;
Register;
Registrant;
Stage 1 Customer;
Stage 1 Metering System;
Stage 1 Non-Pooled Generator;
Substantial Part;
Synopsis of Metering Codes;
Tariff or relevant Tariff;
Tariff Operator; and
Third Party.
1.2 Interpretation:
1.2.1 Wherever a reference is made in this Schedule to a Meter
Operator Party or to an Operator, such reference shall be to
a Meter Operator Party in its capacity as Meter Operator
Party in relation to Stage 1 Metering Systems or, where the
context so requires, to an Operator in its capacity as
Operator in relation to Stage 1 Metering Systems, but shall
not refer to the person which is that Meter Operator Party
or Operator in, and shall be in all cases without prejudice
to, any other capacity in which such person may be party to
this Agreement.
1.2.2 This Schedule 21 relates only to the rights and obligations
of a Meter Operator Party regarding the accurate measurement
using Stage 1 Metering Systems of electricity traded under
this Agreement. It does not deal with any rights or
obligations of any Party relating to Stage 2 Metering
Systems as to which other provisions of this Agreement
apply.
1.3 Agreed Procedures and Codes of Practice:
1.3.1 Each of the Parties and each of the Meter Operator Parties
undertakes to comply with the Agreed Procedures and the
Codes of Practice insofar as applicable to it.
1.3.2 The Settlement System Administrator shall retain copies of
all Agreed Procedures and Codes of Practice applicable to
Stage 1 Settlement and of any other documentation referred
to in such Agreed Procedures or Codes of Practice and shall
provide a copy of all or any thereof to any Party or Meter
Operator Party on request and may make a reasonable charge
for such provision.
1.3.3 Notwithstanding the absence from time to time of its express
consent, each Meter Operator Party hereby expressly
acknowledges and agrees to be bound by the provisions
contained in this Agreement which govern the method by which
all Agreed Procedures and Codes of Practice may be, from
time to time, changed or substituted
<PAGE>
and which determine the meaning in any given context of the
terms the "relevant Agreed Procedure" and the "relevant Code
of Practice".
1.4 Agreed Procedures and Codes of Practice: Referral to the Director:
1.4.1 Without prejudice to paragraph 1.3.3, where any Meter
Operator Party considers that any change proposed to be made
to any Agreed Procedure or to any Code of Practice
applicable to Stage 1 Settlement would have a material
adverse effect on its rights and liabilities as a registered
Operator, a Potential Operator or Tariff Operator as set out
in this Schedule (the "proposed change"), it shall have the
right in the prescribed time limits to refer the matter in
writing to the Director (such referral to be copied to the
Executive Committee) who shall determine, taking into
account the views expressed by the Executive Committee and
any Parties referred to below in this sub-section, whether
such proposed change has such a material adverse effect. The
Director's determination shall be final and binding for all
purposes.
1.4.2 For the purposes of enabling any Meter Operator Party to
appeal to the Director against a proposed change to any
Agreed Procedure or Code of Practice in accordance with
paragraph 1.4.1, the Executive Committee shall give all
Parties, Meter Operator Parties and the Director notice of
the proposed changes at least 14 clear days prior to the
implementation of such proposed change in accordance with
the provisions of this Agreement.
1.4.3 If an appeal to the Director against a proposed change to
any Agreed Procedure or Code of Practice is made within 14
days after notification by the Executive Committee pursuant
to paragraph 1.4.2, the change shall not come into effect
until the determination of the Director has been made and
then subject to paragraph 1.4.4. If no appeal is made within
the said 14 days, the change shall come into effect on the
expiry of that period (or such later date as the Executive
Committee may determine).
1.4.4 The Director shall within 28 days of receipt of a referral
(or within such extended period as the Director shall have
notified to the Executive Committee within that 28 day
period as being necessary to enable him to reach a
considered determination) pursuant to paragraph 1.4.1 make
the determination referred to therein giving supporting
reasons and:-
(i) if the determination of the Director is that the
proposed change does not have a material adverse
effect upon the rights and liabilities as set out
in this Schedule 21 of the appellant Meter
Operator Party as registered Operator, as
Potential Operator or as Tariff Operator then the
proposed change shall come into effect in
accordance with the provisions of this Agreement;
and
(ii) if the determination of the Director is that the
proposed change does have a material adverse
effect upon the rights and liabilities as set out
in this Schedule
<PAGE>
21 of the appellant Meter Operator Party as
registered Operator, as Potential Operator or as
Tariff Operator, the Director may require that the
proposed change not come into effect (in which
case such proposed change shall not come into
effect) or require that modifications be made to
the proposed change to obviate or mitigate such
material adverse effect. In the latter case the
Executive Committee and each Party whose consent
is required to the relevant amendment to that
Agreed Procedure or, as the case may be, Code of
Practice, shall take all reasonable steps to
implement any decision of the Director (for which
reasons shall be given) requiring changes to be
made to such Agreed Procedure or Code of Practice
with the purposes of obviating or, where the
Director considers appropriate, mitigating such
material adverse effect on such Meter Operator
Party.
2. AMENDMENTS AND MODIFICATIONS
2.1 Obligations: The Parties and Meter Operator Parties expressly
acknowledge and agree that each Meter Operator Party is bound only to
the extent of the obligations which are expressly set out or referred
to in this Schedule (including those provisions incorporated herein by
reference in Section 24) and not by any other provision of this
Agreement. Each Meter Operator Party agrees to comply with the
provisions of this Schedule (including those provisions of this
Agreement incorporated herein by reference in Section 24). The Parties
and Meter Operator Parties further expressly agree that any Meter
Operator Party (in its capacity as such) shall be conferred only with
such rights in respect of this Agreement as are expressed to be
conferred on it as Operator or Meter Operator Party pursuant to
provisions which are expressly set out in this Schedule (including
those provisions incorporated herein by reference in Section 24) or
are definitions listed in sub-section 1.1.
2.2 Consent:
2.2.1 The consent or agreement of any Meter Operator Party shall
not be required to any modification, abrogation, amendment
or suspension of any provision of this Agreement which is
not expressly set out in this Schedule (and for this purpose
the provisions of this Agreement incorporated herein by
reference in Section 24 shall be deemed to be not set out in
this Schedule) or which is not a definition listed in
sub-section 1.1. Each Meter Operator Party hereby
irrevocably waives any rights which it might be considered
or held to have to consent or agree to any such
modification, abrogation, amendment or suspension.
2.2.2 Where under paragraph 2.2.1 a Meter Operator Party would
otherwise have a right to consent or agree to a
modification, abrogation, amendment or suspension of a
provision of this Agreement then that consent or agreement
shall not be required in circumstances where the consent or
agreement of any Party (not being the Settlement System
Administrator, the Grid Operator, the Ancillary Services
Provider, the Pool
<PAGE>
Funds Administrator or, if it is a Party, any Pool Agent) is
also not required under this Agreement to such modification,
abrogation, amendment or suspension.
2.2.3 A Meter Operator Party whose consent or approval need not by
virtue of this Section 2 be sought or obtained to any
modification, abrogation, amendment or suspension of any
provision of this Agreement may refer the matter to the
Director as if it were a referral under and in accordance
with sub-section 1.4 (and such that the provisions of that
sub-section shall apply mutatis mutandis to such referral)
provided that in reaching any determination as to whether
the proposed change shall come into effect the Director
shall consider the nature of the changes upon Meter Operator
Parties as a class and shall not have locus standi to
consider any perceived or actual prejudice as an individual
Meter Operator Party.
2.3 Authorisation to amend: Without prejudice to sub-sections 2.1 and 2.2,
each Meter Operator Party hereby unconditionally and irrevocably
authorises and instructs the Chief Executive and each person
authorised for the purpose by the Executive Committee to sign on its
behalf amending agreements to this Agreement and to execute any
agreement which modifies, abrogates, amends or suspends any provision
of this Agreement in circumstances where such Meter Operator Party's
consent or approval is not required, and undertakes not to withdraw,
qualify or revoke such authority and instruction at any time.
2.4 Notification: The Executive Committee shall notify each Meter Operator
Party of all amendments, modifications, abrogations and suspensions
which are made to this Agreement for which the consent or agreement of
such Meter Operator Party is not required.
2.5 Further rights: The Executive Committee shall from time to time
consider any representations which Meter Operator Parties may make to
the effect that there are provisions set out in this Agreement but not
in this Schedule 21 and, accordingly, in respect of which Meter
Operator Parties are not conferred with rights by virtue of this
Section 2, which are operating in a manner which is having a material
effect on the rights and liabilities of such Meter Operator Parties as
set out herein. The Executive Committee shall consider whether, and
the extent to which (if at all), such provisions should be recommended
for incorporation into this Schedule 21.
<PAGE>
PART 2: ADMISSION, RESIGNATION AND REMOVAL
3. ADMISSION
3.1 General: Subject to the following provisions of this Section 3, the
Parties and the Meter Operator Parties shall admit as an additional
party for the purposes of this Schedule only, on the terms set out in
Section 2, any person (the "New Meter Operator Party") who applies to
be admitted in the capacity of Meter Operator Party.
3.2 Procedure for admission: Admission Application: A New Meter Operator
Party wishing to be admitted as an additional party for the purposes
only of this Schedule, on the terms set out in Section 2, shall
complete a Meter Operator Party Admission Application and shall
deliver it to the Executive Committee together with the fee (which
shall be non-refundable).
3.3 Procedure for admission as Meter Operator Party: Executive Committee
response:
3.3.1 Upon receipt of any Meter Operator Party Admission
Application duly completed the Executive Committee shall
notify all Parties, Meter Operator Parties and the Director
of such receipt and of the name of the New Meter Operator
Party.
3.3.2 Any Pool Member may by written notice to the Executive
Committee, stating the grounds for the objection, object to
the admission of any person in respect of which a Meter
Operator Party Admission Application has been received by
the Executive Committee and where any such notice of
objection is received the Executive Committee:-
(i) in the case of an application which the Executive
Committee considers, taking into account any
objection made pursuant to this paragraph, to be
frivolous or vexatious, may reject such
application and such rejection shall on that
application be final and binding and there shall
not be conferred upon the relevant New Meter
Operator Party, by virtue of such rejection, any
further right of appeal to the Director in respect
thereof; or
(ii) in the case of an application which the Executive
Committee does not consider, taking into account
any objection made pursuant to this paragraph, to
be frivolous or vexatious, shall refer the matter
to the Director for determination and the
provisions of sub-section 3.4 shall apply to such
determination.
Any objection to be effective must be received by the
Executive Committee within 7 days of notification by the
Executive Committee of the relevant Meter Operator Party
Admission Application in accordance with paragraph 3.3.1
(the "objection period"), and the Executive Committee shall
disregard any notice of objection which is received outside
the prescribed period. Any notice of objection shall be
copied by the
<PAGE>
Executive Committee upon its receipt to all Parties, Meter
Operator Parties and the Director.
3.3.3 Within 7 days of the expiry of the objection period (the
"consideration period") the Executive Committee shall notify
the New Meter Operator Party and the Director either:-
(a) that the New Meter Operator Party shall be
admitted as a Meter Operator Party, in which event
the provisions of sub-section 3.5 shall apply; or
(b) that the Executive Committee has received an
objection, or objections, to the admission of that
New Meter Operator Party and, on the basis
thereof, considers the application to be frivolous
or vexatious and for that reason is rejecting the
application without further right of appeal; or
(c) that the Executive Committee has received an
objection, or objections, to the admission of that
New Meter Operator Party in accordance with
paragraph 3.3.2 and has referred the matter to the
Director in accordance with sub-section 3.4.
If the Executive Committee shall fail so to notify the New
Meter Operator Party and the Director, the New Meter
Operator Party may within 7 days after the expiry of the
consideration period refer the matter to the Director
pursuant to sub-section 3.4, in which event the provisions
of that paragraph shall apply.
3.4 Procedure for application: Reference to the Director:
3.4.1 If:-
(a) a notice of objection or notices of objection to
the admission of the New Meter Operator Party as a
Meter Operator Party within the objection period
has (or have) been received and the Executive
Committee has not notified the New Meter Operator
Party that it is rejecting its application on the
basis that those objections demonstrate that the
relevant application is frivolous or vexatious; or
(b) the Executive Committee shall have failed to
notify the New Meter Operator Party as provided in
paragraph 3.3.3 within the consideration period,
the matter may be referred by way of written application of
the New Meter Operator Party, copied to the Executive
Committee, to the Director for determination. The
determination of the Director, which shall be made within 28
days after receipt of the said written application and shall
be to the effect that the New Meter Operator Party should or
should not be admitted as a Meter Operator Party for the
purposes of this
<PAGE>
Schedule, shall be final and binding for all purposes. The
Director shall publish reasons supporting his determination.
3.4.2 (a) If the determination is to the effect that the New
Meter Operator Party should be admitted as a Meter
Operator Party, the New Meter Operator Party shall
be admitted and the provisions of sub-section 3.5
shall apply.
(b) If the determination is to the effect that the New
Meter Operator Party should not be admitted as a
Meter Operator Party, the New Meter Operator
Party's application for admission shall lapse and
be of no effect and the New Meter Operator Party
shall not be, and shall not be entitled to be,
admitted as a Meter Operator Party consequent upon
such application (but without prejudice to any new
application it may make thereafter).
3.5 Admission: If:-
3.5.1 the Executive Committee shall notify the New Meter Operator
Party and the Director as provided in paragraph 3.3.3(a); or
3.5.2 the New Meter Operator Party is to be admitted as a Meter
Operator Party pursuant to sub-section 3.4,
the Executive Committee shall forthwith prepare or cause to be
prepared a Meter Operator Party Accession Agreement. Subject to the
Executive Committee making all notifications and filings (if any)
required of it for regulatory purposes and obtaining all regulatory
consents and approvals (if any) required to be obtained by it, the
Executive Committee shall instruct the Chief Executive or another
person authorised by the Executive Committee for the purpose to
prepare a Meter Operator Party Accession Agreement and to sign and
deliver the Meter Operator Party Accession Agreement on behalf of all
Parties and Meter Operator Parties other than the New Meter Operator
Party and the New Meter Operator Party shall also execute and deliver
the Meter Operator Party Accession Agreement and, on and subject to
the terms and conditions of the Meter Operator Party Accession
Agreement, the New Meter Operator Party shall become a Meter Operator
Party on the terms set out in Section 2, for the purposes of this
Schedule, with effect from the date specified in such Meter Operator
Party Accession Agreement (and, if no such date is so specified, the
date of such Meter Operator Party Accession Agreement). The New Meter
Operator Party shall pay all costs and expenses associated with the
preparation, execution and delivery of its Meter Operator Party
Accession Agreement. Each Party and Meter Operator Party hereby
authorises and instructs the Chief Executive and each person
authorised for the purpose by the Executive Committee to sign on its
behalf Meter Operator Party Accession Agreements and undertakes not to
withdraw, qualify or revoke such authority and instruction at any
time. The Executive Committee shall promptly notify all Parties and
Meter Operator Parties and the Director of the execution and delivery
of each Meter Operator Party Accession Agreement.
<PAGE>
3.6 Additional Agreements: Upon and as a condition of admission as a Meter
Operator Party, a New Meter Operator Party shall execute and deliver
such further agreements and documents and shall do all such other
acts, matters and things as the Executive Committee may reasonably
require.
3.7 Application fees: All fees received by the Executive Committee in
respect of any application by a New Meter Operator Party to become a
Meter Operator Party shall be used to defray the costs and expenses of
the Executive Committee and shall be paid to such account as the
Executive Committee may direct. The application fee shall be
(pound)250 or such other amount as the Executive Committee may, with
the prior approval of the Director, from time to time prescribe.
3.8 Acknowledgement that provisions not exhaustive of being Operator: The
compliance by any person with the provisions of this Section 3 with
regard to its admission as a Meter Operator Party shall not of itself
mean that all things have been done and agreements or arrangements
have been entered into with other Parties and persons such that the
duly admitted Meter Operator Party is entitled or enabled to comply as
an operational, physical or legal matter with its obligations, or to
enjoy its rights, as an Operator under this Schedule and the
provisions of this Schedule shall always be without prejudice to the
rights and obligations of such Meter Operator Party under any other
agreement or arrangement with such other Parties or persons.
3.9 Compliance: Each Meter Operator Party shall procure that for so long
as it is a Meter Operator Party it shall at all times satisfy or
otherwise comply with the admission conditions set out in its Meter
Operator Party Admission Application applicable to it (and/or such
further or other conditions as the Executive Committee may from time
to time reasonably specify) and upon request from time to time shall
promptly provide the Executive Committee with evidence reasonably
satisfactory to the Executive Committee of such satisfaction and
compliance.
3.10 Change of capacities:
3.10.1 Any Meter Operator Party admitted as an additional party
pursuant to this Section 3 may apply, whether in
substitution for or in addition to being a Meter Operator
Party, to become a Party to this Agreement in accordance
with Clause 3 and, if appropriate, a Pool Member in
accordance with Clause 8. Such Meter Operator Party shall
only be entitled to become a Party and, as the case may be,
Pool Member in accordance with those provisions of this
Agreement.
3.10.2 Subject to the transitional arrangements set out in Section
23, any Party to this Agreement may, upon application to the
Executive Committee and satisfaction of such conditions (if
any) as the Executive Committee may reasonably require,
whether in substitution for or in addition to being a Party,
become a Meter Operator Party for the purposes of and on the
terms set out in this Schedule.
<PAGE>
4. REGISTRATION OF OPERATORS
4.1 Registration: Subject to Clause 60.4, the identity of the Operator for
each Stage 1 Metering System which the Settlement System Administrator
shall take into account for the purposes of Stage 1 Settlement and
which shall be the Operator for all purposes of this Schedule shall be
as notified to the Settlement System Administrator in accordance with
this Schedule and as recorded by it, for the time being and from time
to time, in the Register.
4.2 Who can be Operator: The operator of any Stage 1 Metering System
proposed to be registered with the Settlement System Administrator or
the new operator of any Stage 1 Metering System already so registered
shall be either:-
4.2.1 the Meter Operator Party specified as such in a notice
served by it upon the Settlement System Administrator in
accordance with the relevant Agreed Procedure and which has
acknowledged its appointment therein; or
4.2.2 where no Meter Operator Party is specified pursuant to
paragraph 4.2.1 or such Meter Operator Party has not
acknowledged its appointment, the Registrant deemed to be
Operator pursuant to Clause 60.4.5 in accordance with the
provisions thereof.
4.3 Consents: Subject to Clause 60.4.9, no person shall be the Operator of
a Stage 1 Metering System without the prior written consent of:-
(i) the person (if not the Operator or Registrant in respect
thereof) which is at that time the Equipment Owner;
(ii) in the case of a Stage 1 Metering System to be operated in
respect of supplies to a Stage 1 Customer and, if different
from the Equipment Owner, that Stage 1 Customer; and
(iii) in the case of a Stage 1 Metering System to be operated in
respect of supplies from a Stage 1 Non-Pooled Generator, and
if different from the Equipment Owner, that Stage 1
Non-Pooled Generator.
The Registrant in respect of that Stage 1 Metering System shall
provide evidence of such consent to the Executive Committee and to the
Settlement System Administrator at the time of the registration of
that Meter Operator Party as Operator in respect of such Stage 1
Metering System. The Settlement System Administrator shall not
register as an Operator in respect of such Stage 1 Metering System any
person in respect of which evidence of consent of the Equipment Owner,
and where applicable and where different, the relevant Stage 1
Customer or Stage 1 Non-Pooled Generator, is required but has not been
so provided. Where no such evidence or insufficient evidence is
provided the Settlement System Administrator shall notify the relevant
Meter Operator Party accordingly.
<PAGE>
4.4 Power to prescribe new registration conditions:
4.4.1 The Executive Committee shall have the power to prescribe,
from time to time, such further conditions to be imposed
upon the registration of any Meter Operator Party as an
Operator under this Schedule as it shall consider
appropriate with the consent of the Meter Operator Parties.
In the case of a Meter Operator Party, such consent shall
not be unreasonably withheld or delayed and notification of
such consent or refusal to consent shall be made to the
Executive Committee within 7 days of its consent being
requested. If any Meter Operator Party refuses to consent or
does not consent within the prescribed 7 day period, the
Director shall determine whether such consent was
unreasonably withheld.
4.4.2 The conditions to be imposed pursuant to paragraph 4.4.1
shall be as specified from time to time in an Agreed
Procedure and each Operator shall be required, upon the
bringing into effect of new or revised conditions, to
demonstrate to the satisfaction of the Executive Committee
in accordance with the provisions of such Agreed Procedure,
the ability to comply with the standards laid down therein.
4.4.3 Any Operator which is not able to demonstrate compliance
with such revised standards in accordance with paragraph
4.4.2 shall at the time specified in that Agreed Procedure
cease to be a Meter Operator Party for the purposes hereof,
but such cessation shall be without prejudice to any right
to make a future application to become a Meter Operator
Party or Operator in accordance with the provisions of this
Schedule.
5. RESIGNATION
5.1 Resignation as Meter Operator Party: Subject as provided in
sub-section 5.2:-
5.1.1 a Meter Operator Party shall be entitled at any time to
resign as a Meter Operator Party by delivering a Meter
Operator Party Resignation Notice to the Secretary; and
5.1.2 such resignation shall take effect 28 days after receipt of
the Meter Operator Party Resignation Notice by the
Secretary.
Promptly after receipt of a duly completed Meter Operator Party
Resignation Notice from a Meter Operator Party, the Secretary shall
notify (for information only) all of the other Parties, Meter Operator
Parties, the Executive Committee and the Director of such receipt and
of the name of the Meter Operator Party wishing to resign.
5.2 Restrictions on resignation: A Meter Operator Party may not resign as
a Meter Operator Party (and any Meter Operator Party Resignation
Notice delivered pursuant to paragraph 5.1.1 shall lapse and be of no
effect) unless:-
<PAGE>
(i) as at the date its resignation would otherwise become
effective all sums due from such Meter Operator Party to the
Executive Committee or any other Party or Meter Operator
Party under this Agreement or any agreement entered into
pursuant to and in accordance with this Agreement (whether
by or on behalf of such Meter Operator Party) and notified
for the purposes of this sub-section 5.2 by the Executive
Committee to such Meter Operator Party prior to the date of
its resignation have been paid in full; and
(ii) the Meter Operator Party is not registered as the Operator
in respect of any Stage 1 Metering System.
5.3 Resignation as an Operator:
5.3.1 An Operator shall be entitled at any time to resign as
Operator of a Stage 1 Metering System by service of a duly
completed notice in the form prescribed by the relevant
Agreed Procedure upon the Settlement System Administrator.
5.3.2 Such resignation shall take effect (unless otherwise agreed
with the Settlement System Administrator) on the date
specified therein which shall be no earlier than the date
specified in the relevant Agreed Procedure.
5.3.3 The Settlement System Administrator shall notify the
relevant Registrant and, where applicable, Host PES of
receipt by it of a notice pursuant to this sub-section 5.3
within one working day following such receipt.
5.4 Release as a Meter Operator Party: Without prejudice to Clause 66.7 as
incorporated into this Schedule by Section 24, upon a Meter Operator
Party's resignation becoming effective in accordance with sub-section
5.1:-
5.4.1 such Meter Operator Party shall cease automatically to be a
Meter Operator Party;
5.4.2 such Meter Operator Party shall (subject as provided below)
be automatically released and discharged from all its
obligations and liabilities in its capacity as Meter
Operator Party under this Schedule and any agreement
referred to in sub-section 5.2; and
5.4.3 each of the other Parties and Meter Operator Parties shall
(subject as provided below) be automatically released and
discharged from its obligations and liabilities to such
Meter Operator Party in its capacity as Meter Operator Party
under this Schedule and any agreement referred to in
sub-section 5.2.
Each Meter Operator Party shall promptly at its own cost and expense
execute and deliver all agreements and other documentation and do all
such other acts, matters and things as may be necessary to confirm
such cessation, release and discharge. The release and discharge
effected pursuant to this sub-section 5.4 shall not extend to the
accrued rights and liabilities of a Meter
<PAGE>
Operator Party nor to the rights and liabilities of that Meter
Operator Party which may accrue in relation to the period during which
it was a Meter Operator Party under this Schedule pursuant to Section
2 or any agreement referred to in sub-section 5.2.
6. REMOVAL AND CESSATION
6.1 Removal as Operator by Registrant: Without prejudice to any rights
under any other agreement between any Operator and any other person
(which the Settlement System Administrator shall not be obliged to
take into account or acknowledge for the purposes of this Agreement)
and without prejudice to its accrued rights and liabilities and its
rights and liabilities which may accrue in relation to the period
during which it was Operator pursuant to this Schedule, the Registrant
of any Stage 1 Metering System may remove the Operator of such Stage 1
Metering System upon service of a duly completed notice in the form
prescribed by the relevant Agreed Procedure to be served upon the
Settlement System Administrator (with a copy to be served upon the
relevant Stage 1 Customer (if any) or Stage 1 Non-Pooled Generator (if
any)) and such notice to take effect (unless otherwise agreed with the
Settlement System Administrator) on the date specified therein which
shall be no earlier than the date specified in the relevant Agreed
Procedure. The Settlement System Administrator shall notify the
relevant Operator and, where applicable, Host PES of the receipt by it
of a notice pursuant to this sub-section 6.1 following such receipt.
6.2 Removal as Operator or Meter Operator Party for cause: Subject:-
6.2.1 to good cause for the removal of a Meter Operator Party (i)
as Operator in respect of one or more, but not all, Stage 1
Metering Systems in respect of which it is the Operator, or
(ii) as Meter Operator Party in respect of all, but not
some, Stage 1 Metering Systems in respect of which it is the
Operator, having been demonstrated to the satisfaction of
the Executive Committee; and
6.2.2 as provided in sub-sections 6.3 and 6.4,
an Operator (where removal is in respect of one or more, but not all,
such Stage 1 Metering Systems) or, as the case may be, a Meter
Operator Party (where removal is in respect of all such Stage 1
Metering Systems), may at any time be removed by:-
(a) resolution of the Executive Committee passed by a majority
of not less than 75% of the total votes of all Committee
Members which may be exercised whether or not any such
Committee Member is present in accordance with the
provisions of this Agreement; and
(b) the giving by the Executive Committee to the Operator or, as
the case may be, Meter Operator Party after such resolution
has been passed or deemed effective (which the Executive
Committee shall promptly do) of not less than 28 days'
notice in writing of such removal.
<PAGE>
6.3 Good cause for removal: Good cause for the purposes of paragraph 6.2.1
may include the following:-
6.3.1 the failure by the Operator or Meter Operator Party as
Operator in any persistent, material respect or in any
single, major respect to perform or comply with any of the
obligations expressed to be assumed by it under this
Schedule 21 and such default (if capable of remedy) is not
remedied within a reasonable period of time after the
Executive Committee has given notice to that Operator or, as
the case may be, Meter Operator Party of the occurrence
thereof and requiring the same to be remedied; and
6.3.2 in the case of removal as a Meter Operator Party, where a
Meter Operator Party:-
(a) is unable to pay its debts (within the meaning of
section 123(1) or (2) of the Insolvency Act 1986)
or has any voluntary agreement proposed in
relation to it under section 1 of that Act or
enters into any scheme of arrangement (other than
for the purpose of reconstruction or amalgamation
upon terms and within such period as may
previously have been approved in writing by the
Executive Committee);
(b) has a receiver (which expression shall include an
administrative receiver within the meaning of
section 29 of the Insolvency Act 1986) of the
whole or any material part of its assets or
undertaking appointed;
(c) has an administration order under section 8 of the
Insolvency Act 1986 made in relation to it;
(d) passes any resolution for winding-up other than a
resolution previously approved in writing by the
Executive Committee; or
(e) becomes subject to an order by the High Court for
winding-up.
For the purposes of paragraph (a) above the Meter Operator
Party shall not be deemed to be unable to pay its debts if
any such demand as is mentioned in the said section is being
contested in good faith by the Meter Operator Party with
recourse to all appropriate measures and procedures.
For the avoidance of doubt, the Parties and Meter Operator Parties
hereby acknowledge and agree that a resolution of the Executive
Committee to remove the Operator as Operator or a Meter Operator Party
as Meter Operator Party shall not, of itself, constitute good cause.
6.4 Referral to the Director: An Operator or, as the case may be, a Meter
Operator Party may in writing within the 28 day period referred to in
sub-section 6.2(b) refer a decision of the Executive Committee to
remove it for cause pursuant to sub-section 6.2 to the Director. Where
such referral is made in accordance with this sub-section 6.4, the
removal of such Meter
<PAGE>
Operator Party as Operator or, as the case may be, Meter Operator
Party for cause shall not become effective until such time as the
Director determines, in accordance with sub-section 6.5, that good
cause exists for such removal.
6.5 Determination by Director: The Director, upon any referral being made
pursuant to sub-section 6.4, shall determine whether there is good
cause within the meaning of this Section 6 for the removal of such
Meter Operator Party as Operator or, as the case may be, as Meter
Operator Party, within 28 days of the receipt of the written referral
of the decision of the Executive Committee. Any decision of the
Director that there is, or is not, good cause for removal shall be
final and binding on the Parties and Meter Operator Parties. Where the
Director determines that there is not good cause for the removal of a
Meter Operator Party, the relevant decision of the Executive Committee
shall lapse and cease to be effective and such Meter Operator Party
shall not be removed as Operator or, as the case may be, Meter
Operator Party by virtue of the passing of that resolution.
6.6 Notification of removal: Within 7 days of any Operator or Meter
Operator Party being removed for cause in accordance with the
provisions of this Section 6, the Secretary shall notify all Parties,
Meter Operator Parties, relevant Stage 1 Customers, relevant Stage 1
Non-Pooled Generators and the Director in accordance with the
provisions of this Agreement of the identity of the relevant Operator
or, as the case may be, Meter Operator Party and of the fact of its
removal.
6.7 Right to representation: Any Party or Meter Operator Party against
whom the Executive Committee is considering exercising powers pursuant
to this Section 6 shall have the right to representation at any
meeting of the Executive Committee which considers the exercise of
such powers.
6.8 Cessation as Operator: An Operator of any Stage 1 Metering System
shall cease to be the Operator therefor when the Plant or Apparatus in
respect of such Metering Equipment ceases to be connected at the
relevant Site.
6.9 Cessation as Meter Operator Party: Without prejudice to any rights
under any other agreement between an Operator and any other person
(which the Settlement System Administrator shall not be obliged to
take into account or acknowledge for the purposes of this Agreement)
and without prejudice to its accrued rights and liabilities and its
rights and liabilities which may accrue in relation to the period
during which it was a Meter Operator Party under this Schedule, an
Operator shall cease to be a Meter Operator Party where it has not
been registered by the Settlement System Administrator (save in the
case of manifest error or bad faith on the part of the Settlement
System Administrator) as an Operator in respect of any Stage 1
Metering System registered with the Settlement System Administrator
for any consecutive period of fifteen months.
<PAGE>
6.10 Termination of Rights and Obligations under this Agreement: A Meter
Operator Party shall only cease to be party to this Agreement in the
capacity as a Meter Operator Party in the circumstances and to the
extent specified in Section 4, 5 or 6.
6.11 Rights and liabilities as Party: Where any Party which is also a Meter
Operator Party resigns as, is removed as, or ceases to be, a Meter
Operator Party for the purposes of, and in accordance with, this
Schedule, such resignation, removal or cessation shall be without
prejudice to all past, present and future accrued and accruing rights
and liabilities of that Party as Party in any capacity whatsoever
other than as Meter Operator Party.
6.12 Section exhaustive: The Parties and Meter Operator Parties agree that
the foregoing provisions of this Section 6, when read with the
provisions referred to in this sub-section, are exhaustive of
cessation as a Meter Operator Party and of cessation of rights and
liabilities as a Meter Operator Party.
<PAGE>
PART 3: METER OPERATOR'S RESPONSIBILITIES
7. OBLIGATION TO ENSURE COMPLIANT METERING EQUIPMENT
7.1 General Obligation and Commercial Boundary:
7.1.1 There must always be one and, at any point in time, no more
than one Operator for each Stage 1 Metering System which is
registered with the Settlement System Administrator.
7.1.2 All Stage 1 Metering Systems at the site of a Stage 1
Non-Pooled Generator, which are part of the same Metering
Equipment, must have the same Operator.
7.1.3 Each Operator shall ensure there is installed a Stage 1
Metering System complying with the provisions of this
Schedule and Part XV of this Agreement which meets the
required levels of accuracy at the commercial boundary at
each Site for which it is the Operator and which is as close
as reasonably practicable to that commercial boundary taking
into account relevant financial considerations. The Parties
and Meter Operator Parties acknowledge and agree that
Metering Equipment at Power Stations either existing or
under construction at the Effective Date might not be
situated at the commercial boundary. In such cases, loss
adjustment factors may be applied after the Effective Date
subject to it being demonstrated to the reasonable
satisfaction of the Settlement System Administrator that
such loss adjustment factors have been correctly derived.
7.1.4 To the extent that the required levels of accuracy referred
to in paragraph 7.1.3 depend upon associated current and
voltage transformers which are not in the ownership or
control of the relevant Operator, the relevant Equipment
Owner agrees to take reasonable steps to assist the Operator
in complying with its obligations under paragraph 7.1.3 by
the maintenance and repair of such current and voltage
transformers in accordance with the provisions of this
Schedule provided that this paragraph 7.1.4 shall be without
prejudice to any right to charge for the same and provided
further that an Equipment Owner shall not be required by
this paragraph 7.1.4 to take steps which would cause it to
be in breach of its obligations under its Licence, its
Nuclear Site Licence (as defined in sub-section 21.9(a)),
the Grid Code or any Distribution Code.
7.2 Description of Metering Equipment:
7.2.1 Metering Equipment comprising a Stage 1 Metering System and
its component parts shall comply, as a minimum, with the
requirements referred to or set out in any relevant Code of
Practice or shall be the subject of, and comply with, a
dispensation agreed in accordance with Section 14.
<PAGE>
7.2.2 Metering Equipment comprising a Stage 1 Metering System
shall use such communication protocols selected, with the
approval of the Settlement System Administrator, as
appropriate for that Metering Equipment from a list of
communication protocols approved and maintained from time to
time by the Settlement System Administrator.
7.3 Accuracy of Metering Equipment:
7.3.1 The Metering Equipment comprising a Stage 1 Metering System
shall be accurate within the prescribed limits for such
Metering Equipment referred to or set out in the relevant
Code of Practice except only in the case where such Metering
Equipment is the subject of, and complies with, a
dispensation relevant to those prescribed limits agreed in
accordance with Section 14.
7.3.2 The accuracy limits referred to in the relevant Code of
Practice for Metering Equipment comprising a Stage 1
Metering System shall be applied after adjustments have been
made to such Metering Equipment to compensate for any errors
due to measuring transformers and connections thereto.
Beyond the ranges specified in the relevant Code of Practice
and power factors other than unity or zero (as the case may
be) limits of accuracy will depend on the characteristics of
the individual meters and measuring transformers specified
for such Metering Equipment. Such levels of accuracy will,
in the event of any uncertainty or dispute, be specified by
the Executive Committee.
7.4 Calibration of Metering Equipment: Each Operator shall ensure that all
Metering Equipment comprising a Stage 1 Metering System which is
registered with the Settlement System Administrator pursuant to this
Agreement and for which it is Operator pursuant to this Schedule shall
be calibrated in order to meet the accuracy requirements referred to
in paragraph 7.3.1 and otherwise in accordance with the relevant Code
of Practice or, where appropriate, any relevant dispensation agreed in
accordance with Section 14. Subject to Section 21, the Settlement
System Administrator and the Pool Auditor shall be granted access to
all such Metering Equipment and any other Plant or Apparatus on any
Site in order to inspect the basis of any adjustments made to such
Metering Equipment.
8. MAINTENANCE OF METERING EQUIPMENT
8.1 Proper order: Each Operator shall at its own cost and expense (but
without prejudice to its right to charge any other person for such
service pursuant to another agreement or arrangement) keep in good
working order, repair and condition all Metering Equipment comprising
a Stage 1 Metering System in respect of which it is the Operator to
the extent necessary to allow the correct registration, recording and
transmission of the requisite details of the quantity of Active Energy
and/or Reactive Energy measured by the relevant Meter.
<PAGE>
8.2 Inspection and Testing:
8.2.1 No less frequently than such period as may be specified in
the relevant Code of Practice each Operator shall carry out
a routine test of the accuracy of all Metering Equipment
comprising a Stage 1 Metering System in respect of which it
is the Operator. The Operator shall also carry out a test of
the accuracy of all such Metering Equipment in respect of
which it is the Operator and which replaces defective or
inaccurate Metering Equipment as soon as is reasonably
practicable after its installation. Such Operator will give
the Settlement System Administrator and the Registrant at
least 15 days' prior written notice of the date, time, place
and nature of every such test and the Settlement System
Administrator and Host PES and the Registrant shall have the
right to attend such test should it so require. Any such
test as envisaged in this paragraph 8.2.1 shall comply with
the relevant Code of Practice.
8.2.2 If either:-
(a) the Settlement System Administrator has reason to
believe that the Metering Equipment comprising a
Stage 1 Metering System which an Operator is
required to maintain for the purposes of this
Schedule is not performing within the prescribed
limits of accuracy referred to in paragraph 7.3.1;
or
(b) such Operator or any other Party or Meter Operator
Party has reason to believe there is any such
failure to so perform,
then, in the case of (b), such Operator, such other Party or
such Meter Operator Party shall notify the Settlement System
Administrator, the Registrant of the relevant Stage 1
Metering System and the Host PES (if any) and, in any case,
the Settlement System Administrator:-
(i) shall (if so requested by any Party or Meter
Operator Party) and (in any other case) may,
without giving notice to the relevant Operator or
Registrant, inspect such Metering Equipment and
make such tests as the Settlement System
Administrator shall deem necessary to determine
its accuracy; or
(ii) in any other circumstances require the relevant
Operator promptly to test the accuracy of the same
but in any event within 24 hours of receiving
notification of such requirement pursuant to this
paragraph 8.2.2, whereupon the relevant Operator
shall carry out such test. Such test shall comply
with the relevant Code of Practice and shall take
place in the presence of the Settlement System
Administrator, if it so requires.
Further, if an Operator has reason to believe that the
Metering Equipment comprising a Stage 1 Metering System in
respect of which it is the Operator is incorrectly recording
data for any reason, it shall notify the Settlement System
Administrator, the
<PAGE>
Registrant in respect of the relevant Stage 1 Metering
System and the Host PES (if any).
8.2.3 Recovery of costs for non-routine testing (1): Subject to
paragraph 8.2.4, the costs of any such test referred to in
this sub-section 8.2 shall be borne by the Operator
responsible for the maintenance of the relevant Stage 1
Metering Equipment (but without prejudice to its right to
charge any other person for such service pursuant to another
agreement or arrangement), save that the Settlement System
Administrator shall bear the costs of its nominee's
attendance thereat (subject to its right to recover the same
through its charges).
8.2.4 Recovery of costs for non-routine testing (2): Where any
Metering Equipment comprising a Stage 1 Metering System
passes all inspections and tests required pursuant to
paragraph 8.2.2 or the test is in respect of Metering
Equipment where the Operator is the deemed Operator pursuant
to Clause 60.4.5, the costs of such inspections and tests
shall, in the case of paragraph (a) of that sub-section, be
borne by the Settlement System Administrator (subject to its
right to recover the same through its charges) and, in the
case of paragraph 8.2.2(i) where a test is required by
another Party or Meter Operator Party, be borne by such
other Party or Meter Operator Party which shall reimburse
the relevant Operator its costs on demand.
8.3 Sealing: Metering Equipment comprising a Stage 1 Metering System shall
be as secure as is practicable in all the circumstances and for this
purpose:-
(a) all such Metering Equipment shall comply with the relevant
Agreed Procedure; and
(b) the Executive Committee and the Settlement System
Administrator shall regularly review Agreed Procedures for
security arrangements in relation to such Metering
Equipment.
8.4 Defective Metering Equipment: If at any time any Metering Equipment
comprising a Stage 1 Metering System or any part thereof is destroyed
or damaged or otherwise ceases to function, or is found to be outside
the prescribed limits of accuracy referred to in paragraph 7.3.1, the
Operator therefor shall, subject to compliance with its obligations
under sub-section 8.3, promptly adjust, renew or repair the same or
replace any defective component so as to ensure that the relevant
Metering Equipment is back in service and operating within the
prescribed limits of accuracy as quickly as is reasonably practicable
in all the circumstances.
9. MAINTENANCE OF RECORDS AND PROVISION OF INFORMATION
9.1 Information:
9.1.1 An Operator shall inform the Settlement System Administrator
of all relevant information relating to the Metering
Equipment comprising a Stage 1 Metering
<PAGE>
System in respect of which it is the Operator, including any
new or substituted Metering Equipment, and as may be
required by the relevant Agreed Procedure.
9.1.2 All Meter Operator Parties shall give to the Settlement
System Administrator all such information regarding Metering
Equipment comprising a Stage 1 Metering System as the
Settlement System Administrator shall reasonably require for
the proper functioning of the Stage 1 Settlement System
including information regarding the dates and time periods
for installation of new Metering Equipment and the dates and
periods when such Metering Equipment is out of service.
9.1.3 All Meter Operator Parties shall give to the Pool Auditor
all such information regarding Metering Equipment comprising
a Stage 1 Metering System as the Pool Auditor shall
reasonably require for the purposes of carrying out its
functions under Part IX of this Agreement with regard to
Stage 1 Settlement, including information regarding the
dates and time periods for installation of new Metering
Equipment and the dates and periods when such Metering
Equipment is out of service and a copy of any record
maintained in accordance with sub-section 9.2.
9.2 Records: Each Operator shall maintain a record in relation to each
Stage 1 Metering System for which it is the Operator detailing all
relevant matters as may be required by the relevant Code of Practice
relating to the calibration of the Metering Equipment comprising each
such Stage 1 Metering System including the dates and results of any
tests, readings, adjustments or inspections carried out and the dates
on which any seal was applied or broken, the reason for any seal being
broken and the persons attending any such tests, readings, inspections
or sealings. Such records shall also include any other details as may
be reasonably required by the Settlement System Administrator. Each
Operator shall pass such records or copies of the same to its
successor as Operator in relation to any such Metering Equipment. Any
such records shall be complete and accurate and retained for the life
of the relevant item of Metering Equipment. The Registrant in respect
of any such Metering Equipment shall be entitled to receive copies of
all such records free of charge.
9.3 Pool Auditor access: A Meter Operator Party shall permit the Pool
Auditor unrestricted access to Metering Equipment comprising a Stage 1
Metering System in respect of which it is Operator and all data used,
information held and records kept by it or its agents in operating
that Metering Equipment and shall make available members of its staff
to explain the operation of that Metering Equipment and such other
issues as the Pool Auditor considers relevant.
<PAGE>
PART 4: RIGHTS AND RESPONSIBILITIES RELATING
TO THE SETTLEMENT SYSTEM ADMINISTRATOR
10. INSPECTIONS AND READINGS
10.1 Inspections: The Settlement System Administrator shall procure that
all Metering Equipment comprising any Stage 1 Metering System which is
registered with it for the purposes of the Settlement System is
inspected and read by it or on its behalf not less than once in every
three months for general and reconciliation purposes and shall give
the Registrant and Operator notice thereof in accordance with the
relevant Service Line.
10.2 Written reports: The Settlement System Administrator and the Operator
shall keep written reports of all such inspections and readings as are
referred to in sub-section 10.1 in accordance with sub-section 6.6 of
Schedule 4 and the Settlement System Administrator shall provide
copies in accordance with the relevant Agreed Procedure of such
written reports to each Registrant whose Consumer Metered Demand
determined in accordance with the Pool Rules is calculated by the
Settlement System Administrator using data from such Stage 1 Metering
System.
11. DATA COLLECTION
11.1 Collection, Retrieval, Validation and Estimation of Data: The
Settlement System Administrator will notify the relevant Registrant,
Operator and Host PES where, as determined by the relevant Agreed
Procedure, it has reasonable grounds to believe or has established
that data required from any Metering Equipment for the functioning of
the Stage 1 Settlement System in accordance with this Agreement is
incomplete, inaccurate or has not been received, such notice to
include details of the relevant Metering Equipment and data which the
Settlement System Administrator believes or has established is
incomplete, inaccurate or has not been received. The Settlement System
Administrator shall investigate and remedy the defect in accordance
with the relevant Agreed Procedure taking into account the following
priorities in the following order:-
(a) the need to obtain accurate data;
(b) the need to apply verification procedures; and
(c) the need to produce edited or substitute data where it is
incorrect or unavailable.
11.2 Corrected, completed or received data: Once the Settlement System
Administrator has remedied the defect identified in accordance with
sub-section 11.1, it will notify the relevant Registrant, Operator and
Host PES:-
(a) in the case of data which it has established was inaccurate,
of the validated data; and
<PAGE>
(b) in the case of data which it has established is incomplete
or which has not been received, of the edited or substitute
data,
in each case established according to the relevant Agreed Procedure.
12. POLICING BY THE SETTLEMENT SYSTEM ADMINISTRATOR
Policing: The Settlement System Administrator shall make or shall procure
arrangements for spot visits to metering sites by suitably qualified inspectors
in order to monitor compliance by Registrants and Operators of their obligations
under Part XV of this Agreement and this Schedule, the appropriate Code of
Practice and the Agreed Procedures. The sites chosen for, and the conduct of,
such policing shall be determined by the Settlement System Administrator. The
extent of policing shall be in accordance with instructions given to the
Settlement System Administrator from time to time by the Executive Committee in
accordance with the SSA Arrangements.
<PAGE>
PART 5: CODES OF PRACTICE AND DISPENSATIONS
13. CODES OF PRACTICE
13.1 Relevant Code of Practice: Subject to sub-section 13.2 and subject to
the transitional arrangements described in sub-section 13.4, the
relevant Code of Practice in respect of Metering Equipment shall be
determined by reference to the version of the Code of Practice which
is expressed to be applicable to that Metering Equipment at the time
that the Stage 1 Metering System comprised therein is registered with
the Settlement System Administrator for the first time, and such
Metering Equipment shall only be required, save as provided in
sub-section 13.2, to comply with such Code of Practice, and not with
any Code of Practice which in any respect later amends, modifies or
supersedes such Code of Practice, and references to the relevant Code
of Practice in Part XV of this Agreement and this Schedule shall be
construed accordingly.
13.2 Saving: Notwithstanding the provisions of sub-section 13.1:-
(a) without prejudice to paragraphs (b) and (c) below, FMS
Metering Equipment which is installed, or in the course of
being installed, on the FMS Date, shall only be required to
comply with the applicable FMS Code of Practice with which
it would have been required to comply were this Section 13
not in effect;
(b) where any material change is made to the Metering Equipment
comprising a Stage 1 Metering System, details of the changes
made shall be given immediately by the Operator in respect
of that Stage 1 Metering System to the Settlement System
Administrator (with a copy to the Registrant of that Stage 1
Metering System) who shall note the same on the Register
pursuant to Clause 60.5. The noting of that change on the
Register shall be deemed (but no other entry made on the
Register shall be deemed) to constitute a registration of
that Stage 1 Metering System comprised in that Metering
Equipment for the purposes of sub-section 13.1, and the Code
of Practice current at the time of that deemed new
registration shall, from that time, be the relevant Code of
Practice in respect of that Metering Equipment;
(c) in paragraph (b) above, the term "material change" shall
mean a change to the Metering Equipment other than:-
(i) a change by way of repair, modification or
replacement of any component which is not in the
judgement of the Operator, acting as a reasonable
Operator in all the circumstances, a substantial
part of the Metering Equipment (a "Substantial
Part"); and
(ii) a change to another part or other parts of the
Metering Equipment, each of which is not of itself
(and where taken together with other such changes,
these changes together are not) a Substantial Part
(determined as in (i) above) of the
<PAGE>
Metering Equipment, necessitated in the judgement
of the Operator, acting as a reasonable Operator
in all the circumstances, by any change under (i)
above,
in each case even where an enhanced or equivalent component
is used for the repair, modification or replacement rather
than an identical component;
(d) Metering Equipment comprising a Stage 1 Metering System
shall at all times comply with the latest version of the
Code(s) of Practice which contains the requirements for the
calibration, testing and commissioning of such Metering
Equipment; and
(e) in relation to Metering Equipment comprising a Stage 1
Metering System which is associated with supplies to a Stage
1 Customer, the relevant Code of Practice shall apply as
amended by any modifications made (after the time that the
relevant Metering System is registered with the Settlement
System Administrator for the first time) solely in
connection with the inclusion of ERS First Tier Customers
(as defined in this Agreement immediately before this
bracketed phrase first takes effect) in the definition of
Site.
13.3 Record of Codes of Practice: The Executive Committee shall record in
the Synopsis of Metering Codes each Code of Practice and the date at
which that Code becomes effective as the relevant Code of Practice in
respect of Metering Equipment comprising a Stage 1 Metering System
registered or, in accordance with sub-section 13.2(b), re-registered
at that date or thereafter.
13.4 FMS Codes of Practice: On or after the FMS Trading Date and in
relation to any period on or after this date any relevant Code of
Practice for the purposes of this Agreement shall be an FMS Code of
Practice.
14. DISPENSATIONS
14.1 Dispensations:
(a) If for financial reasons or reasons of practicality a Stage
1 Metering System or Metering Equipment comprising a Stage 1
Metering System does not comply with some or all of the
requirements of the relevant Code of Practice or the
requirements in relation to the commercial boundary of
paragraph 7.1.3, the Registrant or potential Registrant of
such Stage 1 Metering System or, as the case may be,
Operator or Potential Operator of such Metering Equipment
with the consent of such Registrant or, in the case of
Potential Operators only, such potential Registrant, may
make an application to the Executive Committee for a
dispensation from such requirements. The Executive Committee
shall consider and agree, on such conditions (if any) as it
shall deem fit, or dismiss such application in accordance
with the relevant Agreed Procedure and this Section 14.
<PAGE>
(b) The Executive Committee shall have the right to agree from
time to time, in accordance with the relevant Agreed
Procedure, dispensations from the requirements referred to
in paragraph (a), on such conditions (if any) as it shall
deem fit, attaching generally to any item of Metering
Equipment ("Generic Dispensations"). Generic Dispensations
may be agreed upon the application of a Party or Meter
Operator Party or be initiated by the Executive Committee at
its discretion.
(c) Before agreeing any dispensation under paragraph (a)
(including any Generic Dispensation), the Executive
Committee shall be obliged to seek and to obtain:-
(i) in the case of a dispensation from a Code of
Practice, the approval and agreement of those
Parties whose approval and agreement is required
in accordance with the definition of Code of
Practice in respect of an amendment to or
substitution of the Code(s) of Practice from which
a dispensation is sought;
(ii) the prior written consent (not to be unreasonably
withheld or delayed) of the Settlement System
Administrator where applicable in accordance with
Clause 6.3;
(iii) in the case of a dispensation from the
requirements of paragraph 7.1.3 relating to the
commercial boundary, the prior written consent
(not to be unreasonably withheld or delayed) of
the Grid Operator where applicable in accordance
with Clause 6.5; and
(iv) in the case of a dispensation from the
requirements of paragraph 7.1.3 relating to the
commercial boundary, the prior written consent
(not to be unreasonably withheld or delayed) of
the Ancillary Services Provider where applicable
in accordance with Clause 6.6.
Where, in accordance with (i) above, the amendment of the
relevant Code of Practice would require the approval of the
Suppliers in separate general meeting such approval shall be
deemed to be given by a resolution of the Executive
Committee to agree the relevant dispensation, save where any
representative of any Supplier elects, upon that resolution,
to refer the matter to a separate general meeting of
Suppliers in which case such meeting shall be convened and
held in accordance with the provisions of Clause 13.2, and
shall determine by resolution whether or not the approval
and agreement of Suppliers to that dispensation be given.
14.2 Record of dispensations: The Executive Committee shall maintain, in
accordance with the relevant Agreed Procedure, an up-to-date record of
all dispensations agreed pursuant to this Section 14. The Executive
Committee shall provide a duplicate copy of any such record to the
Settlement System Administrator and shall provide the Settlement
System Administrator with
<PAGE>
details of all amendments made to such record as soon as reasonably
possible after the making of such amendment.
14.3 Existing dispensations: The Parties acknowledge that, prior to 1st
April, 1993, dispensations (within the meaning of this Section 14)
were agreed by the Executive Committee as if this Section 14 were at
such time in full force and effect and agree that the record
identified as such as at 1st April, 1993 is the definitive list of
such dispensations. The Parties further agree that such dispensations
shall be deemed, with effect from the date at which they were agreed,
to have been effectively agreed in accordance with the provisions of
this Section 14 (as formerly incorporated into this Agreement as
Clause 60.10) as in force as at 1st April, 1993. This Section 14 shall
be without prejudice to any claim an Operator or person acting as
Operator:-
(i) may have as at 31st March, 1993 against a Supplier arising
out of any agreement between such Operator (or such person
acting as Operator) and such Supplier or out of any
representation; or
(ii) may have against a Supplier arising out of facts and
circumstances in existence prior to or as at 31st March,
1993,
which relates to the installation by such Operator or such person
acting as Operator of any Stage 1 Metering System installed or being
installed as at the FMS Date or the installation of which was
commenced prior to the FMS Date, and which relates to a Stage 1
Metering System which, by virtue of a dispensation granted pursuant to
this Section 14, is not required by that Supplier.
14.4 Appeals: Any dispensation from the requirements of a Code of Practice
or from the requirements relating to the commercial boundary of
paragraph 7.1.3 agreed in accordance with this Section 14 shall be
capable of being appealed in accordance with the provisions of
sub-section 19.1, provided that no dispensation shall be considered to
be agreed in accordance with this Section upon any appeal being
granted where the approval and agreement of the relevant Parties as
referred to in sub-section 14.1(c) has not been obtained.
<PAGE>
PART 6: FURTHER RIGHTS OF OPERATORS
15. OWNERSHIP AND USE OF DATA
15.1 Ownership of data: The Registrant of any Stage 1 Metering System shall
own the data acquired therefrom provided that it shall not exercise
its rights in relation to such data in such a way as to interfere with
the operation of either Stage 1 Settlement or Stage 2 Settlement. Each
Registrant hereby expressly agrees and acknowledges that a Stage 1
Customer or Stage 1 Non-Pooled Generator of that Registrant in respect
of which such data is generated shall be entitled at all times without
charge by the Registrant to access, obtain and use such data provided
that:-
(i) such access, obtaining or use, or the method of such access,
obtaining or use, does not interfere with the operation of
either Stage 1 Settlement or Stage 2 Settlement;
(ii) nothing in this sub-section 15.1 shall require the
Registrant actively to provide such data to such Stage 1
Customer or Stage 1 Non-Pooled Generator or so to provide
such data free of charge; and
(iii) such access shall not be by using any communications link
used by the Settlement System Administrator for the purposes
of Clause 60.6 without the prior written consent of the
Settlement System Administrator.
15.2 Use of data: The Settlement System Administrator and the Pool Auditor
for the purposes of the performance by the Pool Auditor of its
functions under Part IX of this Agreement are hereby authorised to use
all data which is owned by the Registrant pursuant to sub-section 15.1
as may be permitted pursuant to this Agreement, and the Settlement
System Administrator or, as the case may be, the Pool Auditor may only
release such data to others to the extent set out in this Agreement.
It is hereby expressly agreed that the Settlement System Administrator
is permitted to and shall against request and payment of a reasonable
charge therefor release to a Stage 1 Customer or Stage 1 Non-Pooled
Generator such data relating to it as is referred to in sub-section
15.1.
15.3 Communications Equipment use: Communications Equipment need not be
dedicated exclusively to the provision of data to the Settlement
System Administrator for the purposes of Stage 1 Settlement provided
that any other use shall not interfere at any time with the operation
of Settlement and subject also to the relevant provisions (if any) in
the relevant Tariff.
16. CHANGES OF SUPPLIERS
Change of Supplier: Where notice is served on the Settlement System
Administrator in the form prescribed by the relevant Agreed Procedure
by a proposed Registrant of an existing Site which is the point of
supply of a Supplier or Stage 1 Customer or Stage 1 Non-Pooled
Generator, the proposed Registrant and the Operator or proposed
Operator (where the existing
<PAGE>
Operator is to be replaced) shall confirm that the Stage 1 Metering
System required for the purposes of this Schedule and Part XV of this
Agreement will be installed and Commissioned at the Site by the date
required by the relevant Agreed Procedure.
17. ATTENDANCE AT MEETINGS AND RIGHTS OF REPRESENTATION
17.1 Attendance at Pool Members meetings:
17.1.1 Any notice convening any general meeting of Pool Members
including any adjournment thereof in accordance with Clause
9.5 shall be additionally given to all Meter Operator
Parties and be given in accordance with the provisions of
that Clause. The accidental omission to give notice of a
meeting to any Meter Operator Party entitled to receive
notice shall not invalidate the proceedings at that meeting.
17.1.2 Each Meter Operator Party (or its duly appointed
representative) shall have the right to attend at each
general meeting of Pool Members and shall have the right to
speak (but not to vote) thereat.
17.1.3 The Secretary shall circulate any minutes circulated in
accordance with Clause 10.10 additionally to Meter Operator
Parties in accordance with the provisions thereof.
17.2 Attendance at meetings of the Executive Committee, and sub-committees
and sub-groups of the Executive Committee:
17.2.1 One representative for all Meter Operator Parties selected
in accordance with sub-section 17.3 (a "Meter Operator Party
Representative") shall be entitled to attend and speak (but
not to vote) at meetings of the Executive Committee or at
meetings of any sub-committee or sub-group of the Executive
Committee on behalf of all Meter Operator Parties and shall
be entitled to appoint from time to time alternates and
delegates to assist him in those functions, where matters
directly concerning the functions, duties or
responsibilities of Operators, individually or collectively,
have been identified or advised in the agenda for that
meeting to be circulated pursuant to Clause 18.1.4 or, as
the case may be, Clause 20.1.
17.2.2 Notice of meetings of the Executive Committee or meetings of
any sub-committees or sub-group at which the relevant Meter
Operator Party Representative is entitled to attend shall be
given to him, together with all prescribed accompanying
documentation and agendas, in accordance with Clause 18.1
or, as the case may be, Clause 20.1. The Meter Operator
Party Representative shall as soon as is reasonably
practicable copy such notice together with such accompanying
documentation to all Meter Operator Parties.
17.2.3 The relevant Meter Operator Party Representative shall be
entitled to receive copies of all minutes of meetings which
he was entitled to attend and which the Secretary is
<PAGE>
required to circulate in accordance with Clause 18.1.6 or,
as the case may be, Clause 20.1 in accordance with the
provisions thereof. Such Meter Operator Party
Representative, if he attended the relevant meeting, shall
notify his approval or disapproval of the minutes to the
Secretary no later than ten working days after receipt
thereof and, if he fails to do so, he shall be deemed to
have approved the same.
17.3 Appointment of representative for Meter Operator Parties: The Director
shall nominate from time to time a representative who shall represent
the collective and individual interests of Meter Operator Parties
under this Agreement.
17.4 Class representation: The Executive Committee or any sub-committee or
sub-group thereof shall be entitled to assume that any Meter Operator
Party Representative represents the interests of Meter Operator
Parties as a class and, where appropriate, represents any affected
specific individual interests and, in considering matters or
exercising its powers or discretions under this Agreement, the
Executive Committee or any sub-committee or sub-group thereof shall
not be obliged to seek, nor to take account of, the views, comments or
consent or otherwise of any other Meter Operator Party.
<PAGE>
PART 7: FAILURE TO COMPLY AND DISPUTES
18. FAILURE TO COMPLY WITH OBLIGATIONS
Defective Metering Equipment: Subject to the provisions of Clause 60.4.9, in the
event that an Operator cannot or does not comply with its obligations to repair,
adjust or replace or renew any defective component pursuant to sub-section 8.4,
the Settlement System Administrator shall have the right to carry out or procure
there is carried out such repair, adjustment, replacement or renewal and to
recover its own costs, expenses and profit thereon from such Operator forthwith
on demand or, where the Settlement System Administrator, having taken reasonable
steps to recover such costs, expenses and profit from the relevant Operator is
unable so to recover within a reasonable period of time, from the Registrant in
respect of that Operator subject thereto forthwith on demand (such profit to be
equivalent to the Handling Charge on such costs and expenses, as defined in
sub-section 1.1 of the Appendix to Schedule 4).
19. DISPUTES
19.1 Disputes which may involve a Meter Operator Party: Any dispute
regarding Metering Equipment comprising a Stage 1 Metering System
(other than a dispute referred to in Clause 60.11.1 or one arising out
of any decision made pursuant to sub-section 6.2, which in the latter
case shall be determined in accordance with the provisions of that
sub-section) shall be referred to the Executive Committee. If any
Party or Meter Operator Party is not satisfied with the decision of
the Executive Committee, the matter may be referred by such Party or
Meter Operator Party to arbitration in accordance with Clause 83 of
this Agreement as incorporated into this Schedule by Section 24.
19.2 Tests to determine disputes: Any testing of Metering Equipment
comprising a Stage 1 Metering System required to settle any dispute
under Stage 1 Settlement (including a dispute under Clause 60.11.1)
will, prima facie, be carried out by the relevant Operator on the
relevant Metering Equipment mounted in its operational position in the
presence of the Settlement System Administrator acting on behalf of
the Executive Committee and in the presence of the Host PES. All
testing will be carried out in accordance with the relevant Code of
Practice or, where applicable, any relevant dispensation agreed in
accordance with this Schedule. The test performance of any Metering
Equipment shall be compared with calibrated test equipment by one of
the following methods:-
(a) injecting into the measuring circuits (i.e. excluding the
primary current and voltage transformers) and comparing the
readings or records over such period as may be required by
the relevant Code of Practice or, where applicable, any
relevant dispensation agreed in accordance with this
Schedule to ensure a reliable comparison; or
(b) where practicable, operating the calibrated test equipment
from the same primary current and voltage transformers as
the Metering Equipment under operating
<PAGE>
conditions. The readings or recordings of the Metering
Equipment and the calibrated test equipment shall be
compared over such period as may be required by the relevant
Code of Practice or, where applicable, any relevant
dispensation agreed in accordance with this Schedule; or
(c) in exceptional circumstances, such other method as may be
specified by the Settlement System Administrator.
19.3 Laboratory tests: Metering Equipment comprising a Stage 1 Metering
System which fails any test whilst in its operational position shall
be tested under laboratory conditions in accordance with the relevant
Code of Practice.
19.4 Witnesses: No more than two persons representing all interested
Parties or Meter Operator Parties nominated by the Executive Committee
(including the Host PES) in addition to the Settlement System
Administrator will be entitled to witness tests taken as a result of a
dispute, including tests confirming the calibration of test equipment,
or inspect evidence of valid calibration, or valid calibration
certificates, as appropriate.
19.5 Saving: It is hereby expressly acknowledged and agreed by the Parties
that the resolution of any dispute referred to in Clause 60.11.1 shall
in all cases be without prejudice to the bringing or pursuing of any
claim, by or against, or the resolving of any issue between any one or
more of such Parties or any other Party arising out of the same facts
or circumstances, or facts or circumstances incidental to the facts
and circumstances giving rise to such dispute or upon the basis of
which such dispute has been resolved, in favour of, or against, a
Meter Operator Party or Meter Operator Parties.
19.6 Release of data: Upon the request of any Party or Meter Operator Party
which is a party to a dispute referred to in sub-section 19.1 any
relevant data derived from any Stage 1 Metering System may be
submitted by the Settlement System Administrator to the body then
having jurisdiction in respect of the relevant dispute for the
purposes of resolving such dispute.
<PAGE>
PART 8: LIMITATION OF LIABILITY
20. LIMITATION OF LIABILITY
20.1 Limitation of liability: Subject to sub-section 20.2 and save where
any provision of this Agreement provides for an indemnity or for the
payment of liquidated damages (by whatever name known), each Party and
each Meter Operator Party agrees and acknowledges that no Party nor
Meter Operator Party (excluding for this purpose the Settlement System
Administrator) (in this Section 20, the "Party Liable") or any of its
officers, employees or agents shall be liable to any of the other
Parties or Meter Operator Parties for loss arising from any breach of
this Schedule or of this Agreement other than for loss directly
resulting from such breach and which at the date of this Agreement was
reasonably foreseeable as not unlikely to occur in the ordinary course
of events from such breach in respect of:-
20.1.1 physical damage to the property of any of the other Parties
or Meter Operator Parties or its or their respective
officers, employees or agents; and/or
20.1.2 the liability of any such other Party or Meter Operator
Party to any other person for loss in respect of physical
damage to the property of any other person.
20.2 Death and personal injury: Nothing in this Schedule or this Agreement
shall exclude or limit the liability of the Party Liable for death or
personal injury resulting from the negligence of the Party Liable or
any of its officers, employees or agents and the Party Liable shall
indemnify and keep indemnified each of the other Parties or Meter
Operator Parties, its officers, employees or agents from and against
all such and any loss or liability which any such other Party or Meter
Operator Party may suffer or incur by reason of any claim on account
of death or personal injury resulting from the negligence of the Party
Liable or any of its officers, employees or agents.
20.3 Exclusion of certain types of loss: Subject to sub-section 20.2 and
save where any provision of this Agreement provides for an indemnity
or for the payment of liquidated damages (by whatever name known),
neither the Party Liable nor any of its officers, employees or agents
shall in any circumstances whatsoever be liable to any of the other
Parties or Meter Operator Parties for:-
20.3.1 any loss of profit, loss of revenue, loss of use, loss of
contract or loss of goodwill; or
20.3.2 any indirect or consequential loss; or
20.3.3 loss resulting from the liability of any other Party or
Meter Operator Party to any other person howsoever and
whensoever arising save as provided in paragraph 20.1.2 and
sub-section 20.2.
<PAGE>
20.4 Trust: Each Party and each Meter Operator Party acknowledges and
agrees that each of the other Parties and Meter Operator Parties holds
the benefit of sub-sections 20.1, 20.2 and 20.3 for itself and as
trustee and agent for its officers, employees and agents.
20.5 Survival: Each of sub-sections 20.1, 20.2, 20.3 and 20.4 shall:-
20.5.1 be construed as a separate and severable contract term, and
if one or more of such paragraphs is held to be invalid,
unlawful or otherwise unenforceable the other or others of
such paragraphs shall remain in full force and effect and
shall continue to bind the Parties and the Meter Operator
Parties; and
20.5.2 survive termination of this Agreement.
20.6 Saving: For the avoidance of doubt, nothing in this Part 8 shall
prevent or restrict any Party or Meter Operator Party enforcing any
obligation (including suing for a debt or for the payment of
liquidated damages (by whatever name known)) owed to it under or
pursuant to this Schedule or this Agreement.
20.7 Full negotiation: Each Party and each Meter Operator Party
acknowledges and agrees that the foregoing provisions of this Part 8
have been the subject of discussion and negotiation and are fair and
reasonable having regard to the circumstances as at the date this
Schedule came into effect.
<PAGE>
PART 9: ACCESS
21. ACCESS
21.1 Access to Party's and Meter Operator Party's property: Each Party and
Meter Operator Party hereby agrees to grant to any Invitee and, in the
case of a Meter Operator Party, the Registrant of the Stage 1 Metering
System in respect of which it is Operator, and, in the case of a
Registrant of a Stage 1 Metering System, the Meter Operator Party
which is the Operator in respect of that Stage 1 Metering System:-
(a) full right during the currency of this Agreement to enter
upon and through and remain upon, or do any other act
contemplated by this Schedule 21 which would otherwise
constitute a trespass upon, any part of such Party's or, as
the case may be, Meter Operator Party's, property;
(b) in the case of the Operator or the Settlement System
Administrator, full right to remove any part of Metering
Equipment forming part of such property to a laboratory or
test house in accordance with the provisions of this
Schedule; and
(c) in the case of the Pool Auditor, full right to perform such
tasks and to do all such acts and things as are necessary
for the purpose of performing audits, tests, reviews and
checks under the SSA Arrangements, including full right to
carry out such tests on Metering Equipment provided that the
person or persons allocated to carry out such tests by the
Pool Auditor is or are suitably qualified in the operation
of Metering Equipment,
provided always that such access rights conferred by or pursuant to
this sub-section shall be granted only to the extent necessary for the
purposes of this Schedule and shall be subject to the other provisions
of this Section 21.
21.2 Invitees: An Invitee for the purposes of this Section 21 shall
comprise any one or more of the following:-
(i) the Settlement System Administrator acting through any
reasonably nominated employees, agents or contractors;
(ii) the Executive Committee acting through any reasonably
nominated persons;
(iii) the Equipment Owner for the purposes only of fulfilling its
obligations under paragraph 7.1.4;
(iv) the Pool Auditor acting through any partner or employee;
<PAGE>
(v) the auditor carrying out the Scheduling and Despatch Review
acting through any partner or employee;
(vi) the Ancillary Services Provider acting through any
reasonably nominated employees, agents or contractors; and
(vii) the Grid Operator acting through any reasonably nominated
employees, agents or contractors.
21.3 Access to property of Stage 1 Customers, Stage 1 Non-Pooled Generators
and Third Parties: The Registrant of a Stage 1 Metering System and the
Meter Operator Party which is the Operator or Potential Operator of
that Stage 1 Metering System hereby jointly and severally agree to use
all reasonable endeavours to, and to co-operate with each other for
the purpose of procuring for the benefit of each Invitee and for each
other:-
(a) full right to enter upon and through and remain upon, or do
any other act contemplated by this Schedule which would
otherwise constitute a trespass upon, any part of the
property:-
(i) of the Stage 1 Customer in respect of which that
Registrant is the Supplier;
(ii) of the Stage 1 Non-Pooled Generator from which
that Registrant receives supply; and
(iii) of any other person which is not a party to this
Agreement (the "Third Party") but the exercise of
whose rights would prevent such Stage 1 Customer,
Stage 1 Non-Pooled Generator, the Registrant, the
Meter Operator Party or any Invitee from
performing its obligations under this Schedule or
this Agreement and the existence of whose rights
is known to, or ought reasonably be known to, the
Registrant or, as the case may be, the Meter
Operator Party;
(b) in the case of the Operator or the Settlement System
Administrator, full right to remove all or any part of
Metering Equipment forming part of such property to a
laboratory or test house in accordance with the provisions
of this Schedule; and
(c) in the case of the Pool Auditor, full right to perform such
tasks and to do all such acts and things as are necessary
for the purpose of performing audits, tests, reviews and
checks under the SSA Arrangements, including full right to
carry out such tests on Metering Equipment provided that the
person or persons allocated to carry out such tests by the
Pool Auditor is or are suitably qualified in the operation
of Metering Equipment,
<PAGE>
provided always that such access rights conferred by or pursuant to
this sub-section shall be granted only to the extent necessary for the
purposes of this Schedule and shall be subject to the other provisions
of this Section 21.
21.4 Failure to procure access: If, after having used all such reasonable
endeavours to procure access rights in accordance with this Section 21
in respect of a Stage 1 Customer, a Stage 1 Non-Pooled Generator or
Third Party referred to in sub-section 21.3, a Registrant and/or Meter
Operator Party have been unable to procure any such rights the
Registrant:-
(i) hereby undertakes not to make any future supplies to such
Stage 1 Customer at the Site in respect of which such access
rights are required until such access rights have been
obtained and if supplying such Stage 1 Customer at such Site
to cease forthwith to supply such Stage 1 Customer at that
Site;
(ii) hereby undertakes not to take any future supply of
electricity from such Stage 1 Non-Pooled Generator at the
Site in respect of which such access rights are required
until such access rights have been obtained and if taking a
supply of electricity from such Stage 1 Non-Pooled Generator
at such Site to cease forthwith to take a supply of
electricity from such Stage 1 Non-Pooled Generator at that
Site; and
(iii) shall notify the Settlement System Administrator in
accordance with the relevant Agreed Procedure of that fact.
The Settlement System Administrator shall be entitled to assume that
the consents of any Third Parties shall have been obtained in
accordance with the provisions of this sub-section until such time as
it is fixed with notice to the contrary.
21.5 Right of access: The right of access provided for in sub-sections 21.1
and 21.3 shall include the right to bring on to such Meter Operator
Party's, Party's, Stage 1 Customer's, Stage 1 Non-Pooled Generator's
or Third Party's property such vehicles, plant, machinery and
maintenance or other materials as shall be reasonably necessary for
the purposes of this Schedule.
21.6 Authorisation: Each Meter Operator Party or, as the case may be, Party
shall ensure that any particular authorisation or clearance which is
required to be given to ensure access to any Invitee, Registrant or
Meter Operator Party in accordance with this sub-section is available
on arrival.
21.7 Safety: Subject to the right of the Settlement System Administrator to
inspect without notice pursuant to paragraph 8.2.2, each Meter
Operator Party or, as the case may be, Party shall procure that all
reasonable arrangements and provisions are made and/or revised from
time to time as and when necessary or desirable to facilitate the safe
exercise of any right of access granted pursuant to sub-section 21.1
or 21.3 with the minimum of disruption, disturbance and inconvenience.
Such arrangements and provisions may, to the extent that the same are
reasonable, limit or restrict the exercise of such right of access
and/or provide for any Meter
<PAGE>
Operator Party or Party to make directions or regulations from time to
time in relation to a specified matter. Matters to be covered by such
arrangements and/or provisions include:-
(i) the identification of any relevant Metering Equipment;
(ii) the particular access routes applicable to the land in
question having particular regard for the weight and size
limits on those routes;
(iii) any limitations on times of exercise of the right of access;
(iv) any requirements as to prior notification and as to
authorisation or security clearance of individuals
exercising such right of access and procedures for obtaining
the same;
(v) the means of communication to the Meter Operator Party or,
as the case may be, Party (and all employees and/or
contractors who may be authorised from time to time to
exercise such right of access) of any relevant directions or
regulations made by the Meter Operator Party or, as the case
may be, Party; and
(vi) the identification of and arrangements applicable to
personnel exercising the right of access granted by
sub-sections 21.1 or 21.3.
Each Party or Meter Operator Party shall (and shall procure that all
persons exercising any right of access on behalf of such Party or
Meter Operator Party) observe and perform any such arrangements and
all provisions (or directions or regulations issued pursuant thereto)
made from time to time.
21.8 Damage: Each Party or Meter Operator Party shall procure that all
reasonable steps are taken in the exercise of any right of access by
or on behalf of such Party or Meter Operator Party to:-
(a) avoid or minimise damage in relation to any Meter Operator
Party's, Party's, Stage 1 Customer's, Stage 1 Non-Pooled
Generator's or other Third Party's property; and
(b) cause as little disturbance and inconvenience as possible to
any Meter Operator Party, Party, Stage 1 Customer, Stage 1
Non-Pooled Generator or other Third Party or other occupier
of such Meter Operator Party's, Party's, Stage 1 Customer's,
Stage 1 Non-Pooled Generator's or other Third Party's
property,
and shall make good any damage caused to such property in the course
of exercise of such rights as soon as may be practicable. Subject to
this, all such rights of access shall be exercisable free of any
charge or payment of any kind.
<PAGE>
21.9 Licence Restricted Parties:
(a) This sub-section 21.9 shall apply to any area owned or
occupied by any Party, Meter Operator Party or any
subsidiary of such Party or Meter Operator Party, Stage 1
Customer, Stage 1 Non-Pooled Generator or Third Party (in
this Schedule, each a "Licence Restricted Party") which is
the holder of or subject to a licence granted under the
Nuclear Installations Act 1965 (in this Schedule, a "Nuclear
Site Licence") or subject to restrictions in relation to a
Nuclear Site Licence, where such area is subject to that
Nuclear Site Licence but, in respect of Energy Settlements
and Information Services Limited, this sub-section 21.9
shall apply subject to the provisions of any other agreement
between the Licence Restricted Party and NGC (or any of its
subsidiaries) imposing restrictions on NGC's (or any of its
subsidiaries') right of access to any area owned by the
Licence Restricted Party subject to (or subject to
restrictions in relation to) a Nuclear Site Licence.
(b) This sub-section 21.9 shall take precedence over any
contrary provisions of this Schedule.
(c) No Party or Meter Operator Party shall enter or attempt to
enter or permit or suffer any person to enter or attempt to
enter any area owned or occupied by the Licence Restricted
Party to which a Nuclear Site Licence applies except
strictly in accordance with the provisions, restrictions and
conditions of the Nuclear Site Licence.
(d) The Licence Restricted Party shall be entitled to take
reasonable action of any kind whatsoever relating to or
affecting access to its property as it considers on
reasonable grounds to be necessary in order to enable the
Licence Restricted Party to comply with the provisions,
restrictions and conditions of a Nuclear Site Licence or
avert or minimise any reasonably anticipated breaches
thereof.
21.10 Denial of access: The Settlement System Administrator shall not incur
any liability under this Schedule or this Agreement in the event it
cannot perform any of its duties hereunder due to access to Metering
Equipment required for the purposes of Stage 1 Settlement being denied
to it save that the Settlement System Administrator shall inform the
Executive Committee thereafter.
<PAGE>
PART 10: COMMUNICATIONS EQUIPMENT
22. COMMUNICATIONS EQUIPMENT
22.1 Compatibility: Communications Equipment required for the purposes of
Stage 1 Settlement at or relating to any Site (which whenever used in
this Section 22 shall include all Qualifying Sites) must be compatible
with the communications links provided by the Settlement System
Administrator pursuant to Clause 60.6.3(a) in respect of that Site.
Prior to the installation of Communications Equipment required for the
purposes of Stage 1 Settlement at or relating to any Site the Tariff
Operator shall consult with the Settlement System Administrator to
ensure that such Communications Equipment will be compatible with such
communication links. Where a Tariff Operator becomes aware that
Communications Equipment required for the purposes of Stage 1
Settlement at or relating to a Site is used for purposes other than in
connection with Stage 1 Settlement, it shall notify the Settlement
System Administrator of any such use or purposes to which that
Communications Equipment is put.
22.2 Settlement System Administrator's responsibility in respect of
communications links: Subject to the requirement of the Settlement
System Administrator to collect data in accordance with Clause 60.6.1
and subject to the provisions of sub-section 22.1, the Settlement
System Administrator shall use all reasonable endeavours to ensure
that the communications link provided by it (but which, for the
avoidance of doubt, does not form part of Communications Equipment) to
any Site pursuant to Clause 60.6.3(a) is of the type requested by the
Tariff Operator.
22.3 Tariff payments:
(a) The Settlement System Administrator shall pay from time to
time to each Tariff Operator in respect of a Site for which
it is the Tariff Operator, an amount (if any) determined in
accordance with the relevant Tariff and payable in respect
of Communications Equipment installed and maintained at or
relating to such Site by such Tariff Operator for the
purposes of Stage 1 Settlement.
(b) The Settlement System Administrator shall recover from time
to time (for credit to Pool Members as the Executive
Committee shall from time to time direct) from a Tariff
Operator and a Tariff Operator shall pay from time to time
(for credit to Pool Members as the Executive Committee shall
from time to time direct) to the Settlement System
Administrator in respect of the costs of manual on-site
interrogation or data estimation costs incurred by it in
respect of each Site at which there is not installed and
maintained Communications Equipment required for the
purposes of Stage 1 Settlement in accordance with the
requirements of this Schedule, such amounts (if any)
determined in accordance with the relevant Tariff. Where the
Settlement System Administrator has received any such
payment pursuant to this sub-section 22.3(b) it shall be set
off in full against amounts which may be recovered by the
Settlement System Administrator pursuant to sub-section 22.6
or 22.7.
<PAGE>
(c) The Settlement System Administrator may, and at the
direction of the Executive Committee shall, without notice
to the relevant Tariff Operator set off amounts payable to
it by that Tariff Operator under the relevant Tariff against
amounts payable by the Settlement System Administrator to
that Tariff Operator, under the relevant Tariff. Any amounts
so set off by the Settlement System Administrator under this
sub-section 22.3 shall be deemed to have been received by
the Settlement System Administrator for the purposes of
sub-section 22.3(b).
(d) Notwithstanding the terms of any Tariff, a Tariff Operator
shall not be entitled to receive payment of or otherwise
recover any sums for or relating to goods or services
delivered or provided by it under or for the purposes of
this Agreement and invoiced or claimed by the Tariff
Operator to or from the Settlement System Administrator or
Pool Members more than 90 days after the end of the month in
which such goods or services were delivered or provided.
22.4 Refunds: Where a Tariff Operator is removed, resigns or otherwise
ceases to be Tariff Operator at or relating to any Site it shall pay
to the Settlement System Administrator such amount (if any) as is set
out in the relevant Tariff by way of reimbursement of amounts paid to
it pursuant to sub-section 22.3.
22.5 Additional payments: If a Tariff Operator can demonstrate to the
reasonable satisfaction of the Settlement System Administrator that
any relevant payment to be made pursuant to this Section 22 and in
accordance with the relevant Tariff in respect of any particular Site
as is described in the relevant Tariff does not reflect the cost to
such Tariff Operator of providing in respect of Communications
Equipment at or relating to such Site installation and maintenance
services in an efficient and economic manner then the Settlement
System Administrator may negotiate an additional payment to such
Tariff Operator in respect of Communications Equipment at or relating
to such Site provided that the Tariff Operator shall be entitled to
receive such additional payment only if and to the extent that the
economic and efficient provision of installation and maintenance
services in respect of the Communications Equipment at or relating to
that Site is in fact effected. If the Tariff Operator and the
Settlement System Administrator fail to agree on the amount of an
additional payment, the Tariff Operator may refer the matter to the
Executive Committee which shall determine the same. The relevant Meter
Operator Party may refer any such decision of the Executive Committee
to the Director and for the purposes thereof shall be deemed to be
exercising a Dissentient Pool Member's right of appeal pursuant to and
in accordance with Clause 13.5. The Settlement System Administrator
shall send the Executive Committee on request a written report giving
reasonable details of any such additional payments made or proposed to
be made.
22.6 Costs beyond SSA's control: Payments which are made to Tariff
Operators in respect of the provision of installation and maintenance
services in respect of Communications Equipment (whether or not
pursuant to or in addition to the relevant Tariff) and payments for
communications links shall be a cost beyond the control of the
Settlement System Administrator.
<PAGE>
22.7 Recovery of costs: All costs and expenses relating to the payment
arrangements referred to in this Schedule for the installation and
maintenance of Communications Equipment required for the purposes of
Stage 1 Settlement, the relevant Tariff or otherwise, including
payments which are made to Tariff Operators for the provision of
installation and maintenance services in respect of such
Communications Equipment, payments for communications links,
management time and expenses of the Settlement System Administrator
and the cost of funds borrowed to finance such costs, expenses and
payments, may be recovered in full by the Settlement System
Administrator in accordance with the Charging Procedure.
22.8 No agency: No agency relationship (whether express or implied) shall
be, or be deemed to be, created between any Tariff Operator and the
Settlement System Administrator or any other person as a result of the
payments to be made pursuant to this Section 22.
22.9 Tariff Operators:
(a) There shall at any point in time be no more than one Tariff
Operator in respect of each Stage 1 Metering System or
Metering Equipment.
(b) Each Tariff Operator shall, for so long as it is entitled to
receive payments in respect of Communications Equipment
required for the purposes of Stage 1 Settlement at or
relating to a Site, in respect of that Communications
Equipment (but not in respect of any other Metering
Equipment which is not Communications Equipment):-
(i) ensure there is installed Communications Equipment
(including its component parts) which complies
with the provisions of this Schedule, Part XV of
this Agreement and the relevant Code of Practice
or shall be the subject of, and comply with, a
dispensation agreed in accordance with Section 14,
and which uses such communications protocols as
may be selected in accordance with paragraph 7.2.2
of this Schedule;
(ii) at its own cost and expense (but without prejudice
to its right to charge any other person for such
service pursuant to another agreement or
arrangement) keep installed, in good working
order, repair and condition that Communications
Equipment (including its component parts) to allow
for the correct transmission of data in accordance
with this Agreement (whether or not such data are
actually required to be transmitted for the
purposes of this Agreement); and
(iii) provide to the Settlement System Administrator
such information in respect of that Communications
Equipment as it would be required to provide
pursuant to this Schedule, Part XV of this
Agreement and the relevant Agreed Procedure, were
it, in respect of that Qualifying Site at or in
relation to which that Communications Equipment is
installed, an Operator in respect of a Site at the
point of connection to a Stage 1 Customer for the
purposes of the Settlement
<PAGE>
System Administrator recording and keeping
up-to-date details of that Communications
Equipment on the Register.
22.10 Transitional Arrangements: It is hereby expressly acknowledged and
agreed by the Parties and Meter Operator Parties that, with effect
from the date this provision comes into effect, references in the
Tariff, which on 22nd April, 1994 became effective as at 1st January,
1994 (if not then superseded), to "Potential Operator" shall be read,
with respect to any obligation then unperformed, or right then
unenjoyed, as if that reference were a reference to a Tariff Operator.
<PAGE>
PART 11: TRANSITIONAL ARRANGEMENTS
23. TRANSITIONAL ARRANGEMENTS
23.1 Transitional Arrangements: With effect from the date this Schedule
came into effect (the "NSD Date") each Party which is at that date an
Operator or a Potential Operator shall be deemed to be a Meter
Operator Party (in addition to continuing as a Party in any other
capacity) and to have complied with all the requirements of or
referred to in this Schedule 21 relating to admission as a Meter
Operator Party and as an Operator. The Parties acknowledge and confirm
that the deemed admission of an existing Party as a Meter Operator
Party shall not affect that Party's rights and obligations under any
agreement or arrangement relating to being an Operator entered into or
existing between the Parties or any of them prior to such deemed
admission, and that accordingly such agreement or arrangement shall
continue notwithstanding the change and any reference to that Party
being an Operator under this Agreement shall be construed as being an
Operator as a Meter Operator Party.
23.2 Saving: Notwithstanding sub-section 23.1, each Party to which this
Part 11 applies expressly acknowledges and agrees that,
notwithstanding any deemed satisfaction of the conditions which are
required to be fulfilled as at the NSD Date in accordance with this
Schedule for the purposes of admission as a Meter Operator Party and
as Operator, it shall be subject (but only with prospective effect;
that is to say to the effect that any conditions which apply as at the
NSD Date are deemed to be fulfilled and need not then be fulfilled as
a continuing obligation) to the continuing and further conditions for
registration as an Operator from time to time and to the provisions of
sub-section 4.4, and that it shall be subject to the provisions for
the resignation, removal and cessation as Operator in respect of any
Stage 1 Metering System, or as Meter Operator Party, as the case may
be, in accordance with the provisions of this Schedule as at the date
hereof and from time to time, and after any such resignation, removal
or cessation as a Meter Operator Party, it shall be subject in full to
the procedures for admission as a Meter Operator Party and Operator as
may be set out from time to time in this Schedule.
<PAGE>
PART 12: INCORPORATION OF OTHER PROVISIONS OF THIS AGREEMENT
24. INCORPORATION BY REFERENCE
Incorporation by reference: The provisions of Clauses 1.2, 1.3, 8.6, 34.1, 34.2,
37.3, 66.7, 68, 69, 71, 71A, 71B, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84 and
85 of the Pooling and Settlement Agreement, Sections 4 and 7 of Schedule 4
thereto and Sections 3 and 4 of Part E of the Appendix to that Schedule shall be
deemed to be incorporated into this Schedule 21 mutatis mutandis as if each
reference therein to the word "Party" were a reference to the words "Party and
Meter Operator Party" and to the word "Parties" were to the words "Parties and
Meter Operator Parties".
<PAGE>
PART 13: UNMETERED SUPPLIES
25. UNMETERED SUPPLIES
The Parties (including each Operator and each Meter Operator Party) shall comply
with their respective obligations under Agreed Procedure AP140 in relation to
unmetered supplies of electricity.
<PAGE>
ANNEX 1
Form of Meter Operator Party Admission Application
The Executive Committee for the
Pooling and Settlement System in England and Wales
[copy to: the Settlement System Administrator]
[Date]
Dear Sir,
1. We [insert full legal name and address of registered/principal office of
applicant] refer to Schedule 21 to the Pooling and Settlement Agreement for the
electricity industry in England and Wales dated 30th March, 1990 (as amended,
varied, supplemented, modified or suspended, the "Pooling and Settlement
Agreement").
2. Unless the context otherwise requires, words and expressions defined in the
Pooling and Settlement Agreement for the purposes of Schedule 21 to the Pooling
and Settlement Agreement shall bear the same meanings respectively when used
herein.
3. We hereby apply to be admitted as an additional party in accordance with, and
for the purposes only of, Schedule 21 to the Pooling and Settlement Agreement
pursuant to Section 3 and subject to the terms set out in Section 2 thereof. We
wish to participate thereunder in the capacity of a Meter Operator Party.
4. We hereby represent and warrant to the Executive Committee (for itself and on
behalf of all the Parties and Meter Operator Parties) that:-
(A) we are duly organised and validly existing under the laws of
the jurisdiction of our organisation or incorporation;
(B) we have the power to execute and deliver our Meter Operator
Party Accession Agreement and any other documentation
relating to that Agreement or the Pooling and Settlement
Agreement and such other agreements as are required thereby
and to perform our obligations hereunder or thereunder and
we have taken all necessary action to authorise such
execution, delivery and performance; and
(C) such execution, delivery and performance do not violate or
conflict with any law applicable to us, any provision of our
constitutional documents, any order or judgment of any court
or other agency of government applicable to us or any of our
assets or any contractual restriction on or affecting us or
any of our assets.
<PAGE>
We confirm that these representations and warranties will also be true
and correct in all material respects at the date of our admission as a New Meter
Operator Party.
5. We enclose the application fee of (pound)[ ]*.
6. We accept and agree to be bound by the terms of Section 3 of Schedule
21 to the Pooling and Settlement Agreement.
Yours faithfully,
-------------------------
duly authorised for and on behalf of
[insert full legal name of the New Meter Operator Party]
* Insert current application fee prescribed by the Executive Committee.
<PAGE>
ANNEX 2
Form of Meter Operator Party Resignation Notice
The Secretary of the Executive Committee for the
Pooling and Settlement System in England and Wales
[copied to: the Settlement System Administrator]
[Date]
Dear Sir,
1. We [insert full legal name and address of registered/principal office of
applicant] refer to Schedule 21 to the Pooling and Settlement Agreement for the
electricity industry in England and Wales dated 30th March, 1990 (as amended,
varied, supplemented, modified or suspended, the "Pooling and Settlement
Agreement").
2. Unless the context otherwise requires, words and expressions defined in the
Pooling and Settlement Agreement for the purposes of Schedule 21 to the Pooling
and Settlement Agreement shall bear the same meanings respectively when used
herein.
3. We hereby give notice pursuant to sub-section 5.1 of Schedule 21 to the
Pooling and Settlement Agreement that we are resigning as a Meter Operator Party
with effect from the date falling 28 days after receipt by you of this Meter
Operator Party Resignation Notice.
4. We confirm that in giving this notice of resignation, we are not and will not
be in breach of the restriction on resignation set out in sub-section 5.2 of
Schedule 21 to the Pooling and Settlement Agreement.
5. We acknowledge that our resignation as a Meter Operator Party is without
prejudice to our accrued rights and liabilities and any rights and liabilities
which may accrue to us in relation to the period during which we were a Meter
Operator Party under Schedule 21 to the Pooling and Settlement Agreement or any
agreement referred to in sub-section 5.2 of Schedule 21 to the Pooling and
Settlement Agreement.
6. We further expressly acknowledge and confirm that our resignation as a Meter
Operator Party pursuant to Schedule 21 to the Pooling and Settlement Agreement
is without prejudice to our past, present and future accrued or accruing rights
and liabilities as a Party
<PAGE>
to the Pooling and Settlement Agreement in any capacity whatsoever other than
that of Meter Operator Party.
Yours faithfully,
-----------------------------
duly authorised for and on behalf of
[insert full legal name of Meter Operator Party]
<PAGE>
ANNEX 3
Form of Meter Operator Party Accession Agreement
THIS SUPPLEMENTAL AGREEMENT is made on [ ] BETWEEN:
(1) [ ], a company incorporated [with limited liability] under the
laws of [ ] [(registered number [ ])] and having its
[registered] [principal] office at [ ] (the "New Meter Operator
Party"); and
(2) [ ] (the "Nominee") on behalf of all the parties to the Pooling
and Settlement Agreement referred to below.
WHEREAS:
(A) by an agreement dated 30th March, 1990 made between the Founder
Generators named therein (1), the Founder Suppliers named therein (2),
Energy Settlements and Information Services Limited (formerly NGC
Settlements Limited) as Settlement System Administrator (3), Energy
Pool Funds Administration Limited as Pool Funds Administrator (4), The
National Grid Company plc as Grid Operator and Ancillary Services
Provider (5), and Scottish Power plc and Electricite de France,
Service National as Externally Interconnected Parties (6) (as amended,
varied, supplemented, modified or suspended, the "Pooling and
Settlement Agreement") the parties thereto agreed to give effect to
and be bound by certain rules and procedures for the operation of an
electricity trading pool and the operation of a settlement system;
(B) by Section 2 of Schedule 21 to the Pooling and Settlement Agreement
additional parties may be admitted to that Agreement for the purposes
of, and only to be bound by and conferred rights in accordance with,
Schedule 21 thereto in the capacity of Meter Operator Party; and
(C) the New Meter Operator Party has requested that it be admitted as a
Meter Operator Party pursuant to Section 3 of Schedule 21 to the
Pooling and Settlement Agreement and each of the Parties and Meter
Operator Parties hereby agrees to such admission.
NOW IT IS HEREBY AGREED as follows:-
1. Unless the context otherwise requires, words and expressions defined
in the Pooling and Settlement Agreement used for the purposes of
Schedule 21 to the Pooling and Settlement Agreement shall bear the
same meanings respectively when used herein.
2. The Nominee (acting on behalf of each of the Parties and Meter
Operator Parties) hereby admits the New Meter Operator Party as an
additional Meter Operator Party under Schedule 21 to the Pooling and
Settlement Agreement on the terms and conditions hereof and with
effect from [insert effective date of admission].
<PAGE>
3. The New Meter Operator Party hereby accepts its admission as a Meter
Operator Party and undertakes with the Nominee (acting on behalf of
each of the Parties and Meter Operator Parties) to perform and to be
bound by the terms and conditions of Schedule 21 to the Pooling and
Settlement Agreement as a Meter Operator Party as from the [insert
effective date of admission].
4. For all purposes in connection with the Pooling and Settlement
Agreement the New Meter Operator Party shall as from the [insert
effective date of admission] be treated including for the purposes of
Section 2 of Schedule 21 to the Pooling and Settlement Agreement as if
it had been a signatory of the Pooling and Settlement Agreement as a
Meter Operator Party and as if this Agreement were part of the Pooling
and Settlement Agreement, and the rights and obligations of the
Parties and Meter Operator Parties shall be construed accordingly.
5. The New Meter Operator Party, the Parties and the Meter Operator
Parties expressly acknowledge and confirm that, pursuant to
sub-section 2.1 of Schedule 21 to the Pooling and Settlement Agreement
with effect from [insert effective date of admission] the New Meter
Operator Party shall only be bound by, and conferred rights in
accordance with, Schedule 21 to the Pooling and Settlement Agreement
in the sole capacity of Meter Operator Party.
6. The New Meter Operator Party expressly consents to be bound by the
provisions of sub-sections 2.2 and 2.3 of Schedule 21 to the Pooling
and Settlement Agreement.
7. This Agreement and the Pooling and Settlement Agreement shall be read
and construed as one document and references in the Pooling and
Settlement Agreement to the Pooling and Settlement Agreement
(howsoever expressed) shall be read and construed as references to the
Pooling and Settlement Agreement and this Agreement.
8. This Agreement shall be governed by and construed in all respects in
accordance with English law and the provisions of Clauses 83 and 84 of
the Pooling and Settlement Agreement as incorporated into Schedule 21
thereto by Section 24 thereof shall apply hereto mutatis mutandis.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the date and year first above written.
[New Meter Operator Party]
By:
<PAGE>
Notice details (Clause 75 of the Pooling and Settlement Agreement as
incorporated into Schedule 21 thereto by Section 24 thereof)
Address:
Facsimile number:
Attention:
[Nominee]
(for and on behalf of each of the parties (including Meter Operator Parties) to
the Pooling and Settlement Agreement)
By:
<PAGE>
ANNEX 4
[Not used.]
<PAGE>
ANNEX 5
Non-Exhaustive Diagrammatic Representations of
Metering Systems
Examples of the configuration of Metering Systems for the purposes of this
Agreement are set out as 1 to 7(b) below.
<PAGE>
Metering System Configuration
Example 1 Code of Practice Three installation
Single customer
Single premises
Single feeder
Main---------kWh-----------
Main-------kVArh(lag)------
Out
-----CE---CL---Instation---CDCS
Station
Main------kVArh(lead)------
Check--------kWh-----------
1x Metering System
<PAGE>
Metering System Configuration
Example 2(a) Code of Practice Three installation
Single customer
Single premises
Multiple feeders (no physical separation)
feeder 1
Main---------kWh----------- (Discrete dial, one dial-up)
Main-------kVArh(lag)------
Main------kVArh(lead)------
Main---------kWh-----------
Out
-----CE---CL---Instation---CDCS
Station
Main---------kWh-----------
feeder 2
Main-------kVArh(lag)------
Main------kVArh(lead)------
ders
Check--------kWh-----------
1 x Metering System
<PAGE>
Metering System Configuration
Example 2(b) o Code of Practice Three installation
o Single customer
o Single premises
o Multiple feeders (at different physical locations
on the site)
feeder 1
Main---------kWh-----------
(One dial-up)
Main------kVArh(lag)-------
Out
---CE---CL-----
Station
Main------kVArh(lead)------
Check--------kWh-----------
(Physical Separation)
Instation----CDCS
feeder 2
Main---------kWh-----------
Main-------kVArh(lag)------
Out
---CE---CL-----
Station
Main------kVArh(lead)------
Check--------kWh-----------
2 x Metering System
<PAGE>
Metering System Configuration
Example 3 Code of Practice Three installation with two
Code of Practice Five meters
Single customer
Single premises
Single feeder
Main---------kWh----------- (Two dial-ups, selective dial)
Out
\
Station \
Main------kVArh(lag)------- \
\
CE---CL---Instation---CDCS
/
Main------kVArh(lead)------ /
Out /
/
Station
Check--------kWh-----------
1 x Metering System
<PAGE>
Metering System Configuration
Example 4 Code of Practice Three installation with two
Code of Practice Five meters per feeder
Single customer
Single premises
Multiple feeders (no physical separation)
Main---------kWh-----------
Out
Station
Main-------kVarh(lag)------
Main------kVArh(lead)------
Out
Station
Check--------kWh-----------
feeder 2 CE---CL---Instation-----CDCS
Main---------kWh-----------
Out
Station
Main-------kVarh(lag)------
Main------kVarh(lead)------
Out
Station
Check--------kWh-----------
Other feeders
1 x Metering System
<PAGE>
Metering System Configuration
Example 5 Code of Practice Five installation
Single customer
Single premises
Single feeder
Main---------kWh----------- (Discrete dial, one dial-up)
Out
---CE---CL---Instation-----CDCS
Station
Main--------kVArh----------
(lag)
1 x Metering System
<PAGE>
Metering System Configuration
Example 6(a) Code of Practice Five installation
Single customer
Single premises
Multiple feeders (no physical separation)
feeder 1
Main---------kWh-----------
Out
Station
Main------kVArh(lag)-------
feeder 2 CE---CL---Instation---CDCS
Main---------kWh-----------
Out
Station
Main------kVArh(lag)-------
Other feeders
1 x Metering System
<PAGE>
Metering System Configuration
Example 6(b) Code of Practice Five installation
Single customer
Single premises
Multiple feeders (at different physical locations on
the site)
Main---------kWh-----------
Out (One dial-up)
---CE---CL-----
Station
Main------kVArh(lag)-------
(Physical Separation) Instation---CDCS
Main---------kWh-----------
Out
---CE---CL-----
Station
Main------kVArh(lag)-------
<PAGE>
Metering System Configuration
Example 7(a) Code of Practice Five installation
Two customer
Single or adjacent premises
Customer 1
Main---------kWh-----------
Out (Two dial-ups)
Station
Main------kVArh(lag)-------
Customer 1 kWh
------
Customer 2 CE---CL---Instation CDCS
------
Customer 2 kWh
Main---------kWh-----------
Out
Station
Main------kVArh(lag)-------
Other Customers NOTE: Registrant(Supplier) and Meter
Operator Party must be the same
parties for each function for each
Customer.
2 x Metering System
<PAGE>
Metering System Configuration
Example 7(b) Code of Practice Five installation
Two customer
Single or adjacent premises
Customer 1
Main---------kWh-----------
Out
---CE---CL-----
Station
Main------kVArh(lag)-------
Customer 1 kWh
Customer 2 Instation---CDCS
Customer 2 kWh
Main---------kWh-----------
Out
---CE---CL-----
Station
Main------kVArh(lag)------- (One dial-up)
Other Customers NOTE: Registrant (Supplier) and Meter
Operator Party can be different parties
for each function for each Customer.
2 x metering System
<PAGE>
SCHEDULE 22
1998 Programme Funding and Cost Recovery
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions: In this Schedule, except where the context otherwise
requires:-
"1998 Programme" means the programme of work undertaken by the Pool to
establish the systems and processes (including the EAC/AA System, the
ISRA System and the NHH Data Aggregation System) to support the
trading and settlement system in England and Wales to facilitate the
full introduction of a competitive supply market on 1st April, 1998,
as described in the Operational Framework;
"1998 Programme Costs" means the development and implementation costs
of the 1998 Programme comprising the following (without
double-counting):-
(a) the costs and expenses of implementing Approved Funding
Tranches approved in the period until the Implementation
Date; and
(b) Accrued Costs,
in so far as such costs relate to the 1998 Programme but, for the
avoidance of doubt, shall exclude those costs and charges to be paid
by the Scottish PESs or Scottish Settlements pursuant to Section 9 of
Schedule 23;
"1998 Programme Recovery Period" means the period beginning on the
Implementation Date and expiring on 31st March, 2003;
"1998 Sub-Committees" means the sub-committees, the Programme Board
and project boards established to develop and implement the 1998
Programme;
"Accrued Costs" means the costs accrued in relation to the 1998
Programme prior to 1st April, 1996, which the Pool Members agree
amount to (pound)2,878,000 at 1st April, 1996, together with interest
calculated at the base rate of Barclays Bank PLC from time to time
compounded, with monthly rests, until the date of payment, which costs
are repayable in accordance with sub-section 2.4;
"Aggregate Charging Limit" or "ACL" means the aggregate amount of 1998
Programme Costs recoverable by the Public Electricity Suppliers
pursuant to Section 8;
<PAGE>
"Approved Funding Tranches" means the Funding Tranches approved by the
Steering Group in accordance with sub-section 3.4 or by Public
Electricity Suppliers in accordance with sub-section 7.2;
"Approved Reason" means a delay resulting from the requirements of the
Director or the Secretary of State or any exceptional circumstances
outside the control of Pool Members collectively;
"Chargeable 1998 MWh" or "C1998MWH" has the meaning given to that term
in paragraph 8.2.4;
"EAC/AA System" means the estimation of annual consumption and
annualised advance software and systems which are to be developed for
the benefit of Pool Members pursuant to the 1998 Programme;
"EPFAL" means Energy Pool Funds Administration Limited (registered
number 2444187) whose registered office is situate at 185 Park Street,
London SE1 9DY or such other person as may be appointed as its
successor from time to time as Pool Funds Administrator pursuant to
Schedule 15;
"Financing Costs" or "FC" means the amount of costs to be incurred and
recovered by the Public Electricity Suppliers in respect of their
financing of 1998 Programme Costs, such amount being equal to interest
upon 1998 Programme Costs at the base rate of Barclays Bank PLC from
time to time compounded, with monthly rests, accruing from the date of
payment by the Public Electricity Suppliers of such 1998 Programme
Costs, until the Implementation Date or, if the Implementation Date is
not the first day of a Quarter, the first day of the next following
Quarter;
"Funder" means a person for the time being party to this Agreement who
is a Public Electricity Supplier or a Scottish PES;
"Funding Tranches" means individual and groups of work packages
submitted for approval by the Steering Group or Public Electricity
Suppliers in accordance with sub-section 3.4 or, as the case may be,
Section 7;
"Implementation Date" means the date on which the first of the
following occurs:-
(a) a competitive supply market begins to operate in respect of
customers below 100kW;
(b) the Executive Committee requires work on the 1998 Programme
to cease as agreed or sanctioned by the Secretary of State
or the Director; and
(c) the systems and processes developed by the Pool required to
facilitate the beginning of the competitive supply market in
respect of customers below 100kW would be able to
<PAGE>
operate, as determined by an independent expert jointly
appointed by the Public Electricity Suppliers, the Chief
Executive and the Director, but are not capable of operating
because of other circumstances,
but in any event no earlier than 1st April, 1998;
"ISRA System" means the initial settlement and reconciliation software
and systems for electricity trading in England and Wales which are to
be developed for the benefit of Pool Members pursuant to the 1998
Programme;
"NHH Data Aggregation System" means the non half hour data aggregation
software and systems which are to be developed for the benefit of Pool
Members pursuant to the 1998 Programme;
"Non-paying Funder" has the meaning ascribed to that term in paragraph
2.3.3;
"Operational Framework" means the 1998 Operational Framework of the
Pool (Release 4.2) submitted to the Director as of 31st March, 1996;
"PACL" has the meaning given to that term in paragraph 8.2.2;
"PES Nominees" has the meaning given to that term in paragraph 3.4.1;
"PES Votes" means, in relation to a Public Electricity Supplier, the
number of votes to which such Public Electricity Supplier is entitled
from time to time, determined in accordance with Section 6;
"Pool" means the Electricity Pool of England and Wales;
"Programme Board" means the 1998 Programme Management Board
established by the Executive Committee to monitor, review and oversee
implementation of the 1998 Programme;
"Programme Budget" means an estimate of the overall cost of
implementing the 1998 Programme, including detailed cost estimates for
each element of the 1998 Programme required to be incurred, each
element to be broken down into all identified Funding Tranches with
each Funding Tranche to contain the details of the timing of the work,
the scope of work and the likely costs and expenses to be incurred in
its performance, approved in accordance with Section 5;
"Programme Share" means, in relation to a Public Electricity Supplier
or a Scottish PES, the share of 1998 Programme Costs of such Public
Electricity Supplier or (as the case may be) such Scottish PES,
determined in accordance with Section 6;
<PAGE>
"Quarterly 1998 Programme Amount" or "Q1998PA" has the meaning given
to that term in paragraph 8.2.2;
"Quarterly 1998 Programme Charge" or "Q1998PC" has the meaning given
to that term in paragraph 8.2.3;
"RACL" has the meaning given to that term in paragraph 8.2.1;
"Requisite Proportion" means, in the case of the approval by Public
Electricity Suppliers in writing or in separate meeting of the matters
referred to:-
(a) in sub-sections 7.2(a) and 7.2(c), 65 per cent.; and
(b) in sub-section 7.2(b), 50 per cent.,
in the case of written consent, of the total PES Votes of all Public
Electricity Suppliers and, in the case of a separate general meeting,
of the total PES Votes of those Public Electricity Suppliers as (being
entitled to do so) vote in person or by proxy at the relevant separate
general meeting of which notice specifying the intention to propose
the resolution has been duly given;
"Scottish PES" means Scottish Hydro-Electric PLC and Scottish Power
plc;
"Scottish Settlements" means Scottish Electricity Settlements Limited
(registered in Scotland number SC169212);
"Senior Users" has the meaning given to that term in sub-section 5.1;
"Steering Group" means the 1998 Programme Steering Group established
pursuant to Section 3, save that if the Executive Committee so
determines, such Steering Group may be disbanded, in which case the
Executive Committee shall act as and have the same rights and
obligations as the Steering Group for the purposes of this Schedule,
as such rights and obligations are set out in Section 3, and in that
event references in this Schedule to a member of the Steering Group
appointed by a member of the Executive Committee appointed by Public
Electricity Suppliers shall be read as references to any member of the
Executive Committee appointed by Public Electricity Suppliers;
"Supplier HH MWh" has the meaning given to that term in paragraph
8.2.4;
"Supplier NHH MWh" has the meaning given to that term in paragraph
8.2.4; and
"Total 1998 Programme Costs" has the meaning given to it in
sub-section 8.1.
<PAGE>
1.2 Interpretation: In the event of any inconsistency or conflict between
the provisions of this Schedule and the other provisions of this
Agreement in relation to the 1998 Programme Costs or the Operational
Framework, the provisions of this Schedule shall, unless otherwise
expressly provided, prevail.
2. PROGRAMME FUNDING
2.1 Programme Costs: All 1998 Programme Costs shall be paid or reimbursed
by Public Electricity Suppliers and the Scottish PESs or by a person
or persons on their behalf in accordance with this Schedule.
2.2 Allocation of 1998 Programme Costs after 1st April, 1996: In respect
of each month from (and including) April 1996, the 1998 Programme
Costs incurred in such month shall be allocated amongst Public
Electricity Suppliers and the Scottish PESs according to their
respective Programme Shares.
2.3 Payment and collection:
2.3.1 EPFAL shall collect from Public Electricity Suppliers and
the Scottish PESs the amounts which they are obliged to pay
towards the 1998 Programme Costs and each Public Electricity
Supplier and each Scottish PES will be obliged to pay its
proportionate share of the 1998 Programme Costs (together
with Value Added Tax thereon, if applicable) against receipt
of any invoice therefor issued by EPFAL.
2.3.2 EPFAL shall arrange for collection from each Public
Electricity Supplier and each Scottish PES of its
proportionate share of the 1998 Programme Costs in such
manner as may be agreed by EPFAL with the Public Electricity
Suppliers from time to time (which may include collection in
advance) and Public Electricity Suppliers and the Scottish
PESs shall comply with such collection procedures and, in
particular, shall make payment within the time period
prescribed by such procedures.
2.3.3 If any Public Electricity Supplier or Scottish PES fails to
pay an amount properly due under this Schedule within
fifteen (15) days of the due date for such payment (such
Public Electricity Supplier or Scottish PES being a
"Non-paying Funder") each Pool Member (other than the
Non-paying Funder) shall be severally liable for its
Contributory Share (calculated on the basis that the Points
allocated to the defaulting Non-paying Funder are
disregarded) and EPFAL shall accordingly be entitled to
recover the due proportion of that amount from each Pool
Member (other than the Non-paying Funder). In that event,
EPFAL shall advise each Pool Member of the amount payable by
invoice despatched to each Pool Member and each Pool Member
shall pay the amount advised in the relevant invoice within
fifteen (15) days after the invoice date.
<PAGE>
2.3.4 A Non-paying Funder shall indemnify and keep indemnified
each Pool Member on demand against all sums properly paid by
such Pool Member pursuant to this sub-section 2.3.
2.3.5 Each Pool Member shall give notice to EPFAL before
instituting any action or proceedings in any court to
enforce payments due to it pursuant to this Section. Upon
receipt of any notice under this paragraph 2.3.5, EPFAL will
as soon as practicable notify the Executive Committee, all
Pool Members and the Director. The provisions of sub-section
24.4 of Schedule 11 shall apply mutatis mutandis in respect
of any payment due from a Non-paying Funder pursuant to this
Schedule.
2.3.6 Upon EPFAL becoming aware of a Public Electricity Supplier
or a Scottish PES becoming a Non-paying Funder, it shall
notify the Executive Committee, the remaining Pool Members
and the Director, and the Executive Committee shall convene
and cause to be convened a general meeting of Pool Members
as soon as possible thereafter, which meeting will determine
whether any further 1998 Programme Costs shall be incurred.
2.3.7 The provisions of paragraphs 15.2.4, 15.2.5 and sub-section
15.3 of Schedule 15 shall in any event apply mutatis
mutandis in respect of all payments required to be made
pursuant to this Section 2.
2.4 Accrued Costs: As soon as reasonably practicable, but in any event no
later than 1st April, 1997, the Pool Members will pay each other such
sums as will ensure that all Accrued Costs have effectively been paid
for or reimbursed only by Public Electricity Suppliers and Scottish
PESs and, as between Public Electricity Suppliers and Scottish PESs,
according to their respective Programme Shares.
3. PROGRAMME EXPENDITURE AND THE STEERING GROUP
3.1 Authority to incur expenditure: No 1998 Programme Costs shall be
incurred by 1998 Sub-Committees other than pursuant to Approved
Funding Tranches.
3.2 Establishment: Pool Members hereby establish the Steering Group as a
sub-committee of the Executive Committee upon the terms and subject to
the conditions of this Schedule 22.
3.3 Steering Group Members: Each member of the Executive Committee shall
have the right to appoint a member of the Steering Group.
3.4 Approval of programme expenditure:
3.4.1 The Steering Group will notify each 1998 Sub-Committee and
such persons as may be nominated by each Public Electricity
Supplier in writing to the Steering Group from time to time
("PES Nominees"), no later than 10 working days prior to
holding any
<PAGE>
meeting of the date that meeting will be held, save that, if
at least 5 members of the Steering Group (including at least
3 appointed by members of the Executive Committee appointed
by Public Electricity Suppliers) consent, a meeting of the
Steering Group may be held on 48 hours' notice.
3.4.2 Prior to approving any further work packages after 15th
July, 1996, undertaking or commissioning any work in respect
of the 1998 Programme, the Programme Board or any member of
the Steering Group shall submit one or more Funding Tranches
to the Steering Group (with a copy to all PES Nominees) at
least 5 working days in advance of any meeting of the
Steering Group, for approval. Each Funding Tranche shall
contain details of the scope of the work proposed to be
undertaken and a budget of all costs associated with that
work, together with a comparison of all its elements against
the Programme Budget (or, if the Programme Budget shall not
then have been agreed, against the planned budget). Any
amount to be reimbursed in respect of costs incurred in
relation to work packages approved in the period between
31st March, 1996 and 15th July, 1996 shall also be the
subject of a Funding Tranche or Funding Tranches to be
submitted to the Steering Group (with a copy to all PES
Nominees) by the Programme Board or any member of the
Steering Group at least five working days in advance of a
meeting of the Steering Group. Each such Funding Tranche
shall contain details of the scope of the work undertaken
and details of the costs associated with it.
3.4.3 At each meeting of the Steering Group, the Steering Group
shall resolve whether to approve Funding Tranches duly
submitted to it in accordance with paragraph 3.4.2, and,
subject to any appeal to Public Electricity Suppliers, any
Funding Tranche so approved will become an Approved Funding
Tranche. Notwithstanding the decision taken, any Public
Electricity Supplier or any member of the Steering Group
appointed by a member of the Executive Committee appointed
by Public Electricity Suppliers may, within 5 working days
of the resolution of the Steering Group, by notice in
writing to the Steering Group, appeal the matter to be
considered by Public Electricity Suppliers under sub-section
7.2. If the Public Electricity Suppliers then resolve to
approve the Funding Tranche, it shall become an Approved
Funding Tranche. If the matter has been appealed and Public
Electricity Suppliers do not so approve it, the Funding
Tranche shall not be an Approved Funding Tranche.
3.4.4 As soon as the Programme Board becomes aware that the cost
of any work carried out pursuant to any Approved Funding
Tranche is likely to exceed the budget considered by the
Steering Group in paragraph 3.4.2 above, it shall forthwith
prepare a revised budget and deliver it to the Steering
Group, at which point the Steering Group and, if necessary,
the Public Electricity Suppliers, will follow the procedure
set out in paragraphs 3.4.2 and 3.4.3 in considering whether
to authorise the continuation of work under the Approved
Funding Tranche, in accordance with such revised budget. If
(a) the Steering Group does not resolve to approve the
revised budget, in accordance with paragraph 3.4.2 or (b)
after referral to Public Electricity Suppliers in accordance
with sub-section 7.2 they resolve not to approve the revised
budget, then the relevant
<PAGE>
1998 Sub-Committee shall undertake no work to implement the
Approved Funding Tranche which would lead to the cost of
implementing the Approved Funding Tranche exceeding the
original budget. If the revised budget is approved in
accordance with paragraph 3.4.2 or, as the case may be,
sub-section 7.2, the cost of that Approved Funding Tranche
will be adjusted accordingly.
3.4.5 Any Steering Group member may by reasonable notice request
such information of the Chief Executive or the Programme
Board as may be reasonably required to assess the
performance of the 1998 Programme against the Programme
Budget and Approved Funding Tranches, it being understood
that the Chief Executive and the Programme Board shall not
be required to comply with any such information request
unless it is made by 3 or more members of the Steering
Group.
3.5 Voting: Any question or matter considered by the Steering
Group shall be resolved by a simple majority of votes of
members of the Steering Group.
4. THE OPERATIONAL FRAMEWORK
4.1 Changes to Operational Framework: Subject to sub-section 4.2, any
addition to, deletion from or other change to the Operational
Framework by or on behalf of Pool Members shall be made only with the
prior approval of Pool Members in general meeting.
4.2 Effect on 1998 Programme Costs: If any addition to, deletion from or
other change to the Operational Framework may lead to an increase in
the 1998 Programme Costs then, unless such addition, deletion or other
change has been approved by the Public Electricity Suppliers in
writing or in separate general meeting, the proposed addition,
deletion or other change shall not take effect unless Pool Members so
resolve (in which case any costs incurred as a result of the addition,
deletion or other change in question shall not be 1998 Programme
Costs).
5. PROGRAMME BOARD AND PROGRAMME BUDGET
5.1 Constitution of the Programme Board: At all times, the Programme Board
shall comprise three senior users, one senior technical user (together
the "Senior Users") and the Chief Executive. One of the Senior Users
shall be an appointee of all Pool Members other than Public
Electricity Suppliers, and the other three shall be appointees of the
Public Electricity Suppliers.
5.2 Voting: It is the intention of Pool Members that the Programme Board
shall resolve matters by way of consensus.
5.3 Preparation of the Programme Budget: The Programme Board shall prepare
and submit a draft programme budget by no later than 15th July, 1996
for approval by the Steering Group. The procedure for approval of the
draft programme budget shall follow that for approval of Funding
Tranches in paragraphs 3.4.2 and 3.4.3, save that if either the
Steering Group or Public Electricity Suppliers do not approve the
draft programme budget, they shall notify the
<PAGE>
Programme Board of any areas requiring revision and the Programme
Board shall, as soon as reasonably practicable after such
notification, re-submit the draft programme budget to the Steering
Group. Once the draft programme budget is approved it shall be the
Programme Budget.
6. PROGRAMME SHARES AND PES VOTES
6.1 Programme Shares: The Programme Share of each Public Electricity
Supplier and each Scottish PES shall be that set opposite its name in
column 2 of the table in sub-section 6.3.
6.2 PES Votes: The PES Vote of each Public Electricity Supplier shall be
that set opposite its name in column 3 of the table in sub-section
6.3.
6.3 Table:
Column 1 Column 2 Column 3
Name of Funder Programme Shares PES Votes
Eastern Group plc 12.969% 13.82%
East Midlands Electricity plc 9.023% 9.61%
London Electricity plc 7.971% 8.50%
Manweb plc 5.334% 5.71%
Midlands Electricity plc 9.042% 9.64%
Northern Electric plc 5.101% 5.44%
NORWEB Plc 8.429% 8.99%
Scottish Hydro-Electric PLC 1.904% Not applicable
Scottish Power plc 4.295% Not applicable
SEEBOARD PLC 8.360% 8.91%
Southern Electric plc 11.031% 11.75%
South Wales Electricity plc 3.418% 3.64%
South Western Electricity plc 5.824% 6.21%
<PAGE>
Column 1 Column 2 Column 3
Name of Funder Programme Shares PES Votes
Yorkshire Electricity Group plc 7.299% 7.78%
6.4 Reopener: The Public Electricity Suppliers and the Scottish PESs
acknowledge that the Programme Shares set out in column 2 of the table
in sub-section 6.3 represent the amended shares following restatement
in accordance with sub-section 6.4 as in force immediately before the
adoption of this amended sub-section 6.4. Each of those Parties
undertakes to pay each other such sums (together with interest as
appropriate, calculated at the Base Rate) as will ensure that the 1998
Programme Costs have effectively been paid for according to those
amended Programme Shares. Any necessary adjustments as between the
Public Electricity Suppliers and the Scottish PESs in respect of any
reimbursements made pursuant to sub-sections 8.3 and 8.4 shall also be
made.
6.5 Merger and adjustment: In the event of any merger between one or more
Funders any successor company shall have the aggregate Programme
Shares and PES Votes of its predecessors. Any successor to part only
of the authorised area (as such term is defined in its PES Licence) of
a Public Electricity Supplier and the Public Electricity Supplier
retaining the other part shall have such PES Votes and Programme
Shares as the Director shall determine. Any successor to part only of
the authorised supply area (as such term is defined in the PES Licence
of the relevant Scottish PES) of a Scottish PES and the Scottish PES
retaining the other part shall have such Programme Shares as the
Director shall determine.
7. PES MEETINGS
7.1 PES Meetings: The following provisions of this Section 7 shall apply
to separate general meetings of Public Electricity Suppliers.
7.2 Requirements for PES Approval: The following matters shall require
Public Electricity Suppliers to give their approval by the Requisite
Proportion in separate general meeting, or by the Requisite Proportion
of Public Electricity Suppliers giving their approval in writing to
take effect:-
(a) the approval of Funding Tranches by way of appeal under
sub-section 3.4;
(b) the approval of any addition to, deletion from or other
change to the Operational Framework which may lead to an
increase in the 1998 Programme Costs; and
(c) any addition to, deletion from or other change to this
Schedule 22 (other than, for the avoidance of doubt, any
amendment to the detailed drafting of the provisions of
sub-section 8.2 or 8.3 or of the definitions set out in
sub-section 1.1 which have effect only
<PAGE>
for the purpose of those sub-sections, provided (in either
case) that such amendment does not materially alter the
effect of the relevant sub-section).
7.3 General Provisions: The provisions of Part III of this Agreement
relating to general meetings of Pool Members shall apply mutatis
mutandis to separate general meetings of Public Electricity Suppliers,
but so that:-
(a) the necessary requirement for notice in writing to be given
of any such separate general meeting shall be 5 working days
rather than the period in Clause 9.3;
(b) Clause 10.9 shall not apply although the Pool Auditor and
the Director or its or his duly authorised representative
shall have the right to attend and speak (but not vote) at
such separate general meetings;
(c) such separate general meetings shall be convened by the
Secretary upon receipt of a request from a Public
Electricity Supplier or a member of the Steering Group
appointed by an Executive Committee Member appointed by
Public Electricity Suppliers;
(d) the necessary quorum shall be 6 or more Public Electricity
Suppliers present in person together representing 50 per
cent. or more of the aggregate number of PES Votes of all
Public Electricity Suppliers and if no quorum is present
within half an hour from the time appointed for the separate
general meeting, the separate general meeting shall be
adjourned until the following working day;
(e) references to Total Weighted Votes shall be substituted by
references to PES Votes; and
(f) notice of any such separate general meeting need to be given
only to those entitled to attend the same,
and any resolution put to any such separate general meeting shall, to
be passed, require the Requisite Proportion of votes in favour.
8. RECOVERY OF 1998 PROGRAMME COSTS
8.1 Calculation of Aggregate Charging Limit: The Aggregate Charging Limit
shall be calculated in the following manner:-
8.1.1 if Total 1998 Programme Costs are less than the Lower Limit
then:-
LL-T1998 PC
ACL = LL - ----------- + FC
2
8.1.2 if Total 1998 Programme Costs are equal to or greater than
the Lower Limit and less than or equal to the Upper Limit
then:-
<PAGE>
ACL = T1998 PC + FC; and
8.1.3 if Total 1998 Programme Costs are greater than the Upper
Limit then:-
T1998 PC - UL
ACL = UL + ------------- + FC
2
in each case, where, subject to the provisions set out below:-
the Lower Limit ("LL") = (pound)43,500,000;
the Upper Limit ("UL") = (pound)53,500,000; and
the Total 1998 Programme Costs ("T1998 PC") = the aggregate amount of
1998 Programme Costs allocated to Public Electricity Suppliers in
England and Wales according to their respective Programme Shares,
save that if, as a result of any addition to, deletion from or other
change to the Operational Framework and/or the adoption of Approved
Funding Tranches pursuant to sub-section 3.4 or Section 7 outside the
scope of the Operational Framework, the Total 1998 Programme Costs are
changed by any amount in excess of (pound)50,000 then, subject to
prior approval by the Director, both the Lower Limit and the Upper
Limit shall be adjusted by the amount of such change.
8.2 Recovery of 1998 Programme Costs from Suppliers:
8.2.1 As soon as reasonably practicable after the Implementation
Date, the Executive Committee shall determine the aggregate
amount recoverable by Public Electricity Suppliers in
accordance with this sub-section, on the basis of the
following formula:-
RACL = ACL x (60 - a)
------
(60)
where:-
RACL is the aggregate principal amount so recoverable;
ACL is the aggregate charging limit determined in accordance
with sub-section 8.1; and
a is the figure in months by which the Implementation Date
is delayed after 1st April, 1998 other than for an Approved
Reason.
For the purpose of this paragraph and paragraph 8.2.8, ACL
shall be determined on the basis of the then latest
available estimate of Total 1998 Programme Costs (if the
final actual figure for such costs has not then been
ascertained).
<PAGE>
8.2.2 As soon as reasonably practicable after the Implementation
Date (or if that date is not the first day of a Quarter, the
first day of the next following Quarter) and thereafter
after the beginning of each Quarter during the 1998
Programme Recovery Period, the Executive Committee shall
determine the Quarterly 1998 Programme Amount in respect of
the Quarter beginning on the Implementation Date (or, if not
the first day of a Quarter, the first day of the next
following Quarter) or (as the case may be) in respect of the
relevant later Quarter, in accordance with the following
formula:-
PACL x r
Q1998PA = ---------------
(1 - (1 + r)-L)
where:-
r is the rate (expressed as a quarterly rate) determined by
the Executive Committee to be the time weighted average of
the Base Rates prevailing during the preceding Quarter;
L is the remaining part of the 1998 Programme Recovery
Period (specified in Quarters) as at the beginning of the
relevant Quarter save that (if the Implementation Date
occurs on a date which is not the first day of a Quarter)
for the purposes of the first such calculation L is the
remaining part of the 1998 Programme Recovery Period
(specified in Quarters) as at the end of the Quarter in
which the Implementation Date occurs;
PACL is the remaining portion of the principal amount
comprised in RACL not recoverable in respect of previous
Quarters; and
Q1998PA is the Quarterly 1998 Programme Amount.
8.2.3 Not less than sixteen Business Days before the end of each
Quarter which starts during the 1998 Programme Recovery
Period, the Executive Committee shall notify each Supplier
of the Quarterly 1998 Programme Charge payable by it in
respect of that Quarter, which shall be determined in
accordance with the following formula:-
Q1998PC = Q1998PA x (C1998MWH / TC1998MWH)
where:-
C1998MWH is the Chargeable 1998 MWh for the Supplier;
TC1998MWH is the aggregate of Chargeable 1998 MWh for all
Suppliers;
Q1998PC is the Quarterly 1998 Programme Charge for the
Supplier; and
Q1998PA is the Quarterly 1998 Programme Amount for that
Quarter.
<PAGE>
8.2.4 The Executive Committee shall determine the Chargeable 1998
MWh ("C1998 MWH") for each Supplier in respect of a Quarter
as the sum of the Supplier NHH MWh for the preceding Quarter
and the Supplier HH MWh for that preceding Quarter. For this
purpose:-
(a) the Supplier NHH MWh in respect of a Supplier
shall be the number of MWh supplied by that
Supplier during the relevant preceding Quarter in
respect of premises with Non Half Hourly Metering
Systems (not being 100kW Premises); and
(b) the Supplier HH MWh in respect of a Supplier shall
be the number of MWh supplied by that Supplier
during the relevant preceding Quarter in respect
of premises with Half Hourly Metering Systems (not
being 100kW Premises).
8.2.5 In making any determination pursuant to paragraph 8.2.4 or
(as the case may be) paragraph 8.2.8, the Executive
Committee shall take into account the most recent
information received by it from PESs, the Settlement System
Administrator and the Initial Settlement and Reconciliation
Agent as at the thirtieth day before the end of the relevant
Quarter in which the determination falls to be made. The
Executive Committee shall be entitled, in the absence of
manifest error and in the absence of information to the
contrary derived from the ISRA System or provided by the
Settlement System Administrator:-
(a) to assume that Metering Systems registered in ERS
relate to 100kW Premises;
(b) to assume that all Non Half Hourly Metering
Systems relate to premises other than 100kW
Premises; and
(c) to rely on information provided by a Supplier
pursuant to paragraph 8.2.6 as to its Supplier HH
MWh.
8.2.6 For the purposes of paragraph 8.2.4 (unless otherwise agreed
by the Executive Committee) each Supplier shall inform the
Executive Committee in writing, no later than 30 days before
the end of each Quarter which starts during the 1998
Programme Recovery Period, of the number of MWh supplied by
it to premises with Half Hourly Metering Systems, not being
100kW Premises, during the preceding Quarter.
8.2.7 Each Supplier shall pay, no later than the penultimate
Business Day of each Quarter during the 1998 Programme
Recovery Period, the Quarterly 1998 Programme Charge for the
Quarter notified to it by the Executive Committee in
accordance with paragraph 8.2.3. Any such payment shall be
made to EPFAL (or as otherwise directed by the Executive
Committee) in sterling in cleared funds in full without set
off or counter claim, withholding or deduction of any kind
whatsoever but without prejudice
<PAGE>
to any other remedy. All charges under this Section are
exclusive of United Kingdom Value Added Tax which shall be
added to such charges, if applicable.
8.2.8 The Executive Committee:-
(i) shall from time to time recalculate RACL on the
basis of the then latest estimated or (as the case
may be) actual Total 1998 Programme Costs and ACL;
(ii) shall from time to time recalculate the Chargeable
1998 MWh and Supplier NHH MWh and Supplier HH MWh
for earlier Quarters on the basis of the then
latest available information (including
information provided by Suppliers pursuant to
paragraph 8.2.6) and as if references in paragraph
8.2.4 to the preceding Quarter were references to
the Quarter in respect of which the relevant
calculation falls to be made;
(iii) may from time to time following an adjustment to
RACL, recalculate PACL such that any adjustment to
charges payable will not be applied
retrospectively across all Accounting Periods in
the 1998 Programme Recovery Period; and
(iv) shall from time to time make such adjustments as
may be necessary (and, where relevant, apply
interest at the Base Rate or at such rate as shall
be set from time to time by the Executive
Committee in respect of any adjustments made as a
result of a recalculation in accordance with
paragraph (i)) from time to time to account for
any differences between payments made and the
payments which should have been made in the light
of such recalculations.
In the absence of manifest error and subject as provided in
paragraph 8.2.11, no adjustment shall fall to be made in
respect of charges payable by Suppliers pursuant to this
sub-section as a result of revised information (other than
as to Total 1998 Programme Costs, ACL and interest rates and
the final runs of Stage 1 Settlement and Stage 2 Initial
Settlement Runs in respect of all Settlement Periods in a
Quarter) becoming available to the Executive Committee after
it has made a determination pursuant to paragraph 8.2.4.
8.2.9 In the event of any dispute regarding charges payable under
this Section, no Supplier may withhold payment of any
invoiced amount but may refer such dispute to arbitration in
accordance with Clause 83.
8.2.10 If any amount due under this Section is not received on the
due date, the Supplier required to pay such amount shall pay
interest to EPFAL (or as otherwise directed by the Executive
Committee), for the account of the persons entitled to
receive the amount in default, on such amount from and
including the date of default to the date of actual
<PAGE>
payment (as well after as before judgment) at the Default
Interest Rate from time to time during such period of
default.
8.2.11 Any Supplier which is a Supplier for part only of any
Quarter shall pay charges on an interim basis of such amount
as the Executive Committee estimates to be reasonable for
such Quarter. Adjustments to charges on all Suppliers as a
result of existing Suppliers leaving or new Suppliers
joining will be made in such manner as the Executive
Committee shall determine.
8.2.12 The Executive Committee may, in its discretion, determine
the charges to be payable by Suppliers pursuant to this
sub-section 8.2 according to such transitional arrangements
as it considers appropriate from time to time having regard
to the availability of information concerning Half Hourly
Metering Systems or (as the case may be) Non Half Hourly
Metering Systems, premises which are not 100kW Premises and
quantities of energy attributable to particular Suppliers.
Without prejudice to the foregoing, the Executive Committee
shall establish reasonable transitional arrangements for the
period from the Implementation Date until the information
referred to in paragraph 8.2.4 is available in respect of
all GSP Groups and Suppliers shall pay the charges
established in accordance with those arrangements.
8.2.13 Whenever the Executive Committee determines that an
adjustment is necessary pursuant to this sub-section 8.2,
the Suppliers and/or former Suppliers concerned shall be
required to pay such additional amounts or be entitled to
such reimbursement as may be determined by the Executive
Committee by an adjustment to charges in respect of the
relevant earlier Quarter or (as the case may be) the then
current Quarter.
8.2.14 No reimbursement shall be made to a leaving Supplier in
respect of any month until the necessary adjustments (if
any) have been made to take into account, following the end
of the Accounting Period in which that Party is to cease to
be a Supplier, the final run of Stage 1 Settlement and the
Stage 1 Initial Settlement Run in respect of all Settlement
Periods during which that Party traded as a Supplier.
8.2.15 The Executive Committee shall not be required to issue any
invoice, nor to pay an amount by way of reimbursement (nor
issue any credit note in respect of any such reimbursement),
to a Supplier if the aggregate amount otherwise payable by,
or to be reimbursed by, that Pool Member pursuant to this
sub-section is less than the minimum from time to time
determined by the Executive Committee. Where the minimum
applies, a Supplier shall remain liable for any amounts
payable by it but shall not be required to make any payment
until such time as the amount in question is included in an
invoice. Paragraph 8.2.10 shall be construed accordingly.
<PAGE>
8.3 Reimbursement to Public Electricity Suppliers:
8.3.1 The amounts recovered from Suppliers pursuant to sub-section
8.2 in respect of a Quarter shall be distributed among the
PESs on the last Business Day of that Quarter according to
their proportionate shares of "PES Votes" specified in
column 3 of sub-section 6.3. Any amounts received late from
Suppliers shall be distributed on the same basis as soon as
reasonably practicable following their receipt. The
Executive Committee shall make such arrangements with EPFAL
or otherwise as it determines to be necessary for the
collection of amounts payable pursuant to sub-section 8.2
and the payment of such amounts pursuant to this sub-section
8.3.
8.3.2 Following the end of each Quarter the Executive Committee
shall monitor the amounts due to each PES since the
Implementation Date and the amounts paid, in each case in
accordance with the provisions of this Section.
8.3.3 After the expiry of the 1998 Programme Recovery Period the
Executive Committee shall produce a statement showing the
amounts due to each PES and the amounts paid, in each case
in accordance with the provisions of this Section. The
Executive Committee shall review the materiality of any
differences and propose a mechanism for resolving them.
8.4 Recovery by Scottish PESs: Scottish PESs shall be entitled to recover
from third parties their respective contributions towards the 1998
Programme Costs in accordance with the terms of their agreement with
the Director (if any).
9. SCHEDULE 22 CEASING TO HAVE EFFECT
Without prejudice to any accrued rights or liabilities, the provisions of this
Schedule 22 shall cease to have effect on the date following that on which the
final payment has been made to the last Public Electricity Supplier to be
reimbursed its due proportion in respect of 1998 Programme Costs and Financing
Costs pursuant to Section 8.
<PAGE>
SCHEDULE 23
Scottish Settlements
1. INTERPRETATION
1.1 Use of definitions: In the Scots Subsidiary Documents, except where
the context otherwise requires, words and expressions defined in this
Agreement shall have the same meanings.
1.2 Interpretation: In the event of any inconsistency or conflict between
the provisions of this Schedule and the other provisions of this
Agreement (other than Schedule 22) insofar as concerns the
relationship of the Scottish Settlements Arrangements to the 1998
Programme or the Operational Framework, the provisions of this
Schedule shall, unless otherwise expressly stated, prevail. In the
event of any other inconsistency or conflict between the provisions of
this Schedule and the other provisions of this Agreement, such other
provisions shall prevail.
1.3 Scots Subsidiary Documents: Each of the Parties undertakes to comply
with the Scots Subsidiary Documents insofar as applicable to such
Party. The Executive Committee shall provide copies of the Scots
Subsidiary Documents to a Party upon request and at such Party's cost.
1.4 Trusteeship: The Other Pool Members hold the benefit of this Schedule
for themselves and as trustee and agent for the Executive Committee,
the Committee Members and the members of the Chief Executive's Office.
1.5 Other Pool Members: Subject to sub-section 5.3, the provisions of Part
III of this Agreement shall apply mutatis mutandis to meetings of and
decisions taken by the Other Pool Members save that neither of the
Scottish PESs nor Scottish Settlements (if it is a Pool Member) shall
be entitled to attend, speak or vote at the relevant meeting or
otherwise to participate in the decision taking processes and the
voting procedures shall be adjusted in such manner as the Pool
Chairman in his sole discretion shall see fit to make allowance for
the prohibition on the Scottish PESs and Scottish Settlements from
voting.
2. PURPOSE
2.1 Purpose: This Schedule, when read with Schedule 22 and the Scots
Subsidiary Documents, sets out the terms and conditions upon and
subject to which the Scottish PESs will be entitled to have made
available to them or Scottish Settlements for the purposes of the
Scottish Settlements Arrangements certain documentation and systems
written or developed for or provided to Pool Members in connection
with the 1998 Programme and to propose changes thereto or undertake
customisation thereof solely for the purposes of the Scottish
Settlements Arrangements.
<PAGE>
2.2 Scottish PESs as Pool Members: Save as varied or amended by or
pursuant to this Schedule, the Scottish PESs shall continue to have
their respective rights, responsibilities, obligations and liabilities
as Pool Members in addition to their rights, responsibilities,
obligations and liabilities under this Schedule, Schedule 22 and the
Scots Subsidiary Documents in their capacity as Scottish PESs.
3. JOINT VENTURE AND GUARANTEE
3.1 Scottish Settlements: The Scottish PESs shall be entitled to act for
the purpose of the Scottish Settlements Arrangements and this Schedule
through Scottish Settlements. If required by the Executive Committee,
the Scottish PESs shall procure that Scottish Settlements becomes a
party to this Agreement, appoints an agent for service of process in
England and undertakes directly in form and content reasonably
satisfactory to the Executive Committee the obligations on its part
contained in this Schedule and the Scots Subsidiary Documents.
3.2 Information on Scottish Settlements: Each of the Scottish PESs and
Scottish Settlements shall promptly give the Other Pool Members such
information about the shareholdings in and capital structure of
Scottish Settlements and its business, operations, assets and
financial condition as the Executive Committee may from time to time
reasonably require and the Other Pool Members shall keep all such
information confidential on and subject to the terms and conditions of
Clause 70 of this Agreement.
3.3 Guarantee: The Scottish PESs hereby jointly and severally and
irrevocably and unconditionally:-
(A) guarantee to each of the Combined Members the due and
punctual observance and performance of all the terms,
conditions and covenants on the part of Scottish Settlements
contained in this Schedule and the Scots Subsidiary
Documents and agree to pay to each of the Combined Members
from time to time on demand any and every sum or sums of
money which Scottish Settlements shall at any time be liable
to pay to such Combined Member under or pursuant to this
Schedule or any of the Scots Subsidiary Documents and which
shall not have been paid at the time such demand is made;
and
(B) agree as a primary obligation to indemnify each of the
Combined Members from time to time on demand by the relevant
Combined Member from and against any loss directly incurred
by such Combined Member as a result of any of the
obligations of Scottish Settlements under or pursuant to
this Schedule or any of the Scots Subsidiary Documents being
or becoming void, voidable, unenforceable or ineffective as
against such Combined Member for any reason whatsoever,
whether or not known to such Combined Member or any other
person.
<PAGE>
3.4 Preservation of Rights:
3.4.1 The obligations of the Scottish PESs contained in this
Section 3 shall be in addition to and independent of every
other security which any of the Combined Members may at any
time hold in respect of any obligations of Scottish
Settlements under this Agreement.
3.4.2 The obligations of the Scottish PESs contained in this
Section 3 shall constitute and be continuing obligations
notwithstanding any settlement of account or other matter or
thing whatsoever, and in particular but without limitation
shall not be considered satisfied by any intermediate
payment or satisfaction of all or any of the obligations of
Scottish Settlements under this Schedule or the Scots
Subsidiary Documents and shall continue in full force and
effect until final payment in full of all amounts owing by
Scottish Settlements under this Schedule and each of the
Scots Subsidiary Documents and satisfaction of all actual
and contingent obligations of Scottish Settlements under
this Schedule and each of the Scots Subsidiary Documents.
3.4.3 Neither the obligations of the Scottish PESs herein
contained nor the rights, powers and remedies conferred in
respect of the Scottish PESs upon the Combined Members by
this Schedule or any of the Scots Subsidiary Documents or by
law shall be discharged, impaired or otherwise affected by:-
(A) the winding-up, dissolution, administration or
re-organisation of Scottish Settlements or any
other person or any change in its status,
function, control or ownership;
(B) any of the obligations of Scottish Settlements or
any other person hereunder or under any other
security taken in respect of any of its
obligations under this Schedule or any of the
Scots Subsidiary Documents being or becoming
illegal, invalid, unenforceable or ineffective in
any respect;
(C) time or other indulgence being granted to Scottish
Settlements in respect of its obligations under
this Schedule or any of the Scots Subsidiary
Documents or under any such other security;
(D) any amendment to, or any variation, waiver or
release of, any obligation of Scottish Settlements
under this Schedule or any of the Scots Subsidiary
Documents or under any such other security;
(E) any failure to take, or fully to take, any
security contemplated hereby or otherwise agreed
to be taken in respect of the obligations of
Scottish
<PAGE>
Settlements under this Schedule or any of the
Scots Subsidiary Documents;
(F) any failure to realise or fully to realise the
value of, or any release, discharge, exchange or
substitution of, any security taken in respect of
the obligations of Scottish Settlements under this
Schedule or any of the Scots Subsidiary Documents;
or
(G) any other act, event or omission which, but for
this paragraph 3.4.3, might operate to discharge,
impair or otherwise affect any of the obligations
of either of the Scottish PESs herein contained or
any of the rights, powers or remedies conferred
upon the Combined Members by this Schedule or any
of the Scots Subsidiary Documents or by law.
3.4.4 Any settlement or discharge between the Scottish PESs and
Scottish Settlements shall be conditional upon no security
or payment to the Combined Members or any of them by the
Scottish PESs or either of them or Scottish Settlements or
any other person on behalf of the Scottish PESs or, as the
case may be, Scottish Settlements being avoided or reduced
by virtue of any provisions or enactments relating to
bankruptcy, insolvency, liquidation or similar laws of
general application for the time being in force and, if any
such security or payment is so avoided or reduced, the
Combined Members or the relevant one of them shall be
entitled to recover the value or amount of such security or
payment from the Scottish PESs subsequently as if such
settlement or discharge had not occurred.
3.4.5 None of the Combined Members shall be obliged before
exercising any of the rights, powers or remedies conferred
upon it in respect of the Scottish PESs by this Schedule or
any of the Scots Subsidiary Documents or by law:-
(A) to make any demand of Scottish Settlements;
(B) to take any action or obtain judgment in any court
against Scottish Settlements;
(C) to make or file any claim or proof in a winding-up
or dissolution of Scottish Settlements; or
(D) to enforce or seek to enforce any other security
taken in respect of any of the obligations of
Scottish Settlements under this Schedule or any of
the Scots Subsidiary Documents.
3.4.6 The Scottish PESs agree that, until all amounts which may be
or become payable by Scottish Settlements under or in
connection with this Schedule and the Scots Subsidiary
Documents have been irrevocably paid in full, neither of the
Scottish
<PAGE>
PESs shall, after a claim has been made or by virtue of any
payment or performance by it under this Section 3:-
(A) be subrogated to any rights, security or moneys
held, received or receivable by any of the
Combined Members (or any trustee or agent on its
behalf) or be entitled to any right of
contribution or indemnity in respect of any
payment made or moneys received on account of the
liability of such Scottish PES under this Section
3;
(B) claim, rank, prove or vote as a creditor of
Scottish Settlements or its estate in competition
with any of the Combined Members (or any trustee
or agent on its behalf); or
(C) receive, claim or have the benefit of any payment,
distribution or security from or on account of
Scottish Settlements, or exercise any right of
set-off as against Scottish Settlements.
4. SCOTS 1998 LICENCE
4.1 Provision of Required Documentation: Subject to and conditional upon
payment and receipt of the sums set out or referred to in sub-section
9.1(A) and to the terms and conditions of the Scots 1998 Licence:-
(A) the Scottish PESs and Scottish Settlements shall be entitled
to receive copies of the Required Documentation; and
(B) Pool Members shall procure that such copies are made
available to the Scottish PESs (or, as the case may be,
Scottish Settlements) promptly upon request.
4.2 Grant of Scots 1998 Licence:
(A) Subject to and conditional upon payment and receipt of the
sum(s) set out or referred to in sub-section 9.1(B) and to
the extent that Pool Members have the right so to do, Pool
Members grant the Scottish PESs and Scottish Settlements (in
this Section 4, each a "Scots Licensee"), or shall procure
the grant to the Scots Licensee of, a perpetual,
non-exclusive and non-transferable licence (the "Scots 1998
Licence") to use the Required Documentation and the Pool
1998 Software on the terms and conditions set out in the
following provisions of this Section 4.
(B) Pool Members confirm that they have full right to grant the
Scots Licensee or procure the grant to the Scots Licensee of
a perpetual, non-exclusive and non-transferable licence to
use (i) such of the Required Documentation and Pool 1998
Software as is made available to Pool Members under the
Logica Contract, excluding any software notified by or on
behalf of the Other Pool Members to the
<PAGE>
Scots Licensee from time to time as being subject to a
requirement for a licence from a third party, and (ii) the
Existing Pool Documentation. Pool Members confirm that
Logica only has the right under the Logica Contract to
incorporate such third party software where the Pool Members
have agreed the terms upon which a licence will be available
from the relevant third party. In respect of any other
Required Documentation or Pool 1998 Software, the Pool
Members confirm that they shall use reasonable endeavours
(but without being obliged to incur any material additional
cost unless all such additional cost is paid or reimbursed
on demand by the Scottish PESs or Scottish Settlements) to
acquire in a timely manner ownership of, or a right to grant
a licence to the Scots Licensee in respect of, the
intellectual property rights thereto.
4.3 Term of Scots 1998 Licence: The Scots 1998 Licence will commence as of
1st January, 1997 and will continue until terminated in accordance
with sub-section 4.4.
4.4 Termination of Scots 1998 Licence:
(A) The Executive Committee shall have the right (without
prejudice to any other rights or remedies that the Executive
Committee or the Other Pool Members may have) to terminate
the Scots 1998 Licence immediately by notice in writing to
the Scots Licensee if:-
(i) the Scots Licensee is in material breach of any of
the provisions of sub-sections 4.2, 4.5, 4.6, 4.7
and 4.8 and either such breach is incapable of
remedy or the breach continues for fourteen days
after notice in writing specifying the breach and
requiring it to be remedied; or
(ii) an order is made or a resolution is passed for the
winding-up of the Scots Licensee, or if a
provisional liquidator is appointed in respect of
the Scots Licensee, or if a receiver (which
expression includes an administrative receiver) is
appointed in respect of the Scots Licensee or all
or any of its assets or if the Scots Licensee is
unable to pay its debts within the meaning of
section 123 of the Insolvency Act 1986, or if any
voluntary arrangement is proposed under section 1
of the Insolvency Act 1986 in respect of the Scots
Licensee; or
(iii) anything analogous to any of the events in
paragraph (ii) above occurs with respect to the
Scots Licensee or its assets in any jurisdiction.
(B) If the Scots 1998 Licence is terminated under this
sub-section 4.4:-
(i) the Scots Licensees will cease to have the right
to use the Required Documentation and the Pool
1998 Software;
<PAGE>
(ii) the Scots Licensees shall within 30 days of
termination deliver to the Executive Committee all
the Required Documentation and the Pool 1998
Software together with all copies of them in the
Scots Licensees' possession or control and (if any
Scots Licensee fails to do so) the Executive
Committee or its agent shall have the right to
enter such Scots Licensee's premises and repossess
the Required Documentation and the Pool 1998
Software and any copies of them; and
(iii) the Scots Licensees will destroy any programme or
other series of instructions contained in any
memory device which is derived from the Required
Documentation and/or the Pool 1998 Software and is
in their possession or control.
(C) Termination of the Scots 1998 Licence will not release any
of the Scots Licensees from any obligations arising prior to
termination or which expressly or by implication become
effective or continue to be effective on or after the
termination of the Scots 1998 Licence.
4.5 Scope of Scots 1998 Licence:
(A) The Scots Licensee shall have the right to use the Required
Documentation and the Pool 1998 Software only for the
purposes of the Scottish Settlements Arrangements and shall
not use the Required Documentation or the Pool 1998 Software
in any other way.
(B) The Scots Licensee is licensed to copy, develop, alter or
modify the whole or any part of the Required Documentation
or Pool 1998 Software or combine it with any other
materials, in any such case only for the purposes of the
Scottish Settlements Arrangements (the "Developed
Material"), but will not permit any other person to do so
except for a person at any time under contract to the Scots
Licensee to do so (the "Scots Contractor"). The Scots
Contractor will not have any more extensive right to use the
Required Documentation or the Pool 1998 Software than the
Scots Licensee has under this Section 4.
(C) The Scots Licensee shall ensure the proper use, supervision,
management and control of the Required Documentation and
Pool 1998 Software and that the same are properly protected
at all times from unauthorised access or use by any person.
(D) The Scots Licensee shall keep the Required Documentation and
Pool 1998 Software confidential and shall only authorise
access or disclosure to those persons or categories of
person for the time being and from time to time listed or
referred to in Scots Subsidiary Document 6 and to whom
access or disclosure is strictly necessary to enable the
Required Documentation or Pool 1998 Software
<PAGE>
to be used in accordance with this Section 4. The Scots
Licensee shall ensure that each such person is aware of the
confidential nature of the Required Documentation and Pool
1998 Software and keeps them confidential. This paragraph
shall not apply to any part of the Required Documentation
and Pool 1998 Software which has entered the public domain
other than as a result of any breach of agreement or duty.
(E) The following obligations apply in relation to the use of
source code:-
(i) all copies of any source code which is part of the
Required Documentation or Pool 1998 Software will
be individually numbered and the existence and
location of each such copy shall be notified by
the Scots Licensee to the Executive Committee; and
(ii) the Scots Licensee shall notify the Executive
Committee of details of each of its employees and
those of any Scots Contractor who will have access
to the source code and, unless otherwise agreed by
the Executive Committee, shall ensure that each
such employee will (before access) enter into an
individual confidentiality agreement in a form
approved by the Executive Committee. The Scots
Licensee shall provide the Executive Committee
with an original copy of each such agreement and
will ensure that, unless otherwise agreed by the
Executive Committee, no employee of the Scots
Licensee or any Scots Contractor has access to the
source code except for those employees whose
details have been notified to the Executive
Committee and are bound by such agreements.
(F) The Scots Licensee shall immediately bring to the attention
of the Executive Committee any infringement or suspected
infringement by any third party of any rights in the
Required Documentation or the Pool 1998 Software of which it
becomes aware and shall, at the Executive Committee's
request and against payment of its reasonable costs and
expenses, take or join Pool Members in taking such action as
they may require for the purpose of protecting such rights.
(G) Pool Members are not obliged under the Scots 1998 Licence to
develop, maintain or enhance the Required Documentation or
the Pool 1998 Software.
(H) The Scots Licensees agree to grant Pool Members a perpetual,
royalty-free, non-exclusive licence to use and exploit the
Developed Material mutatis mutandis on the same terms as the
Scots 1998 Licence (the "Scots Licence-Back") provided
that:-
(i) the Scots Licensees shall be entitled by notice to
the Executive Committee to designate particular
parts of the Developed Material as having
commercial value where the Scots Licensees decide
reasonably
<PAGE>
and in good faith that a material cost has been
incurred in developing the same. In any such case
the Scots Licence-Back shall be subject to the
agreement between the Scottish Licensees on the
one hand and the Other Pool Members on the other
hand of a reasonable royalty reflecting an
appropriate proportion of such cost (such
agreement not to be unreasonably withheld or
delayed); and
(ii) the Scots Licensees shall not be obliged to
license any part of the Developed Material where
the Scots Licensees believe reasonably and in good
faith that the same would confer a significant
competitive benefit on the Other Pool Members and
for that reason should not be licensed to them.
(I) The Scots Licensees shall notify the Executive Committee at
least once every six months of all Developed Material that
has been produced during the preceding six month period.
4.6 Reporting requirement: The Scots Licensee shall supply the Executive
Committee from time to time on request with a statement signed by a
director of the Scots Licensee which certifies that the Required
Documentation and Pool 1998 Software is being used only in accordance
with this Section 4.
4.7 Access: The Scots Licensee shall grant the Executive Committee or its
nominee access upon reasonable prior notice to the Scots Licensee's
premises in order to audit the use of the Required Documentation and
Pool 1998 Software.
4.8 Indemnity: The Scottish PESs and Scottish Settlements shall jointly
and severally indemnify and keep indemnified the Combined Members and
each of them on demand against all direct losses, costs, damages,
expenses, liabilities and claims suffered or incurred by any of the
Combined Members arising out of or in relation to any Scots Licensee's
breach of any of its obligations under this Section 4.
4.9 Further licences: Pool Members agree that the Scottish PESs and
Scottish Settlements shall be entitled to a licence to use the EAC/AA
System and the NHH Data Aggregation System on terms and conditions
comparable to those on which a licence to use the same is offered to
Public Electricity Suppliers generally.
5. SCOTTISH REQUIREMENTS AND THE RELEVANT 1998 SYSTEMS
5.1 Change to the Operational Framework: The provisions of Schedule 22
shall govern any addition to, deletion from or other change to the
Operational Framework.
5.2 Change control: Subject to sub-section 5.1, the provisions of Scots
Subsidiary Document 3 shall govern the control of a change (which
shall include any request by the Scottish
<PAGE>
PESs or Scottish Settlements for an additional requirement) to the
Relevant 1998 Systems insofar as the change concerns a change to the
Relevant 1998 Systems requested by the Scottish PESs or Scottish
Settlements for the purposes of the Scottish Settlements Project.
5.3 Disputes over change control: If pursuant to any Scots Subsidiary
Document this sub-section is stated to apply and the relevant Systems
Requirement Request relates to changes in the functionality of the
Relevant 1998 Systems then, notwithstanding the provisions of Part III
of this Agreement, the determination of the Executive Committee in
relation to the matter shall be final, conclusive and binding and
there shall be no right of referral to Pool Members in general meeting
nor any right of appeal to the Director and each Party expressly,
irrevocably and unconditionally waives all such rights of referral and
appeal.
5.4 Other changes to the 1998 Programme: Pool Members acknowledge that, in
respect of any change to the 1998 Programme required by the Scottish
PESs (or, as the case may be, Scottish Settlements) for the purposes
of the Scottish Settlements Arrangements which does not fall to be
dealt with by sub-section 5.1 or 5.2, the Scottish PESs (or, as the
case may be, Scottish Settlements) shall have the right, and shall be
obliged, to use the change control procedure established under the
1998 Programme and the costs of any such change and the change control
charges shall be borne by the Scottish PESs (or, as the case may be,
Scottish Settlements) as if they were charges under sub-section 9.1
or, as the case may be, 9.2.
6. 1998 CONTRACTORS' SERVICES
6.1 Retaining 1998 Contractors:
(A) If the Scottish PESs (or either of them) or Scottish
Settlements wish to employ or retain any 1998 Contractor to
undertake work or provide services in relation to the
Scottish Settlements Project which is or are broadly
equivalent to the work or services which any 1998 Contractor
is or are performing in relation to the 1998 Programme for
the benefit of all Pool Members (including, for the
avoidance of doubt, the development of the EAC/AA System),
the Scottish PESs or (as the case may be, Scottish
Settlements) shall procure that, before they or it enter
into a contract or arrangement with such 1998 Contractor for
such work or services (the "Scots ------ Contract"), the
1998 Contractor (or, where the 1998 Contractor is a
sub-contractor, the principal 1998 Contractor) shall, unless
the Executive Committee otherwise resolves upon application
made by the Scottish PESs (or, as the case may be, Scottish
Settlements), confirm in writing to Pool Members (or a
nominee on their behalf) in the terms set out in sub-section
6.1(B).
(B) The terms referred to in sub-section 6.1(A) are that the
entry into and performance of the Scots Contract, either in
itself or in conjunction with the
<PAGE>
other contracts and arrangements of the relevant 1998
Contractor (including any contacts or arrangements relating
to the 1998 Programme), will not affect adversely the
performance of such 1998 Contractor's obligations to Pool
Members under its contract or arrangement with them (or
their nominee) or cause or otherwise result in such 1998
Contractor being in breach of any of its obligations to Pool
Members under its contract or arrangement with them (or
their nominee), to the intent that such confirmation shall
constitute a legally binding obligation of such 1998
Contractor under such contract or arrangement with Pool
Members (or their nominee).
6.2 List of 1998 Contractors: The Executive Committee shall provide the
Scottish PESs from time to time with an up-to-date list of all the
1998 Contractors and a summary of the work or services that they have
been retained to perform.
6.3 No restriction: Nothing in this Section 6 shall preclude or restrict
the Scottish PESs or Scottish Settlements from employing or retaining
any person who is not a 1998 Contractor to perform the work or
services referred to in sub-section 6.1 or from employing or retaining
any person who is a 1998 Contractor to perform work or services in the
period after completion of the 1998 Programme.
6.4 Liaison: The Scottish PESs (or, as the case may be, Scottish
Settlements) and the Other Pool Members (in each case through their
appointed representatives) shall liaise on a regular basis (usually
monthly) on the planning and manpower requirements for the work and
services referred to in sub-section 6.1.
7. RELATIONSHIPS
7.1 Expert Groups: The Scottish PESs (or, as the case may be, Scottish
Settlements) shall have the right on the terms and subject to the
conditions set out in Scots Subsidiary Document 5 to attend meetings
of those expert and systems delivery user groups established under the
1998 Programme which are of direct relevance to the Scottish
Settlements Project.
7.2 1998 Contractor relationship:
(A) The Scottish PESs and Scottish Settlements shall not contact
or communicate directly with, or place any order with or
give any instruction to, any 1998 Contractor with respect to
any matter concerning the 1998 Programme, the 1998 Systems,
the Required Documentation or the Pool 1998 Software but
shall address all such communications to the Programme
Liaison Officer (in the form, where appropriate, of a
Systems Requirement Request) provided that the Scottish PESs
and Scottish Settlements shall have the right to contact or
communicate directly with (and in the case of (ii) and (iii)
below, to place orders
<PAGE>
with or give instructions to) a 1998 Contractor with respect
to any such matter (but subject to Section 4):-
(i) in the case and for the purposes of an inspection
approved by the Programme Board (or otherwise
determined to be made on appeal from the decision
of the Programme Board) in accordance with
paragraph (C) below;
(ii) in the circumstances and for the purposes
described in sub-section 6.1; and
(iii) in the case of a determination of the Executive
Committee that, in the reasonable opinion of the
Scottish PESs, is unfavourable to the Scottish
PESs (or, as the case may be, Scottish
Settlements) in a significant respect where,
pursuant to sub-section 5.3, the determination of
the Executive Committee is final (but then only in
relation to those matters which were the subject
of that determination and on the terms set out in
sub-section 6.1),
provided that nothing in this paragraph (A) shall prevent or
restrict either of the Scottish PESs or Scottish Settlements
from contacting or communicating directly with any 1998
Contractor with respect to work or services required for the
production of Developed Material.
(B) The Scottish PESs and Scottish Settlements shall not
interfere with the performance by any 1998 Contractor of any
of its obligations in connection with the 1998 Programme.
(C) (i) If the Scottish PESs or Scottish Settlements have
a material concern that the progress of work on
the 1998 Programme is such as to cause the date
for completion of the Scottish Settlements Project
to be delayed, the Scottish PESs and Scottish
Settlements shall have the right to request
inspection of work on the 1998 Programme in
accordance with paragraphs (C)(ii) and (iii)
below.
(ii) An application for inspection by the Scottish PESs
or Scottish Settlements referred to in paragraph
(C)(i) shall be made to the Programme Board with
reasons in support and details of the form of
inspection required (it being understood that any
such inspection will normally be conducted under
the supervision of the Programme Board). The
Programme Board will give due consideration to any
such application and will notify the Scottish PESs
(or, as the case may be, Scottish Settlements) of
its determination whether the case for such an
inspection has been made
<PAGE>
and, if a case for an inspection has been made,
the form that such inspection is to take.
(iii) If the Programme Board determines that a case for
an inspection has been made, Pool Members shall
use all reasonable endeavours to facilitate the
carrying out of such inspection in accordance with
the determination of the Programme Board.
(iv) If the Programme Board determines that a case for
an inspection has not been made, the Scottish PESs
in their capacity as Pool Members shall have the
right to refer the matter to the Executive
Committee for determination and to appeal such
determination pursuant to the terms of this
Agreement.
(D) The Pool Members shall arrange for the Scottish PESs (or, as
the case may be, Scottish Settlements) to receive copies of
each 1998 Contractor's periodic progress reports to the
Programme Board or the 1998 Programme project boards on
matters concerning the 1998 Programme after deletion of any
information in or accompanying any such report which is
reasonably considered by those administering the 1998
Programme to be commercially sensitive.
(E) The Scottish PESs (or, as the case may be, Scottish
Settlements) shall be entitled at their own cost and expense
to attend and witness acceptance testing of the ISRA System
and to receive copies of the related test logs as may be
reasonably required by the Scottish PESs (or, as the case
may be, Scottish Settlements).
8. NO REPRESENTATION OR LIABILITY
8.1 No representation or warranty: With the exception of the confirmations
given by the Pool Members in sub-section 4.2(B), none of the Combined
Members makes or gives any representation or warranty as to the
suitability or fitness of the Required Documentation or the Pool 1998
Software for any particular purpose and all conditions, warranties and
representations whether express or implied as to the Required
Documentation or the Pool 1998 Software (including as to its quality,
fitness, operation or use) are excluded to the fullest extent
permitted by law.
8.2 No reliance: Each of the Scottish PESs (for itself and on behalf of
Scottish Settlements) hereby acknowledges that it has not been induced
to enter into the arrangements set out in this Schedule and the Scots
Subsidiary Documents by, nor has it placed reliance on any prior
representation or statement (whether oral or in writing) made by, any
of the Combined Members or the 1998 Contractors.
8.3 Exclusion of certain types of loss: Each of the Scottish PESs (for
itself and on behalf of Scottish Settlements) hereby acknowledges and
agrees that, save as provided in sub-
<PAGE>
section 8.4, in no circumstances will any of the Combined Members be
liable to either of the Scottish PESs or Scottish Settlements under
this Schedule or the Scots Subsidiary Documents in contract, tort
(including negligence or breach of statutory duty) or otherwise for
loss (whether direct or indirect) of profit, loss of revenue, loss of
use, loss of contract or loss of goodwill or for any indirect or
consequential loss or damage whatsoever.
8.4 No exclusion for death or personal injury: Nothing in this Schedule
shall exclude liability for death or personal injury resulting from
the negligence of a Party or any of its officers, employees or agents.
8.5 Reasonableness of exclusion: Each of the Scottish PESs (for itself and
on behalf of Scottish Settlements) acknowledges that it is aware of
and understands the provisions in relation to liability set out in
this Section and in particular that, given the level of charges made
for the provision and use of the Required Documentation and Pool 1998
Software, it is reasonable for the Combined Members to exclude their
liability as provided for in this Section.
9. PAYMENTS
9.1 Charges: The Scottish PESs and Scottish Settlements shall be jointly
and severally liable to pay to the Other Pool Members in accordance
with sub-section 9.3:-
(A) in respect of the provision of the Required Documentation
identified within Part A of Subsidiary Document 1,
(pound)200,000;
(B) in respect of the grant of the Scots 1998 Licence,(pound)1
(receipt of which is hereby acknowledged);
(C) (without prejudice to sub-section 4.5(H)), in respect of any
maintenance, development or enhancement of the materials
which are the subject of the Scots 1998 Licence, such amount
(if any) as may be agreed from time to time by the Scottish
PESs with the Executive Committee; and
(D) against presentation of invoices or such other types of
supporting evidence as Pool Members generally receive in
respect of Pool costs:-
(i) the agreed costs (including legal costs and
expenses) of the working group in preparing and
negotiating this Schedule;
(ii) all other costs incurred in relation to the 1998
Programme in establishing and operating the
arrangements set out or referred to in this
Schedule or the Scots Subsidiary Documents which
would not otherwise have been incurred by them
including, without prejudice to the
<PAGE>
generality of the foregoing, the costs of any
additional staffing for the 1998 Programme and the
costs of the Programme Liaison Officer and the
Responsible Officers; and
(iii) the costs of giving effect to any change to (which
shall include any additional requirement for) the
Relevant 1998 Systems requested by the Scottish
PESs or Scottish Settlements.
9.2 Change control charges: Without prejudice to sub-section 9.1(D):-
(A) the Scottish PESs and Scottish Settlements shall be jointly
and severally liable to pay all sums incurred in the
preparation of a Systems Requirement Request.
(B) the Scottish PESs and Scottish Settlements shall be jointly
and severally liable to reimburse the Other Pool Members all
sums payable to the relevant 1998 Contractor in respect of
the preparation of any Analysis and all sums incurred in the
preparation of a Systems Requirement Response.
9.3 Due date for payment: Scottish PESs shall pay all sums payable under
sub-sections 9.1 and 9.2 within 30 days of receiving an invoice for
the same from the Other Pool Members or from EPFAL or another
nominated agent on their behalf (the "Scots Due Date").
9.4 Charges exclusive of VAT: All sums payable under sub-sections 9.1 and
9.2 are exclusive of Value Added Tax which shall be paid by the
Scottish PESs (or, as the case may be, Scottish Settlements) at the
rate and in the manner prescribed by law from time to time.
9.5 Default Interest: If the Scottish PESs (or, as the case may be,
Scottish Settlements) fail to make payment of any sum payable under
sub-section 9.1 or 9.2 by the Scots Due Date therefor, interest shall
accrue on the unpaid amount from the Scots Due Date to (and including)
the date of payment, at the rate (as well after as before any
judgement) of four per cent. above the Pool Banker's base lending rate
from time to time.
<PAGE>
SCHEDULE 24
Implementation of the 1998 Trading Arrangements
1. INTERPRETATION
Interpretation: In this Schedule, unless the context otherwise requires,
references to a particular Section, sub-section or paragraph shall be a
reference to that Section, sub-section or paragraph of this Schedule.
2. 1998 OPERATIONAL DATE
Determination of 1998 Operational Date: The Pool Members in general meeting
shall determine the 1998 Operational Date as the date (not being earlier than
the Implementation Date) when they are satisfied (in their absolute discretion)
that the ISRA System is operational and should come into effect. The Executive
Committee shall promptly notify all Parties and the Pool Auditor in writing of
such determination.
3. GSP GROUP IMPLEMENTATION DATE
3.1 Determination of GSP Group Implementation Date: Subject to sub-section
3.2, the Performance Assurance Board shall determine (in its absolute
discretion) a GSP Group Implementation Date for each GSP Group, unless
Pool Members in general meeting otherwise decide in respect of any
particular GSP Group. If Pool Members in general meeting do decide
otherwise in respect of a GSP Group, the determination of the GSP
Group Implementation Date in respect of that GSP Group shall be made
by Pool Members in general meeting. The Executive Committee shall
promptly notify all Parties, the Pool Agents, the Pool Auditor and the
Director in writing of each such determination and of any postponement
of any GSP Group Implementation Date pursuant to sub-section 3.3.
3.2 Conditions Precedent:
3.2.1 The GSP Group Implementation Date for a GSP Group shall not
be earlier than the later of (i) the 1998 Operational Date
and (ii) the date on which all of the conditions precedent
in paragraph 3.2.2 shall have been satisfied in full or
shall have been waived by Pool Members in general meeting.
3.2.2 The conditions precedent referred to in paragraph 3.2.1 are:
(i) the Performance Assurance Board resolves (in its
absolute discretion) that the PES which owns or
operates the Distribution System to which the
relevant GSP Group relates has completed the PRS
Entry Process for such GSP Group or Pool Members
have resolved that such PES has completed that PRS
Entry Process to Pool Members' satisfaction; and
<PAGE>
(ii) the Performance Assurance Board resolves (in its
absolute discretion) that the PES which owns or
operates the Distribution System to which the
relevant GSP Group relates has completed the
Supplier Entry Process for such GSP Group or Pool
Members have resolved that such PES has completed
that Supplier Entry Process to Pool Members'
satisfaction,
and, in either case, such resolution has taken effect.
3.3 Postponement of GSP Group Implementation Date: The Performance
Assurance Board shall, unless Pool Members in general meeting
otherwise determine, have the right, exercisable at any time before
the date determined in accordance with sub-section 3.1 or (as the case
may be) this sub-section to be the GSP Group Implementation Date for
the relevant GSP Group, to postpone such GSP Group Implementation Date
to such later date as the Performance Assurance Board shall determine
if it considers that circumstances justify such a postponement. If
Pool Members in general meeting do determine otherwise in respect of a
GSP Group, the right to postpone the GSP Group Implementation Date for
that GSP Group shall be exercisable, at any time before the date
determined in accordance with sub-section 3.1 or (as the case may be)
this sub-section, by Pool Members in general meeting if Pool Members
in general meeting consider that circumstances justify such a
postponement. Upon the Performance Assurance Board or (as the case may
be) Pool Members in general meeting determining to postpone the date
in respect of any GSP Group, the GSP Group Implementation Date for
such GSP Group shall be such later date.
3.4 Implementation of Suspended Stage 2 Provisions: The Suspended Stage 2
Provisions shall take effect and the rights and obligations of the
Parties under the Suspended Stage 2 Provisions shall arise, in each
case with respect to a GSP Group, on and from the GSP Group
Implementation Date for such GSP Group and accordingly shall not have
effect with respect to a GSP Group before such date.
4. GSP GROUP MIGRATION DATE
4.1 Determination of GSP Group Migration Date: Subject to sub-section 4.2,
the Performance Assurance Board shall determine in its absolute
discretion a GSP Group Migration Date for each GSP Group and shall
promptly notify all Parties, the Pool Agents, the Pool Auditor and the
Director in writing of each such determination.
4.2 Condition precedent: The GSP Group Migration Date for a GSP Group
shall be no earlier than the GSP Group Implementation Date for the
relevant GSP Group.
4.3 Migration to Stage 2:
4.3.1 Subject to paragraph 4.3.2, neither a Stage 1 Customer nor a
Stage 1 Non-Pooled Generator in each case in a GSP Group
shall be taken into account for the
<PAGE>
purposes of Stage 2 Settlement in relation to such GSP Group
before the GSP Group Migration Date therefor.
4.3.2 The Performance Assurance Board may (in its discretion)
determine that a particular Stage 1 Customer or Stage 1
Non-Pooled Generator or group of Stage 1 Customers or Stage
1 Non-Pooled Generators may be taken into account for the
purposes of Stage 2 Settlement in relation to a GSP Group
before the GSP Group Migration Date therefor.
4.4 Registration of Metering Systems:
4.4.1 Any Metering System in a GSP Group against which a Supplier
is registered in ERS prior to the GSP Group Implementation
Date therefor shall (unless disconnected) continue to have a
Supplier registered against it in accordance with Clause 60
until at least the GSP Group Migration Date for such GSP
Group, unless that Metering System falls to be treated as a
Stage 2 Metering System following a determination pursuant
to paragraph 4.3.2.
4.4.2 Metering Systems for new supplies of electricity to 100kW
Premises in a GSP Group and purchases from Non-Pooled
Generators in a GSP Group shall continue to be registered as
Stage 1 Metering Systems in ERS and to have Suppliers
registered against them in ERS in accordance with Clause 60
until the GSP Group Implementation Date for such GSP Group.
5. PES OBLIGATIONS BEFORE THE GSP GROUP IMPLEMENTATION DATE
5.1 Scope of Section: This Section 5 applies with effect from the 1998
Operational Date in respect of each GSP Group before its GSP Group
Implementation Date and the Parties' obligations under this Section
shall cease in relation to a GSP Group on the GSP Group Implementation
Date therefor (but without prejudice to any rights and liabilities
accrued as at that date).
5.2 Provision of EAC and Class Average EAC: The Host PES shall provide, in
accordance with Agreed Procedures AP504 and AP506, an initial and
updated Estimated Annual Consumption for each Non Half Hourly Metering
System provided that, where permitted in accordance with the relevant
Agreed Procedures, such Metering System shall instead be assigned a
GSP Group Profile Class Average Estimated Annual Consumption in
accordance with the relevant Agreed Procedures.
5.3 Information to ISR Agent: The Host PES shall send to the ISR Agent in
accordance with all relevant Agreed Procedures the information
referred to therein relating to Stage 2 Settlement including Average
Fraction of Yearly Consumption for each Settlement Register of every
combination of Standard Settlement Configuration and Profile Class,
GSP Group Profile Class Default Estimated Annual Consumption for every
GSP Group,
<PAGE>
Profile Class and Standard Settlement Configuration and a set of Line
Loss Factors for every Line Loss Class ID.
5.4 Information to Data Aggregators: The Host PES shall send to each Data
Aggregator registered in its PES Registration Service against Half
Hourly Metering Systems relevant information relating to Stage 2
Settlement in accordance with the relevant Agreed Procedure. Each Host
PES shall resolve any validation failures reported to it by such Data
Aggregators in accordance with the relevant Service Line.
5.5 Allocation of Stage 2 Metering Systems: The Host PES shall allocate
each Stage 2 Non Half Hourly Metering System to:-
(i) a Profile Class in accordance with the Profile Allocation
Procedures; and
(ii) a Standard Settlement Configuration and other relevant
information in accordance with the relevant Agreed
Procedure.
5.6 General co-operation: The Host PES shall:-
(i) co-operate with the reasonable requirements of the Profile
Administrator in the performance of the Profile
Administrator's responsibilities under Stage 2 Settlement
and shall provide information to the Profile Administrator
in accordance with the relevant Agreed Procedure and any
other information that the Profile Administrator shall
reasonably request; and
(ii) in relation to each Non Half Hourly Metering System
registered in its PES Registration Service, provide (where
applicable) initial teleswitch data to the Initial
Settlement and Reconciliation Agent in accordance with the
relevant Agreed Procedure (if any) and (to the extent
applicable) the Data Interfaces.
<PAGE>
SCHEDULE 25
Accreditation
PART 1: INTERPRETATION
1. INTERPRETATION
In this Schedule, except where the context otherwise requires:-
1.1 references to any Agency System of a person include any Agency System
for which that person is responsible; and
1.2 references to a particular Part, Section, sub-section or paragraph
shall be a reference to that Part, Section, sub-section or paragraph
of this Schedule.
PART 2: ACCREDITATION AND THE PERFORMANCE ASSURANCE BOARD
2. ACCREDITATION AND THE PERFORMANCE ASSURANCE BOARD
2.1 Modification of Performance Assurance Board proceedings: By way of
supplement and qualification to sub-section 2.3 of Schedule 8, in
relation to matters concerning the Certification (or removal of
Certification) of the Agency Systems of, and/or the Accreditation (or
removal of Accreditation) of, any person and/or the Certification
Process or the Accreditation Process and/or such other matters as are
the subject of this Schedule and/or Agreed Procedure AP531:-
2.1.1 notice of meetings of the Performance Assurance Board shall
additionally be given to:-
(a) the Certification Agent and the Performance
Assurance Administrator; and
(b) insofar as concerns the Certification (or removal
of Certification) of the Agency System of any
person or the Accreditation (or removal of
Accreditation) of any person, that person (such
notice not constituting an invitation to that
person to attend that meeting);
2.1.2 if the Certification Agent or the Performance Assurance
Administrator wishes to advise additional matters which he
or it wishes to be considered at a meeting of the
Performance Assurance Board he or it shall give notice to
all other persons entitled to attend that meeting no later
than three working days before the date of the meeting (or
such lesser period as the Performance Assurance Board may
from time to time determine);
<PAGE>
2.1.3 insofar as concerns the Certification (or removal of
Certification) of the Agency System of any person or the
Accreditation (or removal of Accreditation) of any person, a
copy extract of that part of the minutes of the relevant
meeting of the Performance Assurance Board as relates to
such matter shall additionally be given to that person;
2.1.4 each of the Certification Agent and the Performance
Assurance Administrator (or its or his respective duly
appointed representative) shall have the right to attend and
speak (but not to vote) at meetings of the Performance
Assurance Board;
2.1.5 a Committee Member shall not:-
(a) participate as a member of the Performance
Assurance Board in the consideration of whether
the Agency Systems of his employer or of any
affiliate of his employer should be Certified (or
their Certification removed) or whether his
employer or any affiliate of his employer should
be Accredited (or its Accreditation removed);
(b) be counted in ascertaining whether a quorum is
present at a meeting of the Performance Assurance
Board convened to consider whether the Agency
Systems of his employer or of any affiliate of his
employer should be Certified (or their
Certification removed) or whether his employer or
any affiliate of his employer should be Accredited
(or its Accreditation removed); or
(c) be entitled to receive any working papers,
opinions, reports or other documentation which
have been prepared for the Performance Assurance
Board in connection with the Certification Process
or Accreditation Process insofar as they relate
specifically to his employer or any affiliate of
his employer;
2.1.6 a Committee Member shall not disclose to his employer or any
affiliate of his employer confidential information which he
has received in his capacity as a member of the Performance
Assurance Board unless:-
(a) required to do so by any Competent Authority or by
law;
(b) in order for his employer or any such affiliate to
comply with the conditions of any Licence with
which his employer or any such affiliate, as the
case may be, is required to comply;
(c) required to do so by any stock exchange or
regulatory authority or the Panel on Take-overs
and Mergers; or
<PAGE>
(d) pursuant to the arbitration rules of the
Electricity Arbitration Association or pursuant to
any judicial or other arbitral process or tribunal
having jurisdiction in relation to him or his
employer or any such affiliate, as the case may
be,
in any of which events the Committee Member shall first be
required to give written notice of the required disclosure
to the Performance Assurance Board.
2.2 No delegation: The Performance Assurance Board shall not have the
right to delegate the taking of any decision as to whether the Agency
Systems of a person (or any of them) should be Certified (or the
Certification removed) or a person should be Accredited (or its
Accreditation removed).
2.3 Suppliers to rely on own assessment: Without prejudice to the
generality of sub-section 2.5 of Schedule 8, Suppliers shall be
required to satisfy themselves as to the financial condition and
prospects and the management and operational ability of every and any
Accredited Person and shall not rely on the fact of Accreditation (or
the lack of Accreditation) as, or infer therefrom, any representation,
warranty or other statement or indication on the part of the
Performance Assurance Board, the Performance Assurance Administrator
or the Certification Agent that the Accredited Person has any or any
particular financial condition or prospects or level of management or
operational ability.
PART 3: THE CERTIFICATION AGENT
3. THE CERTIFICATION AGENT
3.1 Appointment and removal of Certification Agent: The Performance
Assurance Board shall, from time to time, appoint and remove a
Certification Agent on behalf of all Pool Members. The first
Certification Agent shall be Coopers & Lybrand. Subject to Clause
48.11, the Performance Assurance Board shall have the right on behalf
of all Pool Members to agree, amend and substitute the terms of
engagement of the Certification Agent.
3.2 Pool Members' authorisation: Pool Members hereby irrevocably and
unconditionally authorise the Performance Assurance Board to appoint
and remove, and to agree, amend and substitute the terms of engagement
of, the Certification Agent on their behalf and undertake not to
withdraw or change that authority.
3.3 Functions of Certification Agent: The functions of the Certification
Agent shall be:-
3.3.1 to prepare the self-assessment certification returns to be
completed by each Applicant and the supporting Pool
documentation (including guidance notes) to be used by the
Certification Agent in the Certification Process (together
the "Certification Documentation"), to submit the
Certification Documentation to the
<PAGE>
Performance Assurance Board for approval and to revise (and
resubmit for approval) the Certification Documentation in
accordance with the instructions of the Performance
Assurance Board from time to time;
3.3.2 to carry out the Certification Process in accordance with
applicable English law, the terms set out in this Schedule
and Agreed Procedure 531 and the approved Certification
Documentation;
3.3.3 to exercise the skill, care and diligence in the preparation
and revision of the Certification Documentation (recognising
that the Certification Agent is required to give effect to
the instructions of the Performance Assurance Board under
paragraph 3.3.1) and in the performance of the Certification
Process reasonably to be expected of a firm of accountants
of internationally recognised standing (or to such other
standard of skill, care and diligence as may be agreed by
the Performance Assurance Board with the Certification Agent
from time to time); and
3.3.4 in respect of each application for Certification, to deliver
an opinion of the Certification Agent addressed to the
Performance Assurance Board (for itself and on behalf of all
Pool Members) as to whether the Applicant's Agency System
has met the Certification Requirements.
3.4 Responsibilities owed to Performance Assurance Board: The
responsibilities of the Certification Agent under this Schedule are
owed exclusively to the Performance Assurance Board for itself and
Pool Members collectively and to no other person provided that the
Pool Auditor shall be entitled to rely on all opinions of the
Certification Agent delivered pursuant to paragraph 3.3.4.
3.5 Confidentiality undertaking: Before commencing the Certification
Process with respect to the Agency Systems of any person, the
Certification Agent shall execute a confidentiality undertaking in
favour of such person in such form as may from time to time be agreed
by the Performance Assurance Board with the Certification Agent.
PART 4: THE CERTIFICATION PROCESS AND ACCREDITATION PROCESS
4. THE CERTIFICATION PROCESS AND ACCREDITATION PROCESS
4.1 Certification and Accreditation:
4.1.1 On the terms and subject to the conditions of this Schedule,
the Performance Assurance Board shall be responsible for the
Certification of each of the Agency Systems of, and the
Accreditation of, persons falling within the following
categories:-
<PAGE>
(a) PES registration service providers;
(b) non half hourly data collectors;
(c) non half hourly data aggregators;
(d) non half hourly meter operators;
(e) half hourly data collectors;
(f) half hourly data aggregators;
(g) half hourly meter operators;
(h) [Not Used.]
(i) meter administrators;
(j) data transfer service providers; and
(k) such other categories of person, if any, as the
Executive Committee, with the prior written
consent of the Director, may determine.
4.1.2 The Certification Process and the Accreditation Process
shall be conducted in accordance with Agreed Procedure
AP531.
4.1.3 Notwithstanding paragraph 4.1.2, in reaching its decision as
to whether the Agency Systems of an Applicant (or any of
them) should be Certified or an Applicant should be
Accredited, the Performance Assurance Board shall be
required to give effect to any instruction given to it by
Pool Members in general meeting (whether of general
application to the Certification Process or the
Accreditation Process or specific to one or more Agency
Systems or Applicants) and to any determination made by Pool
Members in general meeting with respect to the Accreditation
Requirements or the Certification Requirements.
4.1.4 Agreed Procedure AP531 shall not conflict with the
provisions of this Schedule and, to the extent of any
conflict or inconsistency between the two, the provisions of
this Schedule shall prevail.
4.1.5 The Performance Assurance Board shall provide copies of the
latest version of this Schedule and Agreed Procedure AP531
to members of the Performance Assurance Board, the
Certification Agent and Applicants.
<PAGE>
4.1.6 The Performance Assurance Board shall, subject to
sub-section 5.2, provide each Applicant with, or arrange for
each Applicant to be provided with, a copy of all opinions
of the Certification Agent in relation to the Agency
System(s) of that Applicant delivered pursuant to paragraph
3.3.4 at the same time as the Performance Assurance Board
notifies such Applicant whether its Agency System(s) has
(have) been Certified and/or (as the case may be) such
Applicant has been Accredited. The Performance Assurance
Board shall be under no obligation to provide an Applicant
with, or arrange for it to be provided with, a copy of any
such opinion at any time before it gives such notification.
4.1.7 The Performance Assurance Board shall make available to the
Director all information held by the Performance Assurance
Board which the Director reasonably requires for the
purposes of making any determination pursuant to sub-section
4.7.
4.2 No Certification: The Performance Assurance Board shall not Certify
the Agency System of any person unless the Certification Agent has
provided an opinion (not being a disclaimer of opinion, howsoever
called) in the terms of paragraph 3.3.4 in relation to that Agency
System.
4.3 Removal of Certified or Accredited status: The Performance Assurance
Board shall have the right at any time and from time to time in
accordance with Agreed Procedure AP531:-
(a) to remove the Certification of all or any of the Agency
Systems of any person, whereupon such Agency System(s) shall
cease to be Certified; and/or
(b) to remove the Accreditation of any person, whereupon such
person shall cease to be Accredited.
4.4 Re-certification: Each Accredited Person shall be required to have its
Agency Systems re-Certified at the times specified in, and otherwise
in accordance with, Agreed Procedure AP531. If any such Agency System
is not so re-Certified, such person's Accreditation shall
automatically lapse.
4.5 Fees and expenses:
4.5.1 The Performance Assurance Board shall determine and publish
to Accredited Persons a Menu of Certification Fees which
shall be charged for the purposes of Certification, and the
Performance Assurance Board shall have the right to revise
such fees from time to time.
4.5.2 Each Accredited Person shall pay its own costs and expenses
incurred in connection with the Certification Process and
the Accreditation Process.
<PAGE>
4.6 Applicants bound by this Schedule: Applicants shall agree to be bound
by the Certification Process, the Accreditation Process, the
provisions of this Schedule and Agreed Procedure AP531 by the
execution of a letter agreement in form and content satisfactory to
the Performance Assurance Board.
4.7 Referral to the Director:
4.7.1 The sole and exclusive remedy of an Accredited Person who is
dissatisfied with the decision of the Performance Assurance
Board in relation to its Accreditation or removal of
Accreditation or the Certification or removal of
Certification of its Agency Systems (the "Dissatisfied
Accredited Person") shall be to refer the matter to the
Director in accordance with this sub-section 4.7 for
determination.
4.7.2 To be a valid referral pursuant to paragraph 4.7.1, the
Dissatisfied Accredited Person must:-
(a) refer the matter for determination to the Director
in writing (with a copy to the Performance
Assurance Board) no later than 14 days after
receipt by the Dissatisfied Accredited Person of
the relevant decision of the Performance Assurance
Board; and
(b) set out in its referral to the Director (with
reasons in support) the ground or grounds on which
the Dissatisfied Accredited Person is making its
application to the Director which shall be one or
more of the following (and no other):-
(i) that the Performance Assurance Board has
not followed the procedures set out in
this Schedule and Agreed Procedure
AP531; or
(ii) that the Performance Assurance Board has
given undue weight to particular
evidence submitted or to the lack of
particular evidence; or
(iii) that the Performance Assurance Board has
misinterpreted all or some of the
evidence submitted in connection with
such application; or
(iv) that, notwithstanding any restrictions
that Pool Members may place on the
Performance Assurance Board as to how it
is to assess and decide the matter, the
Performance Assurance Board should not
have taken into account the failure by
the Dissatisfied Accredited Person to
satisfy one or more specified
Accreditation Requirements or, as the
case may be, the failure of the
<PAGE>
Dissatisfied Accredited Person's Agency
System(s) to satisfy one or more
Certification Requirements.
4.7.3 On a valid referral pursuant to paragraph 4.7.1 the Director
may either determine the matter himself or, if he thinks
fit, refer the matter for determination by an arbitrator
appointed by him and, subject to paragraph 4.7.4, the
practice and procedure to be followed in connection with any
such determination shall be such as the Director may
consider appropriate.
4.7.4 In connection with any referral pursuant to paragraph 4.7.1
which the Director determines himself, the Director shall
have:-
(a) the right to engage an independent consultant
selected by the Director and to take and rely on
the advice of such independent consultant; and
(b) the discretion to make a determination that the
Dissatisfied Applicant should or should not be or
remain Accredited or that its Agency System(s)
should or should not be or remain Certified
notwithstanding that the ground on which the
Dissatisfied Accredited Person has applied to the
Director is either the wrong ground or has not
been proven.
4.7.5 The determination of the Director or, as the case may be,
the arbitrator pursuant to paragraph 4.7.3 shall be final,
conclusive and binding on the Dissatisfied Accredited
Person, the Performance Assurance Board and all Pool Members
and may include a provision as to the payment in respect of
the costs and expenses incurred by the person making the
determination. The Dissatisfied Accredited Person, the
Performance Assurance Board and all Pool Members shall
promptly give effect to any such determination.
4.7.6 For the avoidance of doubt, neither Clause 83 nor Clause 84
shall apply in the case where an Accredited Person is
dissatisfied with any decision of the Performance Assurance
Board referred to in paragraph 4.7.1. This sub-section 4.7
provides the sole and exclusive remedy of a Dissatisfied
Accredited Person. Parties and Accredited Persons shall not
use, or seek to use, those Clauses or any other provisions
of this Agreement to thwart or challenge referrals to the
Director pursuant to paragraph 4.7.1.
4.8 Exclusion of other appeals: Save for any reference to the Director in
accordance with sub-section 4.7, in respect of any matter concerning
the Certification (or removal of Certification) of any particular
Agency Systems or the Accreditation (or removal of Accreditation) of
any person all reference or appeal procedures in this Agreement to or
involving the Director are expressly excluded.
<PAGE>
4.9 Reapplication: Nothing in this Schedule or Agreed Procedure AP531
shall prevent any person whose Agency Systems have been refused
Certification or who has been refused Accreditation, or any person
whose Agency Systems have had their Certification removed or withdrawn
or whose Accreditation has been removed or withdrawn, from re-applying
for Certification or Accreditation (as the case may be) at any time.
PART 5: ACCREDITED PERSON'S RESPONSIBILITIES
5. ACCREDITED PERSON'S RESPONSIBILITIES
5.1 Accredited Person's warranty and undertakings: Each Accredited Person
represents, warrants and undertakes to each of the Pool Members (for
itself and as trustee and agent for the Performance Assurance Board,
the Performance Assurance Administrator and the Certification Agent)
that:-
5.1.1 all information supplied by or on behalf of the Accredited
Person to the Performance Assurance Board, the Performance
Assurance Administrator or the Certification Agent in
connection with the Certification Process or the
Accreditation Process is true, complete and accurate and not
misleading because of any omission or ambiguity or for any
other reason, subject to disclosure, if any, acceptable to
the Performance Assurance Board being made in advance of the
provision of the relevant information to the Performance
Assurance Board, the Performance Assurance Administrator or
(as the case may be) the Certification Agent;
5.1.2 (a) completion of all documentation by or on behalf of
the Accredited Person in connection with the
Certification Process or the Accreditation Process
is and will remain the sole responsibility of the
Accredited Person;
(b) the Accredited Person will duly complete all such
documentation and provide all the information
required thereunder within the time periods
prescribed by Agreed Procedure AP531; and
(c) the Accredited Person has had the opportunity to
take its own legal and other professional advice
regarding the Certification Process and the
Accreditation Process;
5.1.3 without prejudice to the generality of paragraphs 5.1.1 and
5.1.2, it will confirm in writing to the Performance
Assurance Board (for itself and on behalf of all Pool
Members, the Performance Assurance Administrator and the
Certification Agent) in accordance with Agreed Procedure
AP531 that each of the other representations, warranties and
undertakings in this sub-section 5.1 are true and have been
complied with as at the date on which it has been notified
that its
<PAGE>
application(s) for Certification and/or Accreditation will
be considered by the Performance Assurance Board; and
5.1.4 the Accredited Person will co-operate fully with the
Performance Assurance Board, the Performance Assurance
Administrator and the Certification Agent in the
Certification Process and the Accreditation Process and,
without prejudice to the generality of the foregoing, shall
permit each of them reasonable access to the Accredited
Person's business records, working papers and employees for
the purposes of each such process upon not less than three
working days' advance notice.
5.2 No reliance by the Accredited Person: The Accredited Person
acknowledges and agrees that:-
5.2.1 it shall not, and shall not be entitled to, place any
reliance on any working papers, opinion, report or other
documentation prepared by or for (or any oral or written
interpretation of, or any oral or written advice given in
relation to, any such working papers, opinion, report or
other documentation by) the Performance Assurance Board, the
Performance Assurance Administrator or the Certification
Agent in connection with the Certification Process or the
Accreditation Process unless such working papers, opinion,
report or other documentation is expressly addressed to such
Accredited Person; and
5.2.2 it shall keep confidential on the terms set out in Clause 69
any working papers, opinions, report or other documentation
referred to in paragraph 5.2.1 unless such working papers,
opinion, report or other documentation is expressly
addressed to such Accredited Person.
PART 6: DEROGATIONS
6. DEROGATIONS
6.1 Effect of Derogations: If, in relation to an Accredited Person, the
Pool Members in general meeting issue a Derogation (as defined in
Agreed Procedure AP531) in respect of the Accreditation of such
Accredited Person or the Certification of the Agency Systems of such
Accredited Person and the terms of such Derogation provide that such
Accredited Person shall be relieved from complying with one or more
specified terms or conditions of this Agreement, the Service Lines,
Agreed Procedures or Codes of Practice (each such term or condition a
"Derogated Provision"), neither such Accredited Person nor a Supplier
(in that capacity) who has appointed, or is to appoint, that
Accredited Person (a "Related Supplier") shall be in breach of this
Agreement insofar as it fails to comply with its obligations under
this Agreement because it or (in the case of a Related Supplier) the
Accredited Person in respect of whom it is a Related Supplier does not
comply with the Derogated Provision at any time during the period for
which such Derogation is in effect.
<PAGE>
6.2 Compliance with Derogations: An Accredited Person shall use its best
endeavours to comply, and a Related Supplier shall (in that capacity)
use its best endeavours to procure that the Accredited Person in
respect of whom it is a Related Supplier complies, with the terms and
conditions of any applicable Derogation for so long as it is in
effect.
PART 7: LIMITATION OF LIABILITY
7. CERTIFICATION AGENT'S LIABILITY
The exclusions from and limitations of liability of the Certification Agent are
set out in the terms of its engagement referred to in sub-section 3.1 and shall
apply to this Schedule as if the same were set out in full herein.
PART 8: DISAPPLICATION PROVISIONS
8. DISAPPLICATION
8.1 Disapplication: Parts III and V of this Agreement shall not apply in
or to this Schedule except, in the case of Part III, in respect of any
action under this Schedule which Pool Members in general meeting are
entitled or required by the terms of this Schedule to take.
8.2 Pool Auditor provisions: If, and for long as, the Pool Auditor is also
appointed as the Certification Agent, the provisions of Clause 48.11
shall apply.
<PAGE>
SCHEDULE 26
Supplier Responsibilities
1. INTERPRETATION
Interpretation: In this Schedule, unless the context otherwise requires,
references to a particular Section, sub-section or paragraph shall be a
reference to that Section, sub-section or paragraph of this Schedule.
2. SUPPLIERS AND SUPPLIER AGENTS
2.1 General: The provisions of this Schedule shall have effect generally
with respect to certain responsibilities of Suppliers in connection
with Stage 2 Settlement and with respect to the functions of Meter
Operators, Data Collectors, Data Aggregators or Meter Administrators
in relation to Stage 2 Metering Systems. A Supplier may (subject as
provided in paragraphs 3.2.3, 4.3.3 and 5.3.3), instead of securing
that a Meter Operator, Data Collector, Data Aggregator or Meter
Administrator is appointed in relation to any Stage 2 Metering System,
perform the relevant function or functions itself provided that it is
and remains Accredited (where applicable), in which event the
provisions of this Schedule shall apply and be interpreted on the
basis that the Supplier shall (in its capacity as a Meter Operator,
Data Collector, Data Aggregator or Meter Administrator) itself perform
the obligations in respect of which it would otherwise be required to
ensure compliance by the relevant Supplier Agent.
2.2 Appointment of Supplier Agents: Each Supplier shall, in relation to
each Stage 2 Metering System in respect of which it has an effective
registration in a PES Registration Service, secure that the following
are appointed, and that such appointments are (where applicable)
recorded in the relevant PES Registration Service, with effect from
the time when such registration first takes effect and that an
appointment of each of the following is maintained so long as the
Supplier remains so registered:-
2.2.1 unless the Metering System relates to an Unmetered Supply,
an Accredited Meter Operator;
2.2.2 an Accredited Data Collector;
2.2.3 an Accredited Data Aggregator; and
2.2.4 if the Metering System relates to an Equivalent Unmetered
Supply, a Meter Administrator (who shall be Accredited if
applicable).
2.3 Supplier Entry Process: Each Supplier shall ensure that it and each of
its Supplier Agents who are to be responsible for Metering Systems
within a GSP Group has satisfied the
<PAGE>
requirements of the Supplier Entry Process in accordance with the
relevant Agreed Procedure before any registration of that Supplier in
respect of a Stage 2 Metering System in the PES Registration Service
relating to that GSP Group becomes effective.
2.4 Replacement of Supplier Agents:
2.4.1 Each Supplier may arrange for any Supplier Agent for which
it is responsible to be removed from time to time provided
that a replacement Supplier Agent shall have been appointed
with effect from the date of removal of the removed Supplier
Agent. Each Supplier shall ensure that the appointment of a
Supplier Agent for which it is responsible shall terminate
on withdrawal of the Accreditation (where applicable) of the
relevant Supplier Agent.
2.4.2 Each Supplier shall ensure that there are appropriate
arrangements in place in compliance with the relevant
Service Lines with each Supplier Agent for which it is
responsible from time to time to enable any replacement
Supplier Agent for which it is responsible to take over the
functions of a Supplier Agent whose appointment has expired
or been terminated, including arrangements for the transfer
of relevant data to such replacement Supplier Agent.
2.5 Responsibility of Suppliers: Each Supplier shall:-
2.5.1 be responsible for every act, breach, omission, neglect and
failure of each Supplier Agent appointed as referred to in
sub-section 2.2 and shall itself comply, and procure
compliance by each such Supplier Agent, with the relevant
Service Lines, relevant Agreed Procedures, relevant Codes of
Practice (in respect of meter operation) and applicable Pool
Rules; and
2.5.2 be entitled, as between itself and the other Pool Members,
to agree, amend and substitute the terms (including terms as
to charges and payment) of any such appointment as it may
think fit.
2.6 Performance Assurance: Each Supplier shall:-
2.6.1 provide, or procure the provision of, such reports to the
Performance Assurance Board as may from time to time be
reasonably required in accordance with Agreed Procedure
AP532 in order to enable the Performance Assurance Board to
review compliance by that Supplier with the requirements of
this Schedule and compliance by each Supplier Agent for
which that Supplier is responsible with the relevant Service
Lines;
2.6.2 provide the Executive Committee and the Performance
Assurance Board with access to all of its records, data and
other information (and those of its Supplier Agents) as may
reasonably be required by the Executive Committee or (as the
<PAGE>
case may be) the Performance Assurance Board to carry out
its functions in accordance with Schedule 8 and the Agreed
Procedure referred to in paragraph 2.6.1 or otherwise
pursuant to this Agreement or procure that such access is
provided; and
2.6.3 without prejudice to paragraph 2.5.1, pay, in accordance
with Part 3 of Schedule 31, any amounts which fall to be
paid by it in accordance with Section 9.
2.7 Assistance to Supplier Agents: Each Supplier shall, in accordance with
any relevant Service Lines and Agreed Procedures, take such actions
and provide such information as is reasonably necessary to enable each
Supplier Agent for which it is responsible to discharge its functions
in accordance with the relevant Service Lines and Agreed Procedures.
2.8 Supplier Force Majeure: A Supplier shall not be liable to any other
Party for delay or failure in performing its obligations under this
Schedule, to the extent that such delay or failure results from or is
caused directly by any event or circumstance beyond the reasonable
control of the Supplier including:-
(i) act of public enemy, war declared or undeclared,
threat of war, terrorist act, blockade,
revolution, riot, insurrection, civil commotion,
public demonstration, sabotage or act of
vandalism;
(ii) strikes, lockouts or other industrial
disturbances;
(iii) lightning, storm, accumulation of snow or ice,
earthquake, fire, flood or act of God;
(iv) explosion, fault or failure of plant or machinery
which (in each case) could not have been prevented
by Good Industry Practice;
(v) governmental restraint, Act of Parliament, other
legislation, bye law and Directive (not being any
order, regulation or direction under Section 32,
33, 34 or 35 of the Act);
(vi) a failure by the Initial Settlement and
Reconciliation Agent to provide Profile
Coefficients to a Data Collector for which the
Supplier is responsible or to distribute Market
Domain Data in accordance with the relevant Agreed
Procedures;
(vii) the provision to the Supplier or any Supplier
Agent for which it is responsible by the Initial
Settlement and Reconciliation Agent of Profile
Coefficients or Market Domain Data which is
incorrect in any material respect;
<PAGE>
(viii) until 31st March, 2000, a design fault or error in
the NHH Data Aggregation System or the EAC/AA
System; or
(ix) a failure in the communication network or method
used by the Supplier's Supplier Agent in
accordance with the relevant Service Lines and
Agreed Procedures provided the Supplier has first
used reasonable endeavours to ensure that its
Supplier Agent has used any reasonable alternative
method of communication available,
("Supplier Force Majeure"), provided that this sub-section 2.8 is
subject to compliance by the Supplier and its Supplier Agents in all
respects with the disaster recovery provisions from time to time set
out in the applicable Service Lines. Lack of funds shall not be
interpreted as a circumstance beyond a Supplier's reasonable control.
2.9 Mitigation: A Supplier which is affected by Supplier Force Majeure
shall give immediate notice to the Executive Committee, shall use all
reasonable endeavours to mitigate the impact of the Supplier Force
Majeure and to remedy as soon as practicable its inability to perform
and shall provide notice to the Executive Committee within one working
day of the Supplier Force Majeure being resolved or ceasing to apply.
This shall be without prejudice to the disaster recovery provisions
from time to time set out in the applicable Service Lines.
3. METER OPERATION
3.1 Functions of Meter Operators: The principal functions of a Meter
Operator shall be to install, commission, test and maintain, and
rectify faults in respect of, Stage 2 Metering Equipment (including
(if applicable) associated Communications Equipment), in accordance
with Supplier Service Line 110 for Meter Operation ("Service Line
110") and any relevant Agreed Procedures and relevant Codes of
Practice.
3.2 Choice of Meter Operators: The identity of each Meter Operator for
which a Supplier is responsible shall be determined by that Supplier
save that:-
3.2.1 there must be no more than one effective appointment of a
Meter Operator at any time in relation to a particular Stage
2 Metering System;
3.2.2 the provisions of sub-section 3.3 will apply in relation to
a Stage 2 Metering System at the site of a Non-Pooled
Generator; and
3.2.3 a Supplier shall ensure that (unless otherwise agreed by the
Director) the functions of a Meter Operator in relation to
those Stage 2 Non Half Hourly Metering Systems for which it
is responsible shall only be performed by the Host PES in
respect of the period beginning with the relevant GSP Group
Implementation Date and ending on 31st March, 2000.
<PAGE>
3.3 Non-Pooled Generation: Where the same Stage 2 Metering Equipment at
the site of a Non-Pooled Generator measures Export Active Energy in
respect of supplies to two Suppliers, the Primary Supplier shall
nominate a Meter Operator for that Stage 2 Metering System and inform
the other Supplier of that nomination and those Suppliers shall:-
3.3.1 secure that the nominated Meter Operator is appointed for
that Stage 2 Metering System notwithstanding that the
Metering System may have more than one Stage 2 Metering
System Number for the purposes of registration in a PES
Registration Service;
3.3.2 arrange for the Primary Supplier to notify the Meter
Operator of those Stage 2 Metering System Numbers before the
Meter Operator's appointment comes into effect; and
3.3.3 notify the Meter Operator of its appointment at least five
working days before its appointment is to come into effect
and (if practicable) give the Meter Operator at least five
working days' notice of the termination of its appointment.
3.4 Measurement of Import Active Energy and Export Active Energy: Where
the same Stage 2 Metering Equipment at the site of a Non-Pooled
Generator measures both Import Active Energy and Export Active
Energy:-
3.4.1 the Supplier which is taking the Export Active Energy (or in
the case of two Suppliers which are taking Export Active
Energy, the Primary Supplier) shall secure that the same
Meter Operator is appointed in respect of the measurement of
Export Active Energy as has been appointed in respect of the
measurement of Import Active Energy; and
3.4.2 the Supplier which is taking the Import Active Energy shall
provide the Supplier (or Primary Supplier, as the case may
be) which is taking the Export Active Energy with details of
the Meter Operator appointed in respect of the measurement
of the Import Active Energy.
3.5 Provision of information: Each Supplier shall, without prejudice to
the requirements of sub-section 2.7, promptly after its registration
in respect of a particular Stage 2 Metering System becoming effective
or (as the case may be) following a change in the Meter Operator
appointed in relation to a particular Stage 2 Metering System, send to
the relevant Meter Operator for each Stage 2 Metering System for which
it is responsible (unless otherwise agreed with the relevant Meter
Operator):-
3.5.1 details of such Meter Operator's registration in a PES
Registration Service in relation to that Metering System,
the related Stage 2 Metering System Number
<PAGE>
and the Identifiers for the Data Collector and Host PES
related to that Stage 2 Metering System; and
3.5.2 confirmation of the time and date with effect from which
that Meter Operator's appointment in relation to such Stage
2 Metering System is to take effect.
3.6 Service levels: Each Supplier shall (as appropriate) meet, or procure
that the relevant Meter Operator meets, the service levels specified
in Service Line 110 in relation to the Stage 2 Metering Systems in
respect of which it is effectively registered in a PES Registration
Service.
3.7 Data transfer:
3.7.1 A Supplier shall procure that each Meter Operator for which
it is responsible complies with the relevant requirements of
the relevant Agreed Procedures in respect of transfers of
data to and from Parties, Pool Agents and Supplier Agents
(other than the Supplier and its own Supplier Agents or
between such Supplier Agents), including the sending of data
in accordance with the Data Catalogue and the Data
Interfaces.
3.7.2 Without prejudice to paragraph 3.7.1, a Supplier shall
(except to the extent otherwise specified by the Executive
Committee) procure that each such Meter Operator uses the
Managed Data Network or such alternative method or methods
of data transfer agreed by the Executive Committee for the
purposes of transferring data to and from Parties, Pool
Agents and Supplier Agents (other than the Supplier and its
own Supplier Agents or between such Supplier Agents).
4. DATA COLLECTION
4.1 Functions of Data Collectors: The principal functions of a Data
Collector shall be to retrieve, validate and process metering data in
relation to Stage 2 Metering Equipment, in accordance with Supplier
Service Line 120 for Non Half Hourly Data Collection ("Service Line
120") or (as the case may be) Supplier Service Line 130 for Half
Hourly Data Collection ("Service Line 130") and any relevant Agreed
Procedures.
4.2 Registration: A Supplier shall ensure that each Data Collector for
which it is responsible which is appointed from time to time in
respect of a Stage 2 Metering System is registered as such with the
PES Registration Service applicable to that Stage 2 Metering System.
4.3 Choice of Data Collector: The identity of each Data Collector for
which a Supplier is responsible shall be determined by that Supplier
save that:-
<PAGE>
4.3.1 there must be no more than one effective appointment of a
Data Collector at any time in relation to a particular Stage
2 Metering System in respect of any particular period;
4.3.2 the provisions of sub-section 4.4 will apply in relation to
a Stage 2 Metering System at the site of a Non-Pooled
Generator; and
4.3.3 a Supplier shall ensure that (unless otherwise agreed by the
Director) the functions of a Data Collector in relation to
those Stage 2 Non Half Hourly Metering Systems for which it
is responsible shall only be performed by the Host PES in
respect of the period beginning with the relevant GSP Group
Implementation Date and ending on 31st March, 2000.
4.4 Non-Pooled Generation: Where the same Stage 2 Metering Equipment at
the site of a Non-Pooled Generator measures Export Active Energy in
respect of supplies to two Suppliers, the Primary Supplier shall
nominate a Data Collector for that Stage 2 Metering System and inform
the other Supplier of that nomination and those Suppliers shall:-
4.4.1 secure that the nominated Data Collector is appointed for
that Stage 2 Metering System notwithstanding that the
Metering System may have more than one Stage 2 Metering
System Number for the purposes of registration in a PES
Registration Service;
4.4.2 arrange for the Primary Supplier to notify the Data
Collector of those Stage 2 Metering System Numbers before
the Data Collector's appointment comes into effect;
4.4.3 notify the Data Collector of its appointment at least five
working days before its appointment is to come into effect
and (if practicable) give the Data Collector at least five
working days' notice of the termination of its appointment;
and
4.4.4 ensure that the Data Collector is provided with the
Allocation Schedule for that Stage 2 Metering System.
4.5 Collection of data - Import Active Energy and Export Active Energy:
Where an Outstation associated with a Stage 2 Metering System at the
site of a Non-Pooled Generator is being used for the purposes of
transferring data relating to both Import Active Energy and Export
Active Energy:-
4.5.1 the Supplier which is taking Export Active Energy (or in the
case of two Suppliers which are taking Export Active Energy,
the Primary Supplier) shall, subject to paragraph 4.5.3,
secure that the same Data Collector is appointed as is
appointed to collect Import Active Energy from such
Outstation;
<PAGE>
4.5.2 the Supplier which is taking the Import Active Energy shall
provide the Supplier (or Primary Supplier, as the case may
be) which is taking the Export Active Energy with details of
the Data Collector appointed in respect of the collection of
data relating to Import Active Energy; and
4.5.3 the Suppliers shall secure that the Data Collector so
appointed is appropriately Accredited.
4.6 Provision of information: Each Supplier shall, without prejudice to
the requirements of sub-section 2.7, send to the Data Collector for
each Stage 2 Metering System for which it is responsible:-
4.6.1 promptly after its registration in respect of a particular
Stage 2 Metering System becomes effective or (as the case
may be) following a change in Data Collector appointed in
relation to a particular Stage 2 Metering System (unless
otherwise agreed with the relevant Data Collector) details
of:-
(i) such Data Collector's registration in a PES
Registration Service in relation to a Stage 2
Metering System, the related Stage 2 Metering
System Number and the Identifiers for the Meter
Operator, Data Aggregator and Host PES related to
that Stage 2 Metering System; and
(ii) the start of the period for which the Data
Collector is appointed; and
4.6.2 promptly after receiving such information, any data in
respect of consumption at a Stage 2 Metering System received
by it directly from Customers, in order to enable the
relevant Data Collector to validate and process such
information.
4.7 Access for Data Collectors: In respect of a Stage 2 Metering System in
relation to which it is effectively registered in a PES Registration
Service, a Supplier shall ensure that the appointed Data Collector has
such access to the relevant meters as the Data Collector reasonably
requires in order to read them all within the timescales required for
Stage 2 Settlement.
4.8 Service levels: Each Supplier shall (as appropriate) meet, or procure
that the relevant Data Collector meets, the service levels specified
in Service Line 120 or (as the case may be) Service Line 130 in
relation to the Stage 2 Metering Systems in respect of which it is
effectively registered in a PES Registration Service.
4.9 Data transfer:
4.9.1 A Supplier shall procure that each Data Collector for which
it is responsible complies with the relevant requirements of
the relevant Agreed Procedures in respect of transfers of
data to and from Parties, Pool Agents and Supplier Agents
<PAGE>
(other than the Supplier and its own Supplier Agents or
between such Supplier Agents), including the sending of data
in accordance with the Data Catalogue and the Data
Interfaces.
4.9.2 Without prejudice to paragraph 4.9.1, a Supplier shall
(except to the extent otherwise specified by the Executive
Committee) procure that each such Data Collector uses the
Managed Data Network or such alternative method or methods
of data transfer agreed by the Executive Committee for the
purposes of transferring data to and from Parties, Pool
Agents and Supplier Agents (other than the Supplier and its
own Supplier Agents or between such Supplier Agents).
5. DATA AGGREGATION
5.1 Functions of Data Aggregator: The principal functions of a Data
Aggregator shall be to aggregate metering data received from Data
Collectors and provide such aggregated data to the Initial Settlement
and Reconciliation Agent, in accordance with Supplier Agent Service
Line 140 for Non Half Hourly Data Aggregation ("Service Line 140") or
(as the case may be) Supplier Agent Service Line 150 for Half Hourly
Data Aggregation ("Service Line 150") and the relevant Agreed
Procedures.
5.2 Registration: Each Supplier shall ensure that each Data Aggregator
appointed by it from time to time in respect of a Stage 2 Metering
System is registered as such with the PES Registration Service
applicable to that Stage 2 Metering System.
5.3 Choice of Data Aggregator: Each Supplier shall be entitled to appoint
a Data Aggregator of its choice (including where two Suppliers receive
Export Active Energy through the same Stage 2 Metering System at the
site of a Non-Pooled Generator) save that:-
5.3.1 a Supplier shall not appoint more than one Data Aggregator
at any time in relation to a particular Stage 2 Metering
System in respect of any particular period;
5.3.2 in the case of two Suppliers receiving Export Active Energy
through the same Stage 2 Metering System at the site of a
Non-Pooled Generator, the Primary Supplier shall appoint its
Data Aggregator against its related Stage 2 Metering System
Number and the other Supplier shall appoint its Data
Aggregator against its related Stage 2 Metering System
Number for such Stage 2 Metering System; and
5.3.3 a Supplier shall ensure that (unless otherwise agreed by the
Director) the functions of a Data Aggregator in relation to
those Stage 2 Non Half Hourly Metering Systems for which it
is responsible shall only be performed by the Host PES in
respect of the period beginning with the relevant GSP Group
Implementation Date and ending on 31st March, 2000.
<PAGE>
5.4 Provision of information: Each Supplier shall, without prejudice to
the requirements of sub-section 2.7, promptly after its registration
in respect of a particular Stage 2 Metering System becomes effective
or (as the case may be) following a change in Data Aggregator
appointed in relation to a particular Stage 2 Metering System, send to
the relevant Data Aggregator appointed by it in accordance with
sub-section 2.2 (unless otherwise agreed with the relevant Data
Aggregator):-
5.4.1 details of such Data Aggregator's registration in a PES
Registration Service in relation to a Stage 2 Metering
System, the related Stage 2 Metering System Number and the
Identifiers for the Data Collector and Host PES related to
that Stage 2 Metering System; and
5.4.2 confirmation of the start of the period for which the Data
Aggregator is appointed.
5.5 Service levels: Each Supplier shall (as appropriate) meet, or procure
that the relevant Data Aggregator meets, the service levels specified
in Service Line 140 or (as the case may be) Service Line 150 in
relation to the Stage 2 Metering Systems in respect of which it is
effectively registered in a PES Registration Service.
5.6 Investigation of anomalies: A Supplier shall ensure that any material
anomaly reported to it by a Data Aggregator appointed by it in
accordance with sub-section 2.2 in relation to data received by that
Data Aggregator from Data Collectors for which the Supplier is
responsible is recorded and investigated and that a record is kept of
the action (if any) taken to prevent a recurrence of the anomaly
during the next Settlement Run. For this purpose, a "material anomaly"
is one which is required to be so recorded and investigated in
accordance with the relevant Service Lines or one which the Supplier
appreciates or should reasonably appreciate will have an impact on the
quality of data for Settlement purposes.
5.7 Data transfer:
5.7.1 A Supplier shall procure that each Data Aggregator appointed
by it in accordance with sub-section 2.2 complies with the
appropriate requirements of the relevant Agreed Procedures
in respect of transfers of data to and from Parties, Pool
Agents and Supplier Agents (other than the Supplier and its
own Supplier Agents or between such Supplier Agents),
including the sending of data in accordance with the Data
Catalogue and the Data Interfaces.
5.7.2 Without prejudice to paragraph 5.7.1, a Supplier shall
(except to the extent otherwise specified by the Executive
Committee) procure that each such Data Aggregator uses the
Managed Data Network or such alternative method or methods
of data transfer agreed by the Executive Committee for the
purposes of
<PAGE>
transferring data to and from Parties, Pool Agents and
Supplier Agents (other than the Supplier and its own
Supplier Agents or between such Supplier Agents).
6. METER ADMINISTRATION
6.1 Functions of Meter Administrator: The principal functions of a Meter
Administrator shall be to calculate estimated energy consumption for
Equivalent Unmetered Supplies relating to Stage 2 Customers and to
provide the relevant data to the relevant Half Hourly Data Collector,
all in accordance with Supplier Agent Service Line 170 for Meter
Administration ("Service Line 170") and the relevant Agreed
Procedures.
6.2 Registration: Each Supplier shall ensure that each Meter Administrator
appointed by it from time to time in respect of a Stage 2 Metering
System is (where applicable) registered as such with the PES
Registration Service applicable to that Stage 2 Metering System.
6.3 Choice of Meter Administrator: The identity of each Meter
Administrator for which a Supplier is responsible shall be determined
by that Supplier save that there must be no more than one Meter
Administrator at any time in relation to a particular Stage 2 Metering
System in respect of any particular period.
6.4 Provision of information: Each Supplier shall, without prejudice to
the requirements of sub-section 2.7, promptly after its registration
in respect of a particular Stage 2 Metering System becomes effective
or (as the case may be) following a change in Meter Administrator
appointed in relation to a particular Stage 2 Metering System, send to
the relevant Meter Administrator appointed by it in accordance with
sub-section 2.2 (unless otherwise agreed with the relevant Meter
Administrator):-
6.4.1 details of such Meter Administrator's registration (where
applicable) in a PES Registration Service in relation to a
Stage 2 Metering System, the related Stage 2 Metering System
Number and the Identifiers for the Data Collector and the
PES related to that Stage 2 Metering System; and
6.4.2 confirmation of the start of the period for which the Meter
Administrator is appointed.
6.5 Data transfer:
6.5.1 A Supplier shall procure that each Meter Administrator
appointed by it in accordance with sub-section 2.2 complies
with the appropriate requirements of the relevant Agreed
Procedures in respect of transfers of data to and from
Parties, Pool Agents and Supplier Agents (other than the
Supplier and its own Supplier Agents or between such
Supplier Agents).
<PAGE>
6.5.2 Without prejudice to paragraph 6.5.1, a Supplier shall
(except to the extent otherwise specified by the Executive
Committee) procure that each such Meter Administrator uses
the Managed Data Network or such alternative method or
methods of data transfer agreed by the Executive Committee
for the purposes of transferring data to and from Parties,
Pool Agents and Supplier Agents (other than the Supplier and
its own Supplier Agents or between such Supplier Agents).
7. PROVISION OF SWITCHING DATA
7.1 Application of Section: This Section applies where:-
7.1.1 a Supplier is responsible for a Stage 2 Metering System
which is equipped with a remote switching device; and
7.1.2 messages sent to that remote switching device are not sent
via Electricity Association Services Limited as Teleswitch
Agent pursuant to arrangements for radio teleswitch messages
agreed with Public Electricity Suppliers or Suppliers
collectively.
7.2 Provision of data to ISR Agent: Where this Section applies, the
Supplier responsible for the relevant Metering System shall secure, at
its own cost, that appropriate arrangements are made for the provision
to the Initial Settlement and Reconciliation Agent of data concerning
the messages sent to the remote switch. The arrangements made by the
Supplier in accordance with this Section shall be substantially
equivalent to the arrangements under which data is provided to the
Initial Settlement and Reconciliation Agent by the Teleswitch Agent.
8. PROVISION OF DATA
8.1 Provision of data - 100kW Premises: In respect of each Stage 2
Metering System at 100kW Premises in relation to which it is
registered in a PES Registration Service, a Supplier shall (unless and
to the extent otherwise agreed by the Executive Committee) promptly
submit or procure the submission of the appropriate data (as specified
by Agreed Procedure AP01 Overview of Settlement Process) to the
Initial Settlement and Reconciliation Agent before each Stage 2
Initial Settlement Run, in accordance with Agreed Procedure AP01
Overview of Settlement Process.
8.2 Provision of data - non 100kW Premises: In respect of each Stage 2
Metering System at premises other than 100kW Premises in relation to
which it is registered in a PES Registration Service, a Supplier shall
submit, or procure the submission of, the appropriate data (as
specified by Agreed Procedure AP01 Overview of Settlement Process) to
the Initial Settlement and Reconciliation Agent promptly after
collection of such data and, in any event, before the relevant Final
Reconciliation Run, in accordance with Agreed Procedure AP01 Overview
of Settlement Process.
<PAGE>
8.3 Provision of data - commencement or cessation of trading: A Supplier
shall (to the extent that it has not already done so in accordance
with the Supplier Entry Process) submit, or procure the submission of,
appropriate details to the Initial Settlement and Reconciliation Agent
of each GSP Group in which the Supplier commences or ceases trading
for Stage 2 Settlement, in accordance with the relevant Agreed
Procedure.
9. SUPPLIER CHARGES AND PERFORMANCE LEVELS
9.1 Supplier Charges: Without prejudice to any other right of other Pool
Members (other than in respect of claims for damages for loss), a
Supplier who fails to comply with the reporting requirements imposed
on it pursuant to paragraph 2.6.1, with sub-section 8.1 or (as the
case may be) sub-section 8.2 or with any of the Performance Levels set
out in the Menu of Supplier Charges shall be liable to the relevant
charge set out in the Menu of Supplier Charges, to be payable in
accordance with Schedule 31.
9.2 Amendments to Menu of Supplier Charges: The Menu of Supplier Charges
(or any item in it) may at any time and from time to time be
supplemented or amended by resolution of Pool Members in general
meeting, which shall have effect on the basis specified in Clause
6.7.3A if its terms so provide.
10. PES REGISTRATION SERVICE
10.1 Intention to supply electricity: A Supplier which intends to supply
electricity measured by a Stage 2 Metering System which is registered
with a PES Registration Service shall, in accordance with Agreed
Procedure AP501 PES Registration Service:-
10.1.1 inform that PES Registration Service of its intention;
10.1.2 provide that PES Registration Service with the appropriate
information; and
10.1.3 inform that PES Registration Service from time to time of
any changes to that information.
10.2 Non-Pooled Generation sites: Where two Suppliers receive Export Active
Energy through the same Stage 2 Metering System at the site of a
Non-Pooled Generator, each Supplier shall:-
10.2.1 register that Stage 2 Metering System in the PES
Registration Service with a different Stage 2 Metering
System Number, for which each Supplier shall be respectively
responsible;
10.2.2 inform the PES Registration Service if at any time it ceases
to be responsible for that Stage 2 Metering System provided
that both such Suppliers may not cease to
<PAGE>
be so responsible at the same time unless the relevant Stage
2 Metering System is disconnected at that time;
10.2.3 in accordance with the relevant Agreed Procedure, maintain
and update the information in that PES Registration Service
for which it is responsible; and
10.2.4 in the case of the Primary Supplier, promptly inform the
other Supplier of any changes to information for which the
Primary Supplier is solely responsible in relation to that
Stage 2 Metering System.
10.3 Additional information: Each Supplier which is or intends to be
registered in a PES Registration Service shall comply with the data
quality standards specified in the applicable Pool Rules and with
Service Line 160 (PES Registration Service).
11. ADDITIONAL PROVISIONS
11.1 Integration testing: Each Supplier shall use all reasonable endeavours
to co-operate with and support the Executive Committee, the other Pool
Members, the Initial Settlement and Reconciliation Agent and other
Pool Agents in the integration testing of any relevant system, Stage 2
Software or Stage 2 Hardware required for the operation of Stage 2
Settlement.
11.2 Problem management service: Each Supplier shall:-
11.2.1 use all reasonable endeavours to assist the Initial
Settlement and Reconciliation Agent's problem management
service in the resolution of any problems arising from Stage
2 Settlement in relation to which that Supplier can
reasonably be expected to provide assistance;
11.2.2 provide all information reasonably requested by the Initial
Settlement and Reconciliation Agent within a reasonable
timescale agreed with the Initial Settlement and
Reconciliation Agent; and
11.2.3 use all reasonable endeavours to procure that each Supplier
Agent from time to time appointed by it in respect of a
Stage 2 Metering System registered in a PES Registration
Service uses all reasonable endeavours to assist the Initial
Settlement and Reconciliation Agent's problem management
service in the resolution of any problems arising from their
contracts relating to Stage 2 Settlement and provides all
information reasonably requested by the Initial Settlement
and Reconciliation Agent within a reasonable timescale
agreed with the Initial Settlement and Reconciliation Agent,
in any such case where that Supplier can reasonably be
expected to provide assistance.
<PAGE>
11.3 Data transfer: Each Supplier shall send data relating to Stage 2
Settlement, which it is required to provide to the Initial Settlement
and Reconciliation Agent pursuant to this Agreement, in accordance
with the Data Catalogue and, when applicable, the Data Interfaces.
Transfers of such data, together with transfers of data from the
Initial Settlement and Reconciliation Agent, shall be made (except to
the extent otherwise specified by the Executive Committee) by means of
the Managed Data Network or such alternative method or methods of data
transfer agreed by the Executive Committee for the purposes of
transferring data to and from Parties, Pool Agents and Supplier
Agents.
11.4 Profile Classes: In respect of each Stage 2 Non Half Hourly Metering
System in relation to which it is effectively registered in a PES
Registration Service, a Supplier shall:-
11.4.1 if it is the first time that such Metering System is
registered in a PES Registration Service, allocate such
Metering System to:-
(i) a Profile Class in accordance with the Profile
Allocation Procedures; and
(ii) a Standard Settlement Configuration and other
relevant information in accordance with the
relevant Agreed Procedures; and
11.4.2 in any other case:-
(i) use reasonable endeavours to ensure that such
Metering System remains at all times allocated to
the correct Profile Class; and
(ii) from time to time change the Profile Class to
which that Metering System is allocated,
in each case in accordance with the Profile Allocation
Procedures.
11.5 Profile Administrator: Each Supplier shall:-
11.5.1 co-operate with the Profile Administrator in the performance
of its obligations under its Pool Agent Contract;
11.5.2 provide such information as the Profile Administrator may
reasonably require in the performance of such obligations;
and
11.5.3 comply with any directions as may from time to time
reasonably be made by the Executive Committee in respect of
the Profile Administrator's Pool Agent Contract.
11.6 Provision of switching data: In relation to each Stage 2 Metering
System for which it is responsible which is equipped with a remote
switching device, a Supplier shall (where
<PAGE>
applicable) ensure that switching data and changes thereto required
for inclusion in Market Domain Data are provided to the Initial
Settlement and Reconciliation Agent in accordance with the relevant
Agreed Procedures and (to the extent applicable) the Data Interfaces.
11.7 Non-Pooled Generation - appointment of Primary Supplier:
11.7.1 Where two Suppliers receive Export Active Energy through the
same Stage 2 Metering System at the site of a Non-Pooled
Generator, the Suppliers shall ensure that each is informed
of the other's identity by the Non-Pooled Generator and
shall agree which of them shall be the Primary Supplier
(failing which agreement, the Executive Committee shall
nominate one of them as the Primary Supplier).
11.7.2 The Primary Supplier shall take overall responsibility for
the relevant Stage 2 Non-Pooled Generator for Settlement
purposes and for ensuring that only one Meter Operator and
one Data Collector is appointed for the related Stage 2
Metering System.
11.7.3 The Primary Supplier for a Stage 2 Metering System shall:-
(i) request the Host PES to provide a secondary Stage
2 Metering System Number for that Metering System
and shall notify the other Supplier referred to in
paragraph 11.7.1 of that number; and
(ii) ensure that the other Supplier has equal access,
for so long as it remains responsible for the
relevant Stage 2 Metering System, to the data
recorded by the relevant Metering Equipment.
11.7.4 Where the other Supplier ceases to take Export Active Energy
measured by Stage 2 Metering Equipment and will not be
replaced by another Supplier, it shall request the Host PES
to remove its Stage 2 Metering System Number from the PES
Registration Service.
11.7.5 The Suppliers referred to in paragraph 11.7.1 shall:-
(i) agree the split of Export Active Energy with the
relevant Non-Pooled Generator; and
(ii) ensure that an Allocation Schedule and the
associated rules for application and maintenance
of the Allocation Schedule are established and
agreed with the Non-Pooled Generator.
<PAGE>
11.8 Trading of supplies recorded by Half Hourly Meters: A Supplier shall
not change the basis of a supply in respect of a Metering Point which
is traded for Settlement purposes on a half hourly basis to one which
is traded on a non half hourly basis unless the relevant Meter is
replaced by a Non Half Hourly Meter or its half hourly function is
permanently disabled.
<PAGE>
APPENDIX
Menu of Supplier Charges and Performance Levels
PART 1: GENERAL
1.1 Purpose: This Menu of Supplier Charges shall have effect for the
purposes of sub-section 2.6 and Section 9 of Schedule 26 to the
Pooling and Settlement Agreement for the Electricity Industry in
England and Wales dated 30th March, 1990 (as amended) (the
"Agreement").
1.2 Interpretation: In this Menu of Supplier Charges, unless the context
otherwise requires:-
1.2.1 expressions defined in the Agreement will have the meanings
set out therein;
1.2.2 references to a Performance Level or Serial shall be to a
Performance Level or (as the case may be) Serial as
specified in Part 2;
1.2.3 references to a Metering System shall be to a Stage 2
Metering System;
1.2.4 references to the term "for which a Supplier is responsible"
when used in relation to a particular Metering System or
Metering Equipment shall mean the relevant Metering System
or (as the case may be) Metering Equipment in relation to
which the Supplier is effectively registered in a PES
Registration Service;
1.2.5 references to a particular Part, Section, sub-section or
paragraph shall be a reference to that Part, Section,
sub-section or paragraph of this Menu of Supplier Charges;
1.2.6 the acronyms employed in the formulae and other algebraic
expressions shall bear the respective meanings set out in
Part II of Appendix 1 to the Pool Rules; and
1.2.7 the subscripts used in the formulae shall bear the
respective meanings set out in sub-section 1.3 of the Pool
Rules and the summations used in the formulae shall bear the
respective meanings set out in sub-section 1.4 of the Pool
Rules.
1.3 Amendments: This Menu of Supplier Charges (as amended from time to
time in accordance with this sub-section) forms part of Schedule 26
and may only be amended in accordance with sub-section 9.2 of Schedule
26.
1.4 Adjustment: The Performance Levels have been developed on the
assumption that there will be four Timetabled Reconciliation Runs.
Each Pool Member acknowledges that, if the number of Timetabled
Reconciliation Runs were to be increased or reduced or the
<PAGE>
timing of the Timetabled Reconciliation Runs changed, an appropriate
adjustment would need to be made to the Performance Levels and
accordingly undertakes, in that event, to negotiate in good faith with
the other Pool Members with a view to agreeing adjusted or replacement
Performance Levels by the adoption of an amendment to this Menu of
Supplier Charges.
1.5 Acknowledgement by Pool Members: Each of the Pool Members acknowledges
and confirms that each of the charges set out in this Menu of Supplier
Charges has been negotiated in detail and represents a genuine
pre-estimate of the loss likely to be suffered by other Pool Members
as a result of a failure by a Supplier to meet the applicable
Performance Level and is reasonable in all the circumstances. Each of
the Pool Members further acknowledges and confirms that the charges
set out in this Menu of Supplier Charges constitute the sole remedy of
a Pool Member in respect of any claim for damages for any losses
arising from any failure by a Supplier to meet the applicable
Performance Level or Serial. Nothing contained in this sub-section
shall be construed so as to limit a Pool Member's ability to seek any
other form of remedy (such as specific performance or injunctive
relief) in respect of a Supplier's failure to meet a Performance Level
or Serial.
PART 2: PERFORMANCE LEVELS
2. COMPLIANCE WITH PERFORMANCE LEVELS
2.1 Obligations of Suppliers: Each Supplier shall, without prejudice to
its other obligations pursuant to Schedule 26 and elsewhere, comply
with the Performance Levels set out in this Menu of Supplier Charges.
Each Supplier acknowledges that the Performance Levels represent the
minimum requirements to be achieved.
2.2 Measurement by GSP Group: In this Menu of Supplier Charges compliance
with the Performance Levels set out in Sections 3 to 8 (both
inclusive) shall be measured separately by reference to each GSP Group
and not by reference to all GSP Groups.
3. PROVISION OF NON HALF HOURLY DATA - SERIAL 1
3.1 Proportion of energy settled on Annualised Advances: In relation to
each GSP Group, the percentage of total energy attributable to a
Supplier in respect of Non Half Hourly Metering Systems settled on the
basis of Annualised Advances for each Settlement Day shall be not less
than the percentage set out in the table below against the applicable
run of Settlement:-
<PAGE>
======================================================================
Run Performance Level
======================================================================
Stage 2 Initial Settlement Run 3%
----------------------------------------------------------------------
First Reconciliation Run 17%
----------------------------------------------------------------------
Second Reconciliation Run 43%
----------------------------------------------------------------------
Third Reconciliation Run 78%
----------------------------------------------------------------------
Final Reconciliation Run 97%
======================================================================
3.2 Determination of percentage of attributable energy:
3.2.1 For the purpose of this Section, the percentage of total
energy attributable to a Supplier settled on the basis of
Annualised Advances shall be calculated in accordance with
the following formula:-
[ A(HZ) ]
|---------------| x 100
[ A(HZ) + E(HZ) ]
where:-
A(HZ) means (SIGMA)N(AA) (SIGMA)j (C(HZNj) + CLOSS(HZNj)); and
E(HZ) means (SIGMA)N(EAC) (SIGMA)j ((CHZNj) + CLOSS(HZNj)).
3.2.2 For the purpose of paragraph 3.2.1, the following summations
shall bear the following respective meanings:-
(SIGMA)N(AA) means summed over all Consumption Component
Classes (N) that are associated with Annualised Advances
(being at the date of initial adoption of this Menu of
Supplier Charges Consumption Component Classes 18 and 21);
and
(SIGMA)N(EAC) means summed over all Consumption Component
Classes (N) that are associated with Estimated Annual
Consumptions and are not associated with Unmetered Supplies
(being at the date of initial adoption of this Menu of
Supplier Charges Consumption Component Classes 17 and 20).
3.2.3 For the purpose of paragraph 3.2.1, the relevant values
shall be those included in the relevant run of Settlement.
<PAGE>
3.3 Serial 1: The Performance Levels set out in the table in sub-section
3.1 are referred to elsewhere in this Menu of Supplier Charges as
Serial 1.
4. PROVISION OF HALF HOURLY DATA FOR 100KW PREMISES - SERIALS 2-5
4.1 Provision of data for Stage 2 Initial Settlement Run: In relation to
each GSP Group and in respect of Metering Systems at 100kW Premises
for which the Supplier is responsible, the Supplier shall ensure that
(in accordance with the relevant Agreed Procedure) in respect of each
month:-
4.1.1 actual or estimated values in respect of all Applicable
Settlement Periods are provided by its Half Hourly Data
Collector to its Half Hourly Data Aggregator (in sufficient
time to enable such Half Hourly Data Aggregator to provide
such data to the Initial Settlement and Reconciliation Agent
so as to enable the Initial Settlement and Reconciliation
Agent to include such data in the relative Stage 2 Initial
Settlement Run) and that such Half Hourly Data Aggregator
does so provide such values to the Initial Settlement and
Reconciliation Agent; and
4.1.2 actual (rather than estimated) values in respect of not less
than 98 per cent. of the total energy attributable to that
Supplier relating to such Metering Systems for the aggregate
of the Applicable Settlement Periods are provided by its
Half Hourly Data Aggregator to the Initial Settlement and
Reconciliation Agent in time for the relative Stage 2
Initial Settlement Run.
4.2 Provision of data for First Reconciliation Run: In relation to each
GSP Group and in respect of Metering Systems at 100kW Premises for
which the Supplier is responsible, the Supplier shall ensure that (in
accordance with the relevant Agreed Procedure) in respect of each
month:-
4.2.1 actual or estimated values in respect of all Applicable
Settlement Periods are provided by its Half Hourly Data
Collector to its Half Hourly Data Aggregator (in sufficient
time to enable such Half Hourly Data Aggregator to provide
such data to the Initial Settlement and Reconciliation Agent
so as to enable the Initial Settlement and Reconciliation
Agent to include such data in the relative First
Reconciliation Run) and that such Half Hourly Data
Aggregator does so provide such values to the Initial
Settlement and Reconciliation Agent; and
4.2.2 actual (rather than estimated) values in respect of not less
than 99 per cent. of total energy attributable to that
Supplier relating to such Metering Systems for the aggregate
of the Applicable Settlement Periods are provided by its
Half Hourly Data Aggregator to the Initial Settlement and
Reconciliation Agent in time for the relative First
Reconciliation Run.
<PAGE>
4.3 Determination of percentage of attributable energy:
4.3.1 For the purposes of paragraphs 4.1.2 and 4.2.2, the
percentage of total energy attributable to a Supplier
represented by actual values in respect of any month shall
be calculated in accordance with the following formula:-
[ A(HZ) ]
|---------------| x 100
[ A(HZ) + E(HZ) ]
where:-
A(HZ) means (SIGMA)m(d) (SIGMA)N(HHA) (SIGMA)j (C(HZNj) +
CLOSS(HZNj)); and
E(HZ) means (SIGMA)m(d) (SIGMA)N(HHE) (SIGMA)j (C(HZNj) +
CLOSS(HZNj)).
4.3.2 For the purpose of paragraph 4.3.1, the following summations
shall bear the following respective meanings:-
(SIGMA)m(d) means summed over all Applicable Settlement
Days;
(SIGMA)N(HHA) means summed over all Consumption Component
Classes (N) that are associated with actual values and with
half hourly data aggregation in relation to premises which
are 100kW Premises save those Consumption Component Classes
associated with Non-Pooled Generation and Non-Pooled
Generation line losses (being at the date of initial
adoption of this Menu of Supplier Charges Consumption
Component Classes 1, 2, 3, 4 and 5 adjusted as required for
the identification of values in relation to premises which
are 100kW Premises);
(SIGMA)N(HHE) means summed over all Consumption Component
Classes (N) that are associated with estimated values and
with half hourly data aggregation in relation to premises
which are 100kW Premises save those Consumption Component
Classes associated with Non-Pooled Generation and Non-Pooled
Generation line losses (being at the date of initial
adoption of this Menu of Supplier Charges Consumption
Component Classes 9, 10, 11, 12 and 13 adjusted as required
for the identification of values in relation to premises
which are 100kW Premises).
4.3.3 For the purpose of paragraph 4.3.1, the relevant values
shall be those included in the relevant Settlement Run.
4.4 Treatment of de-energised Metering Systems: In calculating the
Performance Levels set out in sub-sections 4.1 and 4.2, no account
shall be taken of any Metering System which is at the relevant time
de-energised for the purposes of Agreed Procedure AP502, unless a
<PAGE>
consumption value has in fact been provided to the Initial Settlement
and Reconciliation Agent for the relevant Settlement Run.
4.5 Application of Serials 2-5: If and for so long as the Performance
Assurance Board reasonably determines that it is not possible (using
information provided by the Stage 2 Settlement System) to determine
whether a particular Metering System relates to 100kW Premises, the
provisions of this Section 4 shall have no effect and Section 5 shall
instead have effect as if it were applicable to all Half Hourly
Metering Systems.
4.6 Meaning of Applicable Settlement Period and Applicable Settlement
Days: For the purposes of this Section and Section 11, in respect of
any month:-
4.6.1 an "Applicable Settlement Period" means a Settlement Period
in respect of which the relevant Settlement Run is carried
out in that month; and
4.6.2 an "Applicable Settlement Day" means a Settlement Day in
respect of which the relevant Settlement Run is carried out
in that month.
4.7 Serials 2-5: The Performance Levels set out in paragraphs 4.1.1,
4.1.2, 4.2.1 and 4.2.2 are referred to elsewhere in this Menu of
Supplier Charges as Serials 2, 3, 4 and 5 respectively.
5. PROVISION OF HALF HOURLY DATA FOR NON-100KW PREMISES - SERIALS 6 AND 7
5.1 Provision of data - non 100kW Premises: In relation to each GSP Group
and in respect of Half Hourly Metering Systems for which a Supplier is
responsible at premises which are not 100kW Premises, the Supplier
shall ensure that (in accordance with the relevant Agreed Procedure)
actual or estimated values in respect of all Applicable Settlement
Periods in respect of each month are provided by its Half Hourly Data
Collector to its Half Hourly Data Aggregator (in sufficient time to
enable such Half Hourly Data Aggregator to provide such data to the
Initial Settlement and Reconciliation Agent so as to enable the
Initial Settlement and Reconciliation Agent to include such data in
the relative Stage 2 Initial Settlement Run) and that such Half Hourly
Data Aggregator does so provide such values to the Initial Settlement
and Reconciliation Agent.
5.2 Provision of actual data - non 100kW Premises: In relation to each GSP
Group and in respect of Half Hourly Metering Systems at premises for
which a Supplier is responsible which are not 100kW Premises, the
Supplier shall ensure that (in accordance with the relevant Agreed
Procedure) in respect of each month actual (rather than estimated)
values in respect of not less than 99 per cent. of the total energy
attributable to that Supplier relating to such Metering Systems for
the aggregate of the Applicable Settlement Periods are provided by its
Half Hourly Data Aggregator to the Initial Settlement and
Reconciliation Agent in time for the relative Final Reconciliation
Run.
<PAGE>
5.3 Determination of percentage of attributable energy:
5.3.1 For the purpose of sub-section 5.2, the percentage of total
energy attributable to a Supplier represented by actual
values in respect of any month shall be calculated in
accordance with the following formula:-
[ A(HZ) ]
|---------------| x 100
[ A(HZ) + E(HZ) ]
where:-
A(HZ) means (SIGMA)m(d) (SIGMA)N(HHA) (SIGMA)j (C(HZNj) +
CLOSS(HZNj)); and
E(HZ) means (SIGMA)m(d) (SIGMA)N(HHE) (SIGMA)j (C(HZNj) +
CLOSS(HZNj)).
5.3.2 For the purpose of paragraph 5.3.1, the following summations
shall bear the following respective meanings:-
(SIGMA)m(d) means summed over all Applicable Settlement
Days;
(SIGMA)N(HHA) means summed over all Consumption Component
Classes (N) that are associated with actual values and with
half hourly data aggregation in relation to premises which
are not 100kW Premises save those Consumption Component
Classes associated with Non-Pooled Generation and Non-Pooled
Generation line losses (being at the date of initial
adoption of this Menu of Supplier Charges Consumption
Component Classes 1, 2, 3, 4 and 5 adjusted as required for
the identification of values in relation to premises which
are not 100kW Premises);
(SIGMA)N(HHE) means summed over all Consumption Component
Classes (N) that are associated with estimated values and
with half hourly data aggregation in relation to premises
which are not 100kW Premises save those Consumption
Component Classes associated with Non-Pooled Generation and
Non-Pooled Generation line losses (being at the date of
initial adoption of this Menu of Supplier Charges
Consumption Component Classes 9, 10, 11, 12 and 13 adjusted
as required for the identification of values in relation to
premises which are not 100kW Premises).
5.3.3 For the purpose of paragraph 5.3.1, the relevant values
shall be those included in the relevant Settlement Run.
5.4 Treatment of de-energised Metering Systems: In calculating the
Performance Levels set out in sub-sections 5.1 and 5.2, no account
shall be taken of any Metering System which is at the relevant time
de-energised for the purposes of Agreed Procedure AP502, unless a
<PAGE>
consumption value has in fact been provided to the Initial Settlement
and Reconciliation Agent for the relevant Settlement Run in respect of
that Metering System.
5.5 Meaning of Applicable Settlement Period and Applicable Settlement
Days: For the purposes of this Section and Section 12, in respect of
any month:-
5.5.1 an "Applicable Settlement Period" means a Settlement Period
in respect of which the relevant Settlement Run is carried
out in that month; and
5.5.2 an "Applicable Settlement Day" means a Settlement Day in
respect of which the relevant Settlement Run is carried out
in that month.
5.6 Serials 6 and 7: The Performance Levels set out in sub-sections 5.1
and 5.2 are referred to elsewhere in this Menu of Supplier Charges as
Serial 6 and Serial 7 respectively.
6. METER OPERATION - SERIAL 8
6.1 Metering faults (1): In respect of each month, not less than 95 per
cent. of material faults rectified in that month in relation to
Metering Equipment comprised in Non Half Hourly Metering Systems for
which a Supplier is responsible shall have been rectified within 5
clear working days after the date when the Meter Operator was first
notified of the relevant fault by the Supplier or the Supplier's Data
Collector in accordance with Service Line SL110.
6.2 Metering faults (2): In respect of each month, not less than 99 per
cent. of material faults rectified in that month in relation to
Metering Equipment comprised in Non Half Hourly Metering Systems for
which a Supplier is responsible shall have been rectified within 15
clear working days after the date when the Meter Operator was first
notified of the relevant fault by the Supplier or the Supplier's Data
Collector in accordance with Service Line SL110.
6.3 Metering faults (3): In respect of each month, not less than 95 per
cent. of material faults rectified in that month in relation to
Metering Equipment comprised in Half Hourly Metering Systems for which
a Supplier is responsible shall have been rectified within 5 clear
working days after the date when the Meter Operator was first notified
of the relevant fault by the Supplier or the Supplier's Data Collector
in accordance with Service Line SL110.
6.4 Metering faults (4): In respect of each month, not less than 99 per
cent. of material faults rectified in that month in relation to
Metering Equipment comprised in Half Hourly Metering Systems for which
a Supplier is responsible shall have been rectified within 15 clear
working days after the date when the Meter Operator was first notified
of the relevant fault by the Supplier or the Supplier's Data Collector
in accordance with Service Line SL110.
<PAGE>
6.5 Material faults: For the purpose of this Section, a "material fault"
in relation to particular Metering Equipment is one which, in the case
of Half Hourly Metering Equipment, causes the relevant Metering
Equipment to fail to record data in accordance with the relevant Code
of Practice and, in the case of Non Half Hourly Metering Equipment,
affects in any respect the quality of the data recorded by that
Metering Equipment.
6.6 Serial 8: The Performance Levels set out in this Section are referred
to elsewhere in this Menu of Supplier Charges as Serial 8.
7. INSTALLATION OF HALF HOURLY METERING - SERIAL 9
7.1 Mandatory half hourly metering for customers above 100kW: A Supplier
shall comply with the requirements of sub-section 8.1 of Schedule 28
in relation to the installation of Half Hourly Metering Equipment for
each Stage 2 Metering System at 100kW Premises for which it is
responsible.
7.2 Serial 9: The Performance Level set out in this Section is referred to
elsewhere in this Menu of Supplier Charges as Serial 9.
8. REPORTING BY SUPPLIERS - SERIALS 10 AND 11
8.1 Performance Monitoring Reports: A Supplier shall deliver, or procure
the delivery of, its Routine Performance Monitoring Report in respect
of each GSP Group to the Performance Assurance Board or as it may
direct, in accordance with the relevant Agreed Procedure, by not later
than 20 working days after the end of each month.
8.2 Performance Monitoring Logs: A Supplier shall update, or procure the
updating of, its Routine Performance Monitoring Log in respect of each
GSP Group in accordance with the relevant Agreed Procedure, by not
later than 20 working days after the end of each month and shall make
such updated logs available promptly on request from time to time to
the Performance Assurance Board or as it may direct.
8.3 Serials 10 and 11: The Performance Levels set out in sub-section 8.1
and sub-section 8.2 are referred to elsewhere in this Menu of Supplier
Charges as Serial 10 and Serial 11 respectively.
PART 3: CHARGES
9. APPLICATION OF CHARGES
9.1 General: This Part will have effect in determining the charges payable
by a Supplier in respect of any failure to comply with the Performance
Levels including the maximum
<PAGE>
amount payable by a Supplier under sub-section 16.1. The arrangements
for payment, collection and distribution of the charges are set out in
Schedule 31.
9.2 Charges cumulative: The charges specified in sub-sections 10.1, 11.1,
12.1 and in Sections 14 and 15 are cumulative and not mutually
exclusive one of the other.
10. FAILURE TO COMPLY WITH SERIAL 1
10.1 Failure to provide non half hourly data: A Supplier who fails to
comply with Serial 1 shall be liable to the charge set out in the
table below against the relevant item in Serial 1:-
================================================================================
Item in Serial 1 Amount per Chargeable MWh
(as referred to in the table
in sub-section 3.1)
================================================================================
Stage 2 Initial Settlement Run No Charge
- --------------------------------------------------------------------------------
First Reconciliation Run No Charge
- --------------------------------------------------------------------------------
Second Reconciliation Run No Charge
- --------------------------------------------------------------------------------
Third Reconciliation Run (pound)0.13
- --------------------------------------------------------------------------------
Final Reconciliation Run (pound)1.40
================================================================================
10.2 Determination of Chargeable MWh: For the purposes of sub-section 10.1,
the Chargeable MWh for a Supplier shall be calculated in respect of a
GSP Group for any month for each Settlement Day (if any), in relation
to which the relevant Settlement Run was carried out in that month, in
respect of which there has been a failure to comply with Serial 1, in
accordance with the following formula:-
P
SCMWh = NHHEA x ---
100
where:-
SCMWh is the Chargeable MWh attributable to that Supplier for the
relevant Settlement Day in respect of the relevant GSP
Group;
<PAGE>
NHHEA is the sum of A(HZ) and E(HZ) (expressed in MWh)
attributable to that Supplier in respect of such GSP Group
for such Settlement Day, as determined in accordance with
sub-section 3.2; and
p is the number of percentage points by which the Performance
Level in Serial 1 was not met by that Supplier in such GSP
Group in respect of such Settlement Day, rounded to 2
decimal places.
11. FAILURE TO COMPLY WITH SERIALS 2-5
11.1 Failure to provide half hourly data: A Supplier who fails to comply
with any of Serials 2 to 5 (both inclusive) shall be liable to the
charge set out in the table below against the relevant Serial:-
======================================================================
Serial Number Amount per Chargeable MWh
======================================================================
2 (pound)0.13
----------------------------------------------------------------------
3 (pound)0.13
----------------------------------------------------------------------
4 (pound)1.40
----------------------------------------------------------------------
5 (pound)1.40
======================================================================
11.2 Determination of Chargeable MWh: For the purposes of sub-section 11.1,
the Chargeable MWh for a Supplier shall be calculated in respect of a
GSP Group for any month in respect of which there has been a failure
to comply with any of Serials 2 to 5 (both inclusive) in accordance
with the following formula:-
P
SCMWh = HHEA x ---
100
where:-
SCMWh is the Chargeable MWh attributable to that Supplier for all
Applicable Settlement Periods in respect of the relevant GSP
Group;
HHEA is the sum of A(HZ) and E(HZ) (expressed in MWh)
attributable to that Supplier for such month in respect of
the relevant GSP Group for the relevant month, as determined
in accordance with sub-section 4.3; and
<PAGE>
p is the number of percentage points by which the relevant
Performance Level was not met by the Supplier in such GSP
Group in respect of such month, rounded to 2 decimal places.
11.3 Determination of percentage points: For the purposes of sub-section
11.2, the number of percentage points by which Serial 2 or (as the
case may be) Serial 4 was not met shall be calculated by reference to
the percentage of instances across all Applicable Settlement Periods
where actual or estimated values are expected but not received.
12. FAILURE TO COMPLY WITH SERIALS 6 AND 7
12.1 Failure to provide half hourly data - non 100kW Premises: A Supplier
who fails to comply with Serial 6 or Serial 7 shall be liable to the
charge set out in the table below against the relevant Serial:-
======================================================================
Serial Number Amount per Chargeable MWh
======================================================================
6 (pound)0.13
----------------------------------------------------------------------
7 (pound)1.40
======================================================================
12.2 Determination of Chargeable MWh: For the purposes of sub-section 12.2,
the Chargeable MWh for a Supplier shall be calculated in respect of a
GSP Group for any month in respect of which there has been a failure
to comply with Serial 6 or (as the case may be) Serial 7, in
accordance with the following formula:-
P
SCMWh = HHEA x ---
100
where:-
SCMWh is the Chargeable MWh attributable to that Supplier for the
Applicable Settlement Periods in the relevant month in
respect of the relevant GSP Group;
HHEA is the sum of A(HZ) and E(HZ) (expressed in MWh)
attributable to that Supplier in respect of the relevant GSP
Group for the relevant month, as determined in accordance
with sub-section 5.3; and
p is the number of percentage points by which the Performance
Level in Serial 6 or (as the case may be) Serial 7 was not
met by the Supplier in
<PAGE>
such GSP Group in respect of such month, rounded to the
nearest 2 decimal places.
12.3 Determination of percentage points: For the purpose of sub-section
12.2, the number of percentage points by which Serial 6 was not met
shall be calculated by reference to the percentage of instances across
all Applicable Settlement Periods when actual or estimated values are
expected but not received.
13. FAILURE TO COMPLY WITH SERIAL 8
A Supplier who fails to comply with Serial 8 shall not be liable to pay any
charges in respect of the failure.
14. FAILURE TO COMPLY WITH SERIAL 9
14.1 Failure to install half hourly metering: Subject to sub-section 14.2,
a Supplier who fails to comply with Serial 9 shall be liable, in
relation to each relevant Metering System, to a charge of (pound)80
per month during which the failure continues. If a failure continues
for less than a complete number of months, the charge will be adjusted
pro rata. For the purposes of this section, a month shall be measured
from the start of the failure until the equivalent date in the next
following month or months.
14.2 Liability for charges: A Supplier shall not be liable to a charge in
accordance with sub-section 14.1 in respect of any failure to install
Half Hourly Metering Equipment during the three months following the
date on which any premises (not being 100kW Premises) to which that
Metering Equipment relates first become 100kW Premises.
15. FAILURE TO COMPLY WITH SERIAL 10 AND SERIAL 11
15.1 Provision of reports: Subject to sub-section 15.2, a Supplier who
fails to comply with Serial 10 or (as the case may be) Serial 11 shall
be liable to a charge of (pound)25 per working day in respect of each
Routine Performance Monitoring Report which is not provided or, as the
case may be, each Routine Performance Monitoring Log which is not
maintained in accordance with the time limits and in the manner
specified in Serial 10 and Serial 11 respectively.
15.2 Amendments to requirements: A Supplier shall not be liable in respect
of any failure to comply with either Serial 10 or (as the case may be)
Serial 11 which shall occur during the three months following the date
on which the Agreed Procedure specifying reporting requirements for
the Routine Performance Monitoring Reports and Routine Performance
Monitoring Logs is first adopted by the Executive Committee, to the
extent that compliance with the Agreed Procedure will result in the
Supplier or any of its Supplier Agents being required to make any
material modification to its or their respective systems.
<PAGE>
16. CHARGE CAP
16.1 Adjustment to charges as a result of the Supplier's Monthly Cap: A
Supplier's liability to pay charges in respect of any month in respect
of a GSP Group (after taking account of its share of such charges
receivable pursuant to sub-section 5.12 of Schedule 31) shall in no
circumstances exceed the Supplier's Monthly Cap.
16.2 Calculation of Supplier's Monthly Cap: A Supplier's Monthly Cap for
any month in respect of a GSP Group shall be calculated by the
Performance Assurance Board on or before the end of the next
succeeding month (on the basis of the then latest available run of
Settlement) according to the following formula:-
[ ST(DT) ]
S(C) = GSP(MC) X |---------|
[ GSP(DT) ]
where:-
S(C) means the Supplier's Monthly Cap for the relevant month;
GSP(MC) means the GSP Group liability cap for the relevant month,
calculated in accordance with sub-section 16.3;
ST(DT) means the total quantity of energy attributable to that
Supplier determined as the sum of Supplier Deemed Take for
that Supplier in the relevant GSP Group across all
Settlement Periods in the relevant month; and
GSP(DT) means the total quantity of energy attributable to all
Suppliers determined as the GSP Group Take in the relevant
GSP Group across all Settlement Periods for the relevant
month.
16.3 Calculation of GSP Group liability cap: The GSP Group liability cap in
respect of a GSP Group for any month shall be calculated by the
Performance Assurance Board on or before the end of the month in which
the first GSP Group Implementation Date occurs and thereafter on or
before 30th April in each year (in each case, on the basis of the then
latest available run of Settlement) according to the following
formula:-
[ GSP(A) ]
GSPMC = (pound)1,250,000 x |---------|
[ GSP(AS) ]
where:-
GSP(MC) means the GSP Group liability cap for the relevant month;
<PAGE>
GSP(A) means the total quantity of energy (rounded to the nearest
two decimal places) attributable to all Suppliers determined
as the GSP Group Take in that GSP Group across all
Settlement Periods in the 12 month period ending on the
first day of the month in which the first GSP Group
Implementation Date occurs and thereafter in each successive
12 month period ending on the immediately preceding 31st
March, in each case as determined by the Performance
Assurance Board on the basis of information provided by the
Initial Settlement and Reconciliation Agent; and
GSP(AS) means the total quantity of energy (rounded to the nearest
two decimal places) attributable to all Suppliers determined
as the sum of all GSP Group Takes for all GSP Groups across
all Settlement Periods in the 12 month period ending on the
first day of the month in which the first GSP Group
Implementation Date occurs and thereafter in each successive
12 month period ending on the immediately preceding 31st
March, in each case as determined by the Performance
Assurance Board on the basis of information provided by the
Initial Settlement and Reconciliation Agent.
16.4 Transitional provisions: The Performance Assurance Board shall, in its
discretion, establish reasonable transitional arrangements (by
reference to information available to it from the Settlement System
Administrator) for determining the quantity of energy attributable to
all Suppliers for the purposes of sub-section 16.3 in relation to any
12 month period for which information as to the GSP Group Take is not
available in respect of each month in that period.
17. ADJUSTMENT TO CHARGES AND CAPS
Adjustment to charges: The charges specified in sub-sections 10.1, 11.1 and 12.1
and in Sections 14 and 15 and the figure of (pound)1,250,000 in sub-section 16.3
(for the purposes of this sub-section in each case described as the "Base Sum"),
shall be calculated, in respect of each 12 month period beginning on 1st April,
from and including 1st April, 1999, in accordance with the following formula:-
adjusted Base Sum = Base Sum x [1+ RPI(p)/100]
where RPIP is the percentage change (whether of a positive or negative value) in
the Retail Price Index between that published in, or (as the case may be) the
substitute index for, the third month before 1st April, 1998 and that published
in, or the substitute index for, the third month before the anniversary from
which the adjusted charges and the adjusted GSP Group liability cap are to take
effect.
<PAGE>
PART 4: TIMING OF COMMENCEMENT OF CHARGES
18. COMMENCEMENT OF CHARGES
18.1 Serial 1: The charges specified in sub-section 10.1 shall not be
payable by any Supplier in respect of any GSP Group in respect of any
Settlement Run carried out before the date which is fifteen weeks
after the GSP Group Implementation Date for that GSP Group.
18.2 Serials 2-7: The charges specified in sub-sections 11.1 and 12.1 shall
not be payable by any Supplier in respect of any GSP Group in respect
of any Settlement Run carried out before the later of (a) the date
which is fifteen weeks after the GSP Group Implementation Date for
that GSP Group and (b) the GSP Group Migration Date for that GSP
Group.
18.3 Serials 9-11: The charges specified in Sections 14 and 15 shall,
subject to Section 19, commence and become effective in relation to a
Supplier in respect of a GSP Group on and from the GSP Group
Implementation Date for that GSP Group.
19. DELAYS IN CENTRAL MONITORING SYSTEM
19.1 Non-availability of Performance Assurance Reporting and Monitoring
System: Each of the Pool Members acknowledges and confirms that those
charges specified in sub-sections 10.1, 11.1 and 12.1 and in Sections
14 and 15 which cannot be separately determined by the Performance
Assurance Board without the assistance of the Performance Assurance
Reporting and Monitoring System shall not be payable in respect of a
Supplier until such time as the Performance Assurance Reporting and
Monitoring System is available in order to record data and determine
the charges payable by Suppliers pursuant to this Menu of Supplier
Charges (as determined by the Executive Committee having regard to the
views of the Performance Assurance Board). Such charges shall
nevertheless continue to accrue for the purposes of sub-section 19.2.
19.2 Commencement of payment of charges: Once the Performance Assurance
Reporting and Monitoring System is available (as determined by the
Executive Committee in accordance with sub-section 19.1), a Supplier
shall be liable to pay charges in respect of its performance against
those Serials in respect of which the Performance Assurance Board
could not determine the payment of such charges without the assistance
of the Performance Assurance Reporting and Monitoring System, for the
period from the relevant dates specified in Section 18. Such charges
shall be calculated in accordance with this Menu of Supplier Charges
and Schedule 31 (and shall have deemed due dates for payment for the
purposes of Schedule 31 as if such Performance Assurance Reporting and
Monitoring System had been available by the latest of the dates
specified in Section 18).
<PAGE>
PART 5: REVIEW
20. REVIEW
20.1 Review: The Performance Assurance Board shall undertake a review of
Suppliers' general level of performance, after the relative GSP Group
Migration Dates, against Serial 5 and Serial 7 and shall provide a
report to Pool Members on the results of its review. Such review shall
begin no later than six months after the first GSP Group Migration
Date and shall be concluded no later than twelve months after that GSP
Group Migration Date. If Pool Members consider that Serial 5 or Serial
7 should be amended as a result of the Performance Assurance Board's
report, then Pool Members undertake to negotiate in good faith with
each other with a view to agreeing to adjusted Performance Levels for
Serial 5 or Serial 7, as the case may be, by the adoption of an
amendment to this Menu of Supplier Charges.
20.2 Review of Serial 10 and Serial 11: The Performance Assurance Board
shall undertake a review of Serial 10 and Serial 11 by 15th August,
1998 (or by such later date as the Executive Committee considers
appropriate having regard to the views of the Performance Assurance
Board) and shall provide Pool Members with a report on the results of
its review. If Pool Members determine that Serial 10 or Serial 11
should be amended as a result of the Performance Assurance Board's
report, then Pool Members undertake to negotiate in good faith with
each other with a view to agreeing to adjusted Performance Levels for
Serial 10 or Serial 11, as the case may be, by the adoption of an
amendment to this Menu of Supplier Charges.
<PAGE>
SCHEDULE 27
PES Responsibilities
1. INTERPRETATION
Interpretation: In this Schedule, unless the context otherwise requires,
references to a particular Section, sub-section or paragraph shall be a
reference to that Section, sub-section or paragraph of this Schedule.
2. INTRODUCTION
General: The provisions of this Schedule shall have effect with respect to the
provision of services by PESs as Meter Operators, Data Collectors and Data
Aggregators, the provision by PESs of Line Loss Factors and other information
and the performance by PESs of certain other additional responsibilities.
3. METERING, DATA COLLECTION AND DATA AGGREGATION SERVICES
Provision of services: In relation to each Non Half Hourly Metering System
registered in its PES Registration Service, a PES shall provide services to
Suppliers as Meter Operator, Data Collector and Data Aggregator until at least
31st March, 2000.
4. LINE LOSS FACTORS
PES to send Line Loss Factors: Each Host PES shall send the appropriate data
relating to Line Loss Factors and Line Loss Factor coefficients to such person
and in such manner as is specified in, and otherwise in accordance with, the
relevant Agreed Procedures.
5. NOTIFICATION IN RELATION TO SEALS
Notification of breaking and remaking of seals: Each Host PES shall, with
respect to a Half Hourly Metering System in relation to which data is required
to be submitted for Settlement before the Stage 2 Initial Settlement Run, notify
the relevant Supplier registered in its PES Registration Service if any seal
relating to that Metering System has been, or is likely to be, broken by that
PES for more than 24 hours or which is, or is due to be, remade, in all cases as
soon as is reasonably practicable (including, if reasonably practicable, before
breaking or remaking such seal), stating, in the case of notification of a
breaking of a seal, the reason for breaking such seal.
6. DATA TRANSFER
PES to comply with Data Catalogue: Each Host PES shall send data relating to
Stage 2 Settlement, which it is required to provide pursuant to this Schedule,
in accordance with the Data
<PAGE>
Catalogue and, where applicable, the Data Interfaces. Transfers of such data to
the Initial Settlement and Reconciliation Agent, together with transfers of data
from the Initial Settlement Reconciliation Agent, shall be made (except to the
extent otherwise specified by the Executive Committee) by means of the Managed
Data Network or by such alternative method or methods of data transfer agreed by
the Executive Committee for the purposes of transferring data to and from
Parties, Pool Agents and Supplier Agents.
<PAGE>
SCHEDULE 28
Stage 2 Metering
PART 1: INTRODUCTION
1. INTERPRETATION
1.1 Interpretation: In this Schedule, unless the context otherwise
requires, references to a particular Part, Section, sub-section or
paragraph shall be a reference to that Part, Section, sub-section or
paragraph of this Schedule.
1.2 Limitation: The provisions of sub-sections 2.3 and 6.2, Section 10 and
Sections 19 to 26 (inclusive) and (but only insofar as concerns access
to information and data) Section 18 shall only apply to, and in
respect of, Half Hourly Meters and Non Half Hourly Meters which, in
either case, are not at Designated Premises and all visiting, access,
inspection, testing and similar rights in such provisions shall be
read and construed accordingly.
2. INTRODUCTION
2.1 General:
2.1.1 This Schedule 28 sets out the rights and obligations of each
Party regarding the accurate measurement using Stage 2
Metering Systems of electricity traded under this Agreement.
2.1.2 Part XV of this Agreement and Schedule 21 set out the rights
and obligations of each Party regarding the accurate
measurement using Stage 1 Metering Equipment of electricity
traded under this Agreement.
2.2 Requirements for Metering Equipment: For the purposes of this
Agreement the quantities of Active Energy and, where relevant,
Reactive Energy Exported or Imported by Parties and in respect of
which Settlement takes place within Stage 2 Settlement shall be
measured and recorded through Metering Equipment installed, operated
and maintained and otherwise provided for as set out in this Schedule
28 provided that there shall be no obligation to measure and record
Active Energy or Reactive Energy through Metering Equipment in respect
of any site relating to an Unmetered Supply.
2.3 Technical assurance: The Performance Assurance Board shall make
arrangements for spot visits to metering sites by suitably qualified
inspectors in order to monitor compliance by Suppliers of their
obligations under this Schedule 28, relevant Code(s) of Practice,
relevant Supplier Service Lines and relevant Agreed Procedures.
Subject to the foregoing sentence, the metering sites chosen for, and
the conduct of, such technical assurance shall be determined by the
Performance Assurance Board in its absolute
<PAGE>
discretion. Each Supplier will provide the Performance Assurance Board
with such records, data and other information as is set out or
referred to in the relevant Agreed Procedure in order for the
Performance Assurance Board to carry out any such technical assurance
and each of the Parties agrees to the release of all such records,
data and other information in the circumstances described in this
sub-section 2.3.
PART 2: METERING AND COMMUNICATIONS EQUIPMENT
3. GENERAL OBLIGATION
3.1 General compliance: Each Supplier shall ensure that each Stage 2
Metering System at each Site for which it is the Supplier complies
with the provisions of this Schedule 28 and meets at the commercial
boundary at such Site the levels of accuracy referred to in
sub-section 5.1 or 5.2 (as the case may be) and is as close as is
reasonably practicable to that commercial boundary taking into account
relevant financial considerations provided that a Supplier shall not
be required pursuant to this sub-section 3.1 to move the location of
any Stage 2 Metering System which has been installed before the 1998
Operational Date.
3.2 Assistance from the Equipment Owner: To the extent that the required
levels of accuracy referred to in sub-section 3.1 depend upon
associated current and voltage transformers which are not in the
ownership or control of the relevant Supplier, the Supplier shall use
all reasonable endeavours to obtain the agreement of the relevant
Equipment Owner to assist the Supplier (and an Equipment Owner which
is a Party shall be required to provide reasonable assistance to the
Supplier) in complying with the Supplier's obligations under
sub-section 3.1 by the maintenance and repair of such current and
voltage transformers in accordance with the provisions of this
Schedule provided that this sub-section 3.2 shall be without prejudice
to any right of an Equipment Owner to charge for the same and provided
further that an Equipment Owner shall not be required by this
sub-section 3.2 to take steps which would cause it to be in breach of
its obligations under the Act, its Licence, the Grid Code or any
Distribution Code.
4. DESCRIPTION OF METERING EQUIPMENT
Half Hourly Metering Equipment comprising a Stage 2 Metering System and its
component parts shall comply, as a minimum, with the requirements referred to or
set out in any relevant Code of Practice or shall be the subject of, and comply
with, a dispensation agreed in accordance with Section 14.
5. ACCURACY OF METERING EQUIPMENT
5.1 Non-Half Hourly Metering Equipment: Non-Half Hourly Metering Equipment
comprising a Stage 2 Metering System shall be accurate within the
prescribed limits referred to or set out in any relevant Code of
Practice or, if no Code of Practice applies, the prescribed limits
under Schedule 7 of the Act.
<PAGE>
5.2 Half-Hourly Metering Equipment: Half Hourly Metering Equipment
comprising a Stage 2 Metering System shall be accurate within the
prescribed limits for such Metering Equipment referred to or set out
in any relevant Code of Practice except only in the case where such
Metering Equipment is the subject of, and complies with, a
dispensation relevant to those prescribed limits agreed in accordance
with Section 14.
5.3 Accuracy limits generally: The accuracy limits referred to in any
relevant Code of Practice for Metering Equipment comprising a Stage 2
Metering System shall be applied after adjustments have been made to
such Metering Equipment to compensate, where applicable, for any
errors due to measuring transformers and connections thereto. Beyond
the ranges specified in the relevant Code of Practice and power
factors other than unity or zero (as the case may be) limits of
accuracy will depend on the characteristics of the individual meters
and measuring transformers specified for such Metering Equipment. Such
levels of accuracy will, in the event of any uncertainty or dispute,
be specified by the Executive Committee provided that Metering
Equipment which has already been installed shall not be required to
comply with any such levels of accuracy specified by the Executive
Committee after the date of its installation but only with the
specified levels of accuracy (if any) current at such date.
6. CALIBRATION OF METERING EQUIPMENT
6.1 Calibration of Metering Equipment: Each Supplier shall ensure that all
Metering Equipment comprising a Stage 2 Metering System and for which
such Supplier is responsible shall be calibrated in order to meet the
accuracy requirements referred to in sub-section 5.1 or 5.2 (as the
case may be) and otherwise in accordance with the relevant Code of
Practice or, where appropriate, any relevant dispensation agreed in
accordance with Section 14.
6.2 Access rights: Subject to Sections 18 to 27 (inclusive), the Supplier
shall use all reasonable endeavours to ensure that the Executive
Committee or its representative and the Pool Auditor are granted
access to all such Metering Equipment and any other Plant or Apparatus
associated with the Stage 2 Metering System in order to inspect the
basis of any adjustments made to such Metering Equipment.
7. CLASS RIGHTS
7.1 Class rights applicable to Codes of Practice: The Codes of Practice
applicable to Metering Equipment comprising a Stage 2 Metering System
shall be specified by the Executive Committee subject to the consent
of any relevant class of Pool Members.
7.2 Changes to accuracy standards a class right: Any change to the
standards of accuracy of Metering Equipment for Stage 2 Metering
Systems shall be a change to the class rights of Suppliers.
<PAGE>
PART 3: INSTALLATION AND MAINTENANCE OF METERING EQUIPMENT
8. INSTALLATION OF METERING
8.1 Mandatory half hourly metering for customers above 100kW: In respect
of each Stage 2 Metering System at 100kW Premises in relation to which
it is registered in a PES Registration Service, a Supplier shall use
all reasonable endeavours to install no later than the date of such
registration Half Hourly Metering Equipment (if the same has not
already been installed) in accordance with the relevant Code of
Practice provided that there shall be no obligation to install such
Metering Equipment in respect of any site relating to an Unmetered
Supply.
8.2 Charges: Without prejudice to any other right of other Pool Members, a
Supplier who fails to comply with sub-section 8.1 shall be liable to a
charge to be determined in accordance with Schedule 26 and the Menu of
Supplier Charges and to be payable in accordance with Schedule 31.
8.3 Installation of mandatory half hourly metering for Non-Pooled
Generators: In respect of each Stage 2 Metering System at a Site
relating to Non-Pooled Generation in relation to which it is
registered in a PES Registration Service, a Supplier shall use all
reasonable endeavours after the relevant GSP Group Implementation Date
to install Half Hourly Metering Equipment in accordance with the
relevant Code of Practice. With effect from the date of installation
of such Metering Equipment, the relevant Supplier shall submit the
appropriate data in relation to that Stage 2 Metering System to the
ISR Agent:-
8.3.1 in the case of Non-Pooled Generation greater than 100kW,
before the Stage 2 Initial Settlement Run in accordance with
Agreed Procedure AP01 Overview of Settlement Process; and
8.3.2 in any other case, in accordance with the relevant Agreed
Procedure.
8.4 Installation of metering for customers of 100kW or less: In respect of
each Stage 2 Metering System at premises other than 100kW Premises in
relation to which it is registered in a PES Registration Service, a
Supplier shall use all reasonable endeavours after the relevant GSP
Group Implementation Date to install (if not already installed) Half
Hourly Metering Equipment in accordance with the relevant Code of
Practice or (as the case may be) Non Half Hourly Metering Equipment
provided that there shall be no obligation to install such Metering
Equipment in respect of sites relating to Unmetered Supplies.
8.5 Commissioning of Metering Systems: Each Supplier shall ensure that
each Stage 2 Metering System in relation to which it is registered in
a PES Registration Service shall be commissioned in accordance with
the relevant Code of Practice (if any).
<PAGE>
9. PROPER ORDER
Each Supplier shall at its own cost and expense (but without prejudice to its
right to charge any other person for such service pursuant to another agreement
or arrangement) ensure that Metering Equipment comprising a Stage 2 Metering
System in respect of which that Supplier is registered in the PES Registration
Service as the Supplier is kept in good working order, repair and condition to
the extent necessary to allow the correct registration, recording and
transmission of the requisite details of the quantity of Active Energy and/or
Reactive Energy measured by the relevant Stage 2 Metering System.
10. TESTING AND INSPECTION
10.1 Testing: Not less frequently than such period as may be specified in
the relevant Code of Practice or as may be required by law, each
Supplier shall ensure that routine testing is carried out of the
accuracy of all Metering Equipment comprising a Stage 2 Metering
System in respect of which that Supplier is registered in the PES
Registration Service as the Supplier. The Supplier shall also ensure
that a test of the accuracy of all such Metering Equipment which
replaces defective or inaccurate Metering Equipment is carried out as
soon as is reasonably practicable after its installation. If so
required by the Executive Committee, a Supplier shall give the
Executive Committee such notice as the Executive Committee may
reasonably require of the date, time, place and nature of every such
test (or such of them as the Executive Committee may stipulate) and
the Executive Committee or its representative shall have the right to
attend such test. Any such test as envisaged in this sub-section 10.1
shall comply with the relevant Code of Practice.
10.2 Inspection: If either:-
10.2.1 the Executive Committee has reason to believe that Metering
Equipment comprising a Stage 2 Metering System is not
performing within the prescribed limits of accuracy referred
to in sub-section 5.1 or 5.2, as the case may be; or
10.2.2 the Supplier registered in the PES Registration Service as
the Supplier in respect of such Metering System or any other
Supplier has reason to believe there is any such failure to
so perform,
then, in the case of paragraph 10.2.2, such Supplier or such other
Supplier shall notify the Executive Committee and shall notify the PES
if such notification is required to enable the PES to operate, or
calculate charges for the use of, the Distribution System owned or
operated by that PES and, in any such case, the Executive Committee:-
(i) may arrange for the inspection of such Metering Equipment
within a reasonable time and make such tests as the
Executive Committee shall deem necessary to determine its
accuracy and the Supplier shall co-operate with the
Executive Committee in carrying out such tests; or
<PAGE>
(ii) may require the relevant Supplier to test the accuracy of
the same but in any event within a reasonable time of
receiving notification of such requirement pursuant to this
sub-section 10.2, whereupon the relevant Supplier shall
carry out such test. Such test shall comply with the
relevant Code of Practice and shall take place in the
presence of the Executive Committee or its representative,
if the Executive Committee so requires.
Further, if a Supplier has reason to believe that the Metering
Equipment comprising a Stage 2 Metering System is incorrectly
recording data for any reason, it shall promptly notify the Executive
Committee and take such further action as may be required by the
relevant Agreed Procedure.
10.3 Recovery of costs for non-routine testing (1): Subject to sub-section
10.4, the costs of any such test referred to in sub-sections 10.1 and
10.2 shall be borne by the Supplier responsible for ensuring the
maintenance of the relevant Metering Equipment (but without prejudice
to its right to charge any other person for such service pursuant to
another agreement or arrangement), save that the Executive Committee
shall bear the costs of its nominee's attendance thereat (subject to
its right to recover the same through its charges).
10.4 Recovery of costs for non-routine testing (2): Where any Metering
Equipment comprising a Stage 2 Metering System passes all inspections
and tests required pursuant to sub-section 10.2, the costs of such
inspections and tests shall, in the case of paragraph 10.2.1, be borne
by the Executive Committee (subject to its right to recover the same
through its charges) and, in the case of paragraph 10.2.2 where a test
is required by another Supplier, be borne by such other Supplier which
shall reimburse the Supplier responsible for ensuring the maintenance
of the relevant Metering Equipment its costs on demand.
10.5 Metering Failure: If at any time any Metering Equipment comprising a
Stage 2 Metering System ceases to function or is found to be outside
the prescribed limits of accuracy referred to in sub-section 5.1 or
5.2 (as the case may be) for whatever reason then:-
10.5.1 in the case of such Metering Equipment ceasing to function,
during the period from the date of such cessation; or
10.5.2 in any other case, during the period from the time when such
inaccuracy first occurred or, if such time is unknown, from
the midnight preceding the day during which the disputed
reading occurred,
until, in either such case, the date of adjustment, replacement,
repair or renewal of such Metering Equipment under Section 12, the
meter readings shall be deemed to be those calculated pursuant to the
relevant Agreed Procedure.
<PAGE>
11. SEALING AND SECURITY
11.1 Sealing: Metering Equipment comprising a Stage 2 Metering System shall
be sealed and resealed in accordance with Good Industry Practice. This
obligation shall be in addition to any notification requirement
regarding sealing and breaking of seals set out in Section 5 of
Schedule 27.
11.2 Security: Metering Equipment comprising a Stage 2 Metering System
shall be as secure as is practicable in all the circumstances and for
this purpose:-
(i) all such Metering Equipment shall comply with the relevant
Agreed Procedure; and
(ii) the Executive Committee shall regularly review Agreed
Procedures for security arrangements in relation to such
Metering Equipment.
12. DEFECTIVE METERING EQUIPMENT
12.1 Supplier to repair defective metering equipment: If at any time any
Metering Equipment comprising a Stage 2 Metering System or any part
thereof is destroyed or damaged or otherwise ceases to function, or is
found to be outside the prescribed limits of accuracy referred to in
sub-section 5.1 or 5.2, as the case may be, the Supplier responsible
for ensuring the maintenance of such Metering Equipment shall, subject
to compliance with its obligations under Section 11, ensure that the
Meter Operator appointed in respect of such Metering Equipment
promptly adjusts, renews or repairs the same or replaces any defective
component so as to ensure that such Metering Equipment is back in
service and operating within the prescribed limits of accuracy as
quickly as is reasonably practicable in all the circumstances.
12.2 Executive Committee to act in default: If a Supplier cannot or does
not comply with its obligations to ensure the adjustment, renewal or
repair of Metering Equipment comprising a Stage 2 Metering System or
the replacement of any defective component pursuant to sub-section
12.1, the Executive Committee may make arrangements to carry out such
adjustment, renewal, repair or replacement. The Executive Committee
shall have the right to recover its own costs and expenses in
connection therewith from such Supplier forthwith on demand. The
Supplier shall promptly inform the Executive Committee of the reasons
why it has been unable to comply with its obligations under
sub-section 12.1.
<PAGE>
PART 4: CODES OF PRACTICE AND DISPENSATIONS
13. CODES OF PRACTICE
13.1 Relevant Code of Practice: Subject to sub-section 13.2 and (as
appropriate) to sub-section 13.2 of Schedule 21, the relevant Code of
Practice in respect of Metering Equipment shall be determined by
reference to the version of the Code of Practice which is expressed to
be applicable to that Metering Equipment at the time that the Metering
System comprised therein is first registered with the Settlement
System Administrator or (as the case may be) in a PES Registration
Service, and such Metering Equipment shall only be required to comply
with such Code of Practice, and not with any Code of Practice which in
any respect later amends, modifies or supersedes such Code of
Practice, and references to the relevant Code of Practice in this
Schedule shall be construed accordingly.
13.2 Dispensations: If a dispensation has been granted in respect of
Metering Equipment or a Metering System pursuant to Section 14 of
Schedule 21 and the Metering System is subsequently registered in a
PES Registration Service, such dispensation shall continue in full
force and effect in accordance with its terms and the requirement for
such Metering Equipment to comply with a particular Code of Practice
shall be modified accordingly for so long as the relevant dispensation
applies.
13.3 Record of Codes of Practice: The Executive Committee shall record in
the Synopsis of Metering Codes each Code of Practice and the date at
which that Code becomes effective as the relevant Code of Practice in
respect of Metering Equipment comprising a Stage 2 Metering System.
14. DISPENSATIONS
14.1 Application for dispensation: If for financial reasons or reasons of
practicality a Stage 2 Metering System to which a Code of Practice
applies does not comply with some or all of the requirements of that
Code of Practice or the requirements in relation to the commercial
boundary of sub-section 3.1, the Supplier registered in the PES
Registration Service as the Supplier in respect of that Stage 2
Metering System may make an application to the Executive Committee for
a dispensation from such requirements. The Executive Committee shall
consider and agree, on such conditions (if any) as it shall deem fit,
or dismiss such application in accordance with the relevant Agreed
Procedure and this Section 14.
14.2 Stage 2 Generic Dispensations: The Executive Committee shall have the
right to agree from time to time, in accordance with the relevant
Agreed Procedure, dispensations from the requirements referred to in
sub-section 14.1, on such conditions (if any) as it shall deem fit,
attaching generally to any item of Metering Equipment comprising a
Stage 2 Metering System ("Stage 2 Generic Dispensations"). Stage 2
Generic Dispensations may
<PAGE>
be agreed upon the application of a Party or be initiated by the
Executive Committee at its discretion.
14.3 Granting of dispensations: Before agreeing any dispensation (including
any Stage 2 Generic Dispensation) from a Code of Practice, the
Executive Committee shall be obliged to seek and to obtain the
approval and agreement of those Parties whose approval and agreement
is required in accordance with the definition of Code of Practice in
respect of an amendment to or substitution of the Code(s) of Practice
from which a dispensation is sought.
14.4 Approval of Suppliers: Where, in accordance with sub-section 14.3, the
amendment of the relevant Code of Practice would require the approval
of the Suppliers in separate general meeting such approval shall be
deemed to be given by a resolution of the Executive Committee to agree
the relevant dispensation, save where any representative of any
Supplier elects, upon that resolution, to refer the matter to a
separate general meeting of Suppliers in which case such meeting shall
be convened and held in accordance with the provisions of Clause 13.2,
and shall determine by resolution whether or not the approval and
agreement of Suppliers to that dispensation be given.
14.5 Record of dispensations: The Executive Committee shall maintain an
up-to-date record of all dispensations agreed pursuant to this Section
14.
14.6 Existing dispensations: Any dispensation granted by the Executive
Committee which applies to a Stage 1 Metering System immediately prior
to its becoming a Stage 2 Metering System shall continue to apply to
that Metering System after it has become a Stage 2 Metering System on
the same terms and conditions as were applicable when it was a Stage 1
Metering System.
14.7 Appeals: Any dispensation from the requirements of a Code of Practice
or from the requirements relating to the physical position of a meter
referred to in sub-section 3.1 agreed in accordance with this Section
14 shall be capable of being appealed in accordance with the
provisions of sub-section 15.2, provided that no dispensation shall be
considered to be agreed in accordance with this Section 14 upon any
appeal being granted where the approval and agreement of the relevant
Parties as referred to in sub-section 14.4 has not been obtained.
PART 5: DISPUTES
15. DISPUTES
15.1 Disputes over accuracy of data: Any dispute regarding the accuracy of
data recorded or transmitted by Metering Equipment comprising a Stage
2 Metering System in respect of any Settlement Day which is to be used
for the purposes of Settlement and where the purpose of the resolution
of such dispute is solely to affect payments arising from a
<PAGE>
Settlement Run shall, if there is a relevant Agreed Procedure, be
dealt with in accordance with such Agreed Procedure. If, having
exhausted such Agreed Procedure any Party is not satisfied with the
outcome, such Party may refer the matter to the Executive Committee.
If there shall be no relevant Agreed Procedure, such dispute shall be
referred to the Executive Committee. If, in either case, any Party is
not satisfied with the decision of the Executive Committee, the matter
may be referred by such Party to arbitration in accordance with Clause
83.
15.2 Other metering equipment disputes: Any dispute regarding Metering
Equipment comprising a Stage 2 Metering System (other than a dispute
referred to in sub-section 15.1) shall be referred to the Executive
Committee. If any Party is not satisfied with the decision of the
Executive Committee, the matter may be referred by such Party to
arbitration in accordance with Clause 83.
15.3 Other claims not prejudiced: It is hereby expressly acknowledged and
agreed by the Parties that the resolution of any dispute referred to
in sub-section 15.1 or 15.2 shall in all cases be without prejudice to
the bringing or pursuing of any claim, by or against, or the resolving
of any issue between any one or more of such Parties or any other
Party arising out of the same facts or circumstances, or facts or
circumstances incidental to the facts and circumstances giving rise to
such dispute, or upon the basis of which such dispute has been
resolved, in favour of, or against, a Supplier.
15.4 Submission of data: Upon the request of any Party which is a party to
a dispute referred to in sub-section 15.1 or 15.2, any relevant data
derived from Metering Equipment comprising a Stage 2 Metering System
shall be submitted by the Supplier (and may be submitted by the
Executive Committee) to the body then having jurisdiction in respect
of the relevant dispute for the purposes of resolving such dispute.
16. TESTS TO DETERMINE DISPUTES
16.1 Conduct of tests: Any testing of Metering Equipment comprising a Stage
2 Metering System required to settle any dispute in connection with
Stage 2 Settlement will, prima facie, be carried out by the relevant
Supplier on the relevant Metering Equipment mounted in its operational
position in the presence (if the Executive Committee so requires) of
the Executive Committee or its representative and, if the outcome of
the testing is likely to affect the operation of, or the calculation
of charges for the use of, a Distribution System, in the presence of
the PES which owns or operates that Distribution System. All testing
will be carried out in accordance with the relevant Code of Practice
or, where applicable, any relevant dispensation agreed in accordance
with this Schedule 28. The test performance of any Metering Equipment
shall be compared with calibrated test equipment by one of the
following methods:-
(a) injecting into the measuring circuits (i.e. excluding the
primary current and voltage transformers) and comparing the
readings or records over such period as
<PAGE>
may be required by the relevant Code of Practice or, where
applicable, any relevant dispensation agreed in accordance
with this Schedule 28 to ensure a reliable comparison; or
(b) where practicable, operating the calibrated test equipment
from the same primary current and voltage transformers as
the Metering Equipment under operating conditions. The
readings or recordings of the Metering Equipment and the
calibrated test equipment shall be compared over such period
as may be required by the relevant Code of Practice or,
where applicable, any relevant dispensation agreed in
accordance with this Schedule 28; or
(c) in exceptional circumstances, such other method as may be
specified by the Executive Committee.
16.2 Laboratory tests: If the Executive Committee so requires, Metering
Equipment comprising a Stage 2 Metering System which fails any test
whilst in its operational position shall be tested under laboratory
conditions in accordance with the relevant Code of Practice (if any).
16.3 Witnesses: If the Executive Committee so requires, the relevant
Supplier shall use all reasonable endeavours to ensure that up to two
persons nominated by the Executive Committee (representing all
interested Parties including, if the outcome of the testing is likely
to affect the operation of or the calculation of charges for the use
of a Distribution System, the PES which owns or operates that
Distribution System) shall have the right to witness tests taken as a
result of a dispute, including tests confirming the calibration of
test equipment, or inspect evidence of valid calibration, or valid
calibration certificates, as appropriate.
PART 6: METER INSPECTIONS AND READINGS
17. METER INSPECTIONS AND READINGS
17.1 Inspections and readings: Each Supplier shall ensure that arrangements
are made to inspect and read Half Hourly Metering Equipment at a 100kW
Premises comprising a Stage 2 Metering System in respect of which that
Supplier is registered in the PES Registration Service as the Supplier
for general inspection and reconciliation purposes not less than once
every year.
17.2 Written reports: Suppliers shall keep records of all inspections and
readings undertaken under sub-section 17.1 for not less than seven
years after the Final Reconciliation Run in respect of the data
obtained from such inspections and readings in a form specified by the
Executive Committee which shall be made available to the Executive
Committee upon reasonable request.
<PAGE>
PART 7: ACCESS
18. OWNERSHIP OF, AND ACCESS TO, METERING DATA
The Supplier registered in the PES Registration Service as the Supplier in
respect of a Stage 2 Metering System shall own the data acquired from such Stage
2 Metering System and may provide access to and use of such data provided that
such access or use does not interfere with the operation of Stage 2 Settlement
and provided that a Stage 2 Customer or Stage 2 Non-Pooled Generator of that
Supplier in respect of which such data is generated shall be entitled at all
times without charge to access, obtain and use such data.
19. ACCESS TO PROPERTY OF CUSTOMERS, NON-POOLED GENERATORS AND THIRD
PARTIES
The Supplier registered in the PES Registration Service as the Supplier for each
Stage 2 Customer and Stage 2 Non-Pooled Generator shall use all reasonable
endeavours to procure for the benefit of each Stage 2 Invitee:-
19.1 full right to enter upon and through and remain upon, or do any other
act contemplated by this Schedule 28 which would otherwise constitute
a trespass upon, any part of the property:-
(i) of the Stage 2 Customer in respect of which that Supplier is
the Supplier;
(ii) of the Stage 2 Non-Pooled Generator from which that Supplier
receives supply; and
(iii) of any other person which is not a party to this Agreement
(the "Third Party") but the exercise of whose rights would
prevent such Stage 2 Customer, Stage 2 Non-Pooled Generator,
Supplier or any Stage 2 Invitee from performing its
obligations under this Schedule or this Agreement and the
existence of whose rights is known to, or ought reasonably
be known to that Supplier;
19.2 in the case of Executive Committee or its nominee, full right to
remove all or any part of Metering Equipment forming part of such
property to a laboratory or test house in accordance with the
provisions of this Schedule 28; and
19.3 in the case of the Pool Auditor, full right to perform such tasks and
to do all such acts and things as are necessary for the purpose of
performing audits, tests, reviews and checks under Stage 2 Settlement,
including full right to carry out such tests on Metering Equipment
comprising a Stage 2 Metering System provided that the person or
persons allocated to carry out such tests by the Pool Auditor is or
are suitably qualified in the operation of Metering Equipment,
<PAGE>
provided always that such access rights conferred by or pursuant to this Section
19 shall be granted only to the extent necessary for the purposes of this
Schedule 28 and shall be subject to the other provisions of this Part 7.
20. STAGE 2 INVITEES
For the purposes of this Schedule 28 a Stage 2 Invitee shall be:-
20.1 the Executive Committee or its nominee; and
20.2 the Pool Auditor acting through any partner or employee.
21. FAILURE TO PROCURE ACCESS
If, after having used all such reasonable endeavours to procure access rights in
accordance with Section 19 in respect of a Stage 2 Customer, a Stage 2
Non-Pooled Generator or Third Party referred to in sub-section 19.1, a Supplier
has been unable to procure any such rights the Supplier shall notify the
Executive Committee in accordance with the relevant Agreed Procedure of that
fact. The Executive Committee shall be entitled to assume that the consents of
any Third Parties shall have been obtained in accordance with the provisions of
sub-section 19.1 until such time as it is fixed with notice to the contrary.
22. RIGHTS OF ACCESS
The right of access provided for in Section 19 shall include the right to bring
on to such Stage 2 Customer's, Stage 2 Non-Pooled Generator's or Third Party's
property such vehicles, plant, machinery and maintenance or other materials as
shall be reasonably necessary for the purposes of this Schedule 28.
23. AUTHORISATION
Each Supplier shall use all reasonable endeavours to ensure that any particular
authorisation or clearance which is required to be given to ensure access to any
Stage 2 Invitee, in accordance with Section 19, is available on arrival.
24. SAFETY
Subject to the right of the Executive Committee or its nominee to inspect
without notice pursuant to sub-section 10.2, each Supplier shall use all
reasonable endeavours to procure that all reasonable arrangements and provisions
are made and/or revised from time to time as and when necessary or desirable to
facilitate the safe exercise of any right of access granted pursuant to Section
19 with the minimum of disruption, disturbance and inconvenience. Such
arrangements and provisions may, to the extent that the same are reasonable,
limit or restrict the exercise of such right of access and/or provide for any
Supplier to make directions or regulations from time
<PAGE>
to time in relation to a specified matter. Matters to be covered by such
arrangements and/or provisions include:-
24.1 the identification of any relevant Metering Equipment comprising a
Stage 2 Metering System;
24.2 the particular access routes applicable to the land in question having
particular regard for the weight and size limits on those routes;
24.3 any limitations on times of exercise of the right of access;
24.4 any requirements as to prior notification and as to authorisation or
security clearance of individuals exercising such right of access and
procedures for obtaining the same;
24.5 the means of communication to the Supplier (and all employees and/or
contractors who may be authorised from time to time to exercise such
right of access) of any relevant directions or regulations made by the
Supplier; and
24.6 the identification of and arrangements applicable to personnel
exercising the right of access granted by Section 19.
Each Supplier shall (and shall use all reasonable endeavours to procure that all
persons exercising any right of access on behalf of such Supplier) observe and
perform any such arrangements and all provisions (or directions or regulations
issued pursuant thereto) made from time to time.
25. MINIMISATION OF DAMAGE
Each Supplier shall use all reasonable endeavours to procure that all reasonable
steps are taken in the exercise of any right of access by or on behalf of such
Supplier to:-
25.1 avoid or minimise the damage in relation to any Stage 2 Customer's,
Stage 2 Non-Pooled Generator's or other Third Party's property; and
25.2 cause as little disturbance and inconvenience as possible to any Stage
2 Customer, Stage 2 Non-Pooled Generator or other Third Party or other
occupier of such Stage 2 Customer's, Stage 2 Non-Pooled Generator's or
other Third Party's property,
and shall make good any damage caused to such property in the course of exercise
of such rights as soon as may be practicable. Subject to this, all such rights
of access shall be exercisable free of any charge or payment of any kind.
<PAGE>
26. LICENCE RESTRICTED PARTIES
26.1 Application of sub-section: This sub-section 26.1 shall apply to any
area owned or occupied by any Stage 2 Customer, Stage 2 Non-Pooled
Generator or Third Party (in this Schedule 28, each a "Licence
Restricted Party") which is the holder of or subject to a licence
granted under the Nuclear Installations Act 1965 (in this Schedule 28,
a "Nuclear Site Licence") or subject to restrictions in relation to a
Nuclear Site Licence, where such area is subject to that Nuclear Site
Licence but, in respect of Energy Settlements and Information Services
Limited, this sub-section 26.1 shall apply subject to the provisions
of any other agreement between the Licence Restricted Party and NGC
(or any of its subsidiaries) imposing restrictions on NGC's (or any of
its subsidiaries') right of access to any area owned by the Licence
Restricted Party subject to (or subject to restrictions in relation
to) a Nuclear Site Licence.
26.2 Precedence of sub-section: This Section 26 shall take precedence over
any contrary provisions of this Schedule 28.
26.3 Restriction on Parties: No Party shall enter or attempt to enter or
permit or suffer any person to enter or attempt to enter any area
owned or occupied by the Licence Restricted Party to which a Nuclear
Site Licence applies except strictly in accordance with the
provisions, restrictions and conditions of the Nuclear Site Licence.
26.4 Action by Licence Restricted Parties: The Licence Restricted Party
shall be entitled to take reasonable action of any kind whatsoever
relating to or affecting access to its property as it considers on
reasonable grounds to be necessary in order to enable the Licence
Restricted Party to comply with the provisions, restrictions and
conditions of a Nuclear Site Licence or avert or minimise any
reasonably anticipated breaches thereof.
27. EXECUTIVE COMMITTEE RELIEF
The Executive Committee shall not incur any liability under this Schedule 28 or
this Agreement in the event it cannot perform any of its duties hereunder due to
access to Metering Equipment comprising a Stage 2 Metering System being denied.
<PAGE>
SCHEDULE 29
Unmetered Supplies
1. INTRODUCTORY
1.1 Unmetered Supplies and this Schedule: The rights and obligations of
the Parties in relation to Unmetered Supplies shall be as set out in
this Schedule and the relevant Service Line and Agreed Procedure.
1.2 Inconsistency and conflict: If there is any inconsistency or conflict
between the provisions of this Schedule and any other provisions of
this Agreement in relation to Unmetered Supplies, the provisions of
this Schedule shall prevail.
1.3 Standards of accuracy: The standards of accuracy of data for Unmetered
Supplies from time to time shall be no worse than those which at such
time apply generally under this Agreement for metered supplies of
electricity.
1.4 Load research programmes: The Executive Committee on behalf of Pool
Members shall have the right at any time and from time to time to
commission load research programmes in respect of Unmetered Supplies
to support changes made or proposed to be made to the relevant Service
Line or Agreed Procedure.
2. PUBLIC ELECTRICITY SUPPLIERS AND UNMETERED SUPPLIES
2.1 Determination of Unmetered Supplies: A Public Electricity Supplier
shall determine in relation to supplies of electricity within its
Authorised Area whether a supply of electricity to a particular
inventory of Apparatus is to be treated for the purposes of this
Agreement as an Unmetered Supply provided that, if such supply is
separately measured and recorded through a Metering System at or near
to the point of supply to the Customer, the Public Electricity
Supplier shall not determine that such supply is an Unmetered Supply.
2.2 Considerations in determining an Unmetered Supply: Each Public
Electricity Supplier acknowledges that, without prejudice to any other
factor to which it may choose to have regard in making its
determination, it would not expect to determine that a supply of
electricity to a particular inventory of Apparatus is to be treated
for the purposes of this Agreement as an Unmetered Supply unless it is
technically impractical to install a Meter or to carry out meter
readings or the cost of installation of a Meter or of carrying out
meter readings is wholly disproportionate or the supply of electricity
in question is both small (in kWh terms) and reasonably predictable.
2.3 Unmetered Supply Certificate: If a Public Electricity Supplier
determines in accordance with sub-section 2.1 that a supply of
electricity to a particular inventory of Apparatus qualifies as an
Unmetered Supply, it shall issue an Unmetered Supply Certificate to
the Customer taking such supply in relation to such inventory. Such
Unmetered Supply Certificate shall state whether the Unmetered Supply
to which it relates is an Equivalent Unmetered Supply or a Profiled
Unmetered Supply, as agreed between the Public Electricity Supplier
and the Customer.
<PAGE>
2.4 Inventory: The inventory of Apparatus relative to a particular
Unmetered Supply shall be agreed between the Public Electricity
Supplier in whose Authorised Area the Unmetered Supply takes place and
the Customer taking such supply. The Public Electricity Supplier shall
ensure that any such inventory includes the means of identifying the
type and number of items connected and taking supply, the location of
such items, the wattage and the switch regime. The Public Electricity
Supplier shall prepare and provide in accordance with the relevant
Agreed Procedure a summary inventory of Apparatus based on the
information included in the detailed inventory of Apparatus.
2.5 Equivalent Unmetered Supply: A Public Electricity Supplier shall
assign a unique Stage 2 Metering System Number to each Unmetered
Supply Certificate relating to an Equivalent Unmetered Supply in its
Authorised Area.
2.6 Profiled Unmetered Supply: A Public Electricity Supplier shall assign
a unique Stage 2 Metering System Number to each Standard Settlement
Configuration for each Unmetered Supply Certificate relating to a
Profiled Unmetered Supply in its Authorised Area.
2.7 Equivalent Meters:
2.7.1 Upon request by a Supplier or the Executive Committee, a
Public Electricity Supplier shall notify it in writing of
one or more Equivalent Meters to be used in its Authorised
Area for the purpose of calculating consumption associated
with an Equivalent Unmetered Supply. A Public Electricity
Supplier shall be entitled to change its nomination of an
Equivalent Meter from time to time provided that it gives at
least one year's prior written notice of such change to the
Executive Committee. The Executive Committee will, on
request by a Supplier, provide details of the Equivalent
Meter used or to be used by a Public Electricity Supplier,
as notified to the Executive Committee by that Public
Electricity Supplier.
2.7.2 If an Equivalent Meter requires one or more photo electric
cell unit arrays to function properly, then the Public
Electricity Supplier which nominated the Equivalent Meter
shall agree with any relevant Supplier the location(s) of
such photo electric cell unit array(s).
2.8 Revised EACs and inventories:
2.8.1 For each Profiled Unmetered Supply in its Authorised Area,
the Public Electricity Supplier shall calculate an Estimated
Annual Consumption and shall notify the relevant Supplier or
its Supplier Agent of such Estimated Annual Consumption.
2.8.2 As soon as reasonably practicable after there has been a
material change in the inventory of Apparatus to which an
Unmetered Supply Certificate relates, the Public Electricity
Supplier which issued such Unmetered Supply Certificate
shall, in accordance with the relevant Agreed Procedure,
provide to the relevant Supplier or its Supplier Agent:-
<PAGE>
(a) a revised summary inventory of Apparatus (in the
case of an Equivalent Unmetered Supply); and/or
(b) a new Estimated Annual Consumption (in the case of
a Profiled Unmetered Supply).
2.9 Meter administration service: If at the 1998 Operational Date a Public
Electricity Supplier is providing meter administration services to any
third party it shall continue to provide meter administration services
to Suppliers upon request and upon agreement as to the terms and
conditions thereof, provided that a Public Electricity Supplier shall
not be obliged to offer to provide such services if after the 1998
Operational Date it ceases for more than six consecutive months to
provide meter administration services to third parties.
2.10 Changes to this Section: No amendment or variation of this Section 2
shall be effective except with the prior agreement of the Public
Electricity Suppliers (which agreement shall be given by the passing
of a resolution in a separate class meeting of the Public Electricity
Suppliers). For the purposes of this Section, the provisions of Part
III of the Agreement relating to general meetings of Pool Members
shall apply mutatis mutandis to separate class meetings of Public
Electricity Suppliers, but so that:-
(a) the necessary requirement for notice in writing to be given
of any such separate class meeting shall be 5 working days
rather than the period in Clause 9.3;
(b) Clause 10.9 shall not apply although the Pool Auditor and
the Director or its or his duly authorised representative
shall have the right to attend and speak (but not vote) at
such separate class meetings;
(c) such separate class meetings shall be convened by the
Secretary upon receipt of a request from a Public
Electricity Supplier;
(d) the necessary quorum shall be four Public Electricity
Suppliers present in person and if no quorum is present
within half an hour from the time appointed for the separate
class meeting, the separate class meeting shall be adjourned
until the following working day; and
(e) notice of any such separate class meeting need to be given
only to those entitled to attend the same,
and any resolution put to any such separate class meeting shall, to be
passed, require a simple majority of the Membership Votes or (as the
case may be) Weighted Votes of those Pubic Electricity Supplies as
(being entitled to do so) vote in person or by proxy at such separate
class meeting.
<PAGE>
3. SUPPLIERS AND UNMETERED SUPPLIES
Each Supplier shall:-
3.1 trade Unmetered Supplies on a basis consistent with the
terms of the relevant Unmetered Supply Certificate so that
Equivalent Unmetered Supplies are treated and traded as such
and Profiled Unmetered Supplies are treated and traded as
such. A change in the treatment and trading of an Unmetered
Supply from an Equivalent Unmetered Supply to a Profiled
Unmetered Supply (or vice versa) shall only be made if the
relative Unmetered Supply Certificate is withdrawn and
cancelled and a new Unmetered Supply Certificate is issued
in its place; and
3.2 ensure that Estimated Annual Consumption or summary
inventory of Apparatus associated with an Unmetered Supply
Certificate is properly submitted for use in Settlement.
<PAGE>
SCHEDULE 30
Pool Agents
PART 1: GENERAL
1. INTERPRETATION
Interpretation: In this Schedule, unless the context otherwise requires,
references to a particular Part, Section, sub-section or paragraph shall be a
reference to that Part, Section, sub-section or paragraph of this Schedule.
2. INTRODUCTION
2.1 Appointment of Pool Agents: The provisions of this Schedule shall have
effect with respect to the appointment of the Initial Settlement and
Reconciliation Agent, the Profile Administrator and the Teleswitch
Agent.
2.2 Instructions by Executive Committee: Pool Members shall procure that
the Executive Committee gives such instructions as are necessary in
order that each Pool Agent makes and maintains the necessary
arrangements with Parties (including the arrangements specified in
Clause 29.4) and with the other Pool Agents.
2.3 Release of data: Each of the Pool Members agrees to the release of
reports, data and other information by any Pool Agent to the Executive
Committee, the Pool Auditor and any Party insofar as such reports,
data and other information are required by the Executive Committee or
the Pool Auditor or such Party in accordance with this Agreement or
concern amounts payable by or to such Pool Member.
2.4 Provision of data to Distribution System operators:
2.4.1 Pool Members shall provide, or procure the provision by the
Initial Settlement and Reconciliation Agent of, the
appropriate data specified in Agreed Procedure AP508 (being
certain output from runs of Settlement) to the operator of
the relevant Distribution System free of charge. Each such
operator shall have the right to use such data but only for
the purposes of the operation of its Distribution System and
for the calculation of charges for use of and connection to
its Distribution System.
2.4.2 Each Supplier agrees to the release and use of the data
referred to in paragraph 2.4.1 on the terms and conditions
of such paragraph, and confirms that it will not have the
right to charge the operator of the relevant Distribution
System for such release or use.
PART 2: INITIAL SETTLEMENT AND RECONCILIATION AGENT
3.1 Appointment and removal: The Executive Committee shall from time to
time appoint, or procure the appointment by EPFAL or by such other
person as may be determined by the
<PAGE>
Executive Committee of, an Initial Settlement and Reconciliation Agent
on behalf of all Pool Members. The first Initial Settlement and
Reconciliation Agent shall be Cap Gemini UK PLC. The Executive
Committee shall have the right at any time and from time to time to
remove the Initial Settlement and Reconciliation Agent. The Executive
Committee shall ensure that there shall at all times be an Initial
Settlement and Reconciliation Agent.
3.2 Terms of engagement - scope of work: The terms of engagement and scope
of work to be carried out by the Initial Settlement and Reconciliation
Agent shall be in accordance with the terms of this Agreement and as
determined from time to time by the Executive Committee. The terms of
engagement of the first Initial Settlement and Reconciliation Agent
shall be as set out in the contract dated 30th April, 1997 between
EPFAL and Cap Gemini UK PLC (as amended from time to time). The
Initial Settlement and Reconciliation Agent shall report to the
Executive Committee and:-
3.2.1 to the extent permitted under the terms of engagement, the
Executive Committee shall, upon request, provide each Pool
Member, the Director, any Party which has applied pursuant
to Clause 8.2 to become a Pool Member and (as appropriate)
the Settlement System Administrator or the Pool Funds
Administrator with a copy of such terms of engagement;
3.2.2 the exclusions from and limitations of liability of the
Initial Settlement and Reconciliation Agent shall be set out
in its terms of engagement and shall apply to this Agreement
as if the same were set out in full herein; and
3.2.3 each Pool Member shall comply with any arrangements made
from time to time by the Executive Committee relating to the
making of claims against the Initial Settlement and
Reconciliation Agent and the sharing of any recoveries from
the Initial Settlement and Reconciliation Agent the amount
of which may be affected by any limitations of liability of
the Initial Settlement and Reconciliation Agent as referred
to in paragraph 3.2.2. In particular, each Pool Member
shall, if required by the Executive Committee, arrange for
the Executive Committee to conduct any claim against the
Initial Settlement and Reconciliation Agent in that capacity
on behalf of the relevant Pool Member; in that event, the
Executive Committee shall keep that Pool Member fully
informed as to the conduct of such a claim.
3.3 Functions of Initial Settlement and Reconciliation Agent: The
functions of the Initial Settlement and Reconciliation Agent shall
be:-
3.3.1 to provide a supplier settlement and reconciliation service
in accordance with Service Line 300 and the Pool Rules and
to comply with the other requirements of Service Line 300;
3.3.2 to provide a daily profile production service in accordance
with Service Line 310 involving, inter alia, receiving,
obtaining and maintaining data relating to GSP Groups, noon
temperatures and times of sunset, the preparation of Profile
Coefficients and the
<PAGE>
provision of reports on profiles and Standard Settlement
Configurations to Non Half Hourly Data Collectors and
Suppliers; and
3.3.3 to perform additional related services, including:-
(a) the development and maintenance of a contingency
plan in accordance with Service Line 320 for
approval from time to time by the Executive
Committee;
(b) the provision of a disaster recovery service, and
the development and maintenance of a disaster
recovery plan, all in accordance with Service Line
320;
(c) the provision of a national helpdesk service, a
problem management service, a change management
service, a committee support service, a
performance report service, an ad hoc reporting
service, a dispute support service, a software
acceptance testing service and an integration
testing service, in each case in accordance with
Service Line 330;
(d) the development and maintenance of a hand-over
service, and the provision of an exit management
plan, in accordance with Service Line 350;
(e) the provision of a market domain data service in
accordance with Service Line 360;
(f) the provision of a consultancy service, a
technical architecture and design service and a
software maintenance service, in each case in
accordance with Service Line 370; and
(g) such other services as may from time to time be
agreed by the Executive Committee.
3.4 Further obligations of Initial Settlement and Reconciliation Agent:
The terms of engagement of the Initial Settlement and Reconciliation
Agent shall include provision for:-
3.4.1 the services to be made available on such working days as
may be from time to time agreed by the Executive Committee;
3.4.2 the Initial Settlement and Reconciliation Agent to have
access to the Managed Data Network and to comply with the
requirements of the Executive Committee in respect of
transfers of data using the Managed Data Network or such
other method of data transfer approved by the Executive
Committee provided that the Executive Committee shall not,
save in exceptional circumstances, approve any alternative
method of data transfer if the charges of the Initial
Settlement and Reconciliation Agent for transferring data by
that method will exceed its charges for using the Managed
Data Network; and
3.4.3 the Initial Settlement and Reconciliation Agent to comply
with the Pool Rules.
<PAGE>
3.5 Records and audit: The terms of engagement of the Initial Settlement
and Reconciliation Agent shall include provision for:-
3.5.1 whether or not its appointment has expired or terminated,
the maintenance of all such records (including those
relating to the supplier settlement and reconciliation
service and the daily profile production service referred to
in sub-section 3.3, Market Domain Data and standing data) by
the Initial Settlement and Reconciliation Agent as are
necessary in order for it properly to discharge its
functions or as are required in accordance with Service Line
300 or (as the case may be) 370, in each case for such
period as is provided in the relevant Service Line or, if no
such period is provided, for such period as the Executive
Committee may agree; and
3.5.2 the Initial Settlement and Reconciliation Agent to allow
unrestricted access to such records to the Pool Auditor and
to any other person authorised under this Agreement and to
co-operate fully with the Pool Auditor and any such other
person in any review of such records.
3.6 Charges of Initial Settlement and Reconciliation Agent: The charges of
the Initial Settlement and Reconciliation Agent shall be as set out in
its terms of engagement and otherwise as agreed from time to time by
the Executive Committee. Unless otherwise determined by Pool Members
in general meeting, the costs, fees, expenses, liabilities and losses
of, and all other amounts incurred or paid by, the Initial Settlement
and Reconciliation Agent shall be dealt with in accordance with
Schedule 31.
3.7 Compliance with Service Lines and Agreed Procedures: The requirements
of the Service Lines and the relevant Agreed Procedures in accordance
with which the Initial Settlement and Reconciliation Agent is required
to perform its functions shall be those in force at the date of its
appointment, as amended from time to time by agreement between the
Executive Committee and the Initial Settlement and Reconciliation
Agent in accordance with its terms of engagement.
3.8 Force Majeure: The terms of engagement of the Initial Settlement and
Reconciliation Agent may include provision for certain specific
obligations to be suspended for a period where the Initial Settlement
and Reconciliation Agent is unable to perform for reasons beyond its
control provided that the suspension of performance is of no greater
scope and of no longer duration than is reasonable in the
circumstances. If any such event occurs, the Executive Committee shall
if practicable inform the Pool Members and (if the Executive Committee
considers it appropriate) the Pool Auditor, the Director and (if
affected by the suspension of performance) any of the other Pool
Agents.
3.9 TUoS File: The terms of engagement of the Initial Settlement and
Reconciliation Agent shall include provision for the Initial
Settlement and Reconciliation Agent to provide the Grid Operator (or
such other person as the Grid Operator may reasonably direct) with the
TUoS File. No change shall be made to such obligation of the Initial
Settlement and Reconciliation Agent without the prior written consent
of the Grid Operator nor shall any change be made to this sub-section
without such prior written consent. Upon reasonable request of the
Grid Operator from time to time, the Executive Committee will confirm
whether the terms of engagement of
<PAGE>
the Initial Settlement and Reconciliation Agent include such a
provision. In this sub-section "TUoS File" means a file which contains
the information necessary for the purposes of calculating transmission
use of system charges payable by each Supplier in respect of
electricity taken in each GSP Group.
PART 3: PROFILE ADMINISTRATOR
4.1 Appointment and Removal: The Executive Committee shall from time to
time appoint, or procure the appointment by EPFAL or by such other
person as may be determined by the Executive Committee of, a Profile
Administrator on behalf of all Pool Members. The first Profile
Administrator shall be Electricity Association Services Limited. The
Executive Committee shall have the right at any time and from time to
time to remove the Profile Administrator. The Executive Committee
shall ensure that there shall at all times be a Profile Administrator.
4.2 Terms of Engagement - Scope of Work: The terms of engagement and scope
of work to be carried out by the Profile Administrator shall be in
accordance with the terms of this Agreement and as determined from
time to time by the Executive Committee. The terms of engagement of
the first Profile Administrator shall be as set out in the contract
between EPFAL and Electricity Association Services Limited dated 21st
April, 1997. The Profile Administrator shall report to the Executive
Committee and:-
4.2.1 to the extent permitted under the terms of engagement, the
Executive Committee shall, upon request, provide each Pool
Member, the Director, any Party which has applied pursuant
to Clause 8.2 to become a Pool Member and (as appropriate)
the Settlement System Administrator or the Pool Funds
Administrator with a copy of such terms of engagement and of
any changes made to those terms pursuant to sub-section
4.10;
4.2.2 the exclusions from and limitations of liability of the
Profile Administrator shall be set out in its terms of
engagement and shall apply to this Agreement as if the same
were set out in full herein; and
4.2.3 each Pool Member shall comply with any arrangements made
from time to time by the Executive Committee relating to the
making of claims against the Profile Administrator and the
sharing of any recoveries from the Profile Administrator the
amount of which may be affected by any limitations of
liability of the Profile Administrator as referred to in
paragraph 4.2.2. In particular, each Pool Member shall, if
required by the Executive Committee, arrange for the
Executive Committee to conduct any claim against the Profile
Administrator in that capacity on behalf of the relevant
Pool Member; in that event, the Executive Committee shall
keep that Pool Member fully informed as to the conduct of
such a claim.
4.3 Functions of Profile Administrator: The functions of the Profile
Administrator shall be as set out in this sub-section 4.3 and as
amplified by the remaining sub-sections of this Part 3:-
<PAGE>
4.3.1 to create and maintain a load research sample using customer
information provided to it by Suppliers and to carry out a
programme of load research in order to collect half-hourly
demand data from customers;
4.3.2 to analyse data collected through the load research
programme and from other sources approved from time to time
by the Executive Committee;
4.3.3 to derive sets of Regression Coefficients for each Profile
Class;
4.3.4 to deliver the Regression Coefficients and related data to
Pool Members, the Initial Settlement and Reconciliation
Agent, Supplier Agents or the Executive Committee;
4.3.5 to analyse data and to monitor the accuracy of Profiles
derived from Regression Coefficients; and
4.3.6 to provide such consultancy services as the Executive
Committee may from time to time determine.
4.4 Provision of data by Profile Administrator: The terms of engagement of
the Profile Administrator shall require the Profile Administrator to
provide (unless and to the extent otherwise specified from time to
time by the Executive Committee) the following information to the
Executive Committee or as otherwise directed by it:-
4.4.1 a provisional set of Regression Coefficients, Group Average
Annual Consumption values and Profile Coefficients for each
Accounting Period not later than ten working days after 1st
October in each year before the beginning of the relevant
Accounting Period; and
4.4.2 a final set of Regression Coefficients, GAAC values and
Profile Coefficients for each Accounting Period on or before
15th January before the beginning of the relevant Accounting
Period,
in each case using data collected from the load research programme
carried out by the Profile Administrator, augmented with data provided
by Suppliers which is consistent with the overall sample design.
4.5 Provision of reports by Profile Administrator: The terms of engagement
of the Profile Administrator shall (unless and to the extent otherwise
specified by the Executive Committee) require the Profile
Administrator to deliver to the Executive Committee or as otherwise
directed by it:-
4.5.1 on a quarterly basis, a breakdown by GSP Group of each
Profile Class sample, together with a statement of the daily
average number of customers for which monitoring equipment
has been successfully installed and commissioned for each
Profile Class in respect of the previous Quarter; and
<PAGE>
4.5.2 an annual report and data analysis plan (in such form as may
be specified by the Executive Committee) setting out what
load research data the Profile Administrator proposes to
use, together with a load research plan (in such form as the
Executive Committee shall specify) setting out the proposed
sample design and sample sizes in respect of the following
Accounting Period.
4.6 Provision of consultancy services by Profile Administrator: The terms
of engagement of the Profile Administrator shall (unless and to the
extent otherwise specified by the Executive Committee) require the
Profile Administrator to:-
4.6.1 make one or more representatives available, subject to
reasonable notice, to attend meetings of Pool Members or
their representatives in order to provide advice on
profiling matters; and
4.6.2 provide advice to Pool Members as to the implications of
introducing new or modified Profile Classes and GSP Groups
and as to the implications of changing sample sizes and
profiling methodology.
4.7 Audit, security and control: The terms of engagement of the Profile
Administrator shall (unless and to the extent agreed by the Executive
Committee and the Profile Administrator) require the Profile
Administrator:-
4.7.1 to maintain such records as are necessary in order for it
properly to discharge its functions and to ensure that all
changes to such records are effected and recorded in such a
manner as to allow the Pool Auditor (or such person as the
Executive Committee shall nominate) to carry out compliance
audits;
4.7.2 to maintain records relating to the data and other
information referred to in sub-sections 4.3 and 4.4 securely
for a period of not less than 7 years after the date on
which such data was received or (as the case may be) the
date on which such other information was produced by the
Profile Administrator; and
4.7.3 to allow unrestricted access to such records to the Pool
Auditor and to any other person authorised under this
Agreement and to co-operate fully with the Pool Auditor and
any such other person in any review of such records.
4.8 Charges of Profile Administrator: The charges of the Profile
Administrator shall be as set out in its terms of engagement and
otherwise as agreed from time to time by the Executive Committee.
Unless otherwise determined by Pool Members in general meeting, the
costs, fees, expenses, liabilities and losses of, and all other
amounts incurred or paid by, the Profile Administrator shall be dealt
with in accordance with Schedule 31.
4.9 Undertaking by agent of Pool Members: Pursuant to sub-clause 9.8 of
the terms of engagement of the first Profile Administrator dated 21st
April, 1997 such person as may from time to time be nominated by the
Executive Committee shall (for as long as such nomination shall not
have been revoked) be duly authorised as an agent of Pool Members to
sign an undertaking on
<PAGE>
behalf of Pool Members for the purpose of that sub-clause in the form
agreed by the Executive Committee and the first Profile Administrator.
4.10 Changes to the terms of engagement: The terms of engagement of the
Profile Administrator shall include provision for changes to be made
to such terms of engagement by agreement between the Executive
Committee and the Profile Administrator and, further, for changes to
be made at the request of the Executive Committee, subject to the
reimbursement of the Profile Administrator's costs in relation to any
such change and to the Profile Administrator's right to refuse on
reasonable grounds to agree to any such change.
PART 4: TELESWITCH AGENT
5.1 Appointment and Removal: The Executive Committee shall from time to
time appoint, or procure the appointment by EPFAL or by such other
person as may be determined by the Executive Committee of, a
Teleswitch Agent on behalf of all Pool Members. The first Teleswitch
Agent shall be Electricity Association Services Limited. The Executive
Committee shall have the right at any time and from time to time to
remove the Teleswitch Agent. The Executive Committee shall ensure that
there shall at all times be a Teleswitch Agent.
5.2 Terms of Engagement - Scope of Work: The terms of engagement and scope
of work to be carried out by the Teleswitch Agent shall be in
accordance with the terms of this Agreement and as determined from
time to time by the Executive Committee. The terms of engagement of
the first Teleswitch Agent shall be as set out in the contract between
EPFAL and Electricity Association Services Limited. The Teleswitch
Agent shall report to the Executive Committee and:-
5.2.1 to the extent permitted under the terms of engagement, the
Executive Committee shall, upon request, provide each Pool
Member, the Director, any Party which has applied pursuant
to Clause 8.2 to become a Pool Member and (if appropriate)
the Pool Funds Administrator with a copy of such terms of
engagement and of any changes made to those terms pursuant
to sub-section 5.8;
5.2.2 the exclusions from and limitations of liability of the
Teleswitch Agent shall be set out in its terms of engagement
and shall apply to this Agreement as if the same were set
out in full herein; and
5.2.3 each Pool Member shall comply with any arrangements made
from time to time by the Executive Committee relating to the
making of claims against the Teleswitch Agent and the
sharing of any recoveries from the Teleswitch Agent the
amount of which may be affected by any limitations of
liability of the Teleswitch Agent as referred to in
paragraph 5.2.2. In particular, each Pool Member shall, if
required by the Executive Committee, arrange for the
Executive Committee to conduct any claim against the
Teleswitch Agent in that capacity on behalf of the relevant
Pool Member; in that event, the Executive Committee shall
keep that Pool Member fully informed as to the conduct of
such a claim.
<PAGE>
5.3 Functions of Teleswitch Agent: The functions of the Teleswitch Agent
shall be as set out in this sub-section 5.3 and as amplified by the
remaining sub-sections of this Part 4:-
5.3.1 to monitor messages concerning contact switching times sent
pursuant to the Radio Teleswitch Agreement to groups of
Metering Systems for which the related Metering Equipment is
equipped with a teleswitch;
5.3.2 to provide details of those messages to the Initial
Settlement and Reconciliation Agent (by such means and in
accordance with such procedures as may from time to time be
approved by the Executive Committee);
5.3.3 to maintain a log recording the provision of details of
teleswitch messages and to provide performance monitoring
reports;
5.3.4 to report to the Initial Settlement and Reconciliation Agent
any known or suspected failures in the monitoring and
provision of messages; and
5.3.5 to provide a consultancy and support service and a disaster
recovery service.
5.4 Further obligations of Teleswitch Agent: The terms of engagement of
the Teleswitch Agent shall include provision for:-
5.4.1 the services to be made available on such working days as
may be from time to time agreed by the Executive Committee;
and
5.4.2 the Teleswitch Agent to have access to the Managed Data
Network and to comply with the requirements of the Executive
Committee in respect of transfers of data using the Managed
Data Network or such other method of data transfer approved
by the Executive Committee provided that the Executive
Committee shall not, save in exceptional circumstances,
approve any alternative method of data transfer if the
charges of the Teleswitch Agent for transferring data by
that method will exceed its charges for using the Managed
Data Network.
5.5 Audit, security and control: The terms of engagement of the Teleswitch
Agent (whether or not its appointment has expired or terminated) shall
(unless and to the extent agreed by the Executive Committee and the
Teleswitch Agent) require the Teleswitch Agent:-
5.5.1 to maintain such records as are necessary in order for it
properly to discharge its functions and to ensure that all
changes to such records are effected and recorded in such a
manner as to allow the Pool Auditor (or such person as the
Executive Committee shall nominate) to carry out compliance
audits;
5.5.2 to maintain records relating to the details of messages
referred to in sub-section 5.3 securely for a period of not
less than 7 years after the date on which such messages were
received; and
<PAGE>
5.5.3 to allow unrestricted access to such records to the Pool
Auditor and to any other person authorised under this
Agreement and to co-operate fully with the Pool Auditor and
any such other person in any review of such records.
5.6 Charges of Teleswitch Agent: The charges of the Teleswitch Agent shall
be as set out in its terms of engagement and otherwise as agreed from
time to time by the Executive Committee. Unless otherwise determined
by Pool Members in general meeting, the costs, fees, expenses,
liabilities and losses of, and all other amounts incurred or paid by,
the Teleswitch Agent shall be dealt with in accordance with Schedule
31.
5.7 Force Majeure: The terms of engagement of the Teleswitch Agent may
include provision for certain specific obligations to be suspended for
a period where the Teleswitch Agent is unable to perform for reasons
beyond its control provided that the suspension of performance is of
no greater scope and of no longer duration than is reasonable in the
circumstances. If any such event occurs, the Executive Committee shall
if practicable inform the Pool Members and (if the Executive Committee
considers it appropriate) the Pool Auditor, the Director and (if
affected by the suspension of performance) any of the other Pool
Agents.
5.8 Changes to the terms of engagement: The terms of engagement of the
Teleswitch Agent shall include provision for changes to be made to
such terms of engagement by agreement between the Executive Committee
and the Teleswitch Agent and, further, for changes to be made at the
request of the Executive Committee, subject to the reimbursement of
the Teleswitch Agent's costs in relation to any such change and to the
Teleswitch Agent's right to refuse on reasonable grounds to agree to
any such change.
<PAGE>
SCHEDULE 31
Collection of Charges
PART 1: GENERAL
1. INTERPRETATION
Interpretation: In this Schedule, unless the context otherwise requires,
references to a particular Part, Section, sub-section or paragraph shall be a
reference to that Part, Section, sub-section or paragraph of this Schedule.
PART 2: ERS CHARGES
2. FUNDING OF 100kW SHORTFALL AND RECOVERY OF CHARGES
2.1 Allocation of 100kW Shortfall Amount: In respect of each month from
and including 1st April, 1998 that part (if any) of the 100kW
Shortfall Amount due or expected to fall due in that month (as
determined by the Executive Committee) shall be funded by Pool Members
according to their respective Contributory Shares (on the basis of the
then most recently calculated current Contributory Shares).
2.2 Collection and payment of 100kW Shortfall Amount funding:
2.2.1 The Executive Committee shall collect from Pool Members the
amounts which they are obliged to pay in accordance with
sub-section 2.1 towards the 100kW Shortfall Amount monthly
in advance in accordance with procedures agreed from time to
time by the Executive Committee and Pool Members shall pay
their proportionate share of such amounts in accordance with
such procedures.
2.2.2 If any Pool Member fails to pay an amount properly due in
connection with its funding of the 100kW Shortfall Amount
under this Section within 15 days of the due date for such
payment (such Pool Member being a "Non-paying Contributor")
each Pool Member (other than the Non-paying Contributor)
shall be severally liable for that Pool Member's
Contributory Share (calculated on the basis that the Points
allocated to the Non-paying Contributor are disregarded and
on the basis of the then most recently calculated current
Contributory Shares) and the Executive Committee shall
accordingly be entitled to recover the due proportion of
that amount from each Pool Member (other than the Non-paying
Contributor). In that event, the Executive Committee shall
advise each Pool Member of the amount payable by invoice
despatched to each Pool Member and each Pool Member shall
pay the amount advised in the relevant invoice within 15
days after the invoice date.
2.2.3 A Non-paying Contributor shall indemnify and keep
indemnified each Pool Member on demand against all sums
properly paid by such Pool Member pursuant to this
sub-section 2.2.
<PAGE>
2.2.4 Each Pool Member shall give notice to the Executive
Committee before instituting any action or proceedings to
enforce payments due to it pursuant to sub-section 2.2. Upon
receipt of any notice under this paragraph 2.2.4, the
Executive Committee will as soon as practicable notify all
Pool Members. The provisions of sub-section 24.4 of Schedule
11 shall apply mutatis mutandis in respect of any payment
due from a Non-paying Contributor pursuant to this
sub-section 2.2.
2.2.5 The amounts so collected together with any amount
transferred pursuant to sub-section 3.6 of Part G of the
Appendix to Schedule 4 (and any interest accrued on any such
amounts as referred to in this paragraph) shall be applied
by the Executive Committee in or towards meeting the 100kW
Shortfall Amount and, pending such application, may be
deposited in an interest-bearing account under the control
of the Executive Committee.
2.3 Determination of 100kW Shortfall Charge: The 100kW Shortfall Charge
for an Accounting Period shall be determined by the Executive
Committee as the amount payable by each Supplier in that Accounting
Period in respect of each Chargeable 100kW Premises.
2.4 Determination of quarterly charge: The charge payable by each Supplier
pursuant to this Section in respect of each Quarter shall be
calculated in accordance with the following formula:-
100kW Shortfall Charge x N100P
----------------------
4
where N100P is the total number of Chargeable 100kW Premises relating
to that Supplier as at the beginning of the relevant Quarter,
determined in accordance with sub-section 2.5.
2.5 Determination of Chargeable 100kW Premises: For the purposes of
sub-section 2.4:-
2.5.1 the number of "Chargeable 100kW Premises" relating to a
Supplier as at the beginning of each Quarter shall be
determined by the Executive Committee (the Executive
Committee being entitled, in the absence of any information
to the contrary, to rely on the information relating to the
last Quarter for which it has information) by reference to
(i) the number of Metering Systems (if any) registered in
ERS in respect of which the Supplier is the Registrant at
the start of that Quarter (as notified to the Executive
Committee by the Settlement System Administrator) and (ii)
the number of 100kW Premises in relation to which one or
more Metering Systems (if any) are effectively registered
against that Supplier in a PES Registration Service as at
the start of that Quarter (as notified to the Executive
Committee by the relevant Supplier, but subject to
adjustment as provided in paragraph 2.5.2); and
2.5.2 the number of 100kW Premises with Metering Systems
registered in a PES Registration Service as notified by each
Supplier shall be adjusted pro rata by the Executive
Committee so that the total number of Metering Systems
registered in ERS for all Suppliers, when added to the total
number of 100kW Premises not registered in ERS
<PAGE>
for all Suppliers taken into account by the Executive
Committee as Chargeable 100kW Premises, is equal to the
total number of Metering Systems registered in ERS on the
first day of the month in which the first GSP Group
Migration Date occurs.
2.6 Notification to Suppliers: The Executive Committee shall, not less
than fifteen Business Days before the end of each Quarter, beginning
with the Quarter ending on 30th June, 1998, notify each Supplier of
the amount (if any) due from it pursuant to sub-section 2.4.
2.7 Payment by Suppliers: Each Supplier shall pay, no later than the last
Business Day of the relevant Quarter, the amount for that Quarter
notified to it by the Executive Committee in accordance with
sub-section 2.6.
2.8 Adjustments for leaving and new Suppliers: Any Supplier which is a
Supplier for part only of any Quarter shall pay charges pursuant to
sub-sections 2.4 and 2.7 on an interim basis of such amount as the
Executive Committee estimates to be reasonable for such Quarter.
Adjustments to charges on all Suppliers as a result of existing
Suppliers leaving or new Suppliers joining will be made in such manner
as the Executive Committee shall determine, whereupon the Suppliers
and/or former Suppliers shall be required to pay such additional
amount or be entitled to such reimbursement as may be determined by
the Executive Committee by an adjustment to charges in respect of the
then current Quarter.
2.9 Provisions relating to payments generally: Any payment to be made by a
Pool Member or (as the case may be) a Supplier under this Section
shall be made to the Executive Committee (or as otherwise directed by
the Executive Committee), for distribution in accordance with
sub-section 2.12, in sterling in cleared funds in full without set off
or counterclaim, withholding or deduction of any kind whatsoever but
without prejudice to any other remedy. All charges under this Section
are exclusive of United Kingdom Value Added Tax which shall be added
to such charges, if applicable.
2.10 No withholding: In the event of any dispute regarding charges in any
Quarter, no Pool Member or (as the case may be) Supplier may withhold
payment of any invoiced amount under this Section but may refer such
dispute to arbitration in accordance with Clause 83.
2.11 Interest on non-payment: If any amount due under this Section is not
received on the due date, the Pool Member or, as the case may be, the
Supplier required to pay such amount shall pay interest (for
distribution in accordance with sub-section 2.12) to the Executive
Committee (or as otherwise directed by the Executive Committee) on
such amount from and including the date of default to the date of
actual payment (as well after as before judgment) at the Default
Interest Rate from time to time during such period of default.
2.12 Allocation of amounts recovered: The amounts recovered from Suppliers
pursuant to this Section shall be available for distribution amongst
Pool Members according to their contributions to the funding of the
100kW Shortfall Amount in accordance with sub-sections 2.1 and 2.2.
Amounts received in respect of a Quarter shall be so distributed on
the first Business Day of the next following Quarter and any amounts
received late shall be distributed on the same basis as soon as
reasonably practicable following their receipt. Each Pool Member
<PAGE>
shall accordingly be entitled to receive its due proportion of amounts
received from Suppliers pursuant to this Section on the basis that:-
2.12.1 each Pool Member who has contributed to the 100kW Shortfall
Amount pursuant to sub-sections 2.1 and 2.2 shall be
entitled to be reimbursed (out of the amounts so recovered
from Suppliers) in respect of the sum of:-
(a) the amount so contributed by that Pool Member; and
(b) an amount equal to that Pool Member's 100kW
Shortfall Financing Costs in relation to the
amount so contributed by it;
2.12.2 any amount so received from a Supplier shall be applied by
the Executive Committee in or towards the amount payable by
that Supplier in respect of the longest outstanding invoice;
and
2.12.3 any amounts paid to Pool Members by way of reimbursement of
their funding of the 100kW Shortfall Amount shall be applied
by the Executive Committee to the Pool Member or Pool
Members with the longest outstanding unreimbursed funding
payments made pursuant to sub-sections 2.1 and 2.2.
2.13 Delegation by Executive Committee: The Executive Committee may arrange
for EPFAL or some other person nominated by it from time to time to
carry out all or any of its functions pursuant to sub-sections 2.1 to
2.12 (save where the Executive Committee is required to make a
determination or an estimate pursuant to any of sub-sections 2.1, 2.3,
2.5 and 2.8), in which case the applicable references to the Executive
Committee in those sub-sections are to be read as references to EPFAL
or such other person so long as such delegation continues. The
Executive Committee shall promptly give notice to all Pool Members of
any such delegation.
2.14 Aggregate recovery: The Executive Committee shall use its reasonable
endeavours to ensure that the aggregate of all 100kW Shortfall Charges
payable pursuant to this Section is such as to allow the recovery, by
the end of the 100kW Shortfall Recovery Period, of the 100kW Shortfall
Amount funded pursuant to sub-sections 2.1 and 2.2, with due allowance
being made for the aggregate of 100kW Shortfall Financing Costs.
2.15 Overriding provision: The provisions of this Part shall have effect
notwithstanding the provisions of Clause 34A.
3. VARIABLE ERS CHARGES
3.1 Determination of Variable ERS Charge: Subject to sub-section 3.4, the
Variable ERS Charge for an Accounting Period shall be determined, for
each Accounting Period beginning with that starting on 1st April,
1998, by the Executive Committee as the amount payable for that
Accounting Period by each Supplier in respect of each Metering System
registered in ERS for which that Supplier is the Registrant. The
Variable ERS Charge in respect of an Accounting Period beginning after
1st April, 1998 shall, failing any determination by the Executive
<PAGE>
Committee in respect of that Accounting Period, be the same as that
most recently determined (or (as the case may be) re-determined
pursuant to sub-section 3.5) in respect of a prior Accounting Period.
3.2 Calculation of variable ERS charge payable: The charge payable by each
Supplier in respect of each month in an Accounting Period shall be
calculated in accordance with the following formula:-
Variable ERS Charge x NMS
-------------------
12
where NMS is the number of Metering Systems registered in ERS for
which the Supplier is the Registrant at the beginning of the relevant
month.
3.3 Determination of Metering Systems: For the purposes of sub-section
3.2, the number of Metering Systems attributable to a Supplier as at
the beginning of a month shall be as determined by the Settlement
System Administrator (the Settlement System Administrator being
entitled, in the absence of any notification to the contrary, to rely
on the most recent information in its possession).
3.4 Treatment of deficit or surplus variable ERS charges: If in respect of
any Accounting Period the aggregate of all Variable ERS Charges
payable pursuant to sub-section 3.2 and received by the Settlement
System Administrator is less than or (as the case may be) more than
the Total Variable ERS Charges for such Accounting Period, the deficit
or (as the case may be) the surplus shall be carried forward to the
immediately succeeding Accounting Period and shall be taken into
account in the calculation of the Variable ERS Charge therefor.
3.5 Executive Committee responsibility: The Executive Committee will use
its reasonable endeavours to ensure that the aggregate of all Variable
ERS Charges payable pursuant to sub-section 3.2 and received by the
Settlement System Administrator meets the Total Variable ERS Charges
specified for that Accounting Period. The Executive Committee may
accordingly from time to time determine that the Variable ERS Charge
in respect of an Accounting Period should be adjusted, whereupon
Suppliers shall be required to pay such additional amounts or be
entitled to such reimbursement as may be determined by the Executive
Committee by an adjustment to charges in respect of any month in that
or any later Accounting Period.
4. FIXED ERS CHARGES
4.1 Determination of Fixed ERS Charge: Subject to the provisions of this
Section, the Fixed ERS Charge for an Accounting Period shall be
determined, for each Accounting Period beginning with that starting on
1st April, 1998, by the Executive Committee as the amount payable for
that Accounting Period by each Supplier in respect of each Chargeable
100kW Premises. The Fixed ERS Charge in respect of an Accounting
Period beginning after 1st April, 1998 shall, failing any
determination by the Executive Committee in respect of that Accounting
Period, be the same as that most recently determined (or (as the case
may be) re-determined pursuant to sub-section 4.4) in respect of a
prior Accounting Period.
<PAGE>
4.2 Calculation of fixed ERS charge payable: The charge payable by each
Supplier in respect of each month in an Accounting Period shall be
calculated in accordance with the following formula:-
Fixed ERS Charge x N100P
----------------
12
where N100P is the total number of Chargeable 100kW Premises relating
to that Supplier as at the beginning of the Quarter in which that
month falls, determined in accordance with sub-section 2.5.
4.3 Treatment of deficit or surplus fixed ERS charges: If in respect of
any Accounting Period the aggregate of all Fixed ERS Charges payable
pursuant to sub-section 4.2 and received by the Settlement System
Administrator is less than or (as the case may be) more than the Total
Fixed ERS Charges for such Accounting Period, the deficit or (as the
case may be) the surplus shall be carried forward to the immediately
succeeding Accounting Period and shall be included in the calculation
of the Fixed ERS Charge therefor.
4.4 Executive Committee responsibility: The Executive Committee will use
its reasonable endeavours to ensure that the aggregate of all Fixed
ERS Charges payable pursuant to sub-section 4.2 and received by the
Settlement System Administrator meets the Total Fixed ERS Charges
specified for that Accounting Period. The Executive Committee may
accordingly from time to time determine that the Fixed ERS Charge in
respect of an Accounting Period should be adjusted, whereupon
Suppliers shall be required to pay such additional amounts or be
entitled to such reimbursement as may be determined by the Executive
Committee by an adjustment to charges in respect of any month in that
or any later Accounting Period.
PART 3: COLLECTION AND PAYMENT OF SUPPLIER CHARGES
5. SUPPLIER CHARGES - COLLECTION AND RECOVERY
5.1 Interpretation: In this Part, references to a Serial are to the
relevant Serial specified in Part 2 of the Menu of Supplier Charges.
5.2 Determination of compliance and amounts payable: The Performance
Assurance Board shall determine whether a Supplier has failed to
comply with any of the Serials and the associated charges payable, in
each case as soon as is reasonably practicable following receipt by
the Performance Assurance Board of the Routine Performance Monitoring
Reports pursuant to Serial 10.
5.3 Basis of determination: The Performance Assurance Board shall make its
determination on the basis of the information provided to it in the
Routine Performance Monitoring Reports adjusted where appropriate to
reflect the circumstances which applied at the time when the
calculations would have been made if the Routine Performance
Monitoring Reports had been provided within the time period specified
in Serial 10.
<PAGE>
5.4 Adjustment of calculations following application of the Supplier's
Monthly Cap: When making its determination pursuant to sub-section 5.2
of whether a Supplier has failed to comply with any of the Serials and
the associated charges payable by the Supplier, the Performance
Assurance Board shall compare the Supplier's Net Liability for the
relevant month (calculated as SNL below) with the Supplier's Monthly
Cap. If the Supplier's Net Liability exceeds the Supplier's Monthly
Cap then the total charges payable by the Supplier in respect of the
relevant month shall be calculated according to the following formula
(instead of by general application of the Menu of Supplier Charges):-
Supplier's charges = STGC x [SC/SNL]
where:-
STGC is the total charges which would be payable by the Supplier
for the relevant month under this Part 3 in respect of the
relevant GSP Group before the application of this
sub-section;
SC is the Supplier's Monthly Cap for the relevant month
(calculated pursuant to sub-section 16.2 of the Menu of
Supplier Charges); and
SNL is the total charges which would be payable by the Supplier
for the relevant month under this Part 3 in respect of the
relevant GSP Group before the application of this
sub-section, less any share of those charges payable by the
Supplier which would otherwise be receivable by the Supplier
pursuant to sub-section 5.12 before the application of this
sub-section.
5.5 Notification by Performance Assurance Board: As soon as practicable
following a determination pursuant to sub-section 5.2, the Performance
Assurance Board shall notify each Supplier of the amount (if any) due
from it pursuant to this Section in respect of any particular month in
respect of failures to comply with any of the Serials. Any
notification by the Performance Assurance Board pursuant to this
sub-section shall specify the GSP Group in relation to which the
relevant amount is payable by a Supplier (where relevant).
5.6 Payment by Suppliers: Each Supplier shall pay the amount notified to
it by the Performance Assurance Board in accordance with sub-section
5.5 within 15 days after the invoice date. Any such payment shall be
made to the Performance Assurance Board (for distribution in
accordance with sub-sections 5.12 and 5.13) in sterling in cleared
funds in full without set-off or counterclaim, withholding or
deduction of any kind whatsoever but without prejudice to any other
remedy. All charges under this Part 3 are exclusive of United Kingdom
Value Added Tax which shall be added to such charges, if applicable.
5.7 No withholding: In the event of any dispute regarding charges in
respect of any month, no Supplier may withhold payment of any invoiced
amount.
<PAGE>
5.8 Interest on late payment: If any amount due under this Part 3 is not
received on the due date, or if the Performance Assurance Board has to
calculate any amounts due under this Part 3 following the late receipt
of a Routine Performance Monitoring Report, the Supplier required to
pay such amount shall pay interest to the Performance Assurance Board
on such amount from and including the date of default, or deemed due
date (calculated as if the relevant report had been submitted on
time), to the date of actual payment (before as well as after
judgment) at the Default Interest Rate from time to time during such
period of default.
5.9 Interest on payments resulting from delays in the Performance
Assurance Reporting and Monitoring System: If the Performance
Assurance Board is unable to calculate any amounts due under this Part
3 as a result of delays in the Performance Assurance Reporting and
Monitoring System being operational, then the Supplier required to pay
any such amounts shall pay interest to the Performance Assurance Board
from and including the deemed due date for payment, calculated in
accordance with sub-section 19.2 of the Menu of Supplier Charges, to
the date of payment (before as well as after judgment) at the Base
Rate from time to time during such period.
5.10 Application of payments: Any amount received by the Performance
Assurance Board pursuant to this Part 3 shall be applied by the
Performance Assurance Board (unless otherwise specified by the paying
Supplier) in or towards payment of amounts payable by the Supplier in
respect of the longest outstanding invoice and (where there is a
shortfall in payment by a Supplier of any amounts specified in a
single invoice in respect of different GSP Groups) according to the
proportion which the individual amounts payable pursuant to the
invoice bear to the total amount payable under that invoice.
5.11 Accounting by the Performance Assurance Board: Any amounts paid by a
Supplier pursuant to this Part 3 shall be accounted for separately by
the Performance Assurance Board by reference to the GSP Group in
respect of which the relevant amounts have been collected or
appropriated. The Performance Assurance Board shall not be obliged to
segregate any amounts received pursuant to this Part 3 into separate
funds.
5.12 Recovery by Suppliers: Each qualifying Supplier shall be entitled to
receive its due proportion of amounts recoverable pursuant to this
Part 3 and available for distribution in respect of a GSP Group. For
this purpose:-
5.12.1 a "qualifying Supplier" is a Supplier who has at any time
during the relevant month supplied any customers in the
relevant GSP Group who have Non Half Hourly Metering
Systems;
5.12.2 the due proportion relating to a qualifying Supplier is the
amount (as near as may be) calculated by the Performance
Assurance Board as that Supplier's share of the total
quantity of energy (after adjustment for Line Loss Factors)
attributable to Non Half Hourly Metering Systems taken by
all Suppliers in the GSP Group during the relevant month
pursuant to this Agreement;
<PAGE>
5.12.3 the amount available for distribution in relation to a GSP
Group in respect of a particular month is 90 per cent. of
the total amount from time to time paid or due and payable
from Suppliers pursuant to this Part 3 in relation to the
relevant GSP Group in respect of that month, whether or not
then paid; and
5.12.4 the information as to total quantity of energy referred to
in paragraph 5.12.2 shall be as provided by the Initial
Settlement and Reconciliation Agent based on the latest
available run of Stage 2 Settlement as at the time when the
relevant calculation falls to be made.
5.13 Recovery by Pool Members: Each qualifying Pool Member shall be
entitled to receive a share of amounts recoverable pursuant to this
Part 3 and available for distribution in respect of Pool Members in
the proportion to which a Pool Member's Contributory Share bears to
the Contributory Shares of all Pool Members applicable in respect of
the relevant month. For this purpose:-
5.13.1 a "qualifying Pool Member" is a Pool Member who was at any
time during the relevant month a Pool Member; and
5.13.2 the amount recoverable pursuant to this Part 3 and available
for distribution to qualifying Pool Members in respect of a
particular month is 10 per cent. of the total amount from
time to time paid or due and payable from Suppliers pursuant
to this Part 3 in relation to the relevant GSP Group in
respect of that month, whether or not then paid.
5.14 Payments to Suppliers and Pool Members: The Performance Assurance
Board shall, by no later than the end of each month, calculate the
amount (if any) payable to each qualifying Supplier and qualifying
Pool Member pursuant to sub-section 5.12 and sub-section 5.13 in
respect of the relevant preceding month (or months) to which a
Supplier's Routine Performance Monitoring Report relates and any
earlier months. The Performance Assurance Board shall, by no later
than the end of each month, notify each qualifying Supplier and
qualifying Pool Member of the amounts (if any) so recoverable by them
and shall account to each qualifying Supplier and qualifying Pool
Member on a monthly basis out of the funds received in respect of any
particular GSP Group for the amounts so recoverable. The Performance
Assurance Board shall in no circumstances be obliged to account to a
qualifying Supplier or qualifying Pool Member in an amount exceeding
the available funds collected pursuant to this Part 3. Any amounts so
paid by the Performance Assurance Board to a qualifying Supplier or
qualifying Pool Member shall be deemed to be inclusive of any United
Kingdom Value Added Tax, if applicable.
5.15 Rights of Suppliers and Pool Members entitled to a recovery: The
provisions of this Part 3 shall give rise to rights and obligations as
between Suppliers within the same GSP Group and as between qualifying
Pool Members generally and the relevant Supplier. The procedures for
collection and payment of amounts by the Performance Assurance Board
shall accordingly be without prejudice to the rights of any qualifying
Supplier or qualifying Pool Member to enforce its claim (to the extent
not paid or otherwise satisfied) against any Supplier who fails to
make payment on the due date.
<PAGE>
5.16 Delegation by Performance Assurance Board: The Performance Assurance
Board may arrange for EPFAL or some other person nominated by it from
time to time to carry out all or any of its functions pursuant to
sub-sections 5.1 to 5.15 (save where the Performance Assurance Board
is required to make a determination pursuant to any of sub-sections
5.2 and 5.3 and paragraph 5.12.2), in which case references to the
Performance Assurance Board in those sub-sections are to be read as
references to EPFAL or such other person so long as such delegation
continues.
PART 4: RECOVERY OF OPERATIONAL COSTS
6. RECOVERY OF POOL ADMINISTRATION COSTS
6.1 Applicability: The provisions of this Section 6 shall apply to:-
6.1.1 the costs and expenses (within the extended meaning of that
expression in Clause 23.5) of the Executive Committee, its
sub-committees and sub-groups and the personnel referred to
in Clause 17.2.1 together with the liabilities (if any)
associated with the termination of any lease of any business
accommodation required by the Executive Committee, the Chief
Executive, the sub-committees, the sub-groups or such
personnel and the costs and expenses of the Performance
Assurance Board;
6.1.2 the costs and expenses of Committee Members and members of
the sub-committees and sub-groups of the Executive Committee
and of members of the Performance Assurance Board;
6.1.3 the costs and expenses of the Pool Chairman;
6.1.4 the remuneration, costs and expenses of the personnel
referred to in Clause 17.2.1;
6.1.5 the remuneration, costs and expenses of the Secretary;
6.1.6 the costs and expenses of the Pool Auditor;
6.1.7 the overhead costs of the Electricity Arbitration
Association;
6.1.8 all such other costs, fees, expenses, liabilities, losses
and other amounts which are required by this Agreement (or
any other agreement, document or arrangement prepared,
executed or entered into pursuant to this Agreement and for
this purpose approved by the Executive Committee) to be
dealt with "in accordance with Section 20 of Schedule 15" or
"in accordance with Section 6 of Schedule 31" or "in
accordance with the PFA Accounting Procedure";
6.1.9 the Pool Administration Fee (as defined in Schedule 15); and
<PAGE>
6.1.10 any bad debts which are to be treated as Pool Administration
Costs pursuant to sub-section 6.7,
but in any event excluding any Stage 2 Operational Costs (together
"Pool Administration Costs").
6.2 Approval: The Executive Committee (or its delegate) shall approve all
Pool Administration Costs in advance of submitting the same to EPFAL
for payment.
6.3 Payment: Upon receipt of an invoice or other statement relating to
Pool Administration Costs which has been approved by or on behalf of
the Executive Committee in accordance with sub-section 6.2, EPFAL
shall pay the amount stated in such invoice or other statement to such
person or persons as the Executive Committee (or its delegate) shall
direct.
6.4 Recovery:
6.4.1 EPFAL shall collect from Pool Members the amounts which they
are obliged to pay towards the Pool Administration Costs and
Pool Members shall be obliged to pay in accordance with
sub-section 6.6 their respective proportionate share of the
Pool Administration Costs against receipt of an invoice or
other statement therefor issued by EPFAL and otherwise in
accordance with paragraph 6.5.1.
6.4.2 EPFAL shall collect from the Grid Operator, and the Grid
Operator shall be obliged to pay against receipt of an
invoice or other statement therefor issued by EPFAL and
otherwise in accordance with paragraph 6.5.2, 10 per cent.
of the annual overhead costs of the Electricity Arbitration
Association.
6.5 Collection procedure:
6.5.1 EPFAL shall arrange for collection from Pool Members of their
respective proportionate share of the Pool Administration
Costs in such manner as may be agreed by EPFAL with the
Executive Committee from time to time (which may include
collection in advance) and Pool Members shall comply with such
collection procedures and, in particular, shall make payment
within the time period prescribed by such procedures.
6.5.2 The Grid Operator shall make payment of the amount referred to
in paragraph 6.4.2 within 15 days after receipt of the invoice
or other statement therefor.
6.6 Proportionate share: Pool Members shall contribute towards the Pool
Administration Costs referable to a month in the proportions which
their respective Contributory Shares bear to each other during such
month.
6.7 Bad debts: If in any Accounting Period the Executive Committee
recognises bad debts arising from a Pool Member's failure to pay its
due proportion of Pool Administration Costs, the aggregate amount of
those bad debts shall form part of the Pool Administration Costs for
that Accounting Period.
<PAGE>
6.8 Non payment provision:
6.8.1 Without prejudice to sub-section 6.7, if any Pool Member
fails to pay an amount properly due under this Section
within 15 days of the due date for such payment (such Pool
Member being a "Non-paying Pool Member") each Pool Member
(other than the Non-paying Pool Member) shall be severally
liable for its Contributory Share (calculated on the basis
that the Points allocated to the Non-paying Pool Member are
disregarded and on the basis of the then most recently
calculated current Contributory Shares) and EPFAL shall
accordingly be entitled to recover the due proportion of
that amount from each Pool Member (other than the Non-paying
Pool Member). In that event, the Executive Committee shall
advise each Pool Member and each Pool Member shall pay the
amount advised in the relevant invoice within 15 days after
the invoice date.
6.8.2 A Non-paying Pool Member shall indemnify and keep
indemnified each Pool Member on demand against all sums
properly paid by such Pool Member pursuant to this
sub-section 6.8.
6.8.3 Each Pool Member shall give notice to the Executive
Committee before instituting any action or proceedings to
enforce payments due to it pursuant to this Section. Upon
receipt of any notice under this paragraph 6.8.3, the
Executive Committee will as soon as practicable notify all
Pool Members. The provisions of sub-section 24.4 of Schedule
11 shall apply mutatis mutandis in respect of any payment
due from a Non-paying Pool Member pursuant to this Section.
6.9 Delegation by Executive Committee:
6.9.1 The Executive Committee may from time to time nominate some
other person to carry out all or any of the functions
specified to be carried out by EPFAL pursuant to this
Section or determine to carry out such functions itself, in
which case the applicable references to EPFAL are to be read
as references to the person so nominated or (as the case may
be) the Executive Committee for so long as such nomination
or (as the case may be) determination continues.
6.9.2 The Executive Committee shall promptly give notice to all
Pool Members of any such nomination, determination or
re-nomination.
6.9.3 EPFAL shall be entitled (subject to any contrary agreement
with the Executive Committee) to cease to carry on all such
functions if at any time it ceases to be the Pool Funds
Administrator. In that event, the Executive Committee shall
itself carry out such functions or nominate some other
person to do so, in each case with effect from the date of
termination of EPFAL's role, in which event the provisions
of paragraph 6.9.1 shall apply.
<PAGE>
7. STAGE 2 OPERATIONAL COSTS
7.1 Recovery of Stage 2 Operational Costs: The Stage 2 Operational Costs
shall be recovered from Pool Members in accordance with the provisions
of this Section.
7.2 Allocation of Stage 2 Operational Costs: The Stage 2 Operational Costs
in respect of any Accounting Period shall be allocated as to half
amongst all Generators and as to half amongst all Suppliers.
7.3 Payment and Collection:
7.3.1 The Executive Committee shall collect from Pool Members the
amounts which they are obliged to pay towards Stage 2
Operational Costs pursuant to this Section and Pool Members
shall pay their share of such costs in accordance with
procedures approved from time to time by the Executive
Committee.
7.3.2 Unless otherwise determined by the Executive Committee and
subject to the other provisions of this Section and Section
8, payments in respect of such costs shall be made monthly
in advance on the basis of estimates prepared by the
Executive Committee of the Stage 2 Operational Costs which
will or may fall due in each month.
7.4 Allocation of Stage 2 costs to Generators: Generators shall contribute
towards the Stage 2 Operational Costs attributable to Generators in
the proportions which their respective Contributory Shares bear to the
aggregate Contributory Shares of Generators determined as X for the
purposes of Section 5 of Schedule 13.
7.5 Allocation of Stage 2 costs to Suppliers:
7.5.1 The "Suppliers' Half Hourly Charge" for an Accounting Period
shall be determined by the Executive Committee as the amount
payable in that Accounting Period in respect of each
Chargeable Metering System. The Executive Committee may from
time to time adjust the Suppliers' Half Hourly Charge in
respect of an Accounting Period, either before or after the
expiry of that Accounting Period. The Suppliers' Half Hourly
Charge in respect of an Accounting Period beginning after
1st April, 1998 shall, failing any determination by the
Executive Committee in respect of that Accounting Period, be
the same as that most recently determined in respect of a
prior Accounting Period.
<PAGE>
7.5.2 The Stage 2 Operational Costs attributable to Suppliers
shall be allocated amongst Suppliers as follows:-
(i) first, each Supplier shall pay a charge in respect
of each month calculated in accordance with the
following formula:-
Suppliers' Half Hourly Charge x NCMS
-----------------------------
12
where NCMS is the number of Chargeable Metering
Systems relating to that Supplier determined in
accordance with paragraph 7.5.3;
(ii) secondly, each Supplier shall pay a charge in
respect of each month in an Accounting Period
calculated in accordance with the following
formula:-
[OCS/12 - TSCHHC] x [SNHH/TNHH]
where:-
OCS is the aggregate Stage 2 Operational Costs
attributable to Suppliers in respect of that
Accounting Period in accordance with sub-section
7.2;
TS2HHC is the total of the charges payable by all
Suppliers in respect of that month in accordance
with paragraph 7.5.2(i);
SNHH is the aggregate quantity of energy
(expressed in MWh) relating to Non Half Hourly
Metering Systems for which that Supplier is
responsible for all Settlement Periods in the
Calculation Period relating to that month; and
TNHH is the aggregate quantity of energy
(expressed in MWh) relating to Non Half Hourly
Metering Systems in relation to all Settlement
Periods in the Calculation Period relating to that
month.
7.5.3 For the purposes of paragraph 7.5.2, the number of "Chargeable
Metering Systems" relating to a Supplier shall be determined by the
Executive Committee as the average of (a) the number of Half Hourly
Metering Systems in respect of which that Supplier is effectively
registered in a PES Registration Service and (for those Metering
Systems registered in ERS) in respect of which it is the Registrant,
in each case as at the start of the Calculation Period initially
applicable in relation to that month and (b) the number of Half Hourly
Metering Systems in respect of which that Supplier is effectively
registered in a PES Registration Service and (for those Metering
Systems registered in ERS) in respect of which it is the Registrant,
in each case as at the end of the Calculation Period initially
applicable in relation to that month. For this purpose:-
<PAGE>
(i) the number of Half Hourly Metering Systems
registered in ERS shall in each case be the
product of (x) the number notified to the
Executive Committee by the Settlement System
Administrator and (y) [OBJECT OMITTED]; and
(ii) the number of Half Hourly Metering Systems in
respect of which a Supplier is effectively
registered in a PES Registration Service shall be
as notified by the relevant Host PES and each Host
PES agrees promptly to provide such information to
the Executive Committee.
7.5.4 For the purposes of paragraph 7.5.2:-
(i) the calculation of the charge payable pursuant to
paragraph 7.5.2(ii) shall initially be made on
each Calculation Date in respect of the Following
Month; and
(ii) the volumes of energy shall be as determined, for
all Settlement Periods in the Calculation Period
relating to a month, from the final run of Stage 1
Settlement and the latest available run of Stage 2
Settlement as at the close of business on the
Business Day immediately preceding the relevant
Calculation Date.
7.6 Non payment provision:
7.6.1 If any Pool Member fails to pay an amount properly due under
this Section within 15 days of the due date for such payment
(such Pool Member being a "Non-paying Pool Member") each
Pool Member (other than the Non-paying Pool Member) shall be
severally liable for its Contributory Share (calculated on
the basis that the Points allocated to the Non-paying Pool
Member are disregarded and on the basis of the then most
recently calculated current Contributory Shares) of the
amount payable by such Non-paying Pool Member pursuant to
sub-section 7.4 or (as the case may be) sub-section 7.5 and
the Executive Committee shall accordingly be entitled to
recover the due proportion of that amount from each Pool
Member (other than the Non-paying Pool Member). In that
event, the Executive Committee shall advise each Pool Member
of the amount payable by invoice despatched to each Pool
Member and each Pool Member shall pay the amount advised in
the relevant invoice within 15 days after the invoice date.
7.6.2 A Non-paying Pool Member shall indemnify and keep
indemnified each Pool Member on demand against all sums
properly paid by such Pool Member pursuant to this
sub-section 7.6.
7.6.3 Each Pool Member shall give notice to the Executive
Committee before instituting any action or proceedings to
enforce payments due to it pursuant to this Section. Upon
receipt of any notice under this paragraph 7.6.3, the
Executive Committee will as soon as practicable notify all
Pool Members. The provisions of sub-section 24.4 of
<PAGE>
Schedule 11 shall apply mutatis mutandis in respect of any
payment due from a Non-paying Pool Member pursuant to this
Section.
7.7 Transitional provisions: The Executive Committee may, in its
discretion, determine the respective charges to be payable by
Suppliers pursuant to sub-section 7.5 according to such transitional
arrangements as it considers appropriate from time to time having
regard to the availability of information concerning Half Hourly
Metering Systems or (as the case may be) Non Half Hourly Metering
Systems and volumes of energy attributable to particular Suppliers.
Without prejudice to the foregoing, the Executive Committee shall
establish reasonable transitional arrangements for the period from the
date when the provisions of this Section come into effect until the
information referred to is available in respect of all GSP Groups and
Pool Members shall pay the charges established in accordance with
those arrangements.
7.8 Delegation by Executive Committee: The Executive Committee may arrange
for EPFAL or some other person nominated by it from time to time to
carry out all or any of its functions pursuant to this Section (save
where the Executive Committee is required to make a determination or
estimate pursuant to any of paragraphs 7.3.2, 7.3.3, 7.5.1, 7.5.3 and
sub-section 7.7), in which case the applicable references to the
Executive Committee in this Section are to be read as references to
the EPFAL or such other person so long as such delegation continues.
The Executive Committee shall promptly give notice to all Pool Members
of any such delegation.
8. GENERAL PROVISIONS
8.1 Allocation of costs: The Executive Committee shall determine from time
to time whether any particular costs or category of costs fall to be
treated as Pool Administration Costs or as Stage 2 Operational Costs
in respect of any Accounting Period or other period.
8.2 Provisions relating to payments generally: Any payment to be made by a
Pool Member (whether a Generator or Supplier) under this Part shall be
made to the relevant payee (or as otherwise directed by the Executive
Committee) in sterling in cleared funds in full without set off or
counterclaim, withholding or deduction of any kind whatsoever but
without prejudice to any other remedy. All charges and payments under
this Part are exclusive of United Kingdom Value Added Tax which shall
be added to such charges or payments, if applicable.
8.3 No withholding: In the event of any dispute regarding charges or
payments under this Part in any month or period, no Pool Member may
withhold payment of any invoiced amount but may refer such dispute to
arbitration in accordance with Clause 83.
8.4 Interest on non-payment: If any amount due under this Part is not
received on the due date, the Pool Member required to pay such amount
shall pay interest to the relevant payee (or as otherwise directed by
the Executive Committee) on such amount from and including the date of
default to the date of actual payment (as well after as before
judgment) at the Default Interest Rate from time to time during such
period of default.
<PAGE>
8.5 Adjustments: The Executive Committee shall from time to time determine
what (if any) adjustments are necessary as a result of:-
8.5.1 any recalculation of Contributory Shares or (as the case may
be) volumes of energy on any Calculation Date after the
initial Calculation Date relating to a month;
8.5.2 any recalculation of Pool Administration Costs referable to
a month pursuant to sub-section 8.6;
8.5.3 any recalculation of Stage 2 Operational Costs referable to
a month pursuant to sub-section 8.6;
8.5.4 any recalculation of Stage 2 Operational Costs referable to
a month by virtue of a change in the Calculation Period
relating to a month;
8.5.5 existing Pool Members leaving or new Pool Members joining;
and
8.5.6 any change of capacity in which a Party participates as a
Pool Member.
Notwithstanding the foregoing provisions, no adjustment shall fall to
be made in respect of charges payable by Suppliers as a result of
revised information in relation to quantities of energy attributable
to particular Suppliers becoming available to the Executive Committee
on account of a Reconciliation Run.
8.6 Recalculation of costs: On each Calculation Date during an Accounting
Period and on the Final Calculation Date in respect of an Accounting
Period, the Executive Committee shall:-
8.6.1 re-calculate the Pool Administration Costs referable to each
wholly or partially elapsed month in that Accounting Period
and in the Following Month (if in that Accounting Period)
such that the amount of those costs treated as referable to
each such month is equal; and
8.6.2 re-calculate the Stage 2 Operational Costs referable to each
wholly or partially elapsed month in that Accounting Period
and in the Following Month (if in that Accounting Period)
such that the amount of those costs treated as referable to
each such month is equal.
8.7 Consequences of adjustments:
8.7.1 Whenever the Executive Committee determines that an
adjustment is necessary pursuant to sub-section 8.5, the
Pool Members and/or former Pool Members concerned shall be
required to pay such additional amounts or be entitled to
such reimbursement as may be determined by the Executive
Committee by an adjustment to charges in respect of a
preceding month or the Following Month.
<PAGE>
8.7.2 No adjustment shall fall to be made unless the information
which gives rise to the adjustment is available as at close
of business on the Business Day immediately before a
Calculation Date.
8.7.3 No reimbursement shall be made to a leaving Pool Member in
respect of any month until the necessary adjustments (if
any) have been made to take into account, following the end
of the Accounting Period in which that Party is to cease to
be a Pool Member, the final run of Stage 1 Settlement and
the Stage 1 Initial Settlement Run in respect of all
Settlement Periods during which that Party traded as a Pool
Member.
8.8 Invoice amounts: The Executive Committee shall not be required to
issue any invoice, nor to pay an amount by way of reimbursement (nor
issue any credit note in respect of any such reimbursement), to a Pool
Member if the aggregate amount otherwise payable by, or to be
reimbursed by, that Pool Member pursuant to Sections 6 and 7 and
sub-section 8.5 is less than the minimum from time to time determined
by the Executive Committee provided that if in respect of an
Accounting Period such aggregate amount is less than such minimum
amount, the Executive Committee shall issue an invoice in respect of
such aggregate amount (which the Pool Member shall be required to pay)
immediately after the Final Calculation Date for such Accounting
Period. Where the minimum applies, a Pool Member shall remain liable
for any amounts payable by it but shall not be required to make any
payment until such time as the amount in question is included in an
invoice. Sub-section 8.4 shall be construed accordingly.
PART 5: MISCELLANEOUS SETTLEMENT CHARGES
9.1 Charges relating to disputes: The Executive Committee shall be
entitled to require that a fee or other charge (not
exceeding(pound)500 per dispute or such other sum as the Pool Members
in general meeting may from time to time approve) be levied on and
paid by a Party in respect of any dispute concerning Settlement or its
operation (including with respect to data) referred by such Party for
determination to the Executive Committee or any sub-committee thereof.
Such fee or other charge shall be levied, paid and collected in such
manner and at such time as the Executive Committee shall direct and
the relevant Party hereby undertakes to pay any such fee or other
charge so levied. Any such fee or other charge shall at the option of
the Executive Committee (i) be refunded in whole or in part to the
Party which paid the same, or (ii) be applied against the
administration costs of whatsoever nature of the Executive Committee
or the relevant sub-committee.
9.2 Externally Interconnected Parties' costs:
9.2.1 An Externally Interconnected Party shall be entitled to
recover in accordance with this sub-section 9.2 its costs
and expenses reasonably incurred in acting in accordance
with this Agreement as the Externally Interconnected Party
for its Corresponding External Pool Members (as defined in
the Pool Rules).
9.2.2 Not later than 30 days after the beginning of each
Accounting Period (commencing with the Accounting Period
beginning in 1992) each Externally Interconnected Party
shall submit in writing to the Executive Committee for
approval (such approval not to
<PAGE>
be unreasonably withheld) reasonable details of the costs
and expenses anticipated as likely to be incurred by it in
its capacity as an Externally Interconnected Party in that
Accounting Period and (commencing with the Accounting Period
beginning in 1993) of the actual costs and expenses so
incurred by it in the immediately preceding Accounting
Period. If approved by the Executive Committee, all such
costs and expenses shall be recovered by an Externally
Interconnected Party from its Corresponding External Pool
Members in accordance with paragraph 9.2.3. If not so
approved, the Externally Interconnected Party shall revise
and resubmit to the Executive Committee the said details as
often as may be required in order to obtain such approval.
9.2.3 Each Corresponding External Pool Member shall reimburse its
Externally Interconnected Party its due proportion of all
its Externally Interconnected Party's approved costs and
expenses within 28 days after receipt of an invoice from its
Externally Interconnected Party. The Externally
Interconnected Party shall issue invoices in respect of each
Quarter on or after the Quarter Day relating thereto.
Invoices shall be based on approved anticipated costs and
expenses for the relevant Accounting Period and the first
invoice for each Accounting Period (commencing with the
Accounting Period beginning in 1993) shall include any
correction that may be necessary on account of the approved
actual costs and expenses being different from the approved
anticipated costs and expenses for the immediately preceding
Accounting Period.
9.2.4 For the purposes of this sub-section 9.2 a Corresponding
External Pool Member's due proportion of its Externally
Interconnected Party's approved costs and expenses for each
Quarter shall be calculated as follows:-
(a) the aggregate of the Externally Interconnected
Party's approved costs and expenses shall be
divided by two;
(b) as to one half of such approved costs and
expenses, the Corresponding External Pool Member's
due proportion shall be the proportion which the
sum of (i) the number of its Generation Trading
Blocks and (ii) one (representing the notional
Consumer referred to in paragraph 26.5.2(d) of the
Pool Rules) bears to the sum of (a) the total
number of the Generation Trading Blocks of all
Corresponding External Pool Members the Externally
Interconnected Party of which is the same as that
for the Corresponding External Pool Member in
question and (b) the number of all such
Corresponding External Pool Members, and each such
Corresponding External Pool Member shall for this
purpose be allocated at least one Generation
Trading Block; and
(c) as to the other half of such approved costs and
expenses, the Corresponding External Pool Member's
due proportion shall be the proportion which its
Gross Traded Energy for the Quarter in question
bears to the aggregate of the Gross Traded Energy
for that Quarter of all Corresponding External
Pool Members the Externally Interconnected Party
of which is the same as that for the
<PAGE>
Corresponding External Pool Member in question,
and for this purpose "Gross Traded Energy" in
respect of any Quarter and any Corresponding
External Pool Member shall be the aggregate amount
of Active Energy (measured in kWh) bought and sold
pursuant to this Agreement by such Corresponding
External Pool Member in its capacity as such in
that Quarter.
9.2.5 The foregoing provisions of this Section may be amended or
varied in respect of an Externally Interconnected Party and
its Corresponding External Pool Members (or any of them) by
prior written agreement of that Externally Interconnected
Party, all its Corresponding External Pool Members and the
Executive Committee.
<PAGE>
SCHEDULE 32
Master Registration Agreement
1. MRA POOL AGENT
1.1 Appointment of MRA Pool Agent: The Executive Committee is hereby
authorised by Pool Members to appoint and remove at any time and from
time to time, and to remunerate, a person (the "MRA Pool Agent") to
represent Pool Members in relation to the Master Registration
Agreement on such terms and conditions as are agreed with the MRA Pool
Agent (the "MRA Pool Agent Terms"). Such terms will include provision
for the MRA Pool Agent irrevocably and unconditionally to authorise
the Executive Committee and the Chief Executive severally to execute
and deliver on its behalf a notice of resignation as Pool Agent in
accordance with the terms of the Master Registration Agreement and to
undertake not to revoke, withdraw or amend such authority. EPFAL, as
the first MRA Pool Agent, hereby irrevocably and unconditionally so
authorises and undertakes.
1.2 Role of the Executive Committee: Subject to the MRA Pool Agent Terms,
the Executive Committee shall have the right on behalf of Pool Members
to instruct the MRA Pool Agent in relation to the Master Registration
Agreement and shall supervise the MRA Pool Agent in the performance of
its functions as Pool Agent under the Master Registration Agreement.
1.3 Delegation of powers: Pool Members hereby delegate to the Executive
Committee all powers necessary to enable the Executive Committee to
exercise its rights and responsibilities under this Section 1.
1.4 Responsibilities of MRA Pool Agent: The MRA Pool Agent is hereby
authorised by Pool Members to become a party to the Master
Registration Agreement to represent Pool Members in relation to the
Master Registration Agreement with, inter alia, the duties, rights and
responsibilities set out in the Master Registration Agreement for the
Pool Agent (as therein defined) (but subject to the MRA Pool Agent
Terms) and such other duties, rights and responsibilities as shall be
agreed from time to time by the Executive Committee and the MRA Pool
Agent. The MRA Pool Agent shall (subject to the MRA Pool Agent Terms)
be entitled to rely on all instructions given to it by the Executive
Committee in connection with the exercise of all such duties, rights
and responsibilities.
1.5 Costs of MRA Pool Agent: If and to the extent that the costs, fees,
expenses, liabilities and losses of the MRA Pool Agent incurred in the
performance of its duties, rights and responsibilities referred to in
sub-section 1.4 are not capable of being, or are not, recovered
pursuant to the Master Registration Agreement, the same shall (subject
to the MRA Pool Agent Terms) be recovered in accordance with the PFA
Accounting Procedure.
2. SUPPLIERS TO BE PARTY TO THE MASTER REGISTRATION AGREEMENT
Each Supplier requiring Services under and as defined in the Master Registration
Agreement shall become a party to the Master Registration Agreement and shall
use its reasonable endeavours to fulfil
<PAGE>
the conditions precedent set out in the Master Registration Agreement applicable
to it as soon as reasonably practicable after it has become a party to the
Master Registration Agreement.
3. ENTRY PROCESS REQUIREMENTS
3.1 Completion of Entry Process Requirements: Each Public Electricity
Supplier shall ensure that it has satisfied the requirements of the
PRS Entry Process in accordance with the relevant Agreed Procedure
before allowing its PES Registration Service to provide services in
relation to Stage 2 Settlement for the relevant GSP Group.
3.2 Assistance to Suppliers: Each Public Electricity Supplier shall
provide all reasonable assistance to each Supplier and its Supplier
Agents in accordance with the relevant Agreed Procedure as may be
required by the relevant Supplier and/or its Supplier Agents for it or
them to satisfy the requirements of the Supplier Entry Process.
4. POOL REQUIREMENTS FOR THE MRA
The Pool Requirements for the MRA are set out or referred to in the Annex to
this Schedule. Subject to sub-section 5.2, each Party shall comply with the Pool
Requirements for the MRA to the extent applicable to it.
5. CONFLICTS WITH THE MASTER REGISTRATION AGREEMENT
5.1 Conflicts with the Master Registration Agreement: Each of the Parties
hereby acknowledges and agrees the desirability of achieving and
maintaining consistency and the absence of conflict between the
provisions of this Agreement and the Master Registration Agreement but
recognises that it will not in all circumstances be possible to avoid
inconsistency or conflict.
5.2 Priorities: If at any time there is a conflict between the Pool
Requirements for the MRA (as interpreted in the context of this
Agreement) and the Priority Provisions (as defined in, and interpreted
in the context of, the Master Registration Agreement), the Parties
agree that:-
5.2.1 if and for so long as a Party complies with the Priority
Provisions under the Master Registration Agreement, it will
not be in breach of its obligations under the Pool
Requirements for the MRA in respect of those provisions
which are in conflict with the Priority Provisions; and
5.2.2 until such time as such conflict is resolved through the
procedures set out in Clause 9 of the Master Registration
Agreement and the applicable procedures under this
Agreement, the Priority Provisions shall prevail over the
Pool Requirements for the MRA with which they are in
conflict, provided that nothing in this sub-section 5.2 or
Clause 9.2 of the Master Registration Agreement shall
prejudice the form or content of any proposed change to
resolve the conflict.
<PAGE>
6. CHANGE CO-ORDINATION
6.1 Control over change: The Parties agree that no changes to the Pool
Requirements for the MRA shall be made under this Agreement without
first ensuring that the relevant procedures to change the
corresponding Priority Provisions under the Master Registration
Agreement have been complied with and the change has been approved
under the Master Registration Agreement.
6.2 Changes made at the same time: The Parties agree that, where changes
to the Pool Requirements for the MRA are agreed to under the terms of
this Agreement and to the corresponding Priority Provisions under the
Master Registration Agreement, they shall use their reasonable
endeavours to ensure that any changes to this Agreement and the Master
Registration Agreement are made with effect from the same date.
6.3 Co-ordination of changes: The Executive Committee shall be responsible
for liaising with the relevant forum under the Master Registration
Agreement to ensure co-ordination of the implementation of changes to
the Pool Requirements for the MRA.
7. CHANGES TO POOL REQUIREMENTS FOR THE MRA - POOL LED
7.1 Change request procedure: The Executive Committee shall ensure that,
where any change to the Pool Requirements for the MRA is proposed
under the terms of this Agreement, a copy of the change request is
given to MEC for its consideration. Such notification shall indicate
the timescale for submitting comments.
7.2 Provision of comments: The Executive Committee shall ensure that all
comments received in accordance with this Agreement on any such change
request together with any reports or results of an impact assessment
conducted under this Agreement, if any, on such change request are
(subject to any applicable restrictions on disclosure for reasons of
confidentiality) provided to MEC.
8. CHANGES TO PRIORITY PROVISIONS - MRA LED
Where the Executive Committee, or the relevant sub-committee of the Executive
Committee which is empowered to co-ordinate change control in respect of the
Master Registration Agreement, receives a copy of a change request to the
Priority Provisions under the Master Registration Agreement that has been
proposed under the terms of the Master Registration Agreement, it shall consider
the request and shall, within the timescale indicated in the copy of the change
request, provide the relevant forum under the Master Registration Agreement with
its comments, if any, on the change request and shall indicate whether an impact
assessment may be necessary on the change request.
9. CHANGE REQUEST ACCEPTANCE OR REJECTION
9.1 Agreement on change: Where a change request to the Pool Requirements
for the MRA is accepted pursuant to the procedures set out in this
Agreement and the change request is accepted by the relevant forum
under the Master Registration Agreement, the Pool
<PAGE>
Requirements for the MRA shall be amended according to the change
request within an appropriate timescale.
9.2 Disagreement on change: Where either:-
9.2.1 a change request to the Pool Requirements for the MRA has
been accepted pursuant to the procedures set out in this
Agreement and the equivalent change request to the Priority
Provisions under the Master Registration Agreement is
rejected by the relevant forum under the Master Registration
Agreement; or
9.2.2 a change request to the Pool Requirements for the MRA is
rejected pursuant to the procedures set out in this
Agreement but the equivalent change request to the Priority
Provisions under the Master Registration Agreement is
accepted by the relevant forum under the Master Registration
Agreement,
the Pool Requirements for the MRA shall not be amended pursuant to the
change request.
<PAGE>
ANNEX
Pool Requirements for the MRA
1. Agreed Procedure AP501 (PES Registration Service).
2. Service Line 160 (Service Line for the PES Registration Service
(PRS)).
3. Paragraphs 1.3.2.3 and 1.3.3 of Service Line 130 (Half Hourly Data
Collection).
4. Paragraphs 2.2.3, 2.2.7, 3.2.3 and 3.2.7 of Agreed Procedure AP502
(Half Hourly Data Collection for Metering Systems Registered in PRS).
5. Paragraphs 1.3.3, 1.5.3.5, 1.5.4.1 and 1.5.4.2 of Service Line 120
(Non Half Hourly Data Collection).
6. Paragraphs 2.2.6, 3.2.6 and 4.4 of Agreed Procedure AP504 (Non Half
Hourly Data Collection for Metering Systems Registered in PRS).
7. Sections 49, 50.3 and 51.3 of Schedule 9.
<PAGE>
SCHEDULE 33
Poolit Limited
1. BACKGROUND
1.1 Establishment of joint venture: The Pool Members have agreed to
establish a joint venture company to carry on the Poolit Business,
subject to sub-section 4.2.
1.2 Poolit: Poolit was incorporated in England on 8th October, 1998 and at
the date on which this Schedule takes effect has an authorised share
capital of (pound)100 divided into 100 ordinary shares of (pound)1
each of which two shares have been issued.
1.3 Shareholders of Poolit: It is intended that the shareholders of Poolit
shall be limited to the Pool Members for the time being and from time
to time, each of whom shall hold a single share, and any nominee as
referred to in sub-section 10.3 of this Schedule. Each Pool Member
hereby gives its consent to becoming a Poolit Shareholder and (other
than those Pool Members to whom a subscriber share is transferred as
referred to in paragraph 1 of Annex 1) applies for one Poolit Share to
be allotted to it and each Pool Member which is a Pool Member on the
date on which this Schedule takes effect agrees to make payment
of(pound)1 to Poolit (or as Poolit shall direct) prior to the holding
of the Poolit Board Meeting referred to in paragraph 3 of Annex 1.
1.4 Regulation of rights: The Poolit Shareholders have agreed that their
respective rights as shareholders in Poolit shall be regulated by the
provisions of this Schedule (including the Poolit Articles) and Poolit
has agreed with the Poolit Shareholders to comply with such of the
matters contained in this Schedule as relate to Poolit.
2. DEFINITIONS AND INTERPRETATION
2.1 Definitions: In this Schedule, except where the context otherwise
requires, words and expressions defined in Clause 1.1 of this
Agreement shall have the same meaning and:-
"Affiliate" means, in respect of any body corporate, a
body corporate which is its subsidiary or
holding company, or a company which is a
subsidiary of that holding company, and each
such company;
"Financial Year" has the meaning given to the term "financial
year" in section 223 of the Companies Act
1985;
<PAGE>
"Intellectual Property" means:-
(i) patents, trade marks and service marks,
rights in designs, information and
databases, trade or business names or
signs, copyrights (including rights in
computer software and associated
documentation) and topography rights
(whether or not any of these is
registered and including applications
for registration of any such thing);
(ii) all rights or forms of protection of a
similar effect to any of the rights and
other matters referred to in (i) above;
and
(iii) rights under licences in relation to
any of the rights and other matters
referred to in (i) and (ii) above;
"Licensed IPR" means all Pool Intellectual Property
transferred to Poolit pursuant to the
Twenty-Sixth Supplemental Agreement amending
this Agreement, and for the time being held
by Poolit, which comply with criteria for
licensing approved by those Poolit
Shareholders who together as Pool Members
have not less than 84 per cent. of the
Weighted Votes of all Pool Members;
"Non-paying Poolit
Shareholder" has the meaning given to that term in
sub-section 9.4;
"Poolit" means Poolit Limited (registered number
3646741) whose registered office is situate
at Third Floor, 1 Triton Square, London NW1
3DX;
"Poolit Articles" means the Articles of Association of Poolit
set out in Annex 3 to this Schedule, as the
same may be amended from time to time;
"Poolit Board" means the board of directors of Poolit;
<PAGE>
"Poolit Business" means the business of holding and exploiting
Pool Intellectual Property transferred to
Poolit pursuant to the Twenty-Sixth
Supplemental Agreement amending this
Agreement and for the time being held by
Poolit for the benefit of Pool Members
collectively;
"Poolit Chairman" means the chairman of the Poolit Board for
the time being and from time to time;
"Poolit Company
Secretary" means the company secretary of Poolit for the
time being and from time to time;
"Poolit Completion
Date" means 1st April, 1999 or such other date as
may be determined as the Poolit Completion
Date by the Executive Committee;
"Poolit Directors" means the directors of Poolit for the time
being and from time to time;
"Pool Intellectual
Property" means Intellectual Property:-
(i) which is:-
(a) owned jointly by all Pool Members
under or pursuant to the terms of
this Agreement; or
(b) owned by or licensed to EPFAL but,
in either case, held by EPFAL on
trust for the Pool Members (other
than the Funds Transfer Software
and any other software used by
EPFAL in the Funds Transfer
Business); or
(c) owned by or licensed to Poolserco;
and
(ii) which is created or arises:-
(a) under or pursuant to this
Agreement or any Service Line,
Agreed Procedure or Code of
Practice or any other document
produced by or on behalf of Pool
Members jointly; or
(b) in the course of, under or
pursuant to the 1998 Programme or,
after 1st April,
<PAGE>
1998, any other programme of work
undertaken by the Electricity Pool
of England and Wales,
but excludes Software, Developed
Application Software and Licensed
Application Software to the extent that
the terms of this Schedule or the
Twenty-Sixth Supplemental Agreement
amending this Agreement would otherwise
conflict with Section 8 or 9 of Schedule
4;
"Poolit Maximum
Aggregate
Shareholder
Contribution" has the meaning given to that term in
sub-section 9.2;
"Poolit Shareholders" means the persons for the time being and from
time to time registered as holders of Poolit
Shares;
"Poolit Shares" means ordinary shares of (pound)1 each in the
capital of Poolit and any shares issued in
exchange therefor by way of conversion or
reclassification and any shares representing
or deriving from such shares as a result of
any increase in or reorganisation or
variation of the capital of Poolit; and
"Retiring Poolit
Shareholder" has the meaning given to that term in
sub-section 10.3.
2.2 Interpretation: The Parties and Poolit acknowledge and agree that,
notwithstanding any other provision of this Agreement:-
2.2.1 Poolit has acceded as a party to this Agreement solely for
the purposes of this Schedule and is bound only to the
extent of those obligations on its part which are expressly
set out or referred to in this Schedule and not by any other
provision of this Agreement. In particular, but without
prejudice to the generality of the foregoing, Clause 25 of
this Agreement shall not apply to Poolit or to the Poolit
Shareholders in their capacity as such;
2.2.2 Poolit shall have only such rights under or in respect of
this Agreement as are expressly set out or referred to in
this Schedule;
2.2.3 the consent or agreement of Poolit shall not be required to
any modification, abrogation, amendment or suspension of any
provision of this Agreement which is not expressly set out
in this Schedule (including any modification or amendment to
any word or expression used in this Schedule but defined
elsewhere in this Agreement) and Poolit hereby irrevocably
waives any rights which it might be considered or held to
have to consent or agree to any such modification,
abrogation, amendment or suspension;
<PAGE>
2.2.4 within this Agreement the rights of Pool Members as
shareholders in Poolit are set out exclusively in this
Schedule and no other provision of this Agreement shall
apply in the regulation of the rights and obligations of
Poolit Shareholders inter se in their capacity as
shareholders in Poolit or as between the Poolit Shareholders
(or any of them) and Poolit;
2.2.5 the provisions of Parts III and IV do not apply to decisions
of Pool Members in their capacity as shareholders in Poolit
or to decisions of Committee Members in their capacity as
directors of Poolit; and
2.2.6 the provisions of Clauses 1.2, 1.3, 78.1, 79, 83, 84 and 85
of this Agreement shall be deemed to be incorporated in, and
to apply in respect of, this Schedule mutatis mutandis.
2.3 Authorisation to amend:
2.3.1 Poolit hereby unconditionally and irrevocably authorises and
instructs the Chief Executive and each person authorised for
the purpose by the Executive Committee to sign on its behalf
amending agreements to this Agreement and to execute any
agreement which modifies, abrogates, amends or suspends any
provision of this Agreement in circumstances where Poolit's
consent or agreement is not required, and undertakes not to
withdraw, qualify or revoke such authority and instruction
at any time.
2.3.2 The Executive Committee shall notify Poolit of all
amendments, modifications, abrogations and suspensions which
are made to this Agreement for which the consent or
agreement of Poolit is not required.
3. ESTABLISHMENT OF POOLIT AND NEW POOL MEMBERS
3.1 Completion: On the Poolit Completion Date each of the Pool Members,
Poolit Shareholders and Poolit shall perform its obligations set out
in, and comply with the provisions of, Annex 1 to this Schedule.
3.2 New Pool Members: Upon the accession to this Agreement of a new Pool
Member the Poolit Directors shall either:-
3.2.1 procure the transfer to such new Pool Member of one Poolit
Share in accordance with the provisions of sub-section 10.5
of this Schedule; or
3.2.2 procure the allotment and issue by Poolit to such new Pool
Member of one unissued Poolit Share (and the Poolit
Shareholders agree that where no Poolit Shares are otherwise
available for issue they will take all necessary steps in
relation to the creation and/or issue by Poolit of further
Poolit Shares as required).
<PAGE>
4. POOLIT'S BUSINESS
4.1 Compliance: Each of the Poolit Shareholders agrees with the other
Poolit Shareholders to exercise its rights under this Schedule and as
a shareholder in Poolit so as to ensure that:-
4.1.1 Poolit performs and complies with all its obligations under
this Schedule and complies with the restrictions (if any)
imposed upon it under the Poolit Articles; and
4.1.2 the Poolit Business is conducted in accordance with sound
and good business practice with the intention of generating
profits for distribution to Poolit Shareholders in
accordance with sub-section 8.3.
4.2 Sole business of Poolit: The Poolit Shareholders and Poolit
acknowledge and agree with the other Poolit Shareholders that, unless
and until Poolit Shareholders who together as Pool Members have not
less than 84 per cent. of the Weighted Votes of all Pool Members agree
otherwise in writing, the business of Poolit shall be confined to the
Poolit Business.
4.3 Independence of operations: Each Poolit Shareholder acknowledges and
agrees with the other Poolit Shareholders and Poolit that Poolit will
have complete independence in its operations and undertakes not to
take any action which obstructs or interferes with, or seeks to
obstruct or interfere with, the Poolit Business provided that this
sub-section 4.3 shall not affect the manner in which any Poolit
Shareholder may exercise its rights in respect of Poolit Shares held
by it.
5. THE MANAGEMENT OF POOLIT
5.1 Poolit Directors:
5.1.1 The Poolit Shareholders shall procure that the Poolit
Directors shall be the Committee Members for the time being
and from time to time.
5.1.2 The Poolit Shareholders shall severally indemnify Poolit
according to their respective Contributory Shares against
all claims, demands, liabilities, losses, costs and expenses
which Poolit may suffer or incur by reason of any claim by
any Poolit Director in connection with his removal from
office as a Poolit Director.
5.2 Chairman: The Poolit Chairman shall be the Pool Chairman for the time
being and from time to time.
5.3 Committees: The Poolit Directors may delegate any of their powers to
committees of the Poolit Board consisting of such persons as the
Poolit Directors may resolve. Any such committee shall exercise only
powers expressly delegated to it and shall comply with any regulations
imposed on it by the Poolit Board.
5.4 Poolit Company Secretary: The Poolit Company Secretary shall be such
person as may be approved by the unanimous resolution of the Poolit
Board from time to time. The Poolit Company Secretary shall be removed
by unanimous resolution of the Poolit Board.
<PAGE>
5.5 Proceedings at Poolit Board Meetings:
5.5.1 Voting Rights: Each Poolit Director shall have one vote. The
Poolit Chairman shall have no vote in his capacity as Poolit
Chairman.
5.5.2 Frequency: The Poolit Board shall meet not less frequently
than once in any period of three months unless otherwise
agreed by the Poolit Directors. A meeting of the Poolit
Board may be convened at any reasonable time at the request
of any Poolit Director by written notice to the Poolit
Company Secretary.
5.5.3 Meetings: Meetings of the Poolit Board may be held by
conference telephone call provided that participants
acknowledge that they can speak to and hear each other.
5.5.4 Notice: Each of the Poolit Directors shall be given notice
by the Poolit Company Secretary of each meeting of the
Poolit Board setting out details of the time, date and place
of meeting at least five working days prior to the date of
such meeting, provided that such period of notice may be
shortened for particular meetings by unanimous written
consent of all Poolit Directors entitled to attend and vote
thereat.
5.5.5 Quorum: The quorum for meetings of the Poolit Board shall be
constituted by the attendance of six Poolit Directors (or
their alternates in accordance with the Poolit Articles) in
person or participating by conference telephone call
throughout such meeting.
5.5.6 Resolutions: All resolutions of the Poolit Board shall be
made by vote of the Poolit Directors present or
participating by conference telephone call. Unless otherwise
expressly provided in this Schedule, a simple majority of
those present or participating by conference telephone call
will be required in respect of any matter before the Poolit
Board.
5.5.7 Written resolutions: A written resolution signed by all
Poolit Directors shall be as valid and effective as a
resolution passed unanimously by a meeting of the Poolit
Board properly convened and constituted in accordance with
the terms of this Schedule and the Poolit Articles.
5.5.8 Minutes: No later than ten working days after each Poolit
Board meeting, the Poolit Company Secretary shall circulate
minutes of that meeting to each of the Poolit Directors and,
upon written request for the same, to Poolit Shareholders.
<PAGE>
6. RESERVED MATTERS
The Poolit Shareholders shall procure, so far as they are able in their capacity
as shareholders in Poolit, that no action listed in Annex 2 to this Schedule
shall be taken and no resolution relating to such action shall be passed by
Poolit:-
6.1 in respect of the matters set out in Part A of Annex 2 to this
Schedule, except with the consent of those Poolit Shareholders who
together as Pool Members have not less than 65 per cent. of the
Weighted Votes of all Pool Members; and
6.2 in respect of the matters set out in Part B of Annex 2 to this
Schedule, except with the consent of those Poolit Shareholders who
together as Pool Members have not less than 84 per cent. of the
Weighted Votes of all Pool Members.
7. ACCOUNTS
7.1 Annual Accounts: At the end of each of Poolit's Financial Years, or as
soon as reasonably practicable thereafter, Poolit shall procure that
an account shall be taken of all the assets and liabilities of Poolit
and of all dealings and transactions of Poolit during such Financial
Year and that the Poolit Board shall prepare a report and accounts in
accordance with the Companies Act 1985 to be audited within three
months after the end of each Financial Year.
7.2 Audit: Any Poolit Shareholder shall have the right at any time to
require Poolit to instruct the auditors of Poolit to conduct a review
in respect of the financial affairs of Poolit. The cost of such review
shall be borne by the Poolit Shareholder requesting such review,
unless such review is approved by the majority of Poolit Directors in
which case it shall be borne by Poolit. If any such review is
requested, Poolit shall procure that Poolit's auditors are given all
reasonable assistance to complete the review within a reasonable
period of time.
8. DISTRIBUTION POLICY
The Poolit Shareholders shall take such action as may be necessary to
procure that:-
8.1 Annual General Meeting: Poolit's annual general meeting at
which audited accounts in respect of its preceding Financial
Year are laid before the Poolit Shareholders is held not
later than the date falling six months after the end of that
Financial Year;
8.2 Auditors' Report: Poolit's auditors shall at the expense of
Poolit be instructed to report as to the amount of the
profits available for distribution by Poolit for each
accounting reference period at the same time as they sign
their report on Poolit's audited accounts for the accounting
reference period in question; and
8.3 Distribution of Profits: Poolit distributes to and among the
Poolit Shareholders within 30 days of approval of the
audited accounts 100 per cent. of its profits available for
distribution in each year, subject to the appropriation of
such reasonable and proper reserves for working capital or
otherwise as the Poolit Board may consider appropriate.
<PAGE>
9. FINANCE FOR POOLIT
9.1 Poolit's financing needs: The Poolit Shareholders acknowledge and
agree with the other Poolit Shareholders and Poolit that Poolit will
from time to time require finance in order to fund its projected cash
requirements and to meet its liabilities.
9.2 Limits on financing: Poolit agrees that it shall not incur costs in
respect of any of its Financial Years of an amount greater than the
"Poolit Maximum Aggregate Shareholder Contribution" in respect of that
Financial Year. The Poolit Maximum Aggregate Shareholder Contribution
in respect of a Financial Year of Poolit shall be that amount which
those Poolit Shareholders who together as Pool Members have not less
than 84 per cent. of the Weighted Votes of all Pool Members shall
agree in writing no later than twenty working days before the start of
that Financial Year. The Poolit Company Secretary shall determine and
shall give notice to all Poolit Directors and Poolit Shareholders of
his determination whether a Poolit Maximum Aggregate Shareholder
Contribution has been so agreed in respect of a Financial Year of
Poolit and, if so agreed, the amount of that Poolit Maximum Aggregate
Shareholder Contribution. If no such agreement is reached in respect
of a Financial Year then, until such time as such agreement is
reached, the Poolit Maximum Aggregate Shareholder Contribution in
respect of such Financial Year shall be(pound)1 million.
9.3 Poolit Shareholders' contribution: The Poolit Shareholders shall be
liable to contribute towards the financing requirements of Poolit in
accordance with their respective Contributory Shares and shall make
payment of their proportionate share (together with Value Added Tax
thereon, if applicable) to Poolit or to such other person as Poolit
may from time to time direct within fifteen days after receipt of an
invoice or other statement therefor issued by Poolit.
9.4 Non-paying Poolit Shareholders: If any Poolit Shareholder fails to pay
an amount due to Poolit under this Schedule within fifteen days after
the due date for such payment (such Poolit Shareholder being a
"Non-paying Poolit Shareholder"), each Poolit Shareholder (other than
the Non-paying Poolit Shareholder) shall be severally liable for its
Contributory Share (calculated on the basis that the Points allocated
to the Non-paying Poolit Shareholder are disregarded) of that amount
and Poolit shall accordingly be entitled to recover the due proportion
of that amount from each Poolit Shareholder (other than the Non-paying
Poolit Shareholder). In that event, Poolit shall advise each Poolit
Shareholder of the amount payable by invoice or statement despatched
to each Poolit Shareholder and each Poolit Shareholder shall pay
Poolit (or such other person as Poolit may from time to time direct)
the amount advised in the relevant invoice or statement within fifteen
days after receipt.
9.5 Non-paying Poolit Shareholder's indemnity: A Non-paying Poolit
Shareholder shall indemnify each Poolit Shareholder on demand against
all sums properly paid by such Poolit Shareholder pursuant to
sub-section 9.4 and all costs and expenses reasonably incurred by each
Poolit Shareholder in recovering such sums. Any payment by a
Non-paying Poolit Shareholder pursuant to such indemnity shall be made
without any deduction and free and clear of and without any deduction
for or on account of any taxes, except to the extent that the
Non-paying Poolit Shareholder is required by law to make payment
subject to any taxes. If any tax or amounts in respect of tax must be
deducted or any other deductions must be made from any
<PAGE>
amounts payable or paid by a Non-paying Poolit Shareholder pursuant to
such indemnity, the Non-paying Poolit Shareholder shall pay such
additional amounts as may be necessary to ensure that the relevant
Poolit Shareholder receives a net amount equal to the full amount
which it would have received had payment not been made subject to tax.
9.6 Third party finance: If Poolit requires finance in addition to that
provided by the Poolit Shareholders pursuant to sub-sections 9.3 and
9.4, it shall endeavour to obtain such finance from a third party
lender on the best terms which could reasonably be expected to be
obtained in the open market.
9.7 Poolit Shareholder guarantees: If any indemnity, guarantee or other
assurance against loss is given by a Poolit Shareholder for any
obligation or liability of Poolit, at the request of Poolit all the
other Poolit Shareholders shall indemnify such Poolit Shareholder in
respect of any liability arising out of such indemnity, guarantee or
other assurance against loss in the proportions which the respective
Contributory Shares of all the Poolit Shareholders bear one to the
other at the time of request for indemnification.
10. TRANSFER OF POOLIT SHARES
10.1 Restriction on transfer: Otherwise than in accordance with the
following provisions of this Section 10 no Poolit Shareholder shall:-
10.1.1 pledge, mortgage (whether by way of fixed or floating
charge) or otherwise encumber its legal or beneficial
interest in its Poolit Shares; or
10.1.2 sell, transfer or otherwise dispose of any of such Poolit
Shares (or any legal or beneficial interest therein); or
10.1.3 enter into any agreement in respect of the votes attached to
Poolit Shares; or
10.1.4 agree, whether or not subject to any condition precedent or
subsequent, to do any of the foregoing.
10.2 Intra-group transfers: A Poolit Shareholder may transfer its Poolit
Shares to its Affiliate in circumstances where such Affiliate becomes
a Pool Member at the same time as such Poolit Shareholder ceases to be
a Pool Member.
10.3 Retiring Poolit Shareholders: If in relation to any of the Poolit
Shareholders (the "Retiring Poolit Shareholder"):-
10.3.1 the Retiring Poolit Shareholder ceases to be a Pool Member
for any reason; or
10.3.2 the Retiring Poolit Shareholder fails to remedy any material
breach on its part of this Schedule within 21 days after the
service of any written notice by a majority in number of the
other Poolit Shareholders complaining of such breach; or
<PAGE>
10.3.3 any of the events set out in Clause 66.3.6 or 66.3.7 shall
occur in relation to the Retiring Poolit Shareholder,
then, upon written notice to the Retiring Poolit Shareholder by any
other Poolit Shareholder, the Retiring Poolit Shareholder shall
transfer at par to a nominee for all the Poolit Shareholders (other
than the Retiring Poolit Shareholder) selected by the Poolit Directors
all of the Poolit Shares held by the Retiring Poolit Shareholder. All
costs and expenses of such transfer shall be for the account of the
Retiring Poolit Shareholder.
10.4 Enforced transfer: If a Retiring Poolit Shareholder shall fail or
refuse to transfer any Poolit Shares in accordance with its
obligations under sub-section 10.3 the Poolit Directors may authorise
Poolit to execute and deliver a transfer from the Retiring Poolit
Shareholder to a nominee on behalf of the Retiring Poolit Shareholder.
Poolit may accept the consideration for the transfer and hold it on
trust for the Retiring Poolit Shareholder, which acceptance shall be a
good discharge to the nominee and may set off such amount against the
costs and expenses of the transfer. The Poolit Directors shall cause
the transferee to be registered as the holder of such Poolit Shares
and, following the registration of the transfer, the validity of the
proceedings shall not be questioned by any person.
10.5 Nominee's holding: The nominee referred to in sub-section 10.3 shall
hold Poolit Shares transferred to it on the terms set out in that
sub-section until such time as it is directed by the Poolit Directors
to transfer them (or some of them) to one or more Pool Members.
11. DURATION AND TERMINATION
This Schedule shall continue in full force and effect until the first
to occur of the following events:-
11.1 the termination of this Agreement pursuant to Clause 67.4;
11.2 all the Poolit Shareholders agree in writing to terminate
the arrangements set out in this Schedule; and
11.3 an effective resolution is passed or a binding order is made
for the winding up of Poolit,
provided, however, that this Schedule shall cease to have effect as
regards any Poolit Shareholder who ceases to hold any Poolit Shares
(save that any accrued rights and obligations as at the date of
cessation shall not be thereby extinguished).
12. POOLIT SHAREHOLDERS GENERALLY
The Poolit Shareholders shall procure that, save for any nominee
referred to in sub-section 10.3:-
12.1 no person other than a Pool Member shall acquire shares in
Poolit (whether by transfer or allotment) and that no Pool
Member shall be a Poolit Shareholder unless and until it
<PAGE>
has agreed to be bound by this Schedule in the capacity of a
Poolit Shareholder (which it shall be taken to have done by
being a signatory to this Agreement); and
12.2 no person shall at any point hold more than one Poolit
Share.
13. LICENSED IPR
Poolit shall on request by any Poolit Shareholder grant, so far as it
is able, to such Poolit Shareholder for so long as it remains a Poolit
Shareholder a non-exclusive, royalty-free licence to use the Licensed
IPR on substantially the terms and conditions which those Poolit
Shareholders who together as Pool Members have not less than 84 per
cent. of the Weighted Votes of all Pool Members shall agree in writing
from time to time and identify as the "Form of licence of Licensed
IPR".
14. CONFLICT WITH THE ARTICLES
In the event of any ambiguity or discrepancy between the provisions of
this Schedule and the Poolit Articles, then it is the intention of the
Poolit Shareholders that the provisions of this Schedule (for so long
as they remain in force) shall prevail and accordingly the Poolit
Shareholders shall exercise all voting and other rights and powers
available to them so as to give effect to the provisions of this
Schedule.
15. FURTHER ASSURANCE
Each Poolit Shareholder shall co-operate with the other Poolit
Shareholders and with Poolit and shall execute and deliver to the
other Poolit Shareholders or Poolit (as the case may be) such other
instruments and documents and take such other actions as may be
reasonably requested from time to time in order to carry out, evidence
and confirm their or its rights under, and the intended purpose of,
this Schedule.
<PAGE>
ANNEX 1
Completion
1. Meeting of the Poolit Directors: On the Poolit Completion Date Pool
Members shall procure the holding of a meeting of the Poolit Board and
the passing thereat of resolutions:-
(a) appointing the Committee Members as Poolit Directors;
(b) accepting the resignation as Poolit Directors of those
persons (if any) who are not Committee Members;
(c) appointing Barclays Bank PLC as Poolit's bankers and passing
such resolutions relating to such appointment as the bank
may require;
(d) approving the transfer of the two subscriber shares in
Poolit each to a Pool Member; and
(e) convening an Extraordinary General Meeting of Poolit
immediately following the conclusion of the meeting of the
Poolit Directors for the purposes referred to in paragraph
2.
2. Extraordinary General Meeting: Upon the calling of the Extraordinary
General Meeting referred to in paragraph 1(e) the Poolit Shareholders
shall procure the giving of consents to short notice in respect of
such Extraordinary General Meeting and shall vote thereat in favour of
resolutions:-
(a) authorising the Poolit Directors to issue and allot at par
one Poolit Share to each Pool Member other than those two
Pool Members to whom the two subscriber shares in Poolit
have been transferred; and
(b) adopting the regulations in the form set out in Annex 3 to
this Schedule as the new Poolit Articles.
3. Poolit Board Meeting: Poolit shall procure the holding of a further
meeting of the Poolit Board and the passing thereat of resolutions:-
(a) approving the application of each Pool Member other than
those two Pool Members to whom the two subscriber shares in
Poolit have been transferred for a Poolit Share;
(b) authorising each Pool Member's name to be entered in the
Register of Members of Poolit as holder of one Poolit Share
and directing the sealing of a certificate in respect
thereof; and
(c) approving the terms upon which the Poolit Directors propose
to declare and pay dividends on Poolit Shares in respect of
the first five Financial Years of Poolit.
<PAGE>
4. Allotment: Upon receipt of the relevant consideration moneys payable
for a Poolit Share, Poolit shall allot and issue one Poolit Share to
each Pool Member other than those two Pool Members to whom the two
subscriber shares in Poolit have been transferred and shall register
each Pool Member as the holder of a Poolit Share and shall prepare,
seal and deliver to each Pool Member a share certificate in respect
thereof in its name.
<PAGE>
ANNEX 2
Limitations on Dealings
Part A
The matters referred to in sub-section 6.1 are:-
(i) the assignment of rights in respect of any Pool Intellectual Property
transferred to Poolit pursuant to the Twenty-Sixth Supplemental
Agreement amending this Agreement and for the time being held by
Poolit;
(ii) the making of decisions relating to the accounting policy of Poolit;
(iii) the acquisition, disposal or charge of assets of or securities held by
Poolit other than in the ordinary course of the Poolit Business;
(iv) the making of decisions relating to material contracts to which Poolit
is a party or material arrangements between Poolit and a third party;
(v) the making of changes to the pricing or trading terms of Poolit; and
(vi) the making by Poolit of a material claim, disclaimer, surrender,
election or consent for tax purposes.
<PAGE>
Part B
The matters referred to in sub-section 6.2 are:-
(i) the making of any change to Poolit's Memorandum of Association or the
Poolit Articles;
(ii) the undertaking of any business other than the Poolit Business;
(iii) the reduction of Poolit's share capital, any variation of the rights
attaching to any class of shares in its capital or any redemption,
purchase or other acquisition by Poolit of any Poolit Shares or other
securities of Poolit;
(iv) the incurring of any costs in respect of a Financial Year of an amount
greater than the Poolit Maximum Aggregate Shareholder Contribution in
respect of that Financial Year;
(v) the making of any contract of a material nature outside Poolit's
business or the giving of any guarantee;
(vi) the presentation of any petition for the winding up of Poolit or the
making of any application for an administration order in relation to
Poolit or for the appointment of an administrator or receiver of
Poolit; and
(vii) the commencement, settlement or defence of any litigation, arbitration
or other proceedings brought by or against Poolit in an amount in
excess of (pound)25,000.
<PAGE>
ANNEX 3
Form of New Articles
ARTICLES OF ASSOCIATION
THE COMPANIES ACTS 1985-1989
ARTICLES OF ASSOCIATION
of
POOLIT LIMITED
(Registered No. 3646741)
(adopted by Special Resolution passed on [_____________], 199_)
1. Adoption of Table A
In these articles "Table A" means Table A scheduled to the Companies
(Tables A to F) Regulations 1985 as amended prior to the date of
incorporation of the company. The regulations contained in Table A
shall, except where they are excluded or modified by these articles,
apply to the company and, together with these articles, shall
constitute the articles of the company. No other regulations set out
in any statute concerning companies, or in any statutory instrument or
other subordinate legislation made under any statute, shall apply as
the regulations or articles of the company.
2. Interpretation
2.1 Words and expressions which bear particular meanings in Table A shall
bear the same meanings in these articles.
2.2 In these articles:-
"Affiliate" means, in relation to any person, any holding company or
subsidiary of such person or any subsidiary of a holding company of
such person;
"Pooling and Settlement Agreement" means the Pooling and Settlement
Agreement for the Electricity Industry in England and Wales dated 30th
March, 1990 as amended and restated from time to time;
"Pool Intellectual Property" has the meaning given to that expression
in the Pooling and Settlement Agreement;
<PAGE>
"Poolit Business" has the meaning given to that expression in the
Pooling and Settlement Agreement;
"Poolit Maximum Aggregate Shareholder Contribution" has the meaning
given to that expression in the Pooling and Settlement Agreement;
"Pool Members" has the meaning given to that expression in the Pooling
and Settlement Agreement;
"Retiring Poolit Shareholder" has the meaning given to that expression
in Article 10.4; and
"Weighted Votes" has the meaning given to that expression in the
Pooling and Settlement Agreement.
2.3 References in these articles to writing include references to any
method of representing or reproducing words in a legible and
non-transitory form.
2.4 Headings are for convenience only and shall not affect construction.
2.5 If, and for so long as, the company has only one member, these
articles shall (in the absence of any express provision to the
contrary) apply with such modification as may be necessary in relation
to such a company.
3. Share Capital
The authorised share capital of the company at the date of adoption of
this article is (pound)100 divided into 100 shares of (pound)1 each.
4. Restriction on Share Ownership
Save with the prior written consent of the directors, no person other
than a nominee as referred to in Article 10.4 shall be the holder of
more than one share of the company at any time.
5. Rights Attaching to Shares
5.1 The matters set out in Articles 5.2 and 5.3 shall constitute rights
attaching to the shares of the company. The members shall procure, so
far as they are able in their capacity as shareholders in the company,
that no action shall be taken or resolution passed by the company:-
5.1.1 in respect of those matters set out in Article 5.2, except
with the consent of those members who together as Pool
Members have not less than 65 per cent. of the Weighted
Votes of all Pool Members; and
5.1.2 in respect of those matters set out in Article 5.3, except
with the consent of those members who together as Pool
Members have not less than 84 per cent. of the Weighted
Votes of all Pool Members.
<PAGE>
5.2 The matters referred to in Article 5.1.1 are:-
5.2.1 the assignment of rights in respect of any Pool Intellectual
Property transferred to the company pursuant to the
Twenty-Sixth Supplemental Agreement amending the Pooling and
Settlement Agreement and for the time being held by Poolit.
5.2.2 the making of decisions relating to the accounting policy of
the company.
5.2.3 the acquisition, disposal or charge of assets of or
securities held by the company other than in the ordinary
course of the company's business.
5.2.4 the making of decisions relating to material contracts to
which the company is a party or material arrangements
between the company and a third party.
5.2.5 the making of changes to the pricing or trading terms of the
company.
5.2.6 the making by the company of a material claim, disclaimer,
surrender, election or consent for tax purposes.
5.3 The matters referred to in Article 5.1.2 are:-
5.3.1 the making of any change to the company's Memorandum of
Association or these articles.
5.3.2 the undertaking of any business other than the Poolit
Business.
5.3.3 the reduction of the company's share capital, any variation
of the rights attaching to any class of shares in its
capital or any redemption, purchase or other acquisition by
the company of any shares or other securities of the
company.
5.3.4 the incurring of any costs in respect of a financial year of
the company of an amount greater than the Poolit Maximum
Aggregate Shareholder Contribution in respect of that
financial year.
5.3.5 the making of any contract of a material nature outside the
company's business or the giving of any guarantee.
5.3.6 the presentation of any petition for the winding up of the
company or the making of any application for an
administration order in relation to the company or for the
appointment of an administrator or receiver of the company.
5.3.7 the commencement, settlement or defence of any litigation,
arbitration or other proceedings brought by or against the
company in an amount in excess of (pound)25,000.
5.4 Each holder of a share shall be entitled to dividends in respect of
such share in such amounts (if any) as the directors may, in their
absolute discretion, determine from time to time (and which,
<PAGE>
for the avoidance of doubt, may be different amounts from time to time
in respect of each and every share). Regulation 104 of Table A shall
be modified accordingly.
5.5 Notwithstanding Article 5.4 or any differing amounts paid or payable
by way of dividend in respect of any share, all the shares shall
constitute one and the same class of shares.
5.6 Subject to the provisions of the Act and to any rights conferred on
the holders of any other shares, any share may be issued with or have
attached to it such rights and restrictions as the company may by
ordinary resolution decide or, if no such resolution has been passed
or so far as the resolution does not make specific provision, as the
directors may decide. Regulation 2 of Table A shall not apply.
6. Variation of Rights of Shares
6.1 Subject to the provisions of the Act, the entitlement to dividends for
the time being attached to the shares for the time being issued may
from time to time (whether or not the company is being wound up) be
varied with the consent, either in writing or at a separate general
meeting of the holders of all of the shares, of the holders of not
less than 95 per cent. in nominal value of all the issued shares. All
the provisions of these articles as to general meetings of the company
shall, with any necessary modifications, apply to any such separate
general meeting, but so that the necessary quorum shall be two persons
holding or representing by proxy not less than one-third in nominal
value of the issued shares (but so that at any adjourned meeting one
holder present in person or by proxy (whatever the number of shares
held by him) shall be a quorum) and that any holder of a share present
in person or by proxy may demand a poll.
6.2 Subject to the provisions of the Act, the voting rights and rights
relating to the return of capital to members for the time being
attached to the shares for the time being issued may from time to time
(whether or not the company is being wound up) be varied either with
the consent in writing of the holders of not less than three-fourths
in nominal value of all the issued shares or with the sanction of an
extraordinary resolution passed at a separate general meeting of the
holders of all of the shares. All the provisions of these articles as
to general meetings of the company shall, with any necessary
modifications, apply to any such separate general meeting, but so that
the necessary quorum shall be two persons holding or representing by
proxy not less than one-third in nominal value of the issued shares
(but so that at any adjourned meeting one holder present in person or
by proxy (whatever the number of shares held by him) shall be a
quorum) and that any holder of shares present in person or by proxy
may demand a poll.
7. Unissued Shares
Subject to the provisions of the Act and to these articles, any
unissued shares of the company (whether forming part of the original
or any increased capital) shall be at the disposal of the directors
who may (subject to Article 4) offer, allot, grant options over or
otherwise dispose of them to such persons at such times and for such
consideration and upon such terms and conditions as they may
determine.
<PAGE>
8. Initial Authority to Issue Relevant Securities
Subject to any direction to the contrary which may be given by the
company in general meeting and to Article 4, the directors are
unconditionally authorised to exercise all powers of the company to
allot relevant securities. The maximum nominal amount of relevant
securities that may be allotted under this authority shall be the
nominal amount of the unissued share capital at the date of
incorporation of the company or such other amount as may from time to
time be authorised by the company in general meeting. The authority
conferred on the directors by this article shall remain in force for a
period of five years from the date of incorporation of the company but
may be revoked, varied or renewed from time to time by the company in
general meeting in accordance with the Act.
9. Exclusion of Rights to Offers on a Pre-emptive Basis
Section 89(1) of the Act shall not apply to the allotment by the
company of any equity security.
10. Transfer of Shares
10.1 The instrument of transfer of a subscriber's share which is not fully
paid need not be executed by or on behalf of the transferee.
Regulation 23 of Table A shall be modified accordingly.
10.2 Otherwise than in accordance with Articles 10.3 and 10.4 no member
shall:-
10.2.1 pledge, mortgage (whether by way of fixed or floating
charge) or otherwise encumber its legal or beneficial
interest in its shares; or
10.2.2 sell, transfer or otherwise dispose of any of such shares
(or any legal or beneficial interest therein); or
10.2.3 enter into any agreement in respect of the votes attached to
shares; or
10.2.4 agree, whether or not subject to any condition precedent or
subsequent, to do any of the foregoing.
10.3 A member may transfer its shares to its Affiliate in circumstances
where such Affiliate becomes a Pool Member at the same time as such
member ceases to be a Pool Member.
10.4 If in relation to any of the members (the "Retiring Poolit
Shareholder"):-
10.4.1 the Retiring Poolit Shareholder ceases to be a Pool Member
for any reason; or
10.4.2 the Retiring Poolit Shareholder fails to remedy any material
breach on its part of Schedule 33 to the Pooling and
Settlement Agreement within 21 days after the service of any
written notice by a majority (in number and value) of the
other members complaining of such breach; or
<PAGE>
10.4.3 any of the events set out in Clause 66.3.6 or 66.3.7 of the
Pooling and Settlement Agreement shall occur in relation to
the Retiring Poolit Shareholder,
then, upon written notice to the Retiring Poolit Shareholder by any
other member, the Retiring Poolit Shareholder shall transfer at par to
a person selected by the directors all of the shares held by the
Retiring Poolit Shareholder. All costs and expenses of such transfer
shall be for the account of the Retiring Poolit Shareholder.
10.5 If a Retiring Poolit Shareholder shall fail or refuse to transfer any
shares in accordance with its obligations under Article 10.4 the
directors may authorise the company to execute and deliver a transfer
from the Retiring Poolit Shareholder to a nominee on behalf of the
Retiring Poolit Shareholder. The company may accept the consideration
for the transfer and hold it on trust for the Retiring Poolit
Shareholder, which acceptance shall be a good discharge to the nominee
and may set off such amount against the costs and expenses of the
transfer. The directors of the company shall cause the transferee to
be registered as the holder of such shares and, following the
registration of the transfer, the validity of the proceedings shall
not be questioned by any person.
11. Proceedings at General Meetings
11.1 The quorum at any general meeting shall consist of a majority in
number of the members in person or by proxy. Regulation 40 of Table A
shall be modified accordingly.
11.2 If, and for so long as, the company has only one member, that member
or the proxy for that member or, where that member is a corporation,
its duly authorised representative shall be a quorum at any general
meeting of the company or of the holders of any class of shares.
Regulation 40 of Table A shall be modified accordingly.
11.3 The chairman at any general meeting shall not be entitled to a second
or casting vote. Regulation 50 of Table A shall not apply.
11.4 In the case of a corporation a resolution in writing may be signed on
its behalf by a director or the secretary of the corporation or by its
duly appointed attorney or duly authorised representative. Regulation
53 of Table A shall be extended accordingly.
12. Votes of Members
At a general meeting, but subject to any rights or restrictions
attached to any shares, on a show of hands every member who (being an
individual) is present in person or (being a corporation) is present
by a duly authorised representative and every proxy for any member
(regardless of the number or the holdings of the members for whom he
is a proxy) shall have one vote, and on a poll every member who is
present in person or by proxy shall have one vote for every share of
which he is the holder. Regulation 54 of Table A shall not apply.
<PAGE>
13. Delivery of Proxies
The instrument appointing a proxy and (if required by the directors)
any authority under which it is executed or a copy of the authority,
certified notarially or in some other manner approved by the
directors, may be delivered to the office (or to such other place or
to such person as may be specified or agreed by the directors) before
the time for holding the meeting or adjourned meeting at which the
person named in the instrument proposes to act or, in case of a poll
taken subsequently to the date of the meeting or adjourned meeting,
before the time appointed for the taking of the poll, and an
instrument of proxy which is not so delivered shall be invalid. The
directors may at their discretion treat a faxed or other machine made
copy of an instrument appointing a proxy as such an instrument for the
purpose of this article. Regulation 62 of Table A shall not apply.
14. Alternate Directors
Any director (other than an alternate director) may appoint any other
director, or any other person who is willing to act, to be an
alternate director and may remove from office an alternate director so
appointed by him. Regulation 65 of Table A shall not apply.
15. Delegation of Directors' Powers
The directors may delegate any of their powers (with power to
sub-delegate) to committees consisting of such person or persons
(whether directors or not) as they may resolve. Regulation 72 of Table
A shall be modified accordingly and references in Table A to a
committee of directors or to a director as a member of such a
committee shall include a committee established under this article or
such person or persons.
16. Appointment and Removal of Directors by Majority Shareholders
Any member holding, or any members holding in aggregate, a majority in
nominal value of such of the issued share capital for the time being
of the company as carries the right of attending and voting at general
meetings of the company may by memorandum in writing signed by or on
behalf of him or them and delivered to the office or tendered at a
meeting of the directors or at a general meeting of the company at any
time and from time to time appoint any person to be a director (either
to fill a vacancy or as an additional director) or remove any director
from office (no matter how he was appointed).
17. Appointment of Directors by Board
Without prejudice to the powers conferred by any other article, any
person may be appointed a director by the directors, either to fill a
vacancy or as an additional director.
<PAGE>
18. No Age Limit or Share Qualification
No director shall be required to retire or vacate his office, and no
person shall be ineligible for appointment as a director, by reason of
his having attained any particular age. No shareholding qualification
for directors shall be required.
19. Exclusion of Rotation Requirements and Other Provisions
Regulations 73 to 80 (inclusive) and the last sentence of regulation
84 of Table A shall not apply.
20. Disqualification and Removal of Directors
The office of a director shall be vacated not only upon the happening
of any of the events mentioned in regulation 81 of Table A but also if
he is removed from office pursuant to these articles. Regulation 81 of
Table A shall be modified accordingly.
21. Directors' Gratuities and Pensions
Regulation 87 of Table A shall not apply.
22. Notice and Conduct of Board Meetings
Notice of a meeting of the directors shall be deemed to be properly
given to a director if it is given to him personally or by word of
mouth or sent in writing to him at his last known address or any other
address given by him to the company for this purpose, or by any other
means authorised in writing by the director concerned. Notice shall be
given in this manner to all directors including any director who is
for the time being absent from the United Kingdom. A director may
waive notice of any meeting either prospectively or retrospectively.
In the case of an equality of votes, the chairman shall not have a
second or casting vote. Regulation 88 of Table A shall be modified
accordingly.
23. Quorum for Board Meetings
The quorum for the meetings of the board shall be constituted by the
attendance (or participation by conference telephone in accordance
with Article 24) of six directors throughout such meeting. Regulation
89 shall be modified accordingly.
24. Participation in Board Meetings by Telephone
All or any of the members of the board or any committee of the board
may participate in a meeting of the board or that committee by means
of a conference telephone provided that participants acknowledge that
they can speak to and hear each other. A person so participating shall
be deemed to be present in person at the meeting and shall be entitled
to vote or be counted in a quorum accordingly. Such a meeting shall be
deemed to take place where the
<PAGE>
largest group of those participating is assembled, or, if there is no
such group, where the chairman of the meeting then is.
25. Resolution in Writing
A resolution in writing executed by all the directors or by all the
members of a committee for the time being shall be as valid and
effective as a resolution passed unanimously at a meeting of the board
or, as the case may be, of the committee properly convened and
constituted. The resolution may be contained in one document or in
several documents in like form each executed by one or more of the
directors or members of the committee concerned. A resolution signed
by an alternate director need not also be signed by his appointor and,
if it is signed by a director who has appointed an alternate director,
it need not be signed by the alternate director in that capacity.
Regulation 93 of Table A shall not apply.
26. Directors May Vote When Interested
A director who to his knowledge is in any way, whether directly or
indirectly, interested in a contract or proposed contract with the
company shall declare the nature of his interest at a meeting of the
directors in accordance with the Act. Subject where applicable to such
disclosure, a director shall be entitled to vote in respect of any
contract or proposed contract in which he is interested and if he
shall do so his vote shall be counted and he shall be taken into
account in ascertaining whether a quorum is present. Regulations 94
and 95 of Table A shall not apply.
27. Official Seal
The company may exercise all the powers conferred by the Act with
regard to having any official seal and such powers shall be vested in
the directors. Subject to the provisions of the Act, any instrument to
which an official seal is affixed shall be signed by such persons, if
any, as the directors may from time to time determine.
28. Notices
Any notice or other document may be served on or delivered to any
member by the company either personally, or by sending it by post
addressed to the member at his registered address or by fax or telex
to a number provided by the member for this purpose, or by leaving it
at his registered address addressed to the member, or by any other
means authorised in writing by the member concerned. In the case of
joint holders of a share, service or delivery of any notice or other
document on or to one of the joint holders shall for all purposes be
deemed a sufficient service on or delivery to all the joint holders.
Regulation 112 of Table A shall not apply.
29. Time of Service
Any notice or other document, if sent by the company by post, shall be
deemed to have been served or delivered twenty four hours after
posting and, in proving such service or delivery, it shall be
sufficient to prove that the notice or document was properly
addressed, stamped and
<PAGE>
put in the post. Any notice or other document left by the company at a
registered address otherwise than by post, or sent by fax or telex or
other instantaneous means of transmission, shall be deemed to have
been served or delivered when it was so left or sent. Regulation 115
of Table A shall not apply.
30. Indemnity of Officers
Subject to the provisions of the Act, the company may indemnify any
director or other officer against any liability and may purchase and
maintain for any director or other officer or auditor insurance
against any liability. Subject to those provisions, but without
prejudice to any indemnity to which the person concerned may otherwise
be entitled, every director or other officer of the company shall be
indemnified, and if the board so determines an auditor may be
indemnified, out of the assets of the company against any liability
incurred by him as a director or other officer of the company, or as
auditor, in defending any proceedings (whether civil or criminal) in
which judgment is given in his favour or he is acquitted or in
connection with any application under the Act in which relief is
granted to him by the court. For the purposes of this article no
person appointed or employed by the company as an auditor is an
officer of the company.
<PAGE>
SCHEDULE 34
Poolserco Limited
1. BACKGROUND
1.1 Establishment of joint venture: The Pool Members have agreed to
establish a joint venture company to carry on the Business, subject to
sub-section 4.2.
1.2 Poolserco: Poolserco was incorporated in England on 8th October, 1998
and at the date on which this Schedule takes effect has an authorised
share capital of (pound)100 divided into 100 ordinary shares of
(pound)1 each of which two shares have been issued.
1.3 Shareholders of Poolserco: It is intended that the shareholders of
Poolserco shall be limited to the Pool Members for the time being and
from time to time, each of whom shall hold a single share, and any
nominee as referred to in sub-section 11.3 of this Schedule. Each Pool
Member hereby gives its consent to becoming a Shareholder and (other
than those Pool Members to whom a subscriber share is transferred as
referred to in paragraph 1 of Annex 1) applies for one Share to be
allotted to it and each Pool Member which is a Pool Member on the date
on which this Schedule takes effect agrees to make payment of(pound)1
to Poolserco (or as Poolserco shall direct) prior to the meeting of
the Board referred to in paragraph 3 of Annex 1.
1.4 Regulation of rights: The Shareholders have agreed that their
respective rights as shareholders in Poolserco shall be regulated by
the provisions of this Schedule (including the Articles) and Poolserco
has agreed with the Shareholders to comply with such of the matters
contained in this Schedule as relate to Poolserco.
2. DEFINITIONS AND INTERPRETATION
2.1 Definitions: In this Schedule, except where the context otherwise
requires, words and expressions defined in Clause 1.1 of this
Agreement shall have the same meaning and:-
"Affiliate" means, in respect of any body corporate, a
body corporate which is its subsidiary or
holding company, or a company which is a
subsidiary of that holding company, and each
such company;
"Articles" means the Articles of Association of
Poolserco set out in Annex 3 to this
Schedule, as the same may be amended from
time to time;
"Board" means the board of directors of Poolserco;
<PAGE>
"Business" means the business of contracting with third
parties for the provision by those third
parties of goods and services connected with
the operation of Settlement and/or the
operation of and processes envisaged by the
Pooling and Settlement Agreement to or for
the benefit of Pool Members collectively;
"Chairman" means the chairman of the Board for the time
being and from time to time;
"Company Secretary" means the company secretary of Poolserco for
the time being and from time to time;
"Directors" means the directors of Poolserco for the time
being and from time to time;
"Financial Year" has the meaning given to the term "financial
year" in Section 223 of the Companies Act
1985;
"Intellectual Property" means:-
(i) patents, trade marks and service
marks, rights in designs, information
and databases, trade or business names
or signs, copyrights (including rights
in computer software and associated
documentation) and topography rights
(whether or not any of these is
registered and including applications
for registration of any such thing);
(ii) all rights or forms of protection of a
similar effect to any of the rights
and other matters referred to in (i)
above; and
(iii) rights under licences in relation to
any of the rights and other matters
referred to in (i) and (ii) above;
"Maximum Aggregate
Shareholder
Contribution" means the amount identified as such in a
Poolserco Business Plan;
"Pooling and Settlement
Agreement" means the Pooling and Settlement Agreement
for the Electricity Industry in England and
Wales dated 30th March, 1990 as amended and
restated from time to time;
"Poolserco" means Poolserco Limited (registered number
3646729) whose registered office is situate
at Third Floor, 1 Triton
<PAGE>
Square, London NW1 3DX;
"Poolserco Business
Plan" means the annual business plan for Poolserco
substantially in the form set out in Annex 4
(but in every case including a limit on
funding which Shareholders are required to
contribute in accordance with the terms of
sub-section 10.2 to be identified in the
Poolserco Business Plan as the "Maximum
Aggregate Shareholder Contribution" approved
pursuant to sub-section 7.1 or 7.2);
"Poolserco Completion Date" means 1st April,
1999 or such other date as may be determined
as the Poolserco Completion Date by the
Executive Committee;
"Shareholders" means the persons for the time being and from
time to time registered as holders of Shares;
and
"Shares" means ordinary shares of (pound)1 each in the
capital of Poolserco and any shares issued in
exchange therefor by way of conversion or
reclassification and any shares representing
or deriving from such shares as a result of
any increase in or reorganisation or
variation of the capital of Poolserco.
2.2 Interpretation: The Parties and Poolserco acknowledge and agree that,
notwithstanding any other provision of this Agreement:-
2.2.1 Poolserco has acceded as a party to this Agreement solely
for the purposes of this Schedule and is bound only to the
extent of those obligations on its part which are expressly
set out or referred to in this Schedule and not by any other
provision of this Agreement. In particular, but without
prejudice to the generality of the foregoing, Clause 25 of
this Agreement shall not apply to Poolserco or to the
Shareholders in their capacity as such;
2.2.2 Poolserco shall have only such rights under or in respect of
this Agreement as are expressly set out or referred to in
this Schedule;
2.2.3 the consent or agreement of Poolserco shall not be required
to any modification, abrogation, amendment or suspension of
any provision of this Agreement which is not expressly set
out in this Schedule (including any modification or
amendment to any word or expression used in this Schedule
but defined elsewhere in this Agreement) and Poolserco
hereby irrevocably waives any rights which it might be
considered or held to have to consent or agree to any such
modification, abrogation, amendment or suspension;
<PAGE>
2.2.4 within this Agreement the rights of Pool Members as
shareholders in Poolserco are set out exclusively in this
Schedule and no other provision of this Agreement shall
apply in the regulation of the rights and obligations of
Shareholders inter se in their capacity as shareholders in
Poolserco or as between the Shareholders (or any of them)
and Poolserco;
2.2.5 the provisions of Parts III and IV do not apply to decisions
of Pool Members in their capacity as shareholders in
Poolserco or to decisions of Committee Members in their
capacity as directors of Poolserco; and
2.2.6 the provisions of Clauses 1.2, 1.3, 78.1, 79, 83, 84 and 85
of this Agreement shall be deemed to be incorporated in, and
to apply in respect of, this Schedule mutatis mutandis.
2.3 Authorisation to amend:
2.3.1 Poolserco hereby unconditionally and irrevocably authorises
and instructs the Chief Executive and each person authorised
for the purpose by the Executive Committee to sign on its
behalf amending agreements to this Agreement and to execute
any agreement which modifies, abrogates, amends or suspends
any provision of this Agreement in circumstances where
Poolserco's consent or agreement is not required, and
undertakes not to withdraw, qualify or revoke such authority
and instruction at any time.
2.3.2 The Executive Committee shall notify Poolserco of all
amendments, modifications, abrogations and suspensions which
are made to this Agreement for which the consent or
agreement of Poolserco is not required.
3. ESTABLISHMENT OF POOLSERCO AND NEW POOL MEMBERS
3.1 Completion: On the Poolserco Completion Date each of the Pool Members,
Shareholders and Poolserco shall perform its obligations set out in,
and comply with the provisions of, Annex 1 to this Schedule.
3.2 New Pool Members: Upon the accession to this Agreement of a new Pool
Member the Directors shall either:-
3.2.1 procure the transfer to such new Pool Member of one Share in
accordance with the provisions of sub-section 11.5 of this
Schedule; or
3.2.2 procure the allotment and issue by Poolserco to such new
Pool Member of one unissued Share (and the Shareholders
agree that where no Shares are otherwise available for issue
they will take all necessary steps in relation to the
creation and/or the issue by Poolserco of further Shares as
required).
<PAGE>
4. POOLSERCO'S BUSINESS
4.1 Compliance: Each of the Shareholders agrees with the other
Shareholders to exercise its rights under this Schedule and as a
shareholder in Poolserco so as to ensure that:-
4.1.1 Poolserco performs and complies with all its obligations
under this Schedule and complies with the restrictions (if
any) imposed upon it under the Articles; and
4.1.2 the Business is conducted in accordance with sound and good
business practice with the intention of breaking even.
4.2 Sole business of Poolserco: The Shareholders and Poolserco acknowledge
and agree that, unless and until Shareholders who together as Pool
Members have not less than 84 per cent. of the Weighted Votes of all
Pool Members agree otherwise in writing, the business of Poolserco
shall be confined to the Business.
4.3 Independence of operations: Each Shareholder acknowledges and agrees
with the other Shareholders and Poolserco that Poolserco will have
complete independence in its operations and undertakes not to take any
action which obstructs or interferes with, or seeks to obstruct or
interfere with, the Business provided that this sub-section 4.3 shall
not affect the manner in which any Shareholder may exercise its rights
in respect of Shares held by it.
5. THE MANAGEMENT OF POOLSERCO
5.1 Directors:
5.1.1 The Shareholders shall procure that the Directors shall be
the Committee Members for the time being and from time to
time.
5.1.2 The Shareholders shall severally indemnify Poolserco
according to their respective Contributory Shares against
all claims, demands, liabilities, losses, costs and expenses
which Poolserco may suffer or incur by reason of any claim
by any Director in connection with his removal from office
as a Director.
5.2 Chairman: The Chairman shall be the Pool Chairman for the time being
and from time to time.
5.3 Committees: The Directors may delegate any of their powers to
committees of the Board consisting of such persons as the Directors
may resolve. Any such committee shall exercise only powers expressly
delegated to it and shall comply with any regulations imposed on it by
the Board.
5.4 Company Secretary: The Company Secretary shall be such person as may
be approved by the unanimous resolution of the Board from time to
time. The Company Secretary shall be removed by unanimous resolution
of the Board.
<PAGE>
5.5 Proceedings at Board Meetings:
5.5.1 Voting Rights: Each Director shall have one vote. The
Chairman shall have no vote in his capacity as Chairman.
5.5.2 Frequency: The Board shall meet not less frequently than
once in any period of three months unless otherwise agreed
by the Directors. A meeting of the Board may be convened at
any reasonable time at the request of any Director by
written notice to the Company Secretary.
5.5.3 Meetings: Meetings of the Board may be held by conference
telephone call provided that participants acknowledge that
they can speak to and hear each other.
5.5.4 Notice: Each of the Directors shall be given notice by the
Company Secretary of each meeting of the Board setting out
details of the time, date and place of meeting at least five
working days prior to the date of such meeting, provided
that such period of notice may be shortened for particular
meetings by unanimous written consent of all Directors
entitled to attend and vote thereat.
5.5.5 Quorum: The quorum for meetings of the Board shall be
constituted by the attendance of six Directors (or their
alternates in accordance with the Articles) in person or
participating by conference telephone call throughout such
meeting.
5.5.6 Resolutions: All resolutions of the Board shall be made by
vote of the Directors present or participating by conference
telephone call. Unless otherwise expressly provided in this
Schedule, a simple majority of those present or
participating by conference telephone call will be required
in respect of any matter before the Board.
5.5.7 Written resolutions: A written resolution signed by all
Directors shall be as valid and effective as a resolution
passed unanimously by a meeting of the Board properly
convened and constituted in accordance with the terms of
this Schedule and the Articles.
5.5.8 Minutes: No later than ten working days after each Board
meeting, the Company Secretary shall circulate minutes of
that meeting to each of the Directors.
6. RESERVED MATTERS
The Shareholders shall procure, so far as they are able in their
capacity as Shareholders, that no action listed in Annex 2 to this
Schedule shall be taken and no resolution relating to such action
shall be passed by Poolserco:-
6.1 in respect of the matters set out in Part A of Annex 2 to
this Schedule, except with the consent of those Shareholders
who together as Pool Members have not less than 65 per cent.
of the Weighted Votes of all Pool Members; and
<PAGE>
6.2 in respect of the matters set out in Part B of Annex 2 to
this Schedule, except with the consent of those Shareholders
who together as Pool Members have not less than 84 per cent.
of the Weighted Votes of all Pool Members.
7. POOLSERCO BUSINESS PLANS
7.1 Initial Poolserco Business Plan: The business plan for the first
Financial Year of Poolserco is hereby approved by the Shareholders.
7.2 Future Poolserco Business Plans: Poolserco shall procure that draft
Poolserco Business Plans are prepared and submitted to the Board for
approval no later than three months before the end of each of
Poolserco's Financial Years. If the draft Poolserco Business Plan is
approved prior to the commencement of the period to which it relates
by the Board and by those Shareholders who together as Pool Members
have not less than 84 per cent. of the Weighted Votes of all Pool
Members, it shall become definitive for that period. If a draft
Poolserco Business Plan is not approved prior to the commencement of
the relevant Financial Year, the most recently approved Poolserco
Business Plan shall be adopted as the Poolserco Business Plan for such
year until such time as a later draft Poolserco Business Plan for such
Financial Year is approved.
7.3 Poolserco obligations: Poolserco shall comply with the most recently
approved Poolserco Business Plan and, in particular, agrees that,
without the prior consent of those Shareholders who together as Pool
Members have not less than 84 per cent. of the Weighted Votes of all
Pool Members, it shall not incur costs in respect of the period to
which a Poolserco Business Plan relates of an amount greater than the
Maximum Aggregate Shareholder Contribution which is identified as such
in such Poolserco Business Plan.
8. ACCOUNTS
8.1 Annual Accounts: At the end of each of Poolserco's Financial Years, or
as soon as reasonably practicable thereafter, Poolserco shall procure
that an account shall be taken of all the assets and liabilities of
Poolserco and of all dealings and transactions of Poolserco during
such Financial Year and that the Board shall prepare a report and
accounts in accordance with the Companies Act 1985 to be audited
within three months after the end of each Financial Year.
8.2 Audit: Any Shareholder shall have the right at any time to require
Poolserco to instruct the auditors of Poolserco to conduct a review in
respect of the financial affairs of Poolserco. The cost of such review
shall be borne by the Shareholder requesting such review, unless such
review is approved by the majority of Directors in which case it shall
be borne by Poolserco. If any such review is requested, Poolserco
shall procure that Poolserco's auditors are given all reasonable
assistance to complete the review within a reasonable period of time.
<PAGE>
9. DISTRIBUTION POLICY
The Shareholders shall take such action as may be necessary to procure
that:-
9.1 Annual General Meeting: Poolserco's annual general meeting at which
audited accounts in respect of its preceding Financial Year are laid
before the Shareholders is held not later than the date falling six
months after the end of that Financial Year;
9.2 Auditors' Report: Poolserco's auditors shall at the expense of
Poolserco be instructed to report as to the amount of the profits
available for distribution by Poolserco for each accounting reference
period at the same time as they sign their report on Poolserco's
audited accounts for the accounting reference period in question; and
9.3 Distribution of Profits: Subject to the appropriation of such
reasonable and proper reserves for working capital or otherwise as the
Board may consider appropriate, Poolserco distributes to and among the
Shareholders within 30 days of approval of the audited accounts 100
per cent. of its profits available for distribution in each year. For
this purpose no part of any surplus arising in such Financial Year by
reason of Shareholders' contributions pursuant to sub-section 10.2
being found to be in excess of Poolserco's requirements for that
Financial Year shall be available for distribution so that the whole
of any such surplus shall be dealt with in accordance with sub-section
10.2.
10. FINANCE FOR POOLSERCO
10.1 Poolserco's financing needs: The Shareholders acknowledge and agree
with the other Shareholders and Poolserco that Poolserco will from
time to time require finance in order to fund its projected cash
requirements and to meet its liabilities.
10.2 Shareholders' contribution: The Shareholders shall be liable to
contribute in accordance with their respective Contributory Shares
towards the financing requirements of Poolserco in respect of any
Financial Year of Poolserco up to the Maximum Aggregate Shareholder
Contribution which is identified as such in the Poolserco Business
Plan for such Financial Year or such greater amount as is agreed by
Shareholders under the terms of sub-section 7.3. Poolserco shall
procure that any amounts received by it which are surplus to its
requirements in any Financial Year shall be carried forward to the
next following Financial Year of Poolserco and reduce the amount of
the Maximum Aggregate Shareholder Contribution for that next following
Financial Year of Poolserco, so that a corresponding reduction shall
be made to the contribution that any Shareholder would, in the absence
of such surplus, have been liable to make to Poolserco for the next
following Financial Year of Poolserco. Shareholders shall make payment
of their proportionate share (together with Value Added Tax thereon,
if applicable) to Poolserco or to such other person as Poolserco may
from time to time direct within fifteen days after receipt of an
invoice or other statement therefor issued by Poolserco.
10.3 Non-paying Shareholders: If any Shareholder fails to pay an amount due
to Poolserco under this Schedule within fifteen days after the due
date for such payment (such Shareholder being a "Non-paying
Shareholder"), each Shareholder (other than the Non-paying
Shareholder) shall be
<PAGE>
severally liable for its Contributory Share (calculated on the basis
that the Points allocated to the Non-paying Shareholder are
disregarded) of that amount and Poolserco shall accordingly be
entitled to recover the due proportion of that amount from each
Shareholder (other than the Non-paying Shareholder). In that event,
Poolserco shall advise each Shareholder of the amount payable by
invoice or statement despatched to each Shareholder and each
Shareholder shall pay Poolserco (or such other person as Poolserco may
from time to time direct) the amount advised in the relevant invoice
or statement within fifteen days after receipt.
10.4 Non-paying Shareholder's indemnity: A Non-paying Shareholder shall
indemnify each Shareholder on demand against all sums properly paid by
such Shareholder pursuant to sub-section 10.3 and all costs and
expenses reasonably incurred by each Shareholder in recovering such
sums. Any payment by a Non-paying Shareholder pursuant to such
indemnity shall be made without any deduction and free and clear of
and without any deduction for or on account of any taxes, except to
the extent that the Non-paying Shareholder is required by law to make
payment subject to any taxes. If any tax or amounts in respect of tax
must be deducted, or any other deductions must be made, from any
amounts payable or paid by a Non-paying Shareholder pursuant to such
indemnity, the Non-paying Shareholder shall pay such additional
amounts as may be necessary to ensure that the relevant Shareholder
receives a net amount equal to the full amount which it would have
received had payment not been made subject to tax.
10.5 Shareholder guarantees: If any indemnity, guarantee or other assurance
against loss is given by a Shareholder for any obligation or liability
of Poolserco at the request of Poolserco, all the other Shareholders
shall indemnify such Shareholder in respect of any liability arising
out of such indemnity, guarantee or other assurance against loss in
the proportions which the respective Contributory Shares of all the
Shareholders bear one to the other at the time of request for
indemnification.
11. TRANSFER OF SHARES
11.1 Restriction on transfer: Otherwise than in accordance with the
following provisions of this Section 11 no Shareholder shall:-
11.1.1 pledge, mortgage (whether by way of fixed or floating
charge) or otherwise encumber its legal or beneficial
interest in its Shares; or
11.1.2 sell, transfer or otherwise dispose of any of such Shares
(or any legal or beneficial interest therein); or
11.1.3 enter into any agreement in respect of the votes attached to
Shares; or
11.1.4 agree, whether or not subject to any condition precedent or
subsequent, to do any of the foregoing.
<PAGE>
11.2 Intra-group transfers: A Shareholder may transfer its Shares to its
Affiliate in circumstances where such Affiliate becomes a Pool Member
at the same time as such Shareholder ceases to be a Pool Member.
11.3 Retiring Shareholders: If in relation to any of the Shareholders (the
"Retiring Shareholder"):-
11.3.1 the Retiring Shareholder ceases to be a Pool Member for any
reason; or
11.3.2 the Retiring Shareholder fails to remedy any material breach
on its part of this Schedule within 21 days after the
service of any written notice by a majority in number of the
other Shareholders complaining of such breach; or
11.3.3 any of the events set out in Clause 66.3.6 or 66.3.7 shall
occur in relation to the Retiring Shareholder,
then, upon written notice to the Retiring Shareholder by any other
Shareholder, the Retiring Shareholder shall transfer at par to a
nominee for all the Shareholders (other than the Retiring Shareholder)
selected by the Directors all of the Shares held by the Retiring
Shareholder. All costs and expenses of such transfer shall be for the
account of the Retiring Shareholder.
11.4 Enforced transfer: If a Retiring Shareholder shall fail or refuse to
transfer any Shares in accordance with its obligations under
sub-section 11.3 the Directors may authorise Poolserco to execute and
deliver a transfer from the Retiring Shareholder to a nominee on
behalf of the Retiring Shareholder. Poolserco may accept the
consideration for the transfer and hold it on trust for the Retiring
Shareholder, which acceptance shall be a good discharge to the nominee
and may set off such amount against the costs and expenses of the
transfer. The Directors shall cause the transferee to be registered as
the holder of such Shares and, following the registration of the
transfer, the validity of the proceedings shall not be questioned by
any person.
11.5 Nominee's holding: The nominee referred to in sub-section 11.3 shall
hold Shares transferred to it on the terms set out in that sub-section
until such time as it is directed by the Directors to transfer them
(or some of them) to one or more Pool Members.
12. DURATION AND TERMINATION
This Schedule shall continue in full force and effect until the first to occur
of the following events:-
12.1 the termination of this Agreement pursuant to Clause 67.4;
12.2 all the Shareholders agree in writing to terminate the arrangements
set out in this Schedule; and
<PAGE>
12.3 an effective resolution is passed or a binding order is made for the
winding up of Poolserco,
provided, however, that this Schedule shall cease to have effect as regards any
Shareholder who ceases to hold any Shares (save that any accrued rights and
obligations as at the date of cessation shall not be thereby extinguished).
13. SHAREHOLDERS GENERALLY
The Shareholders shall procure that, save for any nominee referred to in
sub-section 11.3:-
13.1 no person other than a Pool Member shall acquire shares in Poolserco
(whether by transfer or allotment) and that no Pool Member shall be a
Shareholder unless and until it has agreed to be bound by this
Schedule in the capacity of a Shareholder (which it shall be taken to
have done by being a signatory to this Agreement); and
13.2 no person shall at any point hold more than one Share.
14. INTELLECTUAL PROPERTY
If and to the extent that any Shareholder discloses any of its
Intellectual Property to Poolserco for use in connection with the
Business, unless it is unable to do so it shall grant, and shall be
deemed to have granted from the date of such disclosure, licences of
such Intellectual Property to Poolserco for use in connection with the
Business and for no other purpose whatsoever. Any such licence shall
be irrevocable, non-exclusive, perpetual and royalty-free. Such
licences shall not be capable of assignment or sub-licence by
Poolserco.
15. CONFLICT WITH THE ARTICLES
In the event of any ambiguity or discrepancy between the provisions of
this Schedule and the Articles, then it is the intention of the
Shareholders that the provisions of this Schedule (for so long as they
remain in force) shall prevail and accordingly the Shareholders shall
exercise all voting and other rights and powers available to them so
as to give effect to the provisions of this Schedule.
16. FURTHER ASSURANCE
Each Shareholder shall co-operate with the other Shareholders and with
Poolserco and shall execute and deliver to the other Shareholders or
Poolserco (as the case may be) such other instruments and documents
and take such other actions as may be reasonably requested from time
to time in order to carry out, evidence and confirm their or its
rights under, and the intended purpose of, this Schedule.
<PAGE>
ANNEX 1
Completion
1. Meeting of the Directors: On the Poolserco Completion Date Pool
Members shall procure the holding of a meeting of the Board and the
passing thereat of resolutions:-
(a) appointing the Committee Members as Directors;
(b) accepting the resignation as Directors of those persons (if
any) who are not Committee Members;
(c) appointing Barclays Bank PLC as Poolserco's bankers and
passing such resolutions relating to such appointment as the
bank may require;
(d) approving the transfer of the two subscriber shares each to
a Pool Member; and
(e) convening an Extraordinary General Meeting of Poolserco
immediately following the conclusion of the meeting of the
Directors for the purposes referred to in paragraph 2.
2. Extraordinary General Meeting: Upon the calling of the Extraordinary
General Meeting referred to in paragraph 1(e) the Shareholders shall
procure the giving of consents to short notice in respect of such
Extraordinary General Meeting and shall vote thereat in favour of
resolutions:-
(a) authorising the Directors to issue and allot at par one
Share to each Pool Member other than those two Pool Members
to whom the two subscriber shares in Poolserco have been
transferred; and
(b) adopting the regulations in the form set out in Annex 3 to
this Schedule as the new Articles.
3. Board Meeting: Poolserco shall procure the holding of a further
meeting of the Board and the passing thereat of resolutions:-
(a) approving the application of each Pool Member other than
those two Pool Members to whom the two subscriber shares in
Poolserco have been transferred for a Share;
(b) authorising each Pool Member's name to be entered in the
Register of Members of Poolserco as holder of one Share and
directing the sealing of a certificate in respect thereof;
(c) approving the business plan for the first Financial Year of
Poolserco; and
(d) approving the terms on which the Directors propose to
declare and pay dividends on Shares in respect of the first
Financial Year of Poolserco.
<PAGE>
4. Allotment: Upon receipt of the relevant consideration moneys payable
for a Share, Poolserco shall allot and issue one Share to each Pool
Member other than those two Pool Members to whom the two subscriber
shares in Poolserco have been transferred and shall register each Pool
Member as the holder of a Share and shall prepare, seal and deliver to
each Pool Member a share certificate in respect thereof in its name.
<PAGE>
ANNEX 2
Limitations on Dealings
Part A
The matters referred to in sub-section 6.1 are:-
(i) the making of decisions relating to the accounting policy of
Poolserco;
(ii) the acquisition, disposal or charge of assets of or securities held by
Poolserco other than in the ordinary course of the Business;
(iii) the making of decisions relating to material contracts to which
Poolserco is a party or material arrangements between Poolserco and a
third party;
(iv) the making of changes to the pricing or trading terms of Poolserco;
and
(v) the making by Poolserco of a material claim, disclaimer, surrender,
election or consent for tax purposes.
<PAGE>
Part B
The matters referred to in sub-section 6.2 are:-
(i) the making of any change to Poolserco's Memorandum of Association or
the Articles;
(ii) the undertaking of any business other than the Business;
(iii) the reduction of Poolserco's share capital, any variation of the
rights attaching to any class of shares in its capital or any
redemption, purchase or other acquisition by Poolserco of any Shares
or other securities of Poolserco;
(iv) the incurring of any costs in respect of a Financial Year of an amount
greater than the Maximum Aggregate Shareholder Contribution in respect
of that Financial Year;
(v) the making of any contract of a material nature outside Poolserco's
business or the giving of any guarantee;
(vi) the presentation of any petition for the winding up of Poolserco or
the making of any application for an administration order in relation
to Poolserco or for the appointment of an administrator or receiver of
Poolserco; and
(vii) the commencement, settlement or defence of any litigation, arbitration
or other proceedings brought by or against Poolserco in an amount in
excess of (pound)25,000.
<PAGE>
ANNEX 3
Form of New Articles
ARTICLES OF ASSOCIATION
THE COMPANIES ACTS 1985-1989
ARTICLES OF ASSOCIATION
of
POOLSERCO LIMITED
(Registered No. 3646729)
(adopted by Special Resolution passed on [___________], 199 )
1. Adoption of Table A
In these articles "Table A" means Table A scheduled to the Companies
(Tables A to F) Regulations 1985 as amended prior to the date of
incorporation of the company. The regulations contained in Table A
shall, except where they are excluded or modified by these articles,
apply to the company and, together with these articles, shall
constitute the articles of the company. No other regulations set out
in any statute concerning companies, or in any statutory instrument or
other subordinate legislation made under any statute, shall apply as
the regulations or articles of the company.
2. Interpretation
2.1 Words and expressions which bear particular meanings in Table A shall
bear the same meanings in these articles.
2.2 In these articles:-
"Affiliate" means, in relation to any person, any holding company or
subsidiary of such person or any subsidiary of a holding company of
such person;
"Business" has the meaning given to that expression in the Pooling and
Settlement Agreement;
"Maximum Aggregate Shareholder Contribution" has the meaning given to
that expression in the Pooling and Settlement Agreement;
<PAGE>
"Pooling and Settlement Agreement" means the Pooling and Settlement
Agreement for the Electricity Industry in England and Wales dated 30th
March, 1990 as amended and restated from time to time;
"Pool Members" has the meaning given to that expression in the Pooling
and Settlement Agreement;
"Poolserco Business Plan" has the meaning given to that expression in
Schedule 34 to the Pooling and Settlement Agreement;
"Retiring Shareholder" has the meaning given to that expression in
Article 10.4; and
"Weighted Votes" has the meaning given to that expression in the
Pooling and Settlement Agreement.
2.3 References in these articles to writing include references to any
method of representing or reproducing words in a legible and
non-transitory form.
2.4 Headings are for convenience only and shall not affect construction.
2.5 If, and for so long as, the company has only one member, these
articles shall (in the absence of any express provision to the
contrary) apply with such modification as may be necessary in relation
to such a company.
3. Share Capital
The authorised share capital of the company at the date of adoption of
this article is (pound)100 divided into 100 shares of (pound)1 each.
4. Restriction on Share Ownership
Save with the prior written consent of the directors, no person other
than a nominee as referred to in Article 10.4 shall be the holder of
more than one share of the company at any time.
5. Rights Attaching to Shares
5.1 The matters set out in Articles 5.2 and 5.3 shall constitute rights
attaching to the shares of the company. The members shall procure, so
far as they are able in their capacity as shareholders in the company,
that no action shall be taken or resolution passed by the company:-
5.1.1 in respect of those matters set out in Article 5.2, except
with the consent of those members who together as Pool
Members have not less than 65 per cent. of the Weighted
Votes of all Pool Members; and
<PAGE>
5.1.2 in respect of those matters set out in Article 5.3, except
with the consent of those members who together as Pool
Members have not less than 84 per cent. of the Weighted
Votes of all Pool Members.
5.2 The matters referred to in Article 5.1.1 are:-
5.2.1 the making of decisions relating to the accounting policy of
the company.
5.2.2 the acquisition, disposal or charge of assets of or
securities held by the company other than in the ordinary
course of the company's Business.
5.2.3 the making of decisions relating to material contracts to
which the company is a party or material arrangements
between the company and a third party.
5.2.4 the making of changes to the pricing or trading terms of the
company.
5.2.5 the making by the company of a material claim, disclaimer,
surrender, election or consent for tax purposes.
5.3 The matters referred to in Article 5.1.2 are:-
5.3.1 the making of any change to the company's Memorandum of
Association or these Articles.
5.3.2 the undertaking of any business other than the company's
Business.
5.3.3 the reduction of the company's share capital, any variation
of the rights attaching to any class of shares in its
capital or any redemption, purchase or other acquisition by
the company of any shares or other securities of the
company.
5.3.4 the incurring of any costs in respect of a financial year of
the company of an amount greater than the Maximum Aggregate
Shareholder Contribution in respect of that financial year.
5.3.5 the making of any contract of a material nature outside the
company's business or the giving of any guarantee.
5.3.6 the presentation of any petition for the winding up of the
company or the making of any application for an
administration order in relation to the company or for the
appointment of an administrator or receiver of the company.
5.3.7 the commencement, settlement or defence of any litigation,
arbitration or other proceedings brought by or against the
company in an amount in excess of (pound)25,000.
5.4 Each holder of a share shall be entitled to dividends in respect of
such share in such amounts (if any) as the directors may, in their
absolute discretion, determine from time to time (and which,
<PAGE>
for the avoidance of doubt, may be different amounts from time to time
in respect of each and every share). Regulation 104 of Table A shall
be modified accordingly.
5.5 Notwithstanding Article 5.4 or any differing amounts paid or payable
by way of dividend in respect of any share, all the shares shall
constitute one and the same class of shares.
5.6 Subject to the provisions of the Act and to any rights conferred on
the holders of any other shares, any share may be issued with or have
attached to it such rights and restrictions as the company may by
ordinary resolution decide or, if no such resolution has been passed
or so far as the resolution does not make specific provision, as the
directors may decide. Regulation 2 of Table A shall not apply.
6. Variation of Rights of Shares
6.1 Subject to the provisions of the Act, the entitlement to dividends for
the time being attached to the shares for the time being issued may
from time to time (whether or not the company is being wound up) be
varied with the consent, either in writing or at a separate general
meeting of the holders of all of the shares, of the holders of not
less than 95 per cent. in nominal value of all the issued shares. All
the provisions of these articles as to general meetings of the company
shall, with any necessary modifications, apply to any such separate
general meeting, but so that the necessary quorum shall be two persons
holding or representing by proxy not less than one-third in nominal
value of the issued shares (but so that at any adjourned meeting one
holder present in person or by proxy (whatever the number of shares
held by him) shall be a quorum) and that any holder of a share present
in person or by proxy may demand a poll.
6.2 Subject to the provisions of the Act, the voting rights and rights
relating to the return of capital to members for the time being
attached to the shares for the time being issued may from time to time
(whether or not the company is being wound up) be varied either with
the consent in writing of the holders of not less than three-fourths
in nominal value of all the issued shares or with the sanction of an
extraordinary resolution passed at a separate general meeting of the
holders of all of the shares. All the provisions of these articles as
to general meetings of the company shall, with any necessary
modifications, apply to any such separate general meeting, but so that
the necessary quorum shall be two persons holding or representing by
proxy not less than one-third in nominal value of the issued shares
(but so that at any adjourned meeting one holder present in person or
by proxy (whatever the number of shares held by him) shall be a
quorum) and that any holder of shares present in person or by proxy
may demand a poll.
7. Unissued Shares
Subject to the provisions of the Act and to these articles, any
unissued shares of the company (whether forming part of the original
or any increased capital) shall be at the disposal of the directors
who may (subject to Article 4) offer, allot, grant options over or
otherwise dispose of them to such persons at such times and for such
consideration and upon such terms and conditions as they may
determine.
<PAGE>
8. Initial Authority to Issue Relevant Securities
Subject to any direction to the contrary which may be given by the
company in general meeting and to Article 4, the directors are
unconditionally authorised to exercise all powers of the company to
allot relevant securities. The maximum nominal amount of relevant
securities that may be allotted under this authority shall be the
nominal amount of the unissued share capital at the date of
incorporation of the company or such other amount as may from time to
time be authorised by the company in general meeting. The authority
conferred on the directors by this article shall remain in force for a
period of five years from the date of incorporation of the company but
may be revoked varied or renewed from time to time by the company in
general meeting in accordance with the Act.
9. Exclusion of Rights to Offers on a Pre-emptive Basis
Section 89(1) of the Act shall not apply to the allotment by the
company of any equity security.
10. Transfer of Shares
10.1 The instrument of transfer of a subscriber's share which is not fully
paid need not be executed by or on behalf of the transferee.
Regulation 23 of Table A shall be modified accordingly.
10.2 Otherwise than in accordance with Articles 10.3 and 10.4 no member
shall:-
10.2.1 pledge, mortgage (whether by way of fixed or floating
charge) or otherwise encumber its legal or beneficial
interest in its shares; or
10.2.2 sell, transfer or otherwise dispose of any of such shares
(or any legal or beneficial interest therein); or
10.2.3 enter into any agreement in respect of the votes attached to
shares; or
10.2.4 agree, whether or not subject to any condition precedent or
subsequent, to do any of the foregoing.
10.3 A member may transfer its shares to its Affiliate in circumstances
where such Affiliate becomes a Pool Member at the same time as such
member ceases to be a Pool Member.
10.4 If in relation to any of the members (the "Retiring Shareholder"):-
10.4.1 the Retiring Shareholder ceases to be a Pool Member for any
reason; or
10.4.2 the Retiring Shareholder fails to remedy any material breach
on its part of Schedule 34 to the Pooling and Settlement
Agreement within 21 days after the service of any written
notice by a majority (in number and value) of the other
members complaining of such breach; or
<PAGE>
10.4.3 any of the events set out in Clause 66.3.6 or 66.3.7 of the
Pooling and Settlement Agreement shall occur in relation to
the Retiring Shareholder,
then upon written notice to the Retiring Shareholder by any other
member, the Retiring Shareholder shall transfer at par to a person
selected by the directors all of the shares held by the Retiring
Shareholder. All costs and expenses of such transfer shall be for the
account of the Retiring Shareholder.
10.5 If a Retiring Shareholder shall fail or refuse to transfer any shares
in accordance with its obligations under Article 10.4 the directors
may authorise the company to execute and deliver a transfer from the
Retiring Shareholder to a nominee on behalf of the Retiring
Shareholder. The company may accept the consideration for the transfer
and hold it on trust for the Retiring Shareholder, which acceptance
shall be a good discharge to the nominee and may set off such amount
against the costs and expenses of the transfer. The directors of the
company shall cause the transferee to be registered as the holder of
such shares and, following the registration of the transfer, the
validity of the proceedings shall not be questioned by any person.
11. Proceedings at General Meetings
11.1 The quorum at any general meeting shall consist of a majority in
number of the members in person or by proxy. Regulation 40 of Table A
shall be modified accordingly.
11.2 If, and for so long as, the company has only one member, that member
or the proxy for that member or, where that member is a corporation,
its duly authorised representative shall be a quorum at any general
meeting of the company or of the holders of any class of shares.
Regulation 40 of Table A shall be modified accordingly.
11.3 The chairman at any general meeting shall not be entitled to a second
or casting vote. Regulation 50 of Table A shall not apply.
11.4 In the case of a corporation a resolution in writing may be signed on
its behalf by a director or the secretary of the corporation or by its
duly appointed attorney or duly authorised representative. Regulation
53 of Table A shall be extended accordingly.
12. Votes of Members
At a general meeting, but subject to any rights or restrictions
attached to any shares, on a show of hands every member who (being an
individual) is present in person or (being a corporation) is present
by a duly authorised representative and every proxy for any member
(regardless of the number or the holdings of the members for whom he
is a proxy) shall have one vote, and on a poll every member who is
present in person or by proxy shall have one vote for every share of
which he is the holder. Regulation 54 of Table A shall not apply.
<PAGE>
13. Delivery of Proxies
The instrument appointing a proxy and (if required by the directors)
any authority under which it is executed or a copy of the authority,
certified notarially or in some other manner approved by the
directors, may be delivered to the office (or to such other place or
to such person as may be specified or agreed by the directors) before
the time for holding the meeting or adjourned meeting at which the
person named in the instrument proposes to act or, in case of a poll
taken subsequently to the date of the meeting or adjourned meeting,
before the time appointed for the taking of the poll, and an
instrument of proxy which is not so delivered shall be invalid. The
directors may at their discretion treat a faxed or other machine made
copy of an instrument appointing a proxy as such an instrument for the
purpose of this article. Regulation 62 of Table A shall not apply.
14. Alternate Directors
Any director (other than an alternate director) may appoint any other
director, or any other person who is willing to act, to be an
alternate director and may remove from office an alternate director so
appointed by him. Regulation 65 of Table A shall not apply.
15. Delegation of Directors' Powers
The directors may delegate any of their powers (with power to
sub-delegate) to committees consisting of such person or persons
(whether directors or not) as they may resolve. Regulation 72 of Table
A shall be modified accordingly and references in Table A to a
committee of directors or to a director as a member of such a
committee shall include a committee established under this article or
such person or persons.
16. Appointment and Removal of Directors by Majority Shareholders
Any member holding, or any members holding in aggregate, a majority in
nominal value of such of the issued share capital for the time being
of the company as carries the right of attending and voting at general
meetings of the company may by memorandum in writing signed by or on
behalf of him or them and delivered to the office or tendered at a
meeting of the directors or at a general meeting of the company at any
time and from time to time appoint any person to be a director (either
to fill a vacancy or as an additional director) or remove any director
from office (no matter how he was appointed).
17. Appointment of Directors by Board
Without prejudice to the powers conferred by any other article, any
person may be appointed a director by the directors, either to fill a
vacancy or as an additional director.
<PAGE>
18. No Age Limit or Share Qualification
No director shall be required to retire or vacate his office, and no
person shall be ineligible for appointment as a director, by reason of
his having attained any particular age. No shareholding qualification
for directors shall be required.
19. Exclusion of Rotation Requirements and Other Provisions
Regulations 73 to 80 (inclusive) and the last sentence of regulation
84 of Table A shall not apply.
20. Disqualification and Removal of Directors
The office of a director shall be vacated not only upon the happening
of any of the events mentioned in regulation 81 of Table A but also if
he is removed from office pursuant to these articles. Regulation 81 of
Table A shall be modified accordingly.
21. Directors' Gratuities and Pensions
Regulation 87 of Table A shall not apply.
22. Notice and Conduct of Board Meetings
Notice of a meeting of the directors shall be deemed to be properly
given to a director if it is given to him personally or by word of
mouth or sent in writing to him at his last known address or any other
address given by him to the company for this purpose, or by any other
means authorised in writing by the director concerned. Notice shall be
given in this manner to all directors including any director who is
for the time being absent from the United Kingdom. A director may
waive notice of any meeting either prospectively or retrospectively.
In the case of an equality of votes, the chairman shall not have a
second or casting vote. Regulation 88 of Table A shall be modified
accordingly.
23. Quorum for Board Meetings
The quorum for the meetings of the board shall be constituted by the
attendance (or participation by conference telephone in accordance
with Article 24) of six directors throughout such meeting. Regulation
89 shall be modified accordingly.
24. Participation in Board Meetings by Telephone
All or any of the members of the board or any committee of the board
may participate in a meeting of the board or that committee by means
of a conference telephone provided that participants acknowledge that
they can speak to and hear each other. A person so participating shall
be deemed to be present in person at the meeting and shall be entitled
to vote or be counted in a quorum accordingly. Such a meeting shall be
deemed to take place where the
<PAGE>
largest group of those participating is assembled, or, if there is no
such group, where the chairman of the meeting then is.
25. Resolution in Writing
A resolution in writing executed by all the directors or by all the
members of a committee for the time being shall be as valid and
effective as a resolution passed unanimously at a meeting of the board
or, as the case may be, of the committee properly convened and
constituted. The resolution may be contained in one document or in
several documents in like form each executed by one or more of the
directors or members of the committee concerned. A resolution signed
by an alternate director need not also be signed by his appointor and,
if it is signed by a director who has appointed an alternate director,
it need not be signed by the alternate director in that capacity.
Regulation 93 of Table A shall not apply.
26. Directors May Vote When Interested
A director who to his knowledge is in any way, whether directly or
indirectly, interested in a contract or proposed contract with the
company shall declare the nature of his interest at a meeting of the
directors in accordance with the Act. Subject where applicable to such
disclosure, a director shall be entitled to vote in respect of any
contract or proposed contract in which he is interested and if he
shall do so his vote shall be counted and he shall be taken into
account in ascertaining whether a quorum is present. Regulations 94
and 95 of Table A shall not apply.
27. Official Seal
The company may exercise all the powers conferred by the Act with
regard to having any official seal and such powers shall be vested in
the directors. Subject to the provisions of the Act, any instrument to
which an official seal is affixed shall be signed by such persons, if
any, as the directors may from time to time determine.
28. Notices
Any notice or other document may be served on or delivered to any
member by the company either personally, or by sending it by post
addressed to the member at his registered address or by fax or telex
to a number provided by the member for this purpose, or by leaving it
at his registered address addressed to the member, or by any other
means authorised in writing by the member concerned. In the case of
joint holders of a share, service or delivery of any notice or other
document on or to one of the joint holders shall for all purposes be
deemed a sufficient service on or delivery to all the joint holders.
Regulation 112 of Table A shall not apply.
29. Time of Service
Any notice or other document, if sent by the company by post, shall be
deemed to have been served or delivered twenty four hours after
posting and, in proving such service or delivery, it shall be
sufficient to prove that the notice or document was properly
addressed, stamped and
<PAGE>
put in the post. Any notice or other document left by the company at a
registered address otherwise than by post, or sent by fax or telex or
other instantaneous means of transmission, shall be deemed to have
been served or delivered when it was so left or sent. Regulation 115
of Table A shall not apply.
30. Indemnity of Officers
Subject to the provisions of the Act, the company may indemnify any
director or other officer against any liability and may purchase and
maintain for any director or other officer or auditor insurance
against any liability. Subject to those provisions, but without
prejudice to any indemnity to which the person concerned may otherwise
be entitled, every director or other officer of the company shall be
indemnified, and if the board so determines an auditor may be
indemnified, out of the assets of the company against any liability
incurred by him as a director or other officer of the company, or as
auditor, in defending any proceedings (whether civil or criminal) in
which judgment is given in his favour or he is acquitted or in
connection with any application under the Act in which relief is
granted to him by the court. For the purposes of this article no
person appointed or employed by the company as an auditor is an
officer of the company.
<PAGE>
ANNEX 4
Form of Poolserco Business Plan
<PAGE>
SCHEDULE 35
GOAL
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions: In this Schedule and the Appendices hereto, unless the
context otherwise requires:
"ABB" means ABB Power T&D Company Inc., a corporation incorporated
under the laws of the State of Delaware having a place of business at
2550 Walsh Avenue, Santa Clara, California 95051-1215, United States
of America;
"Bureau Service Provider" means any person appointed by a Party for
the purposes of providing bureau services to that Party in relation to
that Party's own business needs in connection with the Pool;
"Cluster Licence" means a licence to make and use an unlimited number
of copies of Goal on a main cluster of computers at a single site
under the control of the relevant licensee (and, where applicable, any
site under the control of a third party duly appointed by the relevant
licensee for undertaking interface work or providing disaster recovery
services), together with the right to make and use an unlimited number
of copies of Goal at the same site solely for the purposes of
providing back-up support and disaster recovery services by the
relevant licensee in the event of any failure of the main cluster of
computers;
"Confidential Sections of the Datum Document" means documents 4 and 5
of the documents listed in the definition of "Datum Document" in
Clause 1.1 being the Datum Document for the UCSCH Sub-System of the
Core Algorithm of Supergoal II (Issue No. 3) and for the ALTCOM
Sub-System of the Core Algorithm of Supergoal II (Issue No. 2) as
amended from time to time;
"Emergency Fix" means any urgent fix, change or enhancement made to
Generation Schedule Goal or Settlement Goal or the procedures for
running either, as the case may be, in the circumstances set out in
paragraph 6.3.1 or 6.3.2;
"Generation Schedule Goal Enhancement" means any change, modification,
development or replacement of, or deletion from or addition to,
Generation Schedule Goal of whatever nature provided that any
Emergency Fix or any change, modification, development or replacement
of, or deletion from or addition to, any of the foregoing made
pursuant to sub-section 6.6 shall not constitute a Generation Schedule
Goal Enhancement;
"Goal Confidentiality Agreement" means any of the confidentiality
agreements in the form referred to in sub-section 5.3 and to be
entered into by the Pool Auditor, the Scheduling and Despatch Auditor,
the Settlement System Administrator, Pool Consultants and Pool Members
in accordance with sub-section 5.2;
<PAGE>
"Goal Escrow Agent" means NCC Escrow International Limited (registered
number 3081952), a company incorporated in England and Wales whose
registered office is at Oxford House, Oxford Road, Manchester M1 7ED;
"Goal Escrow Agreement" means the agreement to be entered into in the
form set out in Appendix 3 in accordance with sub-section 3.4;
"Goal Source Code" means the source code of Settlement Goal being the
source code lodged by NGC from time to time with the Goal Escrow Agent
in accordance with the terms of the Goal Escrow Agreement;
"Licence Applicant" has the meaning given to that term in sub-section
3.1;
"Old Goal" has the meaning given to that term in paragraph 3.5.1;
"Pool Consultant" means any of the personnel appointed by the
Executive Committee and referred to in Clause 17.2.1;
"SAV Licence" means any Type 2 Goal Licence, Type 3 Goal Licence, Type
5 Goal Licence, Type 6 Goal Licence, Type 8 Goal Licence or Type 9
Goal Licence or such other licence granted pursuant to the provisions
of sub-section 4.2;
"SAV Licensee" means a licensee of a SAV Licence;
"Scheduling and Despatch Auditor" means the firm of accountants
appointed for the time being and from time to time to carry out
Scheduling and Despatch Reviews;
"Settlement Goal Enhancement" means any upgrade to the hardware upon
which Settlement Goal operates or any change, modification,
development or replacement of, deletion from or addition to:-
(a) Settlement Goal;
(b) the Datum Document; or
(c) those sections of the Pool Rules relating to Settlement
Goal,
of whatever nature provided that any Emergency Fix or any change,
modification, development or replacement of, or deletion from or
addition to, any of the foregoing made pursuant either to any support
and maintenance arrangement (whether or not embodied in a formal
contract) or to sub-section 6.6 shall not constitute a Settlement Goal
Enhancement;
"Site Licence" means a licence to make and use an unlimited number of
copies of Goal on any computers at a single main site under the
control of the relevant licensee (and, where applicable, any site
under the control of a third party duly appointed by the relevant
licensee for undertaking interface work or providing disaster recovery
services), together with the right to make and use an
<PAGE>
unlimited number of copies of Goal on any computers at other such
sites solely for the purpose of providing back-up support and disaster
recovery services by the relevant licensee in the event of any failure
at the main site;
"Stanford Software" means the software known as MINOS version 5.5
developed by Stanford University as embedded in Settlement Goal and
Generation Schedule Goal and related documentation;
"Type 1 Goal Licence" means a licence in the form set out in Appendix
1 to be granted by NGC in accordance with Section 3 to the Settlement
System Administrator;
"Type 2 Goal Licence" means a licence relating to the use of Goal, the
terms of which shall be based on the principles set out in Appendix 2
and agreed pursuant to sub-section 4.1, to be granted by NGC to a Pool
Member or other Party solely in connection with the business needs of
that Pool Member or, as the case may be, other Party in connection
with the Pool;
"Type 3 Goal Licence" means a licence relating to the use of Goal, the
terms of which shall be based on the principles set out in Appendix 2
and agreed pursuant to sub-section 4.1, to be granted by NGC to a
Bureau Service Provider for the purposes of providing bureau services
to one or more Parties in relation to its or their own business needs
in connection with the Pool;
"Type 5 Goal Licence" means a licence relating to the use of Goal, the
terms of which shall be based on the principles set out in Appendix 2
and agreed pursuant to sub-section 4.1, to be granted by NGC to a
person who is not a Party but who is a member of a Pool Members' Group
for the purposes of:-
(a) instructing Pool Members which are affiliates of such person
as to the data to be submitted including the checking and
submission of such Pool Members' own offer data; and
(b) providing bureau services to persons in that Pool Members'
Group, including the checking and submission of such Pool
Members' own offer data
in each case in connection with the Pool;
"Type 6 Goal Licence" means a licence relating to the use of Goal, the
terms of which shall be based on the principles set out in Appendix 2
and agreed pursuant to sub-section 4.1, to be granted by NGC to a
person who is not a Party but who is a member of a Pool Members' Group
for the purposes of instructing Pool Members which are affiliates of
such person as to the data to be submitted in connection with the
Pool;
"Type 8 Goal Licence" means a licence relating to the use of Goal, the
terms of which shall be based on the principles set out in Appendix 2
and agreed pursuant to sub-section 4.1, to be granted by NGC to a
person who is a member of a Pool Members' Group (including a Pool
Member) for use in connection with the business needs of the licensee
and for the purpose of
<PAGE>
providing bureau services to its affiliates in relation to their own
business needs, in all cases solely in connection with the Pool;
"Type 9 Goal Licence" means a licence relating to the use of Goal, the
terms of which shall be based on the principles set out in Appendix 2
and agreed pursuant to sub-section 4.1, to be granted by NGC to a
person who is a member of a Pool Members' Group (including a Pool
Member) for use in connection with the business needs of the licensee
and for the purpose of providing bureau services to its own
affiliates, and to non-affiliated Pool Members, in all cases in
relation to their own business needs and solely in connection with the
Pool;
"Type 1 Support and Maintenance Agreement" means a support and
maintenance agreement, based on the principles set out in Appendix 4,
which is to be agreed and entered into between NGC and the Settlement
System Administrator in accordance with sub-section 3.3; and
"Unconstrained Schedule" has the meaning given to that term in the
Pool Rules.
1.2 Interpretation: In this Schedule, except where the context otherwise
requires, a reference to a particular section, sub-section or
paragraph shall be a reference to that section, sub-section or
paragraph of the Schedule.
1.3 Conflicts: To the extent that there is any inconsistency or conflict
between the provisions of this Schedule and this Agreement, the
provisions of this Schedule shall prevail over the other provisions of
this Agreement solely to the extent that such inconsistency or
conflict relates to Goal.
2. REVIEW OF ELECTRICITY TRADING ARRANGEMENTS
2.1 Changes to Electricity Trading Arrangements: The Parties acknowledge
that reviews of the electricity trading arrangements may result in
changes to the existing electricity trading arrangements and such
changes may require amendments to the provisions of the SAV Licences
and the Type 1 Goal Licence including the scope of use provisions.
2.2 Amendment of SAV Licences: Subject to sub-section 2.4, if at any time
during, or upon the finalisation of, the review of the electricity
trading arrangements referred to in sub-section 2.1, the existing
electricity trading arrangements are changed as part of that review
and the position under the SAV Licences is thereby affected, and NGC
will continue to use Goal to assist in the function of central
scheduling of generation or to use Goal (in whole or in part) as part
of the interface between generators and NGC and SAV Licensees wish to
continue to utilise Goal, then, upon written notice from either of
them, NGC and each SAV Licensee shall negotiate in good faith
amendments to the SAV Licences subject to prior discussions with the
Executive Committee (including amendments to the scope of use of the
relevant SAV Licences and provided that any proposed increase in
licence fees shall be limited to such increase in fees which are
required by a head licensor) so as to enable the SAV Licensees to
model the output of the central scheduler and to ensure that data is
compliant with the interface. The agreement of NGC and the SAV
Licensees to such amendments shall not be unreasonably withheld or
delayed. In the event of a failure to agree any such amendment within
90 days (or such longer
<PAGE>
period as shall be agreed by NGC and the relevant SAV Licensee) after
receipt by NGC or the SAV Licensee, as the case may be, of the written
notice initiating the negotiation, either NGC or the SAV Licensee may
(at any time thereafter) refer the matter to arbitration in accordance
with Clause 83. Pending determination of that reference, the relevant
licence shall continue in effect.
2.3 Amendment of Type 1 Goal Licence: Subject to sub-section 2.4, if at
any time during, or upon the finalisation of, the review of the
electricity trading arrangements referred to in sub-section 2.1, the
existing electricity trading arrangements are changed as part of that
review and the position under the Type 1 Goal Licence is thereby
affected and the Settlement System Administrator wishes to continue to
utilise Goal, then, upon written notice from any of them, NGC, the
Executive Committee and the Settlement System Administrator shall
negotiate in good faith amendments to the Type 1 Goal Licence
(including amendments to the scope of use of the Type 1 Goal Licence
and provided that any proposed increase in licence fees shall be
limited to such increase in fees which are required by a head
licensor) so as to enable the Settlement System Administrator to
produce the Unconstrained Schedule and to ensure that data is
compliant with the interface. The agreement of NGC, the Executive
Committee and the Settlement System Administrator to such amendments
shall not be unreasonably withheld or delayed. In the event of a
failure to agree any such amendment within 90 days (or such longer
period as shall be agreed by NGC, the Executive Committee and the
Settlement System Administrator) after receipt by NGC or the
Settlement System Administrator, as the case may be, of the written
notice initiating the negotiation, either NGC or the Settlement System
Administrator may (at any time thereafter) refer the matter to
arbitration in accordance with Clause 83. Pending determination of
that reference, the relevant licence shall continue in effect.
2.4 Head Licensor Consent: To the extent that the amendments agreed
pursuant to sub-sections 2.2 and 2.3 require the consent of any head
licensor of NGC, then NGC shall, subject to the payment of its
reasonable costs and expenses in connection therewith, use its
reasonable endeavours to obtain the consent of such head licensors to
any such amendment.
2.5 Future Licences: If NGC is required to grant new SAV Licences or a
Type 1 Goal Licence after the implementation of any changes following
the review of the electricity trading arrangements referred to in
sub-section 2.1, such licences shall reflect the revisions to the
relevant licence agreed pursuant to this Section 2 notwithstanding
that such licence terms may differ from the Type 1 Goal Licence or the
principles set out in Appendix 2, as the case may be.
3. TYPE 1 GOAL LICENCE
3.1 Grant of Type 1 Goal Licence: On receipt of a request in writing from
the Executive Committee or the Settlement System Administrator (in
this Section 3, each a "Licence Applicant") NGC shall, subject to
sub-section 3.6, grant a Type 1 Goal Licence to the Settlement System
Administrator no later than the date specified in the Licence
Applicant's request as the date on which it requires the Type 1 Goal
Licence to be granted, such date to be no earlier than 30 days after
receipt of the request by NGC.
<PAGE>
3.2 Licence Fee: The Licence Fee referred to in the Type 1 Goal Licence
shall be the sum of US$1 where the Settlement System Administrator is
ESIS and US$77,500 in each other case.
3.3 Type 1 Support and Maintenance Agreement:
3.3.1 On receipt of a request in writing from the Executive
Committee or the Settlement System Administrator NGC and the
Settlement System Administrator shall enter into a Type 1
Support and Maintenance Agreement. NGC shall promptly (and
in any event within 30 days after receipt of the request)
deliver a draft form of Type 1 Support and Maintenance
Agreement, based upon the principles set out in Appendix 4,
to the Executive Committee and the Settlement System
Administrator.
3.3.2 Upon receipt of the draft form Type 1 Support and
Maintenance Agreement by the Settlement System
Administrator, NGC, the Executive Committee and the
Settlement System Administrator shall enter into good faith
discussions with a view to agreeing the terms of the Type 1
Support and Maintenance Agreement. NGC and the Settlement
System Administrator shall enter the Type 1 Support and
Maintenance Agreement upon agreement by the Executive
Committee, NGC and the Settlement System Administrator as to
its terms. If no such agreement is reached within 60 days
after receipt of the draft form Type 1 Support and
Maintenance Agreement, the Executive Committee, NGC or the
Settlement System Administrator may refer the dispute to
arbitration in accordance with Clause 83 provided that, in
which such case, the arbitrator appointed pursuant to Clause
83 shall be required to take account of the principles set
out in Appendix 4 in determining such dispute.
3.4 Goal Escrow Agreement: NGC shall enter into, and shall use reasonable
endeavours to procure that ABB and the Goal Escrow Agent
simultaneously enter into, the Goal Escrow Agreement as soon as
possible.
3.5 Goal Transitional Arrangements:
3.5.1 The version of Goal in use immediately prior to the Goal
Effective Date ("Old Goal") shall be operated and run in
conjunction with Settlement Goal for the purposes of the
Energy Uplift and Transmission Losses Scheme 2. The
operation and running of Old Goal for these purposes shall
be limited to and take effect for all Schedule Days prior to
and including the Goal Effective Date as if the relevant
provisions of Supplemental Agreement 25 in so far as it
affects Old Goal (other than the provisions of this
sub-section 3.5) had not come into effect.
3.5.2 For the period of 3 months only following the Goal Effective
Date NGC shall continue to make available to the Settlement
System Administrator, at the direction of the Executive
Committee, Old Goal for the purposes of resolving any
dispute between Parties in respect of the financial
obligations owed by Parties to each other which are based
upon the use of Old Goal prior to the Goal Effective Date.
<PAGE>
3.5.3 Upon the expiry of the 3 month period referred to in
paragraph 3.5.2 any dispute between Parties in respect of
the financial obligations owed by Parties to each other
which is based upon the use or operation of Old Goal and
which would require for its resolution Old Goal shall be
resolved by the Executive Committee provided that where any
such dispute is not resolved by the Executive Committee to
the satisfaction of the Parties any Party to the dispute may
refer the dispute to arbitration in accordance with Clause
83.
3.6 Termination of NGC's obligation: The obligation to grant Type 1 Goal
Licences in accordance with sub-section 3.1 shall terminate on 1st
January, 2010. Notwithstanding the foregoing, any Type 1 Goal Licence
granted by NGC prior to 1st January, 2010 shall continue in force
thereafter in accordance with its terms.
4. SAV LICENCES
4.1 Grant of SAV Licences: On receipt of a request in writing from a Party
in respect of itself (in the case of a Type 2 Goal Licence) or the
prospective licensee (in the case of any other SAV Licence) NGC shall,
subject to this Section 4, grant to the applicable SAV Licensee a Type
2 Goal Licence, Type 3 Goal Licence, Type 5 Goal Licence, Type 6 Goal
Licence, Type 8 Goal Licence or Type 9 Goal Licence, as the case may
be. NGC shall promptly (and in any event within 30 days after receipt
of the request) deliver a form of draft licence based upon the
principles set out in Appendix 2 (as applicable) to the applicable SAV
Licensee. Upon receipt of the draft form of SAV Licence by the Party
making the request, NGC and such Party shall enter into good faith
discussions with a view to agreeing the terms of the SAV Licence. NGC
and the SAV Licensee shall enter into the SAV Licence forthwith upon
agreement by NGC, the SAV Licensee and, if different, the requesting
Party as to its terms. If no such agreement is reached within 60 days
after receipt of the draft form of SAV Licence, NGC or the requesting
Party may refer the dispute to arbitration in accordance with Clause
83 provided that, in which such case the arbitrator appointed pursuant
to Clause 83 shall be required to take account of the relevant
principles relating to the SAV Licence in question set out in Appendix
2 in determining such dispute.
4.2 Other Types of SAV Licence: At the request of a Party, and subject to
agreement with that Party in relation to the payment of NGC's
reasonable costs and expenses incurred in connection therewith, NGC
will use reasonable endeavours to obtain the consent of its
head-licensors to the grant of a licence by NGC substantially similar
to the SAV Licences but for uses of Goal:-
4.2.1 that do not fall within the scope of use permitted by the
SAV Licences; and
4.2.2 by or for the benefit of a Party solely in connection with
its own business needs in connection with the Pool.
Upon receipt of the consent of its head licensors NGC and the
requesting Party shall enter into good faith discussions with a view
to agreeing the terms of the licence. NGC and the requesting Party, or
person specified in the request, as the case may be, shall enter into
such licence forthwith upon agreement by NGC and the requesting Party
as to its terms. If no such agreement is reached within 60 days after
the request of the Party, NGC or the requesting Party may refer the
dispute to
<PAGE>
arbitration in accordance with Clause 83 provided that, in which such
case, the arbitrator appointed pursuant to Clause 83 shall be required
to take account of the principles set out in Appendix 2 (save for
those principles relating to scope of use) and the scope of use
requirement set out in paragraph 4.2.2 in determining such dispute.
4.3 Executive Committee Nominee Licence: At the request of the Executive
Committee NGC shall enter into good faith discussions with the
Executive Committee with a view to agreeing the terms of a licence
(such terms being based on the Type 1 Goal Licence with such
amendments as NGC may require) to be granted by NGC to a person
nominated by the Executive Committee to hold, inter alia, the
intellectual property rights of Pool Members collectively which have
been developed under the 1998 Programme. Notwithstanding the foregoing
NGC shall be under no obligation to grant such licence. Failure to
grant such a licence shall not be considered a dispute and the
provisions of Clause 83 shall not apply.
4.4 Termination of NGC's Obligation: The obligation on NGC to grant SAV
Licences in accordance with sub-sections 4.1 and 4.2 shall terminate
on 1st January, 2010. Notwithstanding the foregoing, any SAV Licence
granted by NGC prior to 1st January, 2010 shall continue in force
thereafter in accordance with its terms.
5. ACCESS TO GOAL SOURCE CODE AND DATUM DOCUMENT
5.1 Rights of Access: Each of the Pool Auditor, the Scheduling and
Despatch Auditor, the Settlement System Administrator, any Pool Member
and any Pool Consultant shall, subject to sub-section 5.2, at such
time or times as shall be agreed with NGC (such agreement not to be
unreasonably withheld or delayed), be granted access to:
5.1.1 the Confidential Sections of the Datum Document; and
5.1.2 a print out of the Goal Source Code (excluding the Stanford
Software) in such format as shall be specified by NGC from
time to time,
for the purpose specified in the relevant Goal Confidentiality
Agreement.
5.2 Force and Effect: The rights of the Pool Auditor, the Scheduling and
Despatch Auditor, the Settlement System Administrator, Pool Members
and Pool Consultants under sub-section 5.1 are subject to the Pool
Auditor, the Settlement System Administrator, the Scheduling and
Despatch Auditor, the relevant Pool Member or relevant Pool
Consultant, as the case may be, having entered into a Goal
Confidentiality Agreement and such Goal Confidentiality Agreement
remaining in full force and effect.
5.3 Confidentiality Terms and Conditions: Each Goal Confidentiality
Agreement for Pool Members shall be in the form set out in Appendix 5.
The Goal Confidentiality Agreement for each of the Pool Auditor, the
Scheduling and Despatch Auditor, the Settlement System Administrator
and Pool Consultants shall be in the form set out in Appendix 5 as
amended to take into account the applicable principles set out in
Appendix 6 and such other amendments as may be agreed by
<PAGE>
NGC and the Pool Auditor, the Scheduling and Despatch Auditor, the
Settlement System Administrator and Pool Consultants as the case may
be.
5.4 Prior Rights: Save as expressly stated:
5.4.1 in this Section 5;
5.4.2 in the terms of the relevant Goal Confidentiality Agreement
entered into by it;
5.4.3 in the terms of the Goal Escrow Agreement; and
5.4.4 in the terms of any licence or other agreement entered into
by it with NGC,
the Pool Auditor, the Scheduling and Despatch Auditor, the Settlement
System Administrator and each Pool Member and Pool Consultant shall
have no further or additional rights relating to access to the Goal
Source Code or the Confidential Sections of the Datum Document.
6. ENHANCEMENTS TO GOAL
6.1 Introduction to Section 6:
6.1.1 Application of Section 6
The provisions set out in this Section 6 apply in respect of
Generation Schedule Goal Enhancements and Settlement Goal
Enhancements.
6.1.2 Application of Agreed Procedures
All Generation Schedule Goal Enhancements, Settlement Goal
Enhancements and Emergency Fixes shall be made in accordance
with the appropriate Agreed Procedures and this Section 6.
6.1.3 Works Programmes not applicable
The provisions set out in Clauses 5.9 to 5.14 inclusive
relating to Works Programmes shall not apply in relation to
Generation Schedule Goal Enhancements or Settlement Goal
Enhancements.
6.1.4 Ownership of Generation Schedule Goal Enhancements,
Settlement Goal Enhancements and Emergency Fixes
Ownership of all Generation Schedule Goal Enhancements,
Settlement Goal Enhancements and Emergency Fixes shall vest
in NGC, save where NGC agrees to the contrary.
<PAGE>
6.2 Generation Schedule Goal Enhancements:
6.2.1 Introduction to sub-section 6.2
NGC shall be entitled to make Generation Schedule Goal
Enhancements or to change substantially the procedures for
running Generation Schedule Goal at any time provided that
it shall comply with the provisions of this sub-section 6.2
prior to making any Generation Schedule Goal Enhancement.
6.2.2 Enhancements to software functionality or procedures for
running Generation Schedule Goal
(a) Without prejudice to paragraphs 6.3.1 and 6.3.2,
if NGC proposes:
(i) to make any Generation Schedule Goal
Enhancement (excluding changes to
program control options) to the software
functionality of Generation Schedule
Goal; or
(ii) to change substantially the procedures
for running Generation Schedule Goal,
NGC shall inform the Executive Committee of such
proposals in writing together with reasons giving
at least 2 months' notice or such shorter notice
period as may be agreed by NGC and the Executive
Committee.
(b) NGC shall promptly give the Executive Committee
such data and information as it may reasonably
require for the purposes of considering NGC's
proposals to make any Generation Schedule Goal
Enhancement or the procedures for running
Generation Schedule Goal. In any case, NGC shall
retain an unchanged copy of Generation Schedule
Goal for comparative purposes.
6.2.3 Changes to program control options
(a) Without prejudice to paragraphs 6.3.1 and 6.3.2,
if NGC proposes to make any change to the program
control options of Generation Schedule Goal, NGC
shall inform the Executive Committee as soon as
reasonably practicable.
(b) Nothing in this sub-section 6.2 shall prejudice or
affect the right of NGC for the purposes of the
Generation Schedule run to make any change to the
setting of the program control options of
Generation Schedule Goal or in the selection of
data to be input to Generation Schedule Goal as it
considers appropriate, having regard to the
provisions of the Grid Code.
<PAGE>
6.2.4 Notices under the Grid Code
Where NGC is required to give notice under the Grid Code of
any change in the timing of the Generation Schedule run, it
shall give such notice to the Executive Committee.
6.3 Emergency situations:
6.3.1 Threats to security etc
(a) NGC may, if necessary to avert an immediate threat
to the security, quality of supply and/or safe
operation of the NGC Transmission System and/or to
avoid any breach of its obligations under the Act
or the NGC Transmission Licence, make and
implement an Emergency Fix to Generation Schedule
Goal without complying with paragraph 6.2.2
provided it shall give the Executive Committee as
much notice of such Emergency Fix, together with
the reasons for, and the timing and description of
such Emergency Fix, as is practicable in the
circumstances.
(b) If it is not practicable to inform the Executive
Committee in advance of any Emergency Fix to
Generation Schedule Goal which has been
implemented, NGC shall inform the Executive
Committee of its implementation as soon as is
practicable thereafter together with the reasons
for, and the timing and description of, such
Emergency Fix.
6.3.2 Incomplete or corrupted output
(a) If the Generation Schedule Goal or the Settlement
Goal run produces no output, incomplete output,
seriously corrupted output or, in respect of
Settlement Goal, consistently provides the
algorithm messages described in Section 8 of the
Pool Rules or such other messages as the Executive
Committee shall from time to time approve for the
purposes of this paragraph and if the solution to
any such problem is in NGC's reasonable opinion
the immediate implementation of an Emergency Fix
to Generation Schedule Goal or is in the
Settlement System Administrator's reasonable
opinion the immediate implementation of an
Emergency Fix to Settlement Goal then NGC may make
and implement or the Settlement System
Administrator may procure the making and
implementation of such Emergency Fix to Generation
Schedule Goal or Settlement Goal, as the case may
be, provided that each of them shall give the
Executive Committee as much notice of such
Emergency Fix, together with the reasons for, and
the timing and description of, such Emergency Fix,
as is practicable in the circumstances.
(b) If it is not practicable to inform the Executive
Committee in advance of any Emergency Fix which
has been implemented, NGC or the Settlement System
Administrator, as the case may be, shall inform
the Executive Committee as soon as is practicable
thereafter together with the reasons for, timing
and description of, such Emergency Fix.
<PAGE>
6.3.3 Restriction on application of paragraphs 6.3.1 and 6.3.2
An Emergency Fix made and implemented by NGC or procured by
the Settlement System Administrator pursuant to paragraph
6.3.1 or 6.3.2 to avert an immediate threat or to solve a
problem of the types therein referred to, in circumstances
where the threat or problem does not continue to occur or
regularly recur, shall be limited (in its application to
Generation Schedule Goal and Settlement Goal) to the
occasions on which such threat or problem does occur.
6.3.4 Executive Committee objection to Emergency Fix made and
implemented pursuant to paragraph 6.3.1 or 6.3.2
If the Executive Committee objects to an Emergency Fix made
pursuant to paragraph 6.3.1 or 6.3.2, the Executive
Committee may negotiate with NGC or require the Settlement
System Administrator to remove or modify such Emergency Fix.
If the Executive Committee and NGC are unable to reach
agreement as to the removal or modification of such
Emergency Fix within 60 days of the implementation of such
Emergency Fix then the Executive Committee may appeal to the
Director to reverse or modify such Emergency Fix.
6.4 Referral to Pool Members and to the Director:
6.4.1 If the Executive Committee objects to NGC's proposals to
make any Generation Schedule Goal Enhancement pursuant to
paragraph 6.2.2 or disputes that an Emergency Fix proposed
under paragraph 6.3.1 is necessary for the purposes therein
described, the Executive Committee shall notify the Director
and NGC accordingly and, if directed not to proceed by the
Director, NGC shall not proceed with the implementation of
the Generation Schedule Goal Enhancement or Emergency Fix,
as the case may be.
6.4.2 The Executive Committee shall submit NGC's proposals to the
Pool Members in General Meeting pursuant to Clause 13
(unless in the opinion of the Executive Committee, the
period of notice given by NGC does not permit or the
Generation Schedule Goal Enhancement or Emergency Fix
proposed by NGC are of a minor or technical nature not
having commercial significance for any Pool Member), and the
Executive Committee shall object to NGC's proposals if the
Pool Members in general meeting do not approve the
proposals.
6.4.3 In all cases, whether or not the proposals are submitted to
the Pool Members in general meeting, the Executive Committee
or the Settlement System Administrator at the request of the
Executive Committee, shall notify the Pool Members of NGC's
proposals.
6.5 Settlement Goal Enhancements:
<PAGE>
6.5.1 Entitlement to require Settlement Goal Enhancements
Any of:
(i) the Settlement System Administrator;
(ii) the Executive Committee;
(iii) Pool Members in general meeting pursuant to Clause
13; or
(iv) NGC,
shall be entitled to require Settlement Goal Enhancements to
the software functionality of Settlement Goal or to the
procedures for running Settlement Goal (a "Settlement Goal
Enhancement Proposal") subject to obtaining the prior
agreement of the Pool Members in general meeting pursuant to
Clause 13 as to:
(a) the specification of the Settlement Goal
Enhancement required;
(b) the work methods and procedures to be adopted by
NGC for achieving the Settlement Goal Enhancement;
(c) the timetable for completing the Settlement Goal
Enhancement;
(d) the costing of the Settlement Goal Enhancement;
(e) the funding of the Settlement Goal Enhancement;
and
(f) any other matter which NGC considers necessary to
address prior to the commencement of work by NGC
on the Settlement Goal Enhancement (including
without limitation the relevant involvement of the
Pool Auditor).
In addressing each of the items set out in paragraphs (a) to
(f) in order to obtain the agreement of Pool Members in
general meeting as required pursuant to this paragraph
6.5.1, the Executive Committee shall, on behalf of Pool
Members, carry out a detailed and ongoing consultation with
NGC and have regard to the service levels and other
commercial terms that apply to the Settlement System
Administrator under the Service Lines that apply under
Schedule 4.
6.5.2 (a) Within 10 working days of the date on which a
Settlement Goal Enhancement Proposal is approved
by Pool Members in general meeting, NGC shall
either accept it or shall refer all or part of it
to arbitration in accordance with Clause 83. Any
Party (who is not a Pool Member) in respect of
whom the Settlement Goal Enhancement Proposal will
directly concern its functions, duties or
responsibilities shall also be entitled to refer
all or part of a Settlement Goal Enhancement
Proposal approved by Pool Members in general
meeting to
<PAGE>
arbitration in accordance with Clause 83 within 10
working days of the date on which a Settlement
Goal Enhancement Proposal is approved by Pool
Members in general meeting (such Party being
called in this paragraph 6.5.2 an "Appealing
Party") if it does not agree with all or part of
the terms of the Settlement Goal Enhancement
Proposal.
(b) Subject to NGC's and any Appealing Party's
approval of a Settlement Goal Enhancement Proposal
whether by agreement or through application of the
arbitration process (each as referred to in this
paragraph 6.5.2), NGC and Pool Members shall enter
into an agreement (the "Enhancement Agreement")
incorporating the provisions of the Settlement
Goal Enhancement Proposal and unless otherwise
agreed, based on service levels and other
commercial terms substantially similar to those
that apply to the Settlement System Administrator
under the Service Lines that apply under Schedule
4 provided that such service lines and other
commercial terms are reasonable in all of the
circumstances existing at the relevant time. In
the event of any dispute or difference of any kind
arising between NGC and Pool Members as to the
terms of the Enhancement Agreement either NGC or
Pool Members may refer such dispute to arbitration
in accordance with Clause 83.
(c) Following the execution and coming into force of
the Enhancement Agreement, the Enhancement
Agreement shall regulate the relationship between
NGC and Pool Members in relation to the relevant
Settlement Goal Enhancement which NGC shall
undertake. Without prejudice to the provisions of
the Goal Escrow Agreement, and for the avoidance
of doubt, the Executive Committee, the Settlement
System Administrator and Parties shall have no
rights to undertake any Settlement Goal
Enhancement themselves.
6.6 Goal Consistency Management: Where NGC makes any changes to Settlement
Goal or Generation Schedule Goal under this Schedule or any
maintenance and support arrangements then NGC shall, either before or
after making such change, propose a corresponding and consequential
change to Generation Schedule Goal or Settlement Goal, as the case may
be, and the Datum Document in the form of a Settlement Goal
Enhancement or Generation Schedule Goal Enhancement, as the case may
be, provided that NGC shall not be obliged to make any such
corresponding and consequential change to Generation Schedule Goal,
Settlement Goal or the Datum Document if such a change would:
6.6.1 detract from the security or quality of supply or safe
operation of the NGC Transmission System; or
6.6.2 give rise to a breach of its obligations under the NGC
Transmission Licence or the Act; or
6.6.3 have material adverse effect on NGC in respect of the
Transmission Services Activity (as defined in the NGC
Transmission Licence) where such effect has not been agreed
by NGC.
If NGC objects to any such change, the matter shall be referred to the
Director.
<PAGE>
6.7 Information to Director: Unless otherwise notified by the Director,
the Executive Committee shall keep the Director fully advised of any
Settlement Goal Enhancements, Generation Schedule Goal Enhancements or
Emergency Fixes and of any proposed Settlement Goal Enhancements,
Generation Schedule Goal Enhancements or Emergency Fixes of which it
is aware.
<PAGE>
APPENDIX 1
TYPE 1 LICENCE AGREEMENT
THIS LICENCE is made the [____________] day of [_______________] 19[__]
BETWEEN
(1) THE NATIONAL GRID COMPANY PLC, a company incorporated under the laws
of England and Wales (registered no. 2366977) whose registered office
is at National Grid House, Kirby Corner Road, Coventry CV4 8JY
("NGC"); and
(2) [___________________] ("[________________]")
WHEREAS:
1. The Licensee is the Settlement System Administrator and requires the
use of certain software in order to be able to carry out its functions
as Settlement System Administrator.
2. The software referred to in Recital 1 is owned by or licensed to NGC,
and NGC has agreed to grant [_______] a licence to use such software
on the terms set out in this Licence.
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Licence, unless the context otherwise requires:
"ABB" means ABB Power T&D Company Inc;
"Appendix" means the appendix to this Licence;
"Commencement Date" means the date of this Licence;
"Delivery Date" has the meaning set out in clause 4.1;
"Disaster Recovery
Service Fee" means the fee payable by the Licensee in
order to have a third party disaster recovery
company approved by the Licensor as a
Relevant Third Party to provide disaster
recovery services to the Licensee, which
shall be:
(i) US$7,500 where the Relevant Third
Party is to hold and use the Licensed
Program at a main Location with copies
held at an additional Location; and
<PAGE>
(ii) US$2,500 where the Relevant Third
Party is to hold and use the Licensed
Program at a main Location only;
"Equipment" means the computer or computers and operating
system software described in the Appendix (as
the same may be amended from time to time
pursuant to clause 9), representing the
minimum hardware configuration and operating
system software recommended by the Licensor
to run the Licensed Program as at the
Delivery Date or such later date as shall be
specified pursuant to the terms of clause 9;
"Escrow Agent" means the National Computing Centre Limited;
"Escrow Agreement" means the escrow agreement to be entered into
by the Parties, the Escrow Agent and ABB in
the form set out in Appendix 3 to Schedule 35
to the Pooling and Settlement Agreement;
"Expert's Decision" means the procedure set out in clause 20;
"Force Majeure" means, in relation to any Party, any event or
circumstance which is beyond the reasonable
control of such Party and which results in or
causes the failure of that Party to perform
any of its obligations under this Licence
including act of God, strike, lockout or
other industrial disturbance, act of the
public enemy, war declared or undeclared,
threat of war, terrorist act, blockade,
revolution, riot, insurrection, civil
commotion, public demonstration, sabotage,
act of vandalism, lightning, fire, storm,
flood, earthquake, accumulation of snow or
ice, lack of water arising from weather or
environmental problems, explosion, fault or
failure of plant and apparatus (which could
not have been prevented by Good Industry
Practice), governmental restraint, Act of
Parliament, other legislation, bye-law and
Directive (not being any order, regulation or
direction under sections 32, 33, 34 or 35 of
the Act) provided that lack of funds shall
not be interpreted as a cause beyond the
reasonable control of that Party;
"Intellectual Property" means confidential information, copyrights,
know how, database rights, topography rights,
design rights,
<PAGE>
moral rights, patents, trade or service marks
(whether or not the same are registered and
including applications for registration of
any of the same) and all rights or forms of
protection of a similar nature or having
equivalent or similar effect to any of the
same which may subsist anywhere in the world;
"Interface
Specification" means the System Interface Input File Format
Specification (document reference no.
NGC/GRP/75T06.4.1), the System Interface
Output File Format Specification (document
reference no. NGC/GRP/76T06.4.2) and the
Miscellaneous Interface Specification
(document reference no. NGC/GRP/252T06.4.3)
each as amended from time to time;
"Interface Work" has the meaning set out in clause 6.3;
"Licence" means this licence (including the Appendix)
as varied or supplemented in accordance with
the terms hereof;
"Licence Fee" means [the sum of US$1 in the case of a
licence in favour of ESIS; US$77,500 in the
case of each other Licensee];
"Licensed Program
Materials" means the Licensed Program, the Program
Documentation and the Media;
"Licensed Program" means Settlement Goal;
"Licensee" means [__________] as Settlement System
Administrator and shall include its legal
successors and permitted assigns;
"Licensor" means NGC and shall include NGC's legal
successors and permitted assigns;
"Location" means any site under the control of the
Licensee and, where applicable, any site
under the control of a Relevant Third Party;
"Media" means the media on which the Licensed Program
is to be delivered by the Licensor, as agreed
between the Parties;
"Non-Performing Party" shall have the meaning given to that term in
clause 19;
<PAGE>
"Party" means each of the Licensee and the Licensor;
"Party Liable" shall have the meaning given to that term in
clause 14;
"Pooling and Settlement
Agreement" means the agreement of that name dated 30th
March, 1990 as amended from time to time in
accordance with the terms thereof;
"Program Documentation" means the manuals associated with the
Licensed Program as specified in this
Appendix (and as each is amended from time to
time) including any copy thereof;
"Relevant Third Party" means any third party notified to the
Licensor as undertaking Interface Work for,
or approved by the Licensor under clause 6.2
to provide disaster recovery services to, the
Licensee;
"Specification" means the Pool Rules, the Datum Document and
the Interface Specification;
"Technical Compliance
Report" means document reference no.
NGC/GRP/404T05.5.2, as amended from time to
time; and
"Warranty Period" shall have the meaning given to that term in
clause 10.1.
1.2 Unless the context otherwise requires, terms and expressions defined
in the Pooling and Settlement Agreement shall have the same meaning in
this Licence.
1.3 In this Licence:
1.3.1 references to the masculine shall include the feminine and
references in the singular shall include references in the
plural and vice versa;
1.3.2 references to the word "include" or "including" are to be
construed without limitation;
1.3.3 except where the context otherwise requires, references to a
particular clause shall be a reference to that clause, in
this Licence;
1.3.4 except where the context otherwise requires, references in
the Appendix to a particular paragraph shall be a reference
to that paragraph in the Appendix;
1.3.5 the headings to each of the clauses, paragraphs and the
Appendix are inserted for convenience only and shall be
ignored in construing this Licence;
<PAGE>
1.3.6 any reference to an Act of Parliament or any Part or section
or other provision of, or Schedule to, an Act of Parliament
shall be construed, at the particular time, as including a
reference to any modification, extension or re-enactment
thereof then in force and to all instruments, orders or
regulations then in force and made under or deriving
validity from the relevant Act of Parliament; and
1.3.7 any reference to another agreement or any deed or other
instrument shall be construed as a reference to that other
agreement, deed or other instrument as the same may have
been, or may from time to time be, amended, varied,
supplemented or novated.
2. LICENCE
2.1 The Licensor hereby grants the Licensee a non-exclusive licence:
2.1.1 to make and use an unlimited number of copies of the
Licensed Program at a main Location;
2.1.2 to make and use an unlimited number of copies of the
Licensed Program at other Locations, solely for the purposes
of providing back-up support in the event of any failure at
the main Location;
2.1.3 to copy the Program Documentation to the extent reasonably
required for its lawful use of the Licensed Programs; and
2.1.4 to engage a Relevant Third Party to provide disaster
recovery services or to undertake Interface Work for the
Licensee,
on the terms and subject to the conditions of this Licence.
2.2 The Licence shall commence on the Commencement Date and shall continue
without limit in time unless and until terminated in accordance with
clause 16.
3. CHARGES AND TERMS OF PAYMENT
3.1 The Licence Fee shall be paid on the Commencement Date. The Disaster
Recovery Service Fee shall be paid on the issue of a copy of the
Licensed Program Materials to the Relevant Third Party under clause
6.4.
3.2 The Licensee reserves the right to withhold payment against any
invoice which is not submitted in accordance with this Licence, and
shall forthwith notify to the Licensor in writing the reasons for
withholding payment.
3.3 If the Licensee disputes the whole or any part of any invoice from the
Licensor, the Licensee shall pay that amount of the invoice which is
not in dispute and shall be entitled to withhold the balance pending
resolution of the dispute. Any amounts withheld, but subsequently
found to be properly payable following the resolution of the dispute,
will carry interest (as well after as before judgment) from (and
including) the last date for
<PAGE>
payment thereof to (but excluding) the date of actual payment at a
rate equivalent to 2% over Barclays Bank PLC's base lending rate then
in force.
3.4 If the payment of any sum due under the Licence shall be delayed by
the Licensee other than in accordance with clauses 3.2 and 3.3, the
Licensor shall be entitled to charge interest at a rate equivalent to
2% over Barclays Bank PLC's base lending rate then in force, on the
amount of the delayed payment for the period of the delay.
3.5 If any payment under this clause 3 would be due on a non-Business Day,
the payment obligation shall be deferred until the next Business Day.
3.6 The Licence Fee and the Disaster Recovery Service Fee shall be paid in
US dollars and all other charges payable in connection with the
Licence shall be paid in GB sterling.
3.7 The Licensor shall be entitled to request the Licensee to make payment
of the Licence Fee and the Disaster Recovery Service Fee direct to a
third party including ABB (Systems Control Division) or as such third
party may direct. If the Licensee makes such payment in accordance
with the Licensor's instructions, the Licensee shall certify that
payment has been made, and such payment shall discharge the Licensee's
obligations under this Licence in so far as they relate to that
payment.
3.8 All payments to the Licensor under the terms of this Licence are
expressed to be exclusive of Value Added Tax howsoever arising. The
Licensee shall pay to the Licensor in addition to those payments, or
if earlier on receipt of a tax invoice or invoices from the Licensor,
all Value Added Tax in relation to any supply made or deemed to be
made for Value Added Tax purposes pursuant to this Licence.
3.9 If the Licensee is required under applicable law to deduct withholding
tax or any other UK taxes from any sums payable to the Licensor under
this Licence then the Licensee shall be entitled to do so, provided
that the Parties shall co-operate and take reasonable steps lawfully
to avoid making any such deduction. In the event that it is not
possible lawfully to avoid making such deduction, the Licensee shall
increase the sum payable to the extent necessary to ensure that, after
the making of such deduction or withholding, the Licensor receives on
the due date of such payment (and retains, free from any liability in
respect of such deduction or withholding), a net sum equal to the sum
which it would have received had no such deduction or withholding been
required to be made. The Licensee shall promptly deliver to the
Licensor any receipts, certificates or other proof evidencing the
amounts (if any) paid or payable in respect of any deduction or
withholding as aforesaid.
3.10 If any increased amount is paid pursuant to the above clause, then if
in its sole opinion and without prejudice to the rights of the
Licensor to manage its tax affairs as it thinks fit the Licensor
determines that it has received or been granted a credit against or
relief or remission from or repayment of any tax paid or payable by it
in respect of or calculated with reference to the deduction or
withholding giving rise to the payment of such increased amount ("the
Benefit"), the Licensor shall, to the extent it can do so without
prejudice to the retention of such credit, relief, remission or
repayment, pay to the Licensee the amount of the Benefit.
<PAGE>
4. DELIVERY AND INSTALLATION OF THE PROGRAM
4.1 The Licensee shall notify the Licensor that it wishes to take delivery
of the Licensed Program Materials, by giving to the Licensor not less
than one calendar month's notice in writing. The date for delivery of
the Licensed Program Materials (the "Delivery Date") shall be the date
of expiry of such notice.
4.2 If so required by the Licensee and subject to agreement with the
Licensor as to the precise scope and timing for such work and to the
Licensee undertaking to pay the Licensor's reasonable charges, the
Licensor will assist the Licensee in ensuring that the Licensed
Program will be inter-operable with other computer programs used by
the Licensee.
4.3 On the Delivery Date the Licensor shall deliver the Licensed Program
Materials to the Licensee at a location in the United Kingdom agreed
between the Parties. The Licensed Program Materials shall consist of
one copy of the Licensed Program in executable form on the Media and
three copies of the Program Documentation. The Licensee shall notify
the Licensor within 28 days of delivery if the set of Licensed Program
Materials is in any way incomplete.
4.4 The Licensee shall ensure that the Licensed Program is installed on
the Equipment in the manner prescribed in the Program Documentation.
4.5 Risk in the Media shall pass to the Licensee on the Delivery Date. If
any part of the Media shall thereafter be lost, destroyed or damaged,
the Licensor shall at the request of the Licensee replace the same
promptly (embodying the relevant part of the Licensed Program).
5. USE
5.1 The Licensed Program shall be used by the Licensee solely for carrying
out the functions of the Settlement System Administrator as at the
Goal Effective Date in connection with the Electricity Pool of England
and Wales. The Licensee shall not permit the Licensed Program to be
accessed or used by a third party, nor on behalf of or for the benefit
of any third party, other than in accordance with the terms of this
Licence. The Licensee shall not have the right to give, sell, lend,
lease, sub-license or distribute any portion of the Licensed Program
Materials to any third party.
5.2 The Licensee shall notify the Licensor of every Location at which any
copy of the Licensed Program is held from time to time, and identify
its main Location and that of any Relevant Third Party for the
purposes of clause 2.1. The Licensee may export copies of the Licensed
Program to other Locations in the European Union and the USA, but
undertakes:
5.2.1 to comply with all applicable United States and United
Kingdom export laws and controls in force from time to time;
and
<PAGE>
5.2.2 in any event, not to export copies of the Licensed Program
to other Locations outside the European Union or the USA
without the prior written consent of the Licensor (not to be
unreasonably withheld).
5.3 The Licensee shall, and shall procure that any Relevant Third Party
shall, follow all reasonable instructions given by the Licensor from
time to time with regard to the use of the Licensed Program Materials.
The Licensee shall, and shall procure that any Relevant Third Party
shall, permit the Licensor, at all reasonable times, and at the
Licensor's expense, to do all acts and things (including entering onto
any premises) necessary to verify that the use of the Licensed Program
Materials is within the terms of this Licence, provided:
5.3.1 that in doing so the Licensor shall not act in any manner
which will interfere with, or disrupt, the normal operations
of the Licensee in carrying out the functions of the
Settlement System Administrator in connection with the
Electricity Pool of England and Wales; and
5.3.2 that the Licensor shall only exercise its right of entry
where it has reasonable grounds to believe that the Licensee
or a third party is in breach of the terms of this Licence.
6. DISASTER RECOVERY AND INTERFACE WORK
6.1 Prior to engaging a third party to provide disaster recovery services,
the Licensee shall notify the Licensor in writing of its intention to
do so, and of the identity of the third party.
6.2 Subject to the proviso set out below, within 30 days of such notice,
the Licensor shall either:
6.2.1 approve the third party to provide disaster recovery
services, in which event that third party shall be treated
as a "Relevant Third Party"; or
6.2.2 reject the third party,
PROVIDED that approval shall not be unreasonably withheld and that
failure to reject the third party within such 30 day period shall be
treated as approval.
6.3 Prior to engaging a third party to assist the Licensee in ensuring
that the Licensed Program will be interoperable with other computer
programs used by the Licensee ("Interface Work"), the Licensee shall
notify the Licensor in writing of its intention to do so, and of the
identity of the third party. Such third party shall be treated as a
"Relevant Third Party" for the purposes of this Agreement.
6.4 The Licensee may issue a copy of the Licensed Program Materials to a
Relevant Third Party solely for the purposes of providing disaster
recovery services to or undertaking Interface Work for the Licensee,
subject to (in the case of disaster recovery services only):
<PAGE>
6.4.1 the Licensee having paid the appropriate Disaster Recovery
Service Fee; and
6.4.2 the Relevant Third Party having entered into a
confidentiality agreement with the Licensee in the form set
out in the Appendix and provided a copy to the Licensor.
6.5 The Relevant Third Party may make such copies of the Licensed Program
as it reasonably requires for back-up purposes, provided that (in the
case of disaster recovery services only) copies may only be retained
at an additional Location where the Licensee has paid the appropriate
Disaster Recovery Service Fee.
7. SECURITY
7.1 The Licensee undertakes that the Licensed Program Materials and all
copies of the Licensed Program made by the Licensee pursuant to clause
2.1 and by a Relevant Third Party pursuant to clause 6.5 will remain
under the control of the Licensee or the Relevant Third Party as the
case may be, and that the Licensee will take, and will procure that a
Relevant Third Party will take, all reasonable precautions to
safeguard the Licensed Program Materials against unauthorised use. In
particular, the Licensee shall, and shall procure that any Relevant
Third Party shall, maintain a standard of care in protecting the
Licensed Program Materials against theft, unauthorised access and use,
which is not less than the standard that the Licensee employs itself
in the protection of its own and/or other licensed computer programs
and confidential information.
7.2 If the Licensee or any Relevant Third Party sells or disposes of any
equipment on which a copy of the Licensed Program has been loaded
(other than to a successor Settlement System Administrator to whom it
also assigns this Licence in accordance with clause 12), the Licensee
shall ensure and shall procure that any Relevant Third Party shall
ensure that all copies of the Licensed Program have previously been
deleted.
7.3 The Licensee shall not, and shall procure that any Relevant Third
Party shall not:
7.3.1 (subject to Section 296A of the Copyright Designs and
Patents Act 1988) disassemble or reverse engineer the
Licensed Program; or
7.3.2 (subject to Section 50B of the Copyright Designs and Patents
Act 1988) decompile the Licensed Program.
7.4 The Licensee shall not and shall procure that any Relevant Third Party
shall not translate, adapt, vary, or modify the whole or any part of
the Licensed Program or attempt any error correction of the whole or
any part of the Licensed Program or permit the whole or any part of
the Licensed Program to be combined with or become incorporated in any
other computer programs. For the avoidance of doubt, the use of
interfaces to the Licensee's other computer programs shall not be
regarded as "combining" or "incorporating", and the restrictions set
out in this clause 7.4 shall not prevent the exercise by the Licensee
of its rights and the performance by the Licensee of its obligations
under clause 4.2.
<PAGE>
8. PROGRAM DOCUMENTATION COPYING
8.1 The Licensee shall procure that any Relevant Third Party shall not
make any copies of the Program Documentation.
9. EQUIPMENT UPGRADES
9.1 The Licensor shall notify the Licensee of any upgrades to the
Equipment required to ensure satisfactory running of any future
release or version of the Licensed Program.
10. WARRANTIES
10.1 The Licensor warrants and undertakes that, provided it is operated in
accordance with the Licensor's instructions and on the Equipment, the
Licensed Program will for a period of 90 days from the Delivery Date
(or if later, from the date of actual delivery of the Licensed Program
Materials) ("the Warranty Period") conform in all material respects to
the Specification existing at the Delivery Date. The Licensor does not
guarantee that the Licensed Program is free of errors not materially
affecting such conformity.
10.2 The Licensor warrants and undertakes that it shall fulfil its delivery
and rectification obligations hereunder with all due reasonable care
and skill and by suitably qualified and trained personnel.
10.3 Each Party represents and warrants to the other that so far as it is
aware, all software and data it transfers to the other shall be free
from all logic bombs, viruses, or other contaminants (including worms
or trojan horses) or any self-propagating or other programs that may
affect or cause damage to the software, data or systems belonging to
or used by that other.
10.4 The Licensor represents and warrants:
10.4.1 that it owns the Intellectual Property rights in the
Licensed Program Materials or has otherwise obtained full
right to grant the Licence to the Licensee; and
10.4.2 that so far as it is aware, the use of the Licensed Program
or part thereof by the Licensee shall not infringe the
Intellectual Property rights of a third party.
10.5 The Licensor represents and warrants that the Licensed Program will
be, and will remain, Millennium Compliant and will not cease to be so
at or at any time prior to, during or after the year 2000. For the
purposes of this warranty, "Millennium Compliant" means that neither
the performance nor the functionality of the Licensed Program is or
will be affected by dates prior to, during or after the year 2000, and
in particular that the Licensed Program has the following features:
10.5.1 no value for current date causes or will cause any
interruption in operation;
10.5.2 database functionality behaves and will behave consistently
for dates prior to, during and after the year 2000;
<PAGE>
10.5.3 in all interfaces and data storage, the century in any date
is and will be specified either explicitly or by unambiguous
algorithms or inference rules; and
10.5.4 the year 2000 is and will be recognised as a leap year,
provided that the Licensor shall have no liability in respect of
defects in performance or functionality caused by incorrect or
non-millennium compliant data or software originating outside the
Licensor.
10.6 Subject to clause 10.7, if the Licensor receives written notice from
the Licensee that the Licensed Program does not materially conform to
the warranties set out in this clause 10, the Licensor's sole
obligation (at its own expense) shall be:
10.6.1 in the case of any of the Licensed Program the Intellectual
Property rights in which are vested in the Licensor, to
remedy such material non-conformity of the relevant portion
so as to conform materially with the relevant warranty; and
10.6.2 in the case of any of the Licensed Program the Intellectual
Property rights in which are vested in a third party, either
to obtain and supply a corrected version so as to conform
materially with the relevant warranty or to remedy itself
such material non-conformity of the relevant portion so as
to conform materially with the relevant warranty.
10.7 The Licensor shall have no obligations or liability under clause 10
unless it has first received written notice of the breach of warranty
no later than:
10.7.1 expiry of the Warranty Period (in the case of a breach of
clause 10.1);
10.7.2 90 days from the date on which the Licensee became aware of
the breach (in the case of a breach of clauses 10.2, 10.3 or
10.4); or
10.7.3 2nd January, 2001 (in the case of a breach of clause 10.5).
10.8 The warranties and undertakings set out in this clause 10 shall be
subject to the Licensee complying with its material obligations under
this Licence. When notifying any material non-conformity of the
Licensed Program the Licensee shall, so far as it is able, provide the
Licensor with documented examples of such material non-conformity.
10.9 Clause 10 constitutes the only warranties provided by the Licensor in
respect of the Licensed Program. The obligations and liability of the
Licensor in this Licence are in place of, and the Licensee accordingly
waives, all implied guarantees and warranties including, without
limitation, any warranty of satisfactory quality or fitness for a
particular purpose whether or not any particular purpose has been
notified to the Licensor. The Licensor shall have no liability under
this Licence in respect of defects and/or derogations set out in the
Technical Compliance Report.
<PAGE>
11. OWNERSHIP
11.1 The Intellectual Property rights subsisting in the Licensed Program
Materials and all parts and copies thereof shall remain vested in the
Licensor or, as the case may be, in any third party from which the
Licensor has been granted an appropriate licence or sub-licence.
11.2 The Licensee shall, and shall procure that any Relevant Third Party
shall:
11.2.1 follow all reasonable instructions given by the Licensor
from time to time with regard to the use of trade marks
owned by the Licensor and other indications of the property
and rights of the Licensor or, as the case may be, any third
party from which the Licensor has been granted an
appropriate licence or sub-licence; and
11.2.2 affix any and all Intellectual Property notices affixed to
the Licensed Program Materials on any and all copies made by
the Licensee pursuant to clause 2.1 and a Relevant Third
Party pursuant to clause 6.5 and shall ensure that any such
notices shall not be tampered with, removed or obscured in
any manner whatsoever.
12. ASSIGNMENT
12.1 The Licensor shall not assign any of its obligations under the Licence
without the prior written consent of the Licensee, except that the
Licensor shall have the right to assign this Licence to any
organisation which is to carry on the business of Grid Operator
currently carried out by the Licensor as part of a solvent
reconstruction or amalgamation of the Licensor, provided always that
any assignee from the Licensor first undertakes in writing to the
Licensee to be bound by the terms of this Licence.
12.2 Subject to clause 12.3, the Licensee shall not be entitled to assign
or transfer all or any of its rights or obligations under or in
respect of this Licence without the prior written consent of the
Licensor.
12.3 The Licensee shall be entitled to assign and transfer its rights and
obligations under or in respect of this Licence to a successor
Settlement System Administrator subject to:
12.3.1 the assignee undertaking to the Licensor in writing to be
bound by the terms of this Licence;
12.3.2 the Licensee agreeing to pay or reimburse the Licensor's
reasonable legal expenses incurred with respect to such
assignment or transfer; and
12.3.3 the Licensee having given the Licensor at least 60 days'
prior written notice of its intention to assign or transfer
this Licence.
<PAGE>
13. INDEMNITIES
13.1 The Licensor shall fully indemnify the Licensee against all damages,
costs, charges and expenses arising from or incurred by reason of any
infringement or alleged infringement in the United Kingdom of
copyright in consequence of the authorised use or possession by the
Licensee of Licensed Program Materials, subject to the following:
13.1.1 the Licensee shall notify the Licensor forthwith in writing
if it becomes aware of any alleged infringement;
13.1.2 the Licensee shall make no admissions without the Licensor's
prior written consent; and
13.1.3 the Licensee, at the Licensor's request and expense, shall
allow the Licensor to conduct any negotiations or litigation
and/or settle any claim. The Licensee shall give the
Licensor all reasonable assistance. The costs incurred or
recovered in such negotiations or settled claim shall be for
the Licensor's account.
13.2 If at any time an allegation of infringement of copyright is made in
respect of the Licensed Program Materials, or if in the Licensor's
reasonable opinion such an allegation is likely to be made, the
Licensor may at his own expense modify or replace the Licensed Program
Materials so as to avoid the infringement, without detracting from
overall performance, the Licensor making good to the Licensee any loss
of use during modification or replacement.
13.3 The Licensee shall fully indemnify the Licensor in respect of all
damages, costs, charges or expenses payable to or in relation to any
claim by its head licensors and arising from or incurred by reason of
any breach of this Licence by the Licensee (whether occasioned through
its own acts or omissions or those of any Relevant Third Party),
subject to the following:
13.3.1 the Licensor shall notify the Licensee forthwith in writing
if it becomes aware of any alleged breach; and
13.3.2 the Licensor shall not settle any such claim by its head
licensors without the prior written consent of the Licensee
(not to be unreasonably withheld or delayed).
14. LIMITATION OF LIABILITY
14.1 Subject to clause 14.2 and save where any provision of this Licence
provides for an indemnity, neither Party (the "Party Liable") nor any
of its officers, employees or agents shall be liable to the other
Party for loss arising from any breach of this Licence, other than for
loss directly resulting from such breach and which at the Commencement
Date was reasonably foreseeable in respect of:
14.1.1 physical damage to the property of the other Party, its
officers, employees or agents; and/or
<PAGE>
14.1.2 the liability of the other Party to any other person for
loss in respect of physical damage.
14.2 Nothing in this Licence shall exclude or limit the liability of the
Party Liable for death or personal injury resulting from negligence.
The Party Liable shall indemnify and keep indemnified the other Party,
its officers, employees or agents from and against any such loss or
liability resulting from the negligence of the Party Liable or any of
its officers, employees or agents.
14.3 Subject to clause 14.2, and save where any provision of this Licence
provides for an indemnity neither the Party Liable nor any of its
officers, employees or agents shall in any circumstances whatsoever be
liable to the other Party for:
14.3.1 any loss of profit, loss of revenue, loss of use, loss of
contract or loss of goodwill; or
14.3.2 loss of, incorrect or spoiled data or information or the
consequences of any of the foregoing; or
14.3.3 any indirect or consequential loss; or
14.3.4 loss resulting from the liability of the other Party to any
other person howsoever and whensoever arising save as
provided in clauses 14.1 and 14.2.
14.4 Each Party hereby acknowledges and agrees that the other Party holds
the benefit of clauses 14.1, 14.2 and 14.3 for itself and as trustee
and agent for its officers, employees and agents.
14.5 Each of the clauses of this clause 14 shall:
14.5.1 be construed as a separate and severable Licence term and if
one or more of such clauses is held to be invalid, unlawful
or otherwise unenforceable the other sub-clause or
sub-clauses, as the case may be, shall remain in full force
and effect and shall continue to bind the Parties; and
14.5.2 survive termination of this Licence.
14.6 For the avoidance of doubt nothing in this clause 14 shall prevent or
restrict either Party enforcing any obligation (including suing for a
debt) owed to it under or pursuant to this Licence.
14.7 Except for the liabilities described in clause 14.2, each Party's
total liability to the other Party under this Licence shall not exceed
(in aggregate) the sum of six million US dollars (US$6,000,000).
14.8 Each Party acknowledges and agrees that the provisions of this clause
14 have been the subject of discussion and negotiation and are fair
and reasonable having regard to the circumstances as at the
Commencement Date.
<PAGE>
15. INSURANCE
15.1 Without thereby limiting its responsibilities under this Licence, the
Licensee shall, if the Licensor reasonably so requires (having regard
to the financial standing of the Licensee), insure with a reputable
insurance company against all loss of or damage to property and injury
to persons (including death) arising out of or in consequence of its
obligations under this Licence and against all actions, claims,
demands, costs and expenses in respect thereof.
15.2 If the Licensor reasonably so requires (having regard to the financial
standing of the Licensee), the Licensee shall, at all times during the
continuance of this Licence and for a period of six (6) years
thereafter maintain in effect a policy or policies of insurance with
reputable insurance companies against the risks set out in clause 13.3
and clause 14 and shall, on request, provide to the Licensor a copy of
the policy or policies and evidence of payment of premiums and/or
notification to the insurer(s) of the Licensor's interest in the
policy or policies.
16. TERMINATION
16.1 The Licensee may terminate this Licence at any time by giving 28 days'
prior written notice to the Licensor.
16.2 The Licensor may terminate this Licence forthwith on written notice to
the Licensee (copied to the Executive Committee):
16.2.1 if the Licensee ceases for whatever reason to be the
Settlement System Administrator and no assignment has been
made under clause 12.3; or
16.2.2 in the event that the arbitrator for the reference pursuant
to sub-section 2.3 of Schedule 35 to the Pooling and
Settlement Agreement determines as part of his decision that
this Licence should terminate.
16.3 Either Party may terminate this Licence forthwith on written notice if
the other Party:
16.3.1 is unable to pay its debts (within the meaning of section
123(1) or (2) of the Insolvency Act 1986, but subject as
hereinafter provided in this clause 16.3) or if any
voluntary agreement is proposed in relation to it under
section 1 of that Act or enters into any scheme of
arrangement (other than for the purpose of reconstruction or
amalgamation upon terms and within such period as may
previously have been approved in writing by the other
Party);
16.3.2 has a receiver (which expression shall include an
administrative receiver within the meaning of section 29 of
the Insolvency Act 1986) of the whole or any material part
of its assets or undertaking appointed;
16.3.3 has an administration order under section 8 of the
Insolvency Act 1986 made in relation to it;
<PAGE>
16.3.4 passes any resolution for winding-up other than a resolution
previously approved in writing by the other Party; or
16.3.5 becomes subject to an order by the High Court for
winding-up.
For the purposes of clause 16.3.1 section 123(1)(a) of the Insolvency
Act 1986 shall have effect as if for "(pound)750" there was
substituted "(pound)10,000" and, further, a Party shall not be deemed
to be unable to pay its debts for the purposes of clause 16.3.1 if any
such demand as is mentioned in the said section is being contested in
good faith with recourse to all appropriate measures and procedures.
16.4 Termination of this Licence shall not prejudice any accrued rights or
liabilities of either Party with respect to this Licence, nor shall it
affect the continuance in force of any provision of this Licence which
is expressly or by implication intended to continue in force on or
after such termination.
16.5 Within seven days following the date of termination of this Licence,
the Licensee shall and shall procure that each Relevant Third Party
shall, at the option of the Licensor, return or destroy all copies,
forms and parts of the Licensed Program Materials which are covered by
this Licence, and certify to the Licensor in writing that this has
been done PROVIDED that the Licensee (but not any third party) may
retain such copies as it may reasonably require to comply with audit
or regulatory obligations and must notify the Licensor accordingly.
17. SOURCE CODE
17.1 Subject to the Licensee entering into a written agreement for support
and maintenance of the Licensed Program, the Licensor undertakes that
a full copy of the source code of the Licensed Program will be lodged
with the Escrow Agent in accordance with the terms of the Escrow
Agreement. Save for any release fee (to be paid by the Licensee), any
fees or charges of the Escrow Agent will be paid by the Licensor, and
will be recharged to the Licensee.
18. NON-DISCLOSURE
18.1 Each Party undertakes to preserve the confidentiality of, and not
directly or indirectly to reveal, report, publish, disclose or
transfer or use for its own purposes any information disclosed to it
by the other under this Licence ("Relevant Information") except:
18.1.1 in the circumstances set out in clause 18.2; or
18.1.2 to the extent otherwise expressly permitted by this Licence;
or
18.1.3 with the prior consent in writing of the Licensor.
18.2 Either Party may make disclosure of the Relevant Information:
<PAGE>
18.2.1 to its directors, employees, agents, consultants and
advisers in each case on the basis set out in clause 18.3;
18.2.2 in compliance with its duties under the Act or any other
requirement of a Competent Authority;
18.2.3 in compliance with the conditions of this Licence or any
document referred to in this Licence with which it is
required to comply;
18.2.4 in compliance with any other requirement of law;
18.2.5 in response to a requirement of any stock exchange or
regulatory authority or the Panel on Take-overs and Mergers;
and
18.2.6 pursuant to the arbitration rules for the Electricity
Arbitration Association or pursuant to any judicial or other
arbitral process or tribunal having jurisdiction.
18.3 Each Party shall adopt procedures within its organisation for ensuring
the confidentiality of all Relevant Information. These procedures are:
18.3.1 the Relevant Information will be disseminated only on a
"need to know" basis;
18.3.2 directors, employees, agents, consultants and advisers will
be made fully aware of that Party's obligations of
confidence in relation thereto; and
18.3.3 any copies of the Relevant Information, whether in hard copy
or computerised form, will clearly state that the Relevant
Information may not be disclosed.
18.4 The obligations of both Parties contained in this clause 18 shall come
into effect on the Commencement Date and shall continue in force
notwithstanding the termination of the Licence.
19. FORCE MAJEURE
19.1 Where a Party (the "Non-Performing Party") is unable to carry out all
or any of its obligations under this Licence by reason of Force
Majeure this Licence shall remain in effect but:
19.1.1 the Non-Performing Party's relevant obligations; and
19.1.2 the obligations (not being payment obligations) of the other
Party owed to the Non-Performing Party which the other Party
is unable to carry out directly as a result of the
suspension of the Non-Performing Party's obligations,
shall be suspended for a period equal to the duration of the Force
Majeure, provided that:
<PAGE>
(i) the suspension of performance is of no greater scope and of
no longer duration than is required by the Force Majeure;
(ii) no obligations of any Party are excused as a result of the
Force Majeure; and
(iii) in respect of the suspension of the Non-Performing Party's
obligations:
(a) the Non-Performing Party gives the other Party
prompt notice describing the circumstance of Force
Majeure, including the nature of the occurrence
and its expected duration, and continues to
furnish daily reports with respect thereto during
the period of Force Majeure; and
(b) the Non-Performing Party uses all reasonable
efforts to remedy its inability to perform.
19.2 As soon as practicable after the occurrence of the Force Majeure the
Non-Performing Party shall discuss with the other Party how best to
continue its operations and give effect to its obligations so far as
possible in accordance with this Licence.
20. EXPERT'S DECISION
20.1 Any matter or dispute concerning an issue of technical fact
(including, without limitation, any matter or dispute concerning the
warranties set out in clauses 10.1, 10.2, 10.3 and 10.5), shall be
referred to a person suitably qualified to determine that matter or
dispute who shall be nominated jointly by the Parties. Failing
agreement between the Parties within thirty (30) days of a written
request by either Party to the other seeking to initiate the expert's
decision procedure, either Party may apply in writing to the President
for the time being of the Institute of Electrical Engineers or any
successor body to it to nominate the expert.
20.2 In all cases the terms of appointment of the expert by whomsoever
appointed shall include:
20.2.1 a commitment by the Parties to share equally the expert's
fee;
20.2.2 a requirement on the expert to act fairly as between the
Parties and according to the principles of natural justice;
20.2.3 a requirement on the expert to hold professional indemnity
insurance both then and for three years following the date
of his determination;
20.2.4 a commitment by the Parties to supply to the expert all such
assistance, documents and information as he may require for
the purpose of his determination; and
20.2.5 a requirement to give his decision within thirty (30) days
of his appointment.
<PAGE>
20.3 The expert's decision shall be final and binding on the Parties save
in the case of negligence or manifest error.
20.4 The Parties expressly acknowledge and agree that they do not intend
the reference to the expert to constitute an arbitration within the
scope of any arbitration legislation, the expert's decision is not a
quasi judicial procedure and the Parties shall have no right of appeal
against the expert's decision, provided always that this shall not be
construed as waiving any rights the Parties might have against the
expert for breaching his terms of appointment or otherwise being
negligent.
20.5 Any matter or dispute not concerning an issue of technical fact shall
be and is hereby referred to arbitration pursuant to the arbitration
rules of the Electricity Arbitration Association in force from time to
time. Any dispute as to whether a given matter or dispute falls to be
referred to the expert's decision or to arbitration shall be referred
to arbitration.
21. NOTICES
21.1 Any notice or other communication to be given by one Party to the
other, or in connection with the matters contemplated by this Licence
shall be addressed to the recipient and sent to the address, telex
number or facsimile number of the other Party given in the Appendix
for the purpose and marked for the attention of the person so given or
to such other address, telex number and/or facsimile number and/or
marked for such other attention as the other Party may from time to
time specify by notice given in accordance with this clause 21 to the
Party giving the relevant notice or other communication to it.
21.2 Save as otherwise expressly provided in this Licence, any notice or
other communication to be given by a Party to the other Party under,
or in connection with the matters contemplated by, this Licence shall
be in writing and shall be given by letter delivered by hand or sent
by first class prepaid post (airmail if overseas) or telex or
facsimile, and shall be deemed to have been received:-
21.2.1 in the case of delivery by hand, when delivered; or
21.2.2 in the case of first class prepaid post, on the second day
following the day of posting or (if sent airmail overseas or
from overseas) on the fifth day following the day of
posting; or
21.2.3 in the case of telex, on the transmission of the automatic
answer-back of the addressee (where such transmission occurs
before 1700 hours on the day of transmission) and in any
other case on the day following the day of transmission; or
21.2.4 in the case of facsimile, on acknowledgement by the
addressee's facsimile receiving equipment (where such
acknowledgement occurs before 1700 hours on the day of
acknowledgement) and in any other case on the day following
the day of acknowledgement.
<PAGE>
22. COUNTERPARTS
This Licence may be executed in any number of counterparts and by each Party on
separate counterparts, each of which when executed and delivered shall
constitute an original, but all the counterparts shall together constitute but
one and the same instrument.
23. WAIVERS; REMEDIES NOT CUMULATIVE
23.1 No delay by or omission of either Party in exercising any right,
power, privilege or remedy under this Licence shall operate to impair
such right, power, privilege or remedy or be construed as a waiver
thereof. Any single or partial exercise of any such right, power,
privilege or remedy shall not preclude any other or further exercise
thereof or the exercise of any other right, power, privilege or
remedy.
23.2 The rights and remedies provided by this Licence to the Parties are
exclusive and not cumulative and exclude and are in place of all
substantive (but not procedural) rights or remedies express or implied
and provided by common law or statute in respect of the subject matter
of this Licence (other than any such rights or remedies provided under
section 58 of the Act or any directions (if any) issued thereunder),
including without limitation any rights either Party may possess in
tort which shall include actions brought in negligence and/or
nuisance. Accordingly, each of the Parties hereby waives to the
fullest extent possible all such rights and remedies provided by
common law or statute, and releases the other Party, its officers,
employees and agents to the same extent from all duties, liabilities,
responsibilities or obligations provided by common law or statute in
respect of the matters dealt with in this Licence and undertakes not
to enforce any of the same except as expressly provided herein.
23.3 For the avoidance of doubt, the Parties acknowledge and agree that
nothing in this Licence shall exclude or restrict or otherwise
prejudice or affect any of the rights, powers, privileges, remedies,
duties and obligations of the Secretary of State or the Director under
the Act or any Licence or otherwise howsoever.
24. SEVERANCE OF TERMS
If for any reason whatever any provision of this Licence is or becomes invalid,
illegal or unenforceable, or is declared by any court of competent jurisdiction
or any other Competent Authority to be invalid, illegal or unenforceable or if
such Competent Authority:
24.1 refuses, or formally indicates an intention to refuse, authorisation
of, or exemption to, any of the provisions of or arrangements
contained in this Licence (in the case of a refusal either by way of
outright refusal or by way of requiring the amendment or deletion of
any provision of this Licence and/or the inclusion of any provision in
this Licence and/or the giving of undertakings or the acceptance of
conditions as to future conduct before such authorisation or exemption
can be granted); or
24.2 formally indicates that to continue to operate any provision of this
Licence may expose the Parties to sanctions under any law, order,
enactment or regulation, or requests either
<PAGE>
Party to give undertakings or to accept conditions as to future
conduct in order that such Party may not be subject to such sanctions
and, in all cases, whether initially or at the end of any earlier period or
periods of exemption then, in any such case, the Parties will negotiate in good
faith with a view to agreeing one or more provisions which may be substituted
for such invalid, unenforceable or illegal provision which substitute
provision(s) is(are) satisfactory to the Competent Authority(ies) and produce(s)
as nearly as is practicable in all the circumstances the appropriate balance of
the commercial interests of the Parties.
25. ENTIRE AGREEMENT
This Licence contains or expressly refers to the entire agreement between the
Parties with respect to the subject matter hereof and expressly excludes any
warranty, condition or other undertaking implied at law or by custom and
supersedes all previous agreements and understandings between the Parties with
respect thereto and each of the Parties acknowledges and confirms that it does
not enter into this Licence in reliance on any representation, warranty or other
undertaking not fully reflected in the terms of this Licence.
26. LANGUAGE
Each notice, instrument, certificate or other document to be given by each Party
to the other hereunder shall be in the English language.
27. JURISDICTION
27.1 Subject and without prejudice to clauses 20 and 27.3, each of the
Parties irrevocably agrees that the courts of England are to have
exclusive jurisdiction to settle any disputes which may arise out of
or in connection with this Licence and that accordingly any suit,
action or proceeding (together in this clause 27 referred to as
"Proceedings") arising out of or in connection with this Licence may
be brought in such courts.
27.2 Each Party irrevocably waives any objection which it may have now or
hereafter to the laying of the venue of any Proceedings in any such
court as is referred to in this clause and any claim that any such
Proceedings have been brought in an inconvenient forum and further
irrevocably agrees that a judgment in any Proceedings brought in the
English courts shall be conclusive and binding upon such Party and may
be enforced in the courts of any other jurisdiction.
27.3 For the avoidance of doubt nothing contained in the foregoing
provisions of this clause 27 shall be taken as permitting a Party to
commence Proceedings in the courts where this Licence otherwise
provides for Proceedings to be referred to arbitration.
28. GOVERNING LAW
This Licence shall be governed by, and construed in all respects in accordance
with, English law.
IN WITNESS whereof this Licence has been duly executed the day and year first
above written
<PAGE>
APPENDIX
[To contain:
1. Equipment details
2. Program Documentation details
3. Form of Confidentiality Agreement [Note: to be based on the forms of
confidentiality agreement set out in the ABB/NGC head licence.]
4. Addresses for Service of Notices.]
<PAGE>
APPENDIX 2
PRINCIPLES APPLYING TO SAV LICENCES
1. INTRODUCTION
This Appendix sets out the principal modifications to be made to the
form of Type 1 Goal Licence in order to adapt it to the requirements
of each SAV Licence.
2. LICENSED PROGRAM
The licensed program under each SAV Licence will be Goal. Goal
includes Settlement Goal and such other computer programs in machine
readable code as are necessary to enable its stand alone use.
3. LICENCE AND DISASTER RECOVERY SERVICE FEES
The licence fee payable in respect of the SAV Licence will be the
amount set out in column 2 of Table 3.1 if the relevant licence is a
Cluster Licence or the amount set out in column 3 of Table 3.1 if it
is a Site Licence.
Table 3.1
-----------------------------------------------------------------------
Licence Type Cluster Licence Fee (US$) Site Licence Fee
(US$)
-----------------------------------------------------------------------
Type 2 Goal Licence $72,500 $77,500
-----------------------------------------------------------------------
Type 3 Goal Licence $75,000 $80,000
-----------------------------------------------------------------------
Type 5 Goal Licence $110,000 $115,000
-----------------------------------------------------------------------
Type 6 Goal Licence $72,500 $77,500
-----------------------------------------------------------------------
Type 8 Goal Licence $110,000 $115,000
-----------------------------------------------------------------------
Type 9 Goal Licence $110,000 $115,000
-----------------------------------------------------------------------
The disaster recovery service fee payable under each SAV Licence will
be US$22,500 or US$27,500 depending on whether the disaster recovery
service provider wishes to hold and use the software on a Cluster
Licence or a Site Licence basis.
<PAGE>
4. SCOPE OF USE
The SAV Licence will permit use of the licensed program by the
licensee as indicated in Table 4.1.
Table 4.1
-----------------------------------------------------------------------
Licence Type Permitted Use
-----------------------------------------------------------------------
Type 2 Goal Licence The licensee may use the licensed program
solely in relation to its own business needs
(including without limitation, the checking
and submission of its own offer data) in
connection with the Pool. Use of the licensed
program for performing operational functions
such as those of the Grid Operator or the
Settlement System Administrator is expressly
prohibited.
-----------------------------------------------------------------------
Type 3 Goal Licence The licensee may use the licensed program
solely to provide bureau services to Parties
in relation to their own business needs
(including, without limitation, the checking
and submission of such Parties' own offer
data) in connection with the Pool. Use of the
licensed program for performing operational
functions such as those of the Grid Operator
or the Settlement System Administrator is
expressly prohibited.
-----------------------------------------------------------------------
Type 5 Goal Licence The licensee may use the licensed program
solely for the purpose of (a) instructing
Pool Members which are its affiliates as to
the data to be submitted including the
checking and submission of such Pool Members'
own offer data, and (b) providing bureau
services to Pool Members which are its
affiliates in relation to their own
respective business needs (including the
checking and submission of such Pool Members'
own offer data), in each case in connection
with the Pool. Use of the licensed program
for performing operational functions such as
those of the Grid Operator or the Settlement
System Administrator is expressly prohibited.
-----------------------------------------------------------------------
Type 6 Goal Licence The licensee may use the licensed program
solely for the purposes of instructing Pool
Members which are its affiliates as to the
data to be submitted in connection with the
Pool. Use of the licensed program for
performing operational functions such as
those of the Grid Operator or the Settlement
System Administrator is expressly prohibited.
-----------------------------------------------------------------------
<PAGE>
-----------------------------------------------------------------------
Type 8 Goal Licence The licensee may use the licensed program
solely in relation to its own business needs
and for the purpose of providing bureau
services to its affiliates (including,
without limitation, the checking and
submission of Pool Members' offer data) in
connection with the Pool. Use of the licensed
program for performing operational functions
such as those of the Grid Operator or the
Settlement System Administrator is expressly
prohibited.
-----------------------------------------------------------------------
Type 9 Goal Licence The licensee may use the licensed program
solely in relation to its own business needs
and for the purpose of providing bureau
services to its affiliates and to
non-affiliated Pool Members (including,
without limitation, the checking and
submission of Pool Members' offer data) in
connection with the Pool. Use of the licensed
program for performing operational functions
such as those of the Grid Operator or the
Settlement System Administrator is expressly
prohibited.
-----------------------------------------------------------------------
5. ESCROW
There will be no escrow arrangement in respect of each SAV Licence.
6. FACILITIES MANAGEMENT
6.1 The licensee under each SAV Licence may appoint a third party for
disaster recovery services and/or interface work but (save as provided
in sub-section 6.2) no licensee under a SAV Licence may appoint a
third party for facilities management services.
6.2 The licensee under any Type 2 Goal Licence or Type 8 Goal Licence or
Type 9 Goal Licence may appoint a third party for facilities
management services provided the licensee is a Pool Member.
7. SUPPORT AND MAINTENANCE
If requested by the licensee NGC will provide support and maintenance
for the licensed program, such support and maintenance to include any
of the following if requested by the licensee:
(A) providing a telephone help service;
(B) keeping the licensed program in step with the version used
by the Settlement System Administrator for the purposes of
producing schedules as required by the Pool Rules;
(C) keeping the licensed program in step with Generation
Schedule Goal;
<PAGE>
(D) providing training pursuant to the On-Going Training
Requirements for SAV (NGC/GRP/579A10.1).
The fee for this service will be agreed between NGC and the licensee
on a case by case basis provided that where support and maintenance
consists of items (A) and (B) only, the fee for such support and
maintenance service shall be (pound)5,000 per annum increasing in line
with inflation each year from the Goal Effective Date.
8. WARRANTIES
NGC will warrant (i) that those elements of Goal which constitute
Settlement Goal will be the same as the Settlement Goal program in use
by the Settlement System Administrator at the date of delivery for the
purposes of producing schedules as required by the Pool Rules; and
(ii) the millennium compliance of Goal in terms similar to the
warranty given in the Type 1 Goal Licence.
9. ASSIGNMENT
Assignment of SAV Licence by the licensee will be conditional on
receiving the consent of NGC's head licensors and NGC will use
reasonable endeavours to obtain such consent.
10. LICENCE UPGRADE
NGC will use reasonable endeavours subject to agreement in relation to
the payment of NGC's reasonable costs and expenses incurred in
connection therewith to:
10.1.1 assist the licensee to transfer from one type of SAV Licence
to another if so required; and
10.1.2 procure that any consideration payable by the licensee for
such transfer shall be the difference in the licence fees
set out in Table 3.1 above relating to the original and new
licences.
11. LIMITATION OF LIABILITY
11.1 The SAV Licensee shall have no liability to NGC under the SAV Licence
except to the extent of:
11.1.1 NGC's liability to its head licensors in respect of all
damages, costs, charges or expenses payable to or in
relation to any claim arising from or incurred by reason of
any breach of the SAV Licence (other than for breach by
NGC); and
11.1.2 reasonable legal costs incurred in relation to any such
claim
provided that if any claim is made against a SAV Licensee by NGC, NGC
shall, subject to the payment of its reasonable costs and expenses in
connection therewith, use its reasonable endeavours to negotiate with
the applicable head licensors so as to minimise
<PAGE>
the amount of damages, costs, charges or expenses payable to such head
licensors in respect of any such claim.
11.2 The total aggregate liability of all SAV Licensees to NGC for all
liabilities as described in paragraph 11.1 (whenever arising):
11.2.1 under paragraph 11.1.1 shall be limited to US$5,000,000.
11.2.2 under paragraph 11.1.2 shall be limited to US$1,000,000.
11.3 The caps set out in 11.2.1 or 11.2.2, as the case may be, shall be
reduced by an amount equal to any moneys paid by any SAV Licensee to
NGC under paragraph 11.1.1 or 11.1.2, as the case may be.
11.4 The cap on NGC's liability to the SAV Licensee for breach of the SAV
Licence will be equal to US$6,000,000 divided by the number of SAV
Licences in force from time to time.
11.5 The provisions of this paragraph 11 shall be without prejudice to the
principles set out in clauses 25.1 and 25.2 in respect of physical
damage to property, liability to third parties in respect of physical
damage and death and personal injury.
12. REVIEW OF ELECTRICITY TRADING ARRANGEMENTS
12.1 The provisions of this paragraph 12 shall only apply where the SAV
Licensee is not a party to the Agreement.
12.2 The parties acknowledge that reviews of the electricity trading
arrangements may result in changes to the existing electricity trading
arrangements and such changes may require amendments to the provisions
of the SAV Licences including the scope of use provisions.
12.3 Subject to paragraph 12.4, if at any time during, or upon the
finalisation of, the review of the electricity trading arrangements
referred to in paragraph 12.2, the existing electricity trading
arrangements are changed as part of that review and the position under
the SAV Licences is thereby affected, and NGC will continue to use
Goal to assist in the function of central scheduling of generation or
to use Goal (in whole or in part) as part of the interface between
generators and NGC and the SAV Licensee wishes to continue to utilise
Goal, then, upon written notice from either of them, NGC and the SAV
Licensee shall negotiate in good faith amendments to the SAV Licence
subject to prior discussions with the Executive Committee (including
amendments to the scope of use of the relevant SAV Licence and
provided that any proposed increase in licence fees shall be limited
to such increase in fees which are required by a head licensor) so as
to enable the SAV Licensee to model the output of the central
scheduler and to ensure that data is compliant with the interface. The
agreement of NGC and the SAV Licensee to such amendments shall not be
unreasonably withheld or delayed. In the event of a failure to agree
any such amendment within 90 days (or such longer period as shall be
agreed by NGC and the SAV Licensee) after receipt by NGC or the SAV
Licensee, as the case may be, of the written notice initiating the
negotiation, either NGC or the SAV Licensee may (at any time
thereafter) refer the matter to arbitration pursuant to the
arbitration rules of the
<PAGE>
Electricity Arbitration Association in force from time to time.
Pending determination of that reference, the relevant SAV Licence
shall continue in effect.
12.4 To the extent that the amendments agreed pursuant to paragraph 12.2
require the consent of any head licensor of NGC, then NGC shall,
subject to the payment of its reasonable costs and expenses in
connection therewith, use its reasonable endeavours to obtain the
consent of such head licensors to any such amendment.
13. TERMINATION
13.1 NGC will have the additional right to terminate a SAV Licence in the
following circumstances:
13.1.1 for material breach by the licensee;
13.1.2 (in the case of a SAV Licence that is a Type 2 Goal Licence)
in the event of the licensee ceasing to be a Party;
13.1.3 (in the case of a SAV Licence that is a Type 5 Goal Licence
or a Type 6 Goal Licence) in the event that the licensee
ceases to be an affiliate of a Pool Member;
13.1.4 in the event that NGC ceases to use Goal to assist in the
function of central scheduling of generation or to use Goal
(in whole or in part) as part of the interface between
generators and NGC;
13.1.5 (in the case of a SAV Licence which is a Type 8 Goal Licence
or a Type 9 Goal Licence) in the event that the licensee
ceases to be a member of a Pool Member Group; and
13.1.6 in the event that the arbitrator for the reference pursuant
to paragraph 12.3 or sub-section 2.2 of Schedule 35, as the
case may be, determines as part of his decision that the SAV
Licence should terminate.
13.2 Notwithstanding the foregoing, the SAV Licence shall not be terminated
solely by reason of:
13.2.1 the termination or expiry of any head-licence (including,
without limitation, those with Stanford and ABB) held by
NGC; or
13.2.2 NGC ceasing to perform the functions of the Grid Operator.
<PAGE>
APPENDIX 3
FORM OF GOAL ESCROW AGREEMENT
ESCROW AGREEMENT
DATED:
B E T W E E N:
(1) THE NATIONAL GRID COMPANY PLC whose registered office is at National
Grid House, Kirby Corner Road, Coventry CV4 8JY England ("NGC");
(2) ABB POWER T&D COMPANY INC. a corporation incorporated under the laws
of the State of Delaware having a place of business at 2550 Walsh
Avenue, Santa Clara, California 95051-1215, USA ("ABB");
(3) [_____________________________________] whose registered office is at
[____________________________________]("the Licensee"); and
(4) NCC ESCROW INTERNATIONAL LIMITED whose registered office is at Oxford
House, Oxford Road, Manchester M1 7ED England (CRN:3081952)("NCC").
PRELIMINARY
(A) The Licensee has been granted a licence to use a software package
comprising computer programs on the terms set out in the Licence
Agreement.
(B) Certain technical information and documentation describing the
software package are the confidential property of the Owners and are
required for understanding, maintaining and correcting the software
package.
(C) The Owners acknowledge that in certain circumstances the Licensee may
require possession of the technical information and documentation held
under this Agreement.
IT IS AGREED THAT:
1. DEFINITIONS
In this Agreement the following terms shall have the following
meanings:
1.1 "Intellectual Property Rights" means copyright, trade secret, patent,
and all other rights of a similar nature;
1.2 "Licence Agreement" means the licence granted by NGC to the Licensee
dated [_______________________];
1.3 "Material" means the source code of the Package comprising the latest
technical information and documentation described in Schedules 1 and
2;
<PAGE>
1.4 "Owners" means NGC and ABB or either of them;
1.5 "Support and Maintenance Agreement" means the support and maintenance
arrangements relating to the Package in place between NGC and the
Licensee as at the date of the Licence Agreement, as the same may be
varied from time to time by agreement;
1.6 "Package" means the software package known as Settlement Goal licensed
to the Licensee under the Licence Agreement; and
1.7 "Standard Verification Service" means those tests detailed in the
quality manual of NCC from time to time relating to the testing of
Material lodged in escrow.
2. NGC Duties and Warranties
2.1 NGC shall:
2.1.1 deliver a copy of the Material to NCC no later than 30 days
after the date of this Agreement;
2.1.2 at all times ensure that the Material as delivered to NCC is
capable of being used to generate the latest version of the
Package issued by NGC to the Licensee and deliver further
copies of the Material as and when necessary;
2.1.3 deliver to NCC a replacement copy of the Material, together
with the latest version of the Support and Maintenance
Agreement, within 12 months of the last delivery; and
2.1.4 deliver to NCC a replacement copy of the Material within 14
days of receipt of a notice served upon it by NCC under the
provisions of Clause 4.1.5.
2.2 NGC warrants that:
2.2.1 it owns or has been authorised by ABB to use the
Intellectual Property Rights in the Material, and has
authority to enter into this Agreement; and
2.2.2 the Material lodged under Clause 2.1 shall contain all
information in human-readable form and on suitable media to
enable a reasonably skilled programmer or analyst to
understand, maintain and correct the Package without the
assistance of any other person.
3. LICENSEE'S RESPONSIBILITIES
It shall be the responsibility of the Licensee to notify NCC of any
change to the Package that necessitates a replacement deposit of the
Material.
4. NCC'S DUTIES
4.1 NCC shall:
<PAGE>
4.1.1 hold the Material in a safe and secure environment;
4.1.2 inform the Owners and the Licensee of the receipt of any
copy of the Material;
4.1.3 in accordance with the terms of Clause 9 perform those tests
that form part of its Standard Verification Service from
time to time;
4.1.4 at all times retain a copy of the latest verified deposit of
the Material;
4.1.5 notify the Owners and the Licensee if it becomes aware at
any time during the term of this Agreement that the copy of
the Material held by it has been lost, damaged or destroyed;
and
4.1.6 not be responsible for procuring the delivery of the
Material in the event of failure by NGC to do so.
5. PAYMENT
NGC and the Licensee will pay NCC's fees as detailed in Schedule 4.
6. RELEASE EVENTS
6.1 Subject to the provisions of Clauses 6.2 and 6.3, NCC will release the
Material to a duly authorised officer of the Licensee if the following
events occur:
6.1.1 NGC enters into any composition or arrangement with its
creditors or (being a company) enters into liquidation
whether compulsory or voluntary (other than for the purposes
of solvent reconstruction or amalgamation) or has a receiver
or administrative receiver appointed over all or any part of
its assets or undertaking or a petition is presented for an
Administration Order or (being an individual or partnership)
becomes bankrupt; or
6.1.2 NGC ceases to trade; or
6.1.3 NGC without legal justification, has defaulted to a material
degree in any obligation to provide maintenance under the
Support and Maintenance Agreement, and has failed to remedy
such default within a reasonable period of the default being
notified by the Licensee to NGC.
6.2 The Licensee must notify NCC of the event(s) specified in Clause 6.1
by delivering to NCC a statutory or notarised declaration (the
"Declaration") made by an officer of the Licensee attesting that such
event has occurred and that the Licence Agreement was still valid and
effective up to the occurrence of such event and exhibiting:
6.2.1 such documentation in support of the Declaration as NCC
shall reasonably require;
6.2.2 a copy of the Licence Agreement and the Support and
Maintenance Agreement; and
<PAGE>
6.2.3 a signed confidentiality undertaking as detailed in Schedule
3.
6.3 Upon receipt of a Declaration from the Licensee claiming a release
event under Clause 6.1.3:
6.3.1 NCC shall send a copy of the Declaration to each Owner by
registered post; and
6.3.2 unless within 30 days after the date of delivery either
Owner delivers to NCC a counter-notice signed by a duly
authorised officer of the Owner that no such failure has
occurred or that any such failure has been rectified
then NCC will release the Material upon receipt of the release fee
stated in Schedule 4.
6.4 Where there is any dispute as to the occurrence of any of the events
set out in Clauses 6.1, 6.2 or 6.3 or the fulfilment of any
obligations detailed in those Clauses, such dispute will be referred
at the request of either the relevant Owner or the Licensee to the
Managing Director for the time being of NCC for the appointment of an
expert who shall give a decision on the matter within 14 days of the
date of referral or as soon as practicable thereafter. The expert's
decision shall be final and binding as between the Owner and the
Licensee except in the case of manifest error.
7. CONFIDENTIALITY
7.1 The Material shall remain the confidential property of its respective
Owners and in the event that NCC provides a copy of the Material to
the Licensee, the Licensee shall be permitted to use the Material only
in accordance with a confidentiality undertaking in the form contained
in Schedule 3.
7.2 NCC agrees to maintain all information and/or documentation coming
into its possession or to its knowledge under this Agreement in
strictest confidence and secrecy. NCC further agrees not to make use
of such information and/or documentation other than for the purposes
of this Agreement and will not disclose or release it other than in
accordance with the terms of this Agreement.
7.3 Termination of this Agreement will not relieve NCC or its employees,
agents or sub-contractors, or the Licensee or its employees, agents or
sub-contractors, from the obligations of confidentiality contained in
this Clause 7.
8. Intellectual Property Rights
The release of the Material to the Licensee will not act as an
assignment of any Intellectual Property Rights that either Owner
possesses in the Material.
9. VERIFICATION
9.1 Subject to the provisions of Clause 9.2, NCC shall bear no obligation
or responsibility to any person, firm, company or entity whatsoever to
determine the existence, relevance, completeness, accuracy,
effectiveness or any other aspect of the Material.
<PAGE>
9.2 Upon the Material being lodged with NCC, NCC shall perform those tests
in accordance with its Standard Verification Service from time to time
and shall provide a copy of the test report to the parties to this
Agreement.
10. NCC'S LIABILITY
10.1 NCC shall not be liable for any loss caused to either Owner or the
Licensee either jointly or severally except for loss of or damage to
the Material to the extent that such loss or damage is caused by the
negligent acts or omissions of NCC, its employees, agents or
sub-contractors and in such event NCC's total liability in respect of
all claims arising under or by virtue of this Agreement shall not
(except in the case of claims for personal injury or death) exceed the
sum of (pound)500,000.
10.2 NCC shall in no circumstances be liable to either Owner or the
Licensee for indirect or consequential loss of any nature whatsoever
whether for loss of profit, loss of business or otherwise.
11. TERMINATION
11.1 NCC may terminate this Agreement after failure by NGC or the Licensee
to comply with a 30 days written notice from NCC to pay any
outstanding fee. If the failure to pay is on the part of NGC, the
Licensee shall be given the option of paying such fee itself. Such
amount will be recoverable by the Licensee direct from NGC.
11.2 NCC may terminate this Agreement by giving 60 days written notice to
the Owners and the Licensee. In that event the Owners and the Licensee
shall appoint a mutually acceptable new custodian on the terms similar
to those contained in this Agreement.
11.3 If a new custodian shall not have been appointed within 30 days of
delivery of any notice issued by NCC in accordance with the provisions
of Clause 11.2 the Owners or the Licensee shall be entitled to request
the President for the time being of the British Computer Society to
appoint a suitable new custodian upon such terms and conditions as he
shall require. Such appointment shall be final and binding on all
parties.
11.4 If the Licence Agreement or the Support and Maintenance Agreement has
expired or has been lawfully terminated this Agreement will
automatically terminate on the same date.
11.5 The Licensee may terminate this Agreement at any time by giving
written notice to NGC and NCC.
11.6 The Owners may only terminate this Agreement with the written consent
of the Licensee.
11.7 This Agreement shall terminate upon release of the copy of the
Material to the Licensee in accordance with Clause 6.
11.8 Upon termination under the provisions of Clauses 11.2, 11.4, 11.5 or
11.6 NCC will deliver the Material to NGC. If NCC is unable to trace
NGC, then NCC will destroy the Material.
<PAGE>
11.9 Upon termination under the provisions of Clause 11.1, the Material
will be available for collection by NGC from NCC for 30 days from the
date of termination. After such 30 day period NCC will destroy the
Material.
11.10 NCC may forthwith terminate this Agreement and destroy the Material if
it is unable to trace both NGC and the Licensee having used all
reasonable endeavours to do so.
12. GENERAL
12.1 This Agreement shall be governed by and construed in accordance with
the laws of England and Wales.
12.2 This Agreement represents the whole agreement relating to the escrow
arrangements between the parties for the Package, and supersedes all
prior arrangements, negotiations and undertakings relating to such
escrow arrangements.
12.3 All notices or communications to be given to the parties under this
Agreement shall be deemed to have been duly given or made when
delivered personally or 7 days after posting or if sent by facsimile,
12 hours after despatch to the party to which such notice or
communication is required to be given or made under this Agreement
addressed to the principal place of business or for companies based in
the UK, the registered office.
<PAGE>
SCHEDULE 1
THE MATERIAL
The source code of the Package known as Settlement Goal to be supplied on DAT or
such other appropriate media as may be agreed between NGC and the Licensee, as
more particularly described in the Licence Agreement.
<PAGE>
SCHEDULE 2
MATERIAL: TECHNICAL INFORMATION
The Material shall be supplied with details of the following:
1. Details of the deposit; Full Name and Version Details, Number of Media
Items, Media Type and Density, File or Archive Format, List or
Retrieval Commands, Archive Hardware and Operating System Details.
2. Name and Functionality of each module/application of the Material.
3. Names and versions of development tools etc.
4. Documentation describing the procedures for
building/compiling/executing/ using the software (Technical notes,
User Guides).
5. Hardcopy directory listings of the contents of the media.
6. Name and contact details of employee(s) with knowledge of how to
maintain and support the Material.
<PAGE>
SCHEDULE 3
CONFIDENTIALITY UNDERTAKING
This undertaking is given on release of the Material pursuant to an Escrow
Agreement dated [________________] between:
(i) THE NATIONAL GRID COMPANY PLC;
(ii) ABB POWER T&D COMPANY INC;
(iii) [Licensee name]; and
(iv) NCC ESCROW INTERNATIONAL LIMITED
(A) Definitions contained in the Escrow Agreement will apply to this
undertaking.
(B) In consideration of NCC delivering the Material to the Licensee, the
Licensee undertakes with NCC and with each Owner:
(i) to use the Material only for the purpose of understanding,
maintaining and correcting the Package for the purposes of
carrying out the functions of the Settlement System
Administrator, in connection with the Electricity Pool of
England and Wales;
(ii) not to use the Material for any other purpose nor disclose
it to any person save such of its employees or contractors
who need to know the same in order to understand, maintain
and correct the Package exclusively for that purpose. In
that event such contractors shall enter into a
Confidentiality Undertaking direct with NCC in similar terms
to this undertaking;
(iii) to hold all media containing the Material in a safe and
secure environment when not in use; and
(iv) forthwith to destroy the same should the Licensee cease to
be entitled to use the Package.
<PAGE>
SCHEDULE 4
NCC's FEES
<TABLE>
<CAPTION>
Description Fee NGC Licensee
----------- --- --- --------
<S> <C> <C> <C>
1. Initial Fee (pound)550 (pound)550 --
(payable on completion of this Agreement)
2. Annual Fee (pound)385 (pound)385 --
(payable on completion of this Agreement
and on each anniversary thereafter)
3. Update Fee (pound)100 (pound)100 --
(per update after the first 4 updates per annum)
4. Storage Fee (pound) 50 (pound) 50 --
(per annum, per cubic foot payable if the source code
exceeds 1 cubic foot)
5. Release Fee (pound)500 -- (pound)500
(plus NCC's reasonable expenses)
</TABLE>
1. All fees are subject to VAT where applicable.
2. All fees are reviewed by NCC from time to time.
<PAGE>
Signed on behalf of THE NATIONAL GRID COMPANY PLC
Name:
---------------------------------- ------------------------------
(Authorised Signatory)
Position:
------------------------------
Signed on behalf of ABB POWER T&D COMPANY INC
Name:
---------------------------------- ------------------------------
(Authorised Signatory)
Position:
------------------------------
Signed on behalf of [THE LICENSEE]
Name:
---------------------------------- ------------------------------
(Authorised Signatory)
Position:
------------------------------
Signed on behalf of NCC ESCROW INTERNATIONAL LIMITED
Name:
---------------------------------- ------------------------------
(Authorised Signatory)
Position:
------------------------------
<PAGE>
APPENDIX 4
PRINCIPLES APPLYING TO TYPE 1 SUPPORT AND MAINTENANCE AGREEMENT
1. INTRODUCTION
This Appendix sets out the principal terms of the Type 1 Support and
Maintenance Agreement to be entered into by NGC and the Settlement
System Administrator in connection with the Type 1 Goal Licence.
2. DESCRIPTION OF MAINTENANCE SERVICES
The basic maintenance services comprise (i) assistance with critical
problems, (ii) error correction, Emergency Fixes and provision of
corrections to the Licensee and (iii) provision of a telephone
helpline.
3. LICENSEE's OBLIGATIONS
In order that NGC can properly provide the maintenance services, the
licensee will be required to undertake certain obligations with regard
to the use of the licensed program. By way of example these will
include undertaking (i) to keep full security copies of its own
databases and computer records, (ii) not to permit anyone other than
NGC to provide maintenance services and (iii) to co-operate fully with
NGC in the diagnosis of any error or defect.
4. CHARGES
The annual fee for the maintenance services will be agreed by NGC and
the Settlement System Administrator based on normal commercial
principles and shall increase in line with inflation each year from
the date of the Type 1 Support and Maintenance Agreement. Any
additional support or consultancy services requested by the licensee
will be charged at rates to be agreed between the parties.
5. WARRANTIES
NGC will undertake to fulfil its obligations with reasonable care and
skill and by suitably qualified and trained personnel.
6. ASSIGNMENT
Assignment of the Type 1 Support and Maintenance Agreement may not be
done separately from assignment of the Type 1 Goal Licence.
7. LIMITATION OF LIABILITY
The financial cap on each party's liability to the other under the
Type 1 Support and Maintenance Agreement will not exceed, in respect
of all claims made in any year, the total amount payable by the
Licensee by way of charges in respect of that year.
<PAGE>
8. TERMINATION
The Type 1 Support and Maintenance Agreement will terminate
automatically in the event of termination of the Type 1 Goal Licence.
<PAGE>
APPENDIX 5
FORM OF POOL MEMBER CONFIDENTIALITY AGREEMENT
THIS CONFIDENTIALITY AGREEMENT is made on
BETWEEN:
(1) THE NATIONAL GRID COMPANY PLC whose registered office is situated at
National Grid House, Kirby Corner Road, Coventry CV4 8JY("NGC"); and
(2) [______________] whose registered office is situated at [____________]
(the "Pool Member Company").
WHEREAS:
NGC and Pool Members have agreed to:
(i) ensure Pool Members have visibility of confidential information
relating to Goal to meet their own business needs in connection with
the Electricity Pool of England and Wales; and
(ii) ensure that, in relation to Goal, ABB's and NGC's intellectual
property rights are protected and respected.
NOW IT IS HEREBY AGREED AS FOLLOWS:
1. DEFINITIONS
1.1 In this Agreement capitalised words and expressions shall have the
meaning given to them in the Appendix to this Agreement. Capitalised
words and expressions which are not defined in the Appendix to this
Agreement shall, unless the context otherwise requires, have the
meaning set out in Clause 1 and Schedule 35 of the Pooling and
Settlement Agreement.
1.2 In this Agreement all references to the Pool Member Company shall
include all directors, employees and other officers of the Pool Member
Company.
2. ACCESS TO CONFIDENTIAL INFORMATION
2.1 NGC shall, subject to the Pool Member Company complying with the
provisions of section 5 of Schedule 35 of the Pooling and Settlement
Agreement, allow the Pool Member Company access at an NGC Site to the
Confidential Information for the Permitted Purpose.
2.2 Nothing in this Agreement shall give the Pool Member Company the right
to remove any or all originals or copies of documents (including
computer media) containing Confidential Information from the NGC Site
at which access is provided or to copy or make notes from any
Confidential Information.
<PAGE>
3. CONFIDENTIALITY
3.1 Without prejudice to the terms of Clause 2, the Pool Member Company
undertakes and agrees with NGC to keep secret and confidential the
Confidential Information and not at any time without the prior written
consent of NGC to disclose or permit it to be made available to any
person, firm or company (other than its employees, directors or
officers or, subject to the terms of Clauses 4.2 and 4.3, to its
consultants, professional advisers and to members of the Executive
Committee) or to use the same other than for carrying out the
Permitted Purpose.
3.2 The provisions of Clause 3.1 shall not extend to Confidential
Information which:
3.2.1 is or shall be generally available to the public otherwise
than by reason of a breach of the provisions of this
Agreement or a breach by any third party of an obligation of
confidence; or
3.2.2 is known to the Pool Member Company and is at its free
disposal prior to its receipt from NGC or (as the case may
be) NGC allowing the Pool Member Company access to the same;
or
3.2.3 is disclosed to the Pool Member Company by a third party
owing no obligations of confidence to NGC or ABB in respect
thereof; or
3.2.4 is required to be disclosed by law or by any Competent
Authority but only to the extent and for the purpose of such
disclosure or which it is necessary to disclose for the
conduct of any judicial process.
4. INTERNAL PROCEDURES
4.1 With effect from the date of this Agreement and without prejudice to
the terms of Clause 2, the Pool Member Company shall adopt procedures
within its organisation for ensuring the confidentiality of the
Confidential Information. These procedures are:
4.1.1 the Confidential Information will be disseminated within the
Pool Member Company only on a "need to know" basis;
4.1.2 employees, directors and other officers of the Pool Member
Company in receipt of Confidential Information will be made
fully aware of the Pool Member Company's obligations of
confidence in relation thereto; and
4.1.3 that the Confidential Information will be treated and
safeguarded as private and confidential to the same level as
the Pool Member Company maintains its own confidential
information.
4.2 The Pool Member Company shall be entitled to:
4.2.1 permit the disclosure of the Confidential Information to its
consultants and professional advisers; and
<PAGE>
4.2.2 require NGC to provide access at an NGC Site in accordance
with the terms of Clause 2 to its consultants and
professional advisers,
subject to such person having executed a confidentiality undertaking
in favour of NGC in such form as may be reasonably required by NGC
from time to time.
4.3 The Pool Member Company shall be entitled to permit the disclosure of
the Confidential Information to members of the Executive Committee
subject to such person having executed a confidentiality undertaking
in favour of NGC in such form as may be reasonably required by NGC
from time to time.
4.4 The Pool Member Company shall provide NGC with a list of the names of
all its directors, employees, officers, consultants and professional
advisers who are given access from time to time to the Confidential
Information pursuant to the terms of this Agreement.
5. POOL MEMBER COMPANY's OBLIGATIONS
5.1 In consideration of the Pool Member Company having access to the
Confidential Information, the Pool Member Company undertakes to comply
in all respects with the provisions of this Agreement.
5.2 The Pool Member Company shall immediately inform NGC of any breach of
this Agreement upon such breach coming to the attention of the Pool
Member Company.
5.3 The provisions of Clauses 3.1, 4.1, 4.4 and 5.2 shall survive
termination of this Agreement prior to the expiry date referred to in
Clause 6.1.
6. TERM AND TERMINATION
6.1 This Agreement shall come into force on the date of this Agreement
and, subject to the terms of Clauses 6.2 and 6.3, shall expire on the
later of the second anniversary of the date on which Settlement Goal
ceases operational use and ten years from the date of this Agreement.
6.2 In the event that the Pool Member Company ceases to be a Pool Member
this Agreement shall terminate with immediate effect and without
notice from NGC.
6.3 In the event that the Pool Member Company has breached this Agreement
then NGC shall be entitled to terminate this Agreement with immediate
effect by notice in writing, provided that (and without prejudice to
the terms of Clause 6.4) in all cases in the event of a breach of this
Agreement which (in the opinion of NGC) is capable of remedy, such
notice may only be served where, 5 days after service of a notice from
NGC specifying the breach and requiring its remedy, such breach
remains unremedied.
6.4 Nothing in this Clause 6 shall prejudice any right NGC may have to
obtain an injunction against the Pool Member Company to prevent
further disclosure by it of the Confidential Information in breach of
this Agreement or to bring a claim against the Pool Member Company for
breach of this Agreement.
<PAGE>
7. DISCLAIMER
7.1 Without prejudice to the terms of the Pooling and Settlement Agreement
and to any licence or support and maintenance agreement entered into
pursuant to Schedule 35 of the Pooling and Settlement Agreement:
7.1.1 NGC makes no representation or warranty as to the
completeness or accuracy of the Confidential Information and
no such representation or warranty shall be implied; and
7.1.2 the Pool Member Company acknowledges that in furnishing the
Confidential Information NGC undertakes no obligation to
provide access to any additional information or to update or
correct any inaccuracies in the Confidential Information.
8. JURISDICTION
This Agreement shall be construed and governed in accordance with
English law and any dispute between the parties in conjunction with
this Agreement shall be subject to the non-exclusive jurisdiction of
the High Court of Justice in London.
<PAGE>
APPENDIX
Definitions
"Confidential Information" means the Confidential Sections of the Datum
Document and a print out of the Goal Source
Code excluding the source code relating to
the Stanford Software and the expression
"Confidential Information" shall include any
internal report or other document prepared by
the recipient of the Confidential Information
and which incorporates Confidential
Information;
"NGC Site" means any site in England or Wales owned or
occupied by NGC;
"Permitted Purpose" means for the purpose of the Pool Member
Company's own business needs in connection
with the Electricity Pool of England and
Wales and where, and for so long as, the Pool
Member Company is a member of the Executive
Committee, for the purpose of its own
business needs in connection with that
function; and
"Pooling and Settlement
Agreement" shall mean the Pooling and Settlement
Agreement for the electricity industry in
England and Wales dated 30th March, 1990 as
amended and restated from time to time.
IN WITNESS this Agreement has been executed by the parties the day and year
first above written.
Signed on behalf of )
THE NATIONAL GRID COMPANY PLC )
Signed on behalf of )
THE POOL MEMBER COMPANY )
<PAGE>
862
APPENDIX 6
PRINCIPLES APPLYING TO OTHER CONFIDENTIALITY AGREEMENTS
<TABLE>
<CAPTION>
====================================================================================================================================
Settlement System Scheduling and
Principle Pool Consultant Administrator Pool Auditor Despatch Auditor
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Permitted Purpose For the purpose of For the purpose of the For the purpose of For the purpose of
performing the duties Settlement System performing the duties performing the duties
and responsibilities as Administrator's own of Pool Auditor and of the auditor
are assigned or vested business needs in exercising the rights appointed to carry out
in it pursuant to connection with the of Pool Auditor the Scheduling and
Clause 17.2 of the Electricity Pool of pursuant to the terms Despatch Review
Pooling and Settlement England and Wales of the Pooling and
Agreement and where the Settlement Agreement
Pool Consultant is an
Executive Committee
member for its own
business needs in
connection with that
function
- ------------------------------------------------------------------------------------------------------------------------------------
Termination Confidentiality Confidentiality Confidentiality Confidentiality
Agreement to terminate Agreement to terminate Agreement to terminate Agreement to terminate
with immediate effect with immediate effect with immediate effect with immediate effect
and without notice if and without notice if and without notice if and without notice if
the Pool Consultant the Settlement System the Pool Auditor ceases the Scheduling and
ceases to be appointed Administrator ceases to to be appointed as Pool Despatch Auditor ceases
pursuant to Clause 17.2 be appointed as the Auditor to be appointed to
of the Pooling and Settlement System carry out Scheduling
Settlement Agreement. Administrator and Despatch Review
The Pool Consultant is
to notify NGC if it has
ceased to be appointed
pursuant to Clause 17.2
- ------------------------------------------------------------------------------------------------------------------------------------
Disclosure to
Third Parties No Change No Change Disclosure permitted to Disclosure permitted to
subsidiary companies subsidiary companies
and associated and associated
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
863
<TABLE>
<CAPTION>
====================================================================================================================================
Settlement System Scheduling and
Principle Pool Consultant Administrator Pool Auditor Despatch Auditor
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
partnerships for the partnerships for the
permitted purpose permitted purpose
subject to such persons subject to such persons
entering into entering into
confidentiality confidentiality
agreements in a form agreements in a form
reasonably required by reasonably required by
NGC. NGC
- ------------------------------------------------------------------------------------------------------------------------------------
Clause 1.2 of No Change No Change Clause 1.2 of the Pool Clause 1.2 of the Pool
Pool Member Auditor Confidentiality Auditor Confidentiality
Confidentiality Agreement to include Agreement to include
Agreement partners where partners where
structure of Pool structure of Scheduling
Auditor requires and Despatch Auditor
requires
- ------------------------------------------------------------------------------------------------------------------------------------
Access to Information No Change No Change NGC to use reasonable NGC to use reasonable
endeavours to make endeavours to make
available to the Pool available to the
Auditor on not less Scheduling and Despatch
than 10 working days Auditor on not less
notice computer time than 10 working days
for tests to examine notice computer time
the Goal Source Code for tests to examine
the Goal Source Code
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
864
<TABLE>
<CAPTION>
====================================================================================================================================
Settlement System Scheduling and
Principle Pool Consultant Administrator Pool Auditor Despatch Auditor
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Making of notes/removal No Change No Change Pool Auditor to be Scheduling and Despatch
of papers entitled to make notes Auditor to be entitled
from the Confidential to make notes from the
Information and to Confidential
remove audit working Information and to
papers/notes from the working papers/notes
NGC site subject to from the NGC remove
retention in a secure audit site subject to
location. retention in a secure
location.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
<TABLE> <S> <C>
<ARTICLE> UT
<MULTIPLIER> 1,000,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> FEB-05-1998
<PERIOD-END> MAR-31-1999
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 2,516
<OTHER-PROPERTY-AND-INVEST> 1,014
<TOTAL-CURRENT-ASSETS> 1,234
<TOTAL-DEFERRED-CHARGES> 3,819
<OTHER-ASSETS> 0
<TOTAL-ASSETS> 8,583
<COMMON> 1,467
<CAPITAL-SURPLUS-PAID-IN> 0
<RETAINED-EARNINGS> 125
<TOTAL-COMMON-STOCKHOLDERS-EQ> 1,581
0
0
<LONG-TERM-DEBT-NET> 3,654
<SHORT-TERM-NOTES> 353
<LONG-TERM-NOTES-PAYABLE> 0
<COMMERCIAL-PAPER-OBLIGATIONS> 0
<LONG-TERM-DEBT-CURRENT-PORT> 225
0
<CAPITAL-LEASE-OBLIGATIONS> 782
<LEASES-CURRENT> 261
<OTHER-ITEMS-CAPITAL-AND-LIAB> 1,727
<TOT-CAPITALIZATION-AND-LIAB> 8,583
<GROSS-OPERATING-REVENUE> 3,338
<INCOME-TAX-EXPENSE> 106
<OTHER-OPERATING-EXPENSES> 2,854
<TOTAL-OPERATING-EXPENSES> 2,854
<OPERATING-INCOME-LOSS> 484
<OTHER-INCOME-NET> 47
<INCOME-BEFORE-INTEREST-EXPEN> 531
<TOTAL-INTEREST-EXPENSE> 356
<NET-INCOME> 126
0
<EARNINGS-AVAILABLE-FOR-COMM> 126
<COMMON-STOCK-DIVIDENDS> 1
<TOTAL-INTEREST-ON-BONDS> 0
<CASH-FLOW-OPERATIONS> 44
<EPS-BASIC> 0
<EPS-DILUTED> 0
</TABLE>
