As filed with the Securities and Exchange Commission on July 21, 1999.
Registration Nos. 333-82307 and 333-82307-01
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------------------
AMENDMENT NO. 2
TO
FORM S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
------------------------------------
TXU EASTERN FUNDING COMPANY TXU EASTERN HOLDINGS LIMITED
(EXACT NAME OF REGISTRANT AS (EXACT NAME OF REGISTRANT AS
SPECIFIED IN ITS CHARTER) 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, INCLUDING AREA CODE, AND TELEPHONE NUMBER, INCLUDING
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) AREA CODE, OF OF REGISTRANT'S
PRINCIPAL EXECUTIVE OFFICES)
ROBERT A. WOOLDRIDGE, Esq. PETER B. TINKHAM, Esq. ROBERT J. REGER, JR., Esq.
Worsham, Forsythe Secretary Thelen Reid & Priest LLP
& Wooldridge, L.L.P. TXU Corp 40 West 57th Street
1601 Bryan Street 1601 Bryan Street New York, New York 10019
Dallas, Texas 75201 Dallas, Texas 75201 (212) 603-2000
(214) 979-3000 (214) 812-4600
(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 PHILIP ELLIS
Winthrop, Stimson, Secretary, TXU Eastern Secretary, TXU Eastern
Putnam & Roberts Funding Company Holdings Limited
One Battery Park Plaza c/o Eastern Group plc c/o Eastern Group plc
New York, New York 10004-1490 Wherstead Park Wherstead Park
(212) 858-1000 Ipswich, Suffolk, Ipswich, Suffolk,
England IP9 2AQ England IP9 2AQ
011-44-1473-55-3102 011-44-1473-55-3102
<PAGE>
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 21. EXHIBITS.
PREVIOUSLY FILED*
--------------------------------
EXHIBIT WITH FILE NUMBER AS 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
and and Reid & Priest LLP, special
8(a) 8(a) United States and counsel to
TXU Eastern Funding Company and
TXU Eastern Holdings Limited.
8(b) *** 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)
Form 10-Q 1,275,000, Credit Facilities,
(Quarter ended dated March 24, 1999, among TXU
March 31, 1999) Eastern Holdings Limited, TU
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)
Form 10-Q 250,000,000 Revolving Credit
(Quarter ended Facility, dated May 21, 1998,
September 30, 1998) among Eastern Electricity plc,
and Chase Mahhattan 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
333-8008-1 16, 1997, among 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
333-8008-1 Guaranteed note of EGO due
2017.
II-1
<PAGE>
PREVIOUSLY FILED*
-------------------------------
EXHIBIT WITH FILE NUMBER AS EXHIBIT
- ------- ---------------- ----------
10(e) 333-8008 and 4.3 -- Form of 7.500% Series B
333-8008-1 Guaranteed note of EGO due
2027.
10(f) 1-14576 3.10 -- Deed of Assignment of Rents,
Form 20-F, dated dated as of October 28, 1996,
January 27, 1997 among Eastern Merchant
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
Form 20-F, dated Agreement, dated as of
January 27, 1997 October 18, 1996, among
EMPL and Eastern Merchant
Generation Limited (EMGL) (as
borrowers), Eastern Group plc
(Eastern) and Eastern
Generation Limited ((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) *** 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).
II-2
<PAGE>
PREVIOUSLY FILED*
-------------------------------
EXHIBIT WITH FILE NUMBER AS EXHIBIT
- ------- ---------------- ----------
23(c) ** 23(c) -- Consent of Worsham, Forsythe &
Wooldridge, L.L.P. (included
in Opinion filed as Exhibit
5(b) hereto).
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) -- Amended 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.
*** Previously filed with Amendment No. 1 to the Registration Statement
(Nos. 333-82307 and 333-82307-01) on July 9, 1999.
II-3
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
HAS DULY CAUSED THIS AMENDMENT NO. 2 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 21ST 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. 2 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
------------------------ OFFICER, PRINCIPAL
(MICHAEL J. MCNALLY) ACCOUNTING OFFICER
AND DIRECTOR
H. JARRELL GIBBS* DIRECTOR JULY 21, 1999
------------------------
(H. JARRELL GIBBS)
ROBERT A. WOOLDRIDGE* DIRECTOR
------------------------
(ROBERT A. WOOLDRIDGE)
*BY: /S/ ROBERT J. REGER, JR. AUTHORIZED REPRESENTATIVE
------------------------ IN THE UNITED STATES AND
(ROBERT J. REGER, JR.) 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. 2 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 21, 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. 2 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
------------------------------- OFFICER, PRINCIPAL
(MICHAEL J. MCNALLY) ACCOUNTING OFFICER
AND DIRECTOR
ROBERT A. WOOLDRIDGE* DIRECTOR
-------------------------------
(ROBERT A. WOOLDRIDGE)
DEREK CHARLES BONHAM* DIRECTOR JULY 21, 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
---------------------------- IN THE UNITED STATES AND
(ROBERT J. REGER, JR.) ATTORNEY-IN-FACT
II-5
<PAGE>
EXHIBIT INDEX
Exhibit Description
- ------- -----------
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.
27(a) -- Amended Financial Data Schedule
Exhibit 10(i)
THE NATIONAL GRID COMPANY PLC
----------------------------------------------
CONNECTION AND USE OF SYSTEM DOCUMENTATION
----------------------------------------------
<PAGE>
DATED 30TH MARCH 1990
---------------------
THE NATIONAL GRID COMPANY PLC (1)
and
OTHERS (2)
-----------------------------------------------
MASTER
CONNECTION AND USE OF SYSTEM AGREEMENT
-----------------------------------------------
<PAGE>
CONTENTS
--------
Master Agreement
Schedule 1 - NGC/Users' Details
Schedule 2 - Definitions
Schedule 3 - Accession Agreement
Schedule 4 - Transmission Users Group
Schedule 5 - Reactive Power Market and Default
Payment Arrangements
Exhibit 1 - Supplemental Agreement Type 1
Exhibit 2 - Supplemental Agreement Type 2
Exhibit 3 - Supplemental Agreement Type 3
Exhibit 4 - Supplemental Agreement Type 4
Exhibit 5 - Supplemental Agreement Type 5
Exhibit 6 - Supplemental Agreement Type 6
Exhibit 7 - Connection Application
Exhibit 8 - Connection Offer
Exhibit 9 - Use of System Application (Generators)
Exhibit 10 - Use of System Application (Suppliers)
Exhibit 11 - Modification Application
Exhibit 12 - Modification Offer
Exhibit 13 - Modification Notification
Exhibit 14 - Ancillary Services Agreement
Exhibit 15 - Interface Agreement Type 1 (Generators)
Exhibit 16 - Interface Agreement Type 2 (Suppliers)
Exhibit 17 - Interface Agreement Type 3 (Suppliers - Licence)
<PAGE>
MASTER AGREEMENT
----------------
CONTENTS
--------
Clause Title Page
- - ------ ----- ----
1. Interpretation and Construction 2
2. Supplemental Agreements 3
3. Ancillary Services 7
4. Interface Agreement 7
5. Nuclear Installations 8
6. Principles of Ownership 10
7. Metering 11
8. Ngc Obligations 12
9. Compliance with the Grid Code/Distribution Code 12
10. Modifications 14
11. New Connection Sites 16
12. General Provisions Concerning Modifications and
New Connection Sites 16
13. Additional Parties 18
14. Payment 19
15. Limitation of Liability 21
16. Duration and Termination 24
17. Events of Default/Deenergisation 24
18. Transfer and Subcontracting 26
19. Confidentiality 28
20. Intellectual Property 35
21. Force Majeure 35
22. Waiver 37
23. Notices 37
24. Counterparts 38
25. Variations 38
26. Dispute Resolution 39
27. Jurisdiction 42
28. Governing Law 42
29. Severance of Terms 43
30. Language 43
<PAGE>
THIS MASTER AGREEMENT is made the 30th day of March 1990 and becomes effective
on the 31st day of March 1990 BETWEEN:
(1) THE NATIONAL GRID COMPANY PLC a company registered in England with number
2366977 whose registered office is at National Grid House, Sumner Street,
London SEI 9JU ("NGC", which expression shall include its successors
and/or permitted assigns) and whose address, telex and facsimile numbers
for notices are set out in Schedule 1; and
(2) THE PERSONS whose names, registered numbers, registered offices, and
addresses, telex and facsimile numbers for notices are set out in Schedule
1 (each a "User", which expression shall include its successors and/or
permitted assigns)
WHEREAS:
This Master Agreement has the following principal purposes:
(i) to establish contractual framework between NGC and all Users
pursuant to which Supplemental Agreements will from time to time be
made which will provide for, amongst other things:
(a) connection of a User's Equipment at a Connection Site to the
NGC Transmission System;
(b) the use by a User of the NGC Transmission System in connection
with the generation and/or transmission of electricity;
(c) the payment to NGC of Connection Charges and/or Use of System
Charges; and
(ii) to provide for the enforcement of the Grid Code.
<PAGE>
NOW IT IS HEREBY AGREED AS FOLLOWS:
1. INTERPRETATION AND CONSTRUCTION
1.1 In this Agreement and in each Supplemental Agreement the words and
expressions defined in Schedule 2 shall, unless the subject matter or
context otherwise requires or is inconsistent therewith, apply.
1.2 In the event of any inconsistency between the provisions of any
Supplemental Agreement and this Agreement, the provisions of the
Supplemental Agreement shall prevail in relation to the Connection Site
which is the subject thereof to the extent that the rights and obligations
of Users not party to that Supplemental Agreement are not affected.
1.3 If in order to comply with any obligation in this Agreement or any
Supplemental Agreement any Party is under a duty to obtain the consent or
approval (including any statutory licence or permission) ("the Consent")
of a third party (or the consent of another Party to this Agreement) such
obligation shall be deemed to be subject to the obtaining of such Consent
which the Party requiring the consent shall use its reasonable endeavors
to obtain including (if there are reasonable grounds therefor) pursuing
any appeal in order to obtain such Consent.
1.3.1. If such Consent is required from any Party to this Agreement then
such Party shall grant such Consent unless it is unable to do so or
it would be unlawful for it to do so provided that such grant by
such Party may be made subject to such reasonable conditions as
such Party shall reasonably determine.
1.3.2. For the avoidance of doubt if the Party who is under a duty to
obtain such Consent fails to obtain such Consent having complied
with this Clause 1.3 the obligation on that Party (in relation to
which such Consent is required) shall cease.
2
<PAGE>
1.4 In this Agreement:
(i) unless the context otherwise requires all references to a particular
Clause, Sub-Clause, paragraph, Schedule or Exhibit shall be a
reference to that Clause, Sub-Clause, paragraph, Schedule or Exhibit
in or to this Agreement and all references to a particular Appendix
shall be a reference to that Appendix to a Supplemental Agreement;
(ii) a table of Contents and headings are inserted for convenience only
and shall be ignored in construing this Agreement or a Supplemental
Agreement, as the case may be;
(iii) references to the words "include" or "including" are to be construed
without limitation to the generality of the preceding words;
(iv) unless the context otherwise requires 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
(v) references to the masculine shall include the feminine and
references in the singular shall include the plural and vice versa
and words denoting persons shall include any individual,
partnership, firm, company, corporation, joint venture, trust,
association, organisation or other entity, in each case whether or
not having separate legal personality.
2. SUPPLEMENTAL AGREEMENTS
2.1 Exhibits 1 to 6 to this Master Agreement contain the forms of agreements
contemplated to be entered into pursuant to this Clause, being:
3
<PAGE>
Exhibit 1
Supplemental Agreement "Type 1", in respect of Connection Sites of Users
which are in existence and Commissioned at the Transfer Date;
Exhibit 2
Supplemental Agreement "Type 2", in respect of New Connection Sites of
Users which have not been Commissioned at the Transfer Date;
Exhibit 3
Supplemental Agreement "Type 3", for Generators with Embedded Generating
Plant or with Embedded Small dependent Generating Plant and who are acting
in that capacity and who are passing power onto a Distribution System
through a connection with a Distribution System Commissioned at the
Transfer Date;
Exhibit 4
Supplemental Agreement "Type 4", for Generators with Embedded Generating
Plant or with Embedded Small Independent Generating Plant and who are
acting in that capacity and who are passing power on to a Distribution
System through a connection with a Distribution System which has not been
Commissioned at the Transfer Date;
Exhibit 5
Supplemental Agreement "Type 5", for Second Tier Suppliers acting in that
capacity taking Energy through any Grid Supply Point and through a
Distribution System owned or operated by any other persons; and
Exhibit 6
Supplemental Agreement "Type 6", for Generators with Minor Independent
Generating Plant which is Embedded and who are acting in that capacity and
who are Pool members.
2.2 The Supplemental Agreements which are to be entered into between NGC and
Users who are parties to this Master Agreement as at the Transfer Date,
and
4
<PAGE>
which are in respect of Connection Sites existing as at the Transfer Date,
shall be in or substantially in the relevant exhibited form of
Supplemental Agreement unless the parties thereto agree otherwise.
2.3 Any Supplemental Agreements which are entered into between NGC and Users
who are parties to this Master Agreement as at the Transfer Date, but in
respect of New Connection Sites, shall be in or substantially in the
relevant exhibited form of Supplemental Agreement unless the parties
thereto agree otherwise.
2.4 All other Supplemental Agreements shall be in such form as may be agreed
between NGC and each User.
2.5 Obligations of Users who own or operate Distribution Systems
2.5.1. Any User who owns or operates a Distribution System shall not
Energise the connection between any Generating Plant or Small
Independent Generating Plant or Minor Independent Generating Plant
and its Distribution System nor permit the use of its Distribution
System by the same until the person owning or operating the plant
has where required completed the Use of System Application
(Generators) and has entered into a Supplemental Agreement in the
appropriate form (if any) with NGC and (if such person is not
already a party to this Master Agreement) has where required
entered into an Accession Agreement with NGC pursuant to Clause 13.
2.5.2. Any User who owns or operates a Distribution System shall not
Energise the connection between any Customer of another Authorised
Electricity Operator connected to such Distribution System if the
Demand (Active Power) being supplied to such Customer is being
purchased by such Authorised Electricity Operator pursuant to the
Pooling and Settlement Agreement unless such Authorised Electricity
Operator has first completed the Use of System Application
(Suppliers) and has entered into a Supplemental Agreement in the
appropriate form with NGC and
5
<PAGE>
has notified NGC of the details relevant to such Customer to be
notified to NGC pursuant to such Supplemental Agreement and (if the
Authorised Electricity Operator is not already a party to this
Agreement) has entered into an Accession Agreement with NGC pursuant
to Clause 13.
2.5.3. NGC shall notify the relevant owner or operator of the Distribution
System in writing as soon as the conditions set out in Sub-Clause
2.5.1 and Sub-Clause 2.5.2 have been satisfied in any particular
case together with, if appropriate, a copy of Appendix A of
Supplemental Agreement Type 5. NGC undertakes to each Party that,
for so long as it is the case, NGC shall from time to time forthwith
upon receipt of any written request from that Party to do so,
confirm in writing to any person specified in such request that that
Party is a party to this Agreement and any Supplemental Agreement
specified in such request.
2.5.4. Each owner or operator of a Distribution System shall Deenergise
the connection equipment of any such User the subject of Sub-Clause
2.5.1 or Customer the subject of Sub-Clause 2.5.2 as soon as
reasonably practicable following the instruction of NGC in
accordance with the terms of this Agreement. NGC shall reimburse
such owner or operator any expense incurred in relation to such act
of Deenergisation, if any, and shall indemnify such owner or
operator against any liability, loss or damage suffered by it as a
result of such Deenergisation. Details of any circumstances likely
to lead to such a Deenergisation shall be notified promptly by NGC
to the said owner or operator. The owner or operator of a
Distribution System shall promptly notify NGC when the connection
equipment of any User or Customer the subject of Sub-Clauses 2.5.1
or 2.5.2 is Deenergised or Disconnected from its
6
<PAGE>
Distribution System or ceases to use its Distribution System as the
case may be following the instruction of NGC in accordance with the
terms of this Agreement.
2.6 Each and every Supplemental Agreement entered into by a User and in force
from time to time will constitute a separate agreement governed by the
terms of this Master Agreement and will be read and construed accordingly.
For the avoidance of doubt no User shall enjoy any rights nor incur any
obligations against any other User pursuant to the terms of any
Supplemental Agreement.
2.7 Each and every User connected to or using the NGC Transmission System
shall be a Pool Member except for Non-Embedded Customers being supplied by
a Pool Member.
3. ANCILLARY SERVICES
3.1 NGC and each User agree that any Ancillary Services agreement in respect
of any Ancillary Services to be provided by the User at or from a
Connection Site or New Connection Site or a Site where an Embedded User is
connected to a Distribution System shall be in a form to be agreed between
them but based substantially on the form set out in Exhibit 14.
4. INTERFACE AGREEMENT
4.1 NGC and each User undertake to enter into an Interface Agreement with each
other in a form to be agreed between them but based substantially on the
forms set out in Exhibits 15, 16 and 17 as appropriate in relation to
Connection Site(s) and New Connection Site(s) where Interface Agreement(s)
is/are required pursuant to the applicable Supplemental Agreement or
otherwise.
7
<PAGE>
5. NUCLEAR INSTALLATIONS
5.1 Save as provided in Sub-Clause 5.2 below notwithstanding anything to the
contrary contained in this Agreement (but subject to the following
proviso), in circumstances affecting a generator or nuclear electricity
(a "Nuclear Generator") in which:
(a) a breach of any of the matters specified in Sub-Clause 5.4 below may
be reasonably anticipated; and
(b) there is no defense (other than that provided for under this
Sub-Clause) available to the Nuclear Generator in respect of the
breach referred to in Sub-Clause 5.1(a);
the Nuclear Generator shall be entitled to take any action or refrain from
taking any action which is reasonably necessary in order to avert the
breach referred to in Sub-Clause 5.1(a) and each and every provision of
this Agreement shall be read and construed subject to this Clause,
Provided that the Nuclear Generator shall:
(i) make reasonable efforts to verify the factors that it takes into
account in its assessment of the circumstances and anticipated
breach referred to above; and
(ii) use its best endeavors to comply with the relevant provision in a
manner which will not cause the Nuclear Generator to breach any of
the matters specified in Sub-Clause 5.4 below.
5.2 Sub-Clauses 5.1 and 5.3 shall not apply in relation to the provisions of
SDC1, SDC2 and SDC3 of the Grid Code which will apply with full force and
effect notwithstanding the occurrence of the circumstances referred to in
Sub-Clause 5.1(a) (including those provisions specified in Sub-Clause 5.4
which relate to Safety of Personnel and Plant).
5.3 Save as provided in Sub-Clause 5.2 above notwithstanding anything this
Agreement, the Nuclear Generator shall be entitled upon giving reasonable
notice
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to all affected Parties to require any Party to take any reasonable and
proper action whatsoever to the extent necessary in order to comply with
(or avert an anticipated breach of) any of the matters specified in
Sub-Clause 5.4 below.
5.4 The matters referred to in Sub-Clauses 5.1 and 5.3 above are any covenant,
agreement, restriction, stipulation, instruction, provision, condition or
notice contained, or referred to, in a licence for the time being in
force, granted in accordance with the Notice Installation Act 1965 (or
legislation amending, replacing or modifying the same) or any consent, or
approval issued, or to take effect from time to time under such licence,
any emergency arrangements, operating rules or other matters from time to
time, under such licence, any emergency arrangements, operating rules or
other matters from time to time approved by the relevant authority under,
or pursuant to, any such agreements, restrictions, stipulations,
instructions, provisions, conditions or notices.
5.5 The Nuclear Generator shall indemnify and keep indemnified any Party for
any loss, damage, costs and expenses incurred by that Party as a
consequence of any action of that Party pursuant to Sub-Clause 5.3 (to the
extent that the action was not required by any licence or agreement
binding on that Party).
5.6 Notwithstanding the fact that any action or inaction allowed by Clause 5.1
above does not constitute a breach of this Agreement or an Event of
Default under Clause 17 below, the Nuclear Generator shall be liable to
the other Parties to this Agreement for any loss, claims, costs,
liabilities and expenses arising from such action or inaction to the
extent only that such loss, claims, costs, liabilities and expenses (had
it arisen as a result of a breach of this Agreement) would not have been
limited or excluded under the provisions of Clause 15 below.
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6. PRINCIPLES OF OWNERSHIP
6.1 Ownership - electrical boundaries
Subject to the Transfer Scheme or any contrary agreement in this
Agreement, any Supplemental Agreement or elsewhere the division of
ownership of Plant and Apparatus shall be at the electrical boundary, such
boundary to be determined in accordance with the following principles:
(i) In relation to Plant and Apparatus located between the NGC
Transmission System and a Power Station, the electrical boundary is
at the busbar clamp on the busbar side of the busbar isolators on
Generators and Power Station transformer circuits;
(ii) save as specified in Clause 6.1(iii) below, in relation to Plant and
Apparatus located between the NGC Transmission System and a
Distribution System, the electrical boundary is at the busbar clamp
in the busbar side of the Distribution System voltage busbar
selector isolator(s) of the NGC Transmission System circuit or, if a
conventional busbar does not exist, an equivalent isolator. If no
isolator exists an agreed bolted connection at or adjacent to the
tee point shall be deemed to be an isolator for these purposes;
(iii) in relation to Plant and Apparatus located between the NGC
Transmission System and a Distribution System and owned by NGC but
designed for a voltage of 132KV or below, the electrical boundary is
at the busbar clamp on the busbar side of the busbar selector
isolator on the Distribution System circuit or, if a conventional
busbar does not exist, an equivalent isolator. If no isolator
exists, an agreed bolted connection at or adjacent to the tee point
shall be deemed to be an isolator for these purposes; and
(iv) in the case of a metal clad switchgear bay the electrical boundary
will be the equivalent of those specified in this Clause 6.1 save
that:
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(a) for rack out switchgear, the electrical boundary will be at
the busbar shutters;
(b) for SF6 switchgear, the electrical boundary will be at the gas
zone separators on the busbar side of the busbar selection
devices.
6.2 If a User wants to use transformers of specialised design for unusual load
characteristics at the electrical boundary, NGC shall own such
transformers but the User shall pay NGC for the proper and reasonable
additional cost thereof as identified by NGC in the Offer covering such
transformers. In this Sub-Clause 6.2 "unusual load characteristics" means
loads which have characteristics which are significantly different from
those of the normal range of domestic, commercial and industrial loads
(including loads which vary considerably in duration or magnitude).
6.3 For the avoidance of doubt nothing in this Clause 6 shall effect any
transfer of ownership in any Plant or Apparatus.
7. METERING
7.1 Each User consents to NGC having access to and copies of all meter
readings taken from Energy Metering Equipment pursuant to the Pooling and
Settlement Agreement in any Financial Year for the purposes of calculating
Connection Charges and Use of System Charges due from Users or for the
purpose of operating the NGC Transmission System. Such access and copies
shall be obtained from the Settlement System Administrator appointed under
the Pooling and Settlement Agreement from time to time provided always
that if the Settlement System Administrator fails to provide such access
and copies at NGC's request the User shall supply any such meter readings
in the possession of the User direct to NGC.
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7.2 The relationship between the Parties hereto with respect to Energy
Metering Equipment shall be regulated by Part XV of the Pooling and
Settlement Agreement.
7.3 In respect of Operational Metering Equipment owned by the Party and in
respect of which access and rights to deal with such Operational Metering
Equipment are not set down in any other document the Parties shall grant
each other such access and the rights as are reasonably necessary to
enable them to perform their obligations under this Agreement and the Grid
Code upon presentation of a suitable indemnity and the Parties shall take
such action as may be necessary to regularise the position forthwith
thereafter.
8. NGC OBLIGATIONS
8.1 NGC agrees with each User to make available, plan, develop, operate and
maintain the NGC Transmission System in accordance with the NGC
Transmission Licence and with the Grid Code subject to any Derogations
from time to time.
9. COMPLIANCE WITH THE GRID CODE/DISTRIBUTION CODE
9.1 Subject to Sub-Clause 9.3 each Party agrees with each other Party to be
bound by and to comply in all respects with the provisions of the Grid
Code in so far as applicable to that Party.
9.2 Subject to Sub-Clause 9.3 each Party agrees with each other Party to be
bound by and to comply in all respects with the provisions of the relevant
Distribution Code(s) in so far as applicable to that Party except as may
be otherwise provided in any agreement for connection to a Distribution
System.
9.3 Neither NGC nor a User need comply with the Grid Code or any relevant
Distribution Code(s) to the extent (if any) that:
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(i) either the Director has issued directions relieving NGC or that User
from the obligation under its respective licence to comply with the
Licence Standards, the Grid code or any relevant Distribution
Code(s) in respect of such parts of the Grid Code or any relevant
Distribution Code(s) respectively as may be specified in those
directions or to the extent that NGC and a User which does not have
a Licence under the Act can and have so agreed in any Supplemental
Agreement in relation to any Connection Site or New Connection Site
and/or Derogated Plant; or
(ii) (in the case of a User) the Grid Code relates to the provision by
that User of any Ancillary Services unless there is an Ancillary
Services Agreement in force between that User and NGC for the
payment by NGC for such Ancillary Services; or
(iii) (in the case of NGC) the Grid Code imposes any obligation on NGC to
make available Additional Scheduling Data (as defined in the Grid
code) before 31st December 1990.
9.4 In this Sub-Clause 9.4 the following expressions shall bear the following
meanings:
"Required Standard" In relation to an item of Derogated Plant, the
respective standard required of that item (which
shall not exceed that required by the Grid code
or the Licence Standards, as the case may be) as
specified in or pursuant to the relevant
Derogation;
"Back Stop Date" in relation to an item of Derogated Plant, the
date by which it is to attain its Required
Standard, as specified in or pursuant to the
relevant Derogation.
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Each User undertakes to NGC and NGC undertakes to each User to use all
reasonable endeavours to carry out such works as are necessary to ensure
that each item of Derogated Plant owned or operated by that User or NGC
(as appropriate) is brought up to the Required Standard applicable to it
no later than the Back Stop Date applicable to it.
9.5 The terms and provisions of the Fuel Security Code shall prevail to the
extent that they are inconsistent with the Grid code or any Distribution
code and the Parties' obligations under this Agreement shall be construed
accordingly.
10. MODIFICATIONS
10.1 No modification may be made by or on behalf of a User or NGC otherwise
than in accordance with the provisions of this Clause 10.
10.2 Modifications Proposed by Users
10.2.1. If a User wishes to make a Modification it shall complete and
submit to NGC a Modification Application and comply with the
terms thereof.
10.2.2. NGC shall make the Modification Offer to that User as soon as
practicable and (save where the Director consents to a longer
period) any event not more than 3 months after receipt by NGC of
the Modification Application. The Modification Offer shall
include details of any variations NGC proposes to make to the
Supplemental Agreement which applies to the Connection Site in
question. During such period NGC and the User concerned shall
discuss in good faith the implications of the proposed
Modifications.
10.2.3. The Modification Offer shall remain open for acceptance for 3
months from the date of its receipt by that User unless either
that User or NGC makes an application to the Director under
Condition 10C of the NGC Transmission Licence, in which event the
Modification Offer shall
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remain open for acceptance by that User until the date 14 days
after any determination by the Director pursuant to such
application.
10.2.4. If the Modification Offer is accepted by that User the
Supplemental Agreement relating to the Connection Site in
question shall be varied to reflect the terms of the Modification
Offer and the Modification shall proceed according to the terms
of the Supplemental Agreement as so varied.
10.3 Modifications proposed by NGC
10.3.1. If NGC wishes to make a Modification to the NGC Transmission
System, NGC shall complete and submit to each User a Modification
Notification and shall complete and submit to each User a
Modification Notification and shall advise each User of any works
which NGC reasonably believes that User may have to carry out as
a result.
10.3.2. Any User which considers that it shall be required to make a
Modification (an "Affected User Modification") as a result of the
Modification proposed by NGC (an "Affected User") may as soon as
practicable after receipt of the Modification Notification and
(save where the Director consents to a longer period) within the
period stated therein (which shall be sufficient to enable the
User to assess the implications of the proposed Modification and
in any event shall not be less than 3 months) may make an
application to the Director under Condition 10C of the
Transmission Licence.
10.3.3. As soon as practicable after the receipt of the Modification
Notification or, if an application to the Director has been made,
the determination by the Director, and in any event within two
months thereof, each Affected User shall complete and submit a
Modification Application to NGC and
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comply with the terms thereof. No fee shall be payable by any
User to NGC in respect of any such Modification Application.
10.3.4. Once a Modification Application has been made by a User pursuant
to Sub-Clause 10.3.2 the provisions of Sub-Clauses 10.2.2, 10,2.3
and 10.2.4 shall thereafter apply.
11. NEW CONNECTION SITES
11.1 If a User wishes to connect a New Connection Site it shall complete and
submit to NGC a Connection Application and comply with the terms thereof.
11.2 Without prejudice to Condition 10B4 of the NGC Transmission Licence NGC
shall make a Connection Offer to that User as soon as practicable after
receipt of the Connection Application and (save where the Director
consents to a longer period) in any event not more than 3 months after
receipt by NGC of the Connection Application.
11.3 The Connection Offer shall remain open for acceptance for 3 months from
its receipt by that User unless either that User or NGC makes an
application to the Director under Condition 10C of the NGC Transmission
Licence, in which event the Connection Offer shall remain open for
acceptance until the date 14 days after any determination by the Director
pursuant to such application.
11.4 If the Connection Offer is accepted by that User the connection shall
proceed according to the terms of the Supplemental Agreement entered into
consequent upon acceptance of the Offer.
12. GENERAL PROVISIONS CONCERNING MODIFICATIONS AND NEW CONNECTION SITES
12.1 Subject to the payment of its Reasonable Charges, if any, as provided for
in this Sub-Clause NGC undertakes to each User to provide all advice and
assistance reasonably requested by that User to enable that User
adequately to assess the
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implications (including the feasibility) of making a Modification to the
User's Equipment or the User's System (whether such Modification is to be
made at the request of NGC or of the User) or of constructing a New
Connection Site (including adequately assessing the feasibility of making
any Connection Application or considering the terms of any Connection
Offer). If the proposed Modification by the User is or may be required as
a result of a Modification proposed by NGC then NGC shall provide such
advice and assistance free of charge. If the proposed Modification is or
may be proposed by the User or if the advice and assistance is in respect
of a New connection Site NGC may charge the User Reasonable charges for
such advice and assistance. The provisions of such advice and assistance
shall be subject to any confidentiality obligations binding on NGC and
that User.
12.2 When giving such advice and assistance NGC shall comply with Good Industry
Practice.
12.3 NGC shall have no obligation to compensate any User (the "First User") for
the cost or expense of any Modification required to be made by any User as
a result of any NGC Modification under Sub-Clause 10.3.1. Where such NGC
Modification is made as a result of the construction of a New Connection
Site or a Modification for another User (the "Other User"), the Other User
shall compensate the First User for the reasonable and proper cost and
expense of any Modifications required to be made by the First User as a
result of that NGC Modification. Such compensation shall be paid to the
First User by the Other User within thirty days of production to the Other
User of a receipted invoice (together with a detailed breakdown of such
reasonable costs and expenses) for the expenditure which has been incurred
by the First User.
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12.4 Modification Offers and Connection Offers conditional Upon other
Modification Offers and Connection Offers
If at the time of making any Offer or Modification Offer or Connection
Offer to a User ("the Second Offer") there is an outstanding Modification
Offer(s) or Connection Offer(s) to another User(s) ("the First Offer")
which if accepted would affect the terms of the Second Offer NGC shall at
the time of making the Second Offer
(i) inform the recipient(s) of both the First Offer(s) and Second
Offer(s) in writing that there is another Offer outstanding which
might affect them; and
(ii) be entitled to make the First Offer(s) and Second Offer(s)
conditional upon other outstanding Offers not having been or being
accepted; and
(iii) be entitled to vary the terms of either Offer if the other Offer is
accepted first on the same procedures as those set out in Clauses
10.2.2 to 10.2.4 or 11.2 to 11.4 inclusive as the case may be.
13. ADDITIONAL PARTIES
13.1 The Parties shall admit as an additional party to this Master Agreement
any person who accepts a Connection Offer from NGC or any new Embedded
User (the "New Party") and who is not at the time already a Party. Such
admission shall take effect by way of Accession Agreement prepared by NGC
at the expense and cost of the New Party and to be executed by NGC for
itself and on behalf of all other Parties. Upon execution of the Accession
Agreement by NGC and the New Party and subject to the terms and conditions
of that Accession Agreement, the New Party shall become a Party for all
purposes of this Agreement.
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13.2 Each Party hereby authorises and instructs NGC to sign any such Accession
Agreement on its behalf and undertakes not to withdraw, qualify or revoke
any such authority or instruction at any time.
13.3 NGC shall promptly notify all Parties in writing that the New Party has
become a Party.
14. PAYMENT
14.1 NGC will invoice Users for Connection Charges and/or Use of System Charges
due under each Supplemental Agreement in the following manner:
(i) in the case of recurrent monthly charges other than the Energy
related charges identified in Appendix D to the relevant
Supplemental Agreement NGC shall despatch an invoice on or before
the 15th day of the month for the charges due in relation to that
month;
(ii) in the case of the Energy related recurrent monthly charges
identified in Appendix D to the relaxant Supplemental Agreement NGC
shall despatch an invoice on or before the 1st day of a month
covering the charge due in relation to the period expiring on the
15th day of the preceding month and commencing on the 16th day of
the month before that;
(iii) unless otherwise specified in this Agreement where charges are
payable other than monthly NGC shall despatch an invoice not less
than 30 days prior to the due date for payment specified in the
relevant Appendix to the Supplemental Agreement.
14.2 Payment
Users shall pay NGC Connection Charges and/or Use of System Charges due
under each Supplemental Agreement in the following manner:
(i) in the case of recurrent monthly charges on the 15th day of the
month in which NGC's invoice therefor was despatched (if despatched
on the first
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day of that month) or, in all other cases, on the 15th day of the
month following the month in which NGC's invoice therefor was
despatched unless, in any such case, the said date is not a Business
Day in which case payment shall be made on the next business Day;
(ii) unless otherwise specified in this Agreement where charges are
payable other than monthly within 30 days of the date of NGC's
invoice therefor.
14.3 All payments hereunder shall be made by the variable direct debit method
or such other form of bankers automated payment as shall be approved by
NGC to the account number, bank and branch specified by NGC in Schedule 1
or in the case of sums payable to a User the account number, bank and
branch of the User set out in Schedule 1 (or such other account and/or
bank as NGC or a User may from time to time notify in writing to the
other).
14.4 If any Party fails to pay on the due date any amount properly due under
this Agreement such Party shall pay to the Party to whom such amount is
due interest on such overdue amount from and including the date of such
failure to (but excluding) the date of actual payment (as well after as
before judgement) at the rate of 4% over Barclays Bank PLC base rate for
the time being and from time to time interest shall accrue from day to
day.
14.5 All sums payable by one Party to the other pursuant to this Agreement
whether of charges, interest or otherwise shall (except to the extent
otherwise required by law) be paid in full, free and clear of and without
deduction set off or deferment in respect of such sums the subject of any
disputes or claims whatsoever save for sums the subject of a final award
or judgement (after exhaustion of all appeals if this opportunity is
taken) or which by agreement between NGC and those Parties may be so
deducted or set-off.
14.6 All amounts specified hereunder or under any Supplemental Agreement shall
be exclusive of any Value Added Tax or other similar tax.
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14.7 If upon the request of any User the Director determines that the NGC
Connection Charges and/or Use of System Charges payable by that User
(including any variations thereof) have not been calculated strictly in
accordance with the terms of the statements prepared for the purposes of
Condition 10 of the NGC Transmission Licence (setting out the basis upon
which the charges for use of system and for connection to the NGC
Transmission System will be made) NGC shall pay to such User an amount in
respect of each charging period equal to the amount (if any) by which the
User has been overcharged as a result, together with interest thereon from
the date upon which such charges were paid until the date of payment of
such interest. Such interest shall accrue from day to day at the rate
specified in Sub-Clause 14.4.
15. LIMITATION OF LIABILITY
15.1 Subject to Sub-Clauses 15.5, 2.5.4 and 5.5 and any liquidated damages
provisions of any supplemental Agreement and the payment adjustment
provisions of the relevant Ancillary Services Agreement and save where any
provision of this Agreement provides for an indemnity each Party agrees
and acknowledges that no Party (the "Party Liable") nor 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 hereof was
reasonably foreseeable as not unlikely to occur in the ordinary course of
events from such breach in respect of:
15.1.1. physical damage to the property of any of the other Parties, or
its or their respective officers, employees or agents; and/or
15.1.2. 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.
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15.2 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.
15.3 Subject to Sub-Clauses 15.5, 2.5.4 and 5.5 and any liquidated damages
provision of any Supplemental Agreement and save where any provision of
this Agreement provides for an indemnity, 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:
15.3.1. any loss of profit, loss of revenue, loss of use, loss of
contract or loss of goodwill; or
15.3.2. any indirect or consequential loss; or
15.3.3. loss resulting from the liability of any other Party to any other
person howsoever and whensoever arising save as provided in
Sub-Clauses 15.1.2 and 15.2.
15.4 The rights and remedies provided by this Agreement 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
Agreement, including without limitation 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),
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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.
15.5 Save as otherwise expressly provided in this Agreement, this Clause 15
insofar as it excludes or limits liability shall override any other
provision in this Agreement provided that nothing in this Clause 15 shall
exclude or restrict or otherwise prejudice or affect any of:
15.5.1. the rights, powers, duties and obligations of any Party which are
conferred or created by the Act, the Licence or the Regulations;
or
15.5.2. the rights, powers, duties and obligations of the Director or the
Secretary of State under the Act, any Licence or otherwise
howsoever.
15.6 Each of the Sub-Clauses of this Clause 15 shall:
15.6.1. be construed as a separate and severable contract term, and if
one or more of such Sub-Clauses is held to be invalid, unlawful
or otherwise unenforceable the other or others of such
Sub-Clauses shall remain in full force and effect and shall
continue to bind the Parties; and
15.6.2. survive termination of this Agreement.
15.7 Each Party acknowledges and agrees that each of the other Parties holds
the benefit of Sub-Clauses 15.1 and 15.2 and 15.3 above for itself and as
trustee and agent for its officers, employees and agents.
15.8 Each Party acknowledges and agrees that the provisions of this Clause 15
have been the subject of discussion and negotiation and are fair and
reasonable having regard to the circumstances as at the date hereof.
15.9 For the avoidance of doubt, nothing in this Clause 15 shall prevent or
restrict any Party enforcing any obligation (including suing for a debt)
owned to it under or pursuant to this Agreement.
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16. DURATION AND TERMINATION
16.1 This Agreement shall continue in relation to each User until terminated in
accordance with this Clause 16 or pursuant to Clause 17.
16.2 A User shall automatically cease to be a Party to this Agreement upon
termination of all Supplemental Agreements entered into by that User.
16.3 Termination or expiry of a particular Supplemental Agreement shall not of
itself, cause the relevant User to cease to be a Party to this Agreement.
16.4 Termination or a person ceasing to be a Party to this Agreement shall not
affect any rights or obligations of any Party which may have accrued to
the date of termination or expiry and shall not affect any continuing
obligations of any Party under this Agreement.
16.5 Following termination of this Agreement Clause 19 shall remain in full
force and effect.
17. EVENTS OF DEFAULT/DEENERGISATION
17.1 It shall be an event of default if:
(i) a User shall fail to pay (other than by inadvertent error in funds
transmission which is discovered by NGC, notified to that User and
corrected within 2 business Days thereafter) any amount properly due
or owing from that User to NGC pursuant to this Agreement and such
failure continues unremedied for 7 business Days after the due date
for payment; or
(ii) in respect of a User:
(a) an order of the High Court is made or in effective resolution
passed for its insolvent winding up or dissolution; or
(b) a receiver (which expression shall include an administrative
receiver within the meaning of Section 29 Insolvency Act 1986)
of
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the whole or any material part of its assets or undertaking is
appointed; or
(c) an administration order under Section 8 of the Insolvency Act
1986 is made or if a voluntary arrangement is proposed under
Section 1 of that Act; or
(d) a User 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 Director); or
(e) any of the events referred to in (a) to (d) above has occurred
and is continuing and a User is unable to pay its debts within
the meaning of Section 123(1) or (2) of the Insolvency Act
1986 save that such sections shall have effect as if
for (pound)750 there was inserted (pound)250,000 and a User
shall not be deemed to be unable to pay its debts if any
demand for payment is being contested in good faith by that
User with recourse to all appropriate measures and procedures)
and in any such case within 28 days of this appointment the
liquidator, receiver, administrative receiver, administrator,
nominee or other similar officer has not provided to NGC a guarantee
of future performance by the User of this Agreement and all
Supplemental Agreements to which the User is a party in such form
and amount as NGC may reasonably require.
17.2 Provided that at the time the failure specified in Sub-Clause 17.1(i) is
still continuing or the circumstances referred to in Sub-Clause 17.1(ii)
still exist NGC may having given 48 hours notice of an event of default
Deenergise all of the User's Equipment which is the subject of a
Supplemental Agreement with that User or may as appropriate instruct the
operator of a Distribution System to
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Deenergise such User's Equipment provided that prior to Deenergisation the
User may refer the matter to the Disputes Resolution Procedure.
17.3 If notice is given to a User in accordance with Clause 60.1.3 or 60.2.3 of
Part XVII of the Pooling and Settlement Agreement and that User shall fail
to take such action as is referred to in Clause 60.4.1 of Part XVII of the
Pooling and Settlement Agreement within 48 hours after the date of any
such notice referred to therein, NGC may Deenergise the User's Equipment.
17.4 If the event of default under Sub-clause 17.2 or 17.3 is still continuing
six months after the later of Deenergisation and the conclusion of the
Disputes Resolution Procedure in favour of NGC, NGC may Disconnect all
User's Equipment at each Connection Site where that User's Equipment is
Connected and:-
(i) NGC and that User shall remove any of the User's Equipment and NGC
Assets on the other Party's land within 6 months or such longer
period as may be agreed between the Parties concerned;
(ii) that the User shall pay to NGC forthwith all Termination Amounts;
and
(iii) that the User shall cease to be a Party to this Agreement.
18. TRANSFER AND SUBCONTRACTING
18.1 The rights, powers, duties and obligations of a User under this Agreement
or any Supplemental Agreement are personal to that User and that User may
not assign or transfer the benefit or burden of this Agreement save in the
following circumstances:-
(i) upon the disposal by that User of the whole of its business or
undertaking it shall have the right to transfer its rights and
obligations under this Agreement and all relevant Supplemental
Agreements to the purchaser thereof on condition that the purchaser
if not already a User enters into an Accession Agreement with NGC
under Clause 13 and confirms to NGC in
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writing either that all of the technical or related conditions,
data, information, operational issues or other matters specified in
or pursuant to the relevant Supplemental Agreement(s) or Grid code
by the User seeking the transfer will remain unchanged or, if any
such matters are to be changed, the purchaser first notifies NGC in
writing of such changes which NGC will consider promptly and in any
event within 28 days of receiving notice of such change and until
such consideration is complete the transfer shall not be effective.
If having considered such changes NGC in its reasonable opinion does
not consider the proposed changes reasonably satisfactory to NGC it
shall consult with the User seeking to undertake such transfer and
pending the outcome thereof to NGC's reasonable satisfaction the
transfer shall not be effective provided always that the User may
refer any dispute to the Disputes Resolution Procedure. Such
transfer shall become effective once the changes are reasonably
satisfactory to NGC or have been determined to be so under the
Disputes Resolution Procedure;
(ii) upon the disposal by a User of part of its business undertaking
comprising User's Equipment at one or more Connection Sites that
User shall have the right to transfer its rights and obligations
under all relevant Supplemental Agreements to the purchaser thereof
on condition that the purchaser (if not already a User) enters into
an Accession Agreement with NGC under Clause 13 and confirms to NGC
in writing either that all of the technical or related conditions,
data, information, operational issues or other matters specified in
or pursuant to the relevant Supplemental Agreement(s) or Grid Code
by the User seeking the transfer will remain unchanged or, if any
such matters are to be changed, the purchaser first notifies NGC in
writing of such changes which NGC will consider promptly and in any
27
<PAGE>
event within 28 days of receiving notice of such change and until
such consideration is complete the assignment shall not be
effective. If having considered such changes NGC in its reasonable
opinion does not consider the proposed changes reasonably
satisfactory to NGC it shall consult with the User seeking to
undertake such transfer and pending the outcome thereof to NGC's
reasonable satisfaction the transfer shall not be effective provided
always that the User may refer any dispute to the Disputes
Resolution Procedure. Such transfer shall become effective once the
changes are reasonably satisfactory to NGC or have been determined
to be so under the Disputes Resolution Procedure;
(iii) a User may assign or charge its benefit under this Agreement and any
Supplemental agreements in whole or in part by way of security.
18.2 Each Party shall have the right to sub-contract or delegate the
performance of any of its obligations or duties arising under this
Agreement or any Supplemental Agreement including activities envisaged by
the Grid Code without the prior consent of any other Party. The
sub-contracting by a Party of the performance of any obligations or duties
under this Agreement or any supplemental Agreement or of any activities
envisaged by the Grid Code shall not relieve that party from liability for
performance of such obligation or duty.
19. CONFIDENTIALITY
Confidentiality for NGC and its subsidiaries
19.1 NGC and its subsidiaries in each of their capacities in this Agreement
shall secure that Protected Information is not:
19.1.1. divulged by Business Personnel to any person unless that person
is an Authorised Recipient;
28
<PAGE>
19.1.2. 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
19.1.3. used by Business Personnel for the purchase of carrying any
activities other than Permitted Activities
except with the prior consent in writing of the Party to whose affairs
such Protected Information relates.
19.2 Nothing in Sub-Clause 19.1 shall apply:
19.2.1. to any Protected Information which, before it is furnished to
business Personnel is in the public domain; or
19.2.2. 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 Sub-Clause 19.1 does not apply; or
(b) is acquired by NGC or any subsidiary of NGC in
circumstances in which Sub-clause 10.1 does apply and
thereafter ceases to be subject to the restrictions imposed
by such Sub-Clause; or
29
<PAGE>
(c) enters the public domain,
and in any such case otherwise than as a result of a breach by
NGC or any subsidiary of NGC of its obligations in Sub-Clause
19.1, or a breach by the person's confidentiality obligation and
NGC or any of its subsidiaries is aware of such breach; or
19.2.3. 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
under the Act or any other requirement of a Competent
Authority; or
(b) in compliance with the conditions of the Transmission
License or any document referred to in the Transmission
License with which NGC or any subsidiary of NGC is required
by virtue of the Act or the NGC Transmission License 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
Supply Industry Arbitration Association or pursuant to any
judicial or other arbitral process or tribunal having
jurisdiction in relation to NGC or any of its Subsidiaries;
or
(f) in compliance with the requirements of Section 35 of the
Act and with the provisions of the Fuel Security Code; or
19.2.4. 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
30
<PAGE>
Security Code) with the Party to whose affairs such Protected
Information relates.
19.3 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:
19.3.1. the operation and planning of the NGC Transmission system;
19.3.2. the calculation of charges and preparation of offers of terms for
connection to or use of the NGC Transmission System;
19.3.3. the operation and planning of the Ancillary Services Business and
the calculation of charges therefor;
19.3.4. the operation of the Settlements Business;
19.3.5. 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 hereto agree to provide all information to NGC
and its subsidiaries for such purposes.
19.4 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:
19.4.1. 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:
31
<PAGE>
(a) authorized by license or exemption to generate, transmit or
supply electricity; or
(b) an electricity broker or is known to be engaged in the
writing of electricity purchase contracts (as defined in
the NGC Transmission License); or
(c) known to be retained as a consultant to any such person who
is referred to in (a) or (b) above; or
19.4.2. who is to be transferred to the Generation Business, 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.
19.5 Without prejudice to the other provisions of this Clause 19 NGC shall
procure that any additional copies made of the Protected Information
whether in hard copy or computerized form, will clearly identify the
Protected Information as protected.
19.6 NGC undertakes to use all reasonable endeavors to procure that no employee
is a Corporate Functions Person unless the same is necessary for the
proper performance of his duties.
19.7 Without prejudice to Clause 19.3, 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 License).
19.8 NGC shall secure that Protected Information which is subject to the
provisions of Clause 19.1 and which relates to the cost of Reactive Power
provided by each individual Generator is not divulged to any Business
Person engaged in the
32
<PAGE>
provision of static compensation for use by the Grid Operator (as defined
in the Pooling and Settlement Agreement).
19.9 Any information regarding, or data acquired by the Settlement System
Administrator or its agent from the Energy 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 only use the same for the purposes of the
operation of such Distribution System and the calculation of charges for
use of and connection to the Distribution System.
Confidentiality other than for NGC and its subsidiaries
19.10 Each User hereby undertakes with each other User and with NGC and its
subsidiaries that it shall preserve the confidentiality of, and not
directly or indirectly reveal, report, publish, disclose or transfer or
use for its own purposes Confidential Information except in the
circumstances set out in Sub-Clause 19.11 or to the extent otherwise
expressly permitted by this Agreement or with the prior consent in writing
of the Party to whose affairs such Confidential Information relates.
19.11 The circumstances referred to in Sub-clause 19.10 are:
19.11.1. where the Confidential Information, before it is furnished to the
User, is in the public domain; or
19.11.2. where the Confidential Information, after it is furnished to the
User:
(a) is acquired by the User in circumstances in which
Sub-Clause 19.10 does not apply; or
(b) is acquired by the User in circumstances in which
Sub-Clause 19.10 does apply and thereafter ceases to be
subject to the restrictions imposed by Sub-Clause 19.10; or
(c) enters the public domain,
33
<PAGE>
and in any such case otherwise than as a result of a breach by
the User of its obligations in Sub-clause 19.10 or a breach by
the person who is disclosed that Confidential Information of that
person's confidentiality obligation and the User is aware of such
breach; or
19.11.3. if the User is required or permitted to make disclosure of the
Confidential Information to any person:
(a) in compliance with the duties of the User under the Act or
any other requirement of a Competent Authority; or
(b) in compliance with the conditions of any License or any
document referred to in any License with which the User is
required 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
Supply Industry Arbitration Association or pursuant to any
judicial or other arbitral process or tribunal having
jurisdiction in relation to the Users; or
19.11.4. where Confidential Information is furnished by the User to the
employees, directors, agents, consultants and professional
advisors of the User, in each case on the basis set out in
Sub-clause 19.12.
19.12 With effect from the date of this Agreement the User shall adopt
procedures within its organization for ensuring the confidentiality of all
Confidential Information which it is obliged to preserve as confidential
under Clause 19.10. These procedures are:
19.12.1. the Confidential Information will be disseminated within the User
only on a "need to know" basis;
34
<PAGE>
19.12.2. employees, directors, agents, consultants and professional
advisers of the User in receipt of Confidential Information will
be made fully aware of the User's obligations of confidence in
relation thereto; and
19.12.3. any copies of the Confidential Information, whether in hard copy
or computerized form, will clearly identify the Confidential
Information as confidential.
19.13 For the avoidance of doubt, data and other information which any Party is
permitted or obliged to divulge or publish to any other Party pursuant to
this Agreement shall not necessarily be regarded as being in the public
domain by reason of being so divulged or published.
19.14 Notwithstanding any other provision of this Agreement, the provisions of
this Clause 19 shall continue to bind a person after its cessation as a
Party for whatever reason.
20. INTELLECTUAL PROPERTY
All Intellectual Property relating to the subject matter of this Agreement
conceived, originated, devised, developed or created by a Party, its
officers, employees, agents or consultants during the currency of this
Agreement or any Supplemental Agreement shall vest in such Party as sole
beneficial owner thereof save where the Parties agree in writing
otherwise.
21. FORCE MAJEURE
If any Party (the "Non-Performing Party") shall be unable to carry out any
of its obligations under this Agreement due to a circumstance of Force
Majeure this Master Agreement and the relevant Supplemental Agreement
shall remain in effect but:
(a) the Non-Performing Party's relevant obligations;
35
<PAGE>
(b) the obligations of each of the other Parties owed to the
Non-Performing Party under this Agreement and/or the relevant
Supplemental Agreement as the case may be; and
(c) any other obligations of such other Parties under this Agreement
owed between themselves 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 circumstance of 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 that arose before the Force Majeure
causing the suspension of performance are excused as a result of the
Force Majeure;
(iii) the Non-Performing Party gives the other Parties prompt notice
describing the circumstance of Force Majeure, including the nature
of the occurrence and its expected duration, and continues to
furnish regular reports with respect thereto during the period of
Force Majeure;
(iv) the Non-Performing Party uses all reasonable efforts to remedy its
inability to perform; and
(v) as soon as practicable after the event which constitutes Force
Majeure the Parties shall discuss how best to continue their
operations so far as possible in accordance with this Agreement, any
Supplemental Agreement and the Grid Code.
36
<PAGE>
22. WAIVER
No delay by or omission of any Party in exercising any right, power,
privilege or remedy under this Master Agreement or any Supplemental
Agreement or the Grid Code 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 future exercise thereof or the exercise of any other
right, power, privilege or remedy.
23. NOTICES
23.1 Save as otherwise expressly provided in this Agreement, any notice or
other communication to be given by one Party to another 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 of such other Party set out in Schedule 1 to this
Agreement for the purpose and marked for the attention of the company
secretary or to such other address, telex number 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 23 to the
Party giving the relevant notice or other communication to it.
23.2 Save as otherwise expressly provided in this Agreement, any notice or
other communication to be given by any Party to any other Party 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:
23.2.1. in the case of delivery by hand, when delivered; or
37
<PAGE>
23.2.2. in the case of first class prepaid post, on the second day
following the day of posting or (if sent airmail from overseas)
on the fifth day following the day of posting; or
23.2.3. in the case of telex, on the transmission of the automatic
answering-back of the address (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
23.2.4. 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.
24. COUNTERPARTS
This Agreement and any Supplemental 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.
25. VARIATIONS
25.1 No variations to this Master Agreement shall be effective unless made in
writing and signed by or on behalf of all the Parties. The Parties shall
effect any amendment required to be made to this Master Agreement by the
Director as a result of a change in the Transmission License or an order
or direction made pursuant to the Act or a License or as a result of
settling the terms of any Supplemental Agreement and each Party hereby
authorises and instructs NGC to make any such amendment on its behalf and
undertakes not to withdraw, qualify or revoke such authority or
instruction at any time.
38
<PAGE>
25.2 NGC and each User acknowledges that, because there has been insufficient
time to discuss and agree the details of the Appendices to each
Supplemental Agreement, those details may be inaccurate. Accordingly,
(a) each User and NGC undertake to discuss in good faith the correct
identification of the details of each part of Appendix F of each
Supplemental Agreement entered into between NGC and the User with a
view to amending the same as necessary to reflect the correct
position. To the extent that agreement on the correct position
cannot be reached within 12 months after the date of that
Supplemental Agreement the matter shall be referred to arbitration
for determination in accordance with Clause 26 of this Agreement and
such details shall be amended accordingly following such agreement
or determination (as the case may be); and
(b) in relation to Appendix A of each Supplemental Agreement, NGC
undertakes to establish a new asset register, specifying all Plant
and Apparatus owned by NGC which is necessary to connect each User's
Equipment to the NGC Transmission System at each Connection Site,
during the course of the Financial Year ending 31st March 1991 in
accordance with paragraph 2.2 of Appendix E to such Supplemental
Agreement. Such new asset register shall, provided that NGC has
complied with such paragraph 2.2, take effect from 1st April 1991.
Following the establishment of such new asset register, each such
Appendix A and any provisions of the relevant Supplemental Agreement
which refer to it shall, to the extent appropriate, be amended
accordingly.
26. DISPUTE RESOLUTION
26.1 Save where expressly stated in this Agreement to the contrary and subject
to any contrary provision of the Act, any License, or the Regulations, or
the rights,
39
<PAGE>
powers, duties and obligations of the Director or the Secretary of State
under the Act, any License or otherwise howsoever, any dispute or
difference of whatever nature howsoever arising under out of or in
connection with this Agreement between any one or more Parties hereto
shall be and is hereby referred to arbitration pursuant to the arbitration
rules of the Electricity Supply Industry Arbitration Association in force
from time to time.
26.2 Whatever the nationality, residence or domicile of any Party to this
Agreement 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.
26.3 Subject always to Sub-Clause 26.6 below, if any tariff customer (as
defined in Section 22(4) of the Electricity Act 1989) 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 to this Agreement (the "Defendant Party"), and the
Defendant Party, and the Defendant Party wishes to make a Third Party
Claim (as defined in Sub-Clause 26.5 below) against any other Party to
this Agreement ("the Other Party") which would but for this Sub-Clause
have been a dispute or difference referred to arbitration by virtue of
Sub-Clause 26.1 above 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
Party but also between either or both of them and any Other Party whether
by way of third party
40
<PAGE>
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.
26.4 Where a Defendant Party makes a Third Party Claim against any Other Party
and such Other Party wishes to make a Third Party Claim against a further
Party the provisions of Sub-Clause 26.3 above shall apply mutatis mutandis
as if such Party had been the Defendant Party and similarly in relation to
any such further Party.
26.5 For the purposes of this Clause 26 "Third Party Claim" shall mean:-
(a) any claim by a Defendant Party against any other Party (whether or
not already a party to the legal proceedings) for any contribution
or indemnity, or
(b) any claim by a Defendant Party against such an Other 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
(c) any requirement by a Defendant 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 Party but also as between either or both
of them and an Other Party (whether or not already a party to the
legal proceedings).
26.6 Sub-Clause 26.3 above shall apply only if at the time the legal
proceedings are commenced no arbitration has been commenced between the
Defendant Party and an Other 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.
41
<PAGE>
27. JURISDICTION
27.1 Subject and without prejudice to Clause 26 and to Sub-Clause 27.4 below,
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 this Agreement including the Grid Code and any
Supplemental Agreement 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 Agreement and any Supplemental Agreement 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 27 and any claim that any such
Proceedings have been brought in an inconvenient forum and further
irrevocably agrees that judgment in any Proceedings brought in the English
courts shall be conclusive and binding upon such Party and may enforced in
the courts of any other jurisdiction.
27.3 Each Party which is not incorporated in any part of England and Wales
agrees that if it does not have, or shall cease to have, a place of
business in England and Wales it will promptly appoint, and shall at all
times maintain, a person in England and Wales irrevocably to accept
service of process on its behalf in any Proceedings in England.
27.4 For the avoidance of doubt nothing contained in Sub-Clause 27.1 to 27.3
above 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.
28. GOVERNING LAW
This Agreement and each Supplemental Agreement shall be governed by and
construed in all respects in accordance with English law.
42
<PAGE>
29. SEVERANCE OF TERMS
If any provision of this Agreement or any Supplemental Agreement is or
becomes or is declared invalid, unenforceable or illegal by the courts of
any competent jurisdiction to which it is subject or by order of any other
Competent Authority such invalidity, unenforceability or illegality shall
not prejudice or affect the remaining provisions of this Agreement or any
Supplemental Agreement which shall continue in full force and effect
notwithstanding such invalidity, unenforceability or illegality.
30. LANGUAGE
Each notice, instrument, certificate or other document to be given by one
Party to another under this Agreement shall be in the English language.
IN WITNESS WHEREOF the hands of the duly authorized representatives of the
Parties the date first above written.
THE NATURAL GRID COMPANY PLC
By E. Chefneux
- - -------------------------------
NATIONAL POWER PLC
By A. Swanson
- - -------------------------------
POWERGEN PLC
By D. J. Jackson
- - -------------------------------
NUCLEAR ELECTRIC PLC
By R. Melville
- - -------------------------------
43
<PAGE>
THE NATIONAL GRID COMPANY PLC
(PUMPED STORAGE DIVISION)
By E. Chefneux
- - -------------------------------
BRITISH NUCLEAR FUELS PLC
By J. J. R. Rycroft
- - -------------------------------
UNITED KINGDOM ATOMIC ENERGY AUTHORITY
By R. Peckover
- - -------------------------------
CENTRAL POWER LTD
By R. D. Murray
- - -------------------------------
EASTERN ELECTRICITY PLC
By W. G. Watson
- - -------------------------------
EAST MIDLANDS ELECTRICITY PLC
By P. J. Champ
- - -------------------------------
LONDON ELECTRICITY PLC
By C. L. Meyers
- - -------------------------------
MANWEB PLC
By C. W. Leonard
- - -------------------------------
MIDLANDS ELECTRICITY PLC
By R. D. Murray
- - -------------------------------
44
<PAGE>
NORTHERN ELECTRIC PLC
By J. A. Warmsworth
- - -------------------------------
NORWEB PLC
By A. Crowder
- - -------------------------------
SEEBOARD PLC
By S. M. Wide
- - -------------------------------
SOUTHERN ELECTRIC PLC
By J. Hart
- - -------------------------------
SOUTH WALES ELECTRICITY PLC
By J. W. Evans
- - -------------------------------
SOUTH WESTERN ELECTRICITY PLC
By M. J. Carson
- - -------------------------------
YORKSHIRE ELECTRICITY GROUP PLC
By A. W. J. Coleman
- - -------------------------------
45
<PAGE>
SCHEDULE 1
NGC/USERS
NAME NOTICES BANK DETAILS
(and registered number) (address as registered
(and registered office) office unless otherwise
stated)
(telex number)
(fax number)
THE NATIONAL GRID COMPANY PLC TELEX: 25815
2366977 FAX: 01-620 8547
National Grid House
Sumner Street
London SEI 9JU
NATIONAL POWER PLC TELEX: 883141
2366963 FAX: 01-634 5811
Sudbury House
15 Newgate Street
London EC1A 7AU
POWERGEN PLC TELEX: 881 1400
2366970 FAX: 01-826 2890
53 New Broad Street
London EC2M 1JJ
NUCLEAR ELECTRIC PLC TELEX: 883141
2264251 FAX: 01-634 7282
Barnett Way Sudbury House
Barnwood 15 Newgate Street
Gloucester GL4 7RS London EC1A 7AU
THE NATIONAL GRID COMPANY PLC
(PUMPED STORAGE DIVISION)
(details as above)
BRITISH NUCLEAR FUELS PLC TELEX: 627581
1002607 FAX: 0925 822711
Warrington Road
Risley
Warrington
Cheshire WA3 6AS
<PAGE>
UNITED KINGDOM ATOMIC ENERGY TELEX: 22565
AUTHORITY FAX: 01 930 8403
11 Charles II Street, AEA Technology
London SW1Y 4QP Winfrith
Dorchester
Dorset DT2 8DH
CENTRAL POWER LIMITED TELEX: 338 092
2251099 FAX: 021 423 1907
Mucklow Hill
Halesowen
West Midlands B62 8BP
EASTERN ELECTRICITY PLC TELEX: 98123
2366906 FAX: 0473 601036
P O Box 40
Wherstead
Ipswich IP9 2AQ
EAST MIDLANDS ELECTRICITY PLC TELEX: 37424
2366923 FAX: 0602 209789
P O Box 4
North P D O
398 Coppice Road
Arnold
Nottingham NG5 7HX
LONDON ELECTRICITY PLC TELEX: 885342
2366852 FAX: 01-242 2815
Templar House
81-87 High Holborn
London WC1V 6NU
MANWEB PLC TELEX: 61277
2366937 FAX: 0244 377269
Sealand Road
Chester CH1 4LR
MIDLANDS ELECTRICITY PLC TELEX: 338092
2366928 FAX: 021 422331
Mucklow Hill
Halesowen
West Midlands B62 8BP
2
<PAGE>
NORTHERN ELECTRIC PLC TELEX: 53324
2366942 FAX: 091 235 2109
Carliol House
Newcastle-Upon-
Tyne NE99 1SE
NORWEB PLC TELEX: 6695971
2366949 FAX: 061 875 7360
Talbot Road
Manchester M16 0HQ
SEEBOARD PLC TELEX: 87230
2366867 FAX: 0273 21705
Grand Avenue
Hove
East Sussex BN3 2LS
SOUTHERN ELECTRIC PLC TELEX: 848282
2366879 FAX: 0628 87124
South Electricity House
Littlewick Green
Maidenhead
Berks. SL6 3QB
SOUTH WALES ELECTRICITY PLC TELEX: 498331
2366985 FAX: 0222 777759
St Mellons
Cardiff CF3 9XW
SOUTH WESTERN ELECTRICITY PLC TELEX:
2366894 FAX: 0454 616369
800 Park Avenue
Aztec West
Almondsbury
Avon BS12 4SE
YORKSHIRE ELECTRICITY TELEX: 55128
GROUP PLC FAX: 0532 892123
2366996
Scarcroft
Leeds LS14 3HS
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SCHEDULE 2
DEFINITIONS
"Accession Agreement" an agreement in or substantially in the form set
out in Schedule 3.
"the Act" the Electricity Act 1989.
"Active Power" the product of voltage and the in-phase component
of alternating current measured in units of watts
and standard multiples thereof i.e.
1000 watts = 1kW
1000 kW = 1MW
1000 MW = 1GW
1000 GW = 1TW.
"Affiliate" in relation to NGC means any holding company or
subsidiary of NGC or any subsidiary of a holding
company of NGC, in each case within the meaning of
Section 736, 736A and 736B of the Companies Act
1985 as substituted by Section 144 of the
Companies Act 1989 and if that section is not in
force at the date of this Agreement as if such
latter section were in force at such date.
"Agency Business" any business of NGC or any Affiliate or Related
Undertaking in the purchase or other acquisition
or sale or other disposal of electricity as agent
for any other Authorised Electricity Operator.
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"this Agreement" this Agreement including the Schedules and any
Supplemental Agreements and the Appendices thereto
as the same may be amended, extended,
supplemented, novated or modified in accordance
with the terms hereof from time to time provided
that each Supplemental Agreement shall constitute
an agreement separate from each other Supplemental
Agreement.
"Agreed Ancillary Services" Commercial Ancillary Services and Part 2 System
Ancillary Services.
"Ancillary Service" a System Ancillary Service and/or a Commercial
Ancillary Service as the case may be.
"Ancillary Services Business" the business of NGC or any Affiliate or Related
Undertaking as operator of NGC's Transmission
System in the acquisition and/or sale (other than
as part of the Generation Business) of Ancillary
Services.
"Annual Average Cold Spell a particular combination of weather elements which
(ACS) Conditions" gives rise to a level of peak Demand within an NGC
Financial Year which has a 50% chance of being
exceeded as a result of weather variation alone.
"Apparatus" all equipment in which electrical conductors are
used, supported or of which they may form a part.
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"Authorized Electricity any person (other than NGC in its capacity as
Operator" operator of the NGC Transmission System) who is
authorised to generate, transmit or supply
electricity and for the purposes of Condition 10A
to 10C inclusive of the Transmission Licence shall
include any person who has made application to be
so authorised which application has not been
refused and any person transferring electricity to
or from England and Wales across an interconnector
or who has made application for use of
interconnector which has not been refused.
"Authorised Recipient" in relation to any Protected Information, means
any Business Person who, before the Protected
Information had been divulged to him by NGC or any
Subsidiary of HGC, had been informed of the nature
and effect of Sub-Clause 19.1 of the Master
Agreement and who requires access to such
Protected Information for the proper performance
of his duties as a Business Person in the course
of Permitted Activities.
"Black Start Capability" as defined in the Grid Code.
"Business Day" any week-day other than a Saturday on which
banks are open for domestic business in the City
of London.
"Business Person" any person who is a Main Business Person or a
Corporate Functions Person and "Business
Personnel" shall be construed accordingly.
"Central Despatch" the process of Scheduling and issuing direct
instructions by NGC referred to in paragraph 1 of
Condition 7 of the Transmission Licence.
"Charging Rules" the provisions of Appendix E to the Supplemental
Agreements.
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"Commercial Ancillary Ancillary Services, other than System Ancillary
Services" Services, utilised by NGC in operating the Total
System if a User has agreed to provide them 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 (as defined in the Grid
Code) under any other agreement. A non-exhaustive
list of commercial Ancillary Services is set out
below:-
- Frequency Control by means of a Pumped
Storage Unit Spinning in Air
- Frequency Control by means of adjustment to a
Pumped Storage Unit Pumping Programme
- Frequency Control by means of Demand
reduction
- Reactive Power supplied by means of
synchronous or static compensators
- Hot Standby
In addition, there is also the Ancillary Service
of cancelled start which arises as part of the
ordinary operational instruction of Generating
Units and therefore needs to separate capability
description. Defined terms used in this definition
are defined in the Grid Code.
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"Commissioned" in respect of Plant and Apparatus commissioned
before the Transfer Date means Plant and Apparatus
recognised as having been commissioned according
to the commissioning procedures current at the
time of commissioning and in respect of Plant and
Apparatus commissioned after the Transfer Date
means Plant and/or Apparatus certified by the
Independent Engineer as having been commissioned
in accordance with the relevant Commissioning
Programme.
"Competent Authority" 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 Community.
"Confidential Information" all data and other information supplied to a User
by another Party under the provisions of this
Agreement.
"Connection Application" an application for a New Connection Site in the
form or substantially in the form set out in
Exhibit 7.
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"Connection Charges" charges made or levied or to be made or levied for
the carrying out (whether before or after the date
on which the NGC Transmission Licence comes into
force) of works and provision and installation of
electrical plant, electric lines and ancillary
meters in constructing entry and exit points on
NGC's Transmission System, together with charges
in respect of maintenance and repair of such items
in so far as not otherwise recoverable as Use of
System Charges, all as more fully described in the
Transmission Licence, whether or not such charges
are annualised.
"Connection Conditions" that portion of the Grid Code which is identified
or "CC" as the Connection Conditions.
"Connection Offer" an offer for a New Connection Site in the form or
substantially in the form set out in Exhibit 8
including any revision or extension of such offer.
"Connection Site" each location more particularly described in the
relevant Supplemental Agreement at which a User's
Equipment and the NGC Assets required to connect
that User to the NGC Transmission System are
situated. If two or more Users own or operate
Plant and Apparatus which is connected at any
particular location that location shall constitute
two (or the appropriate number of) Connection
Sites.
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"Connection Site Demand the capability of a Connection Site to take power
Capability" to the maximum level forecast by the User from
time to time and forming part of the Forecast Data
supplied to NGC pursuant to the Grid Code together
with such margin as NGC shall in its reasonable
opinion consider necessary having regard to NGC's
duties under its Transmission Licence.
"Control Telephony" as defined in the Grid Code.
"Corporate Functions Person" any person who is:-
(a) a director of NGC; or
(b) 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
(c) engaged as an agent of or adviser to or
performs work in relation to or services for the
Main Business.
"Customer" A person to whom electrical power is provided
(whether or not he is the provider of such
electrical power) other than power to meet Station
Demand of that person.
"Data Registration Code" the portion of the Grid Code which is identified
or "DRC" as the Data Registration Code.
"Decommission" cessation of use by a User of that User's
Equipment at any given Connection Site for a
continuous period exceeding 12 months pursuant to
the relevant Supplemental Agreement.
"Deenergisation" or the movement of any isolator, breaker or switch or
the removal
"Deenergise(d)" of any fuse whereby no Electricity can flow to or
from the relevant System through the User's
Equipment.
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"Demand" the demand of MW and MVA of electricity (i.e. both
Active Power and Reactive Power), unless otherwise
stated.
"Derogation" a direction issued by the Director relieving a
Party from the obligation under its Licence to
comply with such parts of the Grid Code or any
Distribution Code or in the case of NGC the
Transmission Licence as may be specified in such
direction and "Derogated" shall be construed
accordingly.
"Derogated Plant" shall mean Plant or Apparatus which is the subject
of a Derogation.
"Despatch" the issue by NGC of instructions for Generating
Plant to achieve specific Active Power and
Reactive Power Levels or target voltage levels
within Generation Scheduling and Despatch
Parameters and by stated times.
"Detailed Planning Data" detailed additional data which NGC requires under
the PC in support of Standard Planning Data.
"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 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" the Director General of Electricity Supply
appointed for the time being pursuant to Section 1
of the Act.
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"Disconnection" permanent physical disconnection of a User's
Equipment at any given Connection Site which
permits removal thereof from the Connection Site
or removal of all NGC's Assets therefrom (as the
case may be).
"Disputes Resolution arbitration pursuant to the arbitration rules of
Procedure" the Electricity Supply Industry Arbitration
Association in force from time to time.
"Distribution Code(s)" the Distribution Code(s) drawn up by
Public Electricity Suppliers pursuant to the terms
of their respective Licence(s) as from time to
time revised in accordance with those Licences.
"Distribution System" the system consisting (wholly or mainly) of
electric lines owned or operated by any Authorised
Electricity Operator and used for the distribution
of electricity from Grid Supply Points or
generation sets or other entry points to the point
of delivery to Customers or Authorised Electricity
Operators, and includes any Remote Transmission
Assets operated by such Authorised Electricity
Operator and any electrical plant and meters owned
or operated by the Authorised Electricity Operator
in connection with the distribution of
electricity, but shall not include any part of
NGC's Transmission System.
"Earthing" as defined in the Grid Code.
"the EdF Documents" as defined in the Pooling and Settlement
Agreement.
"Electricity" Active Energy and Reactive Energy (in each case as
defined in the Pooling and Settlement Agreement)
"Embedded" a direct connection to a Distribution System or
the System of any other User to which Customers
and/or Power Stations are connected.
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"Energisation" or the movement of any isolator, breaker or switch or
"Energise(d)" the insertion of any fuse so as to enable Energy
to flow from and to the relevant System through
the User's Equipment.
"Energy" the electrical energy produced, flowing or
supplied by an electric circuit during a time
interval, being the integral with respect to time
of the power, measured in units of watt-hours or
standard multiples thereof i.e.
1000 Wh = 1kWh
1000 kWh = 1MWh
1000 MWh = 1GWh
1000 GWh = 1TWh
"Energy Metering Equipment" has the meaning given to the phrase "Metering
Equipment" in the Pooling and Settlement
Agreement.
"Energy Metering System" has the meaning given to the phrase "Metering
System" in the Pooling and Settlement Agreement.
"Estimated Demand" the forecast Demand (Active Power) data
filed with NGC pursuant to paragraph 12 of the
Charging Rules.
"Executive Committee" the committee established pursuant to Clause 14.1
of the Pooling and Settlement Agreement.
"Financial Year" the period of 12 months ending on 31st March in
each calendar year.
"FMS Date" has the meaning given in the Pooling and
Settlement Agreement.
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"Force Majeure" 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 Agreement including act of God, strike,
lckout or other industrial disturbance, act of the
public eemy, war declared or undeclared, threat of
war, terroist 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,
falut or failure of Plant and Apparatus (which
could not have been prevnted by Good Industry
Practice), governmental restraing, Act of
Parliament, other legislation, bye law and
Directive (not being any order, regulation or
direction unde Section 32, 33, 34 and 35 of the
Act) provided that lack of funds shall not be
interpreted as a cause beyond the reasonable
control of that Party.
"Fuel Security Code" the document of that title designated as such by
the Secretary of State as from time to time
amended.
"Generation Business" the authorized business of NGC or any Affiliate or
Related Undertaking in the generation of
electricity or the provision of Ancillary
Services, in each case from pumped storage and
from the Kielder hydro-electric generating
station.
"Generation License" the license granted to a Generator pursuant to
Section 6(1)(a) of the Act.
"Generating Plant" a Power Station subject to Central Dispatch.
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"Generating Unit" unless otherwise provided in the Grid Code any
Apparatus which produces electricity.
"Generator" a person who generates electricity under license
or exemption under the Act.
"Good Industry Practice" 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 exected from a
skilled and experienced operator engaged in the
same type of undertaking under the same or similar
circumstances.
"Grid Code" the Grid Code drawn up pursuant to the
Transmission Licensee, as from time to time
revised in accordance with the Transmission
License.
"Grid Supply Point" a point of delivery from the NGC Transmission
System to a Distribution System or a Non-Embedded
Customer.
"Gross Asset Value" the value calculated by NGC in accordance with
recognised accounting principles and procedures as
published by NGC from time to time.
"High Voltage" a voltage exceeding 650 volts.
"Independent Generating a Power Station not subject to Central Dispatch.
Plant"
"Intellectual Property" patents, trade marks, service marks, rights in
designs, trade names, copyrights and topography
rights (whether or not any of the same are
registered and including applications for
registration of any of the same) and rights under
licenses and consents in relation to 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.
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"Interconnectors" the electric lines and electrical plant and meters
owned or operated by NGC solely for the transfer
of electricity to or from the NGC Transmission
System into or out of England and Wales.
"Interconnectors Business" the business of NGC or any Affiliate or Related
Undertaking in the operation of any
interconnector.
"Isolation" as defined in the Grid Code.
"License" any license granted pursuant to Section 6 of the
Act.
"License Standards" the standards to be met by NGC under Condition 12
of the Transmission License.
"Local Safety Instructions" as defined in the Grid Code.
"Main Business" any business of NGC or any of its Subsidiaries as
at the Transfer Date or which it is required to
carry on under the Transmission License, other
than the Generating Business.
"Main Business Person" any employee of NGC or any directo or employee of
its Subsidiaries who is engaged solely in the Main
Business and "Main Business Personnel" shall be
construed accordingly.
"Master Agreement" the Agreement to which this is Schedule 2,
excluding any Supplemental Agreements.
"Material Effect" an effect causing a Party to effect any works or
to alter the manner of operation of its Plant
and/or Apparatus at the Connection Site or the
site of connection which in either case involves
that Party in expenditure of more than
(pound)10,000.
"Maximum Export Capacity" the maximum amount of power to be passed into the
NGC Transmission System at the Connection Site as
notified by the User to NGC as part of the
Registered Data from time to time.
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"Minor Independent Any Independent Generating Plant with a Registered
Generating Plant" Capacity of less than 50 MW.
"Modification" any actual or proposed replacement, renovation,
modification, alteration, or construction by or on
behalf of a User or NGC to either that Party's
Plant or Apparatus or the manner of its operation
which has or may have a Material Effect on another
Party at a particular Connection Site.
"Modification Application" an application in the form or substantially in the
form set out in Exhibit 11.
"Modification Notification" a notification in theform or substantially in the
form set out in Exhibit 13.
"Modification Offer" an offer in the fom or substantially in the form
set out in Exhibit 12, including any revision or
extension of such offer.
"Natural Demand" the Demand (Active Power) which is necessary to
meet the needs of Customers excluding that Demand
(Active Power) met by Embedded Generating Units
which is to be paid for otherwise than pursuant to
the Pooling and Settlement Agreement.
"Net Asset Value" the Gross Asset Value of the NGC Asset in question
less depreciation over the Replacement Period
calculated in accordance with recognised
accounting principles and procedures.
"New Connection Site" a proposed Connection Site in relation to which
there is no Supplement Agreement in force between
the Parties.
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"NGC Assets" the Plant and Apparatus owned by NGC necessary to
connect the User's Equipment to the NGC
Transmission System at any particular Connection
Site in respect of which NGC charges Connection
Charges (if any) as listed or identified in
Appendix A to the Supplemental Agreement relating
to each such Connection Site.
"NGC Engineering Charges" Reasonable Charges for time spent by NGC engineers
and other staff in relation to NGC Transmission
System development and related services as
published from time to time by NGC.
"NGC Transmission System" the sysem consisting (wholly or mainly) of high
voltage electric lines owned or opeated 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 Pant and
Apparatus and meters owned or operated by NGC in
connection with the transmission of electricity
but does not include any Remote Transmission
Assets.
"Non-embedded Customer" a Customer except for a PES receiving electricity
direct from the NGC Transmission System
irrespective of from whom it is supplied.
"Operating Code" or "OC" the portion of the Grid Code which is identified
as the Operating Code.
"Operation Diagrams" as defined in the Grid Code.
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"Operational" in relation to a Connection Site means that the
same has been Commissioned (which for the
avoidance of doubt does not necessarily include
commissioning of Generating Units connected at the
Connection Site) and that the User can use such
User's Equipment to undertake those acts and
things capable of being undertaken by Pool
Members.
"Operational Effect" any effect on the operation of any System which
causes that System to operate (or be at a
materially increased risk of operating)
differently to the way in which it would have
normally operated in the absence of that effect.
"Operational Intertripping" the automatic tripping of circuit-breakers to
prevent abnormal system conditions occurring, such
as over voltage, overload, system instability etc.
after the tripping of other circuit breakers
following power system fault(s) which includes
System to Generating Plan and Sysem to Demand
intertripping schemes.
"Operational Metering meters, instrument transformers (both voltage and
Equipment" current), transducers, metering protection
equipment incuding alarms circuitry and their
associated outstations as may be necessary for the
purpose of CC.6.5.5 of the Grid Code and the
corresponding provision of the relevant
Distribution Code.
"Operator" has the meaning defined in the Pooling and
Settlement Agreement.
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"Part 1 System Ancillary Ancillary Services which are required for System
Services" reasons and which must be provided by Users in
accordance with the Connection Conditions. An
exhaustive list of Part 1 System Ancillary
Services is included in the Grid Code (in that
part of CC8.1 headed Part 1) namely:
- Reactive Power supplied otherwise than by
means of synchronous or statis compensators
- Frequency Control by means of Frequency
Sensitive Generation.
"Part 2 System Ancillary Ancillary Services which are requied for System
Services" reasons and which must be provided by a Unser if
the User has agreed to provide them under a
Supplemental Agreement. A non-exhaustive list of
Part 2 System Ancillary Services is included in
the Grid Code (in that part of CC8.1 headed Part
2) namely:-
- Frequency Control by means of Gas Turbine
Unit Fast Start.
- Frequency Control by means of Pumped Storage
Unit Fast Start.
- Black Start Capability.
"Party" each person for the time being and from time to
time party to the Master Agreement and any
successor(s) in title to, or permitted assign(s)
of, such person;
"Payment Date" a date for payment of NGC Connection Charges
and/or Use of System Charges, determined in
accordance with Sub-Clause 14.2 of the Master
Agreement.
"Permitted Activities" activities carried on for the purposes of the Main
Business.
"PES Supply Business Demand" the Demand (Active Power) of any PES which is
attributable to each Grid Supply Point.
"Planning Code" or PC that portion of the Grod Code which is identified
as the Planning Code.
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"Plant" fixed and moveable items used in the generation
and/or supply and/or transmission of electricity
other than Apparatus.
"Pool Member" any person who is admitted to membership in
accordance with the Pooling and Settlement
Agreement.
"Pooling and Settlement the agreement of that title for the time being
Agreement" approved (or to be approved) by the Secretary of
State or by the Director as from time to time
amended and, where the context so permits,
includes the agreement known as the Initial
Settlement Agreement of even date with the above
agreement, and made between the parties to the
above agreement as at such date.
"Power Station" An installation comprising one or more Generating
Units (even where sited separately) owned and/or
controlled by the same Generator, which may
reasonably be considered as being managed as one
Power Station.
"Protected Information" any information relating to the affairs of a Party
which is furnished to Business Personnel pursuant
to this Agreement or pursuant to a direction under
section 34 of the Act or pursuant to the
provisions of the Fuel Security Code 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.
"Public Electricity a holder of a Public Electricity Supply License.
Supplier" or "PES"
"Public Electricy Supply a license issued under Section 6(a)(c) of the Act.
License"
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"Reasonable Charges" reasonable cost reflective charges comparable to
charges for similar services obtainable in the
open market.
"Registered Capacity" the normal full load capacity of a Generating Unit
as declared by the Generator, less the MW cosumed
by the Generating Unit through the Generating
Unit's unit transformer when producing the same.
"Registered Data" those items of Standard Planning Data and Detailed
Planning Data which upon connection become fixed
(subject to any subsequent changes).
"Registrant" has the meaning define in the Pooling and
Settlement Agreement.
"Regulations" the Electricity Supply Regulations 1988 or any
amendment or reenactment thereof.
"Related Undertaking" in relation to NGC means any undertaking in which
NGC 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 and if that latter section is in force at the
date of this Agreement as if such latter section
were in force at such date.
"Remote Transmission Assets" any Plant and Apparatus or meters owned by NGC
which (a) are embedded in a Distribution System or
a User System and which are not directly connected
by Plant and/or Apparatus owned by NGC to a
sub-station owned by NGC and (b) are by agreement
between NGC and (b) are by agreement between NGC
and such PES or User under the direction and
control of such PES or User.
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"Replacement Period" in relation to an NGC Asset, the period commencing
on the date on which such NGC Asset is or was
originally Commissioned, after which it is assumed
for accounting purposes such NGC Asset will need
to be replaced, which shall be 40 years unless
otherwise agreed between the Parties to a
Supplemental Agreement and recorded in the
relevant Supplemental Agreement.
"Safety Coordinator(s)" a person or persons nominated by NGC and each User
to be responsible for the co-ordination of Safety
Precautions (as defined in the Grid Code) at each
Connection Point when work and/or testing is to be
carried out on a system which necessitates the
provision of Safety Precautions on HV Apparatus,
pursuant to OC8.
"Safety Rules" the rules of NGC or a User that seek to ensure
that persons working on Plant and/or Apparatus to
which the rules apply are safeguarged from hazards
arising from the System.
"Scheduling" the process of compiling and issuing a Generation
Schedule (as that expression is defined in the
Grid Code) as set out in SDC1.
"SDC or Scheduling and that portion of the Grid Code which specifies the
Despatch Code" Scheduling and Despatch process.
"Second Tier Supplier" a holder of a Second Tier Supply License.
or "STS"
"Second Tier Supply License" a licence granted under Section 6(2)(a) of the
Act.
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"Separate Business" each of the Transmission, Settlements, Generation,
Interconnectors and Ancillary Services Businesses
taken separately from one another and from any
other business of NGC, but so that where all or
any part of such business is carried out by an
Affiliate or Related Undertaking of NGC such part
of the business as is carried out by that
Affiliate or Related Undertaking shall be
consolidated with any other such business of NGC
(and of any other Affiliate or Ralted Underaking)
so as to form a single Separate Business.
"Settlements Business" means the business of NGC or any Affiliate or
Related Undertaking as settlement system
administrator under the Pooling and Settlement
Agreement.
"Site Common Drawings" as defined in the Grid Code
"Site Responsibility a schedule containing the information and prepared
Schedule" on the basis of the provisions set out in Appendix
1 of the CC.
"Small Independent any Independent Generating Plant with a Registered
Generating Plant" Capacity of 50 MW or more.
"Station Demand" in respect of any generating station and
Generator, means that consumption of electricity
(excluding any supply to any Customer of the
relevant Generator who is neither such Generator
nor a member of a qualifying group of which such
Generator is a part) from the NGC Transmission
System or a Distribution System at premises on the
same site as such generating station, with
premises being treated as on the same site as each
other if they are:
(i) the same premises;
(ii) immediately adjoining each other; or
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(iii) separated from each other only by
road, railway or watercourse or by
other premises (other than a
pipe-line, electric line or similar
structure) occupied by the consumer
in question or by any other person
who together with that consumer
forms a qualifying group; and for
the purpose of this definition
"generating station" and
"qualifying group" shall have the
meanings given those expressions
when used in the Electricy (Class
Exemptions from the Requirement for
a License) Order 1990.
"STS Demand" the Demand (Active Power) of any STS which is
atributable to each Grid Supply Point.
"Supplemental Agreement" has the meaning set out in Clause 2 of the Master
Agreement.
"Supplier" a Public Electricity Supplier or Second Tier
Supplier.
"System" any User System or the NGC Transmission System as
the case may be.
"Termination Amount" in relation to a Connection Site, the amount
calculated in accordance with paragrah 4 of the
Charging Rules.
"Total System" the NGC Transmission System and all User Systems
in England and Wales.
"Transfer Date" 2400 hours on 30th March 1990.
"Transfer Scheme" the transfer scheme made by Central Electricity
Generating Board established under Section 66 of
the Act or by the Secretary of State under Section
69 of the act.
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"Transmission Business" the authorised business of NGC or any Affiliate or
Related Undertaking in the planning, development,
construction and maintenance of the NGC
Transmission System (whether or not pursuant to
directions of the Secretary of State made under
Section 34 or 35 of the Act) and the operation of
such system for the transmission of electricity,
including any business in providing connections to
the NGC Transmission System but shall not include
(i) any other Separate Business or (ii) any other
business (not being a Separate Business) of NGC or
any Affiliate or Related Undertaking in the
provision of services to or on ehalf of any one or
more persons.
"Transmission License" the license granted to NGC under Section 6(1)(b)
of the Act.
"Undertaking" bears the meaning ascribed to that expression by
Section 259 of the Companies Act 1985 as
substituted by Section 22 of the Companies Act
1989 and if that latter section is not in force at
that date of this Agreement as if such latter
section were in force at such date.
"Use of System" use of NGC's Transmission System for the transport
of electricity by any Authorised Electricity
Operator.
"Use of System Application" an application for a Supplemental Agreement Type 5
or Type 6 in the form or substantially in the form
set out in Exhibit 9 or 10 as appropriate.
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"Use of System Charges" charges made or levied or to be made or levied by
NGC for the provision of services as part of the
Transmission Business to any Authorised
Electricity Operator as more fully described at
paragraph 2 of Condition 10 and paragraph 2 of
Schedule 3 to the Transmission License and in the
Supplemental Agreements but shall not include
Connection Charges.
"User's License" a User's license to carry on its business granted
pursuant to Section 6 of the Act.
"User's Equipment" the Plant and Apparatus owned by a User
(ascertained in the absence of agreement to the
contrary by reference to the rules set out in
Clause 6 of the Master Agreement) which either is
connected to the NGC Assets forming part of the
NGC Transmission System at any particular
Connection Site or which that User wishes so to
connect.
24
<PAGE>
"User System" 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 tha a PES) 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 PES) 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 operated by such User or other
person and any Plant and/or Apparatus and meters
owned or operated by such User or other person in
connection with the distribution of electricity
but does not include any part of the NGC
Transmission System.
25
<PAGE>
SCHEDULE 3
THIS ACCESSION AGREEMENT is made on [_______________] between:-
1. [_________], a company incorporated [with limited liability] under the laws
of [___________] [(registered number)] and having its [registered office]
at [___________] (the "New Party"); and
2. The National Grid Company PLC ("NGC") on its own behalf and on behalf of
all the other parties to the Master Agreement referred to below.
WHEREAS:-
By an agreement (the "Master Connection and Use of System Agreement") dated
[___________], 1990 made between the Parties named therein and NGC the
parties thereto agreed to give effect to and be bound by certain rules and
procedures for etablishing a contractual framework between the Parties
pursuant to which Supplemental Agreements will from time to time be made
for the connection of Plant and Apparatus to the NGC Transmission System,
the use by Parties of the MGC Transmission System and the payment of
charges to NGC.
IT IS HEREBY AGREED AS FOLLOWS:-
1. Unless the context otherwise requires, words and expressions defined in the
Master Agreement shall bear the same meanings respectively when used
herein.
2. NGC (acting on its own behalf and on behalf of each of the other Parties)
hereby admits the New Party as an additional Party under the Master
Agreement on the terms and conditions hereof.
3. The New Party hereby accepts its admission as a Party and undertakes with
NGC (acting on its own behalf and on behalf of each of the other Parties)
to perform and to be bound by the terms and conditions of the Master
Agreement as a Party as from the date hereof.
4. For all purposes in connection with the Master Agreement the New Party
shall as from the date hereof be treated as if it has been a signatory of
the Master Agreement, and as if this Agreement were part of the Master
Agreement, and the rights and obligations of the Party shall be contrued
accordingly.
5. This Agreement and the Master Agreement shall be read and construed as one
document and references in the Master Agreement to the Master Agreement
(howsoever expressed) whould be read and construed as references to the
Master Agreement and this Agreement.
<PAGE>
6. This Agreement shall be governed by and contrued in all respects in
accordance with English law and the provisions of Clause 27 of the Master
Agreement shall apply hereto mutatis mutandis.
2
<PAGE>
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first above written.
[New Party]
By:
Registered Number:
Registered Office:
Address for Notices (if different from Registered Office):
Telex No:
Attention:
Bank Details:
The National Grid Company PLC (for itself and on behalf of each of the Parties
to the Master Agreement).
By:
<PAGE>
SCHEDULE 4
THE TRANSMISSION USERS GROUP
CONSTITUTION AND RULES
<PAGE>
Dated: 31, March 1998
THE NATIONAL GRID COMPANY plc
- and -
OTHERS
-------------------------
AGREEMENT TO VARY
the Master Connection and
Use of System Agreement
--------------------------
<PAGE>
TABLE OF CONTENTS
-----------------
CLAUSE PAGE
- ------ ----
1. Interpretation 1
2. Amendments 2
3. Continuation of the Master Agreement 3
4. Miscellaneous 3
5. Entire Agreement 3
6 RTPA 3
SCHEDULES
- ---------
1 Users 5
2 Transmission Users Group 19
Appendix 1 - Form of Deed of Accession
Appendix 2 - Form of TUG Constitution and Rules
<PAGE>
TABLE OF CONTENTS
-----------------
PARAGRAPH PAGE
- --------- ----
1. Name of the Group .................................................1
2. Definitions and Interpretation ....................................1
3. Constitution ......................................................4
4. Objects and Powers................................................ 4
5. Membership........................................................ 5
6. Appointment of Representatives.................................... 6
7. Chairman.......................................................... 8
8. Secretary......................................................... 9
9. Alternates........................................................ 9
10. Vacation of Office................................................10
11. Meetings..........................................................11
12. Notice of Meetings................................................12
13. Proceedings at Meeting and Quorum.................................12
14. Representation, Voting and Resolutions............................14
15. Minutes...........................................................15
16. Sub Committees and Working Groups.................................15
17. Dispute Resolution................................................16
<PAGE>
Appendices
- ----------
1. List of first Chairman, Secretary and Representatives
of the Transmission Users Group...................................17
2. Part 1 - Industry Party Representatives Election
Procedure.........................................................19
Part 2 - Appointment of Consumer Party Representatives.....................24
3. Calculation of Industry Party Votes...............................26
4. Form of Consumer Party Representatives' Confidentiality
Letter of Undertaking.............................................28
<PAGE>
THIS AGREEMENT TO VARY is made on the 31 day of March 1998 BETWEEN:
(1) THE NATIONAL GRID COMPANY PLC a company registered in England with
number 2366977 and whose registered office is at National Grid House,
Kirby Corner Road, Coventry CV4 8JY ("NGC"); and
(2) THE PERSONS whose names, registered numbers and registered offices are
set out in Schedule 1 (each a "User").
WHEREAS:
(A) This Agreement is supplemental to and varies the Master Connection and
Use of System Agreement dated 30th March 1990 made between NGC and the
Users (the "Master Agreement"); and
(B) NGC and the Users have agreed to amend the Master Agreement on the
terms and subject to the conditions set out below.
IT IS HEREBY AGREED:
1 INTERPRETATION
1.1 Except where defined herein or where the context otherwise requires,
words and expressions defined in the Master Agreement shall have the
same respective meanings when used in this Agreement.
1.2 The table of contents and the headings to each of the Clauses are
inserted for convenience only and shall be ignored in construing or
interpreting this Agreement.
2 AMENDMENTS
2.1 The parties to this Agreement hereby agree that with effect from the
date of this Agreement the Master Agreement shall be amended:
2.1.1 by the insertion of the following new definition in
alphabetical order in Schedule 2 of the Master Agreement:
"TUG Party" means each person admitted in the capacity as
such and for the time being and from time to time
party to Schedule 4 only in accordance with the
provisions thereof, and shall include any
successor(s) in title to, or permitted assign(s)
of, such person:
2.1.2 by the deletion of the definition of "Party" and by
substitution with the following:
"Party" each person for the time being and from time to
time party to the Master Agreement other than TUG
Parties, and shall include any successor(s) in
title to, or permitted assign(s) of, such person:
2.1.3 by the deletion of the expression "Electricity Supply Industry
Arbitration Association" in Clauses 19.2.3(e), 19.11.3(e) and
26.1 of the Master Agreement and by substitution with the
expression "Electricity Arbitration Association":
2.1.4 by the addition of a new Schedule 4 in form set out in
Schedule 2.
3 CONTINUATION OF THE MASTER AGREEMENT
The Master Agreement shall remain in full force and effect and this
Agreement and the Master Agreement shall be treated as one document so
that, upon the Master Agreement being amended pursuant to Clause 2, all
references to the Master Agreement shall be treated as references to
that agreement as amended by this Agreement.
4 MISCELLANEOUS
The provisions of Clauses 22, 23, 24 and 26 to 30 inclusive of the
Master Agreement shall be deemed to be incorporated herein mutatis
mutandis.
5 ENTIRE AGREEMENT
5.1 Each party to this Agreement acknowledges that in entering into this
Agreement on the terms set out herein it is not relying upon the
representation, warranty, promise or assurance made or given by any
other party or any other person, whether or not in writing, at any time
prior to the execution of this Agreement which is not expressly set out
herein.
5.2 None of the parties to this Agreement shall have any right of action
against any other party arising out of or in connection with any
representation, warranty, promise or assurance referred to in Clause
5.1 (except in the case of fraud).
6 RTPA
Any restriction or information provision (each of those terms having
the same meaning in this Clause as in the Restrictive Trade Practices
Act 1976) contained in this Agreement or any provision contained in
this Agreement adding to or extending any restriction or information
provision contained in any agreement which is varied or amended by this
Agreement, shall not take effect or shall cease to have effect:
(a) if a copy of this Agreement is not provided to the Department
of Trade and Industry ("DTI") within twenty-eight days of the
date on which this Agreement is made, or
(b) if, within twenty-eight days of the provision of that copy to
the DTI, the DTI gives notices of objection to the party
providing it.
IN WITNESS whereof the hands of the duly authorized representatives of the
parties hereto the day and year first above written.
<PAGE>
SCHEDULE I
USERS
ABB Energy Development Company Limited
2688994
Carmelite
50 Victoria Embankment
Blackfriars
London EC4Y ODX
Accord Electric Limited
2869629
152 Grosvenor Road
London SW1V 3JL
AES Barry Limited
3135522
Burleigh House
17/19 Worple Way
Richmond
TW10 6AG
AES Tyneside Limited
3135543
Burleigh House
17/19 Worple Way
Richmond
TW10 6AG
AES Partington Limited
3210149
Burleigh House
17/19 Worple Way
Richmond
TW10 6AG
Amoco Power Resource (Europe) Ltd
3042173
Amoco House
West Gate
London
W5 1XL
Anglian Power Generators Limited
2488955
Wherstead Park
Wherstead
Ipswich
Suffolk IP9 2AQ
Barking Power Limited
2354681
Devonshire House
Mayfair Place
London WIX 5FH
British Gas Trading Ltd
3078711
Charter Court
50 Windsor Road
Slough
Berkshire SL1 2HA
BOC Limited
337663
Chertsey Road
Windlesham
Surry GU20 6HJ
BP Chemicals limited
194971
Britannic House
1 Finsbury Circus
London
EC2M 7BA
Canatxx Energy Ventures Limited
2673604
Hillhouse International
PO Box 4
Thornton Cleveleys
Lancs
FY5 4QD
Candecca Resources Limited
953066
Welton Gathering Centre
Barfield Lane
Wragby Road
Sudbrooke
Lincolnshire LN2 2QU
CeltPower Limited
2656561
Tomen House
13 Charles II Street
London SW1Y 4QT
Citigen (London) Limited
2427823
100 Thomas Valley Park Drive
Reading
Berkshire RG6 1PT
Corby Power Limited
2329494
Five Chancery Lane
Clifford's Inn
London EC4A 1BY
Coryton Energy Company
FC20597
20 St. James Street
4th Floor
London
SW1A 1EJ
Corttam Development Centre Limited
3273552
53 New Broad Street
London
EC2M 1JJ
Crosfield Limited
00048745
Bank Quay
Warrington
Chesire
WA5 1AB
Derwent CoGeneration Limited
2650621
Lansdowne House
Berkeley Square
London W1X 5DB
Eastern Electricity plc
2366906
Wherstead Park
Wherstead
Ipswich
Suffolk 1P9 2AQ
Eastern Merchant Generation Ltd
3116225
Wherstead Park
Wherstead
Ipswich
Suffolk 1P9 2AQ
East Midlands Electricity plc
2366923
PO Box 444
Woodyard Lane
Wollaton
Nottingham
Nottinghamshire NG8 1EZ
Electricity Direct (UK) Limited
3174056
78, High Street
Lewes
East Sussex
BN7 1XF
Elm Energy and Recycling (UK) Limited
2516685
Elm Energy House
Ettingshall Road
Wolverhampton
West Midlands WV2 2LA
Energy Supply Contracts Limited
172268
One Great Tower Street
London EC3R 5AH
Enfield Energy Centre Limited
2796628
Concorde House
Concorde Way
Preston Farm Industrial Estate
Stockton-on-Tees
Cleveland TS18 3RB
Enron Gas and Petrochemicals Trading Limited
3003823
4 Milbank
London
SW1P 3ET
Fellside Heat and Power Limited
2614535
Fellside Lodge
Seascale
Cumbria CA20 1PG
Fibrogen Limited
2547498
38 Clarendon Road
London W11 3AD
Fibropower Limited
2234141
38 Clarendon Road
London W11 3AD
First Hydro Company
2444277
Bala House
Lakeside Business Village
St. Davids Park
Deeside
Clwyd CH5 3XJ
Flotilla Power (UK) Limited
2880635
4 Millbank
London SW1P 3ET
Grovehurst Energy Limited
2197516
UK Paper House
Kemsley
Sittingbourne
Kent ME10 3ET
Humber Power Limited
2571241
South Humber Bank Power Station
South Marsh Road
Stallingborough
North East Lincolnshire
DN37 8BZ
Impkemix Energy Limited
2076043
The Heath
Runcorn
Cheshire WA7 4QF
Independent Energy UK Limited
3033406
30 Aylesbury Street
London EC1R 0ER
Indian Queens Power Limited
2928100
Burleigh House
17/19 Worple Way
Richmond TW10 6AG
International Generating Company Limited
3039100
Springside House
Tinwell
Stamford
PE9 3UQ
Joint European Torus (JET), Joint Undertaking (a Joint Undertaking within the
meaning of Chapter V of the Treaty establishing the European Atomic Energy
Committee)
Culham
Abingdon
Oxfordshire
OX14 3EA
Keadby Developments Limited
2691516
Keadby Power Station
PO Box 89
Keadby
Scunthorpe
North Lincolnshire DN17 3AZ
Keadby Generation Limited
2729513
Keadby Power Station
PO Box 89
Keadby
Scunthorpe
North Lincolnshire DN17 3AZ
Kent Power Limited
2723303
100 Thames Valley Park Drive
Reading
Berkshire RG6 1PT
Kingsnorth Power Limited
2675504
Chancery House
53/64 Chancery Lane
London WC2A 1QU
Lakeland Power Limited
2355290
Roosecote Power Station
Roosecote Marsh
Barrow in Furness
Cumbria LA13 0PQ
London Electricity plc
2366852
Templar House
81-87 High Holborn
London WC1V 6NU
Magnox Electric plc
2264251
Berkeley Centre
Berkeley
Gloucestershire GL13 9PB
Manweb plc
2366937
Manweb House
Chester Business Park
Wrexham Road
Chester CH4 9RF
Manweb Services Limited
2631510
Manweb House
Kingsfield Court
Chester Business Park
Chester
CH4 9RF
Medway Power Limited
2537903
Burleigh House
17/19 Worple Way
Richmond
Surrey TW10 6AG
Midlands Electricity plc
2366928
Mucklow Hill
Halesowen
West Midlands B62 8BP
Midlands Power (UK) Limited
2251099
Mucklow Hill
Halesowen
West Midlands B62 8BP
National Power PLC
2366963
Windmill Hill Business Park
Whitehill Way
Swindon
Wiltshire SN5 6PB
National Power (Cogeneration Trading) Limited
2745602
Windmill Hill Business Park
Whitehill Way
Swindon
Wiltshire SN5 6PB
Norsk Hydro (U.K.) Limited
841421
Bridge House
69 London Road
Twickenham
Middlesex TW1 1RH
Northern Electric plc
2366942
Carliol House
Market Street
Newcastle upon Tyne
Tyne & Wear NE1 6NE
NORWEB plc
2366949
PO Box 14
410 Birchwood Boulevard
Warrington
Cheshire WA3 7GA
Nuclear Electric Limited
3076445
Barnett Way
Barnwood
Gloucester GL4 3RS
Peterborough Power Limited
2353599
Wherstead Park
Wherstead
Ipswich
Suffolk 1P9 2AQ
PowerGen plc
2366970
53 New Broad Street
London EC2M 1JJ
Railtrack plc
2904587
Railtrack House
Euston Square
London
NW1 2EE
Regional Power Generators Limited
2352390
Wetherby Road
Scarcroft
Leeds LS14 3HS
Rocksavage Power Company, Ltd
FC18868
Maples & Calder, Ugland House
PO Box 309
George Town
Grand Cayman
Cayman Islands
British West Ind
SaltEnd Cogeneration Company
3274949
Britannic House
1 Finsbury Circus
London
EC2M 7BA
Savage Land Limited
3145444
20 St. James's Street
London
SW1A 1ES
Scottish Hydro-Electric plc
SC117119
10 Dunkeld Road
Perth PH1 5WA
Scottish Power plc
Sc117120
1 Atlantic Quay
Glasgow G2 8SP
Seabank Power Limited
2591188
Severn Road
Hallen
Bristol
BS10 7SP
SEEBOARD plc
2366867
Forest Gate
Brighton Road
Crawley
West Sussex RH11 9BH
Shell Power Limited
2559630
Shell Mex House
Strand
London WC2R 0DX
Siemens plc
727817
Siemens House
Oldbury
Bracknell
Berkshire
RG12 8FZ
Slough Energy Supplies Limited
2474514
234 Bath Road
Slough
Berkshire SL1 4EE
South East London Combined Heat and Power Limited
2489384
37-41 Old Queen Street
London
SW1H 9JA
Southern Electric plc
2366879
Southern Electric House
Westacott Way
Littlewick Green
Maidenhead
Berkshire SL6 3QB
Southern Energy (UK) Generation Limited
3321733
200 Aldersgate Street
London
EC1A 4JJ
South Wales Electricity plc
2366985
Newport Road
St. Mellons
Cardiff
South Glamorgan CF3 9XW
South Western Electricity plc
2366894
800 Park Avenue
Aztec West
Almondsbury
Bristol
BS12 4SE
Sutton Bridge Power
2586357
4, Millbank
London
SW1P 3ET
Teesside Power Limited
2464040
4 Millbank
London SW1P 3ET
The Renewable Energy Company Limited
3043412
Stroud House
Russell Street
Stroud
Gloucestershire
GL5 3AN
Tyne Property Development Limited
1194995
Siemens House
Oldbury
Bracknell
Berkshire
RG12 8FZ
UK Electric Power Limited
2844010
Williams Denton Jones
Glamaber
Bangor
Gwynedd
LL57 2DY
UML Limited
661900
Thermal Road
Bromborough
Wirral
Merseyside L62 4XG
Wainstones Power Limited
3462783
Pickfords Wharf
Clink Street
London SE1 9DF
Yorkshire Electricity Group plc
2366995
Wetherby Road
Scarcroft
Leeds LS14 3HS
<PAGE>
SCHEDULE 2
NEW SCHEDULE 4 TO THE MASTER AGREEMENT
TRANSMISSION USERS GROUP
1. INTRODUCTION
1.1 In this Schedule the following expressions shall bear the following
meanings:
"Industry Party" has the meaning given to that expression
in the TUG Constitution;
"New Tug Party" means any person who applies to be
admitted in the capacity of TUG Party and
who is an Industry Party and who is not
already a Party at
the time of application;
"Representative" has the meaning given to that expression
in the TUG Constitution;
"Transmission Users Group" or "TUG" means the group established pursuant to
paragraph 4 of this Schedule;
"TUG Confidential Information" means all data and other information
supplied to a Party or a TUG Party by
another Party or
TUG Party under the provisions of this
Schedule;
"TUG Deed of Accession" means a deed in, or
substantially in, the form set out in
Appendix 1 to this Schedule as amended
from time to time in accordance with the
terms of this Agreement; and
"TUG Constitution" means the constitution and
rules of the Transmission Users Group in
the form set out in Appendix 2 to this
Schedule as amended from time to time in
accordance with the terms of this
Agreement and the TUG Constitution.
1.2 Without prejudice to the terms of paragraph 8, the Parties and the TUG
Parties expressly agree and acknowledge that the expression "TUG Party"
shall not be capable of amendment without the consent of TUG Parties,
but that any word or expression which is not defined in paragraph 1.1
but which 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 2.3 and without prejudice to paragraph 2.5,
be capable of being amended without such consent notwithstanding that
it may also be used in this Schedule.
2. AMENDMENTS AND MODIFICATIONS
2.1 OBLIGATIONS
2.1.1 The Parties and TUG Parties expressly acknowledge and agree
that each TUG 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 paragraph 5) and not by any other provision of
this Agreement.
2.1.2 Each TUG Party agrees to comply with the provisions of this
Schedule (including those provisions of this Agreement
incorporated herein by reference in paragraph 5).
2.1.3 The Parties and TUG Parties further expressly agree that any
TUG Party shall be conferred only with such rights in respect
of this Agreement as are expressed to be conferred on it as
TUG Party pursuant to provisions which are expressly set out
in this Schedule (including those provisions incorporated
herein by reference in paragraph 5).
2.1.4 References in this paragraph 2.1 to this Schedule shall
include references to this Schedule as varied, modified or
supplemented from time to time in accordance with the terms of
this Agreement.
2.2 CONSENT
The consent or agreement of any TUG 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 paragraph 5 shall be deemed to be not set out in this
Schedule). Each TUG 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.
2.3 AUTHORISATION TO AMEND
Without prejudice to paragraphs 2.1, 2.2 and 2.5 each TUG Party hereby
unconditionally and irrevocably authorises and instructs NGC to sign on
its behalf amending agreements to this Agreement, to execute any
agreement which modifies, abrogates, amends or suspends any provision
of this Agreement in circumstances where such TUG 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
NGC shall notify each TUG Party forthwith of all amendments,
modifications, abrogations and suspensions which are made to this
Agreement for which the consent or agreement of such TUG Party is not
required.
2.5 APPEAL TO DIRECTOR
2.5.1 Where any TUG Party considers that any modification,
abrogation, amendment or suspension proposed to be made to any
provisions of the Agreement in respect of which the consent or
approval of a TUG Party is not required (pursuant to paragraph
2.2) would have a material adverse effect on its rights and
liabilities as a TUG Party 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 NGC, each Party and each TUG
party) who shall determine, taking into account the views of
Parties, whether such proposed change has a material adverse
effect on the basis of TUG Parties as a group. The Director
shall not have locus standi to consider perceived or actual
prejudice to an individual TUG Party. The Director's
determination shall be final and binding for all purposes.
2.5.2 For the purposes of enabling a TUG Party to appeal to the
Director in accordance with the terms of paragraph 2.5.1, NGC
shall give all TUG Parties and the Director notice of the
proposed change at least 14 clear days prior to the
implementation of the proposed change in accordance with the
provisions of this Agreement.
2.5.3 If an appeal to the Director against a proposed change is made
within 14 days after notification by NGC pursuant to paragraph
2.5.2, the change shall not come into effect until the
determination of the Director has been made in accordance with
the terms of paragraph 2.5.4 or paragraph 2.5.5 applies. If no
appeal is made within the said 14 days, the change shall come
into effect on the expiry of that period.
2.5.4 The Director shall within 28 days of receipt of a referral
pursuant to paragraph 2.5.1 or such longer period as shall be
agreed in writing by the Director and NGC, make the
determination referred to therein giving supporting reasons
and:
(a) 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 of the TUG Parties as a group, then the
proposed change shall come into effect in accordance
with the provisions of this Agreement;
(b) 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 of the TUG Parties as a group, the Director
shall require that the proposed change does not come
into effect and in which case such proposed change
shall not come into effect; and
(c) if the Director determines that a proposed change is
not to come into effect pursuant to paragraph
2.5.4(b), the Director shall have no authority to
require any modifications to the proposed change to
obviate or mitigate such material adverse effect or
to require any other change.
2.5.5 If the Director does not make his determination within 28 days
of receipt of a referral or, such other period as shall have
been agreed in writing by the Director and NGC, in accordance
with the terms of paragraph 2.5.4, the proposed change shall
come into effect in accordance with the provisions of this
Agreement.
3. TUG PARTIES
3.1 The Parties and TUG Parties shall admit a New TUG Party as an
additional party for the purposes of this Schedule only, on the terms
set out in paragraph 2. Such admission shall take effect by way of a
TUG Deed of Accession prepared by NGC at the expense and cost of the
New TUG Party and to be executed by NGC for itself and on behalf of all
other Parties and TUG Parties. Upon execution and delivery of the TUG
Deed of Accession by NGC and the New TUG Party and subject to the terms
and conditions of that TUG Deed of Accession, the New TUG Party shall,
for the purposes of this Schedule only, on the terms set out in
paragraph 2, become a TUG Party.
3.2 Each Party and each TUG Party hereby authorises and instructs NGC to
execute any such TUG Deed of Accession on its behalf and undertakes not
to withdraw, qualify or revoke any such authority or instruction at any
time.
3.3 NGC shall promptly notify all Parties and all TUG Parties in writing
that the New TUG party has become a TUG Party.
3.4 In addition to the provisions of paragraph 6, a TUG Party shall cease
to be a TUG Party when it accedes to this Agreement as a party.
4. ESTABLISHMENT OF THE TRANSMISSION USERS GROUP
4.1 Each Party and each TUG party hereby agrees to the establishment of the
Transmission Users Group upon the terms and subject to the conditions
of this Agreement and the TUG Constitution and agrees to comply with
the provisions of the TUG Constitution.
5. INCORPORATION BY REFERENCE
5.1 The provisions of Clauses 1, 15, 20 to 24 inclusive and 26 to 30
inclusive of this Agreement shall be deemed to be incorporated into
this Schedule 4 mutatis mutandis as if each reference therein to the
word "Party" were a reference to the words "Party and TUG Party" and
each reference therein to the word "Parties" were to the words "Parties
and TUG Parties".
5.2 For the avoidance of doubt, the provisions of Clauses 2 to 14
inclusive, 16 to 19 inclusive and 25 shall not be regarded as
incorporated into this Schedule and shall not apply to this Schedule.
6. DURATION AND TERMINATION
6.1 A TUG Party shall automatically cease to be a TUG Party upon ceasing to
be an Industry Party.
6.2 A Party (other than NGC) which is not an Industry Party shall not be
bound by this Schedule and shall have no rights or obligations in
relation to this Schedule. A Party which ceases to be an Industry Party
shall automatically cease to be bound by this Schedule and shall have
no rights or obligations in relation this Schedule.
6.3 A person ceasing to be a TUG Party (including under paragraph 3.4)
shall not affect any rights or obligations of such TUG Party which may
have accrued to the date of termination or expiry and shall not affect
any continuing obligations of any TUG Party under this Agreement.
6.4 A Party ceasing to be bound by the provisions of this Schedule in
accordance with paragraph 6.2 shall not affect any rights or
obligations of such Party which may have accrued to the date on which
it ceased to be an Industry Party and shall not affect any continuing
obligations of any Party under this Agreement.
6.5 Following termination of this Agreement paragraph 7 shall remain in
full force and effect.
7. CONFIDENTIALITY
7.1 Each Party and each TUG Party (each an "Obligor") hereby undertakes
with each other Party and each other TUG Party that it shall preserve
the confidentiality of, and not directly or indirectly reveal, report,
publish, disclose, transfer or use for its own purposes, TUG
Confidential Information except:
7.1.1 in the circumstances set out in paragraph 7.2; or
7.1.2 to the extent otherwise expressly permitted by this Schedule;
or
7.1.3 with the prior consent in writing of the other Parties and TUG
Parties to whose affairs such TUG Confidential Information
relates.
7.2 The circumstances referred to in paragraph 7.1 are:
7.2.1 where the TUG Confidential Information is in the public domain
before it is furnished to the Obligor; or
7.2.2 where the TUG Confidential Information after it is furnished
to Obligor:
(a) is acquired by the Obligor in circumstances to which
this paragraph 7 does not apply;
(b) is acquired by the Obligor in circumstances to which
this paragraph 7 does apply but then ceases to be
subject to the restrictions imposed by this paragraph
7; or
(c) enters the public domain.
and in any case otherwise than as a result of (i) a breach by
the Obligor of its obligations in this paragraph 7 or (ii) a
breach by the person who disclosed that TUG Confidential
Information of that person's confidentiality obligation and
the Obligor is aware of such breach; or
7.2.3 if the Obligor is required or permitted to make disclosure of
the TUG Confidential Information to any person:
(a) in compliance with the Obligor under the Act or any
other requirements of a Competent Authority; or
(b) in compliance with the conditions of any License or
any document referred to in any License with which
the Obligor is required to comply; or
(c) in compliance with any other requirement or law; or
(d) in response to a requirement of any stock exchange or
regulatory authority or the Panel or 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 Obligor; or
(f) in compliance with the requirements of Section 35 of
the Act and with the provisions of the Fuel Security
Code; or
7.2.4 if the Obligor makes disclosure of the TUG Confidential
Information to its employees, directors, agents, consultants
and professional advisers in each case on the basis set out in
paragraph 7.3; or
7.2.5 if the Obligor makes disclosure of the TUG Confidential
Information in circumstances where it is expressly permitted
or required to disclose that information under the terms of
any agreement or arrangement (including this Agreement) with
the party to whose affairs such TUG Confidential Information
relates.
7.3 The Obligor shall adopt procedures within its organisation (applicable
to (without limitation) its employees and directors) to ensuring the
confidentiality of TUG Confidential Information which it is obliged to
preserve as confidential under paragraph 7.1. These procedures shall
include, but shall not necessarily be limited to:
7.3.1 TUG Confidential Information will be disseminated within the
Obligor only on a "need to know" basis;
7.3.2 agents, consultants and professional advisers of the Obligor
in receipt of TUG Confidential Information will be made fully
aware of the Obligor's obligations of confidence in relation
thereto and enter into similar confidentiality undertakings as
are given by the Obligor under this paragraph 7; and
7.3.3 any copies of the TUG Confidential Information whether in hard
copy or computerized form will clearly identify the TUG
Confidential Information as confidential.
7.4 The provisions of this paragraph 7 shall continue to bind a person
after its cessation as a Party or a TUG Party (as the case may be) for
whatever reason.
8. VARIATIONS
8.1 Subject to the terms of paragraphs 8.2 and 8.3, no variations to this
Schedule (including, without limitation, this paragraph 8) shall be
effective unless made in writing and signed by and on behalf of all
Parties and all TUG Parties. The Parties and the TUG Parties shall
effect any amendment required to be made to this Schedule by the
Director as a result of a change in the Transmission License or any
order or direction made pursuant to the Act or a License and each Party
and each TUG Party hereby authorises and instructs NGC to make any such
amendment on its behalf and undertakes to withdraw, qualify or revoke
such authority or instruction at any time.
8.2 Subject to the terms of paragraph 8.4, all variations to the TUG
Constitution shall be made in accordance with the terms of paragraph
14.8 of the TUG Constitution or any other relevant provision of the TUG
Constitution from time to time providing for amendments of the TUG
Constitution. Each Party and each TUG Party hereby authorises and
instructs NGC to make and to sign any amendment on its behalf which are
approved pursuant to the terms of the TUG Constitution and undertakes
not to withdraw, qualify or revoke such authority or instruction at any
time.
8.3 Notwithstanding the terms of paragraph 1.2, the meanings of the
expressions "Industry Party" and "Representative" which are primarily
defined in the TUG Constitution shall only be amended in accordance
with the provisions of the TUG Constitution.
8.4 In the event of any inconsistency between the provisions of the TUG
Constitution and the Agreement, the provisions of the Agreement shall
prevail.
9. RATIFICATION
Each of the Parties and the TUG parties hereby ratifies the appointment
of those individuals listed in Appendix 1 of the TUG Constitution (in
its form when first brought into effect) as the first officers and
Representatives of the Transmission Users Group and expressly
acknowledge and agree that those individuals are Representatives and
officers of the Transmission Users Group duly appointed in accordance
with the terms of the TUG Constitution.
10. INDEMNITIES
10.1 Subject to the terms of paragraph 10.2 and 10.3, each Party and each
TUG Party (in their respective capacities as Industry Parties)
expressly acknowledges and agrees that it shall indemnify and keep
indemnified the Representative by whom it is represented as provided in
paragraph 6.1 of the TUG Constitution (and, if more than one, as
between the relevant Parties and TUG Parties rateably in proportion to
their weighted voting rights as provided in paragraph 14.6 of the TUG
Constitution) from and against any and all costs (including legal
costs), charges, expenses, damages, or other liabilities properly
incurred or suffered by the Representative in relation to the
Transmission Users Group or his office as a Representative or the due
exercise by him of his powers, duties and responsibilities as a
Representative under this Agreement and the TUG Constitution 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, duty or trust by such
a Representative.
10.2 Where a Representative represents more than one Industry Party, each
Party and each TUG Party (in their respective capacities as Industry
Parties) who is represented by such Representative agrees to indemnify
such Representative on a joint and several basis in accordance with the
terms of paragraph 10.1.
10.3 Each Party and each TUG Party shall upon the request of any
Representative by whom the Party or TUG Party is represented, provide
to such Representative a written deed of indemnity reflecting the terms
of this paragraph 10.
<PAGE>
APPENDIX 1
FORM OF DEED OF ACCESSION
THIS DEED OF ACCESSION 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 TUG Party"); and
(2) The National Grid Company plc ("NGC") on behalf of all the parties to
the Master Agreement referred to below.
WHEREAS:
(A) By an agreement dated 30th March, 1990 (the "Master Agreement") made
between The National Grid Company plc and the Users (as named therein)
(as amended, varied, supplemented and modified) the parties thereto
agreed to establish a contractual framework between NGC and the Users
pursuant to which supplemental agreements would be entered into
providing for (inter alia) connection to NGC's Transmission System and
the payment of certain charges.
(B) By paragraph 3 of Schedule 4 to the Master 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 4 thereto in
the capacity of TUG Party; and
(C) The New TUG Party is not a Party or a TUG Party and has requested that
it be admitted as a TUG Party pursuant to paragraph 3 of Schedule 4 to
the Master Agreement and each of the Parties and TUG 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 Master Agreement used for the purposes of Schedule 4 to the Master
Agreement shall bear the same meanings respectively when used herein.
2. NGC (acting on behalf of each of the Parties and TUG Parties) hereby
admits the New TUG Party as an additional TUG Party under Schedule 4 to
the Master Agreement on the terms and conditions hereof and with effect
from [insert effective date of admission].
3. The New TUG Party hereby accepts its admission as a TUG Party and
undertakes with NGC (acting on behalf of each of the Parties and TUG
Parties) to perform and to be bound by the terms and conditions of
Schedule 4 to the Master Agreement as a TUG Party as from the [insert
effective date of admission].
4. For all purposes in connection with the Master Agreement the New TUG
Party shall as from the [insert effective date of admission] be treated
including for the purposes of paragraph 2 of Schedule 4 to the Master
Agreement as if it had been a signatory of the Master Agreement as TUG
Party and as if this Agreement were part of the Master Agreement, and
the rights and obligations of the Parties and TUG Parties shall be
construed accordingly.
5. The New TUG Party, the Parties and the TUG Parties expressly
acknowledge and confirm that, pursuant to paragraph 2.1 of Schedule 4
to the Master Agreement with effect from [insert effective date of
admission] the New TUG Party shall only be bound by, and conferred
rights in accordance with, Schedule 4 to the Master Agreement in the
sole capacity of TUG Party.
6. The New TUG Party expressly consents to be bound by the provisions of
paragraphs 2.2 and 2.3 of Schedule 4 to the Master Agreement.
7. This Deed and the Master Agreement shall be read and construed as one
document and references in the Master Agreement to the Master Agreement
(howsoever expressed) shall be read and construed as references to the
Master Agreement and this Deed.
8. This Deed shall be governed by and construed in all respects in
accordance with English law and the provisions of Clauses 27 and 28 of
the Master Agreement as incorporated into Schedule 4 thereto by
paragraph 5 thereof shall apply hereto mutatis mutandis.
<PAGE>
IN WITNESS whereof this document has been duly executed and delivered as deed
the day and year first above written.
EXECUTED as a DEED by
[NEW TUG PARTY]
___________________________
Director
___________________________
Director/Secretary
Notice details (Clause 23 of the Master Agreement as incorporated into Schedule
- --------------
4 thereto by paragraph 5 thereof).
Address:
Telex number:
Facsimile number:
Attention:
EXECUTED as a DEED by
THE NATIONAL GRID COMPANY PLC for and on behalf of each of the Parties
(including TUG Parties) to the Master Agreement
___________________________
Director
___________________________
Director/Secretary
<PAGE>
APPENDIX 2
FORM OF TUG CONSTITUTION AND RULES
<PAGE>
THE TRANSMISSION USERS GROUP
CONSTITUTION AND RULES
1. NAME OF THE GROUP
The Group shall be called the "Transmission Users Group."
2. DEFINITIONS AND INTERPRETATION
2.1 The following words and expressions shall have the following meanings
in this Constitution and Rules:
"Ancillary Service" has the meaning given to that phrase in
the Grid Code;
"Chairman" means the person appointed to be Chairman
from time to time pursuant to paragraph
7.1 the Vice Chairman when acting as
Chairman, and a Representative appointed
to be Chairman of a Meeting of the Group
pursuant to paragraph 7.2;
"Constitution" means the constitution and rules of the
Group as set out herein, as may be
amended from time to time in accordance
with the terms of the Master Agreement;
"Consumer Party" means any body which, from time to
time is included on the list drawn up by
the Chairman pursuant to Part 2 of
Appendix 2;
"Consumer Party Representative" means a representative appointed in
accordance with paragraph 6.3 and who has
entered into a Letter of Undertaking;
"Domestic Consumer" means a customer supplied or to be
supplied at premises used by him wholly or
mainly for domestic purposes;
"Externally Interconnected Party" has the meaning given to that phrase in
the Grid Code;
"External Pool Members" has the meaning given to that phrase in
the Grid Code;
"Generator" has the meaning given to that phrase in
the Grid Code;
"Grid Code Review Panel" has the meaning given to that phrase in
the Grid Code;
"Group" means the Transmission Users Group;
"Industry Party" means each person who is one or more of
the following:
(a) Generator;
(b) Public Electricity Supplier;
(c) Second Tier Supplier;
(d) Non Embedded Customer;
(e) Externally Interconnected Party;
(f) External Pool Member
(g) provider of Ancillary Services not
otherwise included in the above list;
and who:
has had votes allocated to it on 1st April
of the applicable TUG Year as a result of
the vote allocation procedure carried out
in accordance with paragraph 6 of the
Constitution;
continues to be within one or more of the
categories within the list in (a) to (g)
above during the applicable TUG Year; and
has agreed to be bound by the provisions
relating to the Group contained in
Schedule 4 of the Master Agreement or when
admitted as a Party or TUG Party will
become bound by the provisions relating to
the Group contained in Schedule 4 of the
Master Agreement without having to satisfy
any further conditions;
"Industry Party Group" means in relation to any Industry Party
that Industry Party 2nd any affiliate (as
defined in the Pooling 2nd Settlement
Agreement) and related undertaking (as
defined in the Pooling 2nd Settlement
Agreement) of that Industry Party which is
itself an Industry Party;
"Industry Party Representative" means a representative appointed in
accordance with paragraph 6.1;
"Interested Party" means both Consumer Parties and Industry
Parties;
"Interested Parties' Meeting" means the annual meeting referred to in
paragraph 11.3 to which Interested Parties
NGC and Non-Voting Representatives may
attend;
"Letter of Undertaking" means a letter of undertaking to be signed
by each Consumer Representative in the
form set out in Appendix 4;
"Master Agreement" means the Master Connection and Use of
System Agreement dated 30 March 1990 as
amended from time to time;
"NGC Representative" means a representative appointed in
accordance with paragraph 6.4;
"Nomination Form" means the form of that name referred to in
paragraph 4 of Part 1 of Appendix 2;
"Non-Embedded Customer" has the meaning given to that phrase in
the Grid Code;
"Non-Voting Representative" means a representative referred to in
paragraph 5.1.3;
"Representative" means either an Industry Party
Representative, a Consumer Party
Representative, the NGC Representative or
a Non-Voting Representative, or all or
some as the context requires;
"Second Tier Suppliers" has the meaning given to that phrase in
the Grid Code;
"Secretary" means the person duly appointed from time
to time pursuant to paragraph 8;
"TUG Issues" means the objects of the Group as set out
in paragraph 4;
"TUG Year" means a year beginning on 1 April each
year;
"Vice Chairman" means the person appointed to be Vice
Chairman from time to time pursuant to
paragraph 7.3;
"Voting Paper" means the paper of that name referred to
in paragraph 8 of Part 1 of Appendix 2;
and
"Voting Representative" means a representative referred to in
paragraph 5.1.2.
2.2 Except as otherwise provided herein and unless the context otherwise
admits, words and expressions used herein shall have the same meaning
as defined in the Pooling and Settlement Agreement or the Master
Agreement. In the event of conflict the definition used in the Master
Agreement will prevail.
2.3 Words importing the singular only also include the plural and vice
versa where the context requires. Words importing the masculine only
also include the feminine.
2.4 Headings and titles shall not be taken into consideration in the
interpretation or construction of the words and expressions used
herein.
2.5 Unless the context otherwise requires, references in this Constitution
to a particular paragraph or Appendix shall be a reference to that
paragraph or Appendix in this Constitution.
3. CONSTITUTION
The Group is a standing body established pursuant to the Master
Agreement to deal with TUG Issues.
4. OBJECTS AND POWERS
4.1 The object of the Group shall be to meet to consider and/or discuss
electricity transmission related issues.
4.2 The Group shall also have the following powers:
4.2.1 to consider the adoption of issues which other bodies
(including the Executive Committee (PEC) and the Grid Code
Review Panel) may offer to it, or agree to pass to it, and the
mechanics of such adoption;
4.2.2 to amend the Constitution of the Group from time to time; and
4.2.3 to consider whether the Group should request other bodies to
adopt TUG Issues which it would like to refer to such other
bodies.
5. MEMBERSHIP
5.1 The Group shall consist of:
5.1.1 Officers
(a) a Chairman; and
(b) a Secretary.
5.1.2 Voting Representatives
(a) not more than 15 Industry Party Representatives
appointed in accordance with paragraph 6.1; and
(b) not more than 3 Consumer Party Representatives
appointed in accordance with paragraph 6.3.
5.1.3 Non-Voting Representatives
(a) 1 observer nominated by the Executive Committee (PEC);
(b) 1 observer nominated by the Director; and
(c) 1 observer nominated by the Grid Code Review Panel.
5.1.4 NGC Representative
Not more than 1 NGC Representative.
5.2 Experts may also attend meetings of the Group in accordance with the
provisions of paragraph 14.3.
5.3 A list of the first Representatives, the Chairman and the Secretary of
the Group is set out in Appendix 1. A revised copy of Appendix 1 will
be circulated to Representatives and to the Chairman as soon as
reasonably practicable following any change, and the revised Appendix 1
will replace the then existing Appendix 1. Any revision of Appendix 1
to reflect changes to Representatives or the Chairman will be deemed
not to be an amendment to the Constitution pursuant to paragraph 14.
5.4 No person other than an individual shall be appointed a Representative
(or alternate) or the Chairman. An individual shall not be appointed as
a Voting Representative if he is an employee or officer of or a person
acting exclusively for a company or other entity (whether or not a
corporate body) which already has a Voting Representative on the Group
or if his appointment as a Voting Representative would result in the
Group consisting of two or more Voting Representatives from the same
Industry Party Group.
6. Appointment of Representation
6.1 Industry Party Representatives
Industry Party Representatives will be elected in accordance with the
election procedure set out in Part 1 of Appendix 2, which election
shall be conducted by NGC. The Group will review and amend as necessary
from time to time the election procedure set out in Part 1 of Appendix
2 in relation to Industry Party Representatives and will in any event
carry out such a review not earlier than 12 months but no later than 24
months of the Group being established.
6.2 Representative's Constituents
6.2.1 An Industry Party Representative shall:
6.2.1.1 in the case of Industry Party
Representatives who have been elected
pursuant to Part 1 of Appendix 2, represent
the interests of:
(a) all the Industry Parties on whose
Voting Paper he was the highest
placed preference amongst those
elected in accordance with paragraph
8 of Part 1 of Appendix 2; and
(b) in the case of those Industry
Parties who did not express a
preference for any elected
Representative, those who have
subsequently selected such
Representative as their choice
pursuant to paragraph 6.2.2.
6.2.1.2 in the case of Industry Party
Representatives who (as a result of there
being 15 or fewer than 15 nominations
received) have been appointed pursuant to
paragraph 7.1 of Part 1 of Appendix 2,
represent the interests of:
(a) all the Industry Parties who
nominated him in accordance with
paragraph 6 of Part 1 of Appendix 2;
and
(b) in the case of those Industry
Parties who did not make a
nomination, those who have
subsequently selected such
Representative as their choice
pursuant to paragraph 6.2.2.
6.2.2 In the event that an Industry Party did not:
6.2.2.1 express a preference for any elected
Industry Party Representative; or
6.2.2.2 nominate an Industry Party Representative
appointed pursuant to paragraph 7.1 of Part
1 of Appendix 2 (as the case may be),
that Industry Party may choose subsequently to select one of
the elected or appointed (as the case may be) Industry Party
Representatives to be its Representative in accordance with
paragraph 7.3 or 10 (as the case may be) of Part 1 of Appendix
2. If it does not so select one of the elected or appointed
(as the case may be) Industry Party Representatives, then it
shall not be represented.
6.2.3 an Industry Party Representative cannot refuse to represent an
Industry Party who selects him under paragraphs 6.2.1 and
6.2.2.
6.3 Consumer Party Representatives
Consumer Party Representatives (one of whom must represent the
interests of Domestic Consumers and no more than 2 may represent the
interests of other consumers) will be appointed in accordance with Part
2 of Appendix 2, which procedure shall be conducted by the Chairman. No
person (including, for the avoidance of doubt, Industry Parties and
Representatives) shall be entitled to make any claim for compensation
or damages or any other relief whatsoever against NGC as a result of
NGC performing its obligations in accordance with paragraph 1 of Part 2
of Appendix 2. The Group will review and amend as necessary from time
to time the selection procedure set out in Part 2 of Appendix 2 in
relation to Consumer Party Representatives and will in any event carry
out such a review not earlier than 12 months but no later than 24
months of the Group being established.
6.4 NGC Representative
NGC will, from time to time, appoint a person to act as the NGC
Representative and shall have the power to remove such person so
appointed. Any appointment or removal of the NGC Representative shall
be effected by notice in writing and delivered to the Secretary or
tendered at a meeting of the Group.
6.5 Non-Voting Representatives
Non-Voting Representatives are those listed in paragraph 5.1.3. Each
Non-Voting Representative may attend meetings of the Group, and may
speak, but cannot vote.
6.6 Appeal/Audit of election/selection procedure for Representatives
If any Interested Party believes that the procedures set out in Parts 1
or 2 (as the case may be) of Appendix 2 have not been followed
correctly to a significant extent it may ask the Chairman appointed
pursuant to paragraph 7.1 to investigate. If, following investigation
(which shall take such form as the Chairman decides) the Chairman
believes there are grounds for further investigation, the Chairman
shall appoint a suitable external person or body to carry out further
investigation. The Chairman shall carry out such investigation as
expeditiously as is reasonably practicable. In any event, the Chairman
shall report on the progress of such investigation at the next meeting
of the Group following a request by any Interested Party to investigate
and subsequent meetings of the Group if necessary.
6.7 Findings of Appeal/Audit of Election/Selection Procedure for
Representatives
If, as a result of an investigation carried out under paragraph 6.6
above it is found:
6.7.1 that the number of votes allocated to Industry Parties is
incorrect; or
6.7.2 that as a result of an incorrect allocation of votes between
Industry Parties or a miscalculation of votes, an Industry
Party Representative would have not been elected had the votes
been allocated or calculated correctly; or
6.7.3 that the procedure for the selection of Consumer Party
Representatives had not been followed correctly to a
significant extent,
then the Representatives elected or selected (as the case may be) shall
remain Representatives of the Group until the next election or
selection procedure (as the case may be). In the event of the votes
allocated between Industry Parties being incorrect then NGC shall
re-allocate the votes appropriately between Industry Parties.
7. CHAIRMAN
7.1 Upon the retirement or removal by NGC of the first and each successive
Chairman, NGC shall appoint a person to act as Chairman. The Chairman
shall be an executive director of NGC except for the first Chairman who
shall be the "Director, Commercial and System Strategy" as at 1 April
1997.
7.2 The Chairman shall preside at every meeting of the Group at which he is
present. If the Chairman is unable to be present at a meeting, the
Vice-Chairman appointed pursuant to paragraph 7.3 shall act as
Chairman. If neither the Chairman nor the Vice-Chairman is present
within half an hour after the time appointed for holding the meeting,
the Representative present may appoint a Representative to be Chairman
of the meeting provided that such meeting is quorate in accordance with
paragraph 13.2.
7.3 At the first meeting of the Group (and from time to time thereafter)
the Representatives present at such meeting shall elect, by a simple
majority on a show of hands, one of the Representatives to be
Vice-Chairman. Representatives present shall each have one vote. For
the avoidance of doubt Industry Party Representatives will not be
required to vote in accordance with the wishes of those Interested
Parties whom he represents and NonVoting Representatives and the NGC
Representative present shall each have one vote on the election of a
Vice-Chairman.
7.4 The Chairman shall have and carry out only such duties and
responsibilities and exercise such powers as are expressly provided in
this Constitution. The Chairman shall exercise impartially all such
duties, responsibilities and powers.
7.5 If the Chairman does not carry out his duties and responsibilities in
accordance with paragraph 7.4, the Group may pass a resolution which
shall be recorded in the minutes of the Group expressing its concern at
that failure.
8. SECRETARY
8.1 NGC shall, unless the Group decides otherwise, perform the secretarial
role in reaction to the Group and shall provide a Secretary together
with such other staff as it shall deem necessary. NGC shall notify each
Representative of the identity and address for correspondence of the
Secretary as soon as reasonably practicable after his appointment.
8.2 The Secretary shall not be a Representative of the Group and shall not
be entitled to cast a vote at any meeting although he shall have the
right to speak at a meeting.
8.3 The Secretary's duties shall be to attend to the day to day operation
of the Group and in particular to.
8.3.1 attend to the requisition of meetings and to serve all
requisite notices;
8.3.2 maintain a register of names and addresses of Representatives
and the Chairman and alternates as appointed from time to
time; and
8.3.3 keep minutes of all meetings.
9. ALTERNATES
9.1 Each Representative shall have the power to appoint any individual to
be his alternate and may at the Representative's discretion remove an
alternate so appointed.
9.2 Any appointment or removal of an alternate shall (unless the Chairman
otherwise agrees) be effected by notice in writing executed by the
Representative appointing the alternate and delivered to the Secretary
or tendered at a meeting of the Group.
9.3 If the Representative appointing the alternate so requests, an
alternate shall be entitled to receive notice of all meetings of the
Group or of meetings of sub-committees or working groups of which the
Representative who appointed him is a member, and for the purpose of
the proceedings at the meeting, the provisions of this Constitution
shall apply as if the alternate were a Representative. Every person
acting as an alternate shall have the votes of each Representative for
whom that person acts as alternate, in addition to that person's own
votes if he is also a Representative.
9.4 An alternate Representative shall cease to be an alternate if the
Representative who appointed him ceases for any reason to be a
Representative.
9.5 References in this Constitution to a Representative shall, unless the
context otherwise requires, include his duly appointed alternate.
10. VACATION OF OFFICE
10.1 The office of a Representative shall be vacated if:
10.1.1 the Representative resigns his office by notice delivered to
the Secretary; or
10.1.2 three consecutive meetings of the Group have been held at
which neither that Representative nor his alternate has been
present, neither having submitted to the Chairman an
explanation for absence which is acceptable in the reasonable
opinion of the Chairman appointed pursuant to paragraph 7.1;
or
10.1.3 the Representative conducts himself in a manner which in the
reasonable opinion of the Chairman appointed pursuant to
paragraph 7.1 is unbecoming to the office of a Representative.
10.2 In the event that the office of an Industry Party Representative is
vacated pursuant to paragraph 10.1 or such Industry Party
Representative dies or ceases to be employed or exclusively retained by
the company or other entity (whether or not a corporate body) which
employed him at the time he was elected or (as the case may be)
nominated then:
10.2.1 those Industry Parties whom such Industry Party Representative
represents (as identified on the list published by NGC
pursuant to paragraph 11 of Part 1 of Appendix 2) may select a
new Industry Party Representative;
10.2.2 in the event that an Industry Party does not wish the newly
selected Industry Party Representative to be its
Representative it may select one of the other elected Industry
Party Representatives to be its Representative;
10.2.3 if it does not wish the newly elected Industry Party
Representative to be its Representative and it does not so
select one of the other elected Industry Party
Representatives, then it shall cease to be represented.
In any event such Industry Party shall notify the Secretary of its
selection or non- selection as the case may be.
10.3 In the event that the office of a Consumer Party Representative is
vacated pursuant to paragraph 10.1 or such Consumer Party
Representative dies, the Electricity Consumers' Committees Chairmen's
Group shall be invited to select a new Consumer Party Representative.
10.4 In the event that the office of a Non-Voting Representative or the NGC
Representative is vacated pursuant to paragraph 10.1 or such
Representative dies then the Executive Committee (PEC) or the Director
or the Grid Code Review Panel or NGC (as the case may be) will appoint
a new Representative.
10.5 Any Representative elected or appointed pursuant to paragraphs 10.2 or
10.3 above shall remain in office until such time as new elections take
place pursuant to Part 1 of Appendix 2.
11. MEETINGS
11.1 The Group shall call meetings at such regular scheduled times as it may
decide, but in any event meetings shall be called no more than 8 weeks
apart.
11.2 The Chairman or any Representative may request the Secretary to
requisition further meetings by giving 21 days notice to the Secretary.
The notice shall be:
11.2.1 in writing; and
11.2.2 contain a summary of the business that it is proposed will be
conducted and the Secretary shall proceed to convene a meeting
of the Group within 7 days of the date of expiry of such
notice in accordance with the provisions of paragraph 12.
11.3 In March of each year an Interested Parties Meeting will be held. The
following matters will be included on the agenda for the Interested
Parties Meeting:
11.3.1 a report from the Chairman on the business conducted by the
Group over the preceding twelve months; and
11.3.2 the appropriate elements of the election or appointment (as
the case may be) of Representatives in accordance with the
procedures set out in paragraphs 6.1 and 6.3.
12. NOTICE OF MEETINGS
12.1 All meetings shall be called by the Secretary on at least 14 days
written notice (exclusive of the day on which it is served and of the
day for which it is given), or by shorter notice if so agreed by all
Representatives and the Chairman.
12.2 If at any time a person has not been appointed as Secretary, or the
Secretary is for any reason unable to act, the Chairman shall make
alternative arrangements to convene meetings.
12.3 The notice of each meeting shall be given to all Representatives and to
the Chairman and shall contain the time, date and venue of the meeting,
an agenda and a summary of the business to be conducted.
12.4 The accidental omission to give notice of a meeting to, or the
non-receipt of notice of a meeting by a person entitled to receive
notice shall not invalidate the proceedings at that meeting.
12.5 By notice to the Secretary, any Representative can request additional
matters to be considered at the meeting and provided such notice is
given at least 10 days (exclusive of the day on which it is served and
of the day for which it is given) before the date of the meeting, those
matters will be included in a revised agenda for the meeting. The
Secretary shall circulate the revised agenda to the Chairman and to
each Representative as soon as practicable.
12.6 Each Representative and the Chairman shall from time to time
communicate his address to the Secretary and all notices sent to such
address shall be considered as having been duly given.
13. PROCEEDINGS AT MEETING AND QUORUM
13.1 Subject to paragraph 11 and 12 the Group may meet for the transaction
of business and adjourn and otherwise regulate its meetings as it
thinks fit.
13.2 8 Voting Representatives and the NGC Representative present in person
or by their alternates shall constitute a quorum for a meeting of the
Group.
13.3 Subject to the provisions of paragraph 13.5, the Chairman may, after a
reasonable period of time from the time appointed for holding any
meeting of the Group decide that because a quorum is not present, the
meeting shall be adjourned. The meeting shall be adjourned to such day,
time and place as the Secretary may notify to Representatives and to
the Chairman within 3 days of the adjournment. Alternatively, the
Chairman may with the consent of all Representatives present decide
that the meeting of the Group should proceed. In the case of a meeting
which, at any time, ceases to be quorate the Chairman any also with the
consent of all Representatives remaining decide that such meeting
should continue.
13.4 A meeting adjourned in accordance with paragraph 13.3 shall not be
called to take place within one week of the adjournment but may be
called on less than 14 days notice. If at such adjourned meeting a
quorum is not present within a reasonable period of time (as the
Chairman may decide) from the time appointed for holding the meeting,
the meeting shall not take place.
13.5 Only matters identified in the agenda referred to in paragraph 12.3 (or
a revised agenda submitted pursuant to paragraph 12.5), and which have
been discussed as an agenda item at a meeting of the Group which met
the requirements of paragraph 13.2 at least 4 weeks prior, shall be
resolved upon at a meeting (but this shall not prevent matters raised
under the heading "Any Other Business" being discussed), provided that
the meeting at which a matter is to be resolved upon is itself quorate
or (in the case of a meeting which is not quorate throughout) the
matter is resolved upon in that part of the meeting which was quorate.
13.6 In the event that:
13.6.1 there was some defect in the appointment of either a
Representative or the Chairman;
13.6.2 the election procedure has not been properly followed;
13.6.3 the votes cast by a Voting Representative did not reflect the
views of those he represents; or
13.6.4 the minutes are not approved.
any decision taken by any meeting of the Group or of a sub committee or
working group shall be valid as if such person had ben duly appointed,
the election procedure had been duly followed, or the votes were fully
reflective, or (as the case may be) the minutes had been duly approved
provided that none of the events set out in paragraphs 13.6.1 to 13.6.4
above has occurred as a result of a failure by either an Interested
Party or a Representative to act in good faith.
13.7 In the exercise of its powers and the performance of its duties and
responsibilities, the Group shall have due regard for the need to
promote the attainment of the objects of the Group set out in paragraph
4.1.
13.8 The Group, each Representative, the Chairman and the Secretary shall be
entitled to rely upon any communication as document reasonably believed
by it as him to be genuine and correct and to have been communicated as
signed by the person by whom it purports to be communicated or signed.
14. REPRESENTATION, VOTING AND RESOLUTIONS
14.1 The Chairman, each Representative and the Secretary shall be entitled
to attend and speak at every meeting of the Group.
14.2 Subject to an Industry Party Representative's overriding obligation as
a Representative of the Group set out in paragraph 13.7, in the
exercise of his powers and the performance of his duties and
responsibilities as a Representative, an Industry Party Representative
shall represent the interests of the Industry Party or Parties as the
case may be whom he represents pursuant to paragraph 6.2 above
(including representing different views). An Industry Party
Representative shall cast the votes of the Industry or Parties as the
case may be whom he represents as directed by such Industry Parties.
14.3 Experts shall (at the discretion of the Chairman, due notice having
been given to him prior to the meeting) be entitled to attend any
meeting of the Group with a Representative and shall be entitled to
speak at any meeting but shall not be entitled to vote on any issue.
14.4 Industry Parties shall between them have a maximum of 135,000,000 votes
and Consumer Party Representatives shall between them have a maximum of
15,000,000 votes. Each Industry Party shall exercise its votes through
the Representative who represents it. In respect of any vote by
Representatives of the Group no resolution shall be passed without the
agreement of the NGC Representative.
14.5 The votes allocated pursuant to Appendix 3 to Industry Parties who, as
a result of failing to select one of the elected Industry Party
Representatives pursuant to paragraph 6.2.2 or 10.2.2 are not
represented on the Group shall not be re-allocated between those
Industry Party who are represented on the Group.
14.6 Industry Parties and Consumer Party Representatives shall have votes
calculated as set out in Appendix 3, such votes to be calculated by
NGC. The Group will review and amend as necessary from time to time the
provisions set out in Appendix 3 in relation to the calculation of
votes for Industry Parties and Consumer Party Representatives and will
in any event carry out such a review not earlier than 12 months but no
later than 24 months of the Group being established.
14.7 Appeal on a vote to change Constitution and Rules
If any Industry Party does not agree with any proposed change to the
Constitution it may (in circumstances where the provisions of License
Condition 10C(3) of NGC's Transmission License apply) request the
Director to make a determination pursuant to License Condition 10C(3)
of NGC's Transmission License.
14.8 This Constitution shall not be changed other than by a majority vote of
65% of votes cast by Voting Representatives at a meeting of the Group
which is quorate pursuant to paragraph 13.2 and endorsed by NGC
pursuant to paragraph 14.4.
15. MINUTES
15.1 The Secretary shall circulate copies of the minutes of each meeting of
the Group and of Group decisions to each Representative and to the
Chairman as soon as practicable and in any event within 14 days after
the relevant meeting has been held.
15.2 If the Secretary receives any comments on the minutes, he shall then
include those aspects of the minutes upon which there is disagreement
into the agenda for the next following meeting of the Group as the
first item for resolution. The minutes shall be formally approved at
the next following meeting.
16. SUB COMMITTEE AND WORKING GROUPS
16.1 The Group may establish sub-committees from time to time. Each
sub-committee:
16.1.1 shall be composed of such persons (whether or not
Representatives) and shall discharge such rights, powers,
duties and responsibilities as the Group may determine;
16.1.2 shall be given and shall be subject to written terms of
reference and to such procedures as the Group may determine;
16.1.3 shall, in the exercise of its rights and powers and the
performance of its duties and responsibilities delegated
to it by the Group, at all times conduct itself and its
affairs in a manner which it considers best designed to
give effect to the object set out in paragraph 4.1.
16.2 The meetings of sub-committees shall so far as possible be arranged so
that the minutes of such meeting can if appropriate be presented to the
Representatives in sufficient time for consideration before the next
following meeting of the Group.
16.3 The Group may further establish working groups to advise it on any
matter from time to time. Such working groups may consist of
Representatives and/or others as the Group may determine for the
purpose.
16.4 Resolutions of sub-committees and working groups shall not have binding
effect unless approved by resolution of the Group.
17. DISPUTE RESOLUTION
17.1 Subject to the terms of paragraph 17.2, the provisions of Clause 26 of
the Master Agreement shall apply to this Constitution.
17.2 Notwithstanding the terms of paragraph 5.1 of Schedule 4 of the Master
Agreement, where circumstances contemplated by paragraph 6.6 or
paragraph 3 of part 1 of Appendix 2 arise, the procedures provides for
in paragraph 6.6 or paragraph 3 of Part 1 of Appendix 2 (as the case
may be) shall be the sole remedy available and, for the avoidance of
doubt, the provisions of Clause 26 of the Master Agreement shall not
apply.
<PAGE>
APPENDIX 1
LIST OF FIRST CHAIRMAN, SECRETARY AND REPRESENTATIVES
OF THE TRANSMISSION USERS GROUP
CHAIRMAN
Name of Individual Name of Company/Organisation of Individual
Roger Urwin NGC
SECRETARY
Name of Individual Name of Company/Organisation of Individual
Richard Dunn NGC
INDUSTRY PARTY REPRESENTATIVES
Name of Individual Name of Company/Organisation of Individual
David Tolley National Power PLC
Tony Dicicco PowerGen plc
David Tilstone Eastern Group plc
John Tucker SEEBOARD
Willie Maclean Scottish Power plc
Ian Moran Southern Electric plc
John Capener Nuclear Electric Limited
Malcom Chandler Northern Electric plc
Keith Miller Teeside Power Limited
Kath Wall Magnox Electric plc
Dick Cecil London Electricity plc
David Shakespeare South Wales Electricity plc
Terry Ballard Midlands Electricity plc
Tim Simpson Yorkshire Electricity Group plc
David Porter Association of Electricity Producers
CONSUMER PARTY REPRESENTATIVES
Name of Individual Name of Company/Organisation of Individual
Aubrey Bourne Major Energy Users' Council
(Non-domestic consumers) Utility Buyers Forum
Robert Spears
(Non-domestic consumers)
Bernard Quigg Electricity Consumers' Committees
(Domestic Consumers) Chairman's Group
NGC REPRESENTATIVE
Name of Individual Name of Company/Organisation of Individual
Charles Dave NGC
NON VOTING REPRESENTATIVE
Name of Individual Name of Company/Organisation of Individual
Brian Saunders Executive Committee (PEC)
(nominated by the Executive Committee
(PEC))
John Stewart OFFER
(nominated by the Director)
Mike Metcalfe
(nominated by the Grid Code Review
Panel) NGC
<PAGE>
APPENDIX 2
PART 1
INDUSTRY PARTY REPRESENTATIVES ELECTION PROCEDURE
1. NOTIFICATION OF INFORMATION
No later than 21st January each year, NGC shall provide each Industry
Party with a notification containing the following information:
1.1 total MWhrs traded within the England and Wales electricity
pool;
1.2 total payment made to and/or from NGC;
1.3 such Industry Party's MWhrs traded within the England and
Wales electricity pool and such Industry Party's payments made
to and/or from NGC; and
1.4 the number of votes allocated to such Industry Party.
2. RAISING OF DISPUTES
No later than 5th February each year, Industry Parties shall raise any
objections to, or queries on, the information contained in the
notification received from NGC pursuant to paragraph 1 of this Part 1
of Appendix 2.
3. RESOLUTION OF DISPUTES
NGC and any Industry Party who raises an objection or query under
paragraph 2 of this Part 1 of Appendix 2, shall attempt to resolve such
objection or query by discussion. In the event that the objection or
query cannot be resolved, the Chairman appointed pursuant to paragraph
7.1 shall, no later than 19th February, make a determination resolving
the objection or query and enabling the election procedure to be
completed. The determination of the Chairman shall not preclude an
Industry Party from asking the Chairman to carry out an investigation
in accordance with paragraph 6.6.
4. DISPATCH OF NOMINATION FORMS
No later than 21st January each year, NGC will send to each Industry
Party a Nomination Form on which to nominate one person who must have
agreed to stand as an Industry Party Representative if elected (and who
must indicate that by signing the Nomination Form in the relevant
place, or indicate in some other manner agreed with the Chairman
appointed pursuant to paragraph 7.1), but who need not be an employee
of an Industry Party.
5. PRINCIPLES OF NOMINATIONS
5.1 Each Industry Party:
5.1.1 may only nominate one person to stand for election as an
Industry Party Representative, and
5.1.2 shall ensure that there will only be one person who is
connected (employee, consultant or otherwise) with such
Industry Party and who has agreed to stand for election as an
Industry Party Representative.
5.2 Each Industry Party that is a member of an Industry Party Group shall
be obliged to:
5.2.1 nominate the same person as the other Industry Party or
Industry Parties (as the case may be) who are also members of
such Industry Party Group; and
5.2.2 ensure that there will only be one person who is connected
(employee, consultant or otherwise) with such Industry Party
Group and who has agreed to stand for election as an Industry
Party Representative.
6. RETURN OF NOMINATION FORMS
No later than 5th February each year, each Industry Party shall return
to NGC the Nomination Form. In the event that NGC does not receive a
duly completed Nomination Form within that time it shall be presumed
that any Industry Party which has not returned a duly completed
Nomination Form does not wish to nominate a person to stand as an
Industry Party Representative.
7. RECEIPT OF 15 OR FEWER NOMINATIONS
7.1 In the event that 15 or fewer than 15 nominations are received, there
will be no election and each of the nominees shall be appointed as an
Industry Party Representative.
7.2 No later than 24th February each year NGC shall send to all Industry
Parties who did not nominate one of the Industry Party Representative
so appointed, a list of the Industry Party Representatives so
appointed.
7.3 No later than 4 March each year, such Industry Parties will notify NGC
whether it wishes to select a Representative pursuant to paragraph
6.2.2 and if so the name of the Representative.
8. RECEIPT OF NOMINATION IN EXCESS OF 15
8.1 DESPATCH OF VOTING PAPERS
In the event that more than 15 nominations are received, NGC shall draw
up a complete list of nominations on a Voting Paper which shall then be
sent to all Industry Parties by 24th February each year.
8.2 MARKING OF VOTING PAPERS
On receipt, each Industry Party shall mark the Voting Paper to rank the
nominees in order of preference until they are indifferent about the
remaining candidates. Each Industry Party that is a member of an
Industry Party Group shall when marking the Voting Paper to rank the
nominees in order of preference be obliged to rank the same nominees in
the same order of preference as the other Industry Party of Industry
Parties (as the case may be) who are also members of such Industry
Party Group.
8.3 RETURN OF VOTING PAPERS
No later than 10th March each year, each Industry Party shall return to
NGC its Voting Paper. In the event that NGC does not receive a duly
completed Voting Paper within that time it shall be presumed that any
Industry Party which has not returned a duly completed Voting Paper
does not wish to express a preference about any of the candidates on
the Voting Paper.
8.4 COUNTING OF VOTES
The votes for first preferences will be totalled by NGC to rank the
nominees in order of popularity.
8.5 ELIMINATION OF NOMINEES
The nominee with the fewest votes shall be eliminated and shall take no
further part in the election process. NGC shall transfer the votes of
all those Industry Parties who voted for that nominee to the nominee
who is the next highest preference (and who has not already been
eliminated) of such Industry Party or Industry Parties (as the case may
be).
8.6 RE-RANKING OF NOMINEES
NGC will then re-rank the nominees and this process will be repeated
until there are only 15 nominees left who will become the 15 Industry
Party Representatives.
8.7 EQUAL VOTES
In the event that there are two or more nominees with equally the
fewest votes then each such nominee will be eliminated except in the
event when such elimination would result in there being fewer than 15
nominees left. In such circumstance the lowest nominees will be ranked
according to the number of first preference votes to determine which
shall fill the remaining seat(s) on the Group. If the lowest ranked
nominees are also equal on the number of first preference votes then
NGC shall rank according to second preference votes and so on until one
nominee ranks higher than the other. In the event that there is still
no outcome the nominees concerned will draw lots.
9. VOTING BY AN INDUSTRY PARTY GROUP
9.1 NGC shall not be under any obligation to monitor or to ensure that
nominations made by or the voting by (as the case may be) Industry
Parties that are members of the same Industry Group as part of the
election procedure for Industry Party Representatives is in accordance
with the provision of:
9.1.1 paragraph 5.4, and
9.2.1 paragraph 5.2 and 8.2 of this Part 1 or Appendix 2.
9.2 Each Industry Party agrees to ensure that it complies with the
provisions relating to Industry Party Groups set out in:
9.2.1 paragraph 5.4; and
9.2.2 paragraphs 5.2 and 8.2 of this Part 1 of Appendix 2.
10. SELECTION OF INDUSTRY PARTY REPRESENTATIVES
No later than 20th March each year NGC shall send to each Industry
Party who did not express a preference for any elected Industry Party
Representative a list of the Industry Party Representatives elected. No
later than 31st March each year each such Industry Party shall notify
NGC whether it wishes to select a Representative pursuant to paragraph
6.2.2 and if so, the name of the Representative.
11. NOTIFICATION OF INDUSTRY PARTY REPRESENTATIVES
On completion of the election procedure set out in this Part 1 of
Appendix 2 (including selection by those who did not express a
preference as provided in paragraph 10 of this Part 1 of Appendix 2),
NGC shall publish to Industry Parties:
(a) a list of elected Representatives and the Industry Parties
whom they each represent.
(b) a list of all Industry Parties and the number of votes
allocated to each Industry Party pursuant to Appendix 3
provided that NGC shall not disclose the number of votes
allocated to Industry Parties who have notified the Chairman
in writing that they elect not to have the number of votes
allocated to them disclosed. Industry Parties may only elect
not to have the number of votes allocated to them disclosed if
they have fewer than 500,000 votes.
<PAGE>
PART 2
APPOINTMENT OF CONSUMER PARTY REPRESENTATIVES
1. The Chairman appointed pursuant to paragraph 7.1. in consultation with
the Electricity Consumers' Committees Chairman's Group shall draw up,
and update from time to time a list of Consumer Parties.
2. No later than 21st January each year, the Chairman will invite
nominations for the Consumer Party Representative who will represent
the interest of Domestic Consumers and the two Consumer Party
Representatives who will represent the interests of consumers other
than Domestic Consumers from each of the bodies included on the list
prepared under paragraph 1 above. Nominations for Consumer Party
Representatives, who must have:
(a) agreed to stand as a Representative if selected (and who must
indicate that by signing the nomination form in the relevant
places, or indicate in some other manner agreed with the
Chairman appointed pursuant to paragraph 7.1); and
(b) agreed to sign a Letter of Undertaking, if selected;
must be provided by 24th February each year.
3. In the event that no person is nominated to represent the interests of
Domestic Consumers there shall be no person appointed to represent the
interests of Domestic Consumers but there may be up to (but no more
than) 2 Consumer Party Representatives to represent the interests of
consumers other than Domestic Consumers.
4. In the event that only one person is nominated to represent the
interests of Domestic Consumers there will be no selection as provided
in paragraph 6 of this Part 2 of Appendix 2 and such nominee shall be
appointed as a Representative.
5. In the event that two or fewer than two persons are nominated to
represent the interests of consumers other than Domestic Consumers,
there will be no selection as provided in paragraph 6 of this Part 2 of
Appendix 2 and each of the nominees shall be appointed as a
Representative.
6. In the event that:
6.1 more than one person is nominated to represent the interests
of Domestic Consumers; or
6.2 more than two persons are nominated to represent the interests
of consumers other than Domestic Consumers.
NGC shall, no later than 2nd March each year, notify the Electricity
Consumers' Committees Chairman's Group of the names of the individuals
who have been nominated.
No later than 20th March each year, the Electricity Consumers'
Committee Chairman's Group (in consultation with OFFER) shall select
the candidates that, in their opinion, represent the broadest spectrum
of representation for consumers.
7. As soon as reasonably practicable after the completion of the selection
procedure NGC shall publish a list of selected Consumer Party
Representatives.
<PAGE>
APPENDIX 3
CALCULATION OF INDUSTRY PARTY VOTES
1. VOTE ALLOCATION
A maximum of 150,000,000 votes shall be allocated between Industry
Parties and Consumers Party Representatives. Industry Parties shall,
between them, carry a maximum of 135,000,000 of the votes and Consumer
Party Representatives shall, between them, carry a maximum of
15,000,000 of the votes.
2. INDUSTRY PARTIES
In respect of Industry Party votes shall be calculated by NGC in
accordance with the following:
2.1 BASIS OF DATA
all data used by NGC in calculating the number of votes to be
allocated to Industry Parties in respect of each TUG Year will
be based on the 12 month period expiring on 30th November
immediately prior to the commencement of the election
procedure for that TUG year;
2.2 SUPPLY OF DATA
the Settlement System Administrator will supply actual data
for both Genset Metered Generation and Consumer Gross Demand
(as those expressions are respectively defined in the Pooling
and Settlement Agreement) to NGC broken down on a company by
company basis provided always that if the Settlement System
Administrator fails to supply such data the Industry Parties
will provide such data direct to NGC.
2.3 DATA
the data to be utilized is as follows:
(A) total energy traded within England and Wales
electricity pool for each Industry Party will be the
sum of its Genset Metered Generation and Consumer
Gross Demand in MWh;
(B) in relation to payments made and/or from NGC, the
following will be included:
(i) the sum of the magnitude of all amounts
invoiced under all Supplemental Agreement
(or equivalents agreements) with each
Industry Party, provided that
(a) for the purpose of arriving at
such amount, any generation or
demand infrastructure charges
payable to an Industry Party in
respect of any individual
Generating Unit or Connection
Site shall be deemed to be a
payment to NGC; and
(b) connection charges invoiced
internally by NGC on NGC
Interconnections Business shall
not (for the avoidance of
doubt) be included, and
(c) any capital contribution
(whether in monetary form or
otherwise) made other than
annually shall be converted
into a deemed annual charge on
the basis of the applicable
depreciation period;
(ii) the sum of the magnitude of amounts
invoiced under Ancillary Service
Agreements with each Industry Party; and
(iii) equivalent amounts invoiced under an
Interconnection Agreement.
2.4 VOTES ALLOCATION
votes will be allocated to Industry Party on the basis of 50%
on energy traded within the England and Wales electricity pool
(calculated in accordance with paragraph 2.3 of this Appendix
3) and 50% on payments to/from NGC (calculated in accordance
with paragraph 2.3 of this Appendix 3) as follows:
Industry Party's Energy Traded (MWhrs)
--------------------------------------
Total Energy Traded (MWhrs) x 67,500,000
plus
Total Payments of Industry Party
--------------------------------
Total Payments x 67,500,000;
2.5 Rounding Down of Votes
votes allocated to each Industry Party shall be rounded down
to the nearest whole number.
2.6 Reallocation of Votes
the number of votes allocated to each Industry Party will not
be changed between elections other than as provided in
paragraph 6.7. If an Industry Party starts trading energy or
money starts to flow between NGC and such Industry Party
between elections of Industry Party Representatives, such
Industry Party will not be allocated any votes until the next
election. For the avoidance of doubt, Industry Parties ceasing
to trade between election will not have their votes
reallocated until the next election of Industry Party
Representatives. An Industry Party either acquiring or
divesting itself of assets will not result in a reallocation
of votes until the next election.
3. CONSUMER PARTY REPRESENTATIVES
3.1 VOTING ALLOCATION
each Consumer Party Representative will be allocated 5,000,000
votes;
3.2 FEWER THAN 3 CONSUMER PARTY REPRESENTATIVES
in the event that fewer than three Consumer Party
Representatives are nominated or fewer than three are
appointed pursuant to Part 2 of Appendix 2 then the 5,000,000
votes which would have been allocated to such Consumer Party
Representative will not be transferred to the Consumer Party
Representative or Representatives (as the case may be) who
have been selected. For the avoidance of doubt, if a Consumer
Party Representative decides not to exercise its voting power
such votes will not be transferred to any other Consumer Party
Representative selected.
<PAGE>
APPENDIX 4
FORM OF CONSUMER PARTY REPRESENTATIVES' CONFIDENTIALITY LETTER OF UNDERTAKING
To The National Grid Company plc ("NGC")
and the Industry Parties (as hereinafter [name of Consumer Representative]
defined) as at the date hereof and as [address]
from time to time hereafter [date]
Dear Sirs
TRANSMISSION USERS GROUP
1. I refer to the Constitution and Rules of the Transmission Users Group
as amended from time to time (the "Constitution"). Words of expressions
used in this letter shall have the same meaning as defined in the
Constitution.
2. I hereby undertake to the Industry Parties as at the date hereof and
from time to time hereafter as follows:
2.1 to comply with the provisions of the Constitution; and
2.2. to preserve the confidentiality of, and not directly or
indirectly reveal, report, publish, disclose, transfer or use
for my own purpose, TUG Confidential Information (as defined
in paragraph 5 of this letter) except with the prior consent
in writing of NGC and the Industry Parties or in the
circumstances set out in paragraph 3 of this letter.
3. The circumstances referred to in paragraph 2 of this letter are:
3.1 where the TUG Confidential Information is in the public domain
before it is furnished to me; or
3.2 where the TUG Confidential Information after it is furnished
to me:
(a) is acquired me in circumstances to which this letter
does not apply;
(b) is acquired by me in circumstances to which this
letter does not apply but then ceases to be subject
to the restrictions imposed by this letter; or
(c) enters the pubic domain.
and in any case otherwise than as a result of (a) a breach by
me of my obligations in this letter or (b) a breach by the
person who disclosed that TUG Confidential Information of that
person's confidentiality obligation and I am aware of such
breach; or
3.3 if I am required or permitted to make disclosure of the TUG
Confidential Information to any person:
(a) in compliance with the requirements of a Competent
Authority; or
(b) in compliance with any other requirement or law; or
(c) in response to a requirement of any stock exchange or
regulatory authority or the Panel on Take-overs and
Mergers; or
(d) pursuant to any judicial or arbitral process or
tribunal having jurisdiction in relation to me; or
3.4 if I make disclosure of the TUG Confidential Information to my
consultants and professional advisers in each case on the
basis set out in paragraph 4; or
3.5 if I make disclosure of the TUG Confidential Information in
circumstances where I am expressly permitted or required to
disclose that information under the terms of any agreement or
arrangement with the party to whose affairs such TUG
Confidential Information relates.
4. I hereby agree that I will adopt procedures ensuring the
confidentiality of TUG Confidential Information which I am obliged to
preserve as confidential under paragraph 2.2 of this letter. These
procedures shall include, but shall not necessarily be limited to:
4.1 Consumer Parties, my consultants and professional advisers in
receipt of TUG Confidential Information will be made fully
aware of my obligations of confidence in relation to the TUG
Confidential Information and will enter into similar
confidentiality undertakings as are given by me in this
letter; and
4.2 any copies of the TUG Confidential Information whether in hard
copy or computerized form will clearly identify the TUG
Confidential Information as confidential.
5. In this letter TUG Confidential Information means all data and other
information supplied to me by another Representative or Industry Party
in connection with the Constitution.
6. The obligations relating in confidentiality contained in paragraphs 2
to 6 inclusive of this letter shall continue to be binding on me after
I have ceased to be a Representative for whatever reason.
7. The terms of Clause 15 (limitation of liability) of the Master
Agreement shall apply to this letter as if set out in full herein.
8. This letter shall be governed by and construed in accordance with
English law.
EXECUTED and DELIVERED as a DEED
by [name of individual]
in the presence of
[Witness]
Name:
Address:
Occupation:
THE NATIONAL GRID COMPANY PLC
By_______________________________
EACH OF THE USERS
BY_______________________________
For The National Grid Company plc
in exercise of the authority vested
in it by Clause 25.1 of the Master
Agreement pursuant to and in
accordance with a determination of
the Director General of Electricity
Supply dated 30 March 1998
<PAGE>
SCHEDULE 5
Dated 31 March 1998
---------------------------------------
THE NATIONAL GRID COMPANY PLC
and
OTHERS
---------------------------------------
AGREEMENT TO VARY
THE MASTER CONNECTION AND
USE OF SYSTEM AGREEMENT
---------------------------------------
Martineau Johnson Solicitors
St Philips House
St Philips Place
Birmingham B3 2PP
Tel: 0121 200 3300
Fax: 0121 200 3330
<PAGE>
TABLE OF CONTENTS
-----------------
CLAUSE PAGE
------ ----
1. Interpretation . . . . . . . . . . . . . . . . . . . . . 1
2. Amendments . . . . . . . . . . . . . . . . . . . . . . . 1
3. Continuation of the Master Agreement . . . . . . . . . . 2
4. Miscellaneous . . . . . . . . . . . . . . . . . . . . . 3
5. Entire Agreement . . . . . . . . . . . . . . . . . . . . 3
6. RTPA . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SCHEDULES
---------
1. Users . . . . . . . . . . . . . . . . . . . . . . . . . 5
2. New Schedule 5 to the Master Agreement - Reactive Power
and Default Payment Arrangements . . . . . . . . . . . . 16
<PAGE>
THIS AGREEMENT TO VARY is made on the 31st day of March 1998.
BETWEEN:
(1) THE NATIONAL GRID COMPANY PLC a company registered in
England with number 2366977 and whose registered office is
at National Grid House, Kirby Corner Road, Coventry, CV4 8JY
("NGC"); and
(2) THE PERSONS whose names, registered numbers and registered
offices are set out in Schedule 1 (each a "User").
WHEREAS:
(A) This Agreement is supplemental to and varies the Master
Connection and Use of System Agreement dated 30th March 1990
made between NGC and the Users as amended by an Agreement to
Vary of today's date (the "Master Agreement"); and
(B) NGC and the Users have agreed to further amend the Master
Agreement on the terms and subject to the conditions set out
below.
IT IS HEREBY AGREED:
1 INTERPRETATION
--------------
1.1 Except where defined herein or where the context otherwise
requires, words and expressions defined in the Master
Agreement shall have the same respective meanings when used
in this Agreement.
1.2 The table of contents and the headings to each of the
Clauses are inserted for convenience only and shall be
ignored in construing or interpreting this Agreement.
2 AMENDMENTS
----------
The parties to this Agreement hereby agree that with effect
from the date of this Agreement the Master Agreement shall
be amended as follows:
2.1 by the addition of the words "Save in relation to the
Obligatory Reactive Power Service and all Enhanced Reactive
Power Services." at the beginning of Clause 3.1 thereof; and
2.2 by the addition of the following new Clause 3.2:
"With regard to the Obligatory Reactive Power Service and
all Enhanced Reactive Power Services the provisions of
Schedule 5 shall apply."; and
2.3 by the deletion of Clause 19.8; and
2.4 by the inclusion of the following new definitions in
Schedule 2 thereto:
"REACTIVE POWER" the product of voltage and
current and the sine of the
phase angle between them
measured in units of
volamperes reactive and
standard multiples thereof
i.e.
1000 var = 1kvar
1000kvar = 1Mvar
"SYSTEM ANCILLARY SERVICE" a Part 1 System Ancillary
Service and/or a Part II
System Ancillary Service as
the case may be; and
2.5 by the inclusion of the following new definition in Schedule
2 thereto in substitution for the existing definition of
Commercial Ancillary Services:
"COMMERCIAL ANCILLARY
SERVICES" Ancillary Services, other than
System Ancillary Services,
utilised by NGC 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 (as
defined in the Grid Code)
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). A non-
exhaustive list of Commercial
Ancillary Services is set out
below:
- Frequency Control by
means of Pumped Storage
Unit Spinning in Air
- Frequency Control by
means of adjustment to a
Pumped Storage Unit
Pumping Programme
- Frequency Control by
means of Demand Reduction
- Reactive Power supplied
by means of synchronous
or static compensators
- Hot Standby
In addition, there is also the
Ancillary Service of canceled
start which arises as part of
ordinary operational
instruction of Generating
Units and therefore needs no
separate description. Defined
terms used in this definition
are defined in the Grid Code;
and
2.6 by the addition of a new Schedule 5 in the form set out in
Schedule 2.
3 CONTINUATION OF THE MASTER AGREEMENT
------------------------------------
The Master Agreement shall remain in full force and effect
and this Agreement and the Master Agreement shall be treated
as one document so that, upon the Master Agreement being
amended pursuant to Clause 2, all references to the Master
Agreement shall be treated as references to that agreement
as amended by this Agreement.
4 MISCELLANEOUS
-------------
The provisions of Clauses 22, 23, 24 and 26 to 30 inclusive
of the Master Agreement shall be deemed to be incorporated
herein mutatis mutandis.
5 ENTIRE AGREEMENT
----------------
5.1 Each party to this Agreement acknowledges that in entering
into this Agreement on the terms set out herein it is not
relying upon any representation, warranty, promise or
assurance made or given by any other party or any other
person, whether or not in writing, at any time prior to the
execution of this Agreement which is not expressly set out
herein.
5.2 None of the parties to this Agreement shall have any right
of action against any other party arising out of or in
connection with any representation, warranty, promise or
assurance referred to in Clause 5.1 (except in the case of
fraud).
6 RTPA
----
Any restriction or information provision (each of those
terms having the same meaning in this Clause as in the
Restrictive Trade Practices Act 1976) contained in this
Agreement or any provision contained in this Agreement
adding to or extending any restriction or information
provision contained in any agreement which is varied or
amended by this Agreement, shall not take effect or shall
cease to have effect:
(a) if a copy of this Agreement is not provided to the
Department of Trade and Industry ("DTI") within twenty-
eight days of the date on which this Agreement is made,
or
(b) if, within twenty-eight days of the provision of that
copy to the DTI, the DTI gives notice of objection to
the party providing it.
IN WITNESS whereof the hands of the duly authorised
representatives of the parties hereto the day and year first
above written.
<PAGE>
SCHEDULE 1
----------
USERS
-----
ABB Energy Development Company Limited
2688994
Carmelite
50 Victoria Embankment
Blackfriars
London EC4Y 0DX
Accord Electric Limited
2869629
152 Grosvenor Road
London SW1V 3JL
AES Barry Limited
3135522
Burleigh House
17/19 Worple Way
Richmond
TW10 6AG
AES Tyneside Limited
3135543
Burleigh House
17/19 Worple Way
Richmond
TW10 6AG
AES Partington Limited
3210149
Burleigh House
17/19 Worple Way
Richmond
TW10 6AG
Amoco Power Resource (Europe) Ltd.
3042173
Amoco House
West Gate
London
W5 1XL
Anglian Power Generators Limited
2488955
Wherstead Park
Wherstead
Ipswich
Suffolk 1P9 2AQ
Barking Power Limited
2354681
Devonshire House
Mayfair Place
London W1X 5FH
British Gas Trading Ltd.
3078711
Charter Court
50 Windsor road
Slough
Berkshire SL1 2HA
British Nuclear Fuels plc
1002607
Risley
Warrington
Cheshire WA3 6AS
BOC Limited
337663
Chertsey Road
Windlesham
Surrey GU20 6HJ
BP Chemicals Limited
194971
Britannic House
1 Finsbury Circus
London
EC2M 7BA
Canatxx Energy Ventures Limited
2673604
Hillhouse International
PO Box 4
Thornton Cleveleys
Lancs
FY5 4QD
Candecca Resources Limited
953066
Welton Gathering Centre
Barfield Lane
Wragby Road
Sudbrooke
Lincolnshire LN2 2QU
CeltPower Limited
2656561
Tomen House
13 Charles II Street
London SW1Y 4QT
Citigen (London) Limited
2427823
100 Thames Valley Park Drive
Reading
Berkshire RG6 1PT
Corby Power Limited
2329494
Five Chancery Lane
Clifford's Inn
London EC4A 1BY
Coryton Energy Company
FC20597
20 St. James Street
4th Floor
London
SW1A 1EJ
Cottam Development Centre Limited
3273552
53 New Broad Street
London
EC2M 1JJ
Crosfield Limited
00048745
Bank Quay
Warrington
Cheshire
WA5 1AB
Derwent CoGeneration Limited
2650621
Lansdowne House
Berkeley Square
London W1X 5DB
Eastern Electricity plc
2366906
Wherstead Park
Wherstead
Ipswich
Suffolk 1P9 2AQ
Eastern Merchant Generation Ltd.
3116225
Wherstead Park
Wherstead
Ipswich
Suffolk 1P9 2AQ
East Midlands Electricity plc
2366923
PO Box 444
Woodyard Lane
Wollaton
Nottingham
Nottinghamshire NG8 1EZ
Electricity Direct (UK) Limited
3174056
78, High Street
Lewes
East Sussex
BN7 1XF
Elm Energy and Recycling (UK) Limited
2516685
Elm Energy House
Ettingshall Road
Wolverhampton
West Midlands WV2 2LA
Energy Supply Contracts Limited
172268
One Great Tower Street
London EC3R 5AH
Enfield Energy Centre Limited
2796628
Concorde House
Concorde Way
Preston Farm Industrial Estate
Stockton-on-Tees
Cleveland TS18 3RB
Enron Gas and Petrochemicals Trading Limited
3003823
4 Millbank
London
SW1P 3ET
Fellside Heat and Power Limited
2614535
Fellside Lodge
Seascale
Cumbria CA20 1PG
Fibrogen Limited
2547498
38 Clarendon Road
London W11 3AD
Fibropower Limited
2234141
38 Clarendon Road
London W11 3AD
First Hydro Company
2444277
Bala House
Lakeside Business Village
St Davids Park
Deeside
Clwyd CH5 3XJ
Flotilla Power (UK) Limited
2880635
4 Millbank
London SW1P 3ET
Grovehurst Energy Limited
2197516
UK Paper House
Kemsley
Sittingbourne
Kent ME10 3ET
Humber Power Limited
2571241
South Humber Bank Power Station
South Marsh Road
Stallingborough
North East Lincolnshire
DN37 8BZ
Impkemix Energy Limited
2076043
The Heath
Runcorn
Cheshire WA7 4QF
Independent Energy UK Limited
3033406
30 Aylesbury Street
London EC1R 0ER
Indian Queens Power Limited
2928100
Burleigh House
17/19 Worple way
Richmond
TW10 6AG
International Generating Company Limited
3039100
Springside House
Tinwell
Stamford
PE9 3UQ
Joint European Torus (JET), Joint Undertaking
(a Joint Undertaking within the meaning of Chapter V
of the Treaty establishing the European Atomic Energy Committee)
Culham
Abingdon
Oxfordshire
OX14 3EA
Keadby Developments Limited
2691516
Keadby Power Station
PO Box 89
Keadby
Scunthorpe
North Lincolnshire DN17 3AZ
Keadby Generation Limited
2729513
Keadby Power Station
PO Box 89
Keadby
Scunthorpe
North Lincolnshire DN17 3AZ
Kent Power Limited
2723303
100 Thames Valley Park Drive
Reading
Berkshire RG6 1PT
Kingsnorth Power Limited
2675504
Chancery House
53/64 Chancery Lane
London WC2A 1QU
Lakeland Power Limited
2355290
Roosecote Power Station
Roosecote Marsh
Barrow in Furness
Cumbria LA13 0PQ
London Electricity plc
2366852
Templar House
81-87 High Holborn
London WC1V 6NU
Magnox Electric plc
2264251
Berkeley Centre
Berkeley
Gloucestershire GL13 9PB
Manweb plc
2366937
Manweb House
Chester Business Park
Wrexham Road
Chester CH4 9RF
Manweb Services Limited
2631510
Manweb House
Kingsfield Court
Chester Business Park
Chester
CH4 9RF
Medway Power Limited
2537903
Burleigh House
17/19 Worple Way
Richmond
Surrey TW10 6AG
Midlands Electricity plc
2366928
Mucklow Hill
Halesowen
West Midlands B62 8BP
Midlands Power (UK) Limited
2251099
Mucklow Hill
Halesowen
West Midlands B62 8BP
National Power
2366963
Windmill Hill Business Park
Whitehill Way
Swindon
Wiltshire SN5 6PB
National Power (Cogeneration Trading) Limited
2745602
Windmill Hill Business Park
Whitehill Way
Swindon
Wiltshire SN5 6PB
Norsk Hydro (U.K.) Limited
841421
Bridge House
69 London Road
Twickenham
Middlesex TW1 1RH
Northern Electric plc
2366942
Carliol House
Market Street
Newcastle upon Tyne
Tyne & Wear NE1 6NE
NORWEB plc
2366949
PO Box 14
410 Birchwood Boulevard
Warrington
Cheshire WA3 7GA
Nuclear Electric Limited
3076445
Barnett Way
Barnwood
Gloucester GL4 3RS
Peterborough Power Limited
2353599
Wherstead Park
Wherstead
Ipswich
Suffolk IP9 2AQ
PowerGen plc
2366970
53 New Broad Street
London EC2M 1JJ
Railtrack plc
2904587
Railtrack House
Euston Square
London
NW1 2EE
Regional Power Generators Limited
2352390
Wetherby Road
Scarcroft
Leeds LS14 3HS
Rocksavage Power Company, Ltd.
FC18868
Maples & Calder, Ugland House
PO Box 309
George Town
Grand Cayman
Cayman Islands
British West Ind.
SaltEnd Cogeneration Company
3274949
Britannic House
1 Finsbury Circus
London
EC2M 7BA
Savage Land Limited
3145444
20 St James's Street
London
SW1A 1ES
Scottish Hydro-Electric plc
SC117119
10 Dunkeld Road
Perth PH1 5WA
Scottish Power plc
Sc117120
1 Atlantic Quay
Glasgow G2 8SP
Seabank Power Limited
2591188
Severn Road
Hallen
Bristol
BS10 7SP
SEEBOARD plc
2366867
Forest Gate
Brighton Road
Crawley
West Sussex RH11 9BH
Shell Power Limited
2559630
Shell Mex House
Strand
London WC2R 0DX
Siemens plc
727817
Siemens House
Oldbury
Bracknell
Berkshire
RG12 8FZ
Slough Energy Supplies Limited
2474514
234 Bath Road
Slough
Berkshire SL1 4EE
South East London Combined Heat and Power Limited
2489384
37-41 Old Queen Street
London
SW1H 9JA
Southern Electric plc
2366879
Southern Electric House
Westacott Way
Littlewick Green
Maidenhead
Berkshire SL6 3QB
Southern Energy (UK) Generation Limited
3321733
200 Aldersgate Street
London
EC1A 4JJ
South Wales Electricity plc
2366985
Newport Road
St Mellons
Cardiff
South Glamorgan CF3 9XW
South Western Electricity plc
2366894
800 Park Avenue
Aztec West
Almondsbury
Bristol
BS12 4SE
Sutton Bridge Power
2586357
4 Millbank
London
SW1P 3ET
Teesside Power Limited
2464040
4 Millbank
London SW1P 3ET
The Renewable Energy Company Limited
3043412
Stroud House
Russell Street
Stroud
Gloucestershire
GL5 3AN
Tyne Property Development Limited
1194995
Siemens House
Oldbury
Bracknell
Berkshire
RG12 8FZ
UK Electric Power Limited
2844010
Williams Denton Jones
Glamaber
Bangor
Gwynedd
LL57 2DY
UML Limited
661900
Thermal Road
Bromborough
Wirral
Merseyside L62 4XG
Wainstones Power Limited
3462783
Pickfords Wharf
Clink Street
London SE1 9DF
Yorkshire Electricity Group plc
2366995
Wetherby Road
Scarcroft
Leeds LS14 3HS
<PAGE>
SCHEDULE 2
NEW SCHEDULE 5 TO THE MASTER AGREEMENT
--------------------------------------
REACTIVE POWER MARKET AND DEFAULT PAYMENT ARRANGEMENTS
------------------------------------------------------
1 DEFNINITIONS AND INTERPRETATIONS
--------------------------------
1.1
In this Schedule and the Appendices, except where the context
otherwise requires, the following expressions shall bear the
following meanings:
"Base Rate" means, in respect of any day,
the rate per annum which is
equal to the base lending rate
from time to time of Barclays
Bank plc as at the close of
business on the immediately
preceding business day (being
a weekday other than a
Saturday on which banks are
open for domestic business in
the City of London);
"Commercial Boundary" means (unless otherwise
defined in the relevant
Ancillary Services Agreement,
including a Market Agreement)
the commercial boundary
between either NGC or a PES
(as the case may be) and the
User at the higher voltage
terminal of the generator
step-up transformer;
"Contract Test" a test (not being a Reactive
Test) described in a Market
Agreement;
"Excitation System" means the equipment providing
the field current of a
machine, including all
regulating and control
elements as well as field
discharge or suppression
equipment and protective
devices;
"Genset Registered Capacity" has the meaning attributed to
it in the Pool Rules;
"Non-Centrally Despatched
Generating Unit" means a Generating Unit which
is not subject to Central
Despatch;
"Reactive Despatch Instruction" means a Despatch Instruction
relating to Reactive Power
given by NGC to a Generator in
accordance with Grid Code
SDC2;
"Reactive Power Zone" means those separate areas of
England and Wales identified
as zones in the Seven Year
Statement for 1997 for the
purpose of specifying local
Reactive Power capability and
need;
"Reactive Test" means a test conducted
pursuant to Grid Code OC
5.5.1;
"Relevant Zone" means, in relation to any
Despatch Unit, the Reactive
Power Zone to which that
Despatch Unit is allocated as
specified in an Ancillary
Services Agreement;
"Representative" has the meaning attributed to
it in Schedule 4 to this
Agreement;
"Synchronous Compensation" means the operation of
rotating synchronous Apparatus
for the specific purpose of
either generation or
absorption of Reactive Power;
"Tendered Capability Breakpoint" has the meaning attributed to
it in sub-paragraph 1.4 of
Appendix 5;
"Trading Site" has the meaning attributed to
it in the Pooling and
Settlement Agreement;
"Transmission Users Group" means the group established
pursuant to paragraph 4 of
Schedule 4 to this Agreement;
"TUG Issue" has the meaning attributed to
it in Schedule 4 to this
agreement;
"TUG Party" has the meaning attributed to
it in Schedule 4 to this
Agreement.
1.2 For the purpose of this Schedule and the Appendices,
"Obligatory Reactive Power Service" means the Part I system
Ancillary Service referred to in Grid Code CC 8.1 which the
relevant User is obliged to provide (for the avoidance of
doubt, as determined by any direction in force from time to
time and issued by the Director relieving a relevant User
from the obligation under its License to comply with such
part or parts of the Grid Code or any Distribution Code or,
in the case of NGC, the Transmission License as may be
specified in such direction) in respect of the supply of
Reactive Power (otherwise than by means of synchronous or
static compensation) and in respect of the required Reactive
Power capability referred to in Grid Code CC 6.3.2, which
shall comprise:
(a) in relation to a Despatch Unit, compliance by the
relevant User in all respects with all provisions of
the Grid Code relating to that supply of Reactive Power
and required Reactive Power capability (including
without limitation the Connection Conditions and the
Scheduling and Despatch Codes of the Grid Code)
together with the provision of metering facilities
meeting the requirements of Appendix 4; and
(b) in relation to a Non-Centrally Despatched Generating
Unit, compliance by the relevant User in all respects
with all provisions of the Grid Code applicable to it
relating to that supply of Reactive Power and required
Reactive Power capability, together with the provision
of such despatch facilities (including the submission
to NGC of all relevant technical, planning and other
data in connection therewith) and metering facilities
(meeting the requirements of Appendix 4), and upon such
terms, as shall be set out in an Ancillary Services
Agreement entered into between NGC and the relevant
User.
For the avoidance of doubt, "Obligatory Reactive Power
Service" when used in this Schedule and the Appendices
excludes provision of Reactive Power capability from
Synchronous Compensation and from static compensation
equipment, and the production of Reactive Power pursuant
thereto.
1.3 For the purpose of this Schedule and the Appendices,
"Enhanced Reactive Power Service" means the Commercial
Ancillary Service of:
(a) the provision of Reactive Power capability of a
Generating Unit in excess of that which a User is
obliged to provide from that Generating Unit under and
in accordance with the Connection Conditions of the
Grid Code and the production of Reactive Power pursuant
thereto, which a User may agree to provide and which is
capable of being made available to, and utilised by,
NGC in accordance with the Scheduling and Despatch
Codes of the Grid Code (or as may otherwise be agreed
in writing between NGC and a User) for the purposes of
voltage support on the NGC Transmission System, upon
and subject to such terms as may be agreed in writing
between NGC and such User; or
(b) the provision of Reactive Power capability from
Synchronous Compensation or from static compensation
equipment, and the production of Reactive Power
pursuant thereto, which a User or any other person may
agree to provide and which is capable of being made
available to, and utilised by, NGC for the purposes of
voltage support on the NGC Transmission System, upon
and subject to such terms as may be agreed in writing
between NGC and such User or other person; or
(c) such other provision or enhancement of capability of
Plant and/or Apparatus or other equipment to generate
or absorb Reactive Power, and the production of
Reactive Power pursuant thereto, which a User or any
other person may agree to provide and which is capable
of being made available to, and utilised by, NGC for
the purposes of voltage support on the NGC Transmission
System, upon and subject to such terms as may be agreed
in writing between NGC and such User or other person.
1.4 Unless otherwise defined in this paragraph 1, terms and
expressions found in the Grid Code have the same meanings,
interpretations and constructions in this Schedule and the
Appendices.
1.5 In this Schedule and the Appendices, except where the
context otherwise requires, references to a particular
Appendix, Part, Section, sub-section, paragraph or sub-
paragraph shall be a reference to a particular Appendix to
or part of this Schedule or, as the case may be, that
Section, sub-section, paragraph or sub-paragraph in this
Schedule.
2 VARIATIONS AND REVIEW
---------------------
2.1 (a) The Parties hereby agree that governance of this
Schedule and the Appendices is an appropriate matter to
be passed to the Transmission Users Group but further
agree that, unless and until otherwise agreed by the
Parties in writing, and notwithstanding and without
prejudice to Clause 25.1 of this Agreement, this
Schedule and the Appendices (except this paragraph 2)
may be varied upon the terms and conditions of sub-
paragraphs 2.2 to 2.5 inclusive.
(b) Solely for the purposes of enabling this Schedule and
the Appendices (except this paragraph 2) to be varied
upon the terms and conditions of sub-paragraphs 2.2 to
2.5 inclusive as specified in sub-paragraph 2.1(a), the
contents of this Schedule and the Appendices as varied
from time to time shall be deemed to be incorporated as
a separate Appendix into each and every Supplemental
Agreement entered into by a User and in force from time
to time, and the Parties hereby agree that,
notwithstanding any contrary provision, express or
implied in this Agreement or any Supplemental
Agreement, each such Appendix to a Supplemental
Agreement shall only be capable of variation with the
agreement in writing of all Parties or by way of a
variation to this Schedule and the Appendices upon the
terms and conditions of sub-paragraphs 2.2 to 2.5
inclusive and not otherwise (and Sub-Clause 1.2 of this
Agreement shall be read and construed accordingly).
Such Appendix is hereafter referred to in this
paragraph 2 as "the Supplemental Appendix".
2.2 (a) If NGC and/or any User or Users ("the Proposing Party")
considers that any variation should be made to this
Schedule and/or the Appendices (except this paragraph
2) with regard to the Reactive Power marker and the
default payment arrangements (a "Proposed Variation")
then, subject as provided below, written details of the
Proposed Variation, together with reasons therefor and
such other written information as the Proposing Party
shall reasonably consider to be relevant ("the
Supporting Documentation"), shall be submitted by the
Proposing Party's Representative as a TUG Issue at a
meeting of the Transmission Users Group, provided
always that:
(i) written details of a Proposed Variation and
Supporting Documentation may not be so submitted
for the purposes of this paragraph 2 if the effect
of the Proposed Variation would in any way
conflict with, or otherwise be inconsistent with,
the charging principles (as amended from time to
time) set out in Appendix 8 (save to the extent
the Proposed Variation comprises solely a
variation to such charging principles or includes
a variation to such charging principles remedying
the conflict or inconsistency); and
(ii) for the purposes of this paragraph 2, written
details of a Proposed Variation shall only be
deemed to have been submitted as a TUG Issue at a
meeting of the Transmission Users Group if such
details include a statement to the effect that
they are being submitted pursuant to and for the
purposes of this paragraph 2.
(b) If this Schedule and/or the Appendices shall not have
been amended in accordance with Clause 25.1 of this
Agreement to effect such Proposed Variation, then at
any time after expiry of a period of 120 days, but not
later than 180 days, following the date on which
written details of the Proposed Variation and
Supporting Documentation were submitted at a meeting of
the Transmission Users Group in accordance with sub-
paragraph 2.2(a), the Proposing Party shall be
entitled:
(i) where the Proposing Party is a User, to serve
written notice on NGC requiring NGC to serve
written notice on all other Users of the Proposing
Party's intention to require NGC pursuant to sub-
paragraph 2.2(c)(i) to refer the Proposed
Variation to the Director for determination; or
(ii) where the Proposing Party is NGC, to serve written
notice on all Users of its intention to refer the
Proposed Variation to the Director in accordance
with sub-paragraph 2.2(c)(ii),
each such notice to be copied to the Director. NGC
shall so notify all other Users as referred to in sub-
paragraph 2.2(b)(i) within 10 days following receipt of
the notice from the Proposing Party.
(c) If no such amendments to this Schedule and/or the
Appendices to effect such Proposed Variation shall have
been made within 30 days following receipt (or issue,
as the case may be) by NGC of the notice referred to in
sub-paragraph 2.2(b), then the Proposing Party shall be
entitled:
(i) where the Proposing Party is a User, within a
further 30 day period, to serve written notice on
NGC requiring NGC to refer the Proposed Variation
to the Director, whereupon NGC shall be obliged
within 10 days following receipt thereof by
written notice (copied to all other Users) to
refer the Proposed Variation to the Director for
determination; or
(ii) where the Proposing Party is NGC, within a further
30 day period, by written notice (copied to all
Users) to refer the Proposed Variation to the
Director for determination.
2.3 Each reference by NGC of a Proposed Variation to the
Director referred to in sub-paragraph 2.2(c) shall be made
in the manner of a variation to each Supplemental Appendix
proposed by NGC pursuant to Condition 10C(3) of the
Transmission License, and shall be accompanied by a request
from NGC to the Director to settle any dispute relating
thereto. When making each such reference, NGC shall provide
the Director with copies of the written details and
Supporting Documentation in relation to the Proposed
Variation first submitted by the Proposing Party at a
meeting of the Transmission Users Group as referred to at
sub-paragraph 2.2(a) and, where the Proposing Party is a
User, NGC shall invite the Director to raise any questions
or queries concerning the Proposed Variation direct with the
User concerned.
2.4 If a reference shall have been made by NGC to the Director
pursuant to sub-paragraph 2.2(c) and the Director shall have
made a determination in accordance with Condition 10C(3) of
the Transmission License requiring each Supplemental
Appendix and/or the provisions of this Schedule and/or the
Appendices to be varied, then the Parties shall give effect
to any such variation so determined to be made by varying
each of their respective Supplemental Appendices and/or the
provisions of this Schedule and/or the Appendices
accordingly, and each Party hereby authorises and instructs
NGC to make all such variations on its behalf and undertakes
not to withdraw, qualify or revoke such authority and
instruction at any time. In the absence of any such
determination by the Director, no such variations shall be
made.
2.5 The Parties acknowledge and agree that the Transmission
Users Group shall be requested to review each of the matters
described in Appendix 7 by the respective date (if any)
shown opposite each therein. In carrying out such review,
the Transmission Users Group shall be requested to take into
account the respective applicable principles (if any) set
out therein and to give due and proper consideration to any
matter referred to it by the Director. For the avoidance of
doubt, following each such review NGC or any User may raise
a Proposed Variation with respect thereto in accordance with
sub-paragraph 2.2(a). It is further agreed that:
(a) NGC shall consider and, no later than 31st December,
1999, report to the Transmission Users Group on the
practicalities of establishing a unified mechanism for the
provision of voltage support for the NGC Transmission
System; and
(b) the Transmission Users Group shall be requested, no
later than 31st March, 2000, to invite the Grid Code Review
Panel to review the provisions of the Grid Code with respect
to Reactive Power in light of this Schedule.
2.6 For the avoidance of doubt:
(a) the provisions of sub-paragraphs 2.2 to 2.5 inclusive
shall constitute the entirety of the rights of Parties
(whether under this Agreement or otherwise) to refer
(or to require NGC to refer) to the Director for
determination any variation to this Schedule 5 and/or
the Appendices, and each of the Parties hereby agrees
that, save in the circumstances provided in sub-
paragraph 2.3, no request shall be made to the Director
under Condition 10C(3) of the Transmission License to
settle any dispute relating to any Proposed Variation
where NGC is the Proposing Party; and
(b) nothing in this paragraph 2 shall confer on any Party
any right to refer (or to require NGC to refer) to the
Director for determination any variation or proposed
variation to any part or parts of this Agreement other
than this Schedule 5 and the Appendices; and
(c) the provisions of this paragraph 2 may only be varied
in the manner provided in Clause 25.1 of this
Agreement.
3 DISPUTE RESOLUTION
------------------
3.1 Save in relation to any dispute or difference concerning a
Proposed Variation (in respect of which paragraph 2 shall
apply), and subject always to subparagraph 3.2, any dispute
or difference of whatever nature howsoever arising under out
of or in connection with this Schedule and/or the Appendices
(in this paragraph 3 referred to as a "Dispute") shall be
and hereby is referred to arbitration pursuant to the
arbitration rules of the Electricity Arbitration Association
in force from time to time.
3.2 (a) In this sub-paragraph 3.2, each Party which is party to
the Dispute in question is referred to as "a Disputing
Party" and "Disputing Parties" shall be construed
accordingly.
(b) Before submitting any notice under the arbitration
rules commencing arbitration proceedings in relation to
any Dispute, unless a notice shall have been served in
respect of that Dispute pursuant to sub-paragraph
3.2(c), a Disputing Party shall first serve written
notice on all other Disputing Parties of its intention
to commence arbitration proceedings. Arbitration
proceedings may not then be commenced until the 30 day
period referred to in sub-paragraph 3.2(c)(ii) shall
have elapsed without a notice pursuant to that sub-
paragraph having been served or, where such notice has
been served within such period, except in the
circumstances provided in sub-paragraphs 3.2(d) and
(e).
(c) If a Disputing Party reasonably believes that the
subject matter of the Dispute is directly relevant to,
or the resolution of the Dispute would have a material
effect upon, any one or more other Parties not being
Disputing Parties, then that Disputing Party may:
(i) for so long as no notice is served in accordance
with sub-paragraph 3.2(b) above, at any time, or
(ii) upon receipt of any such notice, within 30 days
thereafter,
serve written notice on all other Disputing Parties of
its intention to raise the Dispute as a TUG Issue at a
meeting of the Transmission Users Group. Upon receipt
of such notice, no Disputing Party may subsequently
commence arbitration proceedings except in the
circumstances provided in sub-paragraphs 3.2(d) and
(e).
(d) Not earlier than 30 days nor later than 90 days after a
notice is served pursuant to sub-paragraph 3.2(c)
above, the Representative of that and/or any other
Disputing Party may submit written details of the
Dispute as a TUG Issue at a meeting of the Transmission
Users Group. Provided it shall first have been given
the opportunity to consult with regard to the nature
and scope of confidential information relating to its
affairs proposed to be disclosed, each Disputing Party
hereby consents to such disclosure of confidential
information (but not rates and prices) relating to its
affairs to the extent relevant to the Dispute. If such
written details are not so submitted prior to expiry of
such 90 day period, then any Disputing Party wishing to
commence arbitration proceedings in relation to the
Dispute in question may thereafter do so.
(e) Upon the expiry of the period of 120 days after the
date on which written details of the Dispute are
submitted at a meeting of the Transmission Users Group
in accordance with subparagraph 3.2(d), any Disputing
Party wishing to commence arbitration proceedings in
relation to the Dispute in question may thereafter do
so.
3.3 Clause 26.1 of this Agreement shall be read and construed
accordingly.
4. OBLIGATORY REACTIVE POWER SERVICE - DEFAULT PAYMENT
---------------------------------------------------
ARRANGEMENTS
------------
4.1 Notwithstanding any other provision of this Agreement, the
provisions of this Schedule and the Appendices, together
with the Ancillary Services Agreements referred to in sub-
paragraph 4.6, shall govern the rights and obligations of
the Parties with respect to payments to be made by NGC to
Users for the provision of the Obligatory Reactive Power
Service.
4.2 Subject always to paragraph 5, and notwithstanding:
(a) 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; and
(b) the provisions of any Ancillary Services Agreement now
or hereafter in effect (but subject always to
subparagraph 6.2),
the payments to be made by NGC to Users for the provision of
the Obligatory Reactive Power Service in all Ancillary
Services Agreements under which Users are or will be paid
for the Obligatory Reactive Power Service shall, subject
always to sub-paragraphs 2.5 and 4.7, in respect of all
periods from (and including) 1st October, 1997 to (and
including) 31st March, 2000 comprise solely payments for
capability and utilisation, and thereafter comprise solely
payments for utilisation, in each case determined in respect
of each Settlement Period in accordance with sub-paragraph
4.3.
4.3 Save to the extent and for the duration of any Market
Agreement (as defined in sub-paragraph 5.1) which may be
entered into between NGC and a User as referred to in
paragraph 5:
(a) the utilisation and capability payment for provision of
the Obligatory Reactive Power Service from Despatch
Units shall be determined in accordance with the
provisions of Appendix 1; and
(b) the utilisation and capability payments for provision
of the Obligatory Reactive Power Service from Non-
Centrally Despatched Generating Units shall be
determined on a basis to be agreed between NGC and each
relevant User but, so far as reasonably practicable,
consistent with the provisions of Appendix 1 (but so
that such payments shall not become due and payable
from NGC to any such User with effect from a date
earlier than that on which the relevant Ancillary
Services Agreement referred to in subparagraph 4.6 is
so amended or concluded).
4.4 The Parties acknowledge and agree that, as at the date this
Schedule comes into effect:
(a) the totality of payments for the provision of the
Obligatory Reactive Power Service, determined in
accordance with the provisions of this paragraph 4,
reflect so far as reasonably practicable the overall
variable costs (on the basis of the charging principles
set out in Appendix 8) incurred across all relevant
Generating Units of the provision of the Obligatory
Reactive Power Service (whether or not payments are
made in respect of those Generating Units pursuant to
this paragraph 4 or pursuant to Market Agreements
entered into in accordance with paragraph 5); and
(b) without prejudice to the review of the indexation
factor specified as item 4 in Appendix 7, such totality
of payments will continue to reflect those overall
variable costs notwithstanding all and any variations
thereto reasonably anticipated at such date.
4.5 It is hereby agreed and acknowledged that nothing in this
Schedule and the Appendices shall affect in any way the
obligation on each User to comply with the provisions of the
Grid Code insofar as they relate to Reactive Power. For the
avoidance of doubt, and without limiting the foregoing, it
is hereby agreed and acknowledged that, notwithstanding that
the payments for the Obligatory Reactive Power Service with
effect from 1st April, 2000 shall, subject always to sub-
paragraph 2.5, comprise solely payments for utilisation,
nothing in this Schedule and the Appendices shall relieve
Users from the obligation to comply with the provisions of
the Grid Code in relation to Reactive Power by virtue of
Sub-Clause 9.3 of this Agreement or otherwise howsoever.
4.6 Ancillary Services Agreements have been and will continue to
be entered into bilaterally between NGC and Users but it is
intended that subject as provided below, Ancillary Services
Agreements between NGC and Users providing the Obligatory
Reactive Power Service will be amended or (if not in
existence when this Schedule takes effect) concluded so as
to give effect to the provisions of sub-paragraphs 4.2 and
4.3. Subject always to sub-paragraphs 4.8 and 6.2, NGC and
each relevant User therefore agree, as soon as reasonably
practicable, to amend the existing Ancillary Services
Agreement or conclude a new Ancillary Services Agreement in
respect of each relevant Generating Unit in order to give
effect to the provisions of sub-paragraphs 4.2 and 4.3.
4.7 For the avoidance of doubt, no payments referred to in this
paragraph 4 shall be payable by NGC to a User in relation to
any Generating Unit unless and until the relevant Ancillary
Services Agreement is so amended or concluded as provided in
sub-paragraph 4.6.
4.8 Notwithstanding the foregoing provisions of this paragraph
4, and without prejudice to paragraph 7, NGC shall only be
obliged to amend or conclude any Ancillary Services
Agreement with regard to any Generating Unit if:
(a) the leading or lagging Reactive Power capability
required of that Generating Unit in accordance with
Grid Code CC 6.3.2 is 15 Mvar or more (measured at the
Commercial Boundary); and
(b) where that Generating Unit is not subject to Central
Despatch, NGC and the relevant User shall have agreed
terms (to be incorporated into the Ancillary Services
Agreement) with regard to despatch facilities,
including the ability for NCC to obtain relevant
technical, planning and other data in connection
therewith; and
(c) there exists in rotation to that Generating Unit
metering facilities meeting the requirements of
Appendix 4.
5. OBLIGATORY REACTIVE POWER SERVICE AND ENHANCED REACTIVE
-------------------------------------------------------
POWER SERVICES - MARKET PAYMENT MECHANISM
-----------------------------------------
5.1 Nothing in this Schedule and the Appendices, and nothing in
any Ancillary Services Agreement entered into or amended in
accordance with sub-paragraph 4.6, shall prevent or
restrict:
(a) the entering into or amendment of any Ancillary
Services Agreement between NGC and any User to provide
for the making of payments by NGC to that User for the
provision of the Obligatory Reactive Power Service on
an alternative basis to that set out or referred to in
paragraph 4; or
(b) the entering into or amendment of any Ancillary
Services Agreement between NGC and any User (or other
person) for the provision of Enhanced Reactive Power
Service.
Any such agreement constituting an Ancillary Services
Agreement or an amendment thereto and which is entered into
in accordance with the principles contained in sub-paragraph
5.3 is referred to in this Schedule and the Appendices as a
"Market Agreement".
5.2 The coming into effect of a Market Agreement in relation to
any Generating Unit shall, in respect of that Generating
Unit, suspend and replace for the duration thereof the
provisions for payment for the Obligatory Reactive Power
Service (if applicable) set out or referred to in paragraph
4. In such a case, and for the avoidance of doubt, with
effect from the expiry or termination of the Market
Agreement, the provisions for payment for the Obligatory
Reactive Power Service set out or referred to in paragraph 4
shall in relation to that Generating Unit cease to be
suspended and shall resume full force and effect.
5.3 The following principles shall govern the entering into of
Market Agreements:
(a) Relevant Dates
(i) Each Market Agreement will commence an either 1st
April or 1st October, whichever next follows the
submission by NGC of the package of information as
more particularly described in sub-paragraph
5.3(b)(i) ("Contract Start Days"). The first such
Contract Start Day will be 1st April, 1998.
(ii) For the purposes of this sub-paragraph 5.3:
(a) a Market Day shall be a date not earlier than
twenty weeks and not later than sixteen weeks
prior to a Contract Start Day; and
(b) a Tender Period shall be a period of at least
eight consecutive weeks, commencing on a date
nominated by NGC and ending on a Market Day.
(b) Submission of Tender information by NGC
(i) NGC shall, acting reasonably and having regard to
the principles contained in this sub-paragraph
5.3, compile a package of information for the use
of interested parties comprising technical,
procedural and contractual requirements,
directions and specifications to govern Market
Agreements to take effect from the following
Contract Start Day. NGC shall ensure that such
requirements, directions and specifications do not
conflict with any of the principles contained in
this sub-paragraph 5.3 and so far as reasonably
practicable do not discriminate between Tenderers.
(ii) Prior to the commencement of each Tender Period,
NGC shall provide to all persons who shall by then
have requested the same the package of information
as more particularly described in sub-paragraph
5.3(b)(i).
(c) Submission of Tenders
During the Tender Period, but for the avoidance of
doubt not later than the Market Day, an interested
party may submit to NGC:
(i) in relation to any Generating Unit providing the
Obligatory Reactive Power Service, prices for and
Tendered Capability Breakpoints relating to the
provision thereof; or
(ii) in relation to that Generating Unit, a tender for
provision of the Enhanced Reactive Power Service
specified in sub-paragraph 1.3(a) and/or (b)
and/or (c); and/or
(iii) in relation to any other Generating Unit or other
Plant and Apparatus (or other equipment), a tender
for provision of the Enhanced Reactive Power
Service specified in sub-paragraph 1.3(b) and/or
(c),
in each case in accordance with sub-paragraph 5.3(d).
All such submissions are referred to in this Schedule
and the Appendices as "Tenders" and "Tenderers" shall
be construed accordingly.
(d) Form of Tenders
(i) All Tenders submitted by Users which comprise:
(a) prices for and Tendered Capability
Breakpoints relating to the provision of the
Obligatory Reactive Power Service from
Despatch Units; and
(b) terms for the provision of the Enhanced
Reactive Power Service specified in sub-
paragraph 1.3(a) from Despatch Units,
shall be completed on the basis that payment will
be determined in respect of each Settlement Period
in accordance with the formulae and other
provisions set out in Appendix 2 and in the manner
set out in Appendix 5.
(ii) All other Tenders (including without limitation
those in respect of Non-Centrally Despatch
Generating Units and those comprising terms for
the provision of the Enhanced Reactive Power
Service specified in sub-paragraphs 1.3(b) and
(c)) shall be submitted in accordance with and on
the basis of such (if any) reasonable directions
given by NGC in the package of information
referred to in subparagraph 5.3(b)(i) or otherwise
in such manner as may be reasonably specified by
NGC from time to time, which directions shall in
either case be, so far as reasonably practicable,
consistent with the provisions of Appendices 2 and
5.
(iii) Each Tender comprising prices for and Tendered
Capability Breakpoints relating to the provision
of the Obligatory Reactive Power Service shall be
submitted on the basis that NGC may only select
all (and not some) of the prices and Tendered
Capability Breakpoints comprised therein.
(iv) Save where expressly provided otherwise in a
Tender, each Tender comprising terms for the
provision of an Enhanced Reactive Power Service
shall be treated as having been submitted on the
basis that NGC may select all or part only of the
Reactive Power capability comprised therein
(which, in the case of the Enhanced Reactive Power
Service specified in sub-paragraph 1.3(a), shall
mean all or part only of the excess capability
comprised therein).
(v) All Tenders shall be submitted in respect of
periods of whole and consecutive calendar months,
to be not less than twelve months and in multiples
of six months, to commence on the next following
Contract Start Day. Save where expressly provided
otherwise in a Tender, a Tender (whether in
relation to the Obligatory Reactive Power Service
or an Enhanced Reactive Power Service) shall be
treated as having been submitted on the basis that
NGC may select all or part only of any period so
tendered (in multiples of six months), subject to
a minimum period of twelve consecutive months,
commencing on the next following Contract Start
Day.
(e) Qualification and Evaluation of Tenders
(i) Each Tender must satisfy the mandatory
qualification criteria set out in Section A of
Appendix 6.
(ii) NGC shall evaluate and (without prejudice to sub-
paragraphs 5.3(d)(iii), (iv) and (v)) select
Tenders (or part(s) thereof) on a basis consistent
with its obligations under the Act, the
Transmission License and this Agreement and,
subject thereto, in accordance with the evaluation
criteria set out in Section B of Appendix 6.
Without limitation, NGC reserves the right to
require tests of a Generating Unit or other Plant
and Apparatus (or other equipment), on a basis to
be agreed with a Tenderer, as part of the
evaluation of a Tender.
(iii) NGC shall use reasonable endeavours to evaluate
Tenders within ten weeks from each Market Day.
(f) Entering into of Market Agreements
(i) Having selected a Tender (or part(s) thereof) in
accordance with sub-paragraph 5.3(e), NGC shall
notify the relevant Tenderer that it wishes to
enter into a Market Agreement in respect thereof
and that Tenderer and NGC shall each use
reasonable endeavours to agree the terms of, and
enter into, a Market Agreement in respect thereof
as soon as reasonably practicable but in any event
not later than 4 weeks prior to the relevant
Contract Start Day. Notwithstanding the
foregoing, if a Market Agreement has not been
entered into by the date being 4 weeks prior to
the relevant Contract Start Day, then either NGC
or the Tenderer shall be entitled, provided that
it shall have used all reasonable endeavours to
agree the terms of, and enter into, the Market
Agreement as aforesaid, to notify the other that
it no longer wishes to enter into the Market
Agreement, whereupon the Tender in question shall
be deemed to be withdrawn.
(ii) In the event of a deemed withdrawal of a Tender in
the circumstances set out in sub-paragraph
5.3(f)(i), NGC shall be entitled to re-evaluate
and select all or part of any outstanding Tenders
in accordance with sub-paragraphs 5.3(c)(i) and
(ii) and to notify one or more Tenderers; if, in
substitution for the Tender so deemed to be
withdrawn, it wishes to enter into a Market
Agreement in respect of any other Tender or
Tenders (or part(s) thereof). Following such
notification, NGC and each Tenderer in question
shall use reasonable endeavours to agree the terms
of, and enter into, a Market Agreement prior to
the relevant Contract Start Day.
(iii) If, in respect of any Tender, a Market Agreement
is not entered into by the relevant Contract Start
Day, that Tender shall be deemed to be withdrawn.
(iv) Save where otherwise provided in this paragraph 5,
all Market Agreements must be entered into on the
basis of the terms set out in the relevant Tender
(or relevant part(s) thereof).
(g) Legal Status of Tenders
For the avoidance of doubt, a Tender shall not
constitute an offer open for acceptance by NGC, and in
respect of any Tender or part(s) thereof selected by
NGC pursuant to sub-paragraph 5.3(e) or (f), neither
the Tenderer in question nor NGC shall be obliged to
provide or pay for the Obligatory Reactive Power
Service and/or an Enhanced Reactive Power Service upon
the terms of that Tender (or the relevant part(s)
thereof) unless and to the extent that those terms are
incorporated in a Market Agreement subsequently entered
into.
(h) Publication
(i) Within the six weeks following each Contract Start
Day, NGC shall provide to all persons requesting
the same the following information:
(a) in respect of all Market Agreements then
subsisting, prices and contacted Reactive
Power capability on an individual Tender
basis relating to the period from the
immediately preceding Contract Start Day
until the next following Contract Start Day;
(b) in respect of all Ancillary Services
Agreements (including Market Agreements)
subsisting in respect of the six month period
ending on the immediately preceding Contract
Start Day (commencing with that ending on 30
September, 1998), details of utilisation of
Mvarh provided by individual Despatch Units
(or, where relevant, Non-Centrally Despatched
Generating Units, other Plant and/or
Apparatus or other equipment) pursuant to the
Obligatory Reactive Power Service and
Enhanced Reactive Power Services;
(c) details of the circumstances surrounding any
failure by NGC during the preceding six month
period to perform any of its duties and
responsibilities under this paragraph 5 in
the circumstances referred to in paragraph 7;
and
(d) any other information reasonably considered
by NGC to be pertinent to the Tender process,
and, to this extent, each party consents to the
disclosure by NGC of the information referred to
in sub-sub-paragraphs (a) and (b) above in so far
as it relates to the provision of the Obligatory
Reactive Power Service and (where applicable) an
Enhanced Reactive Power Service from its
Generating Units and/or other Plant and Apparatus
(or other equipment).
(ii) Without prejudice to the provision of information
pursuant to sub-paragraph 5.3(h)(i), NGC further
agrees to use all reasonable endeavours to provide
to all persons requesting the same, within the six
weeks following each Contract Start Day, estimates
of the Mvarh absorption and generation by the NGC
Transmission System, where used for the purposes
of voltage support, during the preceding six month
period (commencing with that ending on 30th
September, 1998).
6. AMENDMENT AND CONCLUSION OF ANCILLARY SERVICES AGREEMENTS
---------------------------------------------------------
6.1 NGC and each relevant User shall promptly do all such acts
and execute and deliver such agreements and other
documentation as may be necessary to amend or conclude the
relevant Ancillary Services Agreements so as to give effect
to the provisions of this Schedule and the Appendices as
amended from time to time.
6.2 Sub-paragraphs 4.6 and 6.1 shall not require NGC or any User
to amend or conclude an Ancillary Services Agreement so as
to give effect to this Schedule and the Appendices if and to
the extent that, in respect of any Generating Unit, NGC and
such User shall have expressly agreed in writing that no
payments shall be made by NGC to such User under an
Ancillary Services Agreement for the provision of the
Obligatory Reactive Power Service from that Generating Unit.
7 STATUTORY AND REGULATORY OBLIGATIONS
------------------------------------
7.1 No Party shall be bound to perform any of its duties or
responsibilities under this Schedule and the Appendices
(including without limitation with regard to the amending or
concluding of Ancillary Services Agreements in accordance
with sub-paragraph 4.6 and the entering into of Market
Agreements in accordance with paragraph 5) if and to the
extent that to do so would be likely to involve that Party
in breach of its duties and obligations (if any) under the
Act or of any condition of a License. Accordingly, nothing
in this Schedule and the Appendices shall preclude NGC from
procuring the provision of any Enhanced Reactive Power
Service in a manner otherwise than in accordance with
paragraph 5 in order to comply with its duties and
obligations under the Act and/or any condition of the
Transmission License to the extent such compliance cannot
reasonably be assured by the performance of its duties and
responsibilities under paragraph 5.
7.2 Without prejudice to sub-paragraph 7.1, NGC shall not be
bound to comply with the provisions of sub-paragraph 5.3(h)
with regard to the disclosure of information to the extent
that to do so would be likely to restrict, distort or
prevent competition in the provision of the Obligatory
Reactive Power Service and/or Enhanced Reactive Power
Services.
<PAGE>
APPENDIX 1
----------
PAYMENTS FOR THE OBLIGATORY REACTIVE
-------------------------------------
POWER SERVICE - DEFAULT PAYMENT ARRANGEMENTS
---------------------------------------------
The provisions of this Appendix 1, as referred to in sub-
paragraph 4.2 of this Schedule, shall apply to the calculation of
default payments for provision of the Obligatory Reactive Power
Service from Despatch Units. All payments shall be expressed in
pounds sterling.
1. TOTAL PAYMENT
-------------
Total Payment (PT) = PU + PC [pound sterling per
Settlement Period per
Despatch Unit]
where, subject always to paragraphs 7 and 8 below:
PU = the utilisation payment in respect of a Despatch
Unit for a Settlement Period determined in
accordance with paragraph 2 below; and
PC = the capability payment in respect of a Despatch
Unit for a Settlement Period determined in
accordance with paragraph 3 below.
2. UTILISATION PAYMENT
-------------------
PU = BP = U [pound sterling per Settlement
Period per Despatch Unit]
Where
BP = 46,270,000 * I * X [pound sterling/Mvarh]
------------------
42,054,693
Where
I = defined in paragraph 5 below:
X = a factor which shall be:
(i) in respect of any Settlement Period from (and
including) 1st October, 1997 to (and including)
31st March, 1998, 0.2; and
(ii) in respect of any Settlement Period from (and
including) 1st April, 1998 to (and including) 31st
March, 1999, 0.5 (subject as provided below); and
(iii) subject always to sub-paragraph 2.5 of this
Schedule, in respect of any Settlement Period from
(and including) 1st April, 1999 to (and including)
31st March, 2000, 0.75 (subject as provided
below); and
(iv) subject always to sub-paragraph 2.5 of this
Schedule, in respect of all Settlement Periods
thereafter, 1.00 (subject as provided below):
Provided always that with effect from 1st April, 1998,
X shall be 0.2 in all Settlement Periods from (and
including) that in which:
(a) the relevant Despatch Unit (or, in relation to a
Centrally Despatched CCGT Module, any relevant
CCGT Unit) fails a Reactive Test until (and
including) the Settlement Period in which a
subsequent Reactive Test is passed in relation to
that Despatch Unit (Or CCGT Unit (as the case may
be)); or
(b) the User fails (other than pursuant to an
instruction given by NGC or as permitted by the
Grid Code) to set the Automatic Voltage Regulator
of the Despatch Unit (or, in relation to a
Centrally Despatched CCGT Module, any relevant
CCGT Unit) to a voltage following mode until (and
including) the Settlement Period in which the User
notifies NGC that the Automatic Voltage Regulator
is so set; or
(c) the Despatch Unit fails to comply with a Reactive
Despatch Instruction due to the fact that the
Despatch Unit (or, in relation to a Centrally
Despatched CCGT Module, any relevant CCGT Unit) is
unable to increase and/or decrease its Mvar output
(other than as a direct result of variations in
System voltage) until (and including) the
Settlement Period in which the User notifies NGC
that the Despatch Unit is so able to comply; or
(d) the Despatch Unit fails to have a Mvar range which
includes the ability to provide zero Mvar at the
Commercial Boundary until (and including) the
Settlement Period in which the User notifies NGC
that the Despatch Unit has or once more has such
range; and
U = defined in Section 1 of Appendix 3.
3. CAPABILITY PAYMENT
------------------
PC = [[(BP * ZWF * QC * QSF) + (BP * ZWF * QC * QSF )]
* ]] [pound sterling per Settlement Period per
Despatch Unit]
Provided always that PC shall be 0 in all Settlement Periods
from (and including) that in which:
(i) the User fails (other than pursuant to an instruction
given by NGC or as permitted by the Grid Code) to set
the Automatic Voltage Regulator of the Despatch Unit
(or, in relation to a Centrally Despatched CCGT Module,
any relevant CCGT Unit) to a voltage following mode
until (and including) the Settlement Period in which
the User notifies NGC that the Automatic Voltage
Regulator is so set; or
(ii) the Despatch Unit fails to comply with a Reactive
Despatch Instruction due to the fact that the Despatch
Unit (or in relation to a Centrally Despatched CCGT
Module, any relevant CCGT Unit) is unable to increase
and/or decrease its Mvar output (other than as a direct
result of variations in System voltage) until (and
including) the Settlement Period in which the User
notifies NGC that the Despatch Unit is so able to
comply; or
(iii) the Despatch Unit fails to have a Mvar range which
includes the ability to provide zero Mvar at the
Commercial Boundary until (and including) the
Settlement Period in which the User notifies NGC that
the Despatch Unit has or once more has such range; or
(iv) a continuous period of unavailability of a Despatch
Unit to be Despatched by NGC in accordance with Grid
Code SDC extends beyond 75 consecutive days until (and
including) the Settlement Period in which the Despatch
Unit is subsequently declared available in accordance
with Grid Code SDC,
Where
BP = 46,270,000 * I * Y [pound sterling/Mvar per
------------------ Settlement Period]
0.868178624 * 16,112 * 8,760 * 2
Where
I = defined in paragraph 5 below:
Y = a factor which shall be:
(i) in respect of any Settlement Period from (and
including) 1st October, 1997 to (and including)
31st March, 1998, 0.8; and
(ii) in respect of any Settlement Period from (and
including) 1st April, 1998 to (and including) 31st
March, 1999, 0.5; and
(iii) subject always to sub-paragraph 2.5 of this
Schedule, in respect of any Settlement Period from
(and including) 1st April, 1999 to (and including)
31st March, 2000, 0.25; and
(iv) subject always to sub-paragraph 2.5 of this
Schedule, in respect of all Settlement Periods
thereafter, 0;
ZWF = the Provisional Zonal Weighting Factor defined in
paragraph 4 below (expressed to apply to both
leading and lagging Mvar) subject to
reconciliation in accordance with that paragraph;
QC = defined in Section 2 of Appendix 3 (expressed to
apply to both leading and lagging M var);
QSF = the shortfall factor relating to the capability
payment (expressed as either QSF[lead] or QSF[lag]
to apply respectively to capability leading and
capability lagging as applicable), being:
( QR )
min (1,(------)[2] )
( QC )
Where
QR = defined in Section 2 of Appendix 3 (expressed to
apply to both leading and lagging Mvar); and
J = 1 in each Settlement Period in which, in relation
to the Despatch Unit n question. Genset
Registered Capacity is greater than 2MW, otherwise
0.
4. ZONAL WEIGHTING FACTORS
-----------------------
ZWF = the Provisional Zonal Weighting Factor (expressed
as either ZWF [lead] or ZWF[lag] to apply
respectively to the zonal weighting factor leading
and the zonal weighting factor lagging) for the
Despatch Unit, calculated as follows:
(a) In respect of the period from (and including)
1st October, 1997 to (and including) 31st
March, 1998 and in respect of each subsequent
twelve month period ending 31st March,
provisional zonal weighting factors ("the
Provisional Zonal Weighting Factors") shall
be calculated by NGC in respect of both
leading and lagging Reactive Power by
reference to:
(i) the leading or lagging (as the case may
be) Mvar "need" for leading or lagging
(as the case may be) Reactive Power for
that period in each Relevant Zone,
divided by
(ii) the total leading or lagging (as the
case may be) Mvar capability for that
period in each Relevant Zone as forecast
by NGC ("the Total Forecast
Capability").
with the result of that division in each case
being multiplied by an adjustment factor
being:
16112
-----
TAN
Where
TAN = a figure being, for the period from (and
including) 1st October, 1997 to (and
including) 31st March, 1998, 14,775, and
for each subsequent twelve month period
ending 31st March, a figure being the
sum total of the leading Mvar "need" for
leading Reactive Power plus the sum
total of the lagging Mvar "need" for
lagging Reactive Power in all Reactive
Power Zones for the twelve month period
in question, as given year in the Seven
Year Statement.
provided that each Provisional Zonal Weighting
Factor (both leading and lagging) shall not in any
event be greater than 3,000 and provided further
that (for the avoidance of doubt) no determination
of ZWF [lead] ZWF [lag] and TAN shall be made in
respect of any such twelve month period when Y =
0.
(b) the Provisional Zonal Weighting Factors, together
with the Total Forecast Capability, will be
notified by NGC as soon as reasonably practicable
by publication in the first practicable Seven Year
Statement (or any update thereof).
Reconciliation
As soon as reasonably practicable following the expiry
of each twelve month period ending 31st March, NGC
shall recalculate ZWF [lead] ZWF [lag] for that twelve
month period in accordance with the above provisions
for calculation of the Provisional Zonal Weighting
Factors but substituting for the Total Forecast
Capability the actual total leading or lagging (as the
case may be) Mvar capability for that twelve month
period in each Relevant Zone as determined by NGC ("the
Total Actual Capability"). Such recalculation of ZWF
[lead] and ZWF [lag] shall be undertaken by NGC in a
manner consistent with the principles and methodologies
set out in the document entitled "Methodology Document
for the Recalculation of Zonal Weighting Factors"
published by NGC for this purpose. Such recalculated
figures for ZWF [lead] and ZWF [lag] ("the Final Zonal
Weighting Factors"), together with the Total Actual
Capability, shall be published by NGC in the Seven Year
Statement. Each Final Zonal Weighting Factor (both
leading and lagging) shall not in any event be greater
than 3,000 and (for the avoidance of doubt) no
determination of ZWF [lead], ZWF [lag] and TAN shall be
made in respect of any such twelve month period when
Y=O.
NGC shall derive the Total Actual Capability from the
Mvar capability (required under and in accordance with
the Connection Conditions of the Grid Code) of
Generating Units in respect of which Ancillary Services
Agreements have been or will be amended or concluded to
give effect to the provisions of sub-paragraphs 4.2 and
4.3 of this Schedule. In respect of any twelve month
period ending 31st March, such Mvar capability shall be
reduced pro rata for all Settlement Periods in such
twelve month period in respect of which no capability
payments referred to in this Appendix 1 shall fall due:
(a) by virtue of paragraph 7 below (with effect from
the commencement of the twelve month period in
question); and
(b) by virtue of paragraph 8 below (until the end of
the twelve month period in question); and
(c) by virtue of factor J referred to in paragraph 3
above being set to zero (at any time during the
twelve month period in question).
As soon as reasonably practicable following publication
of the relevant Seven Year Statement, NGC shall pay to
each relevant User or be paid by each relevant User
such sum as will reconcile:
(i) capability payments made to that User and
calculated in accordance with paragraph 3 above by
reference to the Provisional Zonal Weighting
Factors;
with
(ii) capability payments due to or from that User and
calculated in accordance with paragraph 3 above by
reference to the Final Zonal Weighting Factors.
For the avoidance of doubt, such reconciliation will
include the payment of interest at the Base Rate from
the date of payment by NGC to that User of the
capability payments referred to at (i) above.
For clarification purposes, each reference in this
paragraph 4 to "need" does not imply actual Reactive
Power need but is used merely to refer to the figure
identified as "need" in the Seven Year Statement. Such
figure shall be determined each year using the same
principles and methodologies as used to determine the
zonal weighting factors for the twelve month periods
ended on 31st March, 1996 and 31st March, 1997.
5 INDEXATION
----------
The indexation factor I used in the formulae in paragraphs 2
and 3 above shall, with effect from 1st October, 1997 in
respect of the period from (and including) that date to (and
including) 31st March, 1998, and with effect from 1st April
in respect of each subsequent twelve month period ending
31st March, be determined as follows:
I = RPI[2]
------
RPI[1]
Where
For the period from (and including) 1st October, 1997 to
(and including) 31st March, 1998 RPI[2] = 155.4, and
thereafter RPI[2] is the RPI for March of the immediately
preceding twelve month period ending 31st March.
RPI[1] is the RPI for March, 1994 (142.5).
The index used is the Retail Prices Index (RPI) with 1987 =
100 base. The source of the RPI index is the monthly
Department of Employment "Employment Gazette".
In the event that RPI ceases to be published or is not
published in respect of any relevant month or it is not
practicable to use RPI because of a change in the method of
compilation or some other reason, the indexation factor I
shall be calculated by NGC using an alternative index
nominated by NGC as it thinks fit acting reasonably but with
a view to determining the relevant payment after indexation
that would be closest to the relevant payment after
indexation if RPI had continued to be available.
Subject always to sub-paragraph 2.5 of this Schedule, in
respect of all periods from (and including) 1st April, 2001
the indexation factor I applicable for the period from (and
including) 1st April, 2000 to (and including) 31st March,
2001 shall apply.
6 INFORMATION UNAVAILABLE
-----------------------
Where any information or data required by NGC for the
calculation of payments to be made pursuant to this Schedule
for any 12 month period ending 31st March is not available
to NGC at the relevant time, NGC shall calculate payments
for that 12 month period based upon the amounts payable to
Users for the immediately preceding 12 month period adjusted
by NGC to reflect its best estimate of the unavailable
information or data. Once such information or data is
available, NGC shall accordingly make all consequential
adjustments to the payments from itself to Users as soon as
reasonably practicable thereafter to reflect any repayment
or additional payment so required to be made by one party to
the other in respect of the period from 1st April in such
year until the date of such repayment or additional payment
(including interest thereon at the Base Rate).
7 COMMISSIONING
-------------
7.1 Save in relation to Despatch Units operational prior to 1st
April, 1997, no utilisation or capability payments referred
to in this Appendix 1 shall fall due and payable to any User
in respect of any Despatch Unit until the Settlement Period
in which it is demonstrated to the reasonable satisfaction
of NGC, having regard to industry practice, that the
Despatch Unit (or, in or the case of a Centrally Despatched
CCGT Module, but subject always to sub-paragraph 7.4 below,
each relevant CCGT Unit) complies with the provisions of
Grid Code CC6.3.2 and CC6.3.4 or (where NGC in its sole
discretion requires Reactive Power from a Despatch Unit
before then for the purposes of security of the NGC
Transmission System) such earlier date as NGC may agree with
a User in respect of that Despatch Unit.
7.2 Before any demonstration of compliance referred to in sub-
paragraph 7.1 above, it shall be necessary for the User to
demonstrate to NGC's reasonable satisfaction, having regard
to industry practice, that the Despatch Unit's (or, in the
case of a Centrally Despatched CCGT Module, each relevant
CCGT Unit's) Excitation system, and in particular the Under-
excitation Limiter, has been successfully commissioned and
complies with the provisions of Grid Code CC6.3.8.
7.3 For the avoidance of doubt, the issue by NGC in relation to
a Despatch Unit of a Despatch Instruction to unity power
factor or zero Mvar shall neither imply by itself that NGC
is reasonably satisfied with compliance as referred to in
sub-paragraph 7.1 above nor imply in relation to the
Despatch Unit agreement by NGC of an earlier date as also
referred to therein.
7.4 Until such time as it shall be demonstrated to the
reasonable satisfaction of NGC that, in relation to a
Centrally Despatched CCGT Module, all relevant CCGT Units
comply with the provisions of Grid Code CC6.3.2 and CC6.3.4
as referred to in sub-paragraph 7.1 above, it is the
intention that capability and utilisation payments shall
fall due to a User in respect of that Centrally Despatched
CCGT Module notwithstanding the provisions of sub-paragraph
7.1 above but on the basis that capability payments will be
calculated by reference to the Reactive Power capability of
each CCGT Unit in respect of which compliance has been
demonstrated. For such period, and in relation to that
Centrally Despatched CCGT Module only, this Appendix 1 and
the definition of QC and QR set out in Appendix 3 shall be
read and construed accordingly.
8 DE-ENERGISATION, DECOMMISSIONING AND DISCONNECTION
--------------------------------------------------
Subject to all rights and obligations of NGC and the User
accrued at such date, utilisation and capability payments
referred to in this Appendix 1 shall cease to fall due and
payable to any User in respect of any Despatch Unit with
effect from the date of expiry or termination for whatever
reason of the relevant Ancillary Services Agreement in
accordance with its terms or (if earlier) with effect from
the date of De-energisation, Decommissioning or
Disconnection of that Despatch Unit for any reason pursuant
to the relevant Supplemental Agreement or this Agreement.
9 RECONCILIATION
--------------
As soon as practicable after this Schedule has taken effect
and Ancillary Services Agreements have been amended so as to
give effect thereto, NGC will pay to each relevant User or
be paid by each relevant User such sum as will reconcile:
(a) payments (if any) made to such User for the provision
of the Obligatory Reactive Power Service from Despatch
Units in respect of the period from 1st October, 1997
to (and including) the date of such reconciliation by
NGC
with
(b) payments due to or from such User pursuant to any
Ancillary Services Agreements giving effect to this
Schedule in respect of the period from 1st October,
1997 to the date of such reconciliation (both dates
inclusive) as if such Ancillary Services Agreements had
then been effective.
For the avoidance of doubt, such reconciliation will include
the payment of interest at Base Rate from the date of the
relevant payment by NGC referred to at sub-paragraph 9(a)
above.
<PAGE>
APPENDIX 2
----------
PAYMENTS FOR THE OBLIGATORY REACTIVE POWRE SERVICE
--------------------------------------------------
AND ENHANCED REACTIVE POWER SERVICES - MARKET MECHANISM
--------------------------------------------------------
The provisions of this Appendix 2, as referred to in sub-
paragraph 5.3(d)(i) of this Schedule, shall apply to the
calculation of payments in respect of Tenders comprising prices
for and Tendered Capability Breakpoints relating to the
Obligatory Reactive Power Service and in respect of Tenders
comprising terms for the provision of the Enhanced Reactive Power
Service specified in sub-paragraph 1.3(a) of this Schedule, in
each case in respect of Despatch Units. All payments shall be
expressed in pounds sterling. All algebraic terms contained in
this Appendix 2 shall bear the meanings set out in paragraph 1
below unless the context otherwise requires.
1. DEFINITIONS
-----------
For the purposes of this Appendix 2, unless the context
otherwise requires, the following terms shall have the
following meanings:
A[11] = Genset Metered Generation (as
defined in the Pool Rules) in
respect of a Despatch Unit for
a Settlement Period;
CA1, CA2 and CA3 = the available capability
prices (expressed to apply to
both leading and lagging)
(pound sterling/Mvar/h) (as
more particularly described in
paragraph 2 of Appendix 5) as
specified in the relevant
Market Agreement;
CS1, CS2 and CS3 = the synchronised capability
prices (expressed to apply to
both leading and lagging)
(pound sterling/Mvar/h) (as
more particularly described in
paragraph 2 of Appendix 5) as
specified in the relevant
Market Agreement;
CU1, CU2 and CU3 = the utilisation prices
(expressed to apply to both
leading and lagging) (pound
sterling Mvar/h) (as more
particularly described in
paragraph 2 of Appendix 5) as
specified in the relevant
Market Agreement;
K = in respect of Centrally
Despatched CCGT Modules, the
relevant configuration factor
as specified in the relevant
Market Agreement, otherwise 1;
Q[lead] = defined in Section 2 of
Appendix 3;
Q[lag] = defined in Section 2 of
Appendix 3;
Q1, Q2 and Q3 = the contracted capability
breakpoints (expressed to
apply to both leading and
lagging) in whole Mvar as may
be specified in the relevant
Market Agreement, where:
(i) Q1 = TQ1,
Q2 = TQ2
and Q3 = QC
where TQ2<QCs TQ3
(ii) Q1 = TQ1,
Q2 = QC
Q3 = null
where TQ1<QCs TQ2
(iii) Q1 = QC,
Q2 = null
Q3 = null
where O< QCs TQ1
SPD = Settlement Period Duration (as
defined in the Pool Rules);
TQ1, TQ2 and TQ3 = defined in Appendix 5;
U[lead] = defined in Section 1 of
Appendix 3;
U[lag] = defined in Section 1 of
Appendix 3;
V = the system voltage range
performance factor (expressed
to apply to both leading and
lagging) as calculated in
accordance with the formulae
set out in the relevant Market
Agreement, otherwise 1;
XP[11] = Genset Actual Availability (as
defined in the Pool Rules) in
respect of a Despatch Unit for
a Settlement Period.
2. TOTAL PAYMENT
-------------
Total Payment (PTM) = PUM + PCA + PCS (pound sterling per
Settlement Period per Despatch Unit)
where, subject always to paragraphs 6, 7 and 8 below:
PUM = the utilisation payment in respect of a Despatch
Unit for a Settlement Period determined in
accordance with paragraph 3 below;
PCA = the available capability payment in respect of a
Despatch Unit for a Settlement Period determined
in accordance with paragraph 4 below; and
PCS = the synchronised capability payment in respect of
a Despatch Unit for a Settlement Period determined
in accordance with paragraph 5 below.
Provided always that PTM shall be 0 in all Settlement
Periods from and including that in which:
(a) the relevant Despatch Unit (or, in relation to a
Centrally Despatched CCGT Module, any relevant CCGT
Unit) fails a Reactive Test or a Contract Test until
(and including) the Settlement Period in which a
subsequent Reactive Test or Contract Test (as the case
may be) is passed in relation to that Despatch Unit (or
CCGT Unit (as the case may be)); or
(b) the User fails (other than pursuant to an instruction
given by NGC or as permitted by the Grid Code) to set
the Automatic Voltage Regulator of the Despatch Unit
(or, in relation to a Centrally Despatched Module, any
relevant CCGT Unit) to a voltage following mode until
(and including) the Settlement Period in which the User
notifies NGC that the Automatic Voltage Regulator is so
set; or
(c) the Despatch Unit fails to comply with a Reactive
Despatch Instruction due to the fact that the Despatch
Unit (or, in relation to a Centrally Despatched CCGT
Module, any relevant CCGT Unit) is unable to increase
and/or decrease its Mvar Output (other than as a direct
result of variations in System voltage) until (and
including) the Settlement Period in which the User
notifies NGC that the Despatch Unit is so able to
comply; or
(d) the Despatch Unit fails to have a Mvar range which
includes the ability to provide zero Mvar at the
Commercial Boundary until (and including) the
Settlement Period in which the User notifies NGC that
the Despatch Unit has or once more has such range.
3. UTILISATION PAYMENT
-------------------
3.1 For each Settlement Period,
PUM = PUM[lead] + PUM[lag] (pound sterling per Settlement
Period per Despatch Unit)
Where
PUM[lead] = defined in sub-paragraph 3.2 below;
PUM[lag] = defined in sub-paragraph 3.3 below.
3.2 Leading Utilisation (PUM[lead])
There are four mutually exclusive cases (a),(b),(c) or (d):
(a) If Q2[lead]<(U[lead]/SPD) and both Q2[lead] and
Q3[lead] are not deemed null (i.e. there are three
breakpoints)
then PUM[lead] = SPD[*] [(CU1[lead] * Q1[lead]) +
(CU2[lead] * (Q2[lead])) + (CU3[lead] * ((U[lead]/
SPD) * Q2[lead]))]
(b) If
either Q1[lead] < (U[lead]/SPD) <Q2[lead] and
Q2[lead] is not deemed null (i.e. there are
at least two breakpoints)
--------
or Q2[lead] <(U[lead]/SPD) and Q2[lead] is not deemed
null and Q3 is deemed null (i.e. there are only
----
two breakpoints)
then PUM[lead] = SPD * [(CU1[lead] * Q1[lead]) +
(CU2[lead] * ((U[lead]/SPD) - Q1[lead]))]
(c) If
either 0<(U[lead]/SPD) <Q1[lead] (i.e. irrespective
of the number of breakpoints)
or Q1[lead] < (U[lead]/SPD) and Q2[lead] and Q3[lead]
are deemed null (i.e. there is only one
breakpoint)
then PUM[lead]=CU1[lead]*U[lead]
(d) otherwise
PUM[lead]=0 (pound sterling per Settlement Period
per Despatch Unit]
3.3 Lagging Utilisation (PUM[lag])
There are four mutually exclusive cases (a), (b), (c) or
(d);
(a) If Q2[lag] <(U[lag]/SPD) and both Q2[lag] and Q3[lag]
are not deemed null (i.e. there are three
breakpoints)
then PUM[lag]=SPD*[(CU1[lag]*Q1[lag])+(CU2[lag]*(Q2[lag
]-Q1[lag]))+(CU3[lag]*((U[lag]/SPD)-Q2[lag]))]
(b) If
either Q1[lag]<(U[lag]/SPD)> Q2[lag] and Q2[lag] is
not deemed null (i.e. there are at least two
--------
breakpoints)
or Q2[lag]<(U[lag]/SPD) and Q2[lag] is not deemed
null and Q3 is deemed null (i.e. there are only
----
two breakpoints)
then PUM[lag]=SPD*[(CU1[lag]*Q1[lag]) +
(CU2[lag]*((U[lag]/SPD)-Q1[lag]))]
(c) If
either 0<(U[lag]/SPD)<Q1[lag] (i.e. irrespective of
the number of breakpoints)
or Q1[lag]<(U[lag]/SPD) and Q2[lag] and Q3[lag] are
deemed to be null (i.e. there is only one
----
breakpoint)
then PUM[lag]=CU1[lag]*U[lag]
(d) otherwise
PUM[lag]=0 (pound sterling per Settlement Period per
Despatch Unit]
4. AVAILABLE CAPABILITY PAYMENT
----------------------------
4.1 For each Settlement Period,
where XP[ii]>5MWh
then PCA=K*((V[lead] * PCA[lead]) + (V[lag]*PCA[lag]))
otherwise
PCA=O [pound sterling per Settlement Period per Despatch
Unit]
where
PCA[lead] = defined in sub-paragraph 4.2 below;
PCA[lag] = defined in sub-paragraph 4.3 below.
4.2 Available Leading Capability (PCA[lead])
There are four mutually exclusive cases (a), (b), (c) or
(d):
(a) If Q2[lead]<Q[lead]<Q3[lead] and both Q2[lead] and
Q3[lead] are not deemed null (i.e. there are three
breakpoints)
then PCA[lead]=SPD*[(CA1[lead]*Q1[lead]) + (CA2[lead] *
(Q2[lead]-Q1[lead])) + CA3[lead]*(Q[lead]-
Q2[lead]))]
(b) If Q1[lead]<Q[lead][<]Q2[lead] and Q2[lead] is not
deemed null (i.e. there are at least two
--------
breakpoints)
then PCA[lead]=SPD*[(CA1[lead]*Q1[lead]) +
(CA2[lead]*(Q[lead]-Q1[lead]))]
(c) If 0<Q[lead]<Q1[lead] (i.e. irrespective of the
number of breakpoints)
then PCA[lead]=SPD*CA1[lead]*Q[lead]
(d) otherwise
PCA[lead]=0 [pound sterling per Settlement
Period per Despatch Unit]
4.3 AVAILABLE LAGGING CAPABILITY (PCA[lag])
There are four mutually exclusive cases (a), (b), (c) or
(d):
(a) If Q2[lag] < Q[lag] < Q3[lag] and Q2[lag] and Q3[lag]
are not deemed null (i.e. there are three
breakpoints)
then PCA[lag]=SPD*[(CA1[lag]*Q1[lag])+(CA2[lag]*
(Q2[lag]-Q1[lag]))+(CA3[lag]*(Q[lag]-Q2[lag]))]
(b) If Q1[lag]<Q[lag]<Q2[lag] and Q2[lag] is not deemed
null (i.e. there are at least two breakpoints)
--------
then PCA[lag]=SPD*[(CA1[lag]*Q1[lag])+(CA2[lag]*(Q[lag]
-Q1[lag]))]
(c) If O<Q[lag][<]Q1[lag] (i.e. irrespective of the
number of breakpoints)
then PCA[lag]=SPD*CA1[lag]*Q[lag]
(d) otherwise
PCA[lag]=0 (pound sterling per Settlement
Period per Despatch Unit]
5. SYNCHRONISED CAPABILITY PAYMENT
-------------------------------
5.1 For each Settlement Period,
where A[ii]>5MWh
PCS = K*((V[lead]*PCS[lead])+(V[lag]*PCS[lag]))
otherwise
PCS = 0 [pound sterling per Settlement Period per
Despatch Unit]
where
PCS[lead] = defined in sub-paragraph 5.2 below;
PCS[lag] = defined in sub-paragraph 5.3 below.
5.2 Synchronised Leading Capability (PCS[lead])
There are four mutually exclusive cases (a), (b), (c) and
(d);
(a) If Q2[lead]<Q[lead]<Q3[lead] and Q2[lead] and
Q3[lead] are not deemed null (i.e. there are three
breakpoints)
then PCS[lead]=SPD*[(CS1[lead]*Q1[lead])+(CS2[lead]*(Q2
[lead]-Q1[lead]))+(CS3[lead]*(Q[lead]- Q2[lead]))]
(b) If Q1[lead]<Q[lead]<Q2[lead] and Q2[lead] is not
deemed null (i.e. there are at least two
--------
breakpoints)
then PCS[lead]=SPD*[(CS1[lead]*Q1[lead])+(CS2[lead]*Q[l
ead]-Q1[lead]))]
(c) If 0<Q[lead]<Q1[lead] (i.e. irrespective of the
number of breakpoints)
then PCS[lead]=SPD*CS1[lead]*Q[lead]
(d) otherwise
PCS[lead]=0 [pound sterling per Settlement Period
per Despatch Unit]
5.3 Synchronised Lagging Capability (PCS[lag])
There are four mutually exclusive cases (a), (b), (c) or
(d):
(a) If Q2[lag] < Q[lag] < Q3[lag] and Q2[lag] and Q3[lag]
are not deemed null (i.e. there are three
breakpoints)
then PCS[lag]=SPD*[(CS1[lag]*Q1[lag])+(CS2[lag]*(Q2[lag
]-Q1[lag]))+(CS3[lag]*(Q[lag]-Q2[lag]))]
(b) If Q1[lag]<Q[lag]<Q2[lag] and Q2[lag] is not deemed
null (i.e. there are at least two breakpoints)
--------
then PCS[lag]=SPD*[(CS1[lag]*Q1[lag])+(CS2[lag]*(Q[lag]
-Q1[lag]))]
(c) If 0<Q[lag] < Q1[lag] (i.e. irrespective of the
number of breakpoints)
then PCS[lag]=SPD*CS1[lag]*Q[lag]
(d) otherwise
PCS[lag]=0 [pound sterling per Settlement Period
per Despatch Unit]
6. TESTING
-------
NGC reserves the right to require to be included in any
Market Agreement, on a basis to be agreed with a Tenderer,
terms with regard to the carrying out of a Contract Test.
The provisions of Grid Code OC5.5.1 relating to the carrying
out of a Reactive Test (including re-tests) shall apply to
the carrying out of Contract Tests.
7. TERMINATION
-----------
Save where expressly provided otherwise in a Tender, each
Market Agreement shall contain terms entitling NGC to
terminate that Market Agreement in the event that the User
fails to provide a satisfactory level of service and
entitling the User to terminate the Market Agreement in the
event that NGC fails (without reasonable cause) to make due
payment to the User, in each case as more particularly
defined therein.
8. DE-ENERGISATION, DECOMMISSIONING AND DISCONNECTION
--------------------------------------------------
Subject to all rights and obligations of NGC and the User
accrued at such date, utilisation, available capability and
synchronised capability payments referred to in this
Appendix 2 shall cease to fall due and payable to any User
in respect of any Despatch Unit with effect from the date of
expiry or termination for whatever reason of the relevant
Market Agreement in accordance with its terms or (if
earlier) with effect from the date of De-energisation,
Decommissioning or Disconnection of that Despatch Unit for
any reason pursuant to the relevant Supplemental Agreement
or this Agreement.
<PAGE>
APPENDIX 3
----------
TECHNICAL DATA
--------------
SECTION 1
---------
REACTIVE UTILISATION DATA
-------------------------
This Section 1 of Appendix 3 specifies the technical data to be
used to determine the utilisation payments to be made in
accordance with Appendix 1 and Appendix 2. For the purposes
thereof, the following terms shall have the following meanings:
U[lead] = leading Mvarh produced by the relevant Despatch
Unit at the Commercial Boundary in the relevant
Settlement Period measured by metering meeting the
requirements of Appendix 4 and as specified in the
relevant Ancillary Services Agreements (including
a Market Agreement) where the User has complied
with a Reactive Despatch Instruction in accordance
with Grid Code SDC2, otherwise 0;
U[lag] = lagging Mvarh produced by the relevant Despatch
Unit at the Commercial Boundary in the relevant
Settlement Period measured by metering the
requirements of Appendix 4 and as specified in the
relevant Ancillary Services Agreements (including
a Market Agreement) where the User has complied
with a Reactive Despatch Instruction in accordance
with Grid Code SDC2, otherwise 0;
U = the total Mvarh (leading and lagging)
where
U=U[lead]-U[lag] [Mvarh per Settlement
Period per Despatch Unit]
For the avoidance of doubt, leading Mvarh shall mean Mvarh
imported by the Despatch Unit at the Commercial Boundary
irrespective of the direction of Active Power flow, and lagging
Mvarh shall mean Mvarh exported by the Despatch Unit at the
Commercial Boundary irrespective of the direction of Active Power
flow.
<PAGE>
SECTION 2
---------
REACTIVE POWER CAPABILITY DATA & RECLARATIONS
---------------------------------------------
This Section 2 of Appendix 3 specifies the technical data to be
used to determine the capability payments to be made in
accordance with Appendix 1 and Appendix 2.
1. For the purposes thereof, the following terms shall have the
following meanings:
Q[lead] = min (QR[lead]QC[lead]) [Mvar]
Q[lag] = min(QR[lag]QC[lag]) [Mvar]
where
QC = as specified in the relevant Ancillary
Services Agreement (including a Market
Agreement), being the high voltage value
(specified in whole Mvar) equivalent at the
Commercial Boundary to the low voltage Mvar
capability (leading or lagging) of the
relevant Despatch unit as described in
paragraph 2 below, representing the
capability to supply continuously leading or
lagging Mvar (as the case may be);
QR = as determined in accordance with the relevant
Ancillary Services Agreement (including a
Market Agreement), being, in relation to a
Settlement Period, the high voltage value
(specified in whole Mvar) equivalent to the
declared low voltage Mvar capability (leading
or lagging) of the relevant Despatch Unit
(or, in the absence of such redeclaration,
such high voltage value reasonably determined
by NGC as a result of monitoring and/or
testing as provided in the relevant Ancillary
Services Agreement (including a Market
Agreement)), and QR[lead] and QR[lag] shall
be construed accordingly.
2. (a) In respect of capability payments made in accordance
with Appendix 1:
(i) QC shall be the capability required to be provided
under and in accordance with the Connection
Conditions of the Grid Code (where applicable, as
determined by any direction in force from time to
time and issued by the Director relieving the
relevant User from the obligation under its
License to comply with such part or parts of the
Grid Code as may be specified therein); and
(ii) QC and QR shall represent the high voltage value
equivalent at Rated MW at the Commercial Boundary.
(b) In respect of capability payments made pursuant to a
Market Agreement in accordance with Appendix 2:
(i) QC shall be the capability required to be provided
under and in accordance with the Connection
Conditions of the Grid Code or, where the Market
Agreement is in respect of a Tender for terms for
the provision of the Enhanced Reactive Power
Service specified in sub-paragraph 1.3(a) of this
Schedule, a capability agreed to be provided in
excess of that required under and in accordance
with the Connection Conditions of the Grid Code
but so that in such a case QC cannot exceed TQ3
(defined in Appendix 5);
(ii) QC shall represent the high voltage value
equivalent at a nominated Genset Registered
Capacity specified by a Tenderer in the Tender at
the Commercial Boundary within the system voltage
range specified in the relevant Market Agreement;
and
(iii) QR shall represent the high voltage value
equivalent at the then current Genset Registered
Capacity at the Commercial Boundary within the
system voltage range specified in the relevant
Market Agreement.
(c) For the purposes of this Section 2, the figures for QC
and QR shall be determined in a manner consistent with
the principles and methodologies set out in a document
published or to be published from time to time by NGC
for this purpose.
For the avoidance of doubt, leading capability shall mean
the ability to import Reactive Power at the Commercial
Boundary irrespective of the direction of Active Power flow,
and lagging capability shall mean the ability to export
Reactive Power at the Commercial Boundary irrespective of
the direction of Active Power flow.
<PAGE>
APPENDIX 4
----------
METERING
--------
1. POOLING AND SETTLEMENT AGREEMENT
--------------------------------
For the avoidance of doubt, nothing in this Appendix shall
affect the rights and obligations of those Parties also
party to the Pooling and Settlement Agreement under Clause
60 and Schedule 21 thereto with regard to Metering Equipment
and Metering Systems insofar as such provisions relate to
Reactive Energy.
2. DESPATCH UNITS
--------------
2.1 For the purposes of this Schedule and the Appendices,
subject always to sub-paragraph 2.2, the quantities of
Mvarh imported and exported by a Despatch Unit shall be
derived from the relevant Metering System for that
Despatch Unit registered with the Settlement System
Administrator.
2.2 Where the existing Metering System for the Despatch
Unit registered with the Settlement System
Administrator does not incorporate Metering Equipment
capable of measuring and recording Mvarh imports and
exports for that Despatch Unit for each Settlement
Period, then the relevant User shall register or
procure that there is registered in accordance with
Clause 60.2.2 of the Pooling and Settlement Agreement a
Metering System which does incorporate such Metering
Equipment.
2.3 All relevant Metering Equipment identification and
location codes shall be set out in the relevant
Ancillary Services Agreement, and the Generator hereby
agrees to facilitate agreement between the Parties with
respect thereto by providing NGC as soon as reasonably
practicable following request with all necessary
supporting diagrams and other written documentation.
2.4 Where the configuration of the Metering System is such
that:
2.4.1 Mvarh import and export values for the
Despatch Unit are not measured at the
Commercial Boundary; and/or
2.4.2 Mvarh import and export values for the
Despatch Unit are measured by more than one
Meter; and/or
2.4.3 the Mvarh import and export values for the
Despatch Unit are measured by a Meter which
also measures the Mvarh import and export
values of one or more other Generating Units,
Plant and Apparatus or other equipment,
then appropriate loss adjustment factors and
aggregation methodologies (as the case may be) shall be
used to determine on a Settlement Period basis the
Mvarh import value and Mvarh export value for the
relevant Despatch unit at the Commercial Boundary to be
used for the purposes of this Schedule. Subject always
to sub-paragraph 2.5, the appropriate factors and
methodologies for each relevant Despatch Unit shall be
agreed by NGC and each relevant User (both acting
reasonably) in the relevant Ancillary Services
Agreement by adoption of one or more of the factors or
methodologies set out in the document entitled
"Methodology Document for the Aggregation of Reactive
Power Metering" (as amended from time to time)
published by NGC for this purpose. This document shall
specify the respective factors and methodologies to be
applied for particular Metering System configurations
in order to determine so far as reasonably practicable
the Mvarh import value and Mvarh export value for the
relevant Despatch Unit at the Commercial Boundary as
required by this sub-paragraph 2.4.
2.5 Loss adjustment factors and aggregation methodologies
need not be agreed between NGC and the relevant User in
connection with any configuration described in sub-
paragraph 2.4.3 in respect of periods prior to 1st
April, 1998.
3. NON-CENTRALLY DESPATCHED GENERATING UNITS AND OTHER PLANT
---------------------------------------------------------
AND/OR APPARATUS (OR OTHER EQUIPMENT)
-------------------------------------
In respect of each Generating Unit whose MW output is sold
in accordance with the Pool Rules, the provisions of
paragraph 2 shall apply (as if references therein to
Despatch Unit were to Generating Unit). In all other cases,
the following provisions shall apply:
3.1 The quantities of Mvarh imported and exported shall be
measured and recorded through Meters complying with all
relevant Codes of Practice to the extent applying to
Reactive Energy, which shall include without limitation
those relating to calibration, testing and
commissioning.
3.2 Such Meters shall be capable of providing a Mvarh
import and export value for each Settlement Period for
each Non Centrally Despatched Generating Unit or other
Plant and/or Apparatus or other equipment.
3.3 Such Meters shall be situated as close as reasonably
practicable to the Commercial Boundary taking into
account relevant financial considerations.
3.4 The principles set out in paragraph 2.4 in relation to
adjustment and aggregation shall apply.
3.5 For the purposes of remote interrogation the relevant
Ancillary Services Agreement shall include appropriate
terms with regard to the provision and maintenance of
all communication links.
4. TRADING SITES
-------------
It is the intention of the Parties that the treatment of
Trading Sites for the purposes of metering and the
provisions of this Appendix shall be the subject of a review
by the Transmission Users Group as referred to in Appendix
7.
5. DEFINITIONS
-----------
In this Appendix 4, the terms "Codes of Practice", "Meters",
"Metering Equipment", "Metering System" and "Reactive
Energy" shall have the meaning attributed to each of them in
the Pooling and Settlement Agreement.
<PAGE>
APPENDIX 5
----------
SUBMISSION OF TENDERS
---------------------
The provisions of this Appendix 5 specify the manner in which
Users shall complete Tenders comprising prices and Tendered
Capability Breakpoints relating to the Obligatory Reactive Power
Service and terms for the provision of the Enhanced Reactive
Power Service specified in sub-paragraph 1.3(a) of this Schedule,
in each case in respect of Despatch Units.
A Tender shall include (inter alia) details of the Reactive Power
range, the prices tendered for utilisation and capability and an
indexation mechanism as set out below. Each Tender must relate
to one Despatch Unit only. Users wishing to tender in relation
to more than one Despatch Unit must therefore submit separate
Tenders for each Despatch Unit.
1 REACTIVE POWER CAPABILITY
-------------------------
1.1 In respect of each Despatch Unit, a Tenderer must nominate a
Genset Registered Capacity which it anticipates will be the
actual Genset Registered Capacity on the Contract Start Day
for that Despatch Unit (in this Appendix 5 referred to as
"the Nominated Genset Registered Capacity") to be used for
the duration of the Market Agreement. All capability data
used for the purpose of a Tender must be expressed as the
capability of a Despatch Unit at the Commercial Boundary and
must represent the value of Reactive Power output which can
be supplied continuously at the Commercial Boundary when the
Despatch Unit is operating at the Nominated Genset
Registered Capacity.
1.2 In respect of each Despatch Unit, all capability data
relating to the provision of the Enhanced Reactive Power
Service specified in sub-paragraph 1.3(a) of this Schedule
must be expressed as the capability of that Despatch Unit at
the Commercial Boundary across a system voltage range to be
specified by the Tenderer in its Tender (or otherwise in
accordance with directions given by NGC).
1.3 All Reactive Power capability data in respect of a Despatch
Unit must be expressed as positive, whole numbers in Mvar,
with leading and lagging capability data distinguished by
the subscripts [lead] and [lag].
1.4 In respect of each Despatch Unit, and subject to any
directions issued from time to time by NGC with regard to
such values, the User must submit at least one Reactive
Power capability value and may in addition submit up to a
further two Reactive Power capability values (all three
being "Tendered Capability Breakpoints"), for both leading
and lagging Mvar. One of these Tendered capability
Breakpoints, in respect of both leading and lagging Mvar,
must be equivalent to the minimum Reactive Power capability
of a Despatch Unit which a User is obligated to provide
under and in accordance with the Connection Conditions of
the Grid Code (to the nearest whole Mvar) after application
of the principles set out in sub-paragraphs 1.1 and 1.2
above and as further described in the package of information
referred to in sub-paragraph 5.3(b)(i) of this Schedule.
1.5 The Tendered Capability Breakpoints shall be defined for the
purposes of this Appendix as TQ1, TQ2, TQ3, for leading and
lagging Mvar as the case may be, where:
TQ3[lead] >TQ2[lead] >TQ1[lead] >0
and TQ3[lag] >TQ2[lag] >TQ1[lag] >0
1.6 Where only two Tendered Capability Breakpoints are tendered,
for leading or lagging Mvar as the case may be, then the
value of TQ3 shall be deemed to be null for the purposes of
calculating payments for capability and utilization and no
additional payments for capability will fall due and payable
in respect of a Despatch Unit for the provision of Reactive
Power capability above Tendered Capability Breakpoint TQ2.
1.7 Where only one Tendered Capability Breakpoint is tendered,
for leading or lagging Mvar as the case may be, then the
values of TQ2 and TQ3 shall be deemed to be null for the
purposes of calculating payments for capability and
utilisation and no additional payments for capability will
fall due and payable in respect of a Despatch Unit for the
provision of Reactive Power capability above Tendered
Capability Breakpoint TQ1.
1.8 The Reactive Power capability value at zero Mvar (referred
to in paragraph 2 below as Q0) shall be treated as a
Tendered Capability Breakpoint for the purposes of tendering
capability and utilisation prices and calculating capability
and utilisation payments.
2 PRICES
------
In respect of each Tendered Capability Breakpoint, prices
submitted by Users must be zero or positive, quoted in
pounds sterling to the nearest tenth of a penny and shall
otherwise be tendered as described in sub-paragraphs 2.1,
2.2 and 2.3 below. The prices shall be described using the
following notation:
C1[lag] is the price applicable between Tendered Capability
Breakpoints Q0 and TQ1[lag] including TQ1[lag]
C2[lag] is the price applicable between Tendered Capability
Breakpoints TQ1[lag] and TQ2[lag] including TQ2[lag]
C3[lag] is the price applicable between Tendered Capability
Breakpoints TQ2[lag] and TQ3[lag] including TQ3[lag]
C1[lead] is the price applicable between Tendered Capability
Breakpoints Q0 and TQ1[lead] including TQ1[lead]
C2[lead] is the price applicable between Tendered Capability
Breakpoints TQ1[lead] and TQ2[lead] including TQ2[lead]
C3[lead] is the price applicable between Tendered Capability
Breakpoints TQ2[lead] and including TQ3[lead]
where C shall represent CU, CA or CS, as the case may be.
2.1 Utilisation Prices (CU)
-----------------------
(a) Utilisation prices submitted by Users must be:
(i) quoted in units of pound sterling/Mvarh; and
(ii) no greater than pound sterling 999.999/Mvarh.
(b) Utilisation prices must increase across the Reactive
Power capability range, for leading or lagging Mvar as
the case may be, such that:
CU3[lead]> CU2[lead]> CU1[lead]> 0
- - -
CU3[lag]> CU2[lag]> CU1[lag]> 0
- - -
(c) Utilisation payments shall be made for metered Reactive
Power output and shall be calculated in accordance with
Appendix 2.
2.2 Available Capability Prices (CA)
--------------------------------
(a) Available capability prices submitted by Users must be:
(i) quoted in units of pound sterling/Mvar/h; and
(ii) no greater than pound sterling 999.999/Mvar/h.
(b) Available capability prices must increase across the
Reactive Power capability range, for leading or lagging
Mvar as the case may be, such that:
CA3[lead] > CA2[lead] > CA1[lead] > 0
- - -
CA3[lag] > CA2[lag] > CA1[lag] > 0
- - -
(c) Available capability payments shall be calculated in
accordance with Appendix 2.
2.3 Sychronised Capability Prices (CS)
-----------------------------------
(a) Synchronised capability prices submitted by Users must
be:
(i) quoted in units of pound sterling/Mvar/h; and
(ii) no greater than pound sterling 999.999/Mvar/h.
(b) Synchronised capability prices must increase across the
Reactive Power capability range, for leading or lagging
Mvar as the case may be, such that:
CS3[lead] > CS2[lead] > CS1[lead] > 0
- - -
CS3[lag] > CS2[lag] > CS1[lag] > 0
- - -
(c) Synchronised capability payments shall be calculated in
accordance with Appendix 2.
3. INDEXATION
----------
Where a Tender is submitted in respect of a period which
exceeds the minimum 12 month period required by sub-
paragraph 5.3(d)(v) of this Schedule, then the User shall
submit one mechanism for calculating indexation on an annual
basis which shall apply to all prices submitted in the
Tender for all subsequent periods of 12 months following the
minimum 12 month period to which the Tender applies. Such
mechanism shall be based on either the Retail Prices Index
(as referred to in paragraph 5 of Appendix 1), a fixed
percentage (which may be positive, zero or negative) or a
summation of such Retail Prices Index and such fixed
percentage.
4. OTHER TECHNICAL INFORMATION
---------------------------
A User shall submit with a Tender such other technical
information as reasonably directed by NGC in accordance with
sub-paragraph 5.3(b)(i) of this Schedule. Such information
may include (without limitation):
4.1 in relation to a Tender for the Enhanced Reactive Power
Service specified in sub-paragraph 1.3(a) of this Schedule,
details of the capability of the Generating Unit to provide
Reactive Power at the generator stator terminals by
reference to the Generator Performance Chart submitted in
accordance with Operating Condition 2.4.2 of the Grid Code,
which capability must represent the true operating
characteristics of that Generating Unit; and
4.2 details of the system voltage range over which the User
proposes to make available from the Generating Unit such
Enhanced Reactive Power Service (and in each case any
restrictions thereto); and
4.3 in relation to a Tender for the Enhanced Reactive Power
Service specified in sub-paragraph 1.3(a) of this Schedule,
the ambient air temperature at which such Enhanced Reactive
Power Service is specified, and variations to such Enhanced
Reactive Power Service in accordance with any air
temperature range specified by NGC; and
4.4 details, including prices, of any additional services
offered as part of any Enhanced Reactive Power Service (not
being the Enhanced Reactive Power Service specified in sub-
paragraph 1.3(a) of this Schedule); and
4.5 any restrictions on NGC selecting part of an Enhanced
Reactive Power Service.
<PAGE>
APPENDIX 6
----------
QUALIFICATION AND EVALUATION CRITERIA
-------------------------------------
SECTION A - QUALIFICATION CRITERIA
----------------------------------
1 Without prejudice to the requirements of sub-paragraph 5.3
of this Schedule, all Tenders must satisfy the following
mandatory qualification criteria:
1.1 in relation to a Tender for provision of the Enhanced
Reactive Power Service specified in sub-paragraph
1.3(a) of this Schedule, the leading and/or lagging
capability (as the case may be) comprised therein,
being the capability in excess of that required under
and in accordance with the Connection Conditions of the
Grid Code, must be at least 15 Mvar leading and/or 15
Mvar lagging (as the case may be) or (if lower) such
amount of Mvar representing an additional 10% of that
required under and in accordance with the Connection
Conditions of the Grid Code (in each case as measured
at the Commercial Boundary); and
1.2 in relation to a Tender for provision of any other
Enhanced Reactive Power Service, the leading and/or
lagging capability (as the case may be) comprised
therein must be at least 15 Mvar leading and/or 15 Mvar
lagging (as the case may be) (as measured at the
Commercial Boundary); and
1.3 the tendered capability must be subject to Mvar
metering meeting the requirements of Appendix 4; and
1.4 the tendered capability must be subject to Mvar
despatch facilities reasonably acceptable to NGC,
incorporating the ability for NGC to receive from the
Tenderer relevant technical, planning and other data in
NGC's reasonable opinion necessary in connection
therewith; and
1.5 the site in question must be the subject of an
agreement for connection to, and/or use of, the NGC
Transmission System or (as the case may be) a
Distribution System.
SECTION B - EVALUATION CRITERIA
-------------------------------
2 The overall economic value of a Tender (and where
appropriate any part thereof) will be assessed by reference
to the following criteria (which are not listed in any order
of importance or priority):
2.1 in relation to a Generating Unit providing the
Obligatory Reactive Power Service, a comparison with
the default payment arrangements for that Generating
Unit, including the effect (if any) of the balance of
tendered capability and utilisation prices as a hedge
against forecast costs of that Generating Unit pursuant
to the default payment arrangements;
2.2 the location of the tendered capability and its
effectiveness in providing voltage support for the NGC
Transmission System;
2.3 its interaction with other Tenders, in terms (inter
alia) of relative prices and capability tendered and
relative effectiveness in providing voltage support as
referred to in sub-paragraph 2.2 above;
2.4 forecast savings (if any) in constraint costs resulting
from the consequential effect on power flows; and
2.5 and forecast benefit or detriment attributable to it in
the context of the investment planning process referred
to at paragraph 4 below.
3 Particular factors affecting the value of a Tender (and
where appropriate any part thereof) may include (without
limitation) the following evaluation criteria (which are not
listed in any order of importance or priority):
3.1 the amount of leading and lagging Mvar tendered and the
impact (if any) of any changes in the technical data,
the Genset Registered Capacity and other information
submitted to NGC pursuant to the Data Registration
Codes of the Grid Code sine the date of submission of
the Tender;
3.2 prices and other terms offered within the Tender;
3.3 the number of months over which capability is tendered;
3.4 forecast Mvarh output, including any revised forecast
of Mvarh output taking into account tendered
utilisation prices (for the avoidance of doubt of the
Tender and of all other Tenders pursuant to sub-
paragraph 2.3 above);
3.5 in relation to a Generating Unit, forecast MW output
and MW availability;
3.6 the expected availability and quality of capability
tendered, in terms of reliability and dependability for
despatch purposes, derived from:
(i) historical performance (where relevant);
(ii) expected reliability of capability tendered
signalled by tendered prices;
(iii) any programme agreed with NGC for the restoration
of capability;
3.7 the availability of suitable monitoring facilities;
3.8 the capability (if any) of a Generating Unit to provide
voltage support services when not providing Active
Power (for example pumped storage plant operating in
spin-gen mode or when pumping and open cycle gas
turbine plant when declutched and operating in
Synchronous Compensation mode);
3.9 the complexity of the terms offered within the Tender;
3.10 the results of any testing carried out pursuant to sub-
paragraph 5.3(e)(ii) of this Schedule and (where
applicable) the absence of any such testing; and
3.11 any other factors enhancing or constraining the
capability tendered, derived (inter alia) from
technical and other information made available to NGC
(including without limitation operational and planning
data provided to NGC pursuant to the Grid Code).
4. For the avoidance of doubt, Tenders will be considered in
the investment planning process of NGC's Transmission
Business only if, and to the extent, required to enable NGC
to comply with its obligations under the Act and the
Transmission License, and in such a case any consequential
benefit or detriment attributable to the Tender will be
taken into account in the tender evaluation process and
Tenders will be evaluated accordingly.
5. For the avoidance of doubt:
(a) extant voltage support for the NGC Transmission System
whether via contracted services from third parties or
assets owned and/or operated by NGC's Transmission
Business; and
(b) forecast Mvarh Demand on the NGC Transmission System
and at Grip Supply Points;
in each case as at the relevant Market Day and as
anticipated by NGC at the subsequent Contract Start Day and
throughout the term of the Tender, will be taken into
account in the tender evaluation process and Tenders will be
evaluated accordingly.
<PAGE>
APPENDIX 7
----------
MATTERS FOR REVIEW
------------------
MATTER DATE OF REVIEW
------ --------------
1. The values of X and Y 1st October, 1998
referred to in Appendix 1
in respect of Settlement
Periods from (and
including) 1st April, 1999
Applicable principle:
The degree and extent to
which a competitive market
has been established in
accordance with the
provisions of this
Schedule (taking into
account, inter alia, the
amount of Mvar capability
the subject of Market
Agreements and the
utilisation thereof).
2. Any payment arrangements 1st October, 1998
formulated by NGC in
conjunction with any
relevant User in relation
to Non Centrally
Despatched Generating
Units
Applicable principle:
The extent to which it is
reasonably practicable to
achieve consistency with
the provisions of Appendix
1 or Appendices 2 and 5
(as the case may be).
3. The treatment of Trading 1st October, 1999
Sites for the purposes of
metering and calculation
of Mvar capability in
connection with this
Schedule.
Applicable principle:
None
4. The indexation factor 1st October, 2000
referred to in Appendix 1
to apply in respect of all
periods from (and
including) 1st April, 2001
Applicable principles:
Those charging principles
set out in Appendix 8
5. (a) The extent of any Not applicable
change in the nature
of, or extent of
recovery under the
Pooling and
Settlement Agreement
of, variable costs
incurred or to be
incurred by
Generating Units
providing the
Obligatory Reactive
Power Service; and
(b) the extent to which
such changes should
lead to a change in
the specific costs
identified in
paragraph 1 of
Appendix 8 upon
which the totality
of payments referred
to therein is based
and founded.
Applicable principle:
That, to the extent
innovation in the
development of the
default payment
arrangements or the
giving of appropriate
economic signals is not
thereby stifled, the
specific costs from time
to time identified in
paragraph 1 of Appendix 8
(and upon which the
totality of payments
referred to therein is
based and founded) should
continue to comprise the
totality of variable
costs (actual or
estimated) incurred or to
be incurred in respect
of, and aggregated
across, all Generating
Units providing
Obligatory Reactive Power
Service, provided always
that each of those
specific costs from time
to time identified shall
only be a variable cost
not recovered under the
Pooling and Settlement
Agreement which:
(i) is not being
incurred at the date
this Schedule comes
into effect; or
(ii) is being incurred at
the date this
Schedule comes into
effect and as at
that date is either
identified as a
specific cost in
paragraph 1 of
Appendix 8 or is
being recovered
under the Pooling
and Settlement
Agreement.
<PAGE>
APPENDIX 8
----------
CHARGING PRINCIPLES
-------------------
In accordance with the relevant provisions of this Schedule, the
following principles are intended to form the basis of the
default payment arrangements for the provision of the Obligatory
Reactive Power Service set out in this Schedule and are intended
to be taken into account in any review of the indexation factor
referred to in Appendix 1. However, they are not intended to
stifle innovation in the development of default payment
arrangements or the giving of appropriate economic signals. It
is therefore the Parties' intention that, upon any change in the
nature of, or extent of recovery under the Pooling and Settlement
Agreement of, variable costs (actual or estimated) incurred or to
be incurred by Generating Units providing the Obligatory Reactive
Power Service, the specific costs identified in paragraph 1 below
shall be a matter for review by the Transmission Users Group as
more particularly referred to as item 5 of Appendix 7.
1. The totality of payments that would be made pursuant to the
default payment arrangements in the absence of Market
Agreements shall be based and founded upon the following
variable costs (actual or estimated) incurred or to be
incurred in respect of, and aggregated across, all
Generating Units providing the Obligatory Reactive Power
Service:
1.1 the additional heat losses incurred as a consequence of
producing Reactive Power, measured at the high voltage
side of the generator/transformer terminals, the
calculation of such heat losses to take account of the
square law relationship between the electric current
and the additional heat losses incurred; and
1.2 maintenance costs incurred as a direct result of
Reactive Power output (including a sum in respect of
any reduction in the working life of generating unit
components consequent upon Reactive Power output).
2. For the avoidance of doubt, and without limitation, the
totality of payments referred to in paragraph 1 above shall
not take into account in respect of any Generating Unit
providing the Obligatory Reactive Power Service the fixed
costs incurred in achieving initial compliance with the
relevant provisions of the Grid Code.
3. Further for the avoidance of doubt, the totality of payments
referred to in paragraph 1 above shall, to the extent
affecting the specific costs therein identified, take due
account of any change in or amendments to, or replacement
of, the Pooling and Settlement Agreement, the Grid Code and
any other statutory or regulatory obligation, in each case
coming into force or effect after 1st October, 1997 and
affecting the provision of the Obligatory Reactive Power
Service.
<PAGE>
THE NATIONAL GRID COMPANY plc
By
----------------------------------
EACH OF THE USERS
By
----------------------------------
for The National Grid Company plc in exercise of the authority
vested in it by Clause 25.1 of the Master Agreement pursuant to
and in accordance with a determination of the Director General of
Electricity Supply dated 30 March 1998
<PAGE>
EXHIBIT 1
---------
DATED 30th MARCH 1990
---------------------
THE NATIONAL GRID COMPANY PLC (1)
AND
[ ] (2)
----------------------------
SUPPLEMENTAL AGREEMENT TYPE 1
------------------------------------------
(in respect of Connection Sites of Users
which are in existence and Commissioned at the Transfer Date)
<PAGE>
CONTENTS
---------
CLAUSE TITLE
------ -----
1 Definitions, Interpretation and Construction
2 Being Operational/Connection/Energisation
3 The Connection Site and NGC Assets
4 Connection Charges
5 Use of System Charges
6 Charging Rules
7 Ancillary Services
8 (Clause deleted)
9 Special Automatic Facilities
10 Protection and Control Relay Settings/Fault
Clearance Times
11 Safety Rules
12 Other Site Specific Technical Conditions
13 Metering
14 Joint System Incidents
15 Term
16 Emergency Deenergisation
17 Deenergisation and Disconnection
18 Notice to Decommission or Disconnect
19 Disconnection
20 Decommissioning
21 Master Agreement
22 Variations
Appendix A NGC'S Assets/Connection Site
Appendix B Connection Charges/Payment
Appendix C Zone/Registered Capacity/Peak Half-Hours/
Estimated Demand
Appendix D Use of System Charges/Payment
Appendix E Charging Rules
Appendix F1 Site Specific Technical Conditions Agreed
Ancillary Services
Appendix F2 (Not used)
Appendix F3 Site Specific Technical Conditions Special
Automatic Facilities
Appendix F4 Site Specific Technical Conditions Protection and
Control Relay Settings/Fault Clearance
Appendix F5 Site Specific Technical Conditions Load
Shedding Frequency Sensitive Relays
Appendix F6 Site Specific Technical Conditions Metering
<PAGE>
THIS SUPPLEMENTAL AGREEMENT is made the 30th day of March 1990
and becomes effective on the 31st day of March 1990
BETWEEN
(1) THE NATIONAL GRID COMPANY PLC a company registered in
England with number 2366977 whose registered office is at
National Grid House, Sumner Street, London SE1 9JU ("NGC",
which expression shall include its successors and/or
permitted assigns); and
(2) [ ] a company registered in [ ]
with number [ ] whose registered office is at
[ ] (the "User", which expression shall include
its successors and/or permitted assigns)
WHEREAS
(A) NGC and the User are parties to a Master Connection and Use
of System Agreement dated [ ] ("Master
Agreement").
(B) This Supplemental Agreement is entered into pursuant to the
terms of the Master Agreement and shall be read as being
governed by them.
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS, INTERPRETATION AND CONSTRUCTION
--------------------------------------------
1.1 General
-------
Unless the subject matter or context otherwise requires or
is inconsistent therewith, terms and expressions defined in
Schedule 2 to the Master Agreement have the same meanings,
interpretations or constructions in this Supplemental
Agreement.
2. BEING OPERATIONAL/CONNECTION/ENERGISATION
-----------------------------------------
2.1 Right to remain connected:
--------------------------
Subject to the other terms and conditions of this
Supplemental Agreement and the Grid Code, the User shall
have the right for the User's Equipment to remain connected
to the NGC Transmission System at the Connection Site for
the duration of this Supplemental Agreement.
2.2 Right to be and remain Energised and Operational:
-------------------------------------------------
Subject to the other provisions of this Agreement and the
Grid Code, the User shall have the right for the User's
Equipment at the Connection Site to be and remain Energised
and Operational for the duration of this Supplemental
Agreement.
2.3 Obligation to remain connected
------------------------------
Without prejudice to its rights to make Modifications to the
User's Equipment pursuant to the Master Agreement and
subject to the provisions of Sub-Clause 16.2 and the other
provisions of this Agreement and the Grid Code the User
shall keep the User's Equipment at the Connection Site
connected to the NGC Transmission System until
Decommissioning or Disconnection is permitted pursuant to
this Supplemental Agreement.
2.4 Registered Capacity
-------------------
The User if a Generator shall not operate its Users
Equipment such than any of it exceeds its Registered
Capacity save as expressly permitted or instructed pursuant
to the Grid Code or the Fuel Security Code or as may be
necessary or expedient in accordance with Good Industry
Practice.
2.5 Data
----
Data of a technical or operational nature collected recorded
or otherwise generated pursuant to this Supplemental
Agreement shall be deemed data lodged pursuant to the Grid
Code to the extent that the Grid Code makes provisions
therefor.
2.6 Subject to the other provisions of this Agreement and the
Grid Code, NGC shall use all reasonable endeavours to
maintain the NGC Assets at the Connection Site in the
condition necessary to render the same fit for the purpose
of passing power up to the Maximum Export Capacity and/or
the Connection Site Demand Capability as appropriate between
the User's Equipment and the NGC Transmission System.
2.7 Subject to the other provisions of this Agreement and the
Grid Code, NGC shall accept into the NGC Transmission System
at the Connection Site power generated by the User up to the
Maximum Export Capacity except to the extent (if any) that
NGC is prevented from doing so by transmission constraints
which could not be avoided by the exercise of Good Industry
Practice by NGC.
2.8 Subject to the other provisions of this Agreement and the
Grid Code, NGC shall transport a supply of power to the
Connection Site through the NGC Transmission System up to
the Connection Site Demand Capability except to the extent
(if any) that NGC is prevented from doing so by transmission
constraints or by insufficiency of generation which, in
either case, could not have been avoided by the exercise of
Good Industry Practice by NGC.
2.9 Subject to the provisions of the Grid Code each Party shall
be entitled to plan and execute outages of parts of its
System or Plant or Apparatus at any time and from time to
time.
2.10 Provision of Data
-----------------
The majority of the data require under the Grid Code has
been supplied by the User prior to the Transfer Date.
However, in respect of the following data required under the
Planning Code of the Grid Code it is agreed that the User
need only supply it under the Grid Code within one year of
the Transfer Date, unless NGC requests it in writing before
the expiry of that period, in which case the User from whom
the data is requested must supply it within 6 weeks of
receiving that request, except in the case of the data
referred to in PCA 5.3.1(g) which need only be supplied
within 3 months of receiving this request. The data to
which this Sub-Clause applies is that referred to in the
following paragraphs of the Planning Code:
PCA 2.3
PCA 4.3.7
PCA 4.3.9
PCA 5.2.1
PCA 5.2.2
PCA 5.3.1(g)
NGC shall also be able to request a User in writing at any
time to supply to NGC any data under the Planning Code which
it should have supplied to NGC prior to the Transfer Date,
but which it did not supply, and the User must supply that
data upon that request.
3. THE CONNECTION SITE AND NGC ASSETS
----------------------------------
The Connection site and NGC Assets to which this
Supplemental Agreement relates are more particularly
described in Appendix A.
4. CONNECTION CHARGES
------------------
Subject to the provisions of Clause 6 of this Supplemental
Agreement the User shall with effect from the commencement
of this Supplemental Agreement pay the Connection Charges
set out in Appendix B which are calculated by reference to
the NGC Assets specified in Appendix A in accordance with
the provisions of Appendix B.
5. USE OF SYSTEM CHARGES
---------------------
Subject to the provisions of Clause 6 of this Supplemental
Agreement the User shall with effect from the commencement
of this Supplemental Agreement pay to NGC the Use of System
Charges set out in Appendix D in accordance with the
provisions of Appendix E.
6. CHARGING RULES
--------------
The provisions of the Charging Rules set out in Appendix E
to this Supplemental Agreement shall apply.
7. ANCILLARY SERVICES
------------------
The User shall provide the Agreed Ancillary Services set out
in Appendix F1 in accordance with the Grid Code.
8. GRID CODE NON-COMPLIANCE
------------------------
(Clause deleted)
9. SPECIAL AUTOMATIC FACILITIES
----------------------------
NGC and the User shall operate respectively the NGC
Transmission System and the User System in accordance with
the schemes set out in Appendix F3.
10. PROTECTION AND CONTROL RELAY SETTINGS/FAULT CLEARANCE TIMES
-----------------------------------------------------------
NGC and the User shall record the respective protection and
control relay settings and fault clearance times to be
operated by each of them in documents in the format set out
in Appendix F4 and shall operate them accordingly.
11. SAFETY RULES
------------
11.1 Safety Rules:
-------------
NGC and the User will each supply to the other a copy of
their Safety Rules current from time to time except where
already supplied under another Supplemental Agreement (save
that this exception shall not apply to site specific Safety
Rules) and also a copy of the Local Safety Instructions
applicable at the Connection Site from time to time except
where supplied under another Supplemental Agreement.
11.2 Decommissioning:
----------------
Decommissioning of Plant and/or Apparatus at the Connection
Site will be undertaken in accordance with the procedures of
the Safety Rules of whichever of NGC or the User applied
when the Plant and/or Apparatus concerned was in commission.
12. OTHER SITE SPECIFIC TECHNICAL CONDITIONS
----------------------------------------
12.1 Initial Obligation:
-------------------
The User shall ensure that on the Transfer Date the User's
Equipment complies with the site specific technical
conditions set out in Appendix F5.
12.2 The User shall use all reasonable endeavours to ensure
during the period of this Supplemental Agreement that the
User's Equipment shall continue to comply with the site
specific technical conditions set out in Appendix F5.
12.3 If the User or NGC wishes to modify, alter or otherwise
change the site specific technical conditions or the manner
of their operation:
(i) under Appendix F4 it may do so upon obtaining the
agreement of the other Party such agreement not to
be unreasonably withheld.
(ii) under Appendix F1, F3, F5, or F6 this shall be
deemed to be a Modification for the purposes of
the Master Agreement.
12.4 Where on or immediately prior to the Transfer Date the
User's Equipment has any of the following technical
attributes or facilities:
(i) circuit breaker fail protection
(ii) pole slipping protection
(iii) fault disconnection facilities
(iv) automatic switching equipment
(v) control arrangements
(vi) voltage and current signals for system monitoring
(vii) control telephony
(viii) operational metering
the User shall use all reasonable endeavours to ensure that
during the period of this Supplemental Agreement the User's
Equipment retains such technical attributes or facilities
provided always that if the User wishes to modify alter or
otherwise change the same or their operation it may to do so
by following the procedures relating to a Modification in
accordance with the Master Agreement.
13. METERING
--------
The provisions of Appendix F6 shall have effect.
14. JOINT SYSTEM INCIDENTS
----------------------
Each Party confirms to the other its Senior Management
Representatives whose names have been nominated and notified
to the other pursuant to OC9 are fully authorised to make
binding decisions on its behalf for the purposes of OC9.
15. TERM
----
Subject to the provisions for earlier termination set out
herein and in Clause 17 of the Master Agreement, this
Supplemental Agreement shall continue until the User's
Equipment is Disconnected from the NGC Transmission System
at the Connection Site in accordance with Clause 17 or 19
hereof.
16. EMERGENCY DEENERGISATION
------------------------
Emergency Deenergisation by NGC:
--------------------------------
If, in the reasonable opinion of NGC, the condition or
manner of operation of the NGC Transmission System or the
User's System poses an immediate threat of injury or
material damage to any person or to the Total system or to
any User's System or to the NGC Transmission System NGC
shall have the right to Deenergise the User's Equipment if
it is necessary or expedient to do so to avoid the
occurrence of such injury or damage.
16.2 Emergency Deenergisation by a User:
-----------------------------------
If, in the reasonable opinion of the User, the condition or
manner of operation of the NGC Transmission System, the
Total System or any User's System, poses an immediate threat
of injury or material damage to any person or to the User's
System, the User shall have the right to Deenergise the
User's Equipment if it is necessary or expedient to do so to
avoid the occurrence of such injury or damage.
16.3 Reenergisation:
---------------
NGC or, as the case may be, the User shall Reenergise the
User's Equipment at the Connection Site as quickly as
practicable after the circumstances leading to any
Deenergisation under this Clause 16 have ceased to exist.
17. DEENERGISATION AND DISCONNECTION
--------------------------------
17.1 Breach by the User:
--------------------
If the User shall be in breach of any of the provisions of
this Supplemental Agreement or of the provisions of the
Master Agreement enforcing the provisions of the Grid Code
(but subject always to Sub-Clauses 9.3 and 9.4 of the Master
Agreement) and such breach causes or can reasonably be
expected to cause a material adverse effect on the business
or condition of NGC or other Users or the NGC Transmission
System or Users Systems then NGC may:
(i) where the breach is capable of remedy, give
written notice to the User specifying in
reasonable detail the nature of the breach and
requiring the User to remedy the breach within 28
days after receipt of such notice or within any
longer period agreed between NGC and the User, the
agreement of NGC not to be unreasonably withheld
or delayed; or
(ii) where the breach is incapable of remedy, give
written notice to the User specifying in
reasonable detail the nature of the breach and the
reasons why the breach is incapable of remedy and
requiring the User within 5 Business Days after
receipt of such notice to undertake to NGC not to
repeat the breach.
17.2 Grid Code Procedures
--------------------
Whenever NGC serves a notice on the User pursuant to Sub-
Clause 17.1, NGC and the User shall discuss in good faith
and without delay the nature of the breach and each shall
use all appropriate procedures available to it under the
Grid Code (including testing rights and the procedures set
out in OC5 (Testing and Monitoring)) in an attempt to
establish as quickly as reasonably practicable a mutually
acceptable way of ensuring future compliance by the User
with the relevant provision of the Grid Code.
17.3 De-Energisation
---------------
17.3.1 If:
(a) the User fails to comply with the terms of
any valid notice served on it by NGC in
accordance with Sub-Clause 17.1(i) or is in
breach of any undertaking given in accordance
with Sub-Clause 17.1(ii) and such breach
causes or can be reasonably expected to cause
a material adverse effect on the business or
condition of NGC or other Users or the NGC
Transmission System or User Systems; or
(b) five Business Days have elapsed since the
date of any valid notice served on the User
in accordance with Sub-Clause 17.2(ii) and no
undertaking is given by the User in
accordance with Sub-Clause 17.2(ii);
NGC may, provided NGC has first complied with OC5
Monitoring and Testing if appropriate De-Energise the
User's Equipment upon the expiry of at least 48 hours
prior written notice to the User, provided that neither
Party has referred the matter to the Dispute Resolution
Procedure set out in Clause 27 of the Master Agreement.
In such event NGC may De-Energise forthwith following
completion of the Dispute Resolution Procedure and
final determination of the dispute in NGC's favour.
17.3.2 If the User fails to comply with the Grid Code and the
Director makes a final order or a confirmed provisional
order as set out in Sections 25 and 26 of the Act
against the User in respect of such non-compliance
which order the User breaches NGC may De-energise the
Users Equipment upon the expiry of at least 48 hours
prior written notice to the User provided that at the
time of expiry of the notice the User continues to fail
to comply with the order.
17.4 NGC Transmission Licence
------------------------
If a breach of the nature referred to in Sub-Clause 17.1
continues to the extent that it places or seriously
threatens to place in the immediate future NGC in breach of
the NGC Transmission Licence, NGC may De-Energise the User's
Equipment upon the expiry of at least 12 hours prior written
notice to the User, provided that at the time of expiry of
such notice the breach concerned remains unremedied.
17.5 Re-Energisation Disputes
------------------------
If, following any de-Energisation pursuant to this Clause
17, the User applies to NGC for the User's Equipment to be
Re-Energised and is refused or is offered terms which the
User does not accept, this shall be recognised as a dispute
over the terms for connection and use of system which the
User may refer to the Director for determination under the
NGC Transmission Licence. If the User accepts any terms
offered by NGC or settled by the Director pursuant to any
such reference, NGC shall Re-Energise the User's Equipment
forthwith after any request from the User for NGC to do so.
17.6 Event of Default
----------------
If the breach which led to any De-Energisation pursuant to
this Clause 17 remains unremedied at the expiry of at least
6 months after the date of such De-Energisation, NGC may
declare by notice in writing to the User that such breach
has become an event of default provided that:
(a) all disputes arising out of the subject-matter of
this Clause 17 which are referred to the Dispute
Resolution Procedure have then been finally
determined in favour of NGC; and
(b) any reference to the Director pursuant to sub-
clause 17.5 has then been finally determined in
favour of NGC or any terms settled by the Director
pursuant to such application have not been
accepted by the User.
17.7 Disconnection
-------------
Once NGC has given a valid notice of an event of default
pursuant to Sub-Clause 17.6 NGC may give notice of
termination to that User whereupon this Supplemental
Agreement shall terminate and:
(i) NGC shall Disconnect all the User's Equipment at
the Connection Site and NGC and the User concerned
shall by arrangement between them remove any of
the Users Equipment and NGC Assets on the other
Party's land within 6 months of the date of
termination or such longer period as may be agreed
between the Parties; and
(ii) that User shall be obliged to pay to NGC forthwith
the Termination Amounts applicable to the
Connection Site.
18. NOTICE TO DECOMMISSION OR DISCONNECT
------------------------------------
Without prejudice to Sub-Clause 16.2, the User shall give to
NGC not less than 6 months written notice of any intention
of the User either to Decommission the User's Equipment or
to Disconnect the User's Equipment.
19. DISCONNECTION
-------------
If notice to Disconnect is given by the User under Clause 18
the User may upon expiry of the period specified in such
notice and not before Disconnect the User's Equipment. At
the expiry of such period this Supplemental Agreement shall
terminate. The User shall pay to NGC all Termination
Amounts applicable to the Connection Site within 28 days
after termination of this Agreement. Within 6 months of the
date of such termination or such longer period as may be
agreed between the Parties the Parties shall by arrangement
with each other remove any of the User's Equipment and NGC
Assets on the other Party's land.
20. DECOMMISSIONING
---------------
If notice to Decommission is given by the User under Clause
18 the User may upon expiry of the period specified in such
notice and not before, Decommission the User's Equipment.
This Supplemental Agreement shall not terminate and:
(i) until the end of the Financial Year in which the
Decommissioning takes place all Connection Charges
and Use of System Charges payable by the User
under this Supplemental Agreement shall continue
to be payable in full; and
(ii) following the end of the Financial Year in which
the Decommissioning takes place the Use of System
Charges payable by the User under this
Supplemental Agreement shall no longer be payable
by the User but the Connection Charges so payable
shall continue to be payable.
If and when the User wishes to recommission it shall give
NGC not less than 3 months written notice unless a shorter
period is agreed between the User and NGC.
21. MASTER AGREEMENT
----------------
The provisions of Clauses 18 to 24 and 26 to 30 inclusive of
the Master Agreement shall apply to this Supplemental
Agreement as if set out in full herein.
22. VARIATIONS
----------
No variation to this Supplemental Agreement shall be
effective unless made in writing and signed by or on behalf
of both NGC and the User. NGC and the User shall effect any
amendment required to be made to this Supplemental Agreement
by the Director as a result of a change in the Transmission
Licence or an order or directions made pursuant to the Act
or a Licence or as a result of settling any of the terms
hereof and the User hereby authorises and instructs NGC to
make any such amendment on its behalf and undertakes not to
withdraw, qualify or revoke such authority or instruction at
any time.
IN WITNESS WHEREOF the hands of the duly authorised
representatives of the parties hereto at the date first above
written
THE NATIONAL GRID COMPANY PLC )
By )
[THE USER] )
By )
<PAGE>
APPENDIX A
----------
NGC'S ASSETS/CONNECTION SITE
----------------------------
COMPANY:
CONNECTION SITE:
TYPE:
NGC ASSETS:
QUANTITY VOLTAGE DESCRIPTION AGE(Years)
---------------------------- ---
SCHEMATIC DIAGRAM:
AREA:
<PAGE>
APPENDIX B
-----------
CONNECTION CHARGES/PAYMENT
--------------------------
1) CONNECTION CHARGES:
-------------------
COMPANY :
CONNECTION
SITE :
TYPE :
CHARGES : POUND for the period from 1st April
1990 to 31st March 1991 and thereafter as
determined in accordance with the Charging
Rules.
2) PAYMENT
-------
The charges shall be payable in 12 equal monthly
installments as specified in Clause 14 of the Master
Agreement.
<PAGE>
APPENDIX C
----------
ZONE/REGISTERED CAPACITY/PEAK HALF-HOURS/ESTIMATED DEMAND
---------------------------------------------------------
COMPANY :
GRID SUPPLY POINT/
CONNECTION SITE :
ELECTRICAL LOCATION OF ENERGY METERING
EQUIPMENT MEASURING STATION DEMAND:
ZONE :
a. GENERATION:
SET TYPE/FUEL REGISTERED
CAPACITY MW
b. In the Financial Year 1st April 1990 to 31st March 1991
NGC's Demand related Use of System charges shall be
calculated by reference to the Demand attributable to the
User at the Grid Supply Point identified above in relation
to the 3 half-hours of peak of Demand (Active Power)
occurring on the 3 days of peak Demand (Active Power) which
occur in the period from 1st November 1990 to 28th February
1991 and are at least 10 days apart.
c. In the Financial Year 1st April 1990 to 31st March 1991
NGC's generation related Use of System Charges shall be
calculated by reference to the highest Registered Capacity
during such Financial Year and the Energy produced.
d. ESTIMATED DEMAND for the period between 1 April 1990 and
----------------
31st March 1991 and thereafter as notified in accordance
with the Charging Rules.
MW
-------------------------------
<PAGE>
APPENDIX D
-----------
USE OF SYSTEM CHARGES/PAYMENT
-----------------------------
COMPANY :
LOCATION :
1) TYPE OF CHARGE: SYSTEM SERVICE
Demand related
POUND......... in respect of the period from 1st April
1990 to 31st March 1991 payable in 12 equal monthly
installments subject to adjustment in accordance with
the Charging Rules.
Note: based upon a charge of POUND.......... per KW and
....... KW of Estimated Demand as set out in Appendix
C.
2) TYPE OF CHARGE: INFRASTRUCTURE
A. Demand related
POUND......... in respect of the period from 1st April
1990 to 31st March 1991 payable in 12 equal monthly
installments subject to adjustment in accordance with
the Charging Rules.
Note: based upon a charge of POUND........ per KW and
...... KW of Estimated Demand as set out in Appendix C.
B. Capacity Related
POUND........ in respect of the period from 1st April
1990 of 31st March 1991 payable in 12 equal monthly
installments subject to adjustment in accordance with
the Charging Rules based upon a charge of POUND.......
per KW Registered Capacity and ...... KW being the
Registered Capacity as set out in Appendix C.
C. Energy Related
POUND........ per KWh in respect of each KWh of Energy
entering the Total System in the period from 31st March
1990 to 31st March 1991 payable as described in Clause
14 of the Master Agreement.
Payment shall be made in accordance with Clause 14 of the
Master Agreement.
<PAGE>
APPENDIX E CHARGING RULES
-------------------------
Part 1 Transmission Network Use of System Charges and Connection
----------------------------------------------------------------
Charges
--------
Introduction
------------
Under the terms of this Supplemental Agreement the User is liable
to pay Transmission Network Use of System Charges based upon the
Registered Capacity of Generating Units passing Active Power on
to and/or the Demand taken from the NGC Transmission System and
Connection Charges. The basis upon which Transmission Network
Use of System Charges and Connection Charges are levied according
to a User's particular circumstances are set out in the statement
issued by NGC under paragraphs 1, 2 and 3 of Condition 10 to the
Transmission Licence.
1.1 Data Requirements
-----------------
1.1.1 On or before a date not later than 10 Business Days
after the confirmation of the basis of calculation of
charges pursuant to paragraph 2.1 in each Financial
Year the User shall supply NGC with such data as NGC
may from time to time reasonably request pursuant to
paragraph 2.1 to enable NGC to calculate the Connection
Charges and/or Transmission Network Use of System
Charges due from the User to NGC or from NGC to the
User (as the case may be) in respect of the Connection
Site including the data specified in Appendix C;
1.1.2 On or before a date not later than 10 Business Days
after the confirmation of the basis of calculation of
charges pursuant to paragraph 2.1 in each Financial
Year, Users:
(a) who are owners or operators of a User System shall
provide to NGC a forecast for the following
Financial Year of the Natural Demand attributable
to each Grid Supply Point equal to the forecasts
of Natural Demand under both Annual Average Cold
Spell (ACS) Conditions and a forecast of the
average metered Demand attributable to such Grid
Supply Point (or such other forecasts as may be
notified by NGC to the User pursuant to paragraph
2.1) for each of a number of peak half-hours as
notified by NGC to the User under paragraph 2.1,
(b) who are Suppliers shall provide to NGC a forecast
for the following Financial Year of its metered
Demand attributable to each Transmission Network
Use of System Demand Zone equal to the average of
the forecasts of demand attributable to such
Transmission Network Use of System Demand Zone (or
such other forecast as may be notified by NGC to
the User pursuant to paragraph 2.1) for each of a
number of peak half-hours notified by NGC to the
User under paragraph 2.1,
(c) who are Generators shall provide to NGC a forecast
for the following Financial Year of
(i) the metered Station Demand (Active
Power) attributable to the Power Station
for the Generating Units comprised
therein equal to the average of the
forecasts of such Station Demand (Active
Power) (or such other forecast as may be
notified by NGC to the User pursuant to
paragraph 2.1) attributable to the sum
of the Generating Units for each of a
number of peak half-hours as notified by
NGC to the User under paragraph 2.1,
(ii) the highest Registered Capacity to be
declared pursuant to the terms of the
Pooling and Settlement Agreement of each
Generating Unit comprised within a Power
Station for the period as notified by
NGC to the User under paragraph 2.1;
(d) who are Generators and whose Equipment is
comprised within a Trading Site (as such term is
defined in the Pooling and Settlement Agreement)
shall supply to NGC a forecast for the following
Financial Year of:
(i) the highest Registered Capacity declared
pursuant to the terms of the Pooling and
Settlement Agreement of each Generating
Unit comprised within a Power Station
which forms part of such Trading Site;
and
(ii) the average Demand within the Trading
Site (other than Station Demand) to be
supplied by the Power Station in (i)
above for each of the number of peak
half hours notified by the User to NGC
pursuant to paragraph 2.1;
(iii) the Station Demand for the Power Station
within the Trading Site determined in
accordance with paragraph 1.1.2(c)(i);
for the period as notified by NGC to the User under
paragraph 2.1 and NGC shall use such forecasts as the
basis of Transmission Network Use of System Charges for
such Financial Year.
1.1.3 Variation of Charges by NGC during the Financial Year
-----------------------------------------------------
The User shall notify NGC of any revision to the
forecast Demand submitted by the User under paragraph
1.1 of this Appendix E at least quarterly or at such
other intervals as may be agreed between NGC and the
User from time to time. NGC shall revise the
Transmission Network Use of System Charges payable by
the User to take account of any such revised forecast
provided in accordance with this paragraph 1.1.3, NGC
shall commence charging the varied Transmission Network
Use of System Charges from the first day of the month
following the month in which such revised forecast was
received provided always that such forecast is provided
before 15th day of such month.
1.2 Reconciliation Statements
-------------------------
Initial Reconciliation Statements
---------------------------------
1.2.1 On or before 1 March in each Financial Year NGC shall
promptly calculate on the basis set out in the
statement published by NGC in accordance with Licence
Condition 10 of the Transmission Licence the Demand
related or Generation related Transmission Network Use
of System Charges (as the case may be) that would have
been payable by the User during each month during that
Financial Year in respect of the forecasts which had
previously been provided by the User in accordance with
paragraph 1.1 (the "Actual Amount"). NGC shall then
compare the Actual Amount with the amount of Demand
related or Generation related Transmission Network Use
of System Charges (as the case may be) paid during each
month during that Financial Year by the User (the
"Notional Amount").
1.2.2 As soon as reasonably practicable and in any event by
1st March in each Financial Year NGC shall then prepare
an initial reconciliation statement and send it to the
User. Such statement shall specify the Actual Amount
and the Notional Amount for each month during the
relevant Financial Year and, in reasonable detail, the
information from which such amounts were derived and
the manner in which they were calculated.
1.2.3 Together with the initial reconciliation statement NGC
shall issue a credit note in relation to any sum shown
by the reconciliation statement to be due to the User
or an invoice in respect of sums due to NGC and in each
case interest thereon calculated pursuant to paragraph
1.2.5 below.
1.2.4 Invoices issued under paragraph 1.2.3 above and 1.2.5
below shall be payable on or before 31st March in the
Financial Year to which they relate.
1.2.5 In respect of the Financial Year:
(a) the User shall, following receipt of an
appropriate invoice, pay to NGC an amount equal to
the amount (if any) by which the aggregate Actual
Amount exceeds the aggregate Notional Amount; and
(b) NGC shall issue the User with a credit note for an
amount equal to the amount (if any) by which the
aggregate Notional Amount exceeds the aggregate
Actual Amount.
Interest shall be payable by the paying Party to the
other on such amounts from the date of payment
applicable to the month concerned until the date of
actual payment of such amounts and such interest shall
be calculated on a daily basis at a rate equal to the
Base Rate during such period.
Final Reconciliation Statements
-------------------------------
1.2.6 (a) NGC shall as soon as reasonably practicable after
the end of each Financial Year issue a further
reconciliation statement in respect of
Transmission Network Use of System Charges payable
in respect of each month of that Financial Year
showing:
(i) any change in the Transmission Network
Use of System Charges from those
specified in the initial reconciliation
statement provided in accordance with
paragraph 1.2.1 above;
(ii) whether the change represents a
reconciliation payment owing by NGC to a
User or by a User to NGC;
(iii) the amount of interest determined in
accordance with 1.2.5 above;
(iv) the information from which the amounts
in (i) above are derived and the manner
of their calculation.
(b) The provisions of paragraph 1.2.3 and 1.2.5 shall
apply mutatis mutandis to sums specified in the
Final Reconciliation Statement.
2. Revision of Charges
-------------------
2.1 To the extent permitted by the Transmission Licence and this
Agreement NGC may revise its Connection Charges and
Transmission Network Use of System Charges or the basis of
their calculation including issuing revisions to Appendices
A, B, C, and D (or D1 if appropriate) hereto. On or before
31st October in each Financial Year NGC shall notify the
User in writing of the intended basis of calculation to be
used by NGC in the following Financial Year together with
time periods over which the data required to be provided
pursuant to paragraph 1 of this Appendix E is required and
shall consult with the User concerning the same. On or
before 30th November in each Financial Year NGC shall
confirm to the User the basis of calculation to be used in
the following Financial Year.
2.2 NGC shall give the User not less than 2 months prior written
notice of any revised charges, including revisions to
Appendices A, B, C and D (or D1 if appropriate) hereto,
which notice shall specify the date upon which such
revisions become effective (which may be at any time). The
User shall pay any such revised charges and Appendix A, B,
C, D (and/or D1 as appropriate) shall be amended
automatically (and a copy sent to the User) to reflect any
changes to such Appendices with effect from the date
specified in such notice.
2.3 Subject to the provisions of paragraph 3.2 below if in the
reasonable opinion of NGC any development, replacement,
renovation, alteration, construction or other work to the
NGC Transmission System or termination of a Supplemental
Agreement by another User or an alteration to the
requirements of the User or any other User means that to
ensure that NGC is charging in accordance with the
provisions of the Statement pursuant to Condition 10 of the
Transmission Licence NGC needs to vary the Connection
Charges payable by the User in relation to the Connection
site then NGC shall have the right to vary such charges
accordingly upon giving to the User not less than 2 months
prior written notice. Such notice shall be deemed to be a
revised connection Offer and before any such variation
becomes effective the provisions of Sub-clauses 11.3 to 11.4
of the Master Agreement shall apply mutatis mutandis.
Following any such variation the provisions of Appendices A
and B shall be amended automatically (and a copy sent to the
User) to reflect such variation with effect from the date
such variation comes into effect.
3. REPLACEMENT OF NGC ASSETS
-------------------------
3.1 Appendix A specifies the age of the NGC Assets at the
Connection Site at the date of this Supplemental Agreement.
NGC Connection Charges are calculated on the assumption that
NGC Assets will not require replacement until the expiry of
the Replacement Period applicable to each NGC Asset
concerned and such period has been agreed between NGC and
the User.
3.2 Where in NGC's reasonable opinion an NGC Asset requires
replacement before the expiry of its Replacement Period NGC
shall, with the prior written approval of the User (except
where in NGC's reasonable opinion such replacement is
necessary in which case such approval shall not be required
but in such case the User shall have the right to
Disconnect) have the right to replace the NGC Asset at no
additional cost to the User until expiry of its original
Replacement Period. Upon expiry of such original
Replacement Period NGC shall be entitled to vary the
Connection Charges in respect of the replaced NGC Asset so
that they are calculated on the basis of the then Net Asset
Value of such NGC Assets. NGC shall give the User not less
than 2 months prior written notice of such varied charges
which notice shall specify the date upon which such increase
or reduction (as the case may be) becomes effective. The
User shall pay such varied charges and Appendices A and B
shall be amended automatically (and a copy sent to the User)
to reflect such revised charges with effect from the date
specified in such notice.
3.3 Upon the expiry of the Replacement Period of any NGC Asset:
(a) (i) if in NGC's reasonable opinion to enable NGC
to comply with its licence and statutory
obligations it is necessary to replace such
NGC Asset; or
(ii) if such NGC Asset is to be left in service
then NGC shall give written notice of this
and that it will, unless within 3 months of
the receipt of such notice the User objects
in writing to the proposal, replace or retain
(as the case may be) such NGC Asset.
(b) the User may request that NGC replaces the Asset.
3.4 Where the User serves a counter notice pursuant to paragraph
3.3 above then NGC shall:
(a) keep the NGC Asset in service; and
(b) negotiate with the User in good faith with regard to
the Connection Charges applicable to such NGC Asset.
In the event that NGC and the User fail to agree the level
of such Connection Charges in accordance with paragraph
3.4(b) above then the User shall pay Connection Charges to
NGC in respect of such NGC Asset equal to the Connection
Charges payable by the User in respect of the NGC Asset in
the last Financial Year of the Replacement Period (the
"Deemed Charge") and the matter shall be referred to the
Director for determination. If the Director determines that
the Connection Charges payable in respect of such NGC Asset
should be:
(i) less than the Deemed Charge then NGC shall repay to the
User the difference between the Deemed Charge and the
amount so determined by the Director together with
interest at the Base Rate, for the period from when the
User started to pay the Charge until the date of
payment;
(ii) greater than the Deemed Charge then the User shall pay
the difference to NGC with interest at the Base Rate
for the period from when the User started to pay the
Deemed Charge until the date of payment.
3.5 Where the Connection Charges are payable in respect of NGC
Assets:
(a) replaced in accordance with paragraph 3.3 above; or
(b) retained in accordance with paragraph 3.3 above; then
NGC shall except in the circumstances in paragraph
3.4(b) give the User not less than 2 months prior
written notified of such varied charges and specify the
date upon which such charges become effective. The
User shall pay such varied charges and Appendices A and
B shall be amended automatically (and a copy sent to
the User) to reflect such revised charges with effect
from the dates notified to the User by NGC. Where NGC
is in negotiation with the User in accordance with
paragraph 3.4(b) then it shall give such notice as is
reasonably practicable in the circumstances.
4 Termination Amounts
-------------------
4.1 The expressions set out below shall have the meanings shown:
"Termination Amount" shall be the sum calculated to be
equal to the aggregate of the
following -
(a) in respect of NGC Assets:
(i) shown in Appendix A to
the Supplemental
Agreement and which in
NGC's reasonable opinion
are no longer required by
NGC to enable NGC to
comply with its License
Standards, and can
therefore be removed
("Type A Assets"); (aa)
the Net Asset Value of
such NGC Asset as at the
end of the Financial Year
in which termination
occurs (on the assumption
that the sums specified
in paragraph 4.1(b) will
be paid), plus (bb) a sum
equal to the reasonable
costs of removing such
NGC Assets and of making
good the remaining Plant
and Apparatus at the
Connection Site following
the removal of any Type A
Assets;
(ii) in Appendix A to the
Supplemental Agreement
and which in NGC's
reasonable opinion cannot
be removed ("Type B
Assets") as a result of
the termination a sum
equal to the product of
the Asset Allocation
Factor multiplied by the
Net Asset Value of that
NGC Asset as at the end
of the Financial Year in
which termination occurs;
and
(iii) in relation to NGC
Assets
(aa) which NGC has
determined to
replace upon the
expiry of the
relevant Replacement
Period in accordance
with paragraph 3.3;
and
(bb) in respect of which
no counter notice
has been served by
the User pursuant to
paragraph 3.3; and
(cc) the User has served
in accordance with
the provisions of
this Supplemental
Agreement a notice
to Disconnect in
respect of the
Connection Site at
which the NGC Assets
were located; and
(dd) due to the timing of
the replacement of
such NGC Assets, no
Connection Charges
will have become
payable in respect
of such NGC Assets
by the User by the
date of termination;
the reasonable costs
incurred by NGC in
connection with the
installation of such NGC
Assets;
(b) the Connection Charges and Use
of System Charges for the
Financial Year in which
termination occurs.
"Asset Allocation Factor" means in respect of each NGC
Asset specified in Appendix A
to this Supplemental Agreement
the figure expressed as a
percentage appearing in the
column headed Allocation and
immediately adjacent to the
description of the NGC Asset
to which it relates.
4.2 In the event that a Termination Amount specified in
paragraph 4.1(a)(i) is paid, in respect of Type A Assets,
and subsequently NGC re-uses such NGC Assets in respect of
which such payment has been made at the same or another
Connection Site then NGC shall pay to the User a sum equal
to the lower of:
(i) the Termination Amount paid in respect of such NGC
Asset; or
(ii) the Net Asset Value attributed to such NGC Asset for
charging purposes upon its re-use.
less any reasonable costs incurred by NGC in respect of
storage. NGC shall use its reasonable endeavors to re-use
such NGC Assets.
4.3 In the event that a Termination Amount specified in
paragraph 4.1(a)(ii) above is paid in respect of Type B
Assets and these are subsequently re-used then NGC shall pay
to the User a sum equal to the lower of:
(i) the Termination Amount paid in respect of such NGC
Assets; or
(ii) the Net Asset Value attributed to such NGC Asset for
charging purposes upon its re-use.
4.4 For the purposes of paragraphs 4.2 and 4.3 re-use shall not
occur where any NGC Asset remains connected for the purpose
of providing a continuing connection for other Users
connected to the NGC Transmission System at the Connection
Site at the date of termination. However in the event of
any User requiring a continued connection modifying its
requirements or another User connecting at the Connection
Site and the NGC Assets in respect of which a payment has
been made are required for this modification this shall
constitute re-use.
4.5 NGC shall be under no obligation to rebate any of the
Termination Amounts described in paragraph 4.1(b), except to
the extent that Connection and/or Transmission Network Use
of System Charges are subsequently received in respect of
NGC Assets in relation to which such Termination Amounts
have been paid to NGC during the Financial Year in which
termination has occurred.
4.6 Upon request in writing, and at the cost of the User, NGC
shall issue a certificate no more recently than once each
calendar year indicating whether or not such assets have or
have not been re-used. If NGC at any time decide that it is
not economic to retain any Plant and Apparatus constituting
any NGC Asset in respect of which Termination Amounts have
been paid it may at its reasonable discretion dispose of the
said Plant and Apparatus. Where NGC decides to so dispose
of such Plant and Apparatus it shall where the Plant and/or
Apparatus is disposed of in a state where it is capable of
re-use pay to the User an appropriate proportion of any sale
proceeds received in respect thereof.
5. Deductions
----------
In respect of any NGC Engineering Charges which have been
paid by the User in connection with a Connection Application
or under Sub-Clause 2.4 of the Supplemental Agreement Type 2
NGC shall reduce the amount of Connection Charges payable by
the User in relation to the respective Connection Site on 1
April in each of the first 3 years (or such other period as
may be agreed between NGC and the User) of the payment of
such Connection Charges by an amount equal on each occasion
to one third of such NGC Engineering Charges.
Part 2 Transmission Services Use of System Charges
--------------------------------------------------
Introduction
------------
Under the terms of this Supplemental Agreement the User is liable
to pay Transmission Services Use of System Charges. The basis
upon which Transmission Services Use of System Charges are levied
and the calculation methodology and rules which will be used to
quantify those charges are set out in the statement issued by NGC
under paragraphs 1 and 2 of Condition 10 to the Transmission
License.
1. Reconciliation
--------------
1.1 At any time after the Payment Date NGC may submit to the
User, and shall submit to the User at the written request of
the User a Statement (which may form part of an invoice or
other document) in respect of any Settlement Day (a
"Reconciliation Statement") showing:
(a) each Settlement Day in respect of which there has been
a change (for any reason) in the value of any parameter
originally used in the calculation of the Transmission
Services Use of System Charges in respect of such
Settlement Day, together with details of the value of
the old and new parameter;
(b) the amount of any reconciliation payments (if any)
required to make the Transmission Services Use of
System Charges paid in respect of that Settlement Day
equal to the payment which would have been payable had
the invoice prepared pursuant to Clause 5.4.1 of this
Supplemental Agreement been prepared on the basis of
the changed parameter;
(c) whether the reconciliation payment represents an amount
owing by NGC to the User or by the User to NGC;
(d) the amount of interest accruing on such reconciliation
payment calculated in accordance with this paragraph
1.1 below.
Interest payable in respect of each reconciliation payment
shall accrue from and including the relevant Payment Date up
to but excluding the date upon which the amounts specified
in the Reconciliation Statement are paid, and shall be at a
rate equal to the Base Rate for the time being and from time
to time. Interest shall accrue from day to day
1.2 Together with the Reconciliation Statement in the case of
sums due:
(a) from the User to NGC, NGC shall:
(i) send the User an invoice in relation to any sums
shown by the Reconciliation Statement to be due to
NGC and interest thereon calculated in accordance
with paragraph 1.1; or
(ii) include those sums due in another invoice; and
(b) from NGC to the User, forthwith following the issue of
any Reconciliation Statement, NGC shall;
(i) issue a credit note in relation to any sum shown
by the Reconciliation Statement to be due to the
User and interest thereon calculated in accordance
with paragraph 1.1; or
(ii) include those sums due to the User as a credit in
an invoice from NGC to the User.
1.3 The right to submit a Reconciliation Statement and the
consequential invoices and/or credit notes shall survive the
termination of this Supplemental Agreement and the parties
agree that the provisions of this Appendix E Part 2 shall
remain in full force and effect and shall continue to bind
them after such termination (the version in existence as at
the date of termination being the applicable version, in the
case of any amendments).
2. Reconciliation Payments
-----------------------
The User, or as the case may be, NGC, shall pay the amounts
set out in the relevant invoice or credit note, either in
accordance with the applicable requirements for payment of
other sums due under that invoice in the case of sums shown
in an invoice also dealing with other payments, or in other
cases within 5 Business Days of the date of the
Reconciliation Statement.
3. Revision of Charges
-------------------
On or before 31 October in each Financial Year NGC shall
notify the User in writing of the intended basis of
calculation to be used by NGC in calculating Transmission
Services Use of System Charges for the following Financial
Year and shall consult the User concerning the same. On or
before 30 November in each Financial Year NGC shall confirm
to the User the basis of calculation to be used in
calculating those charges for the following Financial Year.
Part 3
------
1 Transmission Services Use of System Charges Security Cover
----------------------------------------------------------
1.1 Provision of Security Cover
---------------------------
The User shall provide Security Cover from time to time in
accordance with the following provisions:
1.1.1 the User shall not later than the date of its
accession to the Master Agreement or 1st April
1997 (whichever is later) deliver to NGC evidence
reasonably satisfactory to it that:
(i) it presently holds an Approved Credit Rating;
or
(ii) it has provided and is not in default under
the Security Cover referred to in paragraph
1.1.2 below;
1.1.2 if the User does not hold or ceases to hold an
Approved Credit Rating it shall, not later than
the date of:
(i) the date of its accession to the Master
Agreement,
(ii) the 1st April 1997, or
(iii) the date upon which it ceases to have an
Approved Credit Rating:
(a) deliver to NGC a Qualifying Guarantee in
such amount as shall be notified by NGC
to the User in accordance with paragraph
2; or
(b) deliver to NGC a Letter of Credit
(available for an initial period of not
less than 6 months) in such amount as
shall be notified by NGC to the User in
accordance with paragraph 2; and/or
(c) deliver to NGC cash for credit to the
Escrow Account in such amount as shall
be notified by NGC in accordance with
paragraph 2.
1.1.3 The provision of security in respect of
Transmission Services Use of System Charges by the
User in accordance with the terms of:
(a) this Supplemental Agreement shall relieve it
of its obligations to provide such security
under the terms of any other Supplemental
Agreement to which the User is a party; and
(b) any other Supplemental Agreement to which the
User is a party shall relieve it of its
obligations to provide such security under
the terms of this Supplemental Agreement;
in each case, to the extent of the security
provided to NGC pursuant to this Appendix or the
same provision under the terms of any other
Supplemental Agreement made between NGC and the
User.
1.1.4 The provisions of this Part 3 of Appendix E shall
be in addition to any other requirements to
provide security in respect of any other sums due
under the terms of this Supplemental Agreement.
1.2 Maintenance of Security Cover
-----------------------------
Where the User is required to provide Security Cover in
accordance with the terms of paragraph 1.1 it shall at all
times thereafter maintain a Security Amount equal to or more
than the Security Cover applicable to it. Immediately upon
any reduction occurring in the Security Amount provided by
the User or any Letter of Credit or Qualifying Guarantee
being for any reason drawn down or demanded respectively,
the User will procure that new Letters of Credit or
Qualifying Guarantees are issued or existing Letters of
Credit or Qualifying Guarantees are reinstated (to the
satisfaction of NGC) to their full value or cash is placed
to the credit of the Escrow Account in an amount required to
restore the Security Amount to an amount at least equal to
the Security Cover applicable to the User, and in such
proportions of Letters of Credit, Qualifying Guarantees
and/or cash as the User may determine. Not later than 10
Business Days before any outstanding Letter of Credit and/or
Qualifying Guarantee is due to expire, the User shall
procure to the satisfaction of NGC that its required
Security Amount will be available for a further period of
not less than 6 months which may be done in one of the
following ways:
1.2.1 subject to the issuing bank continuing to have an
Approved Credit Rating provide NGC with
confirmation from the issuing bank that the
validity of the Letter of Credit has been extended
for a period of not less than 6 months on the same
terms and otherwise for such amount as is required
by this Part 3; or
1.2.2 provide NGC with a new Letter of Credit issued by
an issuing bank with an Approved Credit Rating for
an amount at least equal to the required Security
Amount applicable to it (less its balance on the
Escrow Account) which Letter of Credit shall be
available for a period of not less than 6 months;
or
1.2.3 subject to the entity issuing the Qualifying
Guarantee continuing to have an Approved Credit
Rating provide NGC with confirmation from the
issuing entity that the validity of the Qualifying
Guarantee has been extended for a period of not
less than 6 months on the same terms and otherwise
for such amount as is required by this Part 3; or
1.2.4 provide NGC with a new Qualifying Guarantee for an
amount at least equal to the required Security
Amount applicable to it (less its balance on the
Escrow Account) which Qualifying Guarantee shall
be available for a period of not less than 6
months; or
1.2.5 procure such transfer to NGC for credit to the
Escrow Account of an amount as shall ensure that
the credit balance applicable to the User and
standing to the credit of the Escrow Account shall
be at least equal to the required Security Amount.
1.3 Failure to supply or maintain Security Cover
--------------------------------------------
If the User fails at any time to provide or maintain
Security Cover to the satisfaction of NGC in accordance with
the provisions of this Part 3, NGC may at any time while
such default continues, and if at such time any Letter of
Credit and/or Qualifying Guarantee forming part of the
Security Cover is due to expire within nine Business Days
immediately, and without notice to the User, demand payment
of the entire amount of any outstanding Letter of Credit
and/or Qualifying Guarantee and shall credit the proceeds of
the Letter of Credit and/or Qualifying Guarantee to the
Escrow Account.
1.4 Substitute Letter of Credit or Qualifying Guarantee
---------------------------------------------------
1.4.1 If the bank issuing the User's Letter of Credit ceases
to have the credit rating set out in the definition of
Letter of Credit in Clause 1.1 of this Supplemental
Agreement such User shall forthwith procure the issue
of a substitute Letter of Credit by a bank that has
such a credit rating or a Qualifying Guarantee or
transfer to NGC cash to be credited to the Escrow
Account.
1.4.2 If the entity providing the User's Qualifying Guarantee
ceases to have an Approved Credit Rating the User shall
forthwith procure a replacement Qualifying Guarantee
from an entity with such a credit rating or a Letter of
Credit or transfer to NGC cash to be credited to the
Escrow Account.
2 CREDIT MONITORING
-----------------
2.1 Determination of Security Cover
-------------------------------
The amount of Security Cover which the User shall be
required to maintain shall be determined from time to time
by NGC in accordance with this Part 3 on the basis of the
criteria set out in paragraph 2.2 and shall be notified to
the User.
2.2 Criteria for provision of Security Cover
----------------------------------------
If paragraph 1.1.2 applies, the amount of Security Cover
required to be provided by the User in respect of this and
any other Supplemental Agreement to which the User is a
party shall be provided in an amount to be reasonably
assessed by NGC as the aggregate amount reasonably
anticipated by NGC as being payable by the User pursuant to
all Supplemental Agreements to which the User is a party in
respect of the Transmission Services Use of System Charges
referred to in Part 2 of Appendix D over a 28 day period.
2.3 Six Monthly Variation
---------------------
In respect of paragraph 2.2 NGC shall calculate the amount
for the two six-month periods commencing 1st April and 1st
October in each year and shall advise the User accordingly.
2.4 Review of Security Cover
------------------------
NGC shall keep under review the Security Cover relating to
the User and shall promptly advise the User whenever the
Security Amount maintained by the User is more or less than
the amount required to be maintained pursuant to paragraph 2
of this Part 3.
2.5 Increase or Decrease of Security Cover
--------------------------------------
If, after considering any representations which may be made
by the User, NGC reasonably determines that the User's
Security Cover should be increased or decreased, it shall so
notify the User. If NGC so determines that such Security
Cover should be decreased and the User consents then that
reduction shall take place. NGC shall consent to an
appropriate reduction in the available amount of any
outstanding Qualifying Guarantee or Letter of Credit and/or
shall repay to the User such part of the deposit held in the
Escrow Account for the account of the User (together with
all accrued interest on the part to be repaid) sufficient to
reduce the User's Security Amount to the level of Security
Cover applicable to it. If NGC so determines that the
User's Security Cover should be increased, the User shall,
within five Business Days of notice as aforesaid, procure an
additional or replacement Qualifying Guarantee or Letter of
Credit or transfer to NGC cash to be credited to the Escrow
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.
2.6 Notification in respect of Security Cover
-----------------------------------------
NGC shall notify the User promptly if:
2.6.1 the User fails to provide, maintain, extend or
renew a Qualifying Guarantee or a Letter of Credit
which it is required to provide, maintain, extend
or renew pursuant to paragraphs 1 or 2;
2.6.2 NGC shall make a demand under any such Qualifying
Guarantee or a call under a Letter of Credit; or
2.6.3 NGC becomes aware that the User (a) shall cease to
have 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
User retaining an Approved Credit Rating, or (c)
shall be in default under the additional or
alternative security required to be provided
pursuant to this Part 3; or
2.6.4 NGC becomes aware that any bank that has issued a
Letter of Credit which has not expired shall cease
to have the credit rating required by this
Appendix; or
2.6.5 NGC becomes aware that any entity providing a
Qualifying Guarantee which has not expired shall
cease to have an Approved Credit Rating.
Provided always that the failure by NGC to notify the User
pursuant to this paragraph 2.6 shall not relieve the User of
its obligations under and in accordance with the terms of
this Appendix.
2.7 Release from Security Cover Obligations
---------------------------------------
Upon the User ceasing to be a party to the Master Agreement
and provided that all amounts owed by the User in respect of
the Transmission Services Use of System Charges have been
duly and finally paid and that it is not otherwise in
default in any respect of any Transmission Services Use of
System Charges (including interest) payable under the terms
of any Supplemental Agreement, the User shall be released
from the obligation to maintain Security Cover and NGC shall
consent to the revocation of any outstanding Qualifying
Guarantee or Letter of Credit and shall repay to the User
the balance (including interest credited thereto) standing
to the credit of the User on the Escrow Account at that
date.
3 Payment Default
---------------
If, by 1230 hours on any Payment Date, NGC has been notified
by the User or if otherwise has reason to believe that the
User will not have remitted to it by close of banking
business on the Payment Date all or any part ("the amount in
default") of any amount which has been notified by NGC to
the User as being payable by the User by way of the
Transmission Services Use of System Charges on the relevant
Payment Date, then NGC shall be entitled to act in
accordance with the following provisions for whichever of
them shall apply) in the order in which they appear until
NGC is satisfied that the User has discharged its
obligations in respect of the Transmission Services Use of
System Charges under this Supplemental Agreement and/or any
other Supplemental Agreement to which the User is a party
which are payable in respect of the relevant Settlement Day:
(a) NGC may to the extent that the User is entitled to
receive Payment from NGC pursuant to this Supplemental
Agreement and/or any other Supplemental Agreement to
which the User is a party (unless it reasonably
believes that such set off shall be unlawful) set off
the amount of such entitlement against the amount in
default;
(b) NGC shall be entitled to set off the amount of funds
then standing to the credit of the Escrow Account to
the extent that it represents Security Cover provided
by the User in accordance with paragraph 2.1.2 against
the Transmission Services Use of System Charges unpaid
by the User and for that purpose NGC shall be entitled
to transfer any such amount from the Escrow Account to
any other account of NGC at its absolute discretion and
shall notify the User accordingly;
(c) NGC may demand payment under any outstanding Letter of
Credit supplied by the User in a sum not exceeding the
available amount of all such Letters of Credit;
(d) NGC may demand payment under any outstanding Qualifying
Guarantee provided for the benefit of the User pursuant
to paragraph 1.1.2(a).
4 Utilisition of Funds
--------------------
In addition to the provisions of paragraph 3 above if NGC
serves a notice of default under the terms of Clause 17.6A
of a Type 1 Supplemental Agreement and/or notice of
termination under Clause 17.7 of a Type 1 Supplemental
Agreement (or the equivalent Clauses in a Supplemental
Agreement other than a Type 1 Supplemental Agreement) then
NGC shall be entitled to demand payment of any of the
Transmission Services Use of System Charges which are
outstanding whether or not the Payment Date in respect of
them shall have passed and:
(i) make demand under any outstanding Qualifying Guarantee
or a call under any outstanding Letter of Credit
supplied by the User; and
(ii) to set off the funds in the Escrow Account to the
extent that they represent Security Cover provided by
the User against the Transmission Services Use of
System Charges unpaid by the User and for that purpose
NGC shall be entitled to transfer any such amount from
the Escrow Account to any other account of NGC as it
shall in its sole discretion think fit.
5 User's Right to Withdraw Funds
------------------------------
5.1 If the User is not in default in respect of any amount owed
to NGC in respect of the Transmission Services Use of System
Charges under the terms of any Supplemental Agreement to
which the User is a party:
5.1.1 NGC shall transfer to the User quarterly interest
credited to the Escrow Account; and
5.1.2 NGC shall transfer to such User within a
reasonable time after such User's written request
therefor any amount of cash provided by the User
by way of Security Cover which exceeds the amount
which such User is required to provide by way of
security in accordance with paragraph 1 of this
Part 3.
Part 4
------
Definitions and Interpretations
-------------------------------
In this Appendix the following expression shall have the meaning
set out below:
"Base Rate" in respect of any day the rate per annum which is
equal to the base lending rate of Barclays Bank
PLC as at close of business on that day;
Interpretation
--------------
Where this Appendix makes reference to the word "paragraph" then
it shall be a reference to a paragraph in this Appendix unless
the contrary is stated.
<PAGE>
APPENDIX F1
-----------
SITE SPECIFIC TECHNICAL CONDITIONS
----------------------------------
Agreed Ancillary Services
-------------------------
[Black Start Capability
Gas Turbine Unit Fast Start
Synchronous Compensation
Pumped Storage Unit Spinning-in-Air
Pumped Storage
Pumped Storage Plant Fast Start
Demand Reduction
Adjustment to Pumped Storage Unit Pumping Programme
Hot Standby]
<PAGE>
APPENDIX F2
-----------
(NOT USED)
----------
<PAGE>
APPENDIX F3
-----------
SITE SPECIFIC TECHNICAL CONDITIONS
----------------------------------
Special Automatic Facilities
(a) NGC Transmission System to Generating Unit
Intertripping schemes.
(b) NGC Transmission System to Demand Intertripping
Schemes.
(c) NGC Transmission System to Directly Connected Customers
Intertripping Schemes.
(d) Auto open/close schemes.
(e) System splitting or islanding schemes which impact on
the User's system or plant.
<PAGE>
APPENDIX F4
-----------
SITE SPECIFIC TECHNICAL CONDITIONS
-----------------------------------
Protection and Control Relay Settings/Fault Clearance Times
Pro-formas attached
<PAGE>
APPENDIX F5
-----------
SITE SPECIFIC TECHNICAL CONDITIONS
-----------------------------------
Load Shedding Frequency Sensitive Relays
----------------------------------------
This only applies to Suppliers. The manner in which Users Demand
subject to low frequency disconnection is to be split into
discrete MW Groups is set down in OC6 and is to be achieved for
Winter 1990/91.
The settings and MW blocks applicable to Winter 1989/90 were as
set down below. The transition from the 1989/90 settings to the
1990/91 settings is to be coordinated through NGC to ensure that
a viable overall scheme exists throughout the period.
<PAGE>
APPENDIX F6
-----------
SITE SPECIFIC TECHNICAL CONDITIONS
----------------------------------
Metering
---------
1.1 Operator
--------
Where the Connection Site is a Grid Supply Point, and the
User is or will be Registrant in relation to the Energy
Metering Equipment required by the Pooling and Settlement
Agreement at the Grid Supply Point and/or at the bulk supply
point(s) which are related to that Grid Supply Point, NGC
shall install and be the Operator of all such Energy
Metering Equipment from the Transfer Date until the FMS Date
and thereafter.
1.1.1 NGC may resign as Operator of such Energy Metering
Equipment on giving no less than 12 months' notice
in writing; and
1.1.2 the User may remove NGC as Operator upon giving no
less than 12 months' notice in writing.
Provided that where the User agrees to become owner of any
such Energy Metering Equipment NGC may resign as Operator
upon such transfer of ownership and shall agree such terms
as shall be reasonably necessary to enable the User to
perform its obligations as Operator of such Energy Metering
Equipment.
1.2 Charges
-------
NGC shall recover its charges for acting as Operator of any
Energy Metering System which is an NGC Asset charged for
under this Supplemental Agreement as part of such charges.
Where NGC acts as Operator of any other Energy Metering
System owned by NGC for which the User is Registrant NGC
shall charge and the User shall pay such amount which is
reasonable in all the circumstances.
1.3 Interference
------------
The User shall ensure that its employees, agents and
invitees will not interfere with any Energy Metering
Equipment in respect of which NGC is Operator or the
connections to such Energy Metering Equipment, without the
prior written consent of NGC (except to the extent that
emergency action has to be taken to protect the health and
safety of persons or to prevent serious damage to property
proximate to the Energy Metering Equipment or to the extent
that such action is authorised under the Master Agreement or
any other agreement between NGC and the User).
1.4 Pulse data
----------
The User shall have the right to collect and record pulses
from the meters comprised in the Energy Metering System(s)
at the Connection Site. NGC shall give the User access in
accordance with the Interface Agreement to collect and
record such pulses and to install and maintain such lines
and equipment as may be reasonably necessary therefor.
<PAGE>
EXHIBIT 4
---------
DATED 19
----------------------
THE NATIONAL GRID COMPANY PLC (1)
and
[ ] (2)
------------------------------------
SUPPLEMENTAL AGREEMENT TYPE 4
------------------------------------
(for Generators with Embedded Generating Plant or
with Embedded Small Independent Generating Plant
and who are acting in that capacity and who are passing
power on to a Distribution System through a
connection with a Distribution System which has not been
Commissioned at the Transfer Date)
<PAGE>
CONTENTS
--------
Clause Title
------ -----
1 Definitions, Interpretation, Construction
2 Approval to become Operational
3 The Site of connection to the Distribution System
4 Use of System Charges
5 Charging Rules
6 Ancillary Services
7 (Clause deleted)
8 Other Site Specific Technical Conditions
9 Metering
10 Joint System Incidents
11 Term
12 Emergency De-energisation
13 De-energisation and Disconnection
14 Notice to Decommission or Disconnect
15 Disconnection
16 Decommissioning
17 Master Agreement
18 Variations
Appendix A Connection Site
Appendix B
Appendix C Zone/Registered Capacity/Peak Half-Hours/
Estimated Demand
Appendix D Use of System Charges/Payment
Appendix E Charging Rules
Appendix F1 Site Specific Technical Conditions- Ancillary
Services
Appendix F2 (Not used)
Appendix F3 Site Specific Technical Conditions- Special
Automatic Facilities
Appendix F4 Site Specific Technical Conditions- Other
Appendix F5 Site Specific Technical Conditions- Metering
<PAGE>
THIS SUPPLEMENTAL AGREEMENT is made the day of 19
BETWEEN
(1) THE NATIONAL GRID COMPANY PLC a company registered in
England with number 2366977 whose registered office is at
National Grid House, Sumner Street, London SE1 9JU ("NGC",
which expression shall include its successors and/or
permitted assigns); and
(2) [ ] a company registered in [ ] with number [ ] whose
registered office is at [ ] (the "User", which expression
shall include its successors and/or permitted assigns)
WHEREAS
(A) NGC and the User are parties to Master Connection and Use of
System Agreement dated [ ] ("Master Agreement").
(B) This Supplemental Agreement is entered into pursuant to the
terms of the Master Agreement and shall be read as being
governed by them.
NOW IT IS HEREBY AGREED as follows:-
1. DEFINITIONS, INTERPRETATION AND CONSTRUCTION
--------------------------------------------
1.1 General
-------
Unless the subject matter or context otherwise requires
or is inconsistent therewith terms and expressions
defined in Schedule 2 to the Master Agreement have the
same meanings, interpretations or constructions in this
Supplemental Agreement.
2. APPROVAL TO BECOME OPERATIONAL
------------------------------
2.1 Not later than [ ] or by such other times as may be
agreed between the Parties each party shall submit to
the other:-
(i) data within its possession needed to enable
the completion of Appendix F3;
(ii) evidence reasonably satisfactory to NGC that
the Users Equipment complies or will on
Completion comply with the provisions of
Clauses 6, 8 and 9.
2.2 Not later than [ ] or by such other time as may be
agreed between the Parties each Party shall submit to
the other:-
(i) information to enable preparation of Site
Responsibility Schedules complying with the
provisions of Appendix [1] to the Connection
Conditions together with a list of managers
who have been duly authorized by the User to
sign such Site Responsibility Schedules on
the User's behalf;
(ii) a list of Safety Co-ordinators pursuant to
Operating Code 8 and a list of telephone
numbers for Joint System Incidents at which
senior management representatives nominated
for the purpose can be contacted; and
(iii) a list of telephone numbers for the facsimile
machines referred to in CC 6.5.8.
2.3 Not later than [ ] or by such other time as may be
agreed between the Parties the User shall submit to NGC
a statement of readiness to complete the Commissioning
Programme, together with Connected Planning Code Data
and a report certifying to NGC that, to the best of the
information, knowledge and belief of the User, all
relevant Connection Conditions applicable to the User
have been considered and that to the best of the
information, knowledge and belief of the User
Connection Conditions CC 6 have been complied with. If
NGC considers that it is necessary, it will require
this report to be prepared by the Independent Engineer
at NGC's sole cost and expense. The report shall
incorporate if requested by NGC type test reports and
test certificates produced by the manufacturer showing
that the User's Equipment meets the criteria specified
in CC 6.
2.4 Upon compliance by the User with the provisions of Sub-
Clauses 2.1., 2.2 and 2.3 NGC shall forthwith notify
the User in writing that it has the right to become
Operational.
2.5 Right to use the NGC Transmission System
----------------------------------------
Subject to the other provisions of this Agreement
including the provisions of the Grid Code, the User may
transmit supplies of power on to and/or take supplies
of power from the NGC Transmission System as the case
may be.
2.6 Registered Capacity
-------------------
The User if a Generator shall not operate its User's
Equipment such that any of it exceeds its Registered
Capacity save as expressly permitted and instructed
pursuant to the Grid Code or the Fuel Security Code or
as may be necessary or expedient in accordance with
Good Industry Practice.
2.7 Data
----
Data of a technical or operational nature collected
recorded or otherwise generated pursuant to this
Supplemental Agreement shall be deemed data lodged
pursuant to the Grid Code to the extent that the Grid
Code makes provision therefor.
2.8 Subject to the provisions of this Agreement and the
Grid Code, NGC shall accept into the NGC Transmission
System Active Power generated by the User up to the
Maximum Export Capacity except to the extent (if any)
that NGC is prevented from doing so by transmission
constraints which could not be avoided by the exercise
of Good Industry Practice by NGC.
2.9 Subject to the provisions of the Grid Code each Party
shall be entitled to plan and execute outages of parts
of its System or Plant or Apparatus at any time and
from time to time.
3. THE SITE OF CONNECTION TO THE DISTRIBUTION SYSTEM
-------------------------------------------------
The site of connection to the Distribution System to
which this Supplemental Agreement relates is more
particularly described in Appendix A.
4. USE OF SYSTEM CHARGES
---------------------
Subject to the provisions of Clause 5 of this
Supplemental Agreement the User shall with effect from
the Charging Date pay to NGC the Use of System Charges
set out in Appendix D payable in accordance with the
provisions of Appendix E.
5. CHARGING RULES
--------------
The provisions of the Charging Rules set out in
Appendix E to this Supplemental Agreement shall apply.
6. ANCILLARY SERVICES
------------------
The User shall provide the Agreed Ancillary Services
set out in Appendix F1 in accordance with the Grid
Code.
7. GRID CODE NON-COMPLIANCE
------------------------
(Clause deleted)
8. OTHER SITE SPECIFIC TECHNICAL CONDITIONS
----------------------------------------
8.1 NGC and the User shall operate respectively the NGC
Transmission System and the User System with the
special automatic facilities and schemes set out in
Appendix F3.
8.2 The User shall ensure that on the Completion Date the
User's Equipment complies with the site specific
technical conditions set out in Appendix F4.
8.3 The User shall use all reasonable endeavours to ensure
during the period of this Supplemental Agreement that
the User's Equipment shall continue to comply with the
site specific technical conditions set out in Appendix
F5.
8.4 If the User or NGC wishes to modify, alter or otherwise
change the site specific technical conditions or the
manner of their operation under Appendix F1, F2, F3, F4
or F5 this shall be deemed to be a Modification for the
purposes of the Master Agreement.
9. METERING
--------
The provisions of Appendix F5 shall have effect.
10. JOINT SYSTEM INCIDENTS
----------------------
Each Party confirms to the other that its Senior
Management Representatives whose names have been
nominated and notified to the other pursuant to OC9 are
fully authorized to make binding decisions on its
behalf for the purposes of OC9.
11. TERM
----
Subject to the provisions for earlier termination set
out herein and in Clause 17 or the Master Agreement,
this Supplemental Agreement shall continue until the
User's Equipment is Disconnected from the PES
Distribution System in accordance with Clause 13 or 15
hereof.
12. EMERGENCY DE-ENERGISATION
-------------------------
12.1 Emergency De-energisation requested by NGC
------------------------------------------
If, in the reasonable opinion of NGC, the condition or
manner of operation of the NGC Transmission System or
the User's System poses an immediate threat of injury
or material damage to any person or to the Total System
or to any User's System or to the NGC Transmission
System, NGC shall have the right to request the owner
of the Distribution System to which the User is
connected to De-energise the User's Equipment, if it is
necessary or expedient to do so to avoid the occurrence
of such injury or damage.
12.2 Emergency De-energisation by a User
-----------------------------------
If, in the reasonable opinion of the User, the
condition or manner of operation of the NGC
Transmission System, the Total System or any other
User's System, poses an immediate threat of injury or
material damage to any person or to the User's System
the User shall have the right to De-energise the User's
Equipment, if it is necessary or expedient to do so to
avoid the occurrence of such injury or damage.
12.3 Re-energisation
---------------
The User's Equipment at the Connection Site shall be Re
energised as quickly as practicable after the
circumstances leading to any De-energisation under this
Clause 12 have ceased to exist.
13. DE-ENERGISATION AND DISCONNECTION
---------------------------------
13.1 Breach by the User
------------------
If the User shall be in breach of any of the provisions
of this Supplemental Agreement or of the provisions of
the Master Agreement enforcing the provisions of the
Grid Code (but subject always to Sub-Clauses 9.3 and
9.4 of the Master Agreement) and such breach causes or
can reasonably be expected to cause a material adverse
effect on the business or condition of NGC or other
Users or the NGC Transmission System or Users Systems
then NGC may:-
(i) where the breach is capable of remedy, give
written notice to the User specifying in
reasonable detail the nature of the breach and
requiring the User within 28 days after
receipt of such notice to remedy the breach or
within any longer period agreed between NGC
and the User, the agreement of NGC not to be
unreasonably withheld or delayed; or
(ii) where the breach is incapable of remedy, give
written notice to the User specifying in
reasonable detail the nature of the breach and
the reasons why the breach is incapable of
remedy and requiring the User within 5
Business Days after receipt of such notice to
undertake to NGC not to repeat the breach.
13.2 Grid Code Procedures
--------------------
Whenever NGC serves a notice on the User pursuant to
Sub-Clause 13.1, NGC and the User shall discuss in good
faith and without delay the nature of the breach and
each shall use all appropriate procedures available to
it under the Grid Code (including testing rights and
the procedures set out in OC5 Testing and Monitoring)
in an attempt to establish as quickly as reasonably
practicable a mutually acceptable way of ensuring
future compliance by the User with the relevant
provision of the Grid Code.
13.3 De-energisation
---------------
13.3.1 If:-
(a) the User fails to comply with the terms of any
valid notice served on it by NGC in accordance
with Sub Clause 13.1(i) or is in breach of any
undertaking given in accordance with Sub-
Clause 13.1(ii) and such breach causes or can
be reasonably be expected to cause a material
adverse effect on the business or condition of
NGC or other Users or the NGC Transmission
System or User Systems; or
(b) five Business Days have elapsed since the date
of any valid notice served on the User in
accordance with Sub-Clause 13.2(ii) and no
undertaking is given by the User in accordance
with Sub-Clause 13.2(ii),
NGC may, provided NGC has if appropriate first complied
with OC5 Testing and Monitoring, request the owner of
the Distribution System to which the User is connected
to De-energise the User's Equipment upon the expiry of
at least 48 hours, prior written notice to the User,
provided that at the time of expiry of such notice the
breach concerned remains unremedied and that neither
Party has referred the matter to the Dispute Resolution
Procedure set out in Clause 27 of the Master Agreement.
In such event NGC may request the owner of the
Distribution System to which the User is connected to
De-energise forthwith following completion of the
Dispute Resolution Procedure and final determination of
the dispute in NGC's favour.
13.3.2 If the User fails to comply with the Grid Code and the
Director makes a final order or a confirmed provisional
order as set out in Sections 25 and 26 of the Act
against the User in respect of such non-compliance
which order the User breaches NGC may request to the
owner of the Distribution System to which the User is
connected to De-energise the User's Equipment upon the
expiry of at least 48 hours, prior written notice to
the User provided that at the time of expiry of the
notice the User fails to comply with the notice.
13.4 NGC Transmission Licence
------------------------
If a breach of the nature referred to in Sub-Clause
13.1 continues to the extent that it places or
seriously threatens to place in the immediate future
NGC in breach of the NGC Transmission Licence, NGC may
request the owner of the Distribution System to which
the User is connected to De-energise the User's
Equipment upon the expiry of at least 12 hours, prior
written notice to the User, provided that at the time
of expiry of such notice the breach concerned remains
unremedied.
13.5 Re-energisation Disputes
------------------------
If, following any De-Energisation pursuant to this
Clause 13, the User applies to NGC for NGC to issue
instructions that the User's Equipment should be Re-
energised and is refused or is offered terms which the
User does not accept, this shall be recognised as a
dispute over the terms for connection and use of system
which the User may refer to the Director for
determination under the NGC Transmission Licence. If
the User accepts any terms offered by NGC or settled by
the Director pursuant to any such reference, NGC shall
request the owner of the Distribution System to which
the User is connected to Re-energise the User's
Equipment forthwith after any request from the User for
NGC to do so.
13.6 Event of Default
----------------
If the breach which led to any De-energisation pursuant
to this Clause 13 remains unremedied at the expiry of
at least 6 months after the date of such De-
energisation, NGC may declare by notice in writing to
the User that such breach has become an event of
default provided that-
(a) all disputes arising out of the subject-matter
to this Clause 13 which are referred to the
Dispute Resolution Procedure have then been
finally determined in favour of NGC; and
(b) any reference to the Director pursuant to sub-
clause 13.5 has then been finally determined
in favour of NGC or any terms settled by the
Director pursuant to such application have not
been accepted by the User.
13.7 Disconnection
-------------
Once NGC has given a valid notice of an event of
default pursuant to Sub-Clause 13.6 NGC may give notice
of termination to that User whereupon this Supplemental
Agreement shall terminate and:
(i) NGC shall request the owner of the
Distribution System to which the User is
connected to Disconnect all the User's
Equipment at the Connection Site; and
(ii) that User shall be obliged to pay to NGC
forthwith the Use of System Charges due
hereunder up to the end of the Financial Year
in which Termination occurs.
14. NOTICE TO DECOMMISSION OR DISCONNECT
------------------------------------
Without prejudice to Sub-Clause 12.2 the User shall
give to NGC not less than 6 months, written notice of
any intention of the User either to Decommission the
User's Equipment or to Disconnect the User's Equipment.
15. DISCONNECTION
-------------
If notice to Disconnect is given by the User under
Clause 14 the User may upon expiry of the period
specified in such notice and not before Disconnect the
User's Equipment. At the expiry of such period this
Supplemental Agreement shall terminate. The User shall
pay to NGC all Use of System Charges due hereunder up
to the end of the Financial Year in which termination
occurs within 28 days after termination of this
Agreement.
16. DECOMMISSIONING
---------------
If notice to Decommission is given by the User under
Clause 14 the User may upon expiry of the period
specified in such notice and not before, Decommission
the User's Equipment. This Supplemental Agreement
shall not terminate and:-
(i) until the end of the Financial Year in which
the Decommissioning takes place all Use of
System Charges payable by the User under this
Supplemental Agreement shall continue to be
payable in full; and
(ii) following the end of the Financial Year in
which the Decommissioning takes place the Use
of System Charges payable by the User under
this Supplemental Agreement shall no longer be
payable by the User.
If and when the User wishes to recommission it shall
give NGC not less than 3 months, written notice unless
a shorter period is agreed between NGC and the User.
17. MASTER AGREEMENT
----------------
The provisions of Clauses 18 to 24 and 26 to 30
inclusive of the Master Agreement shall apply to this
Supplemental Agreement as if set out in full herein.
18. VARIATIONS
----------
No variation to this Supplemental Agreement shall be
effective unless made in writing and signed by or on
behalf of both NGC and the User. NGC and the User
shall effect any amendment required to be made to this
Supplemental Agreement by the Director as a result of a
change in the Transmission Licence or an order or
directions made pursuant to the Act or a Licence or as
a result of setting any of the terms hereof and the
User hereby authorises and instructs NGC to make any
such amendment on its behalf and undertakes not to
withdraw, qualify or revoke such authority or
instruction at any time.
IN WITNESS WHEREOF the hands of the duly authorised
representatives of the parties hereto at the date first above
written
THE NATIONAL GRID COMPANY PLC )
By )
[the USER] )
By )
<PAGE>
APPENDIX A
----------
SITE OF CONNECTION
------------------
COMPANY:
SITE OF CONNECTION:
OWNER/OPERATOR OF DISTRIBUTION SYSTEM:
TYPE:
<PAGE>
APPENDIX B
----------
(NOT USED)
----------
<PAGE>
APPENDIX C
----------
ZONE/REGISTERED CAPACITY/PEAK HALF-HOURS/ESTIMATED DEMAND
---------------------------------------------------------
COMPANY:
GRID SUPPLY POINT/
CONNECTION SITE:
ELECTRICAL LOCATION OF ENERGY METERING
EQUIPMENT MEASURING STATION DEMAND:
ZONE:
a. GENERATION:
SET TYPE/FUEL REGISTERED
CAPACITY MW
b. In the Financial Year 1st April 1990 to 31st March 1991
NGC's Demand related Use of System charges shall be
calculated by reference to the Demand attributable to the
User at the Grid Supply Point identified above in relation
to the 3 half-hours of peak Demand (Active Power) occurring
on the 3 days of peak Demand (Active Power) which occur in
the period from 1st November 1990 to 28th February 1991 and
are at least 10 days apart.
c. In the Financial Year 1st April 1990 to 31st March 1991
NGC's generation related Use of System Charges shall be
calculated by reference to the highest Registered Capacity
during such Financial Year and the Energy produced.
d. ESTIMATED DEMAND for the period between 1st April 1990 and
----------------
31st March 1991 and thereafter as notified in accordance
with the Charging Rules.
MW
--------------------------
<PAGE>
APPENDIX D
----------
USE OF SYSTEM CHARGES/PAYMENT
-----------------------------
COMPANY:
LOCATION:
1) TYPE OF CHARGE: SYSTEM SERVICE
Demand related
[pound sterling]........... in respect of the period from
1st April 1990 to 31st March 1991 payable in 12 equal
monthly instalments subject to adjustment in accordance with
the Charging Rules. Note: based upon a charge of [pound
sterling].... per KW and .... KW of Estimated Demand as set
out in Appendix C.
2) TYPE OF CHARGE: INFRASTRUCTURE
A. Demand related
[pound sterling]........... in respect of the period from
1st April 1990 to 31st March 1991 payable in 12 equal
monthly instalments subject to adjustment in accordance with
the Charging Rules. Note: based upon a charge of [pound
sterling].... per KW and .... KW of Estimated Demand as set
out in Appendix C.
B. Capacity Related
[pound sterling]........... in respect of the period
from 1st April 1990 to 31st March 1991 payable in 12
equal monthly instalments subject to adjustment in
accordance with the Charging Rules based upon a charge
of [pound sterling].... per KW Registered Capacity and
.... KW being the Registered Capacity as set out in
Appendix C.
C. Energy Related
[pound sterling]........... per KWh in respect of each
KWh of Energy entering the Total System in the period
from 31st March 1990 to 31st March 1991 payable as
described in Clause 14 of the Master Agreement.
Payment shall be made in accordance with Clause 14 of the
Master Agreement.
<PAGE>
APPENDIX E CHARGING RULES
-------------------------
Part 1 - Transmission Network Use of System Charges and
--------------------------------------------------------
Connection Charges
------------------
Introduction
------------
Under the terms of this Supplemental Agreement the User is liable
to pay Transmission Network Use of System Charges based upon the
Registered Capacity of Generating Units passing Active Power on
to and/or the Demand taken from the NGC Transmission System and
Connection Charges. The basis upon which Transmission Network
Use of System Charges and Connection Charges are levied according
to a User's particular circumstances are set out in the statement
issued by NGC under paragraphs 1.2 and 3 of Condition 10 to the
Transmission Licence.
1.1 Data Requirements
-----------------
1.1.1 On or before a date not later than 10 Business Days
after the confirmation of the basis of calculation of
charges pursuant to paragraph 2.1 in each Financial
Year the User shall supply NGC with such data as NGC
may from time to time reasonably request pursuant to
paragraph 2.1 to enable NGC to calculate the Connection
Charges and/or Transmission Network Use of System
Charges due from the User to NGC or from NGC to the
User (as the case may be) in respect of the Connection
Site including the data specified in Appendix C.
1.1.2 On or before a date not later than 10 Business Days
after the confirmation of the basis of calculation of
charges pursuant to paragraph 2.1 in each Financial
Year, Users:-
(a) who are owners or operators of a User System shall
provide to NGC a forecast for the following Financial
Year of the Natural Demand attributable to each Grid
Supply Point equal to the forecasts of Natural Demand
under both Annual Average Cold Spell (ACS) Conditions
and a forecast of the average metered Demand
attributable to such Grid Supply Point (or such other
forecast as may be notified by NGC to the User pursuant
to paragraph 2.1) for each of a number of peak half-
hours as notified by NGC to the User under paragraph
2.1;
(b) who are Suppliers shall provide to NGC a forecast for
the following Financial Year of its metered Demand
attributable to each Transmission Network Use of System
Demand Zone equal to the average of the forecasts of
Demand attributable to such Transmission Network Use of
System Demand Zone (or such other forecast as may be
notified by NGC to the User pursuant to paragraph 2.1)
for each of a number of peak half-hours notified by NGC
to the User under paragraph 2.1;
(c) who are Generators shall provide to NGC a forecast for
the following Financial Year of -
(i) the metered Station Demand (Active Power)
attributable to the Power Station for the
Generating Units comprised therein equal to
the average of the forecasts of such Station
Demand (Active Power) (or such other forecast
as may be notified by NGC to the User pursuant
to paragraph 2.1) attributable to the sum of
the Generating Units for each of a number of
peak half-hours as notified by NGC to the User
under paragraph 2.1;
(ii) the highest Registered Capacity to be declared
pursuant to the terms of the Pooling and
Settlement Agreement of each Generating Unit
comprised within a Power Station for the
period as notified by NGC to the User under
paragraph 2.1;
(d) who are Generators and whose Equipment is comprised
within a Trading Site (as such term is defined in the
Pooling and Settlement Agreement) shall supply to NGC a
forecast for the following Financial Year of: -
(i) the highest Registered Capacity declared
pursuant to the terms of the Pooling and
Settlement Agreement of each Generating Unit
comprised within a Power Station which forms
part of such Trading Site;
(ii) the average Demand within the Trading Site
(other than Station Demand) to be supplied by
the Power Station in (i) above for each of the
number of peak half hours notified by the User
to NGC pursuant to paragraph 2.1; and
(iii) the Station Demand for the Power Station
within the Trading Site determined in
accordance with paragraph 1.1.2(c)(i)
for the period as notified by NGC to the User under
paragraph 2.1 and NGC shall use such forecasts as the basis
of Transmission Network Use of System Charges for such
Financial Year.
1.1.3 Variation of Charges by NGC during the Financial Year
-----------------------------------------------------
The User shall notify NGC of any revision to the forecast
Demand submitted by the User under paragraph 1.1 of this
Appendix E at least quarterly or at such other intervals as
may be agreed between NGC and the User from time to time.
NGC shall revise the Transmission Network Use of System
Charges payable by the User to take account of any such
revised forecast provided in accordance with this paragraph
1.1.3. NGC shall commence charging the varied Transmission
Network Use of System Charges from the first day of the
month following the month in which such revised forecast was
received provided always that such forecast is provided
before 15th day of such month.
1.2 Reconciliation Statements
--------------------------
Initial Reconciliation Statements
---------------------------------
1.2.1 On or before 1 March in each Financial Year NGC shall
promptly calculate on the basis set out in the
statement published by NGC in accordance with Licence
Condition 10 of the Transmission Licence the Demand
related or Generation related Transmission Network Use
of System Charges (as the case may be) that would have
been payable by the User during each month during that
Financial Year if those charges had been calculated on
the basis of the actual Demand data or the User's
highest declared Registered Capacity recorded during
the Financial Year in respect of the forecasts which
had previously been provided by the User in accordance
with paragraph 1.1 (the "Actual Amount"). NGC shall
then compare the Actual Amount with the amount of
Demand related or Generation related Transmission
Network Use of System Charges (as the case may be) paid
during each month during that Financial Year by the
User (the "Notional Amount").
1.2.2 As soon as reasonably practicable and in any event by
1st March in each Financial Year NGC shall then prepare
an initial reconciliation statement and send it to the
User. Such statement shall specify the Actual Amount
and the Notional Amount for each month during the
relevant Financial Year and, in reasonable detail, the
information from which such amounts were derived and
the manner in which they were calculated.
1.2.3 Together with the initial reconciliation statement NGC
shall issue a credit note in relation to any sum shown
by the reconciliation statement to be due to the User
or an invoice in respect of sums due to NGC and in each
case interest thereon calculated pursuant to paragraph
1.2.5 below.
1.2.4 Invoices issued under paragraph 1.2.3 above and 1.2.5
below shall be payable on or before 31 st March in the
Financial Year to which they relate.
1.2.5 In respect of the Financial Year:-
(a) the User shall, following receipt of an appropriate
invoice, pay to NGC an amount equal to the amount (if
any) by which the aggregate Actual Amount exceeds the
aggregate Notional Amount; and
(b) NGC shall issue the User with a credit note for an
amount equal to the amount (if any) by which the
aggregate Notional Amount exceeds the aggregate Actual
Amount.
Interest shall be payable by the paying Party to the other
on such amounts from the date of payment applicable to the
month concerned until the date of actual payment of such
amounts and such interest shall be calculated on a daily
basis at a rate equal to the Base Rate during such period.
Final Reconciliation Statements
-------------------------------
1.2.6 (a) NGC shall as soon as reasonably practicable
after the end of each Financial Year issue a
further reconciliation statement in respect of
Transmission Network Use of System Charges
payable in respect of each month of that
Financial Year showing:-
(i) any change in the Transmission Network Use of
System Charges from those specified in the
initial reconciliation statement provided in
accordance with paragraph 1.2.1 above;
(ii) whether the change represents a reconciliation
payment owing by NGC to a User or by a User to
NGC;
(iii) the amount of interest determined in
accordance with 1.2.5 above;
(iv) the information from which the amounts in (i)
above are derived and the manner of their
calculation.
(b) The provisions of paragraphs 1.2.3 and 1.2.5 shall
apply mutatis mutandis to sums specified in the Final
Reconciliation Statement.
2. Revision of Charges
-------------------
2.1 To the extent permitted by the Transmission Licence and this
Agreement NGC may revise its Connection Charges and
Transmission Network Use of System Charges or the basis of
their calculation including issuing revisions to Appendices
A, B, C and D (or D1 if appropriate) hereto. On or before
31st October in each Financial Year NGC shall notify the
User in writing of the intended basis of calculation to be
used by NGC in the following Financial Year together with
time periods over which the data required to be provided
pursuant to paragraph 1 of this Appendix E is required and
shall consult with the User concerning the same. On or
before 30th November in each Financial Year NGC shall
confirm to the User the basis of calculation to be used in
the following Financial Year.
2.2 NGC shall give the User not less than 2 months, prior
written notice of any revised charges, including revisions
to Appendices A, B, C and D (or D1 if appropriate) hereto,
which notice shall specify the date upon which such
revisions become effective (which may be at any time). The
User shall pay any such revised charges and Appendix A, B,
C, D (and/or D1 as appropriate) shall be amended
automatically (and a copy sent to the User) to reflect any
changes to such Appendices with effect from the date
specified in such notice.
2.3 Subject to the provisions of paragraph 3.2 below if in the
reasonable opinion of NGC any development, replacement,
renovation, alteration, construction or other work to the
NGC Transmission System or termination of a Supplemental
Agreement by another User or an alteration to the
requirements of the User or any other User means that to
ensure that NGC is charging in accordance with the
provisions of the Statement pursuant to Condition 10 of the
Transmission Licence NGC needs to vary the Connection
Charges payable by the User in relation to the Connection
Site then NGC shall have the right to vary such charges
accordingly upon giving to the User not less than 2 months,
prior written notice. Such notice shall be deemed to be a
revised Connection Offer and before any such variation
becomes effective the provisions of Sub-Clauses 11.3 to 11.4
of the Master Agreement shall apply mutatis mutandis.
Following any such variation the provisions of Appendices A
and B shall be amended automatically (and a copy sent to the
User) to reflect such variation with effect from the date
such variation comes into effect.
3. Replacement of NGC Assets
-------------------------
3.1 Appendix A specified the age of each of the NGC Assets at
the Connection Site at the date of this Supplemental
Agreement. NGC Connection Charges are calculated on the
assumption that NGC Assets will not require replacement
until the expiry of the Replacement Period applicable to
each NGC Asset concerned and such period has been agreed
between NGC and the User.
3.2 Where in NGC's reasonable opinion an NGC Asset requires
replacement before the expiry of its Replacement Period NGC
shall, with the prior written approval of the User (except
where in NGC's reasonable opinion such replacement is
necessary in which case such approval shall not be required
but in such case the User shall have the right to
Disconnect) have the right to replace the NGC Asset at no
additional cost to the User until expiry of its original
Replacement Period. Upon expiry of such original
Replacement Period NGC shall be entitled to vary the
Connection Charges in respect of the replaced NGC Asset so
that they are calculated on the basis of the then Net Asset
Value of such NGC Assets. NGC shall give the User not less
than 2 months, prior written notice of such varied charges
which notice shall specify the date upon which such increase
or reduction (as the case may be) becomes effective. The
User shall pay such varied charges and Appendices A and B
shall be amended automatically (and a copy sent to the User)
to reflect such revised charges with effect from the date
specified in such notice.
3.3 Upon the expiry of the Replacement Period of any NGC Asset:-
(a) (i) if in NGC's reasonable opinion to enable NGC
to comply with its licence and statutory
obligations it is necessary to replace such
NGC Asset; or
(ii) if such NGC Asset is to be left in service,
then NGC shall give written notice of this and
that it will, unless within 3 months of the
receipt of such notice the User objects in
writing to the proposal, replace or retain (as
the case may be) such NGC Asset.
(b) the User may request that NGC replaces the Asset.
3.4 Where the User serves a counter notice pursuant to paragraph
3.3 above then NGC sh.
(a) keep the NGC Asset in service; and
(b) negotiate with the User in good faith with regard to
the Connection Charges applicable to such NGC Asset.
In the event that NGC and the User fail to agree the level
of such Connection Charges in accordance with paragraph
3.4(b) above then the User shall pay Connection Charges to
NGC in respect of such NGC Asset equal to the Connection
Charges payable by the User in respect of the NGC Asset in
the last Financial Year of the Replacement Period (the
"Deemed Charge") and the matter shall be referred to the
Director for determination. If the Director determines that
the Connection Charges payable in respect of such NGC Asset
should be:-
(i) less than the Deemed Charge then NGC shall repay to the
User the difference between the Deemed Charge and the
amount so determined by the Director together with
interest at the Base Rate, for the period from when the
User started to pay the Deemed Charge until the date of
payment;
(ii) greater than the Deemed Charge then the User shall pay
the difference to NGC together with interest at the
Base Rate for the period from when the User started to
pay the Deemed Charge until the date of payment.
3.5 Where the Connection Charges are payable in respect of NGC
Assets:-
(a) replaced in accordance with paragraph 3.3 above; or
(b) retained in accordance with paragraph 3.3 above
then NGC shall except in the circumstances in paragraph
3.4(b) give the User not less than 2 months, prior written
notice of such varied charges and specify the date upon
which such charges become effective. The User shall pay
such varied charges and Appendices A and B shall be amended
automatically (and a copy sent to the User) to reflect such
revised charges with effect from the dates notified to the
User by NGC.
Where NGC is in negotiation with the User in accordance with
paragraph 3.4(b) then it shall give notice as is reasonably
practicable in the circumstances.
4. Termination Amounts
-------------------
4.1 The expressions set out below shall have the meanings
shown:-
"Termination Amount" shall be the sum calculated to be
equal to the aggregate of the
following:-
(a) in respect of NGC Assets:-
(i) shown in Appendix A to the
Supplemental Agreement and
which, in NGC's reasonable
opinion, are no longer
required by NGC to enable NGC
to comply with its Licence
Standards, and can therefore
be removed ("Type A Assets"),
(aa) the Net Asset Value of
such NGC Asset as at the end
of the Financial Year in which
termination occurs (on the
assumption that the sums
specified in paragraph 4.1(b)
will be paid), plus (bb) a sum
equal to the reasonable costs
of removing such NGC Assets
and of making good the
remaining Plant and Apparatus
at the Connection Site
following the removal of any
Type A Assets;
(ii) in Appendix A to the
Supplemental Agreement and
which in NGC's reasonable
opinion cannot be removed
("Type B Assets") as a result
of the termination, a sum
equal to the product of the
Asset Allocation Factor
multiplied by the Net Asset
Value of that NGC Asset as at
the end of the Financial Year
in which termination occurs;
and
(iii) in relation to NGC Assets
(aa) which NGC has determined
to replace upon the
expiry of the relevant
Replacement Period in
accordance with paragraph
3.3; and
(bb) in respect of which no
counter notice has been
served by the User
pursuant to paragraph
3.3; and
(cc) the User has served in
accordance with the
provisions of this
Supplemental Agreement a
notice to Disconnect in
respect of the Connection
Site at which the NGC
Assets were located; and
(dd) due to the timing of the
replacement of such NGC
Assets, no Connection
Charges will have become
payable in respect of
such NGC Assets by the
User by the date of
termination,
the reasonable costs incurred
by NGC in connection with the
installation of such NGC
Assets;
(b) the Connection Charges and Use of
System Charges for the Financial
Year in which termination occurs.
"Asset Allocation Factor" means in respect of each NGC
Asset specified in Appendix A
to this Supplemental Agreement
the figure expressed as a
percentage appearing in the
column headed Allocation and
immediately adjacent to the
description of the NGC Asset
to which it relates.
4.2 In the event that a Termination Amount specified in
paragraph 4.1(a)(i) is paid, in respect of Type A Assets,
and subsequently NGC re-uses such NGC Assets in respect of
which such payment has been made at the same or another
Connection Site then NGC shall pay to the User a sum equal
to the lower of:
(i) the Termination Amount paid in respect of such NGC
Asset; or
(ii) the Net Asset Value attributed to such NGC Asset for
charging purposes upon its
re-use,
less any reasonable costs incurred by NGC in respect of
storage. NGC shall use its reasonable endeavours to re-use
such NGC Assets.
4.3 In the event that a Termination Amount specified in
paragraph 4.1(a)(ii) above is paid in respect of Type B
Assets and these are subsequently re-used then NGC shall pay
to the User a sum equal to the lower of:-
(i) the Termination Amount paid in respect of such NGC
Assets; or
(ii) the Net Asset Value attributed to such NGC Asset for
charging purposes upon its
re-use.
4.4 For the purposes of paragraphs 4.2 and 4.3 re-use shall not
occur where any NGC Asset remains connected for the purpose
of providing a continuing connection for other Users
connected to the NGC Transmission System at the Connection
Site at the date of termination. However in the event of
any User requiring a continued connection modifying its
requirements or another User connecting at the Connection
Site and the NGC Assets in respect of which a payment has
been made are required for this modification this shall
constitute re-use.
4.5 NGC shall be under no obligation to rebate any of the
Termination Amounts described in paragraph 4.1(b) except to
the extent that Connection and/or Transmission Network Use
of System Charges are subsequently received in respect of
NGC Assets in relation to which such Termination Amounts
have been paid to NGC during the Financial Year in which
termination has occurred.
4.6 Upon request in writing, and at the cost of the User, NGC
shall issue a certificate no more frequently than once each
calendar year indicating whether or not such assets have or
have not been re-used. If NGC at any time decide that it is
not economic to retain any Plant and Apparatus constituting
any NGC Asset in respect of which Termination Amounts have
been paid it may at its reasonable discretion dispose of the
said Plant and Apparatus. Where NGC decides to so dispose
of such Plant and Apparatus it shall where the Plant and/or
Apparatus is disposed of in a state where it is capable of
re-use pay to the User an appropriate proportion of any sale
proceeds received in respect thereof.
5. Deductions
----------
In respect of any NGC Engineering Charges which have been
paid by the User in connection with a Connection Application
or under Sub-Clause 2.4 of the Supplemental Agreement Type 2
NGC shall reduce the amount of Connection Charges payable by
the User in relation to the respective Connection Site on 1
April in each of the first 3 years (or such other period as
may be agreed between NGC and the User) of the payment of
such Connection Charges by an amount equal on each occasion
to one third of such NGC Engineering Charges.
Part 2 - Transmission Services Use of System Charges
----------------------------------------------------
Introduction
------------
Under the terms of this Supplemental Agreement the User is liable
to pay Transmission Services Use of System Charges. The basis
upon which Transmission Services Use of System Charges are levied
and the calculation methodology and rules which will be used to
quantify those charges are set out in the statement issued by NGC
under paragraphs 1 and 2 of Condition 10 to the Transmission
Licence.
1. Reconciliation
--------------
1.1 At any time after the Payment Date NGC may submit to the
User, and shall submit to the User at the written request of
the User, a Statement (which may form part of an invoice or
other document) in respect of any Settlement Day (a
"Reconciliation Statement") showing:-
(a) each Settlement Day in respect of which there has been
a change (for any reason) in the value of any parameter
originally used in the calculation of the Transmission
Services Use of System Charges in respect of such
Settlement Day, together with details of the value of
the old and new parameter;
(b) the amount of any reconciliation payments (if any)
required to make the Transmission Services Use of
System Charges paid in respect of that Settlement Day
equal to the payment which would have been payable had
the invoice prepared pursuant to Clause 5.4.1 of this
Supplemental Agreement been prepared on the basis of
the changed parameter;
(c) whether the reconciliation payment represents an amount
owing by NGC to the User or by the User to NGC;
(d) the amount of interest accruing on such reconciliation
payment calculated in accordance with this paragraph
1.1 below.
Interest payable in respect of each reconciliation payment
shall accrue from and including the relevant Payment Date up
to but excluding the date upon which the amounts specified
in the Reconciliation Statement are paid, and shall be at a
rate equal to the Base Rate for the time being and from time
to time. Interest shall accrue from day to day.
1.2 Together with the Reconciliation Statement in the case of
sums due:-
(a) from the User to NGC, NGC shall:-
(i) send the User an invoice in relation to any
sums shown by the Reconciliation Statement to
be due to NGC and interest thereon calculated
in accordance with paragraph 1.1; or
(ii) include those sums due in another invoice; and
(b) from NGC to the User, forthwith following the issue of
any Reconciliation Statement, NGC shall:-
(i) issue a credit note in relation to any sum
shown by the Reconciliation Statement to be
due to the User and interest thereon
calculated in accordance with paragraph 1.1;
or
(ii) include those sums due to the User as a credit
in an invoice from NGC to the User.
1.3 The right to submit a Reconciliation Statement and the
consequential invoices and/or credit notes shall survive the
termination of this Supplemental Agreement and the parties
agree that the provisions of this Appendix E Part 2 shall
remain in full force and effect and shall continue to bind
them after such termination (the version in existence as at
the date of termination being the applicable version, in the
case of any amendments).
2. Reconciliation Payments
-----------------------
The User, or as the case may be, NGC, shall pay the amounts
set out in the relevant invoice or credit note, either in
accordance with the applicable requirements for payment of
other sums due under that invoice in the case of sums shown
in an invoice also dealing with other payments, or in other
cases within 5 Business Days of the date of the
Reconciliation Statement.
3. Revision of Charges
-------------------
On or before 31 October in each Financial Year NGC shall
notify the User in writing of the intended basis of
calculation to be used by NGC in calculating Transmission
Services Use of System Charges for the following Financial
Year and shall consult the User concerning the same. On or
before 30 November in each Financial Year NGC shall confirm
to the User the basis of calculation to be used in
calculating those charges for the following Financial Year.
Part 3
------
1 Transmission Services Use of System Charges Security Cover
----------------------------------------------------------
1.1 Provision of Security Cover
---------------------------
The User shall provide Security Cover from time to time in
accordance with the following
provisions:-
1.1.1 the User shall not later than the date of its
accession to the Master Agreement or 1st April
1997 (whichever is later) deliver to NGC
evidence reasonably satisfactory to it that:-
(i) it presently holds an Approved Credit Rating;
or
(ii) it has provided and is not in default under
the Security Cover referred to in paragraph
1.1.2 below;
1.1.2 if the User does not hold or ceases to hold an
Approved Credit Rating it shall, not later
than the date of:-
(i) the date of its accession to the Master
Agreement;
(ii) the 1st April 1997; or
(iii) the date upon which it ceases to have an
Approved Credit Rating -
(a) deliver to NGC a qualifying Guarantee in
such amount as shall be notified by NGC
to the User in accordance with paragraph
2, or
(b) deliver to NGC a Letter of Credit
(available for an initial period of not
less than 6 months) in such amount as
shall be notified by NGC to the User in
accordance with paragraph 2; and/or
(c) deliver to NGC cash for credit to the
Escrow Account in such amount as shall
be notified by NGC in accordance with
paragraph 2;
1.1.3 the provision of security in respect of
Transmission Services Use of System Charges by
the User in accordance with the terms of:
(a) this Supplemental Agreement shall
relieve it of its obligations to provide
such security under the terms of any
other Supplemental Agreement to which
the User is a party; and
(b) any other Supplemental Agreement to
which the User is a party shall relieve
it of its obligations to provide such
security under the terms of this
Supplemental Agreement,
in each case, to the extent of the security provided to
NGC pursuant to this Appendix or the same provision
under the terms of any other Supplemental Agreement
made between NGC and the User;
1.1.4 the provisions of this Part 3 of Appendix E shall be in
addition to any other requirements to provide security
in respect of any other sums due under the terms of
this Supplemental Agreement.
1.2 Maintenance of Security Cover
-----------------------------
Where the User is required to provide Security Cover in
accordance with the terms of paragraph 1.1 it shall at all
times thereafter maintain a Security Amount equal to or more
than the Security Cover applicable to it. Immediately upon
any reduction occurring in the Security Amount provided by
the User or any Letter of Credit or Qualifying Guarantee
being for any reason drawn down or demanded respectively,
the User will procure that new Letters of Credit or
Qualifying Guarantees are issued or existing Letters of
Credit or Qualifying Guarantees are reinstated (to the
satisfaction of NGC) to their full value or cash is placed
to the credit of the Escrow Account in an amount required to
restore the Security Amount to an amount at least equal to
the Security Cover applicable to the User, and in such
proportions of Letters of Credit, Qualifying Guarantees
and/or cash as the User may determine. Not later than 10
Business Days before any outstanding Letter of Credit and/or
Qualifying Guarantee is due to expire, the User shall
procure to the satisfaction of NGC that its required
Security Amount will be available for a further period of
not less than 6 months which may be done in one of the
following ways -
1.2.1 subject to the issuing bank continuing to have
an Approved Credit Rating provide NGC with
confirmation from the issuing bank that the
validity of the Letter of Credit has been
extended for a period of not less than 6
months on the same terms and otherwise for
such amount as is required by this Part 3; or
1.2.2 provide NGC with a new Letter of Credit issued
by an issuing bank with an Approved Credit
Rating for an amount at least equal to the
required Security Amount applicable to it
(less its balance on the Escrow Account) which
Letter of Credit shall be available for a
period of not less than 6 months; or
1.2.3 subject to the entity issuing the Qualifying
Guarantee continuing to have an Approved
Credit Rating provide NGC with confirmation
from the issuing entity that the validity of
the Qualifying Guarantee has been extended for
a period of not less than 6 months on the same
terms and otherwise for such amount as is
required by this Part 3; or
1.2.4 provide NGC with a new Qualifying Guarantee
for an amount at least equal to the required
Security Amount applicable to it (less its
balance on the Escrow Account) which
Qualifying Guarantee shall be available for a
period of not less than 6 months; or
1.2.5 procure such transfer to NGC for credit to the
Escrow Account of an amount as shall ensure
that the credit balance applicable to the User
and standing to the credit of the Escrow
Account shall be at least equal to the
required Security Amount.
1.3 Failure to supply or maintain Security Cover
--------------------------------------------
If the User fails at any time to provide or maintain
Security Cover to the satisfaction of NGC in accordance with
the provisions of this Part 3, NGC may at any time while
such default continues, and if at such time any Letter of
Credit and/or Qualifying Guarantee forming part of the
Security Cover is due to expire within nine Business Days
immediately, and without notice to the User, demand payment
of the entire amount of any outstanding Letter of Credit
and/or Qualifying Guarantee and shall credit the proceeds of
the Letter of Credit and/or Qualifying Guarantee to the
Escrow Account.
1.4 Substitute Letter of Credit or Qualifying Guarantee
---------------------------------------------------
1.4.1 If the bank issuing the User's Letter of
Credit ceases to have the credit rating set
out in the definition of Letter of Credit in
Clause 1.1 of this Supplemental Agreement such
User shall forthwith procure the issue of a
substitute Letter of Credit by a bank that has
such a credit rating or a Qualifying Guarantee
or transfer to NGC cash to be credited to the
Escrow Account.
1.4.2 If the entity providing the User's Qualifying
Guarantee ceases to have an Approved Credit
Rating the User shall forthwith procure a
replacement Qualifying Guarantee from an
entity with such a credit rating or a Letter
of Credit or transfer to NGC cash to be
credited to the Escrow Account.
2. Credit Monitoring
-----------------
2.1 Determination of Security Cover
-------------------------------
The amount of Security Cover which the User shall be
required to maintain shall be determined from time to time
by NGC in accordance with this Part 3 on the basis of the
criteria set out in paragraph 2.2 and shall be notified to
the User.
2.2 Criteria for provision of Security Cover
----------------------------------------
If paragraph 1.1.2 applies, the amount of Security Cover
required to be provided by the User in respect of this and
any other Supplemental Agreement to which the User is a
party shall be provided in an amount to be reasonably
assessed by NGC as the aggregate amount reasonably
anticipated by NGC as being payable by the User pursuant to
all Supplemental Agreements to which the User is a party in
respect of the Transmission Services Use of System Charges
referred to in Part 2 of Appendix D over a 28 day period.
2.3 Six Monthly Variation
---------------------
In respect of paragraph 2.2 NGC shall calculate the amount
for the two six-month periods commencing 1st April and 1st
October in each year and shall advise the User accordingly.
2.4 Review of Security Cover
------------------------
NGC shall keep under review the Security Cover relating to
the User and shall promptly advise the User whenever the
Security Amount maintained by the User is more or less than
the amount required to be maintained pursuant to paragraph 2
of this Part 3.
2.5 Increase or Decrease of Security Cover
--------------------------------------
If, after considering any representations which may be made
by the User, NGC reasonably determines that the User's
Security Cover should be increased or decreased, it shall so
notify the User. If NGC so determines that such Security
Cover should be decreased and the User consents then that
reduction shall take place. NGC shall consent to an
appropriate reduction in the available amount of any
outstanding Qualifying Guarantee or Letter of Credit and/or
shall repay to the User such part of the deposit held in the
Escrow Account for the account of the User (together with
all accrued interest on the part to be repaid) sufficient to
reduce the User's Security Amount to the level of Security
Cover applicable to it. If NGC so determines that the
User's Security Cover should be increased, the User shall,
within five Business Days of notice as aforesaid, procure an
additional or replacement Qualifying Guarantee or Letter of
Credit or transfer to NGC cash to be credited to the Escrow
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.
2.6 Notification in Respect of Security Cover
-----------------------------------------
NGC shall notify the User promptly if:
2.6.1 the User fails to provide, maintain, extend or
renew a Qualifying Guarantee or a Letter of
Credit which it is required to provide,
maintain, extend or renew pursuant to
paragraphs 1 or 2;
2.6.2 NGC shall make a demand under any such
Qualifying Guarantee or a call under a Letter
of Credit; or
2.6.3 NGC becomes aware that the User (a) shall
cease to have 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 User retaining an
Approved Credit Rating, or (c) shall be in
default under the additional or alternative
security required to be provided pursuant to
this Part 3; or
2.6.4 NGC becomes aware that any bank that has
issued a Letter of Credit which has not
expired shall cease to have the credit rating
required by this Appendix; or
2.6.5 NGC becomes aware that any entity providing a
Qualifying Guarantee which has not expired
shall cease to have an Approved Credit Rating.
Provided always that the failure by NGC to notify the User
pursuant to this paragraph 2.6 shall not relieve the User of
its obligations under and in accordance with the terms of
this Appendix.
2.7 Release from Security Cover Obligations
---------------------------------------
Upon the User ceasing to be a party to the Master Agreement
and provided that all amounts owed by the User in respect of
the Transmission Services Use of System Charges have been
duly and finally paid and that it is not otherwise in
default in any respect of any Transmission Services Use of
System Charges (including interest) payable under the terms
of any Supplemental Agreement, the User shall be released
from the obligation to maintain Security Cover and NGC shall
consent to the revocation of any outstanding Qualifying
Guarantee or Letter of Credit and shall repay to the User
the balance (including interest credited thereto) standing
to the credit of the User on the Escrow Account at that
date.
3. Payment Default
---------------
If by 1230 hours on any Payment Date, NGC has been notified
by the User or it otherwise has reason to believe that the
User will not have remitted to it by close of banking
business on the Payment Date all or any part ("the amount in
default") of any amount which has been notified by NGC to
the User as being payable by the User by way of the
Transmission Services Use of System Charges on the relevant
Payment Date, then NGC shall be entitled to act in
accordance with the following provisions (or whichever of
them shall apply) in the order in which they appear until
NGC is satisfied that the User has discharged its
obligations in respect of the Transmission Services Use of
System Charges under this Supplemental Agreement and/or any
other Supplemental Agreement to which the User is a party
which are payable in respect of the relevant Settlement Day.
(a) NGC may to the extent that the User is entitled to
receive payment from NGC pursuant to this Supplemental
Agreement and/or any other Supplemental Agreement to
which the User is a party (unless it reasonably
believes that such set-off shall be unlawful) set off
the amount of such entitlement against the amount in
default;
(b) NGC shall be entitled to set off the amount of funds
then standing to the credit of the Escrow Account to
the extent that it represents Security Cover provided
by the User in accordance with paragraph 2.1.2 against
the Transmission Services Use of System Charges unpaid
by the User and for that purpose NGC shall be entitled
to transfer any such amount from the Escrow Account to
any other account of NGC at its absolute discretion and
shall notify the User accordingly;
(c) NGC may demand payment under any outstanding Letter of
Credit supplied by the User in a sum not exceeding the
available amount of all such Lenders of Credit;
(d) NGC may demand payment under any outstanding Qualifying
Guarantee provided for the benefit of the User pursuant
to paragraph 1.1.2(a).
4. Utilisation of Funds
--------------------
In addition to the provisions of paragraph 3 above if NGC
serves a notice of default under the terms of Clause 17.6A
of a Type 1 Supplemental Agreement and/or notice of
termination under Clause 17.7 of a Type 1 Supplemental
Agreement (or the equivalent Clauses in a Supplemental
Agreement other than a Type 1 Supplemental Agreement) then
NGC shall be entitled to demand payment of any of the
Transmission Services Use of System Charges which are
outstanding whether or not the Payment Date in respect of
them shall have passed and:
(i) make demand under any outstanding Qualifying Guarantee
or a call under any outstanding Letter of Credit
supplied by the User; and
(ii) to set off the funds in the Escrow Account to the
extent that they represent Security Cover provided by
the User against the Transmission Services Use of
System Charges unpaid by the User and for that purpose
NGC shall be entitled to transfer any such amount from
the Escrow Account to any other account of NGC as it
shall in its sole discretion think fit.
5. User's Right to Withdraw Funds
------------------------------
5.1 If the User is not in default in respect of any amount owed
to NGC in respect of the Transmission Services Use of System
Charges under the terms of any Supplemental Agreement to
which the User is a party:-
5.1.1 NGC shall transfer to the User quarterly
interest credited to the Escrow Account; and
5.1.2 NGC shall transfer to such User within a
reasonable time after such User's written
request therefor any amount of cash provided
by the User by way of Security Cover which
exceeds the amount which such User is required
to provide by way of security in accordance
with paragraph 1 of this Part 3.
Part 4
------
Definitions and Interpretations
-------------------------------
In this Appendix the following expression shall have the meaning
set out below:-
"Base Rate" in respect of any day the rate per annum which
is equal to the base lending rate of Barclays
Bank PLC as at close of business on that day;
Interpretation
--------------
Where this Appendix makes reference to the word "paragraph" then
it shall be a reference to a paragraph in this Appendix unless
the contrary is stated.
<PAGE>
APPENDIX F1
-----------
SITE SPECIFIC TECHNICAL CONDITIONS
----------------------------------
Agreed Ancillary Services
-------------------------
[Black Start Capability
Gas Turbine Unit Fast Start
Synchronous Compensation
Pumped Storage Unit Spinning-in-Air
Pumped Storage
Pumped Storage Plant Fast Start from Standstill
Demand Reduction
Adjustment to Pumped Storage Unit Pumping Programme
Hot Standby]
<PAGE>
APPENDIX F2
-----------
(NOT USED)
----------
<PAGE>
APPENDIX F3
-----------
SITE SPECIFIC TECHNICAL CONDITIONS
----------------------------------
Special Automatic Facilities
(a) NGC Transmission System to Generating Unit Intertripping
schemes.
(b) NGC Transmission System to Demand Intertripping schemes.
(c) NGC Transmission System to Directly Connected Customers
Intertripping Schemes.
(d) Auto open/close schemes.
(e) System splitting or islanding schemes which impact on the
Users system or plant.
<PAGE>
APPENDIX F4
-----------
SITE SPECIFIC TECHNICAL CONDITIONS
----------------------------------
(1) Control Arrangements
--------------------
If the User is a Generator. The User shall install a
continuously-acting automatic excitation control system to
control the Generating Unit terminal voltage without
instability over the entire operating range of the
Generating Unit. System requirements for excitation control
facilities including power system stabilisers are set out
below.
[NGC to propose - parties to agree]
(2) Control Telephony
-----------------
The User shall provide the Control Telephony specified
below.
[NGC to propose - parties to agree]
(3) System Monitoring
-----------------
The voltage and current signals for system monitoring
purpose to be provided by the User at the sole expense of
NGC are set out below.
[NGC to specify: these will consist only of signals from
the User's current transformer and voltage transformer in
the manner and from the locations set out here]
(4) Operational Metering
--------------------
The User shall provide the operation metering set out below.
[NGC to propose - parties to agree]
<PAGE>
APPENDIX F5
-----------
SITE SPECIFIC TECHNICAL CONDITIONS
----------------------------------
METERING
--------
1.1 Operator
--------
Where the Connection Site is a Grid Supply Point, and the
User is or will be Registrant in relation to the Energy
Metering Equipment required by the Pooling and Settlement
Agreement at the Grid Supply Point and/or at the bulk supply
point(s) which are related to that Grid Supply Point, NGC
shall install and be the Operator of all such Energy
Metering Equipment from the Transfer Date until the FMS Date
and thereafter:-
1.1.1 NGC may resign as Operator of such Energy
Metering Equipment on giving no less thin 12
months' notice in writing; and
1.1.2 the User may remove NGC as Operator upon
giving no less than 12 months' notice in
writing.
Provided that where the User agrees to become owner of any
such Energy Metering Equipment NGC may resign as Operator
upon such transfer of ownership and shall agree such terms
as shall be reasonably necessary to enable the User to
perform its obligations as Operator of such Energy Metering
Equipment.
1.2 Charges
-------
NGC shall recover its charges for acting as Operator of any
Energy Metering System which is an NGC Asset charged for
under this Supplemental Agreement as part of such charges.
Where NGC acts as Operator of any other Energy Metering
System owned by NGC for which the User is Registrant NGC
shall charge and the User shall pay such amount which is
reasonable in all the circumstances.
1.3 Interference
------------
The User shall ensure that its employees, agents and
invitees will not interfere with any Energy Metering
Equipment in respect of which NGC is Operator or the
connections to such Energy Metering Equipment, without the
prior written consent of NGC (except to the extent that
emergency action has to be taken to protect the health and
safety of persons or to prevent serious damage to property
proximate to the Energy Metering Equipment or to the extent
that such action is authorised under the Master Agreement or
any other agreement between NGC and the User).
1.4 Pulse Data
----------
The User shall have the right to collect and record pulses
from the meters comprised in the Energy Metering System(s)
at the Connection Site. NGC shall give the User access in
accordance with the Interface Agreement to collect and
record such pulses and to install and maintain such lines
and equipment as may be reasonably necessary therefor.
<PAGE>
EXHIBIT 5
---------
DATED 19
---------------------------
THE NATIONAL GRID COMPANY PLC (1)
and
[ ] (2)
-----------------------------
SUPPLEMENTAL AGREEMENT TYPE 5
-----------------------------
(FOR SECOND TIER SUPPLIERS ACTING IN THAT CAPACITY
TAKING ENERGY THROUGH ANY GRID SUPPLY POINT AND
THROUGH A DISTRIBUTION SYSTEM OWNED OR OPERATED
BY ANY OTHER PERSON)
<PAGE>
CONTENTS
--------
Clause Title
------ -----
1 Definitions, Interpretation, Construction
2 Right to use the NGC Transmission System
3 User's Customers
4 Use of System Charges
5 Charging Rules
6 Metering
7 Term
8 Deenergisation and Disconnection
9 Notice to Terminate
10 Master Agreement
11 Variations
Appendix A User's Customers
Appendix B
Appendix C Zone/Registered Capacity/Peak Half-Hours/
Estimated Demand
Appendix D Use of System Charges/Payment
Appendix E Charging Rules
Appendix F1 Site Specific Technical Conditions - Metering
<PAGE>
THIS SUPPLEMENTAL AGREEMENT is made the day of 19
BETWEEN
(1) THE NATIONAL GRID COMPANY PLC a company registered in
England with number 2366977 whose registered office is at
National Grid House Sumner Street, London SE1 9JU ("NGC",
which expression shall include its successors and/or
permitted assigns); and
(2) [ ] a company registered in [ ] with
number [ ] whose registered office is at [
] (the "User", which expression shall include its
successors and/or permitted assigns)
WHEREAS
(A) NGC and the User are parties to a Master Connection and Use
of System Agreement dated [ ] ("Master
Agreement").
(B) This Supplemental Agreement is entered into pursuant to the
terms of the Master Agreement and shall be read as being
governed by them.
NOW IT IS HEREBY AGREED AS FOLLOWS:
1. DEFINITIONS, INTERPRETATION AND CONSTRUCTION
--------------------------------------------
1.1 GENERAL
-------
Unless the subject matter or context otherwise requires or
is inconsistent therewith terms and expressions defined in
Schedule 2 to the Master Agreement have the same meanings
interpretations or constructions in this Supplemental
Agreement.
2. RIGHT TO USE THE NGC TRANSMISSION SYSTEM
----------------------------------------
2.1 Subject to the other provisions of this Agreement including
the provisions of the Grid Code, the User may take supplies
of power from the NGC Transmission System.
2.2 Data of a technical or operational nature collected recorded
or otherwise generated pursuant to this Supplemental
Agreement shall be deemed data lodged pursuant to the Grid
Code to the extent that the Grid Code makes provision
therefor.
2.3 Subject to the provisions of this Agreement and the Grid
Code, NGC shall transport a supply of power through the NGC
Transmission System to the level forecast by the User from
time to time pursuant to Appendices E and C hereof together
with such margin as NGC shall in its reasonable opinion
consider necessary having due regard to NGC's duties under
its Transmission License except to the extent (if any) that
NGC is prevented from doing so by transmission constraints
or by insufficiency of generation which, in either case,
could not have been avoided by the exercise of Good Industry
Practice by NGC.
2.4 Subject to the provisions of the Grid Code NGC shall be
entitled to plan and execute outages of parts of the NGC
Transmission System or Plant or Apparatus at any time and
from time to time.
3. USER'S CUSTOMERS
----------------
3.1 The User shall give written notice to NGC of the following
details of all exit points from time to time in existence
between any Distribution System and the User's Customer:
(i) the electrical location and nomenclature of the Energy
Metering Equipment installed in relation to each such
Customer;
(ii) the identity of the operator of the Distribution System
to which such Customers are connected;
(iii) the Grid Supply Point meeting the Demand (Active Power)
of each such Customer;
(iv) the loss factors applying to the Energy Metering
Equipment installed in relation to each such Customer,
save where the User's Customer is connected to a
Distribution System owned by a PES in which case the
PES's published statement of loss factors shall apply.
Such written notice shall be given to NGC no later than 28
days prior to the commencement or cessation of use of any
such exit point. If the Grid Supply Point referred to in
(iii) changes the User shall notify NGC forthwith after
being notified of such change by the PES in question. The
information submitted by the User from time to time shall be
recorded in Appendix A which shall be deemed automatically
amended to reflect the current position from time to time.
If NGC's basis of charging changes pursuant to Appendix E
paragraph 2.1 at any time NGC shall be entitled to ask for
other information it reasonably requires for charging
purposes under this Clause 3.
4. USE OF SYSTEM CHARGES
---------------------
With effect from the commencement of this Supplemental
Agreement the User shall pay to NGC the Use of System
Charges set out in Appendix D payable in accordance with the
provisions of Appendix E.
5. CHARGING RULES
--------------
The provisions of the Charging Rules set out in Appendix E
to this Supplemental Agreement shall apply.
6. METERING
--------
The provisions of Appendix F1 shall have effect.
7. TERM
----
Subject to the provisions for earlier termination set out
herein and in Clause 17 of the Master Agreement, this
Supplemental Agreement shall continue until the User ceases
to use the NGC Transmission System.
8. DEENERGISATION AND DISCONNECTION OF THE USER'S CUSTOMERS
--------------------------------------------------------
8.1. Breach by the User:
------------------
If the User shall be in breach of the provisions of this
Supplemental Agreement and such breach causes or can
reasonably be expected to cause a material adverse effect on
the business or condition of NGC or other Users or the NGC
Transmission System or Users Systems then NGC may:
(i) where the breach is capable of remedy, give written
notice to the User specifying in reasonable detail the
nature of the breach and requiring the User within 28
days after receipt of such notice to remedy the breach
or within any longer period agreed between NGC and the
User, the agreement of NGC not to be unreasonably
withheld or delayed; or
(ii) where the breach is incapable of remedy, give written
notice to the User specifying in reasonable detail the
nature of the breach and the reasons why the breach is
incapable of remedy and requiring the User within 5
Business Days after receipt of such notice to undertake
to NGC not to repeat the breach.
8.2 De-Energisation
---------------
If:
(a) the User fails to comply with the terms of any valid
notice served on it by NGC in accordance with Sub-
Clause 8.1(i) or is in breach of any undertaking given
in accordance with Sub-Clause 8.1(ii) and such breach
causes or can be reasonably expected to cause a
material adverse effect on the business or condition of
NGC or other Users or the NGC Transmission System or
Users Systems; or
(b) five Business Days have elapsed since the date of any
valid notice served on the User in accordance with Sub-
Clause 8.2(ii) and no undertaking is given by the User
in accordance with Sub-Clause 9.2(ii);
NGC may request the owner of the Distribution System to
which the User's Customers are connected to De-Energise such
Users customers upon the expiry of at least 48 hours prior
written notice to the User provided that at the time of
expiry of such notice the breach concerned remains
unremedied and that neither the User nor NGC has referred
the matter to the Dispute Resolution Procedure. In such
event NGC may request the owner of the Distribution System
to which the User's Customers are connected to De-Energise
such User's Customers forthwith following completion of the
Dispute Resolution Procedure and final determination of the
dispute in NGC's favour.
8.3 NGC Transmission License
------------------------
If a breach of the nature referred to in Sub-Clause 8.1
continues to the extent that it places or seriously
threatens to place in the immediate future NGC in breach of
the NGC Transmission License, NGC may request the owner of
the Distribution System to which the User's Customers are
connected to De-Energise such User's Customers upon the
expiry of at least 12 hours prior written notice to the
User, provided that at the time of expiry of such notice the
breach concerned remains unremedied.
8.4 Re-Energisation Disputes
------------------------
If, following any De-Energisation pursuant to this Clause 8,
a User applies to NGC for NGC to issue instructions that the
User's Customers be Re-Energised and is refused or is
offered terms which the User does not accept, this shall be
recognized as a dispute over the terms for use of system
which the User may refer to the Director for determination
under the NGC Transmission License. If the User accepts any
terms offered by NGC or settled by the Director pursuant to
any such reference, NGC shall request the owner of the
Distribution System to which the User's Customers are
connected to Re-Energise the User's Customers forthwith
after any request from the User for NGC to do so.
8.5 Event of Default
----------------
If the breach which led to any De-Energisation pursuant to
this Clause 8 remains unremedied at the expiry of at least 6
months after the date of such De-Energisation, NGC may
declare by notice in writing to the User that such breach
has become an event of default provided that:
(a) all disputes arising out of the subject-matter to this
Clause 8 which are referred to the Dispute Resolution
Procedure have then been finally determined in favour
of NGC; and
(b) any reference to the Director pursuant to Sub-Clause
8.4 has then been finally determined in favour of NGC
or any terms settled by the Director pursuant to such
application have not been accepted by the User.
8.6 Disconnection
-------------
Once NGC has given a valid notice of an event of default
pursuant to Sub-Clause 8.5 NGC may give notice of
termination to that User whereupon this Supplemental
Agreement shall terminate and:
(i) NGC shall request the owner of the Distribution System
to which that User's Customers are connected to
disconnect such Customers; and
(ii) the User shall be obliged to pay to NGC forthwith the
Use of System Charges due hereunder up to the end of
the Financial Year in which Termination occurs.
9. NOTICE TO TERMINATE
-------------------
9.1 The User may terminate the Supplemental Agreement upon
giving to NGC not less than 28 days written notice of
termination.
9.2 If notice to terminate is given by the User under Sub-Clause
9.1 this Supplemental Agreement shall terminate upon the
expiry of the notice period. Immediately prior thereto the
User shall pay NGC all Use of System Charges payable by the
User under this Supplemental Agreement in respect of the
Financial Year in which termination takes place.
This provision shall survive the termination of this
Supplemental Agreement.
10. MASTER AGREEMENT
----------------
The provisions of Clauses 18 to 24 and 26 to 30 inclusive of
the Master Agreement shall apply to this Supplemental
Agreement as if set out in full herein.
11. VARIATIONS
----------
No variation to this Supplemental Agreement shall be
effective unless made in writing and signed by or on behalf
of both NGC and the User. NGC and the User shall effect any
amendment required to be made to this Supplemental Agreement
by the Director as a result of a change in the Transmission
License or an order made pursuant to the Act or as a result
of settling any of the terms hereof and the User hereby
authorises and instructs NGC to make any such amendment on
its behalf and undertakes not to withdraw, qualify or revoke
such authority or instruction at any time.
IN WITNESS WHEREOF the hands of the duly authorised
representatives of the parties hereto at the date first above
written
THE NATIONAL GRID COMPANY PLC )
By )
[the USER] )
By )
<PAGE>
APPENDIX A
----------
CUSTOMER INFORMATION
Customer - exit point
---------------------
1. Location and nomenclature of Energy Metering Equipment
2. Distribution System operator
3. Grid Supply Point meeting Demand
4. Loss factor
<PAGE>
APPENDIX B
----------
(NOT USED)
----------
<PAGE>
APPENDIX C
----------
ZONE/REGISTERED CAPACITY/PEAK HALF-HOURS/ESTIMATED DEMAND
----------------------------------------------------------
COMPANY:
GRID SUPPLY POINT/
CONNECTION SITE:
ELECTRICAL LOCATION OF ENERGY METERING
EQUIPMENT MEASURING STATION DEMAND:
ZONE:
a. GENERATION:
SET TYPE/FUEL REGISTERED CAPACITY MW
b. In the Financial Year 1st April, 1990 to 31st March, 1991
NGC's Demand related Use of System charges shall be
calculated by reference to the Demand attributable to the
User at the Grid Supply Point identified above in relation
to the 3 half-hours of peak Demand (Active Power) occurring
on the 3 days of peak Demand (Active Power) which occur in
the period from 1st November, 1990 to 28th February, 1991
and are at least 10 days apart.
c. In the Financial Year 1st April, 1990 to 31st March, 1991
NGC's generation related Use of System Charges shall be
calculated by reference to the highest Registered Capacity
during such Financial Year and the Energy produced.
d. ESTIMATED DEMAND for the period between 1 April, 1990 and
----------------
31st March, 1991 and thereafter as notified in accordance
with the Charging Rules.
MW
------------
<PAGE>
APPENDIX D
----------
USE OF SYSTEM CHARGES/PAYMENT
-----------------------------
COMPANY:
LOCATION:
1) TYPE OF CHARGE: SYSTEM SERVICE
Demand Related
pound sterling................... in respect of the
period from 1st April, 1990 to 31st March, 1991 payable
in 12 equal monthly installments subject to adjustment
in accordance with the Charging Rules.
Note: based upon a charge of pound sterling.......
per KW and ........... KW of Estimated Demand as set
out in Appendix C.
2) TYPE OF CHARGE: INFRASTRUCTURE
A Demand Related
pound sterling................... in respect of the
period from 1st April, 1990 to 31st March, 1991 payable
in 12 equal monthly installments subject to adjustment
in accordance with the Charging Rules.
Note: based upon a charge of pound sterling.......
per KW and ...... KW of Estimated Demand as set out in
Appendix C.
B. Capacity Related
pound sterling................... in respect of the
period from 1st April, 1991 to 31st March, 1991 payable
in 12 equal monthly installments subject to adjustment
in accordance with the Charging Rules based upon a
charge of pound sterling...... per KW Registered
Capacity and .... KW being the Registered Capacity as
set out in Appendix C.
C. Energy Related
pound sterling................... per KWh in respect of
each KWh of Energy entering the Total System in the
period from 31st March, 1990 to 31st March, 1991
payable as described in Clause 14 of the Master
Agreement.
Payment shall be made in accordance with Clause 14 of the
Master Agreement.
<PAGE>
APPENDIX E
----------
CHARGING RULES
--------------
Part 1 - Transmission Network Use of System Charges and
-------------------------------------------------------
Connection Charges
------------------
Introduction
------------
Under the terms of this Supplemental Agreement the User is liable
to pat Transmission Network Use of System Charges based upon the
Registered Capacity of Generating Units passing Active Power on
to and/or the Demand taken from the NGC Transmission System and
Connection Charges. The basis upon which Transmission Network
Use of System Charges and Connection Charges are levied according
to a User's particular circumstances are set out in the statement
issued by NGC under paragraphs 1, 2 and 3 of Condition 10 to the
Transmission License.
1.1 Data Requirements
-----------------
1.1.1 On or before a date not later than 10 Business
Days after the confirmation of the basis of
calculation of charges pursuant to paragraph 2.1
in each Financial Year the User shall supply NGC
with such data as NGC may from time to time
reasonably request pursuant to paragraph 2.1 to
enable NGC to calculate the Connection Charges
and/or Transmission Network Use of System Charges
due from the User to NGC or from NGC to the User
(as the case may be) in respect of the Connection
Site including the data specified in Appendix C.
1.1.2 On or before a date not later than 10 Business
Days after the confirmation of the basis of
calculation of charges pursuant to paragraph 2.1
in each Financial Year, Users:
(a) who are owners or operators of a User System
shall provide to NGC a forecast for the
following Financial Year of the Natural
Demand attributable to each Grid Supply Point
equal to the forecasts of Natural Demand
under both Annual Average Cold Spell (ACS)
Conditions and a forecast of the average
metered attributable to such Grid Supply
Point (or such other forecast as may be
notified by NGC to the User pursuant to
paragraph 2.1) for each of a number of peak
half-hours as notified by NGC to the User
under paragraph 2.1;
(b) who are Suppliers shall provide to NGC a
forecast for the following Financial Year of
its metered Demand attributable to each
Transmission Network Use of System Demand
Zone equal to the average of the forecasts of
Demand attributable to such Transmission
Network Use of System Demand Zone (or such
other forecast as may be notified by NGC to
the User pursuant to paragraph 2.1) for each
of a number of peak half-hours notified by
NGC to the User under paragraph 2.1;
(c) who are Generators shall provide to NGC a
forecast for the following Financial Year of:
(i) the metered Station Demand (Active
Power) attributable to the Power Station
for the Generating Units comprised
therein equal to the average of the
forecasts of such Station Demand (Active
Power) (or such other forecast as may be
notified by NGC to the User pursuant to
paragraph 2.1) attributable to the sum
of the Generating Units for each of a
number of peak half-hours as notified by
NGC to the User under paragraph 2.1;
(ii) the highest Registered Capacity to be
declared pursuant to the terms of the
Pooling and Settlement Agreement of each
Generating Unit comprised within a Power
Station for the period as notified by
NGC to the User under paragraph 2.1;
(d) who are Generators and whose Equipment is
comprised within a Trading Site (as such term
is defined in the Pooling and Settlement
Agreement) shall supply to NGC a forecast for
the following Financial Year of:
(i) the highest Registered Capacity declared
pursuant to the terms of the Pooling and
Settlement Agreement of each Generating
Unit comprised within a Power Station
which forms part of such Trading Site;
and
(ii) the average Demand within the Trading
Site (other than Station Demand) to be
supplied by the Power Station in (i)
above for each of the number of peak
half-hours notified by the User to NGC
pursuant to paragraph 2.1;
(iii) the Station Demand for the Power Station
within the Trading Site determined in
accordance with paragraph 1.1.2(c)(i);
for the period as notified by NGC to the User
under paragraph 2.1 and NGC shall use such
forecasts as the basis of Transmission Network Use
of System Charges for such Financial Year.
1.1.3 Variation of Charges by NGC during the Financial
------------------------------------------------
Year
----
The User shall notify NGC of any revision to the
forecast Demand submitted by the User under
paragraph 1.1 of this Appendix E at least
quarterly or at such other intervals as may be
agreed between NGC and the User from time to time.
NGC shall revise the Transmission Network Use of
System Charges payable by the User to take account
of any such revised forecast provided in
accordance with this paragraph 1.1.3. NGC shall
commence charging the varied Transmission Network
Use of System Charges from the first day of the
month following the month in which such revised
forecast was received provided always that such
forecast is provided before 15th day of such
month.
1.2 Reconciliation Statements
-------------------------
Initial Reconciliation Statements
---------------------------------
1.2.1 On or before 1 March in each Financial Year NGC
shall promptly calculate on the basis set out in
the statement published by NGC in accordance with
License Condition 10 of the Transmission License
the Demand related or Generation related
Transmission Network Use of System Charges (as the
case may be) that would have been payable by the
User during each month during that Financial Year
if those charges had been calculated on the basis
of the actual Demand data or the User's highest
declared Registered Capacity recorded during the
Financial Year in respect of the forecasts which
had previously been provided by the User in
accordance with paragraph 1.1 (the "Actual
Amount"). NGC shall then compare the Actual
Amount with the amount of Demand related or
Generation related Transmission Network Use of
System Charges (as the case may be) paid during
each month during that Financial Year by the User
(the "Notional Amount").
1.2.2 As soon as reasonably practicable and in any event
by 1st March in each Financial Year NGC shall then
prepare an initial reconciliation statement and
send it to the User. Such statement shall specify
the Actual Amount and the Notional Amount for each
month during the relevant Financial Year and in
reasonable detail, the information from which such
amounts were derived and the manner in which they
were calculated.
1.2.3 Together with the initial reconciliation statement
NGC shall issue a credit note in relation to any
sum shown by the reconciliation statement to be
due to the User or an invoice in respect of sums
due to NGC and in each case interest thereon
calculated pursuant to paragraph 1.2.5 below.
1.2.4 Invoices issued under paragraph 1.2.3 above and
1.2.5 below shall be payable on or before 31st
March in the Financial Year to which they relate.
1.2.5 In respect of the Financial Year:
(a) the User shall, following receipt of an
appropriate invoice, pay to NGC an amount
equal to the amount (if any) by which the
aggregate Actual Amount exceeds the aggregate
Notional Amount; and
(b) NGC shall issue the User with a credit note
for an amount equal to the amount (if any) by
which the aggregate Notional Amount exceeds
the aggregate Actual Amount.
Interest shall be payable by the paying Party to
the other on such amounts from the date or payment
applicable to the month concerned until the date
of actual payment of such amounts and such
interest shall be calculated on a daily basis at a
rate equal to the Base Rate during such period.
Final Reconciliation Statements
-------------------------------
1.2.6 (a) NGC shall as soon as reasonably practicable
after the end of each Financial Year issue a
further reconciliation statement in respect
of Transmission Network Use of System Charges
payable in respect of each month of that
Financial Year showing:
(i) any change in the Transmission Network
Use of System Charges from those
specified in the initial reconciliation
statement provided in accordance with
paragraph 1.2.1 above;
(ii) whether the change represents a
reconciliation payment owing by NGC to a
User or by a User to NGC;
(iii) the amount of interest determined in
accordance with 1.1.5 above;
(iv) the information from which the amounts
in (i) above are derived and the manner
of their calculation.
(b) The provisions of paragraphs 1.2.3 and 1.2.5
shall apply mutatis mutandis to sums
specified in the Final Reconciliation
Statement.
2. Revision of Charges
-------------------
2.1 To the extent permitted by the Transmission License and this
Agreement NGC may revise its Connection Charges and
Transmission Network Use of System Charges or the basis of
their calculation including issuing revisions to Appendices
A, B, C and D (or D1 if appropriate) hereto. On or before
31st October in each Financial Year NGC shall notify the
User in writing of the intended basis of calculation to be
used by NGC in the following Financial Year together with
time periods over which the data required to be provided
pursuant to paragraph 1 of this Appendix E is required and
shall consult with the User concerning the same. On or
before 30th November in each Financial Year NGC shall
confirm to the User the basis of calculation to be used in
the following Financial Year.
2.2 NGC shall give the User not less than 2 months prior written
notice of any revised charges, including revisions to
Appendices A, B, C and D (or D1 if appropriate) hereto,
which notice shall specify the date upon which such
revisions become effective (which may be at any time). The
User shall pay any such revised charges and Appendix A, B,
C, D (and/or D1 as appropriate) shall be amended
automatically (and a copy sent to the User) to reflect any
changes to such Appendices with effect from the date
specified in such notice.
2.3 Subject to the provisions of paragraph 3.2 below if in the
reasonable opinion of NGC any development, replacement,
renovation, alteration, construction or other work to the
NGC Transmission System or termination of a Supplemental
Agreement by another User or an alteration to the
requirements of the User or any other User means that to
ensure that NGC is charging in accordance with the
provisions of the Statement pursuant to Condition 10 of the
Transmission License NGC needs to vary the Connection
Charges payable by the User in relation to the Connection
Site then NGC shall have the right to vary such charges
accordingly upon giving to the User not less than 2 month
prior written notice. Such notice shall be deemed to be a
revised Connection Offer and before any such variation
becomes effective the provisions of Sub-Clauses 11.3 to 11.4
of the Master Agreement shall apply mutatis mutandis.
Following any such variation the provisions of Appendices A
and B shall be amended automatically (and a copy sent to the
User) to reflect such variation with effect from the date
such variation comes into effect.
3. Replacement of NGC Assets
-------------------------
3.1 Appendix A specifies the age of each of the NGC Assets at
the Connection Site at the date of this Supplemental
Agreement. NGC Connection Charges are calculated on the
assumption that NGC Assets will not require replacement
until the expiry of the Replacement Period applicable to
each NGC Asset concerned and such period has been agreed
between NGC and the User.
3.2 Where in NGC's reasonable opinion an NGC Asset requires
replacement before the expiry of its Replacement Period NGC
shall, with the prior written approval of the User (except
where NGC's reasonable opinion such replacement is necessary
in which case such approval shall not be required but in
such case the User shall have the right to Disconnect) have
the right to replace the NGC Asset at no additional cost to
the User until expiry of its original Replacement Period.
Upon expiry of such original Replacement Period NGC shall be
entitled to vary the Connection Charges in respect of the
replaced NGC Asset so that they are calculated on the basis
of the then Net Asset Value of such NGC Assets. NGC shall
give the User not less than 2 months prior written notice of
such varied charges which notice shall specify the date upon
which such increase or reduction (as the case may be)
becomes effective. The User shall pay such varied charges
and Appendices A and B shall be amended automatically (and a
copy sent to the User) to reflect such revised charges with
effect from the date specified in such notice.
3.3 Upon the expiry of the Replacement Period of any NGC Asset:
(a) (i) if in NGC's reasonable opinion to enable NGC to
comply with its license and statutory obligations
it is necessary to replace such NGC Asset; or
(ii) if such NGC Asset is to be left in service
then NGC shall give written notice of this and
that it will, unless within 3 months of the
receipt of such notice the User objects in writing
to the proposal, replace or retain 4 (as the case
may be) such NGC Asset,
(b) the User may request that NGC replaces the Asset.
3.4 Where the User serves a counter notice pursuant to paragraph
3.3 above then NGC shall:
(a) keep the NGC Asset in service; and
(b) negotiate with the User in good faith with regard to
the Connection Charges applicable to such NGC Asset.
In the event that NGC and the User fail to agree the
level of such Connection Charges in accordance with
paragraph 3.4(b) above then the User shall pay
Connection Charges to NGC in respect of such NGC Asset
equal to the Connection Charges payable by the User in
respect of the NGC Asset in the last Financial Year of
the Replacement Period (the "Deemed Charge") and the
matter shall be referred to the Director for
determination. If the Director determines that the
Connection Charges payable in respect of such NGC Asset
should be:
(i) less than the Deemed Charge then NGC shall repay
to the User the difference between the Deemed
Charge and the amount so determined by the
Director together with interest at the Base Rate,
for the period from when the User started to pay
the Deemed Charge until the date of payment;
(ii) greater than the Deemed Charge then the User shall
pay the difference to NGC together with interest
at the Base Rate for the period from when the User
started to pay the Deemed Charge until the date of
payment.
3.5 Where the Connection Charges are payable in respect of NGC
Assets:
(a) replaced in accordance with paragraph 3.3 above; or
(b) retained in accordance with paragraph 3.3 above; then
NGC shall except in the circumstances in paragraph 3.4(b)
give the User not less than 2 months prior written notice of
such varied charges and specify the date upon which such
charges become effective. The User shall pay such varied
charges and Appendices A and B shall be amended
automatically (and a copy sent to the User) to reflect such
revised charges with effect from the dates notified to the
User by NGC. Where NGC is in negotiation with the User in
accordance with paragraph 3.4(b) then it shall give such
notice as is reasonably practicable in the circumstances.
4. Termination Amounts
-------------------
4.1 The expressions set out below shall have the meanings shown:
"Termination Amount" shall be the sum calculated to be
equal to the aggregate of the
following:
(a) in respect of NGC Assets:
(i) shown in Appendix A to
the Supplemental
Agreement and which in
NGC's reasonable opinion
are no longer required by
NGC to enable NGC to
comply with its License
Standards, and can
therefore be removed
("Type A Assets"): (aa)
the Net Asset Value of
such NGC Asset as at the
end of the Financial Year
in which termination
occurs (on the assumption
that the sums specified
in paragraph 4.1(b) will
be paid), plus (bb) a sum
equal to the reasonable
costs of removing such
NGC Assets and of making
good the remaining Plant
and Apparatus at the
Connection Site following
the removal of any Type A
Assets;
(ii) in Appendix A to the
Supplemental Agreement
and which in NGC's
reasonable opinion cannot
be removed ("Type B
Assets") as a result of
the termination, a sum
equal to the product of
the Asset Allocation
Factor multiplied by the
Net Asset Value of that
NGC Asset as at the end
of the Financial Year in
which termination occurs;
and
(iii) in relation to NGC Assets
(aa) which NGC has
determined to
replace upon the
expiry of the
relevant Replacement
Period in accordance
with paragraph 3.3;
and
(bb) in respect of which
no counter notice
has been served by
the User pursuant to
paragraph 3.3; and
(cc) the User has served
in accordance with
the provisions of
this Supplemental
Agreement a notice
to Disconnect in
respect of the
Connection Site at
which the NGC Assets
were located; and
(dd) due to the timing of
the replacement of
such NGC Assets, no
Connection Charges
will have become
payable in respect
of such NGC Assets
by the User by the
date of termination;
the reasonable costs
incurred by NGC in
connection with the
installation of such NGC
Assets;
(b) the Connection Charges and Use
of System Charges for the
Financial Year in which
termination occurs.
"Asset Allocation Factor" means in respect of each NGC
Asset specified in Appendix A
to this Supplemental Agreement
the figure expressed as a
percentage appearing in the
column headed Allocation and
immediately adjacent to the
description of the NGC Asset
to which it relates.
4.2 In the event that a Termination Amount specified in
paragraph 4.1(a)(i) is paid, in respect of Type A Assets,
and subsequently NGC re-uses such NGC Assets in respect of
which such payment has been made at the same or another
Connection Site then NGC shall pay to the User a sum equal
to the lower of:
(i) the Termination Amount paid in respect of such NGC
Asset; or
(ii) the Net Asset Value attributed to such NGC Asset for
charging purposes upon its re-use;
less any reasonable costs incurred by NGC in respect of
storage. NGC shall use its reasonable endeavors to re-
use such NGC Assets.
4.3 In the event that a Termination Amount specified in
paragraph 4.1(a)(ii) above is paid in respect of Type B
Assets and these are subsequently re-used then NGC shall pay
to the User a sum equal to the lower of:
(i) the Termination Amount paid in respect of such NGC
Assets; or
(ii) the Net Asset Value attributed to such NGC Asset for
charging purposes upon its re-use.
4.4 For the purposes of paragraphs 4.2 and 4.3 re-use shall not
occur where any NGC Asset remains connected for the purpose
of providing a continuing connection for other Users
connected to the NGC Transmission System at the Connection
Site at the date of termination. However in the event of
any User requiring a continued connection modifying its
requirements or another User connecting at the Connection
Site and the NGC Assets in respect of which a payment has
been made are required for this modification this shall
constitute re-use.
4.5 NGC shall be under no obligation to rebate any of the
Termination Amounts described in paragraph 4.1(b) except to
the extent that Connection and/or Transmission Network Use
of System Charges are subsequently received in respect of
NGC Assets in relation to which such Termination Amounts
have been paid to NGC during the Financial Year in which
termination has occurred.
4.6 Upon request in writing, and at the cost of the User, NGC
shall issue a certificate no more frequently than once each
calendar year indicating whether or not such assets have or
have not been re-used. If NGC at any time decide that it is
not economic to retain any Plant and Apparatus constituting
any NGC Asset in respect of which Termination Amounts have
been paid it may at its reasonable discretion dispose of the
said Plant and Apparatus. Where NGC decides to so dispose
of such Plant and Apparatus it shall where the Plant and/or
Apparatus is disposed of in a state where it is capable of
re-use pay to the User an appropriate proportion of any sale
proceeds received in respect thereof.
5. Deductions
----------
In respect of any NGC Engineering Charges which have been
paid by the User in connection with a Connection Application
or under Sub-Clause 2.4 of the Supplemental Agreement Type 2
NGC shall reduce the amount of Connection Charges payable by
the User in relation to the respective Connection Site on 1
April in each of the first 3 years (or such other period as
may be agreed between NGC and the User) of the payment of
such Connection Charges by an amount equal on each occasion
to one third of such NGC Engineering Charges.
Part 2 - Transmission Services Use of System Charges
----------------------------------------------------
Introduction
------------
Under the terms of this Supplemental Agreement the User is liable
to pay Transmission Services Use of System Charges. The basis
upon which Transmission Services Use of System Charges are levied
and the calculation methodology and rules which will be used to
quantify those charges are set out in the statement issued by NGC
under paragraphs 1 and 2 of Condition 10 to the Transmission
License.
1. Reconciliation
--------------
1.1 At any time after the Payment Date NGC may submit to the
User, and shall submit to the User at the written request of
the User, a Statement (which may form part of an invoice or
other document) in respect of any Settlement Day (a
"Reconciliation Statement") showing:
(a) each Settlement Day in respect of which there has been
a change (for any reason) in the value of any parameter
originally used in the calculation of the Transmission
Services Use of System Charges in respect of such
Settlement Day, together with details of the value of
the old and new parameter;
(b) the amount of any reconciliation payments (if any)
required to make the Transmission Services Use of
System Charges paid in respect of that Settlement Day
equal to the payment which would have been payable had
the invoice prepared pursuant to Clause 5.4.1 of this
Supplemental Agreement been prepared on the basis of
the changed parameter;
(c) whether the reconciliation payment represents an amount
owing by NGC to the User or by the User to NGC;
(d) the amount of interest accruing on such reconciliation
payment calculated in accordance with this paragraph
1.1 below.
Interest payable in respect of each reconciliation payment
shall accrue from and including the relevant Payment Date up
to but excluding the date upon which the amounts specified
in the Reconciliation Statement are paid, and shall be at a
rate equal to the Base Rate for the time being and from time
to time. Interest shall accrue from day to day.
Together with the Reconciliation Statement in the case of
sums due:
(a) from the User to NGC, NGC shall:
(i) send the User an invoice in relation to any sums
shown by the Reconciliation Statement to be due to
NGC and interest thereon calculated in accordance
with paragraph 1.1; or
(ii) include those sums due in another invoice; and
(b) from NGC to the User, forthwith following the issue of
any Reconciliation Statement, NGC shall:
(i) issue a credit note in relation to any sum shown
by the Reconciliation Statement to be due to the
User and interest thereon calculated in accordance
with paragraph 1.1, or
(ii) include those sums due to the User as a credit in
an invoice from NGC to the User.
1.3 The right to submit a Reconciliation Statement and the
consequential invoices and/or credit notes shall survive the
termination of this Supplemental Agreement and the parties
agree that the provisions of ties Appendix E Part 2 shall
remain in full force and effect and shall continue to bind
them after such termination (the version in existence as at
the date of termination being the applicable version, in the
case of any amendments).
2. Reconciliation Payments
-----------------------
The User, or as the case may be, NGC, shall pay the amounts
set out in the relevant invoice or credit note, either in
accordance with the applicable requirements for payment of
other sums due under that invoice in the case of sums shown
in an invoice also dealing with other payments, or in other
cases within 5 Business Days of the date of the
Reconciliation Statement.
3. Revision of Charges
-------------------
On or before 31 October in each Financial Year NGC shall
notify the User in writing of the intended basis of
calculation to be used by NGC in calculating Transmission
Services Use of System Charges for the following Financial
Year and shall consult the User concerning the same. On or
before 30 November in each Financial Year NGC shall confirm
to the User the basis of calculation to be used in
calculating those charges for the following Financial Year.
Part 3
------
1. Transmission Services Use of System Charges Security
----------------------------------------------------
Cover
-----
1.1 Provision of Security Cover
---------------------------
The User shall provide Security Cover from tune to time in
accordance with the following provisions:
1.1.1 the User shall not later than the date of its
accession to the Master Agreement or 1st April,
1997 (whichever is later) deliver to NGC evidence
reasonably satisfactory to it that:
(i) it presently holds an Approved Credit Rating;
or
(ii) it has provided and is not in default under
the Security Cover referred to in paragraph
1.1.2 below;
1.1.2 if the User does not hold or ceases to hold an
Approved Credit Rating it shall not later than the
date of:
(i) the date of its accession to the Master
Agreement;
(ii) the 1st April, 1997; or
(iii) the date upon which it ceases to have an
Approved Credit Rating:
(a) deliver to NGC a Qualifying Guarantee in
such amount as shall be notified by NGC
to the User in accordance with paragraph
2; or
(b) deliver to NGC a Letter of Credit
(available for an initial period of not
less than 6 months) in such amount as
shall be notified by NGC to the User in
accordance with paragraph 2; and/or
(c) deliver to NGC cash for credit to the
Escrow Account in such amount as shall
be notified by NGC in accordance with
paragraph 2.
1.1.3 The provision of security in respect of
Transmission Services Use of System Charges by the
User in accordance with the terms of:
(a) this Supplemental Agreement shall relieve it
of its obligations to provide such security
under the terms of any other Supplemental
Agreement to which the User is a party; and
(b) any other Supplemental Agreement to which the
User is a party shall relieve it of its
obligations to provide such security under
the terms of this Supplemental Agreement;
in each case, to the extent of the security
provided to NGC pursuant to this Appendix or the
same provision under the terms of any other
Supplemental Agreement made between NGC and the
User.
1.1.4 The provisions of this Part 3 of Appendix E shall
be in addition to any other requirements to
provide security in respect of any other sums due
under the terms of this Supplemental Agreement.
1.2 Maintenance of Security Cover
-----------------------------
Where the User is required to provide Security Cover in
accordance with the terms of paragraph 1.1 it shall at all
times thereafter maintain a Security Amount equal to or more
than the Security Cover applicable to it. Immediately upon
any reduction occurring in the Security Amount provided by
the User or any Letter of Credit or Qualifying Guarantee
being for any reason drawn down or demanded respectively,
the User will procure that new Letters of Credit or
Qualifying Guarantees are issued or existing Letters of
Credit or Qualifying Guarantees are reinstated (to the
satisfaction of NGC) to their full value or cash is placed
to the credit of the Escrow Account in an amount required to
restore the Security Amount to an amount at least equal to
the Security Cover applicable to the User, and in such
proportions of Letters of Credit, Qualifying Guarantees
and/or cash as the User may determine. Not later than 10
Business Days before any outstanding Letter of Credit and/or
Qualifying Guarantee is due to expire, the User shall
procure to the satisfaction of NGC that its required
Security Amount will be available for a further period of
not less than 6 months which may be done in one of the
following ways:
1.2.1 subject to the issuing bank continuing to have an
Approved Credit Rating provide NGC with
confirmation from the issuing bank that the
validity of the Letter of Credit has been extended
for a period of not less than 6 months on the same
terms and otherwise for such amount as is required
by this Part 3; or
1.2.2 provide NGC with a new Letter of Credit issued by
an issuing bank with an Approved Credit Rating for
an amount at least equal to the required Security
Amount applicable to it (less its balance on the
Escrow Account) which Letter of Credit shall be
available for a period of not less than 6 months;
or
1.2.3 subject to the entity issuing the Qualifying
Guarantee continuing to have an Approved Credit
Rating provide NGC with confirmation from the
issuing entity that the validity of the Guarantee
has been extended for a period of not less than 6
months on the same terms and otherwise for such
amount as is required by this Part 3; or
1.2.4 provide NGC with a new Qualifying Guarantee for an
amount at least equal to the required Security
Amount applicable to it (less its balance on the
Escrow Account) which Qualifying Guarantee shall
be available for a period of not less than 6
months; or
1.2.5 procure such transfer to NGC for credit to the
Escrow Account of an amount as shall ensure that
the credit balance applicable to the User and
standing to the credit of the Escrow Account shall
be at least equal to the required Security Amount.
1.3 Failure to supply or maintain Security Cover
--------------------------------------------
If the User fails at any time to provide or maintain
Security Cover to the satisfaction of NGC in accordance with
the provisions of this Part 3, NGC may at any time while
such default continues and if at such time any Letter of
Credit and/or Qualifying Guarantee forming part of the
Security Cover is due to expire within nine Business Days
immediately, and without notice to the User, demand payment
of the entire amount of any outstanding Letter of Credit
and/or Qualifying Guarantee and shall credit the proceeds of
the Letter of Credit and/or Qualifying Guarantee to the
Escrow Account.
1.4 Substitute Letter of Credit or Qualifying Guarantee
---------------------------------------------------
1.4.1 If the bank issuing the User's Letter of Credit
ceases to have the credit rating set out in the
definition of Letter of Credit in Clause 1.1 of
this Supplemental Agreement such User shall
forthwith procure the issue of a substitute Letter
of Credit by a bank that has such a credit rating
or a Qualifying Guarantee or transfer to NGC cash
to be credited to the Escrow Account.
1.4.2 If the entity providing the User's Qualifying
Guarantee ceases to have an Approved Credit Rating
the User shall forthwith procure a replacement
Qualifying Guarantee from an entity with such a
credit rating or a Letter of Credit or transfer to
NGC cash to be credited to the Escrow Account.
2. Credit Monitoring
-----------------
2.1 Determination of Security Cover
-------------------------------
The amount of Security Cover which the User shall be
required to maintain shall be determined from time to time
by NGC in accordance with this Part 3 on the basis of the
criteria set out in paragraph 2.2 and shall be notified to
the User.
2.2 Criteria for provision of Security Cover
----------------------------------------
If paragraph 1.1.2 applies, the amount of Security Cover
required to be provided by the User in respect of this and
any other Supplemental Agreement to which the User is a
party shall be provided in an amount to be reasonably
assessed by NGC as the aggregate amount reasonably
anticipated by NGC as being payable by the User pursuant to
all Supplemental Agreements to which the User is a party in
respect of the Transmission Services Use of System Charges
referred to in Part 2 of Appendix D over a 28 day period.
2.3 Six Monthly Variation
---------------------
In respect of paragraph 2.2 NGC shall calculate the amount
for the two six-month periods commencing 1st April and 1st
October in each year and shall advise the User accordingly.
2.4 Review of Security Cover
------------------------
NGC shall keep under review the Security Cover relating to
the User and shall promptly advise the User whenever the
Security Amount maintained by the User is more or less than
the amount required to be maintained pursuant to paragraph 2
of this Part 3.
2.5 Increase or Decrease of Security Cover
--------------------------------------
If after considering any representations which may be made
by the User, NGC reasonably determines that the User's
Security Cover should be increased or decreased, it shall so
notify the User. If NGC so determines that such Security
Cover should be decreased and the User consents then that
reduction shall take place. NGC shall consent to an
appropriate reduction in the available amount of any
outstanding Qualifying Guarantee or Letter of Credit and/or
shall repay to the User such part of the deposit held in the
Escrow Account for the account of the User (together with
all accrued interest on the part to be repaid) sufficient to
reduce the User's Security Amount to the level of Security
Cover applicable to it. If NGC so determines that the
User's Security Cover should be increased, the User shall,
within five Business Days of notice as aforesaid, procure an
additional or replacement Qualifying Guarantee or Letter of
Credit or transfer to NGC cash to be credited to the Escrow
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.
2.6 Notification in respect of Security Cover
-----------------------------------------
NGC shall notify the User promptly if:
2.6.1 the User fails to provide, maintain, extend or
renew a Qualifying Guarantee or a Letter of Credit
which it is required to provide, maintain, extend
or renew pursuant to paragraphs 1 or 2;
2.6.2 NGC shall make a demand under any such Qualifying
Guarantee or a call under a Letter of Credit; or
2.6.3 NGC becomes aware that the User (a) shall cease to
have 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
User retaining an Approved Credit Rating, or (c)
shall be in default under the additional or
alternative security required to be provided
pursuant to this Part 3; or
2.6.4 NGC becomes aware that any bank that has issued a
Letter of Credit which has not expired shall cease
to have the credit rating required by this
Appendix; or
2.6.5 NGC becomes aware that any entity providing a
Qualifying Guarantee which has not expired shall
cease to have an Approved Credit Rating.
Provided always that the failure by NGC to notify the User
pursuant to this paragraph 2.6 shall not relieve the User of
its obligations under and in accordance with the terms of
this Appendix.
2.7 Release from Security Cover Obligations
---------------------------------------
Upon the User ceasing to be a party to the Master Agreement
and provided that all amounts owed by the User in respect of
the Transmission Services Use of System Charges have been
duly and finally paid and that it is not otherwise in
default in any respect of any Transmission Services Use of
System Charges (including interest) payable under the terms
of any Supplemental Agreement, the User shall be released
from the obligation to maintain Security Cover and NGC shall
consent to the revocation of any outstanding Qualifying
Guarantee or Letter of Credit and shall repay to the User
the balance (including interest credited thereto) standing
to the credit of the User on the Escrow Account at that
date.
3. Payment Default
---------------
If by 1230 hours on any Payment Date, NGC has been notified
by the User or it otherwise has reason to believe that the
User will not have remitted to it by close of banking
business on the Payment Date all or any part ("the amount in
default") of any amount which has been notified by NGC to
the User as being payable by the User by way of the
Transmission Services Use of System Charges on the relevant
Payment Date, then NGC shall be entitled to act in
accordance with the following provisions (or whichever of
them shall apply) in the order in which they appear until
NGC is satisfied that the User has discharged its
obligations in respect of the Transmission Services Use of
System Charges under this Supplemental Agreement and/or any
other Supplemental Agreement to which the User is a party
which are payable in respect of the relevant Settlement Day:
(a) NGC may to the extent that the User is entitled to
receive payment from NGC pursuant to this Supplemental
Agreement and/or any other Supplemental Agreement to
which the User is a party (unless it reasonably
believes that such setoff shall be unlawful) set off
the amount of such entitlement against the amount in
default;
(b) NGC shall be entitled to set off the amount of funds
then standing to the credit of the Escrow Account to
the extent that it represents Security Cover provided
by the User in accordance with paragraph 2.1.2 against
the Transmission Services Use of System Charges unpaid
by the User and for that purpose NGC shall be entitled
to transfer any such amount from the Escrow Account to
any other account of NGC at its absolute discretion and
shall notify the User accordingly;
(c) NGC may demand payment under any outstanding Letter of
Credit supplied by the User in a sum not exceeding the
available amount of all such Letters of Credit;
(d) NGC may demand payment under any outstanding Qualifying
Guarantee provided for the benefit of the User pursuant
to paragraph 1.1.2(a).
4. Utilisation of Funds
--------------------
In addition to the provisions of paragraph 3 above if NGC
serves a notice of default under the terms of Clause 17.6A
of a Type 1 Supplemental Agreement and/or notice of
termination under Clause 17.7 of a Type 1 Supplemental
Agreement (or the equivalent Clauses in a Supplemental
Agreement other than a Type 1 Supplemental Agreement) then
NGC shall be entitled to demand payment of any of the
Transmission Services Use of System Charges which are
outstanding whether or not the Payment Date in respect of
them shall have passed and:
(i) make demand under any outstanding Qualifying Guarantee
or a call under any outstanding Letter of Credit
supplied by the User; and
(ii) to set off the funds in the Escrow Account to the
extent that they represent Security Cover provided by
the User against the Transmission Services Use of
System Charges unpaid by the User and for that purpose
NGC shall be entitled to transfer any such amount from
the Escrow Account to any other account of NGC as it
shall in its sole discretion think fit.
<PAGE>
EXHIBIT 6
---------
DATED 30th March 1990
----------------------
THE NATIONAL GRID COMPANY PLC (1)
and
[ ] (2)
------------------------------------------------------
SUPPLEMENTAL AGREEMENT TYPE 6
------------------------------------------------------
(for Generators with Minor Independent
Generating Plant which Is Embedded and who are acting in that
capacity and also are Pool Members)
<PAGE>
CONTENTS
--------
Clause Title
------ -----
1 Definitions, Interpretation, Construction
2 Right to use the NGC Transmission System
3 Site of Connection to the Distribution System
4 Use of System Charges
5 Charging Rules
6 Metering
7 Term
8 Emergency Deenergisation
9 Deenergisation and Disconnection
10 Notice to Terminate
11 Master Agreement
12 Variations
Appendix A Site of Connection
Appendix B
Appendix C Zone/Registered Capacity/Peak Half-Hours/
Estimated Demand
Appendix D Use of System Charges/Payment
Appendix E Charging Rules
Appendix F1 Site Specific Technical Conditions Metering
<PAGE>
THIS SUPPLEMENTAL AGREEMENT is made the and becomes
effective on the 31st day of March 1990
BETWEEN
(1) THE NATIONAL GRID COMPANY PLC a company registered in England
with number 2366977 whose registered office is at National Grid House,
Sumner Street, London SEI 9JU ("NGC"), which expression shall include
its successors and/or permitted assigns); and
(2) [ ] a company registered in [ ] with number
[ ] whose registered office is at [ ]
(the "User", which expression shall include its
successors and/or permitted assigns)
WHEREAS
(A) NGC and the User are parties to a Master Connection and Use of
System Agreement dated [ ] ("Master Agreement").
(B) This Supplemental Agreement is entered into pursuant to the terms
of the Master Agreement and shall be read as being governed by them.
NOW IT IS HEREBY AGREED as follows:-
1. DEFINITIONS, INTERPRETATION AND CONSTRUCTION
--------------------------------------------
1.1 General
-------
Unless the subject matter or context otherwise requires or is
inconsistent therewith terms and expressions defined in Schedule 2 to
the Master Agreement have the same meanings, interpretations or
constructions in this Supplemental Agreement.
2. RIGHT TO USE THE NGC TRANSMISSION SYSTEM
----------------------------------------
2.1 Subject to the other provisions of this Agreement including the
provisions of the Grid Code, the User may take supplies of power on to
and/or take supplies of power from the NGC Transmission System as the
case may be.
2.2 The User shall not operate its User's Equipment such that any of
it exceeds its Registered Capacity save as expressly permitted and
instructed pursuant to the Fuel Security Code or as may be necessary
or expedient in accordance with Good Industry Practice.
2.3 Data of a technical or operational nature collected recorded or
otherwise generated pursuant to this Supplemental Agreement shall be
deemed data lodged pursuant to the Grid Code to the extent that the
Grid Code makes provision therefor.
2.4 Subject to the provisions of this Agreement and the Grid Code,
NGC shall accept into the NGC Transmission System power generated by
the User up to the Maximum Export Capacity except to the extent (if
any) that NGC is prevented from doing so by transmission constraints
which could not be avoided by the exercise of Good IndustryPractice by
NGC.
2.5 Subject to the provisions of the Grid Code NGC shall be entitled
to plan and execute outages of parts of the NGC Transmission System or
Plant or Apparatus at any time and from time to time.
3. SITE OF CONNECTION TO THE DISTRIBUTION SYSTEM
---------------------------------------------
The site where the User is connected to the Distribution System is
more particularly described in Appendix A.
4. USE OF SYSTEM CHARGES
---------------------
With effect from the commencement of this Supplemental Agreement the
User shall pay to NGC the Use of System Charges set out in Appendix D
payable in accordance with the provisions of Appendix E.
5. CHARGING RULES
--------------
The provisions of the Charging Rules set out in Appendix E to this
Supplemental Agreement shall apply.
6. METERING
--------
The provisions of Appendix Fl shall have effect.
7. TERM
----
Subject to the provisions for earlier termination set out herein and
in Clause 17 of the Master Agreement, this Supplemental Agreement
shall continue until the User's Plant is Disconnected from the
Distribution System in accordance with Clause 9 or 10.
8. EMERGENCY DEENERGISATION
------------------------
8.1 Emergency Deenergisation requested by NGC:
-----------------------------------------
If, in the reasonable opinion of NGC, the condition or manner of
operation of the NGC Transmission System or the User's System (if any)
poses an immediate threat of injury or material damage to any person
or to the Total System or to any User's System or to the NGC
Transmission System, NGC shall have the right to request the owner of
the Distribution System to which the User is connected to Deenergise
the User's Equipment if it is necessary or expedient to do so to avoid
the occurrence of such injury or damage.
8.28.2 Emergency Deenergisation by a User:
----------------------------------
If, in the reasonable opinion of the User the condition or manner of
operation of the NGC Transmission System, the Total System or any
other User's System, poses an immediate threat of injury or material
damage to any person or to the User's System the User shall the right
to Deenergise the User's Equipment if it is necessary or expedient to
do so to avoid the occurrence of such injury or damage.
8.3 Renergisation
--------------
The User's Equipment at the Connection Site shall be Re-Energised as
quickly as practicable after the circumstances to any Deenergisation
under this Clause 12 have ceased to exist.
9. DEENERGISATION AND DISCONNECTION
--------------------------------
9.1 Breach by the User:
------------------
If the User shall be in breach of the provisions of this Supplemental
Agreement and such breach causes or can reasonably be expected to
cause a material adverse effect on the business or condition of NGC or
other Users or the NGC Transmission System or User Systems then NGC
may:-
(i) where the breach is capable of remedy, give written notice to the
User specifying in reasonable detail the nature of the breach and
requiring the User within 28 days after receipt of such notice to
remedy the breach or within any longer period agreed between NGC
and the User, the agreement of NGC not to be unreasonably
withheld or delayed; or
(ii) where the breach is incapable of remedy, give written notice to
the User specifying in reasonable detail the nature of the breach
and the reasons why the breach is incapable of remedy and
requiring the User within 5 Business Days after the receipt of
such notice to undertake to NGC not to repeat the breach.
9.2 De-Energisation
---------------
If:-
(a) the User fails to comply with the terms of any valid notice
served on it by NGC in accordance with Sub-Clause 9.1(i) or
is in breach of any undertaking given in accordance with
Sub-Clause 9.1(ii) and such breach causes or can be
reasonably expected to cause a material adverse effect on
the business or condition of NGC or other Users or the NGC
Transmission or User Systems; or
(b) five Business Days have elapsed the date of any valid notice
served on the User in accordance with Sub-Clause 9.2(ii) and
no undertaking is given by the User in accordance with Sub-
Clause 9.2(ii);
NGC may request the owner of the Distribution System to which the User
is connected to De-Energise the User's Plant at that site upon expiry
of at least 48 hours prior written notice to the User, provided that
at the time of expiry of such notice the breach concerned remains
unremedied and that neither the User nor NGC has referred the matter
to the Dispute Resolution Procedure. In such event NGC may request
the owner of the Distribution System to which the User is connected to
De-Energise the User's Plant at that site forthwith following
completion of the Dispute Resolution Procedure and final determination
of the dispute in NGC's favour.
9.3 NGC Transmission Licence
------------------------
If a breach of the nature referred to in Sub-Clause 9.1 continues to
the extent that it places or seriously threatens to place in the
immediate future NGC in breach of the NGC Transmission Licence, NGC
may request the owner of the Distribution System to which the User's
Customers are connected to De-Energise such User's Customers upon the
expiry of at least 12 hours prior written notice to the User, provided
that at the time of expiry of such notice the breach concerned remains
unremedied.
9.4 Re-Energisation Disputes
------------------------
If, following any De-Energisation pursuant to this Clause 9, a User
applies to NGC for NGC to issue instructions that the User's
Customer(s) be Re-Energised and is refused or is offered terms which
the User does not accept, this shall be recognised as a dispute over
the terms for use of system which the User may refer to the Director
for determination under the NGC Transmission Licence. If the User
accepts any terms offered by NGC or settled by the Director pursuant
to any such reference, NGC shall request the owner of the Distribution
System to which the User's Plant is connected to Re-Energise the
User's Plant forthwith after any request from the User for NGC to do
so.
9.5 Event of Default
----------------
If the breach which led to any De-Energisation pursuant to this Clause
9 remains unremedied at the expiry of at least 6 months after the date
of such De-Energisation, NGC may declare by notice in writing to the
User that such breach has become an event of default provided that:-
(a) all disputes arising out of the subject-matter to this
Clause 9 which are referred to the Dispute Resolution
Procedure have then been finally determined in favour of
NGC; and
(b) any reference to the Director pursuant to Sub-Clause 8.4 has
then been finally determined in favour of NGC or any terms
settled by the Director pursuant to such application have
not been accepted by the User.
9.6 Disconnection
-------------
Once NGC has given a valid notice of in event of default pursuant to
Sub-Clause 9.5. NGC may give notice of termination to that User
whereupon this Supplemental Agreement shall terminate and:
(i) NGC shall request the owner of the Distribution System to which
that User is connected to Disconnect all the User's Plant at the
site; and
(ii) the User shall be obliged to pay to NGC forthwith the Use of
System Charges due hereunder up to the end of the Financial Year
in which Termination occurs.
10. NOTICE TO TERMINATE
-------------------
10.1 The User may terminate the Supplemental Agreement upon giving to
NGC not less than 6 months written notice of termination.
10.2 If notice to terminate is given by the User under Sub-Clause 10.1
this Supplemental Agreement shall terminate upon the expiry of the
notice period. Immediately prior thereto the User shall pay NGC all
Use of System Charges payable by the User under this Supplemental
Agreement in respect of the Financial Year in which termination takes
place. This provision shall survive the termination of this
Supplemental Agreement.
11. MASTER AGREEMENT
----------------
The provisions of Clauses 18 to 24 and 26 to 30 inclusive of the
Master Agreement shall apply to this Supplemental Agreement as if set
out in full herein.
12. VARIATIONS
----------
No variation to this Supplemental Agreement shall be effective unless
made in writing and signed by or on behalf of both NGC and the User.
NGC and the User shall effect any amendment required to be made to
this Supplemental Agreement by the Director as a result of a change in
the Transmission Licence or an order made pursuant to the Act or as a
result of settling any of the terms hereof and the User hereby
authorises and instructs NGC to make any such amendment on its behalf
and undertakes not to withdraw, qualify or revoke such authority or
instruction at any time.
IN WITNESS WHEREOF the hands of the duly authorized representatives of the
parties hereto at the date first above written
THE NATIONAL GRID COMPANY PLC )
By )
the USER )
By )
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APPENDIX A
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COMPANY:
SITE OF CONNECTION TO DISTRIBUTION SYSTEM:
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APPENDIX B
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NOT USED
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APPENDIX C
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ZONE/REGISTERED CAPACITY / PEAK HALF/ESTIMATED DEMAND
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COMPANY:
GRID SUPPLY POINT/
CONNECTION SlTE:
ELECTRICAL LOCATION OF ENERGY METERING
EQUIPMENT MEASURING STATION DEMAND:
ZONE:
a. GENERATION:
SET TYPE/FUEL REGISTERED
CAPACITY MW
b. In the Financial Year 1st April 1990 to 31st March 1991 NGC's
Demand related Use of System charges shall be calculated by reference
to the Demand attributable to the User at the Grid Supply Point
identified above in relation to the 3 half-hours of peak Demand
(Active Power) occurring on the 3 days of peak Demand (Active Power)
which occur in the period from 1st November 1990 to 28th February 1991
and are at least 10 days apart.
c. In the Financial Year 1st April 1990 to 31st March 1991 NGC's
generation related Use or System Charges shall be calculated by
reference to the highest Registered Capacity during such Financial
Year and the Energy produced.
d. ESTIMATED DEMAND for the period between 1 April 1990 and
----------------
31st March 1991 and thereafter as notified in accordance with the
Charging Rules.
______________MW
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APPENDIX D
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USE OF SYSTEM CHARGES/PAYMENT
-----------------------------
COMPANY:
LOCATION:
1) TYPE OF CHARGE: SYSTEM SERVICE
Demand related
(pound)........ in respect of the period from 1st April 1990 to
31st March 1991 payable in 12 equal monthly installments subject
to adjustment in accordance with the Charging Rules.
Note: based upon a charge of (pound) ...... per KW and .....
KW of Estimated Demand as set out in Appendix C.
2) TYPE OF CHARGE: INFRASTRUCTURE
A. Demand related
(pound)..... in respect of the period from 1st April 1990 to 31st
March 1991 payable in 12 equal monthly instalments subject to
adjustment in accordance with the Charging Rules.
Note: based upon a charge of (pound)........ per KW and .....
KW of Estimated Demand as set out in Appendix C.
B. Capacity Related
(pound)........ in respect of the period from 1st April 1990 to
31st March 1991 payable in 12 equal monthly installments subject
to adjustment in accordance with the Charging Rules based upon a
charge of (pound)........ per KW Registered Capacity and .... KW
being the Registered Capacity as set out in Appendix C.
C. Energy Related
(pound)....... per KWh in respect of each KWh of Energy entering
the Total System in the period from 31st March 1990 to 31st March
1991 payable as described in Clause 14 of the Master Agreement.
Payment shall be made in accordance with Clause 14 of the Master
Agreement.
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APPENDIX E CHARGING RULES
-------------------------
Part 1 - Transmission Network Use of System Charges and Connection Charges
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Introduction
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Under the terms of this Supplemental Agreement the User is liable to pay
Transmission Network Use of System Charges based upon the Registered
Capacity of Generating Units passing Active Power on to and/or the Demand
taken from the NGC Transmission System and Connection Charges. The basis
upon which Transmission Network Use of System Charges and Connection
Charges are levied according to a User's particular circumstances are set
out in the statement issued by NGC under paragraphs 1.2 and 3 of Condition
10 to the Transmission Licence.
1.1 Data Requirements
-----------------
1.1.1 On or before a date not later than 10 Business Days after
the confirmation of the basis of calculation of charges pursuant to
paragraph 2.1 in each Financial Year the User shall supply NGC with
such data as NGC may from time to time reasonably request pursuant to
paragraph 2.1 to enable NGC to calculate the Connection Charges and/or
Transmission Network Use of System Charges due from the User to NGC or
from NGC to the User (as the case may be) in respect of the Connection
Site including the data specified in Appendix C.
1.1.2 On or before a date not later than 10 Business Days after
the confirmation of the basis of calculation of charges pursuant to
paragraph 2.1 in each Financial Year, Users:
(a) who are owners or operators of a User System shall provide
to NGC a forecast for the following Financial Year of the
Natural Demand attributable to each Grid Supply Point equal
to the forecasts of Natural Demand under both Annual Average
Cold Spell (ACS) Conditions and a forecast of the average
metered Demand attributable to such Grid Supply Point (or
such other forecast as may be notified by NGC to the User
pursuant to paragraph 2.1) for each of a number of peak
half-hours as notified by NGC to the User under paragraph
2.1.
(b) who are Suppliers shall provide to NGC a forecast for the
following Financial Year of its metered Demand attributable
to each Transmission Network Use of System Demand Zone equal
to the average of the forecasts of Demand attributable to
such Transmission Network Use of System Demand Zone or such
other forecast as may be notified by NGC to the User
pursuant to paragraph 2.1) for each of a number of peak
half-hours notified by NGC to the User under paragraph 2.1.
(c) who are Generators shall provide to NGC a forecast for the
following Financial Year of-
(i) the metered Station Demand (Active Power) attributable
to the Power Station for the Generating Units comprised
therein equal to the average of the forecasts of such
Station Demand (Active Power) (or such other forecast
as may be notified by NGC to the User pursuant to
paragraph 2.1) attributable to the sum of the
Generating Units for each of a number of peak half-
hours as notified by NGC to the User under paragraph
2.1;
(ii) the highest Registered Capacity to be declared pursuant
to the terms of the Pooling and Settlement Agreement of
each Generating Unit comprised within a Power Station
for the period as notified by NGC to the User under
paragraph 2.1;
(d) who are Generators and whose Equipment is comprised within a
Trading Site (as such term is defined in the Pooling and
Settlement Agreement) shall supply to NGC a forecast for the
following Financial Year of:-
(i) the highest Registered Capacity declared pursuant to
the terms of the Pooling and Settlement Agreement of
each Generating Unit comprised within a Power Station
which forms part of such Trading Site; and
(ii) the average Demand within the Trading Site (other than
Station Demand) to be supplied by the Power Station in
(i) above for each of the number of peak half hours
notified by the User to NGC pursuant to paragraph 2.1;
(iii) the Station Demand for the Power Station within
the Trading Site determined in accordance with
paragraph 1.1.2(c)(i);
for the period as notified by NGC to the User under paragraph 2.1 and
NGC shall use such forecasts as the basis of Transmission Network Use
of System Charges for such Financial Year.
1.1.3 Variation of Charges by NGC during the Financial Year
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The User shall notify NGC of any revision to the forecast Demand
submitted by the User under paragraph 1.1 of this Appendix E at least
quarterly or at such other intervals as may be agreed between NGC and
the User from time to time. NGC shall revise the Transmission Network
Use of System Charges payable by the User to take account of any such
revised forecast provided in accordance with this paragraph 1.1.3.
NGC shall commence charging the varied Transmission Network Use of
System Charges from the first day of the month following the month in
which such revised forecast was received provided always that such
forecast is provided before 15th day of such month.
1.2 Reconciliation Statements
-------------------------
Initial Reconciliation Statements
---------------------------------
1.2.1 On or before 1 March in each Financial Year NGC shall
promptly calculate on the basis set out in the statement published by
NGC in accordance with Licence Condition 10 of the Transmission
Licence the Demand related or Generation related Transmission Network
Use of System Charges (as the case may be) that would have been
payable by the User during each month during that Financial Year if
those charges had been calculated on the basis of the actual Demand
data or the User's highest declared Registered Capacity recorded
during the Financial Year in respect of the forecasts which had
previously been provided by the User in accordance with paragraph 1.1
(the "Actual Amount"). NGC shall then compare the Actual Amount with
the amount of Demand related or Generation related Transmission
Network Use of System Charges (as the case may be) paid during each
month during that Financial Year by the User (the "Notional Amount").
1.2.2 As soon as reasonably practicable and in any event by 1st
March in each Financial Year NGC shall then prepare an initial
reconciliation statement and send it to the User. Such statement
shall specify the Actual Amount and the Notional Amount for each month
during the relevant Financial Year and, in reasonable detail, the
information from which such amounts were derived and the manner in
which they were calculated.
1.2.3 Together with the initial reconciliation statement NGC shall
issue a credit note in relation to any sum shown by the reconciliation
statement to be due to the User or an invoice in respect of sums due
to NGC and in each case interest thereon calculated pursuant to
paragraph 1.2.5 below.
1.2.4 Invoices issued under paragraph 1.2.3 above and 1.2.5 below
shall be payable on or before 31st March in the Financial Year to
which they relate.
1.2.5 In respect of the Financial Year-
(a) the User shall, following receipt of an appropriate invoice,
pay to NGC an amount equal to the amount (if any) by which the
aggregate Actual Amount exceeds the aggregate Notional Amount;
and
(b) NGC shall issue the User with a credit note for an amount
equal to the amount (if any) by which the aggregate Notional
Amount exceeds the aggregate Actual Amount.
Interest shall be payable by the paying Party to the other on such
amounts from the date of payment applicable to the month concerned
until the date of actual payment of such amounts and such interest
shall be calculated on a daily basis at a rate equal to the Base Rate
during such period.
Final Reconciliation Statements
-------------------------------
1.2.6 (a) NGC shall as soon as reasonably practicable after the
end of each Financial Year issue a further reconciliation
statement in respect of Transmission Network Use of System
Charges payable in respect of each month of that Financial
Year showing:-
(i) any change in the Transmission Network Use of System
Charges from those specified in the initial
reconciliation statement provided in accordance with
paragraph 1.2.1 above;
(ii) whether the change represents a reconciliation payment
owing by NGC to a User or by a User to NGC;
(iii) the amount of interest determined in accordance
with 1.2.5 above:
(iv) the information from which the amounts in (i) above are
derived and the manner of their calculation.
(b) The provisions of paragraphs 1.2.3 and 1.2.5 shall apply
mutatis mutandis to sums specified in the Final
Reconciliation Statement.
2. Revision of Charges
-------------------
2.1 To the extent permitted by the Transmission License and this
Agreement NGC may revise its Connection Charges and Transmission
Network Use of System Charges or the basis of their calculation
including issuing revisions to Appendices A, B, C and D (or D1 if
appropriate) hereto. On or before 31st October in each Financial
Year NGC shall notify the User in writing of the intended basis
of calculation to be used by NGC in the following Financial Year
together with time periods over which the data required to be
provided pursuant to paragraph 1 of this Appendix E is required
and shall consult with the User concerning the same. On or
before 30th November in each Financial Year NGC shall confirm to
the User the basis of calculation to be used in the following
Financial Year.
2.2 NGC shall give the User not less than 2 months prior written
notice of any revised charges including revisions to Appendices
A, B, C and D (or D1 if appropriate) hereto, which notice shall
specify the date upon which such revisions become effective
(which may be at any time). The User shall pay any such revised
charges and Appendix A, B, C, D (and/or D1 as appropriate) shall
be amended automatically (and a copy sent to the User) to reflect
any changes to such Appendices with effect from the date
specified in such notice.
2.3 Subject to the provisions of paragraph 3.2 below if in the
reasonable opinion of NGC any development replacement,
renovation, alteration, construction or other work to the NGC
Transmission System or termination on of a Supplemental Agreement
by another User or an alteration to the requirements of the User
or any other User means that to ensure that NGC is charging in
accordance with the provisions of the Statement pursuant to
Condition 10 of the Transmission Licence NGC needs to vary the
Connection Charges payable by the User in relation to the
Connection Site then NGC shall have the right to vary such
charges accordingly upon giving to the User not less than 2
months prior written notice. Such notice shall be deemed to be a
revised Connection Offer and before any such variation becomes
effective the provisions of Sub-Clauses 11.3 to 11.4 of the
Master Agreement shall apply mutatis mutandis. Following any
such variation the provisions of Appendices A and B shall be
amended automatically (and a copy sent to the User) to reflect
such variation with effect from the date such variation comes
into effect.
3. Replacement of NGC Assets
-------------------------
3.1 Appendix A specifies the age of each of the NGC Assets at the
Connection Site at the date of this Supplemental Agreement. NGC
Connection Charges are calculated on the assumption that NGC Assets
will not require replacement until the expiry of the Replacement
Period applicable to each NGC Asset concerned and such period has been
agreed between NGC and the User.
3.2 Where in NGC's reasonable opinion an NGC Asset require
replacement before the expiry of its Replacement Period NGC shall,
with the prior written approval of the User (except where in NGC's
reasonable opinion such replacement is necessary in which case such
approval shall not be required but in such case the User shall have
the right to Disconnect) have the night to replace the NGC Asset at no
additional cost to the User until expiry of its original Replacement
Period. Upon expiry of such original Replacement Period NGC shall be
entitled to vary the Connection Charges in respect of the replaced NGC
Asset so that they are calculated on the basis of the then Net Asset
Value of such NGC Assets. NGC shall give the User not less than 2
months prior written notice of such varied charges which notice shall
specify the date upon which such increase or reduction (as the case
may be) becomes effective. The User shall pay such varied charges and
Appendices A and B shall be amended automatically (and a copy sent to
the User) to reflect such revised charges with effect from the date
specified in such notice.
3.3 Upon the expiry of the Replacement Period of any NGC Asset-
(a) (i) if in NGC's reasonable opinion to enable NGC to comply
with its licence and statutory obligations it is
necessary to replace such NGC Asset; or
(ii) if such NGC Asset is to be left in service
then NGC shall give written notice of this and that it will,
unless within 3 months of the receipt of such notice the User
objects in writing to the proposal, replace or retain (as the
case may be) such NGC Asset.
(b) the User may request that NGC replaces the Asset.
3.4 Where the User serves a counter notice pursuant to paragraph 3.3
above then NGC shall:-
(a) keep the NGC Asset in service; and
(b) negotiate with the User in good faith with regard to the
Connection Charges applicable to such NGC Asset.
In the event that NGC and the User fail to agree the level of such
Connection Charges in accordance with paragraph 3.4(b) above then the
User shall pay Connection Charges to NGC in respect of such NGC Asset
equal to the Connection Charges payable by the User in respect of the
NGC Asset in the last Financial Year of the Replacement Period (the
"Deemed Charge") and the matter shall be referred to the Director for
determination. If the Director determines that the Connection Charges
payable in respect of such NGC Asset should be:-
(i) less than the Deemed Charge then NGC shall repay to the
User the difference between the Deemed Charge and the amount
so determined by the Director together with interest at the
Base Rate, for the period from when the User started to pay
the Deemed Charge until the date of payment;
(ii) greater than the Deemed Charge then the User shall pay
the difference to NGC together with interest at the Base
Rate for the period from when the User started to pay the
Deemed Charge until the date of payment.
3.5 Where the Connection Charges are payable in respect of NGC
Assets:
(a) replaced in accordance with paragraph 3.3 above; or
(b) retained in accordance with paragraph 3.3 above; then
NGC shall except in the circumstances in paragraph 3.4(b) give the
User not less than 2 months prior written notice of such varied
charges and specify the date upon which such charges become
effective. The User shall pay such varied charges and Appendices A
and B shall be amended automatically (and a copy sent to the User) to
reflect such revised charges with effect from the dates notified to
the User by NGC. Where NGC is in negotiation with the User in
accordance with paragraph 3.4(b) then it shall give such notice as is
reasonable practicable in the circumstances.
4. Termination Amounts
-------------------
4.1 The expressions set out below shall have the meanings shown:-
"Termination Amount" shall be the sum calculated to be equal to
the aggregate of the following:-
(a) in respect of NGC Assets:-
(i) shown in Appendix A to the Supplemental
Agreement and which, in NGC's reasonable
opinion are no longer required by NGC to
enable NGC to comply with its Licence
Standards, and can therefore be removed
("Type A Assets"), (aa) the Net Asset
Value of such NGC Asset as at the end of
the Financial Year in which termination
occurs (on the assumption that the sums
specified in paragraph 4.1(b) will be
paid), plus (bb) a sum equal to the
reasonable costs of removing such NGC
Assets and of making good the remaining
Plant and Apparatus at the Connection
Site following the removal of any Type A
Assets;
(ii) in Appendix A to the Supplemental
Agreement and which in NGC's reasonable
opinion cannot be removed ("Type B
Assets") as a result of the termination,
a sum equal to the product of the Asset
Allocation Factor multiplied by the Net
Asset Value of that NGC Asset as at the
end of the Financial Year in which
termination occurs; and
(iii) in relation to NGC Assets
(aa) which NGC has determined to replace
upon the expiry of the relevant
Replacement Period in accordance
with paragraph 3.3; and
(bb) in respect of which no counter
notice has been served by the User
pursuant to paragraph 3.3; and
(cc) the User has served in accordance
with the provisions of this
Supplemental Agreement a notice to
Disconnect in respect of the
Connection Site at which the NGC
Assets were located; and
(dd) due to the timing of the
replacement of such NGC Assets, no
Connection Charges will have become
payable in respect of such NGC
Assets by the User by the date of
termination;
the reasonable costs incurred by NGC in
connection with the installation of such
NGC Assets.
(b) the Connection Charges and Use of System
Charges for the Financial Year in which
termination occurs.
"Asset Allocation Factor" means in respect of each NGC Asset
specified in Appendix A to this
Supplemental Agreement the figure
expensed as a percentage applying in the
column headed Allocation and immediately
adjacent to the description of the NGC
Asset to which it relates.
4.2 In the event that a Termination Amount specified in paragraph
4.1(a)(i) is paid, in respect of Type A Assets, and subsequently NGC
re-uses such NGC Assets in respect of which such payment has been made
at the same or another Connection Site then NGC shall pay to the User
a sum equal to the lower of -
(i) the Termination Amount paid in respect of such NGC Asset; or
(ii) the Net Asset Value attributed to such NGC Asset for charging
purposes upon its re-use;
less any reasonable costs incurred by NGC in respect of storage. NGC
shall use its reasonable endeavours to re-use such NGC Assets.
4.3 In the event that a Termination Amount specified in paragraph
4.1(a)(ii) above is paid in respect of Type B Assets and these are
subsequently re-used then NGC shall pay to the User a sum equal to the
lower of:
(i) the Termination Amount paid in respect of such NGC Assets; or
(ii) the Net Asset Value attributed to such NGC Asset for charging
purposes upon its re-use.
4.4 For the purposes of paragraphs 4.2 and 4.3 re-use shall not occur
where any NGC Asset remains connected for the purpose of providing a
continuing connection for other Users connected to the NGC
Transmission System at the Connection Site at the date of
termination. However in the event of any User requiring a continued
connection modifying its requirements or another User connecting at
the Connection Site and the NGC Assets in respect of which a payment
has been made are required for this modification this shall constitute
re-use.
4.5 NGC shall be under no obligation to rebate any of the Termination
Amounts described in paragraph 4.1(b) except to the extent that
Connection and/or Transmission Network Use of System Charges are
subsequently received in respect of NGC Assets in relation to which
such Termination Amounts have been paid to NGC during the Financial
Year in which termination has occurred.
4.6 Upon request in writing, and at the cost of the User, NGC shall
issue a certificate no more frequently than once each calendar year
indicating whether or not such assets have or have not been re-used.
If NGC at any time decide that it is not economic to retain any Plant
and Apparatus constituting any NGC Asset in respect of which
Termination Amounts have been paid it may at its reasonable discretion
dispose of the said Plant and Apparatus. Where NGC decides to so
dispose of such Plant and Apparatus it shall where the Plant and/or
Apparatus is disposed of in a state where it is capable of re-use pay
to the User an appropriate proportion of any sale proceeds received in
respect thereof.
5. Deductions
----------
In respect of any NGC Engineering Charges which have been paid by the
User in connection with a Connection Application or under Sub-Clause
2.4 of the Supplemental Agreement Type 2 NGC shall reduce the amount
of Connection Charges payable by the User in relation to the
respective Connection Site on 1 April in each of the first 3 years (or
such other period as may be agreed between NGC and the User) of the
payment of such Connection Charges by an amount equal on each occasion
to one third of such NGC Engineering Charges.
Part 2 - Transmission Services Use of System Charges
----------------------------------------------------
Introduction
------------
Under the terms of this Supplemental Agreement the User is liable to pay
Transmission Services Use of System Charges. The basis upon which
Transmission Services Use of System Charges are levied and the calculation
methodology and rules which will be used to quantify those charges are set
out in the statement issued by NGC under paragraphs 1 and 2 of Condition 10
to the Transmission Licence.
1. Reconciliation
--------------
1.1 At any time after the Payment Date NGC may submit to the User,
and shall submit to the User at the written request of the User, a
Statement (which may form part of an invoice or other document) in
respect of any Settlement Day (a "Reconciliation Statement") showing:-
(a) each Settlement Day in respect of which there has been a
change (for any reason) in the value of any parameter
originally used in the calculation of the Transmission Use
of System Charges in respect of such Settlement Day,
together with details of the value of the old and new
parameter;
(b) the amount of any reconciliation payments (if any) required
to make theTransmission Services Use of System Charges paid
in respect of that Settlement Day equal to the payment which
would have been payable had the invoice prepared pursuant to
Clause 5.4.1 of this Supplemental Agreement been prepared on
the basis of the changed parameter;
(c) whether the reconciliation payment represents an amount
owing by NGC to the User or by the User to NGC;
(d) the amount of interest accruing on such reconciliation
payment calculated in accordance with this paragraph 1.1
below.
Interest payable in respect of any reconciliation payment shall
accrue from and including the relevant Payment Date up to but
excluding the date upon which the amounts specified in the
Reconciliation Statement are paid, and shall be at a rate equal
to the Base Rate for the time being and from time to time.
Interest shall accrue from day to day.
1.2 Together with the Reconciliation Statement in the case of sums
due:-
(a) from the User to NGC, NGC shall:-
(i) send the User an invoice in relation to any sums shown by
the Reconciliation Statement to be due to NGC and interest
thereon calculated in accordance with paragraph 1.1; or
(ii) include those sums due in another invoice; and
(b) from NGC to the User, forthwith following the issue of any
Reconciliation Statement, NGC shall:-
(i) issue a credit note in relation to any sum shown by the
Reconciliation Statement to be due to the User and interest
thereon calculated in accordance with paragraph 1.1; or
(ii) include those sums due to the User as a credit in an invoice
from NGC to the User.
1.3 The right to submit a Reconciliation Statement and the
consequential invoices and/or credit notes shall survive the
termination of this Supplemental Agreement and the parties agree that
the provisions of this Appendix E Part 2 shall remain in full force
and effect and shall continue to bind them after such termination (the
version in existence as at the date of termination being the
applicable version, in the case of any amendments).
2. Reconciliation Payments
-----------------------
The User, or as the case may be, NGC, shall pay the amounts set out in
the relevant invoice or credit note. either in accordance with the
applicable requirements for payment of other sums due under that
invoice in the case of sums shown in an invoice also dealing with
other payments, or in other cases within 5 Business Days of the date
of the Reconciliation Statement.
3. Revision of Charges
-------------------
On or before 31 October in each Financial Year NGC shall notify the
User in writing of the intended basis of calculation to be used by NGC
in calculating Transmission Services Use of System Charges for the
following Financial Year and shall consult the User concerning the
same. On or before 30 November in each Financial Year NGC shall
confirm to the User the basis of calculation to be used in calculating
those charges for the Following Financial Year.
Part 3
------
1. Transmission Services Use of System Charges Security Cover
----------------------------------------------------------
1.1 Provision of Security Cover
---------------------------
The User shall provide Security Cover from time to time in accordance
with the following provisions:-
1.1.1 the User shall not later than the date of its accession to
the Master Agreement or 1st April 1997 (whichever is later)
deliver to NGC evidence reasonably satisfactory to it that:-
(i) it presently holds an Approved Credit Rating; or
(ii) it has provided and is not in default under the Security
Cover referred to in paragraph 1.1.1 below:
1.1.2 if the User does not hold or ceases to hold an Approved
Credit Rating it shall, not later than the date of -
(i) the date of its accession to the Master Agreement;
(ii) the 1st April 1997; or
(iii) the date upon which it ceases to have an Approved
Credit Rating -
(a) deliver to NGC a Qualifying Guarantee in such amount as
shall be notified by NGC to the User in accordance with
paragraph 2, or
(b) deliver to NGC a Letter of Credit (available for an
initial period of not less than 6 months) in such
amount as shall be notified by NGC to the User in
accordance with paragraph 2, and/or
(c) deliver to NGC cash for credit to the Escrow Account in
such amount as shall be notified by NGC in accordance
with paragraph 2.
1.1.3 The provision of security in respect of Transmission
Services Use of System Charges by the User In accordance
with the terms of:
(a) this Supplemental Agreement shall relieve it of its
obligations to provide such security under the term of any
other Supplemental Agreement to which the User is a party;
and
(b) any other Supplemental Agreement to which the User is a
party shall relieve it of its obligations to provide such
security under the terms of this Supplemental Agreement;
in each case, to the extent of the security provided to NGC
pursuant to this Appendix or the same provision under the terms
of any other Supplemental Agreement made between NGC and the
User.
1.1.4 The provisions of this Part 3 of Appendix E shall be in
addition to any other requirements to provide security in
respect of any other sums due under the terms of this
Supplemental Agreement.
1.2 Maintenance of Security Cover
-----------------------------
Where the User is required to provide Security Cover in accordance
with the terms of paragraph 1.1 it shall at all times thereafter
maintain a Security Amount equal to or more than the Security Cover
applicable to it immediately upon any reduction occurring in the
Security Amount provided by the User or any Letter of Credit or
Qualifying Guarantee being for any reason drawn down or demanded
respectively, the User will procure that new Letters of Credit or
Qualifying Guarantees are issued or existing Letters of Credit or
Qualifying Guarantees are reinstated (to the satisfaction of NGC) to
their full value or cash is placed to the credit of the Escrow Account
in an amount required to restore the Security Amount to an amount at
least equal to the Security Cover applicable to the User, and in such
proportions of Letters of Credit, Qualifying Guarantees and/or cash as
the User may determine. Not later than 10 Business Days before any
outstanding Letter of Credit and/or Qualifying Guarantee is due to
expire, the User shall procure to the satisfaction of NGC that its
required Security Amount will be available for a further period of not
less than 6 months which may be done in one of the following ways -
1.2.1 subject to the issuing bank continuing to have an Approved
Credit Rating provide NGC with confirmation from the issuing
bank that the validity of the Letter of Credit has been
extended for a period of not less than 6 months on the same
terms and otherwise for such amount as is required by this
Part 3; or
1.2.2 provide NGC with a new Letter of Credit issued by an issuing
bank with an Approved Credit Rating for an amount at least
equal to the required Security Amount applicable to it (less
its balance on the Escrow Account) which Letter of Credit
shall be available for a period of not less than 6 months;
or
1.2.3 subject to the entity issuing the Qualifying Guarantee
continuing to have an Approved Credit Rating provide NGC
with confirmation from the issuing entity that the validity
of the Qualifying Guarantee has been extended for a period
of not less than 6 months on the same terms and otherwise
for such amount as is required by this Part 3; or
1.2.4 provide NGC with a new Qualifying Guarantee for an amount at
least equal to the required Security Amount applicable to it
(less its balance on the Escrow Account) which Qualifying
Guarantee shall be available for a period of not less than 6
months; or
1.2.5 procure such transfer to NGC for credit to the Escrow
Account of an amount as shall ensure that the credit balance
applicable to the User and standing to the credit of the
Escrow Account shall be at least equal to the required
Security Amount.
1.3 Failure to Supply or Maintain Security Cover
--------------------------------------------
If the User fails at any time to provide or maintain Security Cover to
the satisfaction of NGC in accordance with the provisions of this Part
3, NGC may at any time while such default continues, and if at such
time any Letter of Credit and/or Qualifying Guarantee forming part of
the Security Cover is due to expire within nine Business Days
immediately, and without notice to the User, demand payment of the
entire amount of any outstanding Letter of Credit and/or Qualifying
Guarantee and shall credit the proceeds of the Letter of Credit and/or
Qualifying Guarantee to the Escrow Account.
1.4 Substitute Letter of Credit or Qualifying Guarantee
---------------------------------------------------
1.4.1 If the bank issuing the User's Letter of Credit ceases to
have the credit rating set out in the definition of Letter
of Credit in Clause 1.1 of this Supplemental Agreement such
User shall forthwith procure the issue of a substitute
Letter of Credit by a bank that has such a credit rating or
a Qualifying Guarantee or transfer to NGC cash to be
credited to the Escrow Account.
1.4.2 If the entity providing the User's Qualifying Guarantee
ceases to have an Approved Credit Rating the User shall
forthwith procure a replacement Qualifying Guarantee from an
entity with such a credit rating or a Letter of Credit or
transfer to NGC cash to be credited to the Escrow Account.
2. Credit Monitoring
-----------------
2.1 Determination of Security Cover
-------------------------------
The amount of Security Cover which the User shall be required to
maintain shall be determined from time to time by NGC in accordance
with this Part 3 on the basis of the criteria set out in paragraph 2.2
and shall be notified to the User.
2.2 Criteria for Provision of Security Cover
----------------------------------------
If paragraph 1.1.2 applies, the amount of Security Cover required to
be provided by the User in respect of this and any other Supplemental
Agreement to which the User is a party shall be provided in an amount
to be reasonably assessed by NGC as the aggregate amount reasonably
anticipated by NGC as being payable by the User pursuant to all
Supplemental Agreements to which the User is a party in respect of the
Transmission Services Use of System Charges referred to in Part 2 of
Appendix D over a 28 day period.
2.3 Six Monthly Variation
---------------------
In respect of paragraph 2.2 NGC shall calculate the amount for the two
six-month periods commencing 1st April and 1st October in each year
and shall advise the User accordingly.
2.4 Review of Security Cover
------------------------
NGC shall keep under review the Security Cover relating to the User
and shall promptly advise the User whenever the Security Amount
maintained by the User is more or less than the amount required to be
maintained pursuant to paragraph 2 of this Part 3.
2.5 Increase or Decrease of Security Cover
--------------------------------------
If after considering any representations which may be made by the
User, NGC reasonably determines that the User's Security Cover should
be increased or decreased, it shall so notify the User. If NGC so
determines that such Security Cover should be decreased and the User
consents then that reduction shall take place. NGC shall consent to
an appropriate reduction in the available amount of any outstanding
Qualifying Guarantee or Letter of Credit and/or shall repay to the
User such part of the deposit held in the Escrow Account for the
account of the User (together with all accrued interest on the part to
be repaid) sufficient to reduce the User's Security Amount to he level
of Security Cover applicable to it. If NGC so determines that the
User's Security Cover should be increased, the User shall, within five
Business Days of notice as aforesaid, procure an additional or
replacement Qualifying Guarantee or Letter of Credit or transfer to
NGC cash to be credited to the Escrow 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.
2.6 Notification in respect of Security Cover
-----------------------------------------
NGC shall notify the User promptly if:-
2.6.1 the User fails to provide, maintain, extend or renew a
Qualifying Guarantee or a Letter of Credit which it is
required to provide, maintain, extend or renew pursuant to
paragraphs 1 or 2;
2.6.2 NGC shall make a demand under any such Qualifying Guarantee
or a call under a Letter of Credit; or
2.6.3 NGC becomes aware that the User (a) shall cease to have an
Approved Credit 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
User retaining an Approved Credit Rating, or (c) shall be in
default under the additional or alternative security
required to be provided pursuant to this Part 3; or
2.6.4 NGC becomes aware that any bank that has issued a Letter of
Credit which has not expired shall cease to have the credit
rating required by this Appendix; or
2.6.5 NGC becomes aware that any entity providing a Qualifying
Guarantee which has not expired shall cease to have an
Approved Credit Rating.
Provided always that the failure by NGC to notify the User pursuant to
this paragraph 2.6 shall not relieve the User of its obligations under
and in accordance with the terms of this Appendix.
2.7 Release from Security Cover Obligations
---------------------------------------
Upon the User ceasing to be a party to the Master Agreement and
provided that all amounts owed by the User in respect of the
Transmission Services Use of System Charges have been duly and finally
paid and that it is not otherwise in default in any respect of any
Transmission Services Use of System Charges (including interest)
payable under the terms of any Supplemental Agreement, the User shall
be released from the obligation to maintain Security Cover and NGC
shall consent to the revocation of any outstanding Qualifying
Guarantee or Letter of Credit and shall repay to the User the balance
(including interest credited thereto) standing to the credit of the
User on the Escrow Account at that date.
3. Payment Default
---------------
If, by 1230 hours on any Payment Date, NGC has been notified by the
User or it otherwise has reason to believe that the User will not have
remitted to it by close of banking business on the Payment Date all or
any part ("the amount in default") of any amount which has been
notified by NGC to the User as being payable by the User by way of the
Transmission Services Use of System Charges on the relevant Payment
Date, then NGC shall be entitled to act in accordance with the
following provisions (or whichever of them shall apply) in the order
in which they appear until NGC is satisfied that the User has
discharged its obligations in respect of the Transmission Services Use
of System Charges under this Supplemental Agreement and/or any other
Supplemental Agreement to which the User is a party which are payable
in respect of the relevant Settlement Day:-
(a) NGC may to the extent that the User is entitled to receive
payment from NGC pursuant to this Supplemental Agreement and/or
any other Supplemental Agreement to which the User is a party
(unless it reasonably believes that such set-off shall be
unlawful) set off the amount of such entitlement against the
amount in default;
(b) NGC shall be entitled to set off the amount of funds then
standing to the credit of the Escrow Account to the extent that
it represents Security Cover provided by the User in accordance
with paragraph 2.1.2 against the Transmission Services Use of
System Charges unpaid by the User and for that purpose NGC shall
be entitled to transfer any such amount from the Escrow Account
to any other account of NGC at its absolute discretion and shall
notify the User accordingly;
(c) NGC may demand payment under any outstanding Letter of Credit
supplied by the User in a sum not exceeding the available amount
of all such Letters of Credit;
(d) NGC may demand payment under any outstanding Qualifying Guarantee
provided for the benefit of the User pursuant to paragraph
1.1.2(a).
4. Utilisation of Funds
--------------------
ln addition to the provisions of paragraph 3 above if NGC serves a
notice of default under the terms of Clause 17.6A of a Type 1
Supplemental Agreement and/or notice of termination under Clause 17.7
of a Type 1 Supplemental Agreement (or the equivalent Clauses in a
Supplemental Agreement other than a Type 1 Supplemental Agreement)
then NGC shall be entitled to demand payment of any of the
Transmission Services Use of System Charges which are outstanding
whether or not the Payment Date in respect of them shall have passed
and:-
(i) make demand under any outstanding Qualifying Guarantee or a call
under any outstanding Letter of Credit supplied by the User; and
(ii) to set off the funds in the Escrow Account to the extent that
they represent Security Cover provided by the User against the
Transmission Services Use of System Charges unpaid by the User
and for that purpose NGC shall be entitled to transfer any such
amount from the Escrow Account to any other account of NGC as it
shall in its sole discretion think fit.
5. User's Right to Withdraw Funds
------------------------------
5.1 If the User is not in default in respect of any amount owed to NGC in
respect of the Transmission Services Use of System Charges under the
terms of any Supplemental Agreement to which the User is a party:-
5.1.1 NGC shall transfer to the User quarterly interest credited
to the Escrow Account; and
5.1.2 NGC shall transfer to such User within a reasonable time
after such User's written request therefor any amount of
cash provided by the User by way of Security Cover which
exceeds the amount which such User is required to provide by
way of security in accordance with paragraph 1 of this Part
3.
Part 4
------
Definitions and Interpretations
-------------------------------
In this Appendix the following expression shall have the meaning set out
below:
"Base Rate" in respect of any day the rate per annum which is
equal to the base lending rate of Barclays Bank
PLC as at close of business on that day;
Interpretation
--------------
Where this Appendix makes reference to the word "paragraph" then it shall
be a reference to a paragraph in this Appendix unless the contrary is
stated.
<PAGE>
APPENDIX F1
-----------
SITE SPECIFIC TECHNICAL CONDITIONS
-----------------------------------
Metering
--------
1.1 Operator
--------
Where the Connection Site is a Grid Supply Point, and the User is or
will be Registrant in relation to the Energy Metering Equipment
required by the Pooling and Settlement Agreement at the Grid Supply
Point and/or at the bulk supply point(s) which are related to that
Grid Supply Point, NGC shall install and be the Operator of all such
Energy Metering Equipment from the Transfer Date until the FMS Date
and thereafter:-
1.1.1 NGC may resign as Operator of such Energy Metering Equipment
on giving no less than 12 months' notice in writing; and
1.1.2 the User may remove NGC as Operator upon giving no less than
12 months' notice in writing.
Provided that where the User agrees to become owner of any such Energy
Metering Equipment NGC may resign as Operator upon such transfer of
ownership and shall agree such terms as shall be reasonably necessary
to enable the User to perform its obligations as Operator of such
Energy Metering Equipment.
1.2 Charges
-------
NGC shall recover its charges for acting as Operator of any Energy
Metering System which is an NGC Asset charged for under this
Supplemental Agreement as part of such charges. Where NGC acts as
Operator of any other Energy Metering System owned by NGC for which
the User is Registrant NGC shall charge and the User shall pay such
amount which is reasonable in all the circumstances.
1.3 Interference
------------
The User shall ensure that its employees, agents and invitees will not
interfere with any Energy Metering Equipment in respect of which NGC
is Operator or the connections to such Energy Metering Equipment,
without the prior written consent of NGC (except to the extent that
emergency action has to be taken to protect the health and safety of
persons or to prevent serious damage to property proximate to the
Energy Metering Equipment or to the extent that such action is
authorised under the Master Agreement or any other agreement between
NGC and the User).
1.4 Pulse data
----------
The User shall have the right to collect and record pulses from the
meters comprised in the Energy Metering System(s) at the Connection
Site. NGC shall give the User access in accordance with the Interface
Agreement to collect and record such pulses and to install and
maintain such lines and equipment as may be reasonably necessary
therefor.
Exhibit 10(j)
DATED 27th JUNE 1996
NATIONAL POWER PLC
-to-
EASTERN MERCHANT PROPERTIES LIMITED
-and-
EASTERN GROUP PLC
LEASE
- of -
land and premises known as
West Burton, Ironbridge and Rugeley B Power Stations
----------------------------------
TERM COMMENCES: 27th June 1996
FOR YEARS: 99
EXPIRES: 26th June 2095
----------------------------------
LINKLATERS & PAINES
Barrington House
59-67 Gresham Street
London EC2V 7JA
Tel: 0171-606 7080
Ref: DMP/NWYR
<PAGE>
CONTENTS
CLAUSE HEADING
PAGE
1 Definitions . . . . . . . . . . . . . . . . . . . . . . 1
2 Demise and Rents . . . . . . . . . . . . . . . . . . . . 6
3 Tenant's Covenants . . . . . . . . . . . . . . . . . . . 6
3.1 To pay rent . . . . . . . . . . . . . . . . . . . . . . 6
3.2 To pay the Premium . . . . . . . . . . . . . . . . . . 7
3.3 To pay interest on overdue monies . . . . . . . . . . . 7
3.4 To pay outgoings . . . . . . . . . . . . . . . . . . . 7
3.5 To pay share of cost of common facilities . . . . . . . 7
3.6 To repair . . . . . . . . . . . . . . . . . . . . . . . 8
3.7 To comply with notices to repair . . . . . . . . . . . 8
3.8 To permit entry . . . . . . . . . . . . . . . . . . . . 8
3.9 Insurers' requirements . . . . . . . . . . . . . . . . 9
3.10 User . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.11 Not to make claims . . . . . . . . . . . . . . . . . . 10
3.12 Alienation . . . . . . . . . . . . . . . . . . . . . . 10
3.13 Registration . . . . . . . . . . . . . . . . . . . . . 12
3.14 Not to make alterations . . . . . . . . . . . . . . . . 13
3.15 To pay Landlord's costs . . . . . . . . . . . . . . . . 13
3.16 To observe statutory requirements . . . . . . . . . . . 13
3.17 Planning . . . . . . . . . . . . . . . . . . . . . . . 14
3.18 To inform Landlord of notices . . . . . . . . . . . . . 14
i
<PAGE>
3.19 To inform Landlord of contaminants and defects
and to indemnify . . . . . . . . . . . . . . . . . . . 14
3.20 Applications for consent . . . . . . . . . . . . . . . 15
3.21 To observe covenants . . . . . . . . . . . . . . . . . 15
3.22 Yielding up . . . . . . . . . . . . . . . . . . . . . . 15
3.23 To pay VAT . . . . . . . . . . . . . . . . . . . . . . 16
3.24 Reimbursement of VAT . . . . . . . . . . . . . . . . . 16
3.25 To insure . . . . . . . . . . . . . . . . . . . . . . 16
3.26 To indemnify the Landlord . . . . . . . . . . . . . . . 21
3.27 Waiver . . . . . . . . . . . . . . . . . . . . . . . . 23
3.28 Continuance . . . . . . . . . . . . . . . . . . . . . . 23
3.29 Premium Payments . . . . . . . . . . . . . . . . . . . 24
4 Landlord's Covenants . . . . . . . . . . . . . . . . . . 23
4.1 Quiet enjoyment . . . . . . . . . . . . . . . . . . . . 24
4.2 To pay out insurance proceeds . . . . . . . . . . . . . 24
4.3 Premium Payments . . . . . . . . . . . . . . . . . . . 24
5 Provisos . . . . . . . . . . . . . . . . . . . . . . . . 25
5.1 Forfeiture . . . . . . . . . . . . . . . . . . . . . . 25
5.2 No implied easements . . . . . . . . . . . . . . . . . 26
5.3 No restrictions on adjoining property . . . . . . . . . 26
5.4 No compensation . . . . . . . . . . . . . . . . . . . . 27
5.5 Cesser of rent . . . . . . . . . . . . . . . . . . . . 27
ii
<PAGE>
5.6 Notices . . . . . . . . . . . . . . . . . . . . . . . . 27
5.7 Exclusion of S.62 LPA . . . . . . . . . . . . . . . . . 29
5.8 Representation . . . . . . . . . . . . . . . . . . . . 29
5.9 Working Days . . . . . . . . . . . . . . . . . . . . . 29
5.10 Severance . . . . . . . . . . . . . . . . . . . . . . . 29
5.11 Genuine Pre-Estimate . . . . . . . . . . . . . . . . . 30
5.12 Supply of Goods and Services Act 1982 . . . . . . . . . 30
5.13 Sale of Business Agreement . . . . . . . . . . . . . . 30
5.14 Withholdings and Deductions . . . . . . . . . . . . . . 30
6 Guarantee . . . . . . . . . . . . . . . . . . . . . . . 30
7 Option . . . . . . . . . . . . . . . . . . . . . . . . . 30
First Schedule
Particulars of the Demised Premises. . . . . . . . . . . 32
Second Schedule . . . . . . . . . . . . . . . . . . . . 32
Part 1
Rights Granted . . . . . . . . . . . . . . . . . . . . 32
Part 2
Exceptions and Reservations out of the demise . . . . 33
Third Schedule
Documents which affect or relate to the Demised
Premises . . . . . . . . . . . . . . . . . . . . . . . 34
Fourth Schedule
Allocation of rent first reserved to Generating Sets . . 50
Fifth Schedule
Landlord's Fixtures and Fittings . . . . . . . . . . . 50
iii
<PAGE>
Sixth Schedule
Guarantee . . . . . . . . . . . . . . . . . . . . . . . 54
Seventh Schedule
Quota Right . . . . . . . . . . . . . . . . . . . . . . 55
Part A
Authorisations Quota . . . . . . . . . . . . . . . . . 55
Part B
UK Plan Ouota . . . . . . . . . . . . . . . . . . . . . 56
Eighth Schedule
Premium . . . . . . . . . . . . . . . . . . . . . . . . 57
Ninth Schedule
Data Requirements . . . . . . . . . . . . . . . . . . . 68
Tenth Schedule
Specified Form of Certificate . . . . . . . . . . . . . 70
Eleventh Schedule
Base Output . . . . . . . . . . . . . . . . . . . . . . 72
<PAGE>
THIS LEASE made on 27th June 1996 BETWEEN NATIONAL POWER
PLC (Company Number 2366963) (whose registered office is at
Windmill Hill Business Park Whitehill Way Swindon Wiltshire
SN5 6PB (hereinafter called the LANDLORD) of the first part
EASTERN MERCHANT PROPERTIES LIMITED (Company Number 3181383)
formerly known as Eastern Twelve Limited whose registered
office is at Wherstead Park Wherstead Ipswich Suffolk IP9 2AQ
(hereinafter called the TENANT) of the second part and
EASTERN GROUP PLC (Company Number 2366906) whose registered
office is at Wherstead Park aforesaid (hereinafter called
the GUARANTOR) of the third part.
WITNESSES as follows:
1 DEFINITIONS
1.1 In this Lease unless there be something in the subject
or context inconsistent therewith:
1.1.1 Where there are two or more persons included
in the expression the TENANT covenants
contained in this Lease which are expressed
to be made by the Tenant shall be deemed to
be made by such persons jointly and
severally;
1.1.2 Any reference to an Act of Parliament shall
include any modification extension or
reenactment thereof for the time being in
force and shall also include all instruments
orders plans regulations permissions and
directions for the time being made issued or
given thereunder or deriving validity
therefrom;
1.1.3 Any covenant by the Tenant not to do any act
or thing shall include an obligation not to
permit or suffer such act or thing to be
done;
1.1.4 The titles or headings appearing in this
Lease are for reference only and shall not
affect the construction hereof;
1.1.5 Any reference to Value Added Tax shall
include any tax of a similar nature that may
be substituted for or levied in addition to
it (and this for the avoidance of doubt
shall not include the penalties and interest
for late payment);
1.2 The expressions following shall have the meanings
hereinafter mentioned (that is to say):
1.2.1 ADJOINING PROPERTY means any land or
property neighbouring or adjoining Rugeley B
Power Station in which the Landlord or a
holding company or a subsidiary of a holding
company of the Landlord (the terms HOLDING
COMPANY and SUBSIDIARY having the meanings
given to them in Section 736 of the
Companies Act 1985 as amended by the
Companies Act 1989) or any person holding on
trust for the Landlord or a holding company
or a subsidiary of a holding company of the
Landlord as aforesaid has a freehold or
leasehold interest whether in possession or
in reversion;
1.2.2 APPLICABLE LAW means any present or future
law statute bye-law regulation order
delegated legislation directive request
requirement consent license or permit of or
issued by or on behalf of any Competent
Authority and relating to the Demised
Premises or any part thereof or any thing
therein or thereon or the use or ownership
thereof (including without limitation any
Act of Parliament European Community or
European Law Regulation or Directive);
1.2.3 the AUTHORISATIONS means the authorisations
granted by HMIP pursuant to Section 6 of the
Environmental Protection Act 1990 in respect
of the power stations forming part of the
Demised Premises as varied by variation
notices issued by HMIP pursuant to Section
10 of the said Act dated 8 March 1996 as
such authorisations may hereafter be varied
from time to time by HMIP;
1.2.4 the AUTHORISATIONS QUOTA means that part
specified in Part A of the Seventh Schedule
of the quotas in respect of emissions of
sulphur dioxide under Column 3 of Table 2.5
of the Authorisations as such part may
hereafter be varied from time to time by
HMIP;
1.2.5 CHAPS means clearing houses automated
payment systems;
1.2.6 COMPETENT AUTHORITY means any local national
or supranational agency authority department
inspectorate minister official court
tribunal or public or statutory person
(whether autonomous or not) having
jurisdiction in relation to the Demised
Premises or any part thereof or anything
therein or thereon or the use or ownership
thereof;
1.2.7 CONDUITS means all sewers drains pipes
gullies gutters ducts flues watercourses
channels subways wires cables and other
conducting media of whatsoever nature;
1.2.8 the DEMISED PREMISES means the land and
premises described in the First Schedule
hereto and each and every part thereof
together with the appurtenances thereto
belonging and together also with any
buildings and erections and each and every
part thereof now or hereafter erected or in
the course of erection thereon or on any
part thereof together with all additions
alterations and improvements thereto which
may be carried out during the Term and shall
also include all landlord's fixtures from
time to time in and about the same and the
Landlord's Fixtures and Fittings;
1.2.9 the FULL COST OF REINSTATEMENT means the
costs (including the cost of shoring up
demolition decommissioning and site
clearance Architects' Surveyors' and other
professional fees) and irrecoverable Value
Added Tax which would be likely to be
incurred in or as a result of rebuilding or
reinstating the Demised Premises in
accordance with the requirements of this
Lease at the time when such rebuilding or
reinstatement is likely to take place having
regard to all relevant factors including any
increases in building costs expected or
anticipated to take place at any time up to
the date upon which the Demised Premises
shall be fully rebuilt or reinstated and
shall be not less than L300,000,000 but may
be in such greater amount as the Tenant may
reasonably require;
1.2.10 GENERATING SET means a generator and its
associated turbines;
1.2.11 GOOD INDUSTRY PRACTICE means the exercise of
that degree of skill diligence prudence
foresight and operating practice which would
reasonably be expected by and from a skilled
and experienced owner and operator of the
power stations forming part of the Demised
Premises under the same or similar
circumstances taking into account the nature
and location of the said power stations;
1.2.12 HMIP means Her Majesty's Inspectorate of
Pollution and its successors from time to
time;
1.2.13 the INSURED RISKS means risks in respect of
physical loss destruction or damage;
1.2.14 the INSURERS means the insurance office or
underwriters with whom the insurance cover
referred to in Clause 3.25 hereof is
effected;
1.2.15 IRONBRIDGE POWER STATION means the part of
the Demised Premises referred to in
paragraph (B) of the First Schedule;
1.2.16 the LANDLORD shall include the person for
the time being entitled to the reversion
immediately expectant on the determination
of the Term;
1.2.17 the LANDLORD'S FIXTURES AND FITTINGS means
the landlord's fixtures and fittings at the
Demised Premises specified in the Fifth
Schedule and any replacement of any of the
same from time to time;
1.2.18 this LEASE means this lease and any document
which is supplemental hereto or which is
collateral herewith or which is entered into
pursuant to or in accordance with the terms
hereof;
1.2.19 MACHINERY BREAKDOWN means unforeseen and
sudden destruction or damage to any plant
and machinery at the Demised Premises
resulting from breakdown including
destruction or damage caused by explosion
due to force of internal steam gas or fluid
pressure from any accidental cause while
such plant and machinery is at work;
1.2.20 MATERIAL BREACH means any breach non-
performance or non-observance of any of the
covenants obligations and conditions on the
part of the Tenant in this Lease which has a
material consequence;
1.2.21 the PLANNING ACTS means Town and Country
Planning Act 1990; Planning (Listed
Buildings and Conservation Areas) Act 1990;
Planning (Hazardous Substances) Act 1990;
and Planning (Consequential Provisions) Act
1990;
1.2.22 the PREMIUM means the premium payable by the
Tenant in consideration of the grant of the
Lease payable on the dates and in the manner
set out in the Eighth Schedule;
1.2.23 the PRESCRIBED RATE means a rate of interest
being two per centum per annum over the base
rate from time to time of National
Westminster Bank PLC or over such other rate
as may from time to time replace the same or
over such other rate as the Landlord may
from time to time reasonably require;
1.2.24 the QUOTA RIGHTS means the UK Plan Quota the
Authorisations Quota and the Authorisations;
1.2.25 RUGELEY B POWER STATION means the part of
the Demised Premises referred to in
paragraph (C) of the First Schedule;
1.2.26 the SALE OF BUSINESS AGREEMENT means the
agreement for the sale and purchase of the
business carried on at the Demised Premises
entered into on 19 April 1996 between
National Power PLC (1) and Eastern Group plc
(2);
1.2.27 the SATISFACTION DATE means the later of 31
March 2006 and the date by which the
Landlord has received (i) the whole of the
Premium and (ii) all sums due and payable
under this Lease in respect of the period
commencing on the date of this Lease and
expiring on 31 March 2003;
1.2.28 the TENANT shall include its successors in
title;
1.2.29 the TERM means the term of years hereby
granted:
1.2.30 the UK PLAN QUOTA means that part specified
in Part B of the Seventh Schedule of the
quotas in respect of emissions of sulphur
dioxide and oxides of nitrogen under the
current UK Plan for the Reduction of
Emissions into Air of Sulphur Dioxide and
Oxide Nitrogen from existing Large
Combustion Plants as such part may hereafter
be varied from time to time by any authority
empowered to vary such quotas;
1.2.31 WEST BURTON POWER STATION means the part of
the Demised Premises referred to in
paragraph (A) of the First Schedule;
1.2.32 the 1995 ACT means the Landlord and Tenant
(Covenants) Act 1995;
1.3 Where any indemnity contained in this Lease is
expressed to be on an "after-tax" basis then in
calculating the liability of the indemnifying party
there shall be taken into account having regard to the
time value of money by application of a nominal
discount rate of 12 per cent per annum:
1.3.1 the amount by which any liability to
Taxation for which the party to be
indemnified (or any company which is a
holding company or a subsidiary of a holding
company of such party) is or would have been
accountable or liable to be assessed is
actually reduced or extinguished as a result
of the matter giving rise to the indemnity
claim; and
1.3.2 the amount by which any liability to
Taxation of the party to be indemnified (or
any company which is a holding company or a
subsidiary of a holding company of such
party) is actually increased as a result of
the payment by the indemnifying party in
respect of the matter giving rise to the
indemnity claim;
For this purpose TAXATION means all forms of taxation
whether direct or indirect and whether levied by
reference to income profits gains net wealth asset
values turnover added value and statutory governmental
state provincial local governmental or municipal
impositions duties contributions rates and levies
(including without limitation social security
contributions and any other payroll taxes) whenever and
wherever imposed (whether imposed by way of a
withholding or deduction for or on account of tax or
otherwise) and in respect of any person and all
penalties charges costs and interest relating thereto
and the terms holding company and subsidiary have the
same meanings as in Clause 1.2.1.
2 DEMISE AND RENTS
In consideration of the Premium plus any Value Added
Tax chargeable thereon (the receipt of the first
instalment of which is acknowledged by the Landlord)
the Landlord HEREBY DEMISES unto the Tenant ALL THAT
the Demised Premises TOGETHER WITH as mentioned in Part
1 of the Second Schedule and EXCEPT AND RESERVING as
mentioned in Part 2 of the Second Schedule hereto TO
HOLD the same (a) SUBJECT TO all rights easements
quasi-easements and privileges (if any) to which the
Demised Premises are or may be subject and (b) SUBJECT
TO AND (in so far as the Landlord has power to grant
the same) WITH THE BENEFIT OF all rights easements
quasi-easements (if any) privileges (if any) covenants
declarations and other provisions contained or referred
to in the documents referred to in the Third Schedule
hereto unto the Tenant from 27th June 1996 for a TERM
of NINETY-NINE YEARS YIELDING AND PAYING therefor
during the Term and in proportion for any less time
than a year without any deduction or set-off FIRST
until 31 March 2003 the clear YEARLY RENT of ONE
HUNDRED THOUSAND POUNDS (L100,000) to be paid by CHAPS
payment for value same day to such account as the
Landlord shall designate and to be paid monthly in
arrear within forty-two days after the last day of the
calendar month in respect of which such rent is payable
SECONDLY from 1 April 2003 the clear YEARLY RENT of One
hundred pounds (L100) payable in arrear on 31 March in
each year THIRDLY by way of additional rent on demand
the moneys referred to in Clause 3.3 hereof and HEREBY
ASSIGNS to the Tenant the Quota Rights on condition
that the Term is not determined pursuant to Clause 5.1
before the Satisfaction Date.
3 TENANT'S COVENANTS
The Tenant to the intent that the obligations hereby
created shall continue throughout the Term (except
where otherwise necessarily implied or expressly
stated) HEREBY COVENANTS with the Landlord as follows:
3.1 TO PAY RENT
To pay the rents hereinbefore reserved at the times and
in the manner aforesaid;
3.2 TO PAY THE PREMIUM
To pay the Premium at the times and in the manner set
out in the Eighth Schedule Provided that if any
instalment of the Premium or any part thereof or the
rents hereby reserved or any part thereof shall at any
time be in arrear for twenty-one days after the same
shall have become due or if there shall be any Material
Breach which has not been remedied within two months of
notice of the Material Breach having been given to the
Tenant by the Landlord or if any of the events referred
to in Clauses 5.1.4 to 5.1.8 (inclusive) shall occur
all installments of the Premium which have not yet
fallen due shall become immediately payable in full
without adjustment pursuant to paragraph 4.2 of the
Eighth Schedule within five days of written demand
(which to be effective shall specify expressly that it
is given pursuant to the proviso to this Clause 3.2) by
the Landlord;
3.3 TO PAY INTEREST ON OVERDUE MONIES
That without prejudice to any other right remedy or
power herein contained or otherwise available to the
Landlord if any sum payable under this Lease shall not
be received on the due date to pay on demand to the
Landlord interest thereon at the Prescribed Rate from
the date when the same became due until payment thereof
is received (as well after as before any judgment);
3.4 TO PAY OUTGOINGS
To bear pay and discharge all existing and future rates
taxes duties charges assessments impositions and
outgoings whatsoever (whether parliamentary parochial
local or otherwise and whether or not of a capital or
non-recurring nature) which now are or may at any time
hereafter during the Term be charged levied assessed or
imposed upon the Demised Premises or upon the owner or
occupier in respect thereof Provided always that the
foregoing shall not extend to payment of any tax
payable only as a direct result of any dealing by the
Landlord with its reversionary interest in the Demised
Premises including for the avoidance of doubt the grant
of this Lease;
3.5 TO PAY SHARE OF COST OF COMMON FACILITIES
To pay a contribution towards the cost and expense of
constructing repairing rebuilding renewing lighting
cleansing and maintaining all facilities services and
other things the use of which is common to the Demised
Premises and other premises such contribution to be
fairly assessed by the Landlord's Surveyors;
3.6 TO REPAIR
At all times until the Satisfaction Date to keep the
Demised Premises in good working order repair and
condition (fair wear and tear excepted and damage by
the Insured Risks excepted unless payment of any
insurance moneys be refused in whole or in part other
than as a result of the Landlord's default) and to
carry out such repair maintenance renewal overhauls and
replacement as are required in accordance with Good
Industry Practice and all Applicable Laws and to comply
in all material respects with all manufacturers' and
mandatory operational modifications Provided that the
Tenant shall not be obliged to put the Demised Premises
into any better state and condition than they are in at
the date of this Lease and Provided further that for
the avoidance of doubt nothing in this Lease shall
prevent the Tenant demolishing decommissioning or
dismantling any part of the Demised Premises at any
time after the Satisfaction Date;
3.7 TO COMPLY WITH NOTICES TO REPAIR
To repair and make good and otherwise remedy any breach
of Clause 3.6 of which notice in writing shall be given
to or left on the Demised Premises for the Tenant by
the Landlord and for which the Tenant is liable
hereunder and to complete the same within six calendar
months (unless compliance with this covenant would
require the Tenant (i) to order new plant or machinery
which cannot be obtained within such period in which
case such plant or machinery shall be obtained as soon
as possible thereafter or (ii) to repair existing plant
or machinery in circumstances where such plant or
machinery cannot be repaired within such period in
which case such plant or machinery shall be repaired as
soon as possible thereafter Provided that the Tenant
shall in any event proceed diligently to remedy the
breach and shall commence the process of ordering or
repairing the plant or machinery without delay) after
the giving or leaving of such notice and if the Tenant
shall fail to comply with any such notice it shall be
lawful (but not obligatory) for the Landlord (without
prejudice to the right of re-entry hereinafter
contained) to enter upon the Demised Premises to make
good the same at the cost of the Tenant which cost
together with all Solicitors' and Surveyors' charges
and other costs expenses and losses of whatsoever
nature whether direct or indirect which may be properly
incurred suffered or sustained by the Landlord in
connection therewith shall be repaid by the Tenant to
the Landlord on demand as a debt and on a full after-
tax indemnity basis;
3.8 TO PERMIT ENTRY
3.8.1 Until the Satisfaction Date but not
thereafter to permit the Landlord and its
agents and all persons authorised by them
with or without workmen on giving reasonable
notice (except in emergency) to the Tenant
to enter upon the Demised Premises for the
purpose of ascertaining that the covenants
and conditions of this Lease have been
observed and performed and to view the state
of repair and condition of the Demised
Premises and to take a schedule of any
dilapidations the Landlord making good
forthwith any damage thereby caused to the
Demised Premises and causing as little
inconvenience as reasonably practicable;
3.8.2 To permit the Landlord and its agents and
all persons authorised by them with or
without workmen on giving reasonable notice
(except in emergency) to the Tenant to enter
upon the Demised Premises to exercise the
rights herein excepted and reserved the
Landlord promptly making good any damage
thereby caused to the Demised Premises and
causing as little inconvenience as
reasonably practicable;
3.9 INSURERS' REQUIREMENTS
3.9.1 To comply with all the requirements and
recommendations of the Insurers;
3.9.2 Not to do anything which would or might
result in any of the insurances required to
be effected by this Lease being vitiated
invalidated or prejudiced;
3.10 USER
3.10.1 To procure that neither the Demised Premises
nor any part thereof is used before 1 April
2000 such that its principal use is other
than for an activity for which an exemption
or license is required under Section 5 or
Section 6 of the Electricity Act 1989 or an
activity involving the distribution of
electricity (in so far as it does not
require a license under Section 6 of the
Electricity Act 1989);
3.10.2 The Tenant hereby acknowledges and admits
that notwithstanding the foregoing
provisions the Landlord does not thereby or
in any other way give or make nor has given
or made at any other time any representation
or warranty that any such use is or will be
or will remain a permitted use within the
provisions of the Planning Acts nor shall
any consent in writing which the Landlord
may hereafter give to any change of use be
taken as including any such representation
or warranty and that notwithstanding that
any such use as aforesaid is not a permitted
use within such provisions as aforesaid the
Tenant shall remain fully bound and liable
to the Landlord in respect of the
obligations undertaken by the Tenant by
virtue of this Lease without any
compensation recompense or relief of any
kind whatsoever;
3.10.3 Not to do anything which would materially
prejudice the rights and interests of the
Landlord in the Demised Premises or under
this Lease or as a consequence of which the
Landlord or any of its directors officers or
employees would become liable to pay any
fine or penalty or incur any other form of
sanction or would otherwise incur a
liability to any person;
3.11 NOT TO MAKE CLAIMS
Not at any time during the Term to bring any action or
make any claim or demand on account of any injury to
any right easement quasi-easement or privilege enjoyed
by the Demised Premises caused by the lawful erection
of any building or the lawful alteration of any
building on any land adjacent to neighbouring or
opposite the Demised Premises by the Landlord or for
which the Landlord shall have given its consent or for
which the Landlord may give its consent pursuant to any
power reserved by this Lease or in respect of any
easement right or privilege granted or to be granted by
the Landlord for the benefit of any land or building
erected or to be erected on any land adjacent to
neighbouring or opposite the Demised Premises;
3.12 ALIENATION
3.12.1 Not to dispose of and to procure that there
shall be no disposal of a Relevant Interest
in the Demised Premises or any part of the
Demised Premises such as falls within
paragraph 1(6)(ii) of Part I of Schedule 1
to the deed of debenture dated 1 November
1990 and entered into between National Power
PLC and The Secretary of State for Energy
prior to 31 March 2000;
3.12.2 Not before the Satisfaction Date to assign
or dispose of or deal in any way with the
Quota Rights except by way of an assignment
of the whole of the Quota Rights
simultaneously with an assignment of the
Lease and to the same person;
3.12.3 Not before the Satisfaction Date to mortgage
or charge the Demised Premises or agree to
do the same without first notifying the
chargee in writing of the Landlord's
interest in the Demised Premises and rights
under this Lease and not before the
Satisfaction Date to mortgage or charge the
Demised Premises except by a charge which
(i) prohibits the chargee taking possession of
the Demised Premises;
(ii) provides expressly for the chargee's
interest to be subject to the Landlord's
interest in the Demised Premises and rights
under this Lease;
3.12.4 Not before the Satisfaction Date to assign
or charge or agree to assign or charge part
only of the Demised Premises;
3.12.5 Not on or after the Satisfaction Date to
assign or charge or agree to assign or
charge part only of the Demised Premises
being a part other than the whole of
lronbridge Power Station or Rugeley B Power
Station or West Burton Power Station (a
permitted part);
3.12.6 Not to underlet or agree to underlet the
whole or any part of the Demised Premises
before the Satisfaction Date except by way
of agricultural tenancies or grazing
licences of agricultural land which is not
required for the operation of the power
stations forming part of the Demised
Premises;
3.12.7 Not before the Satisfaction Date to part
with possession or share the possession or
occupation of the whole or any part of the
Demised Premises except by an assignment or
agricultural tenancy or grazing license
permitted by this Clause 3.12;
3.12.8 Not on or after the Satisfaction Date to
part with possession or share the possession
or occupation of the whole or any part of
the Demised Premises except by an assignment
permitted by this Clause 3.12 or by an
underletting;
3.12.9 Not to assign or agree to assign the Demised
Premises before the Satisfaction Date
unless:
(i) the assignee or any person guaranteeing its
obligations pursuant to Clause 3.12.10(iii)
is a person with a credit rating similar to
that of the Guarantor at the date of this
Lease;
(ii) (as a separate condition) the assignee or
any person guaranteeing its obligations
pursuant to Clause 3.12.10(iii) is a person
with a credit rating which is acceptable to
the Landlord (such acceptance not to be
unreasonably withheld);
(iii) the assignee has a similar ability to
operate a coal-fired power station to
that of the Guarantor at the date of
this Lease;
(iv) (as a separate condition) the assignee has
an ability to operate a coal-fired power
station which is acceptable to the Landlord
(such acceptance not to be unreasonably
withheld);
(v) the Quota Rights are assigned to the person
to whom this Lease is assigned
simultaneously with the Lease;
3.12.10 Not at any time to assign or agree to assign
the whole or a permitted part of the Demised
Premises unless:
(i) the assignee covenants with the Landlord to
pay the Premium (in so far as it has not
already been paid) and the rents and observe
and perform the Tenant's covenants in this
Lease (in the case of assignment of a
permitted part in so far as they relate to
the permitted part) during the residue of
the Term or until released pursuant to the
1995 Act;
(ii) the Tenant enters into an agreement
guaranteeing the performance of the Tenant's
covenants in this Lease (in the case of
assignment of a permitted part in so far as
they relate to the permitted part) by the
assignee including the provisions set out in
the Sixth Schedule to the extent permitted
by the 1995 Act;
(iii) such other persons as the Landlord
reasonably requires act as guarantors
for the assignee and enter into direct
covenants with the Landlord to perform
the terms of this Lease (in the case of
assignment of a permitted part in so far
as they relate to the permitted part)
including the provisions set out in the
Sixth Schedule;
3.12.11 Without prejudice to the foregoing
provisions not to assign the whole or a
permitted part of the Demised Premises
without the Landlord's written consent (not
to be unreasonably withheld or delayed);
3.13 REGISTRATION
Within twenty-one days after the date of any assignment
of this Lease or the execution of any mortgage or
charge affecting this Lease or any transfer of any such
mortgage or charge or any devolution of the Term by
assent or operation of law to give written notice and
to deliver a certified copy to the Landlord's
Solicitors (or as the Landlord may from time to time
direct) of such assignment mortgage charge transfer of
mortgage or charge or devolution and to pay or cause to
be paid to the Landlord's Solicitors or as the Landlord
may from time to time direct a reasonable fee not being
less than Twenty pounds for the registration thereof;
3.14 NOT TO MAKE ALTERATIONS
Until the Satisfaction Date not to make any addition or
alteration to or do any thing in relation to any of the
Landlord's Fixtures and Fittings which would diminish
the value of the Landlord's Fixtures and Fittings or
the Demised Premises provided that the Tenant shall not
hereby be prevented from replacing any of the
Landlord's Fixtures and Fittings with a replacement of
similar character and at least equal value and provided
further that the Landlord may in any given case in its
absolute discretion waive the requirement for a
replacement of similar character and at least equal
value (to be effective such waiver shall be in
writing);
3.15 TO PAY LANDLORD'S COSTS
To pay to the Landlord on demand and on an after-tax
indemnity basis all costs charges expenses damages and
losses of whatsoever nature whether direct or indirect
(including but without prejudice to the generality of
the foregoing Solicitors' costs Counsels' Architects'
and Surveyors' Environmental Consultants' and other
professional fees and commission payable to a bailiff)
and which may at any time be incurred suffered or
sustained by the Landlord:
3.15.1 inci$ental to the preparation and service of
a notice under Section 146 of the Law of
Property Act 1925 and/or in or in
contemplation of any proceedings under
Section 146 or 147 of the said Act (whether
or not any right of re-entry or forfeiture
has been waived by the Landlord or a notice
served under the said Section 146 is
complied with by the Tenant or the Tenant
has been relieved under the provisions of
the said Act and notwithstanding forfeiture
is avoided otherwise than by relief granted
by the court);
3.15.2 in connection with or procuring the
remedying of any breach non-performance or
nonobservance of any covenant condition or
other obligation on the part of the Tenant
or any person deriving title under the
Tenant contained in this Lease;
3.16 TO OBSERVE STATUTORY REQUIREMENTS
At all times and from time to time and at its own
expense to comply with all Applicable Laws and to
execute all works including remediation as are or may
under or in pursuance of any Applicable Law be directed
or required to be done or executed upon or in respect
of the Demised Promises or the use thereof whether by
the owner and/or the Landlord and/or the Tenant thereof
or any person deriving title thereunder or which relate
to the remediation of other sites or premises or
controlled waters if and to the extent that the need
for remediation has been caused in whole or in part by
the Demised Premises or any use thereof or activities
or omissions thereon and not to do or fail to do on the
Demised Premises or on the said other sites or premises
or controlled waters any act or omission or thing
whereby the Landlord becomes or is likely to become
liable to pay any penalty fine charge tax levy or duty
imposed or to bear the whole or any part of any costs
or expenses incurred under or through any such
Applicable Law and at all times to save harmless and
keep indemnified the Landlord on an after-tax basis
against all losses (as defined in Clause 3.26.1) which
may at any time be made or claimed against or incurred
or suffered or sustained by the Landlord in respect of
the foregoing;
3.17 PLANNING
At all times during the Term to comply in all respects
with the Planning Acts and to keep the Landlord
indemnified on an after-tax basis in respect thereof;
3.18 TO INFORM LANDLORD OF NOTICES
Upon becoming aware of the happening of any occurrence
or upon the receipt of any notice order requisition
direction or other thing which may be capable of
materially adversely affecting the Landlord's interest
in the Demised Premises or which might give rise to a
liability or a duty or to a breach of a duty imposed by
common law or statute on the Landlord the Tenant shall
forthwith at its own expense deliver full particulars
or a copy thereof to the Landlord;
3.19 TO INFORM LANDLORD OF CONTAMINANTS AND DEFECTS AND TO
INDEMNIFY
To inform the Landlord immediately in writing upon
becoming aware of the existence of any contaminant or
pollutant or hazardous substance on or under or
escaping or emitting or leaching from or any defect in
the Demised Premises which might jive rise to a duty or
liability imposed by common law or statute on the
Landlord and to indemnify the Landlord on an after-tax
basis in respect of all losses (as defined in Clause
3.26.1) which may at any time be made or claimed
against or incurred suffered or sustained by the
Landlord by reason of:
3.19.1 any interference or alleged interference or
obstruction by the Demised Premises or any
use thereof or activities or omissions
thereon of any right or alleged right of
light air drainage or other right or alleged
right now existing for the benefit of any
adjoining or neighbouring property;
3.19.2 any contaminant or pollutant or hazardous
substance in or under or escaping or
emitting or leaching from the Demised
Premises;
3.20 APPLICATIONS FOR CONSENT
Upon making an application for any consent or approval
which is required under this Lease the Tenant shall
disclose to the Landlord such information as the
Landlord may reasonably require and shall pay on demand
and by way of indemnity on an after-tax basis all costs
charges and expenses (including without limitation
legal costs Surveyors' fees disbursements and stamp
duty) properly incurred by the Landlord resulting from
all such applications by the Tenant including costs
charges fees and disbursements actually incurred in
cases where consent is properly refused or the
application is withdrawn;
3.21 TO OBSERVE COVENANTS
To observe and perform the agreements covenants and
stipulations contained or referred to in the documents
referred to in the Third Schedule hereto so far as any
of the same are still subsisting and capable of taking
effect and relate to the Demised Premises and to keep
the Landlord indemnified on an after-tax basis against
all losses (as defined in Clause 3.26.1) actions
proceedings costs claims and demands in any way
relating thereto;
3.22 YIELDING UP
3.22.1 Immediately prior to the expiration or
sooner determination of the Term if required
by any competent authority or if reasonably
so requested by the Landlord (and in either
such case at the cost of the Tenant) to
remove from the Demised Premises or (if the
relevant contaminant pollutant or hazardous
substance has been caused by the Demised
Premises or any use thereof or activities or
omissions thereon after the date hereof from
other sites or premises or controlled waters
or render harmless to the reasonable
satisfaction of the landlord any such
contaminant or pollutant or hazardous
substance which is capable of causing harm
or pollution or which the Landlord would
otherwise have a duty (whether under common
law or statute) to remove or render
harmless;
3.22.2 At the expiration or sooner determination of
the Term (howsoever the same be determined)
to yield up to the Landlord the Demised
Premises in such state of repair and
condition and cleanliness as shall be in
accordance with the covenants on the part of
the Tenant herein contained together (if the
Term is determined prior to the Satisfaction
Date but not otherwise) with the Landlord's
Fixtures and Fittings and together with all
other fixtures fittings improvements and
additions (except tenant's fixtures and
fittings) which now are or may at any time
hereafter be in or about the Demised
Premises and in the event of the Tenant
failing so to yield up the Demised Premises
to pay to the Landlord on demand by way of
liquidated damages:
(i) the cost of putting the Demised Premises
into the state of repair and condition and
cleanliness in which they should have been
had the Tenant complied with the terms of
this Lease; and
(ii) on an indemnity after-tax basis all losses
(as defined in Clause 3.26.1) (including
without limitation Surveyors' Environmental
Consultants' and other professional fees)
which are at any time made or claimed
against or incurred suffered or sustained by
the Landlord in connection with the matters
referred to in this Clause 3.22.2;
3.23 TO PAY VAT
Subject to the provisions regarding Value Added Tax in
respect of the Premium contained in paragraph 5 of the
Eighth Schedule to pay to the Landlord by way of
additional rent any amount in respect of Value Added
Tax which is chargeable at the rate for the time being
in force in respect of any rent or other payment made
or other consideration provided by the Tenant under the
terms of or in connection with this Lease and in every
case where an amount of money is payable or
consideration is provided under this Lease such amount
or consideration shall be regarded as being exclusive
of all Value Added Tax which may from time to time be
legally payable thereon and such Value Added Tax shall
be payable on the due date for the payment of such
amount or the provision of such consideration;
3.24 REIMBURSEMENT OF VAT
In every case where the Tenant has agreed to reimburse
or indemnify the Landlord in respect of any payment
made by the Landlord under the terms of or in
connection with this Lease that the Tenant shall also
reimburse any Value Added Tax paid by the Landlord on
such payment to the extent that the Value Added Tax is
irrecoverable by the Landlord;
3.25 TO INSURE
3.25.1 (i) Until the Satisfaction Date to insure
and keep insured the Demised Premises in
the joint names of the Landlord and the
Tenant with the Insurers (who shall
first have been approved in writing by
the Landlord such approval not to be
unreasonably withheld) against loss or
damage by the Insured Risks in the Full
Cost of Reinstatement thereof except
that in respect of risks of Machinery
Breakdown insurance shall be for the
maximum possible loss in a sum which has
first been approved in writing by the
Landlord such approval not to be
unreasonably withheld or delayed;
3.25.1 (ii) To procure that the insurance
policy required to be effected by
this Clause 3.25.1 shall contain a
loss payable provision in the
following form:
(a) If a single event of damage or
destruction gives rise to or is likely
to give rise to a total recovery under
the policy of L5,000,000 or more the
whole of the recovery shall be paid in
full to the Landlord or to its order
without any deduction;
(b) If a single event of damage or
destruction gives rise to a total
recovery under the policy of less than
L5,000,000 the whole of the recovery
shall be paid in full to the Tenant
without any deduction the recovery to be
applied in the reinstatement of the
Demised Premises;
and to procure that all recoveries are paid
and applied in the manner required by such
provision;
3.25.2 (i) Until the Satisfaction Date to maintain
loss of rent insurance in the name of
the Landlord with the Insurers (who
shall first have been approved in
writing by the Landlord such approval
not to be unreasonably withheld or
delayed) against loss of rent arising
from loss or damage of any Generating
Set at the Demised Premises by the
Insured Risks under a policy which has
first been approved in writing by the
Landlord (such approval not to be
unreasonably withheld or delayed);
3.25.3 (ii) The loss of rent to be covered by
such insurance shall be the
aggregate from time to time of the
rent first reserved and any Value
Added Tax chargeable in respect
thereof for a three year period;
3.25.4 To notify the Landlord and the Insurers
immediately on becoming aware of the
occurrence before the Satisfaction Date of
any loss or damage at the Demised Premises
which is likely to result in a loss in
excess of L2,000,000 whether or not caused
by an Insured Risk;
3.25.5 In case of destruction or damage of the
Demised Premises by any of the Insured Risks
prior to the Satisfaction Date diligently to
reinstate restore and rebuild the same
without delay under the direction and to the
reasonable satisfaction of the Landlord
(Provided that in the event of destruction
of a power station forming part of the
Demised Premises the obligation to reinstate
shall be to build a new power station with
substantially similar generating output to
the power station destroyed and that if the
Tenant is unable (having used its best
endeavours) to obtain the planning or other
consents necessary to execute the
reinstatement restoration and rebuilding the
Tenant shall not be obliged to reinstate
restore and rebuild the Demised Premises and
the Landlord shall be solely entitled to
retain all the moneys payable under or by
virtue of the insurance) and in compliance
with all Applicable Laws (employing such
Building Contractors Architects Surveyors
and other professional advisers as shall
previously be approved in writing by the
Landlord such approval not to be
unreasonably withheld) in accordance with
plans and specifications previously approved
at the expense of the Tenant by the Landlord
(such approval not to be unreasonably
withheld) and in case the same shall be
insufficient for that purpose (whether as a
result of under-insurance the withholding of
all or part of the insurance monies or any
other reason except where it is as a result
of a breach by the Landlord of its covenants
under this Lease or a breach by the Landlord
of any term of the insurance policy which
has been disclosed to it) to make up the
deficiency out of the Tenant's own monies
Provided that where insurance proceeds have
been paid to the Landlord pursuant to Clause
3.25.1(ii) the Tenant shall not be liable
under this Clause 3.25.4 for failure to
reinstate restore or rebuild to the extent
only that the Landlord has failed to comply
with its obligation contained in Clause 4.2;
3.25.1 (i) At its own expense throughout the Term
to maintain insurance cover in respect
of the Demised Premises with the
Insurers (who shall first have been
approved in writing by the Landlord such
approval not to be unreasonably
withheld) against legal liability to any
third parties (including agents and sub-
contractors of the Tenant and insofar as
insurance on behalf of the Landlord is
concerned employees of the Tenant) for
injury death disease loss or damage
(whether to persons or property) (and
including any such resulting from sudden
and identifiable unintended and
unexpected pollution) suffered (or
alleged to have been suffered) as a
result of or arising directly or
indirectly out of the use or presence of
the Tenant or the Landlord or the
invitees employees agents or assigns of
either or both of them or activities or
omissions conducted in about or from or
in connection with the Demised Premises
or otherwise concerning the Demised
Premises;
3.25.1 (ii) The cover required by Clause
3.25.5(i) shall:
(a) be maintained in such amounts as a
prudent person carrying on the business
of the Tenant would effect having regard
to the nature occupation and location of
the Demised Premises but in any event
shall until the Satisfaction Date be for
not less than L100,000,000;
(b) name the Landlord its directors officers
employees servants and agents in each
case carrying out the exercise of the
Landlord's rights or performance of the
Landlord's obligations under this Lease
as additional insureds;
(c) provide that the insurance effected
pursuant to the provisions of this
Clause shall be primary and without
right of contribution from any other
insurance effected by any of the
additional insureds:
(d) contain a cross liability provision to
the effect that coverage in respect of
liability save for the limits of
liability shall operate to give each
additional insured the same protection
as if there were a separate policy
issued to each additional insured; and
(e) provide that the Tenant alone and none
of the additional insureds shall be
liable for any premiums in respect of
any such insurance;
3.25.2 (iii) The Tenant shall procure that the
cover required by Clause 3.25.5(i)
shall provide that the Insurers
shall waive all rights of
subrogation that the Insurers have
or may acquire against the Landlord
and its respective directors
officers employees servants and
agents;
3.25.3 To keep in effect throughout the Term in
respect of the Tenant's liability to its
employees employer's liability insurance
providing for such indemnity and in such
form as to comply with the Employer's
Liability (Compulsory Insurance) Act 1969
and any succeeding statute imposing similar
obligations upon employers;
3.25.1 (i) To procure that all insurance policies
required to be effected by this Clause
3.25 shall contain a provision
preventing the material alteration of or
the invalidation termination or
cancellation of the policy in whole or
in part without at least thirty days'
prior written notice having been given
to the Landlord;
3.25.2 (ii) To use its best endeavours to
procure that all insurance policies
required to be effected by this
Clause 3.25 shall to the extent
covertable in the insurance market
contain a provision that the
indemnity granted to any additional
insured shall not be defeated
prejudiced or otherwise affected by
any act omission neglect or breach
of any warranty declaration or
condition on the part of any other
insured party and shall insure the
interests of each additional
insured as they appear regardless
of any misrepresentation non-
disclosure want of due diligence
act or omission on the part of any
other insured party;
3.25.1 (i) From time to time on written request by
the Landlord (but not more than once in
any year without good cause) to produce
to the Landlord written confirmation
from the Insurers of the terms of every
insurance policy required at that time
to be effected under this Clause 3.25
and the fact that all such policies are
subsisting and in effect and that all
current premiums have been paid and (if
requested) a copy of all such policies;
3.25.2 (ii) At its own expense to arrange for
certification to be made to the
Landlord by the Insurers or the
Tenant's insurance brokers (who
shall be insurance brokers of
repute) in such format as is
reasonably acceptable to the
Landlord on the occasion of each
renewal or replacement of any
insurance required hereunder (but
in any event at intervals not
exceeding twelve months) as to the
existence and scope of all
insurances effected in compliance
with this Clause 3.25;
3.25.3 (iii) To retain in safe custody all
placing slips certificates cover
notices renewal receipts and/or
confirmation of renewals
correspondence and policies with
regard to any insurance required to
be effected by this Lease which are
in or shall come into the
possession of the Tenant and upon
request to permit the Landlord (or
the Landlord's duly authorised
representatives) to inspect the
same at the Landlord's expense and
upon the written request of the
Landlord promptly to deliver copies
thereof to the Landlord;
3.25.4 To use its best endeavours to procure in
respect of the insurances required under
this Clause 3.25 that the Tenant's insurance
brokers or (in the absence of such brokers)
a representative of the Tenant to be
approved by the Landlord (acting reasonably)
shall as soon as reasonably practicable but
without delay advise the Landlord in writing
upon becoming aware of:
(i) any underwriter or Insurer cancelling or
giving notice of cancellation of any
insurance required hereunder;
(ii) any actual or proposed material alteration
to or termination cancellation or expiry (in
the latter case which is not immediately
followed by renewal upon the same terms with
the same insurers) of any insurance required
hereunder;
(iii) any default in the payment of any
premium or failure of the Tenant to
instruct its brokers to renew any
insurance required hereunder; and
(iv) any act or omission of the Tenant or any
third party or of any event of which they
have knowledge and which in their reasonable
assessment may have a material impact on the
cover provided under any insurance provided
hereunder;
3.25.5 If the Tenant shall fail to effect any
insurance or to pay any premium or premiums
thereunder which (for the time being) it is
obliged to do hereunder the Landlord may
(without being bound so to do) effect any
such insurance or pay any such premium or
premiums in such manner and to such extent
as it thinks fit and the costs thereof shall
be immediately due and payable by the Tenant
as a debt due on demand.
3.26 TO INDEMNIFY THE LANDLORD
Without prejudice to the specific indemnities contained
in this Lease to indemnify the Landlord on an after-tax
basis and keep it indemnified on an after-tax basis
against:
3.26.1 all actions claims demands liabilities costs
losses damages proceedings (whether civil or
criminal) penalties fines charges taxes
levies or duties (other than corporation tax
in respect of income or retained gains or
other profits derived by the Landlord from
the Demised Premises) or other sanctions and
judgments costs (including legal costs on a
full indemnity basis) and expenses of
whatsoever nature whether direct or indirect
(hereinafter referred to as losses) which
may result or which the Landlord may suffer
incur or sustain (other than as a result of
any breach by the Landlord of any of its
covenants contained in this Lease) either
directly or indirectly in any manner in
connection with or arising out of this Lease
(other than tax consequences arising from
the grant of this Lease) or the Demised
Premises; and
3.26.2 any obligation or liability (except as
regards payment of the sums referred to in
Clause 3.26.1) which it may have and which
is not effectively discharged by it or
others to third parties in respect of or in
any way whatsoever either directly or
indirectly in any manner in connection with
the use or state or condition of the Demised
Premises during the Term (other than
corporation tax charged on the income or
retained gains or other profits derived by
the Landlord from the Demised Premises); and
3.26.3 all losses which may at any time be made or
claimed against or incurred suffered or
sustained by the Landlord and arising either
directly or indirectly in any manner out of
any alterations additions repairs or
development from time to time carried out on
the Demised Premises during the Term; and
3.26.4 all losses which may at any time be made or
claimed against the Landlord by the Tenant
or by any employee servant agent or
contractor of the Tenant or any third party
or parties or by their respective dependents
arising either directly or indirectly in any
manner out of the ownership operation use
occupation maintenance or demise of the
Demised Premises during the Term or the
construction of the Demised Premises whether
such losses may be attributable to any
defect in the Demised Premises or otherwise
and whether or not the Demised Premises or
the relevant part thereof is in the
possession or control of the Tenant and
without prejudice to the generality of the
foregoing the provisions of this Clause
shall extend to:
(i) claims of persons who have suffered or
alleged that they have suffered loss damage
or injury in connection with anything done
or not done on the Demised Premises
including claims in connection with any
substance emanating or threatening to
emanate from the Demised Premises; and
(ii) claims based on the doctrines of product
liability or strict liability or absolute
liability in tort or imposed by statute;
3.26.5 all losses which may at any time be made or
claimed against or incurred suffered or
sustained by the Landlord because of
ownership or demise of the Demised Premises
or any part thereof during the Term or
construction of the Demised Premises or any
part thereof or the use thereof during the
Term or because of any design article or
material therein or relating thereto or
arising from infringement or alleged
infringement during the Term of intellectual
property or other rights;
3.26.6 all losses which may at any time be made or
claimed against or incurred suffered or
sustained by the Landlord and which arise
from any breach non-performance or
nonobservance of the Tenant's covenants and
other obligations under this Lease;
Provided that the Landlord shall (so far as
practicable) take all reasonable steps to mitigate any
losses which it sustains or incurs and which might give
rise to a liability on the part of the Tenant under
this Clause 3.26 and Provided further that the Landlord
shall notify the Tenant of any claim brought against
the Landlord which might give rise to a claim under
this Clause 3.26 within six months of the Landlord
becoming aware of the claim and provided further that
the Landlord will not be entitled to recover from the
Tenant under this Clause 3.26 to the extent that it has
recovered and remains fully satisfied in respect of the
same loss from the Guarantor under the Sale of Business
Agreement;
3.27 WAIVER
The Landlord shall not be liable to the Tenant (and the
Tenant hereby waives any claim it might otherwise have
against the Landlord) for any losses in respect of any
injury loss or damage of whatsoever nature and
howsoever caused arising directly or indirectly out of
or in connection with the Demised Premises its design
construction installation use operation works of
reinstatement or ownership or any related works except
where such liability arises under the provisions of the
Sale of Business Agreement;
3.28 CONTINUANCE
The indemnities contained in Clause 3.26 shall continue
in full force and effect notwithstanding the expiration
or earlier determination of the Term in respect of any
losses (whenever suffered incurred or sustained)
resulting from any act or failure to act on the part of
any person (other than the Landlord) event state of
affairs or other thing occurring prior to the
expiration or earlier determination of the Term:
3.29 PREMIUM PAYMENTS
To comply with the obligations on its part contained in
the Eighth and Ninth Schedules.
4 LANDLORD'S COVENANTS
The Landlord HEREBY COVENANTS with the Tenant while it
owns the reversion immediately expectant on the Term as
follows:
4.1 QUIET ENJOYMENT
That the Tenant paying the rents hereby reserved and
the Premium and performing and observing the covenants
and agreements on the part of the Tenant hereinbefore
contained shall and may peaceably hold and enjoy the
Demised Premises during the Term without any
interruption by the Landlord or any person rightfully
claiming through under or in trust for it;
4.2 TO PAY OUT INSURANCE PROCEEDS
That where the Demised Premises have been destroyed or
damaged by any of the Insured Risks and the Landlord
has received insurance proceeds (other than for loss of
rent) from Insurers pursuant to the loss payable clause
contained in the insurance policy as a result of the
requirement in Clause 3.25.1 (ii) then the Landlord
shall procure that such insurance proceeds are paid to
an interest bearing account and on receipt of
satisfactory evidence of amounts expended or owed by
the Tenant to contractors sub-contractors professionals
or other suppliers of goods or services or any other
expenses incurred by the Tenant in complying with its
obligation to reinstate restore and rebuild contained
in Clause 3.25.4 within seven days of demand pay out to
the Tenant or (at the Tenant's request) directly to
such contractors sub-contractors professionals or
suppliers on the Tenant's behalf (against appropriate
invoices) so much of the said insurance proceeds as are
equal to such amounts together with any interest which
the Landlord has earned on the proceeds paid out while
they have been held by the Landlord Provided that for
the avoidance of doubt the Landlord shall not at any
time be obliged to pay out any loss of rent insurance
proceeds which it may have received or to pay out more
than the insurance proceeds (other than for loss of
rent) which it has actually received and not already
paid out under this Clause 4.2 Provided further that
any insurance proceeds received by the Landlord
pursuant to this Clause 4.2 (other than for loss of
rent) (together with all interest earned thereon) and
not paid out pursuant to the foregoing provision shall
be repaid by the Landlord to the Tenant within seven
days after the Demised Premises have been reinstated
restored or rebuilt (as the case may be) pursuant to
Clause 3.25.4 and once the Demised Premises have been
so reinstated restored or rebuilt such insurance
proceeds (together with such interest) shall belong
absolutely to the Tenant;
4.3 PREMIUM PAYMENTS
To comply with the obligations on its part contained in
the Eighth and Ninth Schedules.
5 PROVISOS
5.1 FORFEITURE
Prior to the Satisfaction Date:
5.1.1 If the rents hereby reserved or any part
thereof shall at any time be in arrear for
twenty-one days after the same shall have
been demanded by the Landlord; or
5.1.2 If any instalment of the Premium or any part
thereof shall at any time be in arrear for
twenty-one days after the same shall have
become due; or
5.1.3 If there shall be any Material Breach which
has not been remedied within two months of
notice of the Material Breach having been
given to the Tenant by the Landlord; or
5.1.4 If a Bankruptcy Order or an Administration
Order is made in respect of the Tenant or
the Guarantor; or
5.1.5 If a resolution is passed or an Order is
made for the winding-up of the Tenant or the
Guarantor otherwise than a member's
voluntary winding-up of a solvent company
for the purpose of amalgamation or
reconstruction previously approved by the
Landlord (such approval not to be
unreasonably withheld or delayed) (the
Landlord keeping confidential (save as
required by law) information it receives in
connection with the Tenant's or the
Guarantor's application for such approval);
or
5.1.6 If a receiver or administrative receiver is
appointed over the whole or any part of the
property assets or undertaking of the Tenant
or the Guarantor; or
5.1.7 If the Tenant or the Guarantor is struck off
the Register of Companies or is dissolved or
(being a corporation or company incorporated
outside Great Britain) is dissolved or
ceases to exist under the laws of the
country or state of its incorporation; or
5.1.8 If the directors of the Tenant or the
Guarantor make any proposal under Section 1
of the Insolvency Act 1986 or the Tenant or
the Guarantor proposes or makes any
agreement for the deferral rescheduling or
other readjustment (or proposes or makes a
general assignment or an arrangement or
composition with or for the benefit of the
relevant creditors) of all of (or all of a
particular type of its debts (or of any part
which it will or might otherwise be unable
to pay when due) or a moratorium is agreed
or declared in respect of or affecting all
or a material part of (or of a particular
type of the debts of the Tenant or the
Guarantor provided that where such proposal
agreement assignment arrangement composition
or moratorium relates to a particular type
of its debts or any part of its debts (as
opposed to all of its debts) the proposal
agreement assignment arrangement composition
or moratorium is material to the Landlord in
the context of this Lease and the Tenant's
or (as appropriate) the Guarantor's business
at the time and the Landlord shall have
served a written demand on the Tenant
pursuant to Clause 3.2 for the immediate
payment of all installments of the Premium
which have not yet fallen due and any part
of the Premium shall be in arrear for five
days after the service of such demand then
and in any such case it shall be lawful for
the Landlord at any time thereafter to re-
enter into and upon the Demised Premises or
any part thereof in the name of the whole
and to have again repossess and enjoy the
Demised Premises as in their former estate
and thereupon the Term shall absolutely
cease and determine but without prejudice to
any rights or remedies of the Landlord to
receive unpaid Premium or in respect of any
antecedent breach of any of the covenants or
conditions contained in this Lease and if
the Term shall so determine before the
Satisfaction Date it shall be as if the
assignment of the Quota Rights contained in
Clause 2 had not been made PROVIDED THAT
nothing in this Clause shall entitle the
Landlord peaceably to re-enter the Demised
Premises without an order of the Court;
5.2 NO IMPLIED EASEMENTS
Neither the granting of this Lease nor anything herein
contained shall by implication of law or otherwise
operate or be deemed to confer upon the Tenant any
easement right or privilege whatsoever over or against
any Adjoining Property or which would or might restrict
or prejudicially affect the future rebuilding
alteration or development of any Adjoining Property and
the Landlord shall have the right at any time to make
such alterations to or to pull down and rebuild or
redevelop any Adjoining Property as it may deem fit
without obtaining any consent from the Tenant;
5.3 NO RESTRICTIONS ON ADJOINING PROPERTY
Neither the granting of this Lease nor anything herein
contained or implied shall impose or be deemed to
impose any restriction on the use of any land or
building not comprised in this Lease or give the Tenant
the benefit of or the right to enforce or to have
enforced or to prevent the release or modification of
any covenant agreement or condition entered into by any
purchaser from or by any lessee or occupier of the
Landlord in respect of property not comprised in this
Lease or prevent or restrict in any way the development
of any land not comprised in this Lease;
5.4 NO COMPENSATION
Except where any Act of Parliament prohibits or
modifies the right to compensation being excluded or
reduced by agreement neither the Tenant nor any
undertenant (whether immediate or derivative) shall be
entitled on quitting the Demised Premises or any part
thereof to claim any compensation from the Landlord
under the Landlord and Tenant Act 1954 or any other Act
of Parliament whether enacted before or after the date
hereof;
5.5 CESSER OF RENT
In case any Generating Set at the Demised Premises
shall at any time during the Term be so damaged or
destroyed by any of the Insured Risks as to render the
Generating Set unfit for use then the portion of the
rent FIRST hereinbefore reserved and for the time being
payable hereunder which is allocated to the Generating
Set in accordance with the allocation set out in the
Fourth Schedule shall be suspended until the Generating
Set shall again be rendered fit for use or until the
loss of rent insurance effected pursuant to Clause
3.25.2 shall be exhausted (whichever shall be the
earlier) but only to the extent that proceeds of the
loss of rent insurance effected under this Lease are
paid to the Landlord to reimburse the Landlord for the
loss of such rents;
5.6 NOTICES
5.6.1 Any Notice or other communication required
to be given or served under or in connection
with this Lease shall be in writing and
shall be sufficiently given or served if
delivered or sent:
In the case of the Landlord to:
National Power PLC
Windmill Hill Business Park
Whitehall Way
Swindon
Wiltshire SN5 6PB
Fax: 01793 892781
Attention: Company Secretary
or to such other address in substitution
therefor as is notified in writing by the
Landlord to the Tenant and the Guarantor
hereafter
In the case of the Tenant to:
Eastern Merchant Properties Limited
PO Box 40
Wherstead Park
Wherstead
Ipswich
Suffolk IP9 2AQ
Fax: 01473 553002
Attention: The Company Secretary
or to such other address in substitution
therefor as is notified in writing by the
Tenant to the Landlord hereafter
In the case of the Guarantor to:
Eastern Group plc
PO Box 40
Wherstead Park
Wherstead
Ipswich
Suffolk IP9 2AQ
Fax: 01473 553002
Attention: The Company Secretary
or to such other address in substitution
therefor as is notified in writing by the
Guarantor to the Landlord hereafter;
5.6.2 Any such notice or other communication shall
be delivered by hand or sent by courier fax
or prepaid first class post. If sent by
courier or fax such notice or communication
shall conclusively be deemed to have been
given or served at the time of despatch in
the case of service in the United Kingdom or
on the following Business Day in the case of
international service. If sent by post such
notice or communication shall conclusively
be deemed to have been received two Business
Days from the time of posting in the case of
inland mail in the United Kingdom or three
Business Days from the time of posting in
the case of international mail;
5.6.3 In this Clause 5.6 BUSINESS DAY means a day
on which banks are open for business in
England (excluding Saturdays Sundays and
public holidays);
5.7 EXCLUSION OF S.62 LPA
The operation of Section 62 of the Law of Property Act
1925 shall be excluded from this Lease and the only
rights granted to the Tenant are those expressly set
out in this Lease and the Tenant shall not by virtue of
this Lease be deemed to have acquired or be entitled to
and the Tenant shall not during the Term acquire or
become entitled by any means whatsoever to any easement
from or over or affecting any other land or premises
now or at any time hereafter belonging to the Landlord
and not comprised in this Lease;
5.8 REPRESENTATION
The Tenant acknowledges that this Lease has not been
entered into in reliance wholly or partly on any
warranty undertaking statement or representation made
by or on behalf of the Landlord except any such
warranty undertaking statement or representation that
is expressly set out in this Lease or in the Sale of
Business Agreement and (so far as permitted by law)
waives any remedy in respect of any such warranties
undertakings statements and representations not
expressly set out in this Lease or in the Sale of
Business Agreement;
5.9 WORKING DAYS
In the event that any payment to be made by the Tenant
to the Landlord hereunder falls due on a day being a
Saturday or a Sunday or a day on which banking
institutions in England are authorised by law to close
and on which dealings are not carried on in the London
Interbank Market in Sterling then such payment shall be
made on the immediately preceding day not being such a
day;
5.10 SEVERANCE
If any term or provision of this Lease is held to be
illegal or unenforceable in whole or in part under any
enactment or rule of law such term or provision or part
shall to that extent be deemed not to form part of this
Lease but the enforceability of the remainder of this
Lease shall not be affected;
5.11 GENUINE PRE-ESTIMATE
The parties acknowledge and agree that all sums payable
to the Landlord pursuant to the proviso set out in
Clause 3.2 have been agreed after due and careful
consideration by the parties and constitute a genuine
and reasonable pre-estimate of the loss the Landlord
would or is fairly expected to suffer in the
circumstances giving rise to payment under the said
proviso;
5.12 SUPPLY OF GOODS AND SERVICES ACT 1982
This Lease contains the whole agreement between the
parties relating to the subject matter of this Lease at
the date hereof to the exclusion of any terms which may
be implied by law by the Supply of Goods and Services
Act 1982;
5.13 SALE OF BUSINESS AGREEMENT
Nothing contained in this Lease shall absolve the
Landlord from or constitute an indemnity on the part of
the Tenant in respect of any liabilities which may
arise under Clause 2.3.2 or 2.3.3 of the Sale of
Business Agreement or the warranties contained in
Paragraph 6.3 of Schedule 2 to the Sale of Business
Agreement;
5.14 WITHHOLDINGS AND DEDUCTIONS
All sums payable under this Lease shall be paid free
and clear of all deductions or withholdings whatsoever
save only as provided in this Lease or as may be
required by law and without abatement or set-off
(whether equitable or otherwise). If any deductions or
withholdings are required by law the party making the
payment shall (except in the case of payments of
interest including payments under paragraph 6.2.4 of
the Eighth Schedule) be obliged to pay the other party
such sums as will after such deduction or withholding
has been made leave the other party with the same
amounts as it would have been entitled to receive in
the absence of any such requirement to make a deduction
or withholding;
6 GUARANTEE
The Guarantor covenants with the Landlord in the terms
set out in the Sixth Schedule.
7 OPTION
7.1 The Tenant may at any time during the Term following
the date fifty years and one month following the date
hereof give notice (the NOTICE) to the Landlord
requiring the Landlord to sell to the Tenant the
freehold reversion to the Demised Premises (the
REVERSION). The consideration for the sale shall be
one pound (pound 1);
7.2 The Landlord shall within twenty-eight days of receipt
of the Notice deduce title to the Reversion and shall
use all reasonable endeavours to deal with all
reasonable enquiries and requisitions relating thereto
which may be made by the Tenant and take all reasonable
steps to vest the Reversion in the Tenant;
7.3 The form of transfer or conveyance shall be in such
form as shall be agreed between the parties (who shall
act reasonably) and in the absence of agreement in such
form as may be determined by Senior Conveyancing
Counsel agreed between the parties or appointed by the
Chairman of the Bar Association upon the application of
either party;
7.4 The sale and purchase of the Reversion shall take place
at the offices of the Landlord's solicitors within
twenty-eight days following notice from the Tenant to
the Landlord provided that such notice shall not be
served prior to the date which is twenty-eight days
following the Notice;
7.5 The transfer or conveyance shall contain a covenant
from the Tenant with the Landlord that the Tenant will
at all times thereafter perform and observe those
covenants conditions agreements declarations and other
provisions contained or referred to in or arising under
this Lease and the documents of title relating to the
Reversion so far as the same are still subsisting and
capable of taking effect and will keep the Landlord
indemnified from and against all actions claims demands
liabilities costs losses damages proceedings (whether
civil or criminal) penalties fines charges taxes levies
or duties or other sanctions and judgement costs
(including legal costs on a full indemnity basis) and
expenses in respect of any breach or non-observance
thereof;
7.6 In the event that the rights of pre-emption contained
in the three leases dated 31 March 1990 and made
between National Power PLC (1) and The National Grid
Company plc (2) of parts of the Reversion are exercised
prior to completion the Reversion shall not include the
areas of land which are the subject of the said rights
of pre-emption;
7.7 This option shall be of no effect if the Tenant fails
to register it as a land charge at HM Land Charges
Registry in relation to each of the counties in which
the Demised Premises are situated and by way of a
notice in the Charges Registers of Title Numbers
NT248499 NT249030 NT291811 SF7714 and SF86718 within
three months from the date of this Lease.
In witness whereof this document has been executed as a Deed
the day and year first before written.
FIRST SCHEDULE
PARTICULARS OF THE DEMISED PREMISES
(A) The power station land and buildings known as West Burton
Power Station off Gainsborough Road near Retford
Noftinghamshire in part registered under title numbers
NT248499 NT249030 and NT291811 and shown for the purpose of
identification only edged red on the plan annexed hereto and
marked "West Burton";
(B) The power station land and buildings known as Ironbridge
Power Station Buildwas Road Telford Shropshire and shown for
the purpose of identification only edged red on the plan
annexed hereto and marked "Ironbridge" and the land at
Devil's Dingle shown for the purpose of identification only
edged red on the plan annexed hereto and marked "Devil's
Dingle";
(C) The power station land and buildings known as Rugeley B
Power Station Armitage Road Rugeley Staffordshire in part
registered under title numbers SF7714 and SF86718 and shown
for the purpose of identification only edged red on the plan
annexed hereto and marked "Rugeley B";
SECOND SCHEDULE
PART 1
RIGHTS GRANTED
In favour of the Tenant and its lessees agents and
licensees and other persons who now have or may
hereafter be granted similar rights by the Tenant:
The right of passage and running of water telephone
electricity telegraphic and other services and supplies
of whatever nature from and to the Demised Premises
through such of the Conduits currently serving the
Demised Premises which are at the date of this Lease in
on or under the Adjoining Property and the right at all
reasonable times with or without workmen on giving
reasonable notice (except in an emergency) to the
Landlord to enter and remain upon those parts of the
Adjoining Property for the purpose of inspecting
cleansing repairing and maintaining such existing
Conduits subject to the Tenant causing the minimum
disturbance and damage to the Adjoining Property which
is reasonably practicable and making good forthwith all
damage caused thereby to the Adjoining Property to the
reasonable satisfaction of the Landlord;
MAP
Provided that the Landlord shall have the right at its
own expense to divert or relocate such Conduits to a
reasonable alternative location and the Tenant shall
co-operate in respect thereof and shall (where
appropriate) permit the Landlord to divert or relocate
such Conduits in or under the Demised Premises the
Landlord causing the minimum disturbance and damage to
the Demised Premises which is reasonably practicable
and making good forthwith all damage caused thereby to
the Demised Premises to the reasonable satisfaction of
the Tenant.
PART 2
EXCEPTIONS AND RESERVATIONS OUT OF THE DEMISE
In favour of the Landlord and its lessees agents and
licensees and all other persons who now have or may
hereafter be granted similar rights by the Landlord:
1 The right to erect or to consent hereafter to any
person erecting a new building or to alter any building
for the time being on the Adjoining Property in such
manner as the Landlord or the person or persons
exercising such right may think fit and notwithstanding
that such alteration or erection may diminish the
access of light and air enjoyed by the Demised Premises
and the right to deal with the Adjoining Property as it
may think fit;
2 At all reasonable times so far as may be necessary or
desirable with or without workmen the right on giving
reasonable notice (except in emergency) to the Tenant
to enter and remain upon the Demised Premises with all
necessary tools appliances and materials for the
purpose of carrying out construction or demolition work
at the Adjoining Property or repairing altering or
rebuilding the Adjoining Property and to cleanse empty
remove replace and repair or carry out works to any of
the Conduits belonging to the same;
3 At all reasonable times until the Satisfaction Date but
not thereafter so far as may be necessary with or
without workmen the right on giving reasonable notice
(except in emergency) to the Tenant to enter and remain
upon the Demised Premises with all necessary tools
appliances and materials for the purpose of repairing
or rebuilding the Demised Premises and to cleanse empty
and repair any of the Conduits belonging to the same
where the Tenant is in breach of its obligations
hereunder in relation thereto;
4 The right to lay Conduits at the Demised Premises for
the benefit of any Adjoining Property and the right of
passage and running of water steam soil gas telephone
electricity telegraphic and other services and supplies
of whatsoever nature from and to the Adjoining Property
through such of the Conduits serving the Adjoining
Property which now are or may before the expiration of
a period of eighty years from the date hereof (which is
the Perpetuity Period applicable to this Lease) be in
on or under the Demised Premises and the right at all
reasonable times with or without workmen on giving
reasonable notice (except in emergency) to the Tenant
to enter and remain upon the Demised Premises for the
purpose of laying inspecting repairing renewing
relaying cleansing maintaining and connecting up to any
such existing or future Conduits; Provided that the
Tenant shall have the right at its own expense to
divert or relocate such Conduits to a reasonable
alternative location and the Landlord shall co-operate
in respect thereof and shall (where appropriate) permit
the Tenant to divert or relocate such Conduits in or
under the Adjoining Property (the Tenant causing the
minimum disturbance and damage to the Adjoining
Property which is reasonably practicable and making
good forthwith all damage caused thereby to the
Adjoining Property to the reasonable satisfaction of
the Landlord).
Provided that the Landlord shall use all reasonable
endeavours to cause the minimum disturbance and damage
to the Demised Premises which is reasonably practicable
in the exercise of the rights contained in paragraphs 2
3 and 4 of this Schedule and shall make good forthwith
all damage caused thereby to the Demised Premises to
the reasonable satisfaction of the Tenant.
<PAGE>
THIRD SCHEDULE
DOCUMENTS WHICH AFFECT OR RELATE TO THE DEMISED PREMISES
(A) West Burton Power Station:
------------------------------------------------------------------
DATE DOCUMENT PARTIES
==================================================================
I FREEHOLD DEEDS
------------------------------------------------------------------
PART A
------------------------------------------------------------------
23 December Conveyance Rt. Hon Digby Wentworth Bayard
1921 Baron Middleton and others (1)
F Wright Esq (2)
------------------------------------------------------------------
1960 Abstract of Executors of F Wright Deceased
Title
------------------------------------------------------------------
28 March 1961 Conveyance Personal Representatives of
F Wright Deceased (1) to The
Central Generating Board ("CEGB")
(2)
------------------------------------------------------------------
PART B
------------------------------------------------------------------
1960 Abstract of F E Warburton Esq
Title
------------------------------------------------------------------
9 May 1961 Conveyance F E Warburton (1) to CEGB (2)
------------------------------------------------------------------
PART C
------------------------------------------------------------------
1960 Abstract of R Speed Esq
Title
------------------------------------------------------------------
25 April 1961 Conveyance R Speed (1) CEGB (2)
------------------------------------------------------------------
PART D
------------------------------------------------------------------
6 October 1921 Conveyance Rt Hon Digby Wentworth Bayard,
Baron Middleton and others (1)
Mr J B Booth (2)
------------------------------------------------------------------
9 June 1961 Deed J B Brown Deceased
Supplemental
to Assent
3.12.1956
------------------------------------------------------------------
15 June 1961 Conveyance Mrs E M W Brown & Others (1) CEGB
(2)
------------------------------------------------------------------
PART E
------------------------------------------------------------------
30 December Copy Baron Middleton & Others (1)
1921 Conveyance T H Atkinson (2)
------------------------------------------------------------------
6 July 1961 Acknowledgement R Collier Esq
------------------------------------------------------------------
6 July 1961 Conveyance R Collier Esq (1) CEGB (2)
------------------------------------------------------------------
PART F
------------------------------------------------------------------
1960 Abstract of Personal Representative of
Title Mr. Frederick Hill
------------------------------------------------------------------
22 June 1961 Acknowledgement Midland Bank Executors and Trustee
Co Ltd (1) CEGB (2)
------------------------------------------------------------------
22 June 1961 Conveyance Personal Representative of F Hill
Deceased (1) CEGB (2)
------------------------------------------------------------------
PART G
------------------------------------------------------------------
1961 Abstract of J W Baddiley
Title
------------------------------------------------------------------
17 July 1961 Conveyance J W Baddiley (1) CEGB (2)
------------------------------------------------------------------
PART H
------------------------------------------------------------------
13 September Conveyance J B Brown (1) J A Forrest (2)
1949
------------------------------------------------------------------
18 April 1961 Conveyance Mr J A Forrest (1) CEGB (2)
------------------------------------------------------------------
PART I
------------------------------------------------------------------
1947 Abstract of J W Muntus
Title
------------------------------------------------------------------
10 May 1961 Conveyance P E Muntus (1) CEGB (2)
------------------------------------------------------------------
PART J
------------------------------------------------------------------
1960 Abstract
Title
------------------------------------------------------------------
4 December Conveyance Murgatroyd (1) CEGB (2)
1961
------------------------------------------------------------------
PART K
------------------------------------------------------------------
1961 Abstract of
Title
------------------------------------------------------------------
20 November Conveyance Personal Representatives of E W S
1961 Foljambe (1) CEGB (2)
------------------------------------------------------------------
PART L
------------------------------------------------------------------
24 November Conveyance BTC (1) CEGB (2)
1961
------------------------------------------------------------------
PART M
------------------------------------------------------------------
1948 Abstract of
Title
------------------------------------------------------------------
25 April 1961 Conveyance Bland (1) CEGB (2)
------------------------------------------------------------------
PART N
------------------------------------------------------------------
1966 Abstract of
Title
------------------------------------------------------------------
1 July 1966 Conveyance Nottingham County Council (1) CEGB
(2)
------------------------------------------------------------------
PART P
------------------------------------------------------------------
Entries on the
registers of
title number
NT248499
------------------------------------------------------------------
PART Q
------------------------------------------------------------------
12 September Contract C Brown (1) CEGB (2)
1989
------------------------------------------------------------------
Entries on the
registers of
title number
NT249030
------------------------------------------------------------------
PART R
------------------------------------------------------------------
Entries on the
registers of
title number
NT291811
------------------------------------------------------------------
AS TO WHOLE
------------------------------------------------------------------
26 October Highway
1962 Diversion
Order
------------------------------------------------------------------
1 November Government Secretary of State for Energy (1)
1990 Debenture National Power PLC (2)
Deed
------------------------------------------------------------------
20 June 1996 Conveyance National Power PLC (1) Severn
Trent Water Ltd (2)
------------------------------------------------------------------
II CONSENTS LICENCES AND WAYLEAVES
------------------------------------------------------------------
13 June 1961 Wayleave Minister of Public
Order
------------------------------------------------------------------
4 October 1963 Notice of Minister of Public
abandonment
of oil
pipeline
------------------------------------------------------------------
16 June 1994 Wayleave East Midlands Electricity plc (1)
National Power PLC (2)
------------------------------------------------------------------
28 October Sidings British Railways Board (1) CEGB
1976 Agreement (2)
------------------------------------------------------------------
17 February BT Wayleave British Telecom Plc (1) National
1995 Power PLC (2)
------------------------------------------------------------------
16 September Section 106 Nottingham County Council (1)
1993 Agreement National Power PLC (2)
------------------------------------------------------------------
22 November Deed of Grant Crown Estates (1) CEGB (2)
1966
------------------------------------------------------------------
20 June 1996 Deed of Grant National Power PLC (1) Severn
Trent Water Ltd (2)
------------------------------------------------------------------
III LEASES AND LICENCES
------------------------------------------------------------------
31 March 1990 Lease National Power PLC (1) The
National Grid Company Plc ("NGC")
(2)
------------------------------------------------------------------
29 September Tenancy National Power PLC (1) P D & R E
1994 Warburton (2)
------------------------------------------------------------------
22 March 1995 Grazing National Power PLC (1) A R Baker
Licence (2)
------------------------------------------------------------------
22 March 1995 Grazing National Power PLC (1) C G Rowles
Licence Nicholson (2)
------------------------------------------------------------------
22 March 1995 Grazing National Power PLC (1) D B Brown
License (2)
------------------------------------------------------------------
13 December Agricultural National Power PLC (1) C G Rowles
1993 License Nicholson (2)
------------------------------------------------------------------
26 June 1996 Supplemental National Power PLC (1) NGC (2)
Lease
------------------------------------------------------------------
26 June 1996 Deed of National Power Plc (1) NGC (2)
Variation
------------------------------------------------------------------
25 June 1996 Lease National Power Plc (1) Ash
Resources Limited (2)
------------------------------------------------------------------
IV THE TRANSFER SCHEME DOCUMENTS
------------------------------------------------------------------
30 March 1990 License to CEGB (1)
Retain Assets East Midlands Electricity Board
(2)
------------------------------------------------------------------
30 March 1990 Interface CEGB (1)
Agreement East Midlands Electricity Board
(2)
------------------------------------------------------------------
31 March 1990 Interface National Power PLC (1)
Agreement NGC (2)
------------------------------------------------------------------
31 March 1990 Deed of National Power PLC (1) to
Easement for NGC (2)
Lines and
Cables
------------------------------------------------------------------
(B) Ironbridge Power Station:
------------------------------------------------------------------
I FREEHOLD DEEDS
------------------------------------------------------------------
AS TO PART A
------------------------------------------------------------------
8 August 1928 Conveyance H R Moseley (1) H G Archer &
G Elliott (2) WMJEA (3)
------------------------------------------------------------------
10 September Letter
1928
------------------------------------------------------------------
15 October Agreement F G Fowler (1) WMJEA (2)
1928
------------------------------------------------------------------
15 October Agreement W Bishop (1) WMJEA (2)
1928
------------------------------------------------------------------
15 October Agreement W W Parkes (1) WMJEA (2)
1928
------------------------------------------------------------------
15 October Agreement E Morgan (1) WMJEA (2)
1928
------------------------------------------------------------------
15 October Agreement E Hobson (1) WMJEA (2)
1928
------------------------------------------------------------------
23 October Agreement F M Cope-Darby (1) WMJEA (2)
1928
------------------------------------------------------------------
30 July 1965 Conveyance CEGB (1) F Lee & J Lee (2)
------------------------------------------------------------------
AS TO PART B
------------------------------------------------------------------
1964 Examined
Abstract of
Title
------------------------------------------------------------------
16 October Conveyance E G Wilkes (1) CEGB (2)
1964
------------------------------------------------------------------
26 August 1982 Conveyance CEGB (1) Mr and Mrs J A Owen (2)
------------------------------------------------------------------
AS TO PART C
------------------------------------------------------------------
24 June 1859 Deed of E Moseley & Others (1)
Release and Severn Valley Railway Company (2)
Disentailing and W Moseley (1) Severn Valley
Assurance Railway Company (2)
------------------------------------------------------------------
24 March 1860 Disentailing W Moseley (1)
Assurance Severn Junction Railway Co (2)
------------------------------------------------------------------
16 April 1929 Agreement Great Western Railway Co (1)
F Woodgates (2)
------------------------------------------------------------------
1947 Examined
Abstract of
Title
------------------------------------------------------------------
26 January Agreement BTC (1) R H V Drury (2)
1953
------------------------------------------------------------------
30 March 1966 Conveyance R H V Drury (1) CEGB (2)
------------------------------------------------------------------
9 March 1976 Agreement CEGB (1) A Shropshire & J Jones
(2)
------------------------------------------------------------------
24 September Duplicate CEGB (1) Mr and Mrs M Kay (2)
1986 Conveyance
------------------------------------------------------------------
8 May 1980 Conveyance CEGB (1) Shropshire County Council
(2)
------------------------------------------------------------------
5 February Letter Nature Conservancy Council
1986
------------------------------------------------------------------
28 March 1991 Conveyance M Roberts & Others (1) National
Power PLC (2)
------------------------------------------------------------------
20 December Conveyance National Power PLC (1) R H Jones
1995 (2)
------------------------------------------------------------------
AS TO PART D
------------------------------------------------------------------
16 November Guardianship Commissioners for Works (1)
1925 Deed Moseley (2)
------------------------------------------------------------------
1928 Examined
Abstract of
Title
------------------------------------------------------------------
8 August 1928 Conveyance H Moseley (1) WMJEA (2)
------------------------------------------------------------------
27 September Agreement BTC (1) J B Carr (2)
1948
------------------------------------------------------------------
2 June 1961 Guardianship H R Moseley (1) Commissioners for
Deed Works (2)
------------------------------------------------------------------
1 March 1963 Conveyance J B Carr (1) CEGB (2)
------------------------------------------------------------------
8 May 1980 Conveyance CEGB (1) Shropshire County Council
(2)
------------------------------------------------------------------
10 April 1981 Notice of Secretary of State for the
Ancient Environment
Monument
------------------------------------------------------------------
11 May 1994 Deed of National Power PLC (1)
Exchange The Secretary of State for
National Heritage (2)
------------------------------------------------------------------
11 February Duplicate National Power PLC (1)
1994 Conveyance Shropshire County Council (2)
------------------------------------------------------------------
9 February Subsidiary CEGB (1)
1984 Vesting Deed F W Carder & Others (2)
------------------------------------------------------------------
21 December Deed of National Power PLC (1)
1995 Guardianship Secretary of State for National
Heritage (2)
------------------------------------------------------------------
AS TO PART E
------------------------------------------------------------------
28 October Conveyance Rt Hon Lord Forester (1)
1859 Severn Valley Railway Co (2)
------------------------------------------------------------------
24 March 1860 Conveyance W Moseley (1)
Severn Junction Railway Co (2)
------------------------------------------------------------------
18 October Conveyance W Moseley (1)
1881 The Wenlock Railway Co (2)
------------------------------------------------------------------
1 March 1941 Agreement Salop County Council (1)
Great Western Railway Company (2)
------------------------------------------------------------------
15 January Agreement BTC (1)
1953 HAL Price (2)
------------------------------------------------------------------
16 December Conveyance British Railways Board (1)
1966 CEGB (2)
------------------------------------------------------------------
AS TO PART F
------------------------------------------------------------------
1964 Examined
Abstract of
Title
------------------------------------------------------------------
5 May 1967 Conveyance W A E Pryce (1) CEGB (2)
------------------------------------------------------------------
AS TO PART G
------------------------------------------------------------------
1966 Examined H G Passey
Abstract of
Title
------------------------------------------------------------------
8 August 1968 Conveyance H G Passey (1)
CEGB (2)
------------------------------------------------------------------
AS TO PART H
------------------------------------------------------------------
1954 Examined
Abstract of
Title
------------------------------------------------------------------
23 May 1967 Conveyance F R Coldicutt (1)
CEGB (2)
------------------------------------------------------------------
AS TO PART I
------------------------------------------------------------------
1928 Abstract of H R Moseley (1)
Title H G Archer & Another (2)
F Woodgates (3)
------------------------------------------------------------------
7 July 1930 Conveyance F Woodgates (1)
M Gilmore (2)
------------------------------------------------------------------
27 January Agreement H R Moseley (1)
1934 M Gilmore (2)
------------------------------------------------------------------
21 August 1942 Agreement J Stokes (1)
H Gilmore (2)
------------------------------------------------------------------
20 September Conveyance P R Gilmore (1)
1968 CEGB (2)
------------------------------------------------------------------
AS TO PART J
------------------------------------------------------------------
24 December Conveyance F Woodgates (1) L M Mason (2)
1929
------------------------------------------------------------------
26 August 1968 Conveyance L M Mason (1) CEGB (2)
------------------------------------------------------------------
AS TO PART K
------------------------------------------------------------------
18 January Conveyance F Woodgates (1) H Gilmore (2)
1929
------------------------------------------------------------------
7 November Land Charges G1060269
1969 Search
------------------------------------------------------------------
20 November Deed of CEGB (1) L E Gilmore (2)
1969 Exchange
------------------------------------------------------------------
AS TO PART L
------------------------------------------------------------------
27 February Deed of CEGB (1) E H Gilmore (2)
1970 Exchange
------------------------------------------------------------------
AS TO PART M
------------------------------------------------------------------
25 September Conveyance E C Baillie & Another (1) E G
1956 Wilkes (2)
------------------------------------------------------------------
4 August 1969 Conveyance E G Wilkes (1) CEGB (2)
------------------------------------------------------------------
AS TO PART N
------------------------------------------------------------------
1 June 1934 Conveyance J Todd (1) Hon Hamilton Russell
(2)
------------------------------------------------------------------
8 April 1970 Conveyance Coates of Kidderminster Ltd (1)
CEGB (2)
------------------------------------------------------------------
AS TO PART O
------------------------------------------------------------------
1947 Abstract of
Title
------------------------------------------------------------------
10 January Conveyance J Stokes & Another (1) M A Gilmore
1947 (2)
------------------------------------------------------------------
25 January Conveyance J B Carr (1) L D M Whitney (2)
1955
------------------------------------------------------------------
17 January Conveyance E H Gilmore (1) CEGB (2)
1972
------------------------------------------------------------------
AS TO PART P
------------------------------------------------------------------
1951 Examined
Abstract of
Title
------------------------------------------------------------------
4 May 1976 Conveyance Mr and Mrs F Lee (1) CEGB (2)
------------------------------------------------------------------
AS TO PART Q
------------------------------------------------------------------
5 July 1967 Conveyance British Railways Board (1) A J
Heritage (2)
------------------------------------------------------------------
13 December Conveyance F Woodgates (1) GWR Company (2)
1928
------------------------------------------------------------------
11 March 1974 Conveyance British Railways Board (1) CEGB
(2)
------------------------------------------------------------------
11 May 1994 Deed of National Power PLC (1) The
Exchange Secretary of State for National
Heritage (2)
------------------------------------------------------------------
AS TO PART R
------------------------------------------------------------------
11 May 1994 Deed of National Power PLC (1) The
Exchange Secretary of State for National
Heritage (2)
------------------------------------------------------------------
AS TO WHOLE
------------------------------------------------------------------
1 December Government Secretary of State for Energy (1)
1990 Debenture National Power PLC (2)
Deed
------------------------------------------------------------------
II LICENCES AND EASEMENTS
------------------------------------------------------------------
10 March 1931 Agreement Great Western Railway Co (1)
WMJEA (2)
------------------------------------------------------------------
5 April 1938 Agreement Great Western Railway Co (1)
WMJEA (2)
------------------------------------------------------------------
11 December Agreement Great Western Railway Co (1)
1940 WMJEA (2)
------------------------------------------------------------------
9 April 1957 Wayleave CEA (1)
Post Office (2)
------------------------------------------------------------------
28 March 1964 Agreement Atcham RDC (1)
CEGB (2)
------------------------------------------------------------------
1 April 1965 Agreement for W Shropshire Water Board (1)
------------------------------------------------------------------
1 January 1970 Domestic CEGB (2)
Water Supply
------------------------------------------------------------------
14 August 1964 Agreement for CEGB (1) Salop County Council (2)
Dedication of
Land for
Highway
Purposes
------------------------------------------------------------------
15 June 1966 License to Severn River Authority (1)
Impound and CEGB (2)
Inland Water
------------------------------------------------------------------
15 July 1966 Deed of A L Lowe (1) CEGB (2)
Easement
------------------------------------------------------------------
27 July 1966 Deed of P J Garvey (1) CEGB (2)
Easement
------------------------------------------------------------------
27 May 1980 Wayleave Midlands Electricity Board (1)
CEGB (2)
------------------------------------------------------------------
24 March 1969 Deed of CEGB (1) Mr and Mrs F Lee (2)
Covenant
------------------------------------------------------------------
11 October Sidings BRB (1) CEGB (2)
1972 Agreement
------------------------------------------------------------------
July 1976 Wayleave CEGB (1) The Post Office (2)
------------------------------------------------------------------
4 May 1976 Duplicate CEGB (1) Mr and Mrs F Lee (2)
Deed of Grant
of Easement
------------------------------------------------------------------
8 May 1980 Deed of Grant CEGB (1)
of Easement Shropshire County Council (2)
------------------------------------------------------------------
21 September Deed of CEGB (1) Shropshire County Council
1984 Variation (2)
------------------------------------------------------------------
2 March 1983 Deed of Grant Mr and Mrs O E Wood (1)
of Easement CEGB (2)
------------------------------------------------------------------
25 June 1982 Deed of Grant J E Arthur (1) GEGB (2)
of Easement
------------------------------------------------------------------
25 June 1982 Consent of R D Reynolds (1)
Grant of CEGB (2)
Easement
------------------------------------------------------------------
2.4.1982 Deed of Mr. Passey (1)
Easement CEGB (2)
------------------------------------------------------------------
2.2.1982 Consent of A Ratcliffe and others (1)
Easement CEGB (2)
------------------------------------------------------------------
11 August 1982 Deed of Grant M Berkeley (1)
of Easement CEGB (2)
------------------------------------------------------------------
4 February Deed of M Passey & Another (1) CEGB (2)
1982 Covenant
------------------------------------------------------------------
29 December Deed of H G Passey (1)
1962 Covenant The Agricultural Mortgage
Corporation Limited (2) CEGB (3)
------------------------------------------------------------------
10 December Wayleave Post Office (1) CEA (2)
1954
------------------------------------------------------------------
27 June 1979 Deed of E Passey (1) CEGB (2)
Covenant
------------------------------------------------------------------
To be Deed of Grant National Power PLC (1)
completed on Energis Communications Limited (2)
the date of
this Lease
------------------------------------------------------------------
III LEASES
------------------------------------------------------------------
25 January Lease CEGB (1) J Aitchison (2)
1973
------------------------------------------------------------------
30 March 1990 Lease CEGB (1) Midland Electricity Board
(2)
------------------------------------------------------------------
2 November Deed of National Power PLC (1) Midlands
1990 Confirmation Electricity PLC (2)
------------------------------------------------------------------
31 March 1990 Lease National Power PLC (1) The
National Grid Company plc (2)
------------------------------------------------------------------
20 September Lease CEGB (1) Severn Trent Water
1983 Authority (2)
------------------------------------------------------------------
9 March 1976 Counterpart National Power PLC (1)
Agricultural A E Shropshire and J K Jones (2)
Tenancy
------------------------------------------------------------------
15 April 1996 Grazing National Power PLC (1)
License M Aitchison (2)
------------------------------------------------------------------
15 April 1996 Grazing National Power PLC (1)
Licence A Lewis (2)
------------------------------------------------------------------
15 April 1996 Grazing National Power PLC (1)
License R Lewis (2)
------------------------------------------------------------------
20 December Deed National Power PLC (1) J K Jones
1995 (2)
------------------------------------------------------------------
26 June 1996 Supplemental National Power PLC (1) NGC (2)
Lease and
Deed of
Variation
------------------------------------------------------------------
IV TRANSFER SCHEME DOCUMENTS
------------------------------------------------------------------
31 March 1990 Interface The National Grid Company plc (1)
Agreement National Power PLC (2)
------------------------------------------------------------------
31 March 1990 Deed of Grant National Power PLC (1) The
National Grid Company plc (2)
------------------------------------------------------------------
30 March 1990 License to National Power PLC (1) Midlands
Retain Assets Electricity Board (2)
------------------------------------------------------------------
30 March 1990 Interface National Power PLC (1) Midlands
Agreement Electricity Board (2)
------------------------------------------------------------------
(C) Rugeley B Power Station:
------------------------------------------------------------------
AS TO PART A
------------------------------------------------------------------
21 November Conveyance Trustees of Earl of Shrewsbury &
1923 Earl Talbot (1) B Neville (2)
------------------------------------------------------------------
16 October Conveyance W E Dunnicliffe (1) BEA (2)
1953
------------------------------------------------------------------
AS TO PART B
------------------------------------------------------------------
7 December Conveyance Earl of Shrewsbury (1) BEA (2)
1953
------------------------------------------------------------------
14 April 1965 Deed of CEGB (1) NCB (2)
Exchange
------------------------------------------------------------------
26 August 1955 The BEA
(Langley
Common) CPO
1954
------------------------------------------------------------------
AS TO PART C
------------------------------------------------------------------
24 December Conveyance H Clarke (1) BEA (2)
1953
------------------------------------------------------------------
14 April 1965 Deed of CEGB (1) NGC (2)
Exchange
------------------------------------------------------------------
22 January Transfer Deed CEGB (1) National Coal Board (2)
1986
------------------------------------------------------------------
26 August 1955 The BEA
(Langley
Common) CPO
1954
------------------------------------------------------------------
AS TO PART D
------------------------------------------------------------------
1953 Examined
Abstract of
Title and
Supplemental
Abstract
------------------------------------------------------------------
16 October Conveyance H I Meanley (1) BEA (2)
1953
------------------------------------------------------------------
AS TO PART E
------------------------------------------------------------------
1953 Examined
Abstract of
Title
------------------------------------------------------------------
4 June 1954 Conveyance The Shrewsbury & Wem Brewery
Company & Others (1) BEA (2)
------------------------------------------------------------------
14 April 1965 Deed of CEGB (1) National Coal Board (2)
Exchange
------------------------------------------------------------------
22 January Transfer Deed CEGB (1) National Coal Board (2)
1986
------------------------------------------------------------------
AS TO PART F
------------------------------------------------------------------
28 October Conveyance A C Caddick (1) BEA (2)
1954
------------------------------------------------------------------
AS TO PART G
------------------------------------------------------------------
1954 Examined
Abstract of
Title
------------------------------------------------------------------
6 December Conveyance S Craddock (1) BEA (2)
1954
------------------------------------------------------------------
AS TO PART H
------------------------------------------------------------------
24 June 1946 Conveyance H C Ridout (1) Rugeley UDC (2)
------------------------------------------------------------------
8 February Conveyance Rugeley UDC (1) CEGB (2)
1963
------------------------------------------------------------------
AS TO PART I
------------------------------------------------------------------
1963 Examined
Abstract of
Title
------------------------------------------------------------------
22 June 1963 Conveyance F Smith (1) CEGB (2)
------------------------------------------------------------------
19 January Transfer Deed CEGB (1) British Waterways Board
1981 (2)
------------------------------------------------------------------
14 February Transfer Deed CEGB (1) British Waterways Board
1983 (2)
------------------------------------------------------------------
20 May 1985 Conveyance CEGB (1) National Coal Board (2)
------------------------------------------------------------------
7 May 1986 Deed of CEGB (1) National Coal Board (2)
Rectification
------------------------------------------------------------------
AS TO PART J
------------------------------------------------------------------
29 August 1949 Conveyance W T Punchard (1) S J Taylor (2)
------------------------------------------------------------------
3 November Conveyance S J Taylor (1) CEGB (2)
1964
------------------------------------------------------------------
AS TO PART K
------------------------------------------------------------------
9 April 1956 Conveyance S J Taylor (1) G A Rutter (2)
------------------------------------------------------------------
15 January Conveyance H Bradshaw & E Green (1) CEGB (2)
1965
------------------------------------------------------------------
AS TO PART L
------------------------------------------------------------------
31 January Conveyance CEGB (1) B G Gould (2)
1966
------------------------------------------------------------------
19 September Conveyance CEGB (1) Rugeley UDC (2)
1972
------------------------------------------------------------------
16 March 1977 Conveyance CEGB (1) M J Gleeson Ltd (2)
------------------------------------------------------------------
4 November Conveyance CEGB (1) ABI Properties Ltd (2)
1977
------------------------------------------------------------------
30 June 1978 Conveyance CEGB (1) Impetus Engineering Ltd
(2)
------------------------------------------------------------------
20 December Conveyance CEGB (1) Siaco Ltd (2)
1978
------------------------------------------------------------------
AS TO PART M
------------------------------------------------------------------
2 June 1954 Conveyance S Johnson (1) A Parker & Sons Ltd
(2)
------------------------------------------------------------------
24 February Conveyance A Parker & Sons Ltd (1) CEGB (2)
1965
------------------------------------------------------------------
19 September Conveyance CEGB (1) Rugeley UDC (2)
1972
------------------------------------------------------------------
AS TO PART N
------------------------------------------------------------------
9 October 1912 Conveyance H Sharratt (1) Rugeley UDC (2)
------------------------------------------------------------------
6 June 1961 License NCB (1) Rugeley UDC (2)
------------------------------------------------------------------
13 April 1965 Conveyance Rugeley UDC (1) CEGB (2)
------------------------------------------------------------------
AS TO PART O
------------------------------------------------------------------
1958 Examined
Abstract of
Title
------------------------------------------------------------------
14 April 1965 Deed of CEGB (1) NCB (2)
Exchange
------------------------------------------------------------------
AS TO PART P
------------------------------------------------------------------
29 July 1966 Conveyance Official Custodian for Charities
(1) Stafford County Council (2)
CEGB (3)
------------------------------------------------------------------
AS TO PART Q
------------------------------------------------------------------
30 May 1952 Conveyance C B Walker (1) National Coal Board
(2)
------------------------------------------------------------------
14 April 1953 Conveyance R Gates (1) National Coal Board
(2)
------------------------------------------------------------------
23 September Conveyance A Parker (1) National Coal Board
1953 (2)
------------------------------------------------------------------
18 June 1952 Conveyance Earl of Shrewsbury (1) National
Coal Board (2)
------------------------------------------------------------------
30 November Conveyance F Ridout (1) National Coal Board
1951 (2)
------------------------------------------------------------------
31 May 1954 Conveyance T Swan & Co (1) National Coal
Board (2)
------------------------------------------------------------------
8 April 1952 Conveyance A Parker (1) National Coal Board
(2)
------------------------------------------------------------------
4 September Conveyance A Caddick (1) National Coal Board
1952 (2)
------------------------------------------------------------------
24 January Conveyance M J Richards (1) National Coal
1953 Board (2)
------------------------------------------------------------------
5 July 1957 Conveyance Official Trustee Charities (1)
National Coal Board (2)
------------------------------------------------------------------
5 August 1966 Conveyance National Coal Board (1) CEGB (2)
------------------------------------------------------------------
Various Easements for Midlands Electricity Board (1)
lines and Various (2)
cables
------------------------------------------------------------------
AS TO PART R
------------------------------------------------------------------
Entries on the
registers of
title number
SF7714
------------------------------------------------------------------
AS TO PART S
------------------------------------------------------------------
Entries on the
registers of
title number
SF86718
------------------------------------------------------------------
5 April 1976 Conveyance CEGB (1) British Waterways Board
(2)
------------------------------------------------------------------
II LICENCES
------------------------------------------------------------------
22 July 1947 Equitable Rugeley UDC (1) Earl of Shrewsbury
Easement and Others (2)
------------------------------------------------------------------
19 January Pillar of National Coal Board (1)
1962 Support CEGB (2)
Agreement
------------------------------------------------------------------
19 June 1970 Agreement for South Staffordshire Water Works
supply of Company (1) CEGB (2)
water to
Rugeley B
------------------------------------------------------------------
5 July 1972 Sidings British Railways Board (1) CEGB
Agreement (2)
------------------------------------------------------------------
20 January CEGB (1) Celcon Limited (2)
1966
------------------------------------------------------------------
27 September Deed of Grant British Railways Board (1) CEGB
1973 (2)
------------------------------------------------------------------
Various Ministry of Transport
stopping up
orders
------------------------------------------------------------------
8 January 1995 Wayleave National Power PLC (1) Midlands
Electricity plc (2)
------------------------------------------------------------------
26 June 1994 License National Power PLC (1) F W Lewis
(2)
------------------------------------------------------------------
10 September Deed of S Smith & Others (1) National
1990 Release Power PLC (2)
------------------------------------------------------------------
11 July 1995 License National Power PLC (1) Milk Marque
Lloyd Fraser (Dairy Services)
Limited (2)
------------------------------------------------------------------
------------------------------------------------------------------
III LEASES
------------------------------------------------------------------
7 August 1995 Lease National Power PLC (1) Pozzolanic
Lytag Limited (2)
------------------------------------------------------------------
30 March 1990 Lease CEGB (1) and Midlands Electricity
Board (2)
------------------------------------------------------------------
31 March 1990 Lease National Power PLC (1) NGC (2)
------------------------------------------------------------------
2 November Deed of National Power PLC (1) Midlands
1990 Confirmation Electricity PLC (2)
------------------------------------------------------------------
26 June 1996 Supplemental National Power PLC (1) NGC (2)
Lease
------------------------------------------------------------------
IV THE TRANSFER SCHEME DOCUMENTS
------------------------------------------------------------------
30 March 1990 Interface CEGB (1) Midlands Electricity
Agreement Board (2)
------------------------------------------------------------------
30 March 1990 License to Central Electricity Generating
Retain Assets Board (1) Midlands Electricity
Board (2)
------------------------------------------------------------------
31 March 1990 Deed of Grant National Power PLC (1) The
National Grid Company plc (2)
------------------------------------------------------------------
31 March 1990 Interface National Grid Company plc (1)
Agreement National Power PLC (2)
------------------------------------------------------------------
<PAGE>
Fourth Schedule
Allocation of rent first reserved to Generating Sets
Generating Set Rent (pound per annum)
(A) West Burton Power Station
Generating Set 1 12,500
Generating Set 2 12,500
Generating Set 3 12,500
Generating Set 4 12,500
(B) Ironbridge Power Station
Generating Set 1 12,500
Generating Set 2 12,500
(C) Rugeley B Power Station
Generating Set 1 12,500
Generating Set 2 12,500
Fifth Schedule
Landlord's Fixtures and Fittings
(A) West Burton Power Station
------------------------------------------------------------------
QUANTITY DESCRIPTION
==================================================================
1 Heavy Oil Tanks
------------------------------------------------------------------
1 Coal Handling Plant System
------------------------------------------------------------------
1 Rail Weighbridge
------------------------------------------------------------------
1 Road Weighbridge
------------------------------------------------------------------
1 Ash & Dust Handling Plant System
------------------------------------------------------------------
1 Final Metering Scheme
------------------------------------------------------------------
4 Boiler Structures
------------------------------------------------------------------
4 Boiler-Feedwater Systems
------------------------------------------------------------------
4 Boiler-Combustion Air System
------------------------------------------------------------------
4 Boiler-Gas System
------------------------------------------------------------------
4 Oil & Gas Firing System
------------------------------------------------------------------
4 Coal Firing System
------------------------------------------------------------------
4 Low Nox Bumers
------------------------------------------------------------------
4 Boiler Auxiliary System
------------------------------------------------------------------
1 Boiler Control & Protection Systems
------------------------------------------------------------------
4 HP & IP Turbine plus Auxiliaries
------------------------------------------------------------------
4 LP Turbines plus Auxiliaries
------------------------------------------------------------------
4 Generator plus Auxiliaries
------------------------------------------------------------------
4 Governing Equip & Hydraulic
------------------------------------------------------------------
4 Condenser & Air Extraction
------------------------------------------------------------------
4 Condensate System
------------------------------------------------------------------
4 Taprogge System
------------------------------------------------------------------
4 LP Feed Heating
------------------------------------------------------------------
4 Feedwater Tanks
------------------------------------------------------------------
8 Electric Feed Pump
------------------------------------------------------------------
4 Main Boiler Feed Pump Turbine plus Pump
------------------------------------------------------------------
4 HP Feed System
------------------------------------------------------------------
1 Main & Auxil. CW
------------------------------------------------------------------
1 Water Treatment Plant & associated Water Systems
------------------------------------------------------------------
1 Hydrogen Production Plant (Not Maintained)
------------------------------------------------------------------
1 Auxil, Steam & Condensate
------------------------------------------------------------------
1 Fire Detection & Fire Fighting Equipment
------------------------------------------------------------------
1 Cranes Lifts & Hoists
------------------------------------------------------------------
1 Services Transformer HVLV
------------------------------------------------------------------
1 Air Conditioning System
------------------------------------------------------------------
4 Generator Transformer
------------------------------------------------------------------
1 Station Elect System
------------------------------------------------------------------
4 Unit Elect Systems
------------------------------------------------------------------
1 General Services Water Supply
------------------------------------------------------------------
1 Compressed Air System
------------------------------------------------------------------
(B) Ironbridge Power Station
------------------------------------------------------------------
QUANTITY DESCRIPTION
==================================================================
1 Heavy Oil Tank
------------------------------------------------------------------
1 Coal Handling Plant System
------------------------------------------------------------------
2 Weighbridges
------------------------------------------------------------------
4 Rail Coal Weighbridges
------------------------------------------------------------------
1 Rail Coal Sampler
------------------------------------------------------------------
1 Road Coal Sampler
------------------------------------------------------------------
1 Ash & Dust Handling Plant System
------------------------------------------------------------------
1 Final Metering Scheme
------------------------------------------------------------------
2 Boiler Structures
------------------------------------------------------------------
2 Boiler Superheat & Reheat System
------------------------------------------------------------------
2 Boiler Combustion Air System
------------------------------------------------------------------
2 Boiler Gas System
------------------------------------------------------------------
1 S03 Injection Equipment
------------------------------------------------------------------
2 Oil and Gas Firing Systems
------------------------------------------------------------------
2 Coal Firing System
------------------------------------------------------------------
2 Boiler Auxiliary System
------------------------------------------------------------------
2 Sootblower Equipment
------------------------------------------------------------------
1 Low Nox Burner Installation
------------------------------------------------------------------
2 Boiler Control and Protn. System
------------------------------------------------------------------
2 HP and IP Turbines plus Auxiliaries
------------------------------------------------------------------
2 LP Turbines plus Auxiliaries
------------------------------------------------------------------
2 Generator plus Auxiliaries
------------------------------------------------------------------
2 Condensate System
------------------------------------------------------------------
2 LP Feed Heating System
------------------------------------------------------------------
4 Electric Feed Pumps
------------------------------------------------------------------
2 HP Feed System
------------------------------------------------------------------
2 Chemical Dosing
------------------------------------------------------------------
1 Main & Auxil. CW Systems
------------------------------------------------------------------
1 Water Treatment & Associated Water Systems
------------------------------------------------------------------
1 Hydrogen Production Plant
------------------------------------------------------------------
1 Auxil. Steam & Condensate
------------------------------------------------------------------
1 Compressed Air Systems
------------------------------------------------------------------
1 Fire Detection and Fire Fighting Equipment
------------------------------------------------------------------
1 Cranes Lifts & Hoists
------------------------------------------------------------------
1 Services Transformer (HV/LV)
------------------------------------------------------------------
1 Services Switchboard
------------------------------------------------------------------
1 Stn. elect. System
------------------------------------------------------------------
2 Unit Elect. System
------------------------------------------------------------------
2 Generator Transformers
------------------------------------------------------------------
2 Turbine Governing Equipment
------------------------------------------------------------------
1 General Services Water Supply
------------------------------------------------------------------
2 Condenser & Air Extraction Systems
------------------------------------------------------------------
(C) Rugeley B Power Station
------------------------------------------------------------------
QUANTITY DESCRIPTION
==================================================================
1 Heavy Oil Tanks
------------------------------------------------------------------
1 Coal Handling Plant System
------------------------------------------------------------------
4 Rail Coal Weighbridges
------------------------------------------------------------------
2 Road Weighbridge
------------------------------------------------------------------
1 Ash & Dust Handling Plant System
------------------------------------------------------------------
1 Final Metering Scheme
------------------------------------------------------------------
2 Boiler Structures
------------------------------------------------------------------
2 Boiler Superheat & Reheat Steam Systems
------------------------------------------------------------------
2 Attemporator Spray Feedwater Systems
------------------------------------------------------------------
2 Boiler Combustion Air System
------------------------------------------------------------------
2 Boiler Gas System
------------------------------------------------------------------
2 Oil and Gas Firing Systems
------------------------------------------------------------------
2 Coal Firing System
------------------------------------------------------------------
2 Boiler Auxiliary System
------------------------------------------------------------------
2 Sootblower Equipment
------------------------------------------------------------------
2 Boiler Control and Protn. System
------------------------------------------------------------------
2 HP & IP Turbine plus Auxiliaries
------------------------------------------------------------------
2 LP Turbines plus Auxiliaries
------------------------------------------------------------------
2 Generator plus Auxiliaries
------------------------------------------------------------------
2 Turbine Governing Equipment
------------------------------------------------------------------
2 Condenser & Air Extraction System
------------------------------------------------------------------
2 LP Feed Heating
------------------------------------------------------------------
4 Electric Feed Pumps
------------------------------------------------------------------
2 HP Feed System
------------------------------------------------------------------
1 Main & Auxil. CW (incl. Chlorination Plant)
------------------------------------------------------------------
1 Water Treatment Plant & Associated Water Systems
------------------------------------------------------------------
1 Acid Dosing Plant
------------------------------------------------------------------
1 Sodium Hyperchlorite Plant
------------------------------------------------------------------
1 General Services Water Supply
------------------------------------------------------------------
1 Hydrogen Generation Plant
------------------------------------------------------------------
1 Auxil. Steam & Condensate System
------------------------------------------------------------------
1 Compressed Air Systems
------------------------------------------------------------------
1 Fire Detection and Fire Fighting Equipment
------------------------------------------------------------------
1 Cranes Lifts & Hoists
------------------------------------------------------------------
1 Services Transformer (HV/LV)
------------------------------------------------------------------
1 Pollution Monitoring Equipment
------------------------------------------------------------------
1 Station Elect. System
------------------------------------------------------------------
2 Unit Elect. Systems
------------------------------------------------------------------
2 Generator Transformers
------------------------------------------------------------------
SIXTH SCHEDULE
GUARANTEE
1 The Guarantor covenants with the Landlord as principal
debtor that throughout the Term or until the Tenant is
released from its covenants pursuant to the 1995 Act:
1.1 The Tenant will pay the Premium and the rents reserved by
and perform its obligations contained in this Lease on the
days and in the manner provided for in this Lease;
1.2 The Guarantor will indemnify on an after-tax basis the
Landlord on demand against all losses damages costs and
expenses properly arising from any default of the Tenant
in paying the Premium and the rents and performing its
obligations under this Lease;
2 The liability of the Guarantor shall not be affected by:
2.1 Any time given to the Tenant or any failure by the
Landlord to enforce compliance with the Tenant's covenants
and obligations;
2.2 The Landlord's refusal to accept rent or any part of the
Premium at a time when it would or might have been
entitled to re-enter the Demised Premises;
2.3 Any variation of the terms of this Lease;
2.4 Any change in the constitution structure or powers of the
Guarantor the Tenant or the Landlord or the administration
liquidation or bankruptcy of the Tenant or Guarantor;
2.5 Any act which is beyond the powers of the Tenant;
2.6 The surrender of part of the Demised Premises;
2.7 The transfer of the reversion expectant on the Term;
2.8 Any other act or thing by which (but for this provision)
the Guarantor would have been released;
3 Where two or more persons have guaranteed obligations of
the Tenant the release of one or more of them shall not
release the others;
4 The Guarantor shall not be entitled to participate in any
security held by the Landlord in respect of the Tenant's
obligations or stand in the Landlord's place in respect of
such security.
SEVENTH SCHEDULE
QUOTA RIGHT
PART A
AUTHORISATIONS QUOTA
Sulphur dioxide (kilotonnes)
For the period from the 27.9 per month (and pro rata for
date hereof to 31 part months)
December 1996
1997 315
1998 287
1999 233
2000 233
2001 103
2002 103
2003 103
2004 103
2005 75
PART B
UK PLAN OUOTA
Sulphur dioxide (kilotonnes)
1996 27.9 for each month by which the
date of this Lease falls before
31 December 1996 (and pro rata for
part months)
1997 315
1998 287
1999 233
2000 233
2001 103
2002 103
2003 103
Oxides of nitrogen (kilotonnes)
1996 8.2 for each month by which the
date of this Lease falls before 31
December 1996 (and pro rata for
part months)
1997 89
1998 85
EIGHTH SCHEDULE
PREMIUM
1 DEFINITIONS
In this Schedule and the Ninth Schedule the following
expressions have the following meanings:
1.1 AGGREGATE GENERATING OUTPUT means in respect of any
Measurement Period the aggregate (expressed in MWh) of
the values produced by the following calculation for each
Generating Unit at each Power Station in respect of
each Settlement Period during that Measurement Period:
(a) if the Genset Metered Generation for a Generating
Unit for any such half hour period is greater than
zero, the higher of the Genset Metered Generation
for that Generating Unit and the Genset Revised
Unconstrained Generation for that Generating Unit
for that half hour period; and
(b) if the Genset Metered Generation for a Generating
Unit for any such half hour period is zero, zero;
provided that it shall be treated as zero for any
Measurement Period ending on or prior to Completion and
when Completion falls within a Measurement Period shall
be the aggregate of such values for the period commencing
with Completion and ending at the end of that
Measurement Period;
1.2 BASE OUTPUT means in respect of any Measurement
Period the generating amount specified in the Eleventh
Schedule for that Measurement Period;
1.3 COMPLETION means the date of the grant of this Lease;
1.4 ELECTRICITY ARBITRATION ASSOCIATION means the
unincorporated members' club of that name formed to
promote the efficient and economic operation of the
procedure for the resolution of disputes within the
electricity industry by means of arbitration or otherwise
in accordance with its arbitration rules;
1.5 EXPERT shall bear the meaning given to it in paragraph
2.7 of this Schedule;
1.6 GENERATING UNIT means all Generating Units registered
with Energy Settlement Information Services Limited (or
any successor body) whether Main Generating Unit
Auxiliary Generating Unit Centrally Despatched Generating
Unit or Non-Centrally Despatched Generating Unit as each
such term is defined in the Pooling and Settlement
Agreement and any other unit capable of the
generation of electricity installed at any of the Power
Stations;
1.7 GENSET METERED GENERATION shall bear the same meaning
as in the Pooling and Settlement Agreement as in force at
the date of this Lease subject to the provisions of
paragraph 2.7 of this Schedule;
1.8 GENSET REVISED UNCONSTRAINED GENERATION shall bear
the same meaning as in the Pooling and Settlement
Agreement as in force at the date of this Lease subject
to the provisions of paragraph 2.7 of this Schedule;
1.9 INDEX EXPERT shall bear the meaning given to it in
paragraph 3 of this Schedule;
1.10 INDEX VALUE means in respect of any Measurement
Period the quotient of (a) the arithmetic mean of the
monthly values of the Retail Prices Index for the twelve
months up to and including the RPI Reference Month
immediately prior to such Measurement Period divided by
(b) the arithmetic mean of the monthly values of the
Retail Prices Index for the twelve months up to and
including June 1995 such quotient being calculated to
five decimal places without rounding and then rounded
to the fourth decimal place (and a figure of five or
more in the fifth decimal place shall cause a rounding
up of the figure in the fourth decimal place to the next
nearest whole number);
1.11 LIBOR means in relation to any particular day and any
specified period the rate per centum per annum
expressed as a fraction which is the arithmetic mean
(rounded if necessary to the nearest whole multiple of one
sixteenth of one per centum, with any odd thirty-second
being rounded upwards) of the offered quotations
(expressed as percentages) for deposits in sterling
for a specified period which appear on the Reuters
display screen page entitled LIBP (or such other page as
may replace that page from time to time in that system)
at or about 11.00 a.m. London time on that day
excluding, if there are more than three such
quotations, the highest and lowest of them (or, if there
are more than one highest or lowest quotations,
excluding only one of them) or, if that page is not
available, or if fewer than three quotations are
available at that time on that page, the arithmetic mean
(rounded if necessary to the nearest whole multiple of one
sixteenth of one per centum, with any odd thirty-second
being rounded upwards) of the respective rates notified
to the Landlord and the Tenant by any three United Kingdom
clearing banks selected by agreement between the Landlord
and Tenant and in default of agreement by the President of
the Law Society for the time being as the rate at which
each such bank is offered deposits for the specified
period for a sterling amount of pound 25 million by prime
banks in the London Interbank Market at or about 11.00 a.m.
London time on that day;
1.12 MEASUREMENT PERIOD means a calendar month provided that
the first Measurement Period shall be June 1996 and that
the last Measurement Period shall be the calendar month
ending 31 March 2003 or (if the Term shall determine
earlier) the calendar month or part calendar month ending
on the date of determination of the Term;
1.13 MWH means a megawatt-hour of electricity;
1.14 PAYMENT DATE means the dates so described in paragraph 4.1
of this Schedule;
1.15 POOLING AND SETTLEMENT AGREEMENT means the agreement
of that title originally dated 30 March 1990 as
subsequently amended which sets out the rules and
procedures for the operation of the electricity trading
pool and for the operation of the settlement system;
1.16 POWER STATIONS means the power stations land and buildings
at the Demised Premises other than those parts of such
power stations and buildings in respect of which National
Power PLC has granted a lease or sub-lease to The National
Grid Company p.l.c or to Midlands Electricity p.l.c.(such
leases or sub-leases being indicated with an asterisk in
the list of documents contained in the Third Schedule);
1.17 RETAIL PRICES INDEX means the retail prices index for
all items as published from time to time by the Central
Statistical Office of the Chancellor of the Exchequer or
such other index as may be substituted pursuant to
paragraph 3 of this Schedule;
1.18 RPI REFERENCE MONTH means in respect of any Measurement
Period a month falling more than three months prior to
commencement of that Measurement Period being whichever is
the latest to occur of March June September or December;
1.19 SETTLEMENT PERIOD shall bear the same meaning as in the
Pooling and Settlement Agreement as in force at the date
of this Lease subject to the provisions of paragraph 2.7
of this Schedule.
2 CALCULATION AND PAYMENT OF PREMIUM
2.1 The Tenant shall comply in each Measurement Period with
the data requirements set out in the Ninth Schedule in
order to enable the calculation under this Schedule to be
made;
2.2 The Tenant shall within twenty-four days of the expiry
of each Measurement Period certify in the form
specified in the Tenth Schedule to the Landlord the
Aggregate Generating Output during that Measurement
Period;
2.3 The Landlord may within ten days of receipt by it
of a certificate from the Tenant pursuant to paragraph
2.2 notify the Tenant that it objects to any matter
set out in the said certificate and shall at such
time specify the reason for its objection. In such
circumstances the parties shall meet within seven days
of the receipt by the Tenant of the Landlord's
objection with a view to resolving the objection in
good faith. If the parties are unable so to resolve
the objection either party may refer the matter to
arbitration pursuant to the arbitration rules of the
Electricity Arbitration Association in force from time
to time. Notwithstanding any such referral to the
extent that any amount of any payment in respect of the
Premium is not in dispute between the parties it shall be
payable on the date specified herein for payment as if
there had been no referral;
2.4 Any payment of Premium hereunder shall be paid by CHAPS
payment for value same day to such account as the
Landlord shall designate on the day for payment thereof;
2.5 Disputed sums shall be payable within seven days of
resolution of the relevant dispute in accordance with
paragraph 2.3 together with interest thereon at the
Prescribed Rate from the date on which the same was
originally expressed to be due for payment until payment
thereof is received;
2.6 Each party may at any time within six years of the
expiry of the relevant Measurement Period seek the
adjustment of any error in any certificate referred to in
paragraph 2.2 by giving notice to the other party of the
error in question and the adjustment sought as soon as
reasonably practicable after the day the first party
becomes aware of the error in question. If the parties
agree upon the adjustment then the Tenant shall
make an additional payment of Premium or (as the case may
be) the Landlord shall reimburse Premium received by it
to the extent so agreed. If the parties shall have
failed to agree upon what adjustment (if any) shall be
required in respect of such error within 30 days of the
date of the first party's notice the matter shall upon the
written application of either party be referred to
arbitration pursuant to the arbitration rules of the
Electricity Arbitration Association in force from time to
time;
2.7 If after the date of this Lease the Pooling and Settlement
Agreement shall be amended or any Generating Unit not be
subject to the terms of the Pooling and Settlement
Agreement, the Landlord may by notice to the Tenant (i)
substitute revised definitions for Genset Metered
Generation and/or Genset Revised Unconstrained Generation
and/or Settlement Period and/or (ii) make such other
amendments to this Lease as is (in either such
case) necessary to ensure that the parties are in (as far
as practicable) the same position following such
substitution or amendment(s) as they were prior to the
substitution or amendment(s) being made. If the Tenant does
not agree to a definition substituted by the Landlord or
(as the case may be) any other such amendment to this Lease
then it shall notify the Landlord of the same within
seven days of receipt by it of notification of such
substituted definition or amendment by the Landlord in
which event the parties shall meet in good faith with a
view to agreeing an appropriate definition or (as the case
may be) amendment. If the parties have not agreed an
appropriate definition or amendment within twenty-one days
of the notification referred to above then the matter
shall be referred for resolution to such independent
consultant as the Landlord and the Tenant shall agree or
(in default of agreement within such twenty-one days)
such independent consultant as shall be appointed at
the request of either party by the President of the
Electricity Arbitration Association (such independent
consultant being referred to in this paragraph 2.7 as the
Expert). The Expert shall act as an expert and not as an
arbitrator. The function of the Expert shall be to decide
what amendments (if any) to this Lease are necessary in
order to reflect the commercial agreement the parties
intended to reflect herein.
3 CHANGES IN INDEX
If the retail prices index for all items as published
from time to time by the Central Statistical Office of the
Chancellor of the Exchequer ceases to be published or there
is a material change in the basis of the index or if at any
relevant time there is a delay in the publication of the
index the Landlord may by notice to the Tenant (i)
substitute such other index and/or (ii) make such other
amendments to this Lease as is (in either such case)
necessary to ensure that the parties are in (as far as is
practicable) the same position following such substitution
or amendment(s) as they were prior to the substitution or
amendment(s) being made. If the Tenant does not agree to
the index substituted by the Landlord or (as the case may
be) any other such amendment to this Lease then it shall
notify the Landlord of the same within seven days of
receipt by it of notification of such substituted index
or amendment by the Landlord in which event the parties
shall meet in good faith with a view to agreeing an
appropriate index or (as the case may be) amendment.
If the parties have not agreed an appropriate index
or amendment within twenty-one days of the notification
from the Tenant referred to above then the matter shall
be referred for resolution to such independent consultant
as the Landlord and the Tenant shall agree or (in default
of agreement within twenty-one days of the notification
from the Tenant referred to above) such independent
consultant as shall be appointed at the request of
either party by the President of the Electricity
Arbitration Association (such independent consultant being
referred to in this paragraph 3 as the INDEX EXPERT).
The Index Expert shall act as an expert and not as an
arbitrator. The function of the Index Expert shall be
to decide on an appropriate substitute index and/or
appropriate amendments to this Lease as is or are
necessary in order to reflect the commercial agreement
that the parties intended to reflect herein.
4 THE PREMIUM
4.1 The Premium shall be pound 1650 million as adjusted
pursuant to the following provisions of this Schedule. It
shall be paid as to pound 325 million on the grant of this
Lease and the remainder by ten installments (the PREMIUM
INSTALLMENTS) as follows:
YEAR (i) DATE FOR PAYMENT AMOUNT OF PAYMENT (Pi)
1 31 March 1997 pound 120,905,066
2 31 March 1998 pound 132,383,416
3 31 March 1999 pound 130,487,945
4 31 March 2000 pound 185,784,697
5 31 March 2001 pound 189,933,907
6 31 March 2002 pound 194,581,594
7 31 March 2003 pound 199,391,949
8 31 March 2004 pound 57,142,857
9 31 March 2005 pound 57,142,857
10 31 March 2006 pound 57,142,857
Notwithstanding these scheduled payment dates the proviso
to clause 3.2 shall apply so that in any of the
circumstances of that proviso (a FORFEITURE EVENT) all
unpaid Premium installments shall become due and payable
as there described. In such circumstances the provisions of
paragraph 4.2 shall not apply to any Premium Instalment
unpaid.
4.2 In this paragraph 4.2:
Ar is the Aggregate Generating Output for the rth
Measurement Period;
Rr is the Index Value for the rth Measurement Period;
and
Br is the Base Output for the rth Measurement Period;
and
Q = pound 400m x (1 +L1) M1/12 x (1 + L2) M2/12 x (1 + L3)
M3/12 - pound 400M
M1 = number of months after Completion but before 31 March 1997 (if
any);
M2 = lower of 12 and the number of months after Completion but
before 31 March 1998 (if any);
M3 = lower of 12 and the number of months after Completion but
before 31 March 1999 (if any);
for this purpose "number" can include a fraction which is the
number of days from Completion to the end of the calendar month in
which Completion occurs divided by the total number of days in that
calendar month
Lj = the lower of:-
(i) 0.87 x (LlBj + 0.01); and
(ii) 0.07
LlBj is LIBOR for the 12 month interest period beginning with time
(j)
time (1) is the later of 31 May 1996 and Completion but is 31
March 1997 if Completion falls after that date;
time (2) is the later of 1 April 1997 and Completion but is 31
March 1998 if Completion falls after that date;
time (3) is the later of 1 April 1998 and Completion
time (4), time (5), time (6)...., and time (12) are 1 April 1999,
2000, 2001..... and 2007 respectively
Tp is the Target Output for the pth measurement year as set out
below:
Year ending
31 March 1997 T1 = 31,120,000
31 March 1998 T2 = 27,700,000
31 March 1999 T3 = 26,240,000
31 March 2000 T4 = 24,920,000
31 March 2001 T5 = 24,920,000
31 March 2002 T6 = 25,190,000
31 March 2003 T7 = 23,960,000
Tp/=Tp if the sum of the Ar for each Measurement Period in the
pth year ("sigma/p Ar") is less than Tp; and
=Tp + 0.1 x [sigmapAr-Tp] otherwise.
4.2.1 Subject to paragraph 4.3 below, the first Premium
Instalment shall be increased by the following amount (if
positive) and decreased by it (if negative):
pound 6 x 10/sigma/r = 1 {Ar x Rr-Br x (1.035) r/12}
4.2.2 Subject to paragraph 4.3 below, the second Premium
Instalment shall be increased by the following amount
(if positive) and decreased by it (if negative):
pound 6 x 22/sigma/r = 11 {Ar x Rr - Br x (1.035) r/12}
4.2.3 Subject to paragraph 4.3 below, the third Premium
Instalment shall be increased by the following amount (if
positive) and decreased by it (if negative):
pound 6 x 34/sigma/r =23 {Ar x Rr - Br x (1.035) r/12}
4.2.4 Subject to paragraph 4.4 below, the fourth Premium
Instalment shall be increased by the following amount (if
positive) and decreased by it (if negative):
pound 6 x 46/sigma/4 = 35 {Ar x Rr - Br x (1.035) r/12} +
1/7Q + L4 x (Q + pound 400m)
4.2.5 Subject to paragraph 4.4 below, the fifth Premium
Instalment shall be increased by the following amount (if
positive) and decreased by it (if negative):
pound 6 x 58/sigma/4 = 47 {Ar x Rr - Br x (1.035) r/12} +
1/7Q + L5 x (6/7) x (Q + pound 400m)
4.2.6 Subject to paragraph 4.4 below, the sixth Premium
Instalment shall be increased by the following amount (if
positive) and decreased by it (if negative):
pound 6 x 70/sigma/r = 59 {Ar x Rr - Br x (1.035) r/12} +
1/7Q + L6 x (5/7) x (Q + pound 400m)
4.2.7 Subject to paragraph 4.4 below, the seventh Premium
Instalment shall be increased by the following amount (if
positive) and decreased by it (if negative):
pound 6 x 82/sigma/r = 71 {Ar x Rr - Br x (1.035) r/12} +
1/7Q + L7 x (4/7) x (Q + pound 400m)
4.2.8 The eighth Premium Instalment shall be increased by
+ 1/7 Q + L8 x 3/7 x (Q + pound 400m)
4.2.9 The ninth Premium Instalment shall be increased by
+ 1/7 Q + L9 x 2/7 x (Q + pound 400m)
4.2.10 The tenth Premium Instalment shall be increased by
+ 1/7 Q + L10 x 1/7 x (Q + pound 400m)
4.3 Any increase of a Premium Instalment pursuant to clauses
4.2.1 to 4.2.3 above shall be limited to
pound 6 x [(1.06)p x Tp - sigma/p {(1.035) r/12 x Br}]
Where p is the number of the Premium Instalment and sigma/p
refers to the summation for r over the range specified in the
relevant paragraph above.
4.4 Any increase of a Premium Instalment pursuant to clauses
4.2.4 to 4.2.7 above shall be limited to:-
pound 6 x [(1.06)p x Tp - sigma/p {(1.035) r/12 x Br}]
+ 1/7Q + Lp x 11-p/7 x (Q + pound 400m)
Where p is the number of the Premium Instalment and
sigma/p, refers to the summation for r over the range
specified in the relevant paragraph above.
4.5 If after the end of year 7 (years 1-10 as defined in
4.1 above by reference to the last date in the year) an
event occurs as a result of which, pursuant to the
proviso to clause 3.2 any amount of Premium becomes
payable earlier than the date set out in 4.1 above,
then, in addition to any Premium so becoming payable,
there shall be payable the following additional amounts
of Premium:
(i) if the event occurs in year 8, 317 x Q
(ii) if the event occurs in year 9, 2/7 x Q
(iii) if the event occurs in year 10, 1/7 x Q
4.6 On the date specified above for the payment of any
Premium Instalment the Tenant shall make payment to the
Landlord of an amount which is the Tenant's best estimate
of the amount of the Premium Instalment payable on that
date.
The Tenant shall provide written details of its
calculations to the Landlord at the time it makes the
payment.
42 days after that date one party shall make to the
other such a payment as is necessary to ensure that the
net receipt of the Landlord is the amount of the relevant
Premium Instalment.
5 VALUE ADDED TAX
5.1 The Landlord will use reasonable endeavours to make a
valid election to waive the exemption from tax under
paragraph 2 of Schedule 10 to the Value Added Tax Act
1994 in good time prior to Completion in relation to the
Demised Premises and the Landlord will not revoke such
election prior to or on Completion.
5.2 In the event that the Landlord makes such election prior
to Completion:
5.2.1 the Landlord shall provide the Tenant and the
Guarantor with copies of the election and
notification of the election to waive exemption and of
any acknowledgement received from H.M. Customs and
Excise;
5.2.2 the Landlord shall on Completion issue the Tenant with
an invoice for Value Added Tax purposes in respect of
pound l,650 million plus Value Added Tax;
5.2.3 the Tenant shall pay to the Landlord the amount in
respect of Value Added Tax included in the invoice
issued pursuant to paragraph 5.2.2 two days before
the date the Landlord is obliged to account for the
Value Added Tax to H.M. Customs & Excise (the VALUE
ADDED TAX PAYMENT DATE);
5.2.4 the Tenant shall also pay to the Landlord on the Value
Added Tax Payment Date an additional sum equal to
half of the interest accrued on an amount equal to
the payment required to be made under paragraph
5.2.3 above at the London Interbank Offer Rate as
determined from time to time by Barclays Bank PLC in
respect of one-month sterling deposits from the
business day following the date on which the Tenant
or any company in the Tenant's Value Added Tax group
obtains any credit for or repayment of input tax by
reference to the Value Added Tax invoice referred
to in paragraph 5.2.2 to the date on which the
Tenant or the relevant company in the Tenant's Value
Added Tax group is liable to make payment to the
Landlord under paragraph 5.2.3;
5.3 In the event that the Landlord has failed to make a
valid election to waive exemption in relation to the
Demised Premises before the date falling seven days before
Completion, it shall notify the Tenant and the Guarantor of
that failure and it is agreed in such circumstances that
the parties shall meet forthwith (and in any event within
four days of Completion) in order to agree how the lease
payments should be treated for the purposes of Value Added
Tax.
5.4 Where the election to waive exemption has been made and
the Landlord has issued an invoice for Value Added Tax
purposes which encompasses or is in respect of a Premium
Instalment that was not at the time due and payable and
subsequently on the date (a PREMIUM INSTALMENT DATE) on
which the Premium Instalment is payable in accordance with
paragraph 4 that Premium Instalment has been adjusted in
accordance with the provision in paragraph 4.2 then:
5.4.1 when it has been reduced the Landlord shall on the
Premium Instalment Date issue a credit invoice for the
purposes of Value Added Tax to the Tenant and the
Landlord shall pay to the Tenant the amount of the Value
Added Tax attributable to the reduction two days before
the date on which the Tenant is next required to account
for Value Added Tax to HM Customs & Excise; and
5.4.2 when it has been increased the Landlord shall on the
Premium Instalment Date issue an invoice for the
purposes of Value Added Tax in respect of the amount of
the increase, and in addition the Tenant shall pay an
amount in respect of Value Added Tax attributable to
that increase to the Landlord two days before the
date on which the Landlord would be obliged to account
for the Value Added Tax to HM Customs & Excise.
5.5 Subject to the provisions in paragraph 5.4, to the extent
that the Landlord invoices the Tenant in respect of any
Value Added Tax which is not property chargeable and the
Tenant pays an amount in respect of that Value Added Tax
to the Landlord, then the Landlord shall repay to the
Tenant that amount and provide to the Tenant an appropriate
credit invoice for the purposes of Value Added Tax.
5.6 If the Landlord makes an election to waive exemption after
Completion then the provisions of paragraphs 5.4 and 5.5
above shall apply so far as legally permissible.
NINTH SCHEDULE
DATA REQUIREMENTS
1 The Tenant shall either:
1.1 transmit to the Landlord electronically files (of agreed
format) containing complete correct and accurate
half-hourly integrated metered data in relation to each
Settlement Period derived by the Tenant from every meter
related to the Generating Unit that is registered in the
Settlement System; or
1.2 permit the Landlord to obtain this data by means of remote
dial-up.
2 The Tenant shall transmit electronically to the Landlord
all final and Disputed Final files as received from the
Central Data Collection System (CDCS) related to the Power
Stations in the format as received from Energy Settlement
Information Services Limited (or any successor body).
3 The Tenant shall transmit electronically to the Landlord
files in a format to be agreed by the Tenant and the
Landlord containing Genset Metered Generation Genset
Revised Unconstrained Generation and Aggregate Generating
Output by Generating Unit for each Settlement Period as
derived from Final or Disputed Final Settlement Runs (as
provided for in the Pooling and Settlement Agreement).
4 The Tenant shall as soon as reasonably practicable notify
the Landlord of any change to the configuration of the
Power Stations and their representation in the Settlement
System and shall provide the Landlord with all information
the Landlord may reasonably require relating to such
changes.
5 If the Landlord considers that the information provided
under the above provisions of this Ninth Schedule does not
permit it accurately to verify the calculation of the
Premium payable under the Eighth Schedule the matter shall
be referred to such independent consultant as the Landlord
and the Tenant shall agree or (in default of agreement
within one month of the Landlord notifying the
applicability of this paragraph 5) such independent
consultant as shall be appointed at the request of
the Landlord by the President of the Electricity
Arbitration Association (such independent consultant being
referred to in this paragraph 5 as the DATA EXPERT). The
Tenant shall give the Data Expert full access to all books
and records relating to the Power Stations so as to enable
the Data Expert to form a view as to the correct
calculation of the Premium payable under the Eighth
Schedule. In doing so the Data Expert shall act as an
expert and not as an arbitrator. The statement produced
by the Data Expert shall be treated as an agreed
adjustment under paragraph 2.6 of the Eighth Schedule.
6 Defined terms in this Ninth Schedule not otherwise
defined in this Lease shall have the meanings attributed to
them in the Pooling and Settlement Agreement.
TENTH SCHEDULE
SPECIFIED FORM OF CERTIFICATE
CERTIFICATE OF AGGREGATE GENERATING OUTPUT FOR THE GENERATING
UNITS AT WEST BURTON, IRONBRIDGE AND RUGELEY B POWER STATIONS
FOR MEASUREMENT PERIOD: (STATE CALENDAR MONTH)
For Power Station: West Burton
-------------------------------------------------------------------
Generating Unit Aggregate Generating Output (MWh)
-------------------------------------------------------------------
West Burton Unit 1
-------------------------------------------------------------------
West Burton Unit 2
-------------------------------------------------------------------
West Burton Unit 3
-------------------------------------------------------------------
West Burton Unit 4
-------------------------------------------------------------------
West Burton Gas Turbine 1
-------------------------------------------------------------------
West Burton Gas Turbine 2
-------------------------------------------------------------------
West Burton Gas Turbine 3
-------------------------------------------------------------------
Wet Burton Gas Turbine 4
-------------------------------------------------------------------
Total For West Burton
-------------------------------------------------------------------
For Power Station: Ironbridge
-------------------------------------------------------------------
Generating Unit Aggregate Generating Output (MWh)
-------------------------------------------------------------------
Ironbridge Unit 1
-------------------------------------------------------------------
Ironbridge Unit 2
-------------------------------------------------------------------
Ironbridge Gas Turbine 1
-------------------------------------------------------------------
Ironbridge Gas Turbine 2
-------------------------------------------------------------------
Total For Ironbridge
-------------------------------------------------------------------
For Power Station: Rugeley B
-------------------------------------------------------------------
Generating Unit Aggregate Generating Output (MWh)
-------------------------------------------------------------------
Rugeley Unit 6
-------------------------------------------------------------------
Rugeley Unit 7
-------------------------------------------------------------------
Rugeley Gas Turbine 6
-------------------------------------------------------------------
Rugeley Gas Turbine 7
-------------------------------------------------------------------
Total For Rugeley
-------------------------------------------------------------------
-------------------------------------------------------------------
Total Aggregate Generating Output (MWh)
-------------------------------------------------------------------
Eleventh Schedule
Base Output
Measurement Period Generating Amount:
Year Calendar Month
1996 June 190,000
July 1,300,000
August 1,100,000
September 1,550,000
October 2,400,000
November 2,350,000
December 2,350,000
1997 January 2,600,000
February 2,350,000
March 2,300,000
April 1,800,000
May 1,300,000
June 1,200,000
July 1,200,000
August 1,100,000
September 1,400,000
October 1,950,000
November 1,900,000
December 2,200,000
1998 January 2,450,000
February 2,200,000
March 2,300,000
April 1,750,000
May 1,200,000
June 1,150,000
July 1,150,000
August 1,050,000
September 1,350,000
October 1,850,000
November 1,800,000
December 2,100,000
1999 January 2,350,000
February 2,100,000
March 2,150,000
April 1,650,000
May 1,150,000
June 1,100,000
July 1,100,000
August 1,000,000
September 1,300,000
October 1,750,000
November 1,700,000
December 2,000,000
2000 January 2,200,000
February 2,050,000
March 2,050,000
April 1,650,000
May 1,150,000
June 1,100,000
July 1,100,000
August 1,000,000
September 1,300,000
October 1,750,000
November 1,700,000
December 2,000,000
2001 January 2,200,000
February 2,000,000
March 2,050,000
April 1,650,000
May 1,150,000
June 1,100,000
July 1,100,000
August 1,000,000
September 1,300,000
October 1,750,000
November 1,700,000
December 2,000,000
2002 January 2,200,000
February 2,000,000
March 2,050,000
April 1,650,000
May 1,150,000
June 1,100,000
July 1,100,000
August 1,000,000
September 1,300,000
October 1,750,000
November 1,700,000
December 2,000,000
2003 January 2,200,000
February 2,000,000
March 2,050,000
<PAGE>
THE COMMON SEAL of NATIONAL
POWER PLC was hereunto affixed in
the presence of:
Authorised Signatory
Exhibit 10(k)
DATED 27TH JUNE 1996
EASTERN MERCHANT PROPERTIES LIMITED
- to -
EASTERN MERCHANT GENERATION LIMITED
- and -
EASTERN GROUP PLC
SUB-LEASE
- of -
land and premises known as
West Burton, Ironbridge and Rugeley B Power Stations
-----------------------------------------------------------------------
TERM COMMENCES: 27th June 1996
FOR YEARS: 99 (less three days)
EXPIRES: 24th June 2095
-----------------------------------------------------------------------
<PAGE>
CONTENTS
PAGE
1. Definitions......................................................... 1
2. Demise and Rents.................................................... 4
3. Tenant's Covenants.................................................. 5
4. Landlord's Covenants................................................ 16
5. Provisos............................................................ 16
6. Guarantee........................................................... 20
First Schedule Particulars of the Demised Premises....................... 21
Second Schedule Part 1 - Rights Granted................................... 22
Third Schedule Documents which affect or relate to the
Demised Premises.......................................... 24
Fourth Schedule Allocation of rent first reserved to Generating Set....... 39
Fifth Schedule Superior Landlord's Fixtures and Fittings................. 40
Sixth Schedule Guarantee................................................. 46
Seventh Schedule Quota Right............................................... 47
Part A Authorisations Quota...................................... 47
Part B UK Plan Quota............................................. 47
Eighth Schedule...............................................................49
<PAGE>
This Sub-Lease made on 24th June 1996 between Eastern Merchant Properties
Limited whose registered office is at Wherstead Park, Wherstead, Ipswich,
Suffolk IP9 2AQ (hereinafter called the Landlord) of the first part Eastern
Merchant Generation Limited whose registered office is at Wherstead Park
aforesaid (hereinafter called the Tenant) of the second part and Eastern Group
PLC whose registered office is at Wherstead Park aforesaid (hereinafter called
the Guarantor) of the third part.
Witnesses as follows:
1. DEFINITIONS
1.1 In this Sub-Lease unless there be something in the subject or context
inconsistent therewith:
(A) Where there are two or more persons included in the expression
the Tenant covenants contained in this Sub-Lease which are
expressed to be made by the Tenant shall be deemed to be made
by such persons jointly and severally;
(B) Any reference to an Act of Parliament shall include any
modification extension or re-enactment thereof for the time
being in force and shall also include all instruments orders
plans regulations permissions and directions for the time
being made issued or given thereunder or deriving validity
therefrom;
(C) Any covenant by the Tenant not to do any act or thing shall
include an obligation not to permit or suffer such act or
thing to be done;
(D) The titles or headings appearing in this Sub-Lease are for
reference only and shall not affect the construction hereof;
(E) Any reference to Value Added Tax shall include any tax of a
similar nature that may be substituted for or levied in
addition to it (and this for the avoidance of doubt shall not
include the penalties and interest for late payment);
(F) Reference to any right exercisable by the Landlord or any
right exercisable by the Tenant in common with the Landlord
shall be construed as including (where appropriate) the
exercise of such right:
(i) by the Superior Landlord and all persons authorised by
the Superior Landlord pursuant to the Headlease;
(ii) in common with all other persons having a like right;
(G) Where under the terms of this Sub-Lease the consent of the
Landlord is required for any act or matter the consent of the
Superior Landlord under the terms of the Headlease shall also
be required.
1.2 The expressions following shall have the meanings hereinafter mentioned
(that is to say):
(A) Adjoining Property means any land or property neighbouring
or adjoining Rugeley B Power Station in which the Superior
Landlord or a holding company or a subsidiary of a holding
company of the Superior Landlord (the terms holding company
and subsidiary having the meanings given to them in Section
736 of the Companies Act 1985 as amended by the Companies
Act 1989) or any person holding on trust for the Superior
Landlord or a holding company or a subsidiary of a holding
company of the Superior Landlord as aforesaid has a freehold
or leasehold interest whether in possession or in reversion;
<PAGE>
(B) Applicable Law means any present or future law statute
bye-law regulation order delegated legislation directive
request requirement consent licence or permit of or issued
by or on behalf of any Competent Authority and relating to
the Demised Premises or any part thereof or any thing
therein or thereon or the use or ownership thereof
(including without limitation any Act of Parliament European
Community or European Law Regulation or Directive);
(C) the Authorisations means the authorisations granted by HMIP
pursuant to Section 6 of the Environmental Protection Act
1990 in respect of the power stations forming part of the
Demised Premises as varied by variation notices issued by
HMIP pursuant to Section 10 of the said Act dated 8 March
1996 as such authorisations may hereafter be varied from
time to time by HMIP;
(D) the Authorisations Quota means that part specified in Part A
of the Seventh Schedule of the quotas in respect of
emissions of sulphur dioxide under Column 3 of Table 2.5 of
the Authorisations as such part may hereafter be varied from
time to time by HMIP;
(E) CHAPS means clearing houses automated payment systems;
(F) Competent Authority means any local national or
supranational agency authority department inspectorate
minister official court tribunal or public or statutory
person (whether autonomous or not) having jurisdiction in
relation to the Demised Premises or any part thereof or
anything therein or thereon or the use or ownership thereof;
(G) Conduits means all sewers drains pipes gullies gutters ducts
flues watercourses channels subways wires cables and other
conducting media of whatsoever nature;
(H) the Demised Premises means the land and premises described
in the First Schedule hereto and each and every part thereof
together with the appurtenances thereto belonging and
together also with any buildings and erections and each and
every part thereof now or hereafter erected or in the course
of erection thereon or on any part thereof together with all
additions alterations and improvements thereto which may be
carried out during the Term and shall also include all
landlord's fixtures from time to time in and about the same
and the Superior Landlord's Fixtures and Fittings;
(I) the Full Cost of Reinstatement means the costs (including
the cost of shoring up demolition decommissioning and site
clearance Architects' Surveyors' and other professional
fees) and irrecoverable Value Added Tax which would be
likely to be incurred in or as a result of rebuilding or
reinstating the Demised Premises in accordance with the
requirements of this Sub-Lease at the time when such
rebuilding or reinstatement is likely to take place having
regard to all relevant factors including any increases in
building costs expected or anticipated to take place at any
time up to the date upon which the Demised Premises shall be
fully rebuilt or reinstated and shall be not less
than(pound)300,000,000 but may be in such greater amount as
the Tenant may reasonably require;
(J) Generating Set means a generator and its associated
turbines;
(K) Good Industry Practice means the exercise of that degree of
skill diligence prudence foresight and operating practice
which would reasonably be expected by and from a skilled and
experienced owner and operator of the power stations forming
part of the Demised Premises under the same or similar
circumstances taking into account the nature and location of
the said power stations;
<PAGE>
(L) the Headlease means the Lease of even date made between
National Power PLC (1) the Landlord (2) and the Guarantor
(3);
(M) HMIP means Her Majesty's Inspectorate of Pollution and its
successors from time to time;
(N) the Insured Risks means risks in respect of physical loss
destruction or damage;
(O) the Insurers means the insurance office or underwriters with
whom the insurance cover referred to in Clause 3.25 hereof
is effected;
(P) Ironbridge Power Station means the part of the Demised
Premises referred to in paragraph (B) of the First Schedule;
(Q) the Landlord shall include the person for the time being
entitled to the reversion immediately expectant on the
determination of the Term;
(R) Machinery Breakdown means unforeseen and sudden destruction
or damage to any plant and machinery at the Demised Premises
resulting from breakdown including destruction or damage
caused by explosion due to force of internal steam gas or
fluid pressure from any accidental cause while such plant
and machinery is at work;
(S) Material Breach means any breach non-performance or
non-observance of any of the covenants obligations and
conditions on the part of the Tenant in this Sub-Lease which
has a material consequence;
(T) the Planning Acts means Town and Country Planning Act 1990;
Planning (Listed Buildings and Conservation Areas) Act 1990;
Planning (Hazardous Substances) Act 1990; and Planning
(Consequential Provisions) Act 1990;
(U) the Prescribed Rate means a rate of interest being two per
centum per annum over the base rate from time to time of
National Westminster Bank PLC or over such other rate as may
from time to time replace the same or over such other rate
as the Landlord may from time to time reasonably require;
(V) the Rent means (pound)200,000,000 per annum until the
expiration of the tenth year of the Term and thereafter
during the residue of the Term (pound)100,000 per annum
(subject to review in accordance with the provisions of the
Eighth Schedule);
(W) the Quota Rights means the UK Plan Quota the Authorisations
Quota and the Authorisations;
(X) Rugeley B Power Station means the part of the Demised
Premises referred to in paragraph (C) of the First Schedule;
(Y) the Sale of Business Agreement means the agreement for the
sale and purchase of the business carried on at the Demised
Premises entered into on 19th April 1996 between National
Power PLC (1) and Eastern Group plc (2);
(Z) the Satisfaction Date means the later of 31 March 2006 and
the date by which the Superior Landlord has received (i) the
whole of the Premium due under the Headlease and (ii) all
sums due and payable under the Headlease in respect of the
period commencing on the date of the Headlease and expiring
on 31 March 2003;
<PAGE>
(AA) this Sub-Lease means this sub-lease and any document which
is supplemental hereto or which is collateral herewith or
which is entered into pursuant to or in accordance with the
terms hereof;
(BB) the Superior Landlord means the person or persons for the
time being entitled to the reversion expectant on the
determination of the Headlease;
(CC) the Superior Landlord's Fixtures and Fittings means the
Landlord's fixtures and fittings at the Demised Premises
belonging to the Superior Landlord specified in the Fifth
Schedule and any replacement of any of the same from time to
time;
(DD) the Tenant shall include its successors in title;
(EE) the Term means the term of years hereby granted;
(FF) the UK Plan Quota means that part specified in Part B of the
Seventh Schedule of the quotas in respect of emissions of
sulphur dioxide and oxides of nitrogen under the current UK
Plan for the Reduction of Emissions into Air of Sulphur
Dioxide and Oxide Nitrogen from existing Large Combustion
Plants as such part may hereafter be varied from time to
time by any authority empowered to vary such quotas;
(GG) West Burton Power Station means the part of the Demised
Premises referred to in paragraph (A) of the First Schedule;
(HH) the 199S Act means the Landlord and Tenant (Covenants) Act
1995;
1.3 Where any indemnity contained in this Sub-Lease is expressed to be on
an "after-tax" basis then in calculating the liability of the
indemnifying party there shall be taken into account having regard to
the time value of money by application of a nominal discount rate of 12
per cent per annum:
(A) the amount by which any liability to Taxation for which the
party to be indemnified (or any company which is a holding
company or a subsidiary of a holding company of such party)
is or would have been accountable or liable to be assessed
is actually reduced or extinguished as a result of the
matter giving rise to the indemnity claim; and
(B) the amount by which any liability to Taxation of the party
to be indemnified (or any company which is a holding company
or a subsidiary of a holding company of such party) is
actually increased as a result of the payment by the
indemnifying party in respect of the matter giving rise to
the indemnity claim;
For this purpose Taxation means all forms of taxation whether direct or
indirect and whether levied by reference to income profits gains net
wealth asset values turnover added value and statutory governmental
state provincial local governmental or municipal impositions duties
contributions rates and levies (including without limitation social
security contributions and any other payroll taxes) whenever and
wherever imposed (whether imposed by way of a withholding or deduction
for or on account of tax or otherwise) and in respect of any person and
all penalties charges costs and interest relating thereto and the terms
holding company and subsidiary have the same meanings as in Clause
1.2(A).
2. DEMISE AND RENTS
The Landlord HEREBY DEMISES unto the Tenant ALL THAT the Demised
Premises TOGETHER WITH as mentioned in Part 1 of the Second Schedule
and EXCEPT AND RESERVING as mentioned in Part 2 of the Second Schedule
hereto TO HOLD the same (a) SUBJECT TO all rights easements
<PAGE>
quasi-easements and privileges (if any) to which the Demised Premises
are or may be subject and (b) SUBJECT TO AND (in so far as the Landlord
has power to grant the same) WITH THE BENEFIT OF all rights easements
quasi-easements (if any) privileges (if any) covenants declarations and
other provisions contained or referred to in the documents referred to
in the Third Schedule hereto unto the Tenant from 27th June 1996 for a
TERM of NINETY-NINE YEARS less three days YIELDING AND PAYING therefor
and in proportion for any less time than a year without any deduction
or set-off FIRST the Rent to be paid by equal quarterly payments in
arrear on the usual quarter days SECONDLY by way of additional rent on
demand the moneys referred to in Clause 3.2 hereof and HEREBY ASSIGNS
to the Tenant the Quota Rights on condition that the Term is not
deter-mined pursuant to Clause 5.1 before the Satisfaction Date.
3. TENANT'S COVENANTS
The Tenant to the intent that the obligations hereby created shall
continue throughout the Term (except where otherwise necessarily
implied or expressly stated) HEREBY COVENANTS with the Landlord as
follows:
3.1 TO PAY RENT
To pay the rents hereinbefore reserved at the times and in the manner
aforesaid;
3.2 TO PAY INTEREST ON OVERDUE MONIES
That without prejudice to any other right remedy or power herein
contained or otherwise available to the Landlord if any sum payable
under this Sub-Lease shall not be received on the due date to pay on
demand to the Landlord interest thereon at the Prescribed Rate from the
date when the same became due until payment thereof is received (as
well after as before any judgment);
3.3 TO PAY OUTGOINGS
To bear pay and discharge all existing and future rates taxes duties
charges assessments impositions and outgoings whatsoever (whether
parliamentary parochial local or otherwise and whether or not of a
capital or non-recurring nature) which now are or may at any time
hereafter during the Term be charged levied assessed or imposed upon
the Demised Premises or upon the owner or occupier in respect thereof
Provided always that the foregoing shall not extend to payment of any
tax payable only as a direct result of any dealing by the Landlord with
its reversionary interest in the Demised Premises including for the
avoidance of doubt the grant of this Sub-Lease;
3.4 TO PAY SHARE OF COST OF COMMON FACILITIES
To pay a contribution towards the cost and expense of constructing
repairing rebuilding renewing lighting cleansing and maintaining all
facilities services and other things the use of which is common to the
Demised Premises and other premises such contribution to be fairly
assessed by the Landlord's Surveyors;
3.5 TO REPAIR
At all times until the Satisfaction Date to keep the Demised Premises
in good working order repair and condition (fair wear and tear excepted
and damage by the Insured Risks excepted unless payment of any
insurance moneys be refused in whole or in part other than as a result
of the Landlord's default) and to carry out such repair maintenance
renewal overhauls and replacement as are required in accordance with
Good Industry Practice and all Applicable Laws and to comply in all
material respects with all manufacturers' and mandatory operational
modifications Provided that the Tenant shall not be obliged
<PAGE>
to put the Demised Premises into any better state and condition than
they are in at the date of this SubLease and Provided further that for
the avoidance of doubt nothing in this Sub-Lease shall prevent the
Tenant demolishing decommissioning or dismantling any part of the
Demised Premises at any time after the Satisfaction Date;
3.6 TO COMPLY WITH NOTICES TO REPAIR
To repair and make good and otherwise remedy any breach of Clause 3.5
of which notice in writing shall be given to or left on the Demised
Premises for the Tenant by the Landlord and for which the Tenant is
liable hereunder and to complete the same within six calendar months
(unless compliance with this covenant would require the Tenant (i) to
order new plant or machinery which cannot be obtained within such
period in which case such plant or machinery shall be obtained as soon
as possible thereafter or (ii) to repair existing plant or machinery in
circumstances where such plant or machinery cannot be repaired within
such period in which case such plant or machinery shall be repaired as
soon as possible thereafter Provided that the Tenant shall in any event
proceed diligently to remedy the breach and shall commence the process
of ordering or repairing the plant or machinery without delay) after
the giving or leaving of such notice and if the Tenant shall fail to
comply with any such notice it shall be lawful (but not obligatory) for
the Landlord (without prejudice to the right of re-entry hereinafter
contained) to enter upon the Demised Premises to make good the same at
the cost of the Tenant which cost together with all Solicitors' and
Surveyors' charges and other costs expenses and losses of whatsoever
nature whether direct or indirect which may be properly incurred
suffered or sustained by the Landlord in connection therewith shall be
repaid by the Tenant to the Landlord on demand as a debt and on a full
after-tax indemnity basis;
3.7 TO PERMIT ENTRY
(A) Until the Satisfaction Date but not thereafter to permit the
Landlord and its agents and all persons authorised by them
with or without workmen on giving reasonable notice (except in
emergency) to the Tenant to enter upon the Demised Premises
for the purpose of ascertaining that the covenants and
conditions of this Sub-Lease have been observed and performed
and to view the state of repair and condition of the Demised
Premises and to take a schedule of any dilapidations the
Landlord making good forthwith any damage thereby caused to
the Demised Premises and causing as little inconvenience as
reasonably practicable;
(B) To permit the Landlord and its agents and all persons
authorised by them with or without workmen on giving
reasonable notice (except in emergency) to the Tenant to enter
upon the Demised Premises to exercise the rights herein
excepted and reserved the Landlord promptly making good any
damage thereby caused to the Demised Premises and causing as
little inconvenience as reasonably practicable;
3.8 INSURERS' REQUIREMENTS
(A) To comply with all the requirements and recommendations of the
Insurers;
(B) Not to do anything which would or might result in any of the
insurances required to be effected by this Sub-Lease being
vitiated invalidated or prejudiced;
3.9 USER
(A) To procure that neither the Demised Premises nor any part
thereof is used before 1 April 2000 such that its principal
use is other than for an activity for which an exemption or
licence is required under Section 5 or Section 6 of the
Electricity Act 1989 or an activity involving the
<PAGE>
distribution of electricity (in so far as it does not
require a licence under Section 6 of the Electricity
Act 1989);
(B) The Tenant hereby acknowledges and admits that
notwithstanding the foregoing provisions the Landlord does
not thereby or in any other way give or make nor has given
or made at any other time any representation or warranty
that any such use is or will be or will remain a permitted
use within the provisions of the Planning Acts nor shall any
consent in writing which the Landlord may hereafter give to
any change of use be taken as including any such
representation or warranty and that notwithstanding that any
such use as aforesaid is not a permitted use within such
provisions as aforesaid the Tenant shall remain fully bound
and liable to the Landlord in respect of the obligations
undertaken by the Tenant by virtue of this Sub-Lease without
any compensation recompense or relief of any kind
whatsoever;
(C) Not to do anything which would materially prejudice the
rights and interests of the Landlord in the Demised Premises
or under this SubLease or as a consequence of which the
Landlord or any of its directors officers or employees would
become liable to pay any fine or penalty or incur any other
form of sanction or would otherwise incur a liability to any
person;
3.10 NOT TO MAKE CLAIMS
Not at any time during the Term to bring any action or make any claim
or demand on account of any injury to any right easement quasi-easement
or privilege enjoyed by the Demised Premises caused by the lawful
erection of any building or the lawful alteration of any building on
any land adjacent neighbouring or opposite to the Demised Premises by
the Landlord or the Superior Landlord or for which the Landlord or the
Superior Landlord shall have given its consent or for which the
Landlord or the Superior Landlord may give its consent pursuant to any
power reserved by this Sub-Lease or the Headlease or in respect of any
easement right or privilege granted or to be granted by the Landlord or
the Superior Landlord for the benefit of any land or building erected
or to be erected on any land adjacent neighbouring or opposite to the
Demised Premises;
3.11 ALIENATION
(A) Not to dispose of and to procure that there shall be no disposal
of a Relevant Interest in the Demised Premises or any part of the
Demised Premises such as falls within paragraph 1(6)(ii) of Part
I of Schedule 1 to the deed of debenture dated 1 November 1990
and entered into between National Power PLC and The Secretary of
State for Energy prior to 31 March 2000;
(B) Not before the Satisfaction Date to assign charge underlet agree
to assign charge or underlet part with possession share the
possession or occupation of or otherwise dispose of or deal in
any way with the whole or any part of the Demised Premises except
by way of agricultural tenancies or grazing licences of
agricultural land which is not required for the operation of the
power stations forming part of the Demised Premises;
(C) Not on or after the Satisfaction Date to assign or charge or
agree to assign or charge part only of the Demised Premises being
a part other than the whole of Ironbridge Power Station or
Rugeley B Power Station or West Burton Power Station (a permitted
part);
(D) Not on or after the Satisfaction Date to part with possession or
share the possession or occupation of the whole or any part of
the Demised Premises except by an assignment permitted by this
Clause 3.11 or by an underletting;
(E) Not on or after the Satisfaction Date to assign or agree to
assign the whole or a permitted part of the Demised Premises
unless:
<PAGE>
(i) the assignee covenants with the Landlord to pay the
rents and observe and perform the Tenant's covenants in
this Sub-Lease (in the case of assignment of a
permitted part in so far as they relate to the
permitted part) during the residue of the Term or until
released pursuant to the 1995 Act;
(ii) the Tenant enters into an agreement guaranteeing the
performance of the Tenant's covenants in this Sub-Lease
(in the case of assignment of a permitted part in so
far as they relate to the permitted part) by the
assignee including the provisions set out in the Sixth
Schedule to the extent permitted by the 1995 Act;
(iii) such other persons as the Landlord reasonably requires
act as guarantors for the assignee and enter into
direct covenants with the Landlord to perform the terms
of this Sub-Lease (in the case of assignment of a
permitted part in so far as they relate to the
permitted part) including the provisions set out in the
Sixth Schedule;
(F) Without prejudice to the foregoing provisions not on or after the
Satisfaction Date to assign the whole or a permitted part of the
Demised Premises without the Landlord's written consent (not to
be unreasonably withheld or delayed);
3.12 REGISTRATION
Within twenty-one days after the date of any surrender or assignment of
this Sub-Lease or the execution of any mortgage or charge affecting
this Sub-Lease or any transfer of any such mortgage or charge or any
devolution of the Term by assent or operation of law to give written
notice and to deliver a certified copy to the Superior Landlord's
Solicitors (or as the Superior Landlord may from time to time direct)
of such surrender assignment mortgage charge transfer of mortgage or
charge or devolution and to pay or cause to be paid to the Superior
Landlord's Solicitors or as the Superior Landlord may from time to time
direct a reasonable fee not being less than Twenty pounds for the
registration thereof;
3.13 NOT TO MAKE ALTERATIONS
Until the Satisfaction Date not to make any addition or alteration to
or do any thing in relation to any of the Superior Landlord's Fixtures
and Fittings which would diminish the value of the Superior Landlord's
Fixtures and Fittings or the Demised Premises provided that the Tenant
shall not hereby be prevented from replacing any of the Superior
Landlord's Fixtures and Fittings with a replacement of similar
character and at least equal value;
3.14 TO PAY LANDLORD'S COSTS
To pay to the Landlord on demand and on an after-tax indemnity basis
all costs charges expenses damages and losses of whatsoever nature
whether direct or indirect (including but without prejudice to the
generality of the foregoing Solicitors' costs Counsels' Architects' and
Surveyors' Environmental Consultants' and other professional fees and
commission payable to a bailiff) and which may at any time be incurred
suffered or sustained by the Landlord:
(A) incidental to the preparation and service of a notice under
Section 146 of the Law of Property Act 1925 and/or in or in
contemplation of any proceedings under Section 146 or 147 of
the said Act (whether or not any right of re-entry or
forfeiture has been waived by the Landlord or a notice served
under the said Section 146 is complied with by the Tenant or
the Tenant has been relieved under the provisions of the said
Act and notwithstanding forfeiture is avoided otherwise than
by relief granted by the court);
<PAGE>
(B) in connection with or procuring the remedying of any breach
nonperformance or non-observance of any covenant condition or
other obligation on the part of the Tenant or any person
deriving title under the Tenant contained in this Sub-Lease;
3.15 TO OBSERVE STATUTORY REQUIREMENTS
At all times and from time to time and at its own expense to comply
with all Applicable Laws and to execute all works including remediation
as are or may under or in pursuance of any Applicable Law be directed
or required to be done or executed upon or in respect of the Demised
Premises or the use thereof whether by the owner and/or the Landlord
and/or the Tenant thereof or any person deriving title thereunder or
which relate to the remediation of other sites or premises or
controlled waters if and to the extent that the need for remediation
has been caused in whole or in part by the Demised Premises or any use
thereof or activities or omissions thereon and not to do or fail to do
on the Demised Premises or on the said other sites or premises or
controlled waters any act or omission or thing whereby the Landlord
becomes or is likely to become liable to pay any penalty fine charge
tax levy or duty imposed or to bear the whole or any part of any costs
or expenses incurred under or through any such Applicable Law and at
all times to save harmless and keep indemnified the Landlord on an
after-tax basis against all losses (as defined in Clause 3.25(A)) which
may at any time be made or claimed against or incurred or suffered or
sustained by the Landlord in respect of the foregoing;
3.16 PLANNING
At all times during the Term to comply in all respects with the
Planning Acts and to keep the Landlord indemnified on an after-tax
basis in respect thereof;
3.17 TO INFORM LANDLORD OF NOTICES
Upon becoming aware of the happening of any occurrence or upon the
receipt of any notice order requisition direction or other thing which
may be capable of materially adversely affecting the Landlord's
interest in the Demised Premises or which might give rise to a
liability or a duty or to a breach of a duty imposed by common law or
statute on the Landlord the Tenant shall forthwith at its own expense
deliver full particulars or a copy thereof to the Landlord;
3.18 TO INFORM LANDLORD OF CONTAMINANTS AND DEFECTS AND TO INDEMNIFY
To inform the Landlord immediately in writing upon becoming aware of
the existence of any contaminant or pollutant or hazardous substance on
or under or escaping or emitting or leaching from or any defect in the
Demised Premises which might give rise to a duty or liability imposed
by common law or statute on the Landlord and to indemnify the Landlord
on an after-tax basis in respect of all losses (as defined in Clause
3.25 (A) which may at any time be made or claimed against or incurred
suffered or sustained by the Landlord by reason of:
(A) any interference or alleged interference or obstruction by the
Demised Premises or any use thereof or activities or omissions
thereon of any right or alleged right of light air drainage or
other right or alleged right now existing for the benefit of
any adjoining or neighbouring property;
(B) any contaminant or pollutant or hazardous substance in or
under or escaping or emitting or leaching from the Demised
Premises;
<PAGE>
3.19 APPLICATIONS FOR CONSENT
Upon making an application for any consent or approval which is
required under this Sub-Lease the Tenant shall disclose to the Landlord
and the Superior Landlord such information as the Landlord or the
Superior Landlord may reasonably require and shall pay on demand and by
way of indemnity on an after-tax basis all costs charges and expenses
(including without limitation legal costs Surveyors' fees disbursements
and stamp duty) properly incurred by the Landlord and the Superior
Landlord resulting from all such applications by the Tenant including
costs charges fees and disbursements actually incurred in cases where
consent is properly refused or the application is withdrawn;
3.20 TO OBSERVE COVENANTS
To observe and perform the agreements covenants and stipulations
contained or referred to in the documents referred to in the Third
Schedule hereto so far as any of the same are still subsisting and
capable of taking effect and relate to the Demised Premises and to keep
the Landlord indemnified on an after-tax basis against all losses (as
defined in Clause 3.25(A)) actions proceedings costs claims and demands
in any way relating thereto;
3.21 YIELDING UP
(A) Immediately prior to the expiration or sooner determination of
the Term if required by any competent authority or if reasonably
so requested by either the Landlord or the Superior Landlord (and
in either such case at the cost of the Tenant) to remove from the
Demised Premises or (if the relevant contaminant pollutant or
hazardous substance has been caused by the Demised Premises or
any use thereof or activities or omissions thereon after the date
hereof from other sites or premises or controlled waters or
render harmless to the reasonable satisfaction of the Landlord
and the Superior Landlord any such contaminant or pollutant or
hazardous substance which is capable of causing harm or Pollution
or which either the Landlord or the Superior Landlord would
otherwise have a duty (whether under common law or statute) to
remove or render harmless;
(B) At the expiration or sooner determination of the Term (howsoever
the same be deter-mined) to yield up to the Landlord the Demised
Premises in such state of repair and condition and cleanliness as
shall be in accordance with the covenants on the part of the
Tenant herein contained together (if the Term is determined prior
to the Satisfaction Date but not otherwise) with the Superior
Landlord's Fixtures and Fittings and together with all other
fixtures fittings improvements and additions (except tenant's
fixtures and fittings) which now are or may at any time hereafter
be in or about the Demised Premises and in the event of the
Tenant failing so to yield up the Demised Premises to pay to the
Landlord on demand by way of liquidated damages:
(i) the cost of putting the Demised Premises into the
state of repair and condition and cleanliness in
which they should have been had the Tenant complied
with the terms of this Sub-Lease; and
(ii) on an indemnity after-tax basis all losses (as
defined in Clause 3.25(A)) (including without
limitation Surveyors' Environmental Consultants' and
other professional fees) which are at any time made
or claimed against or incurred suffered or sustained
by the Landlord in connection with the matters
refer-red to in this Clause 3.21(B);
<PAGE>
3.22 TO PAY VAT
To pay to the Landlord by way of additional rent any amount in respect
of Value Added Tax which is chargeable at the rate for the time being
in force in respect of any rent or other payment made or other
consideration provided by the Tenant under the terms of or in
connection with this Sub-Lease and in every case where an amount of
money is payable or consideration is provided under this Sub-Lease such
amount or consideration shall be regarded as being exclusive of all
Value Added Tax which may from time to time be legally payable thereon
and such Value Added Tax shall be payable on the due date for the
payment of such amount or the provision of such consideration;
3.23 REIMBURSEMENT OF VAT
In every case where the Tenant has agreed to reimburse or indemnify the
Landlord in respect of any payment made by the Landlord under the terms
of or in connection with this Sub-Lease that the Tenant shall also
reimburse any Value Added Tax paid by the Landlord on such payment to
the extent that the Value Added Tax is irrecoverable by the Landlord;
3.24 TO INSURE
(A) (i) Until the Satisfaction Date to insure and keep insured the
Demised Premises in the joint names of the Superior Landlord and
the Tenant with the Insurers (who shall first have been approved
in writing by the Superior Landlord such approval not to be
unreasonably withheld) against loss or damage by the Insured
Risks in the Full Cost of Reinstatement thereof except that in
respect of risks of Machinery Breakdown insurance shall be for
the maximum possible loss in a sum which has first been approved
in writing by the Superior Landlord such approval not to be
unreasonably withheld or delayed;
(ii) To procure that the insurance policy required to be effected
by this Clause 3.24(A) shall contain a loss payable provision in
the following form:
(a) if a single event of damage or destruction gives rise
to or is likely to give rise to a total recovery under
the policy of (pound)5,000,000 or more the whole of the
recovery shall be paid in full to the Superior Landlord
or to its order without any deduction;
(b) if a single event of damage or destruction gives rise
to a total recovery under the policy of less than
(pound)5,000,000 the whole of the recovery shall be
paid in full to the Tenant without any deduction the
recovery to be applied in the reinstatement of the
Demised Premises;
and to procure that all recoveries are paid and applied in the
manner required by such provision;
(B) (i) Until the Satisfaction Date to maintain loss of rent
insurance in relation to the rent first reserved in the Headlease
in the name of the Superior Landlord with the Insurers (who shall
first have been approved in writing by the Superior Landlord such
approval not to be unreasonably withheld or delayed) against loss
of the rent first reserved in the Headlease arising from loss or
damage of any Generating Set at the Demised Premises by the
Insured Risks under a policy which has first been approved in
writing by the Superior Landlord (such approval not to be
unreasonably withheld or delayed);
<PAGE>
(ii) The loss of rent to be covered by such insurance shall be
the aggregate from time to time of the rent first reserved in the
Headlease and any Value Added Tax chargeable in respect thereof
for a three year period;
(C) To notify the Superior Landlord the Landlord and the Insurers
immediately on becoming aware of the occurrence before the
Satisfaction Date of any loss or damage at the Demised Premises
which is likely to result in a loss in excess of (pound)2,000,000
whether or not caused by an Insured Risk;
(D) In case of destruction or damage of the Demised Premises by any
of the Insured Risks prior to the Satisfaction Date diligently to
reinstate restore and rebuild the same without delay under the
direction and to the reasonable satisfaction of the Superior
Landlord (Provided that in the event of destruction of a power
station forming part of the Demised Premises the obligation to
reinstate shall be to build a new power station with
substantially similar generating output to the power station
destroyed and that if the Tenant is unable (having used its best
endeavours) to obtain the planning or other consents necessary to
execute the reinstatement restoration and rebuilding the Tenant
shall not be obliged to reinstate restore and rebuild the Demised
Premises and the Superior Landlord shall be solely entitled to
retain all the moneys payable under or by virtue of the
insurance) and in compliance with all Applicable Laws (employing
such Building Contractors Architects Surveyors and other
professional advisers as shall previously be approved in writing
by the Superior Landlord (such approval not to be unreasonably
withheld) in accordance with plans and specifications previously
approved at the expense of the Tenant by the Superior Landlord
(such approval not to be unreasonably withheld) and in case the
same shall be insufficient for that purpose (whether as a result
of under-insurance the withholding of all or part of the
insurance monies or any other reason except where it is as a
result of a breach by the Superior Landlord of its covenants
under the Headlease or a breach by the Superior Landlord of any
term of the insurance policy which has been disclosed to it) to
make up the deficiency out of the Tenant's own monies Provided
that where insurance proceeds have been paid to the Superior
Landlord pursuant to Clause 3.24(A)(ii) the Tenant shall not be
liable under this Clause 3.24(D) for failure to reinstate restore
or rebuild to the extent only that the Superior Landlord has
failed to comply with its obligation contained in Clause 4.2;
(E) (i) At its own expense throughout the Term to maintain insurance
cover in respect of the Demised Premises with the Insurers (who
shall first have been approved in writing by the Superior
Landlord such approval not to be unreasonably withheld) against
legal liability to any third parties (including agents and
subcontractors of the Tenant and insofar as insurance on behalf
of the Superior Landlord or the Landlord is concerned employees
of the Tenant) for injury death disease loss or damage (whether
to persons or property) (and including any such resulting from
sudden and identifiable unintended and unexpected pollution)
suffered (or alleged to have been suffered) as a result of or
arising directly or indirectly out of the use or presence of the
Tenant or the Superior Landlord or the Landlord or the invitees
employees agents or assigns of either or both of them or
activities or omissions conducted in about or from or in
connection with the Demised Premises or otherwise concerning the
Demised Premises;
(ii) The cover required by Clause 3.24 (E) (i) shall:
(a) be maintained in such amounts as a prudent person
carrying on the business of the Tenant would effect
having regard to the nature occupation and location of
the Demised Premises but in any event shall until the
Satisfaction Date be for not less than
(pound)100,000,000;
<PAGE>
(b) name the Superior Landlord the Landlord its directors
officers employees servants and agents in each case
carrying out the exercise of the Landlord's rights or
performance of the Landlord's obligations under this
SubLease or the Superior Landlord's rights or
performance of the Superior Landlord's obligations
under the Headlease as additional insureds;
(c) provide that the insurance effected pursuant to the
provisions of this Clause shall be primary and without
right of contribution from any other insurance effected
by any of the additional insureds;
(d) contain a cross liability provision to the effect that
coverage in respect of liability save for the limits of
liability shall operate to give each additional insured
the same protection as if there were a separate policy
issued to each additional insured; and
(e) provide that the Tenant alone and none of the
additional insureds shall be liable for any premiums in
respect of any such insurance;
(iii) The Tenant shall procure that the cover required by Clause
3.24(E)(i) shall provide that the Insurers shall waive all
lights of subrogation that the Insurers have or may acquire
against the Superior Landlord and the Landlord and its
respective directors officers employees servants and agents;
(F) To keep in effect throughout the Term in respect of the Tenant's
liability to its employees employer's liability insurance
providing for such indemnity and in such form as to comply with
the Employer's Liability (Compulsory Insurance) Act 1969 and any
succeeding statute imposing similar obligations upon employers;
(G) (i) To procure that all insurance policies required to be
effected by this Clause 3.24 shall contain a provision preventing
the material alteration of or the invalidation termination or
cancellation of the policy in whole or in part without at least
thirty days' prior written notice having been given to the
Superior Landlord;
(ii) To use its best endeavours to procure that all Insurance
policies required to be effected by this Clause 3.24 shall to the
extent covetable in the insurance market contain a provision that
the indemnity granted to any additional insured shall not be
defeated prejudiced or otherwise affected by any act omission
neglect or breach of any warranty declaration or condition on the
part of any other insured party and shall insure the interests of
each additional insured as they appear regardless of any
misrepresentation non-disclosure want of due diligence act or
omission on the part of any other insured party;
(H) (i) From time to time on written request by the Landlord or the
Superior Landlord (but not more than once in any year to each of
them without good cause) to produce to the Landlord and the
Superior Landlord written confirmation from the Insurers of the
terms of every insurance policy required at that time to be
effected under this Clause 3.24 and the fact that all such
policies are subsisting and in effect and that all current
premiums have been paid and (if requested) a copy of all such
policies;
(ii) At its own expense to arrange for certification to be made
to the Superior Landlord and the Landlord by the Insurers or the
Tenant's insurance brokers (who shall be insurance brokers of
repute) in such format as is reasonably acceptable to the
Superior Landlord and the Landlord on the occasion of each
renewal or replacement of any
<PAGE>
insurance required hereunder (but in any event at intervals not
exceeding twelve months) as to the existence and scope of all
insurances effected in compliance with this Clause 3.24;
(iii) To retain in safe custody all placing slips certificates
cover notices renewal receipts and/or confirmation of renewals
correspondence and policies with regard to any insurance required
to be effected by this Sub-Lease which are in or shall come into
the possession of the Tenant and upon request to permit the
Superior Landlord and the Landlord (or the Superior Landlord's
and the Landlord's duly authorised representatives) to inspect
the same at the Superior Landlord's or the Landlord's expense and
upon the written request of the Superior Landlord or the Landlord
promptly to deliver copies thereof to the Superior Landlord or
the Landlord;
(I) To use its best endeavours to procure in respect of the
insurances required under this Clause 3.24 that the Tenant's
insurance brokers or (in the absence of such brokers) a
representative of the Tenant to be approved by the Superior
Landlord (acting reasonably) shall as soon as reasonably
practicable but without delay advise the Superior Landlord in
writing upon becoming aware of:
(i) any underwriter or Insurer cancelling or giving notice of
cancellation of any insurance required hereunder;
(ii) any actual or proposed material alteration to or termination
cancellation or expiry (in the latter case which is not
immediately followed by renewal upon the same terms with the
same insurers) of any insurance required hereunder;
(iii) any default in the payment of any premium or failure of the
Tenant to instruct its brokers to renew any insurance
required hereunder; and
(iv) any act or omission of the Tenant or any third party or of
any event of which they have knowledge and which in their
reasonable assessment may have a material impact on the
cover provided under any insurance provided hereunder;
(J) If the Tenant shall fail to effect any insurance or to pay any
premium or premiums thereunder which (for the time being) it is
obliged to do hereunder the Landlord may (without being bound so
to do) effect any such insurance or pay any such premium or
premiums in such manner and to such extent as it thinks fit and
the costs thereof shall be immediately due and payable by the
Tenant as a debt due on demand.
3.25 TO INDEMNIFY THE LANDLORD
Without prejudice to the specific indemnities contained in this
Sub-Lease to indemnify the Landlord on an after-tax basis and keep it
indemnified on an after-tax basis against:
(A) all actions claims demands liabilities costs losses damages
proceedings (whether civil or criminal) penalties fines charges
taxes levies or duties (other than corporation tax in respect of
income or retained gains or other profits derived by the Landlord
from the Demised Premises) or other sanctions and judgments costs
(including legal costs on a full indemnity basis) and expenses of
whatsoever nature whether direct or indirect (hereinafter
referred to as losses) which may result or which the Landlord may
suffer incur or sustain (other than as a result of any breach by
the Landlord of any of its covenants contained in this SubLease)
either directly or indirectly in any manner in connection with or
arising out of this Sub-Lease (other than tax consequences
arising from the grant of this Sub-Lease) or the Demised
Premises; and
<PAGE>
(B) any obligation or liability (except as regards payment of the
sums referred to in Clause 3.25 (A)) which it may have and which
is not effectively discharged by it or others to third parties in
respect of or in any way whatsoever either directly or indirectly
in any manner in connection with the use or state or condition of
the Demised Premises during the Term (other than corporation tax
charged on the income or retained gains or other profits derived
by the Landlord from the Demised Premises); and
(C) all losses which may at any time be made or claimed against or
incurred suffered or sustained by the Landlord and arising either
directly or indirectly in any manner out of any alterations
additions repairs or development from time to time carried out on
the Demised Premises during the Term; and
(D) all losses which may at any time be made or claimed against the
Landlord by the Tenant or by any employee servant agent or
contractor of the Tenant or any third party or parties or by
their respective dependents arising either directly or indirectly
in any manner out of the ownership operation use occupation
maintenance or demise of the Demised Premises during the Term or
the construction of the Demised Premises whether such losses may
be attributable to any defect in the Demised Premises or
otherwise and whether or not the Demised Premises or the relevant
part thereof is in the possession or control of the Tenant and
without prejudice to the generality of the foregoing the
provisions of this Clause shall extend to:
(i) claims of persons who have suffered or alleged that they
have suffered loss damage or injury in connection with
anything done or not done on the Demised Premises including
claims in connection with any substance emanating or
threatening to emanate from the Demised Premises; and
(ii) claims based on the doctrines of product liability or strict
liability or absolute liability in tort or imposed by
statute;
(E) all losses which may at any time be made or claimed against or
incurred suffered or sustained by the Landlord because of
ownership or demise of the Demised Premises or any part thereof
during the Term or construction of the Demised Premises or any
part thereof or the use thereof during the Term or because of any
design article or material therein or relating thereto or arising
from infringement or alleged infringement during the Term of
intellectual property or other rights;
(F) all losses which may at any time be made or claimed against or
incurred suffered or sustained by the Landlord and which arise
from any breach non-performance or non-observance of the Tenant's
covenants and other obligations under this Sub-Lease;
Provided that the Landlord shall (so far as practicable) take all
reasonable steps to mitigate any losses which it sustains or incurs
and which might give rise to a liability on the part of the Tenant
under this Clause 3.25 and Provided further that the Landlord shall
notify the Tenant of any claim brought against the Landlord which
might give rise to a claim under this Clause 3.25 within six months of
the Landlord becoming aware of the claim;
3.26 WAIVER
The Landlord shall not be liable to the Tenant (and the Tenant hereby
waives any claim it might otherwise have against the Landlord) for any
losses in respect of any injury loss or damage of whatsoever nature and
howsoever caused arising directly or indirectly out of or in connection
with the Demised Premises its design construction installation use
operation works of reinstatement or ownership or any related works;
<PAGE>
3.27 CONTINUANCE
The indemnities contained in Clause 3.25 shall continue in full force
and effect notwithstanding the expiration or earlier determination of
the Term in respect of any losses (whenever suffered incurred or
sustained) resulting from any actor failure to act on the part of any
person (other than the Landlord) event state of affairs or other thing
occurring prior to the expiration or earlier determination of the Term;
3.28 BREACH OF HEADLEASE TERMS
Not to do or suffer or permit in relation to the Demised Premises any
act or thing which would or might cause the Landlord to be in breach of
the Headlease or which if done omitted or suffered or permitted by the
Landlord would or might constitute a breach of the covenants on the
part of the lessee and the conditions contained in the Headlease.
4. LANDLORD'S COVENANTS
The Landlord HEREBY COVENANTS with the Tenant while it owns the
reversion immediately expectant on the Term as follows:
4.1 QUIET ENJOYMENT
That the Tenant paying the rents hereby reserved and performing and
observing the covenants and agreements on the part of the Tenant
hereinbefore contained shall and may peaceably hold and enjoy the
Demised Premises during the Term without any interruption by the
Landlord or any person rightfully claiming through under or in trust
for it;
4.2 SUPERIOR LANDLORD'S CONSENT
To take all reasonable steps to obtain the consent of the Superior
Landlord wherever the Tenant makes application for any consent required
under this Sub-Lease where the consent of both the Landlord and the
Superior Landlord is needed by virtue of this Sub-Lease and the
Headlease.
4.3 ENFORCE THE HEADLEASE
At the request of the Tenant to take all reasonable steps to enforce
the covenants on the part of the Superior Landlord contained in the
Headlease.
5. PROVISOS
5.1 FORFEITURE
Prior to the Satisfaction Date:
(A) If the rents hereby reserved or any part thereof shall at any
time be in arrear for twenty-one days after the same shall have
been demanded by the Landlord; or
(B) If the Headlease is forfeited by the Superior Landlord pursuant
to Clause 5.1 of the Headlease; or
(C) If there shall be any Material Breach which has not been remedied
within two months of notice of the Material Breach having been
given to the Tenant by the Landlord; or
<PAGE>
(D) If a Bankruptcy Order or an Administration Order is made in
respect of the Tenant or the Guarantor; or
(E) If a resolution is passed or an Order is made for the winding-up
of the Tenant or the Guarantor otherwise than a member's
voluntary winding up of a solvent company for the purpose of
amalgamation or reconstruction previously approved by the
Landlord (such approval not to be unreasonably withheld or
delayed) (the Landlord keeping confidential (save as required by
law) information it receives in connection with the Tenant's or
the Guarantor's application for such approval); or
(F) If a receiver or administrative receiver is appointed over the
whole or any part of the property assets or undertaking of the
Tenant or the Guarantor; or
(G) If the Tenant or the Guarantor is struck off the Register of
Companies or is dissolved or (being a corporation or company
incorporated outside Great Britain) is dissolved or ceases to
exist under the laws of the country or state of its
incorporation; or
(H) If the directors of the Tenant or the Guarantor make any proposal
under Section 1 of the Insolvency Act 1986 or the Tenant or the
Guarantor proposes or makes any agreement for the deferral
rescheduling or other readjustment (or proposes or makes a
general assignment or an arrangement or composition with or for
the benefit of the relevant creditors) of all of (or all of a
particular type of) its debts (or of any part which it will or
might otherwise be unable to pay when due) or a moratorium is
agreed or declared in respect of or affecting all or a material
part of (or of a particular type of) the debts of the Tenant or
the Guarantor provided that where such proposal agreement
assignment arrangement composition or moratorium relates to a
particular type of its debts or any part of its debts (as opposed
to all of its debts) the proposal agreement assignment
arrangement composition or moratorium is material to the Landlord
in the context of this Sub-Lease and the Tenant's or (as
appropriate) the Guarantor's business at the time
then and in any such case it shall be lawful for the Landlord at
any time thereafter to re-enter into and upon the Demised
Premises or any part thereof in the name of the whole and to have
again repossess and enjoy the Demised Premises as in their former
estate and thereupon the Term shall absolutely cease and
determine but without prejudice to any rights or remedies of the
Landlord in respect of any antecedent breach of any of the
covenants or conditions contained in this Sub-Lease and if the
Term shall so determine before the Satisfaction Date it shall be
as if the assignment of the Quota Rights contained in Clause 2
had not been made PROVIDED THAT nothing in this Clause shall
entitle the Landlord peaceably to re-enter the Demised Premises
without an order of the Court;
5.2 NO IMPLIED EASEMENTS
Neither the granting of this Sub-Lease nor anything herein contained
shall by implication of law or otherwise operate or be deemed to confer
upon the Tenant any easement right or privilege whatsoever over or
against any Adjoining Property or which would or might restrict or
prejudicially affect the future rebuilding alteration or development of
any Adjoining Property and the Landlord shall have the right at any
time to make such alterations to or to pull down-and rebuild or
redevelop any Adjoining Property as it may deem fit without obtaining
any consent from the Tenant;
5.3 NO RESTRICTIONS ON ADJOINING PROPERTY
Neither the granting of this Sub-Lease nor anything herein contained or
implied shall impose or be deemed to impose any restriction on the use
of any land or building not comprised in this Sub-Lease or give the
Tenant the benefit of or the right to enforce or to have enforced or to
prevent the release or
<PAGE>
modification of any covenant agreement or condition entered into by any
purchaser from or by any lessee or occupier of the Landlord in respect
of property not comprised in this Sub-Lease or prevent or restrict in
any way the development of any land not comprised in this Sub-Lease;
5.4 NO COMPENSATION
Except where any Act of Parliament prohibits or modifies the right to
compensation being excluded or reduced by agreement neither the Tenant
nor any undertenant (whether immediate or derivative) shall be entitled
on quitting the Demised Premises or any part thereof to claim any
compensation from the Landlord under the Landlord and Tenant Act 1954
or any other Act of Parliament whether enacted before or after the date
hereof;
5.5 CESSER OF RENT
In case any Generating Set at the Demised Premises shall at any time
during the Term be so damaged or destroyed by any of the Insured Risks
as to render the Generating Set unfit for use then the portion of the
rent FIRST hereinbefore reserved and for the time being payable
hereunder which is allocated to the Generating Set in accordance with
the allocation set out in the Fourth Schedule shall be suspended until
the Generating Set shall again be rendered fit for use or until the
loss of rent insurance effected pursuant to Clause 3.24(B) shall be
exhausted (whichever shall be the earlier) but only to the extent that
proceeds of the loss of rent insurance effected under this Sub-Lease
are paid to the Landlord to reimburse the Landlord for the loss of such
rents,
5.6 NOTICES
(A) Any Notice or other communication required to be given or served
under or in connection with this Sub-Lease shall be in writing
and shall be sufficiently given or served If delivered or sent:
In the case of the Landlord to:
Eastern Merchant Properties Limited
Wherstead Park,
Wherstead
Ipswich
Suffolk IP99 2AQ
or to such other address in substitution therefor as is
notified in writing by the Landlord to the Tenant and the
Guarantor hereafter
In the case of the Tenant to:
Eastern Merchant Generation Limited
P.O. Box 40
Wherstead Park
Wherstead
Ipswich
Suffolk IP9 2AQ
Fax: 01473 553002
Attention: The Company Secretary
<PAGE>
or to such other address in substitution therefor as is notified
in writing by the Tenant to the Landlord hereafter
In the case of the Guarantor to:
Eastern Group plc
PO Box 40
Wherstead Park
Wherstead
Ipswich
Suffolk IP9 2AQ
Fax: 01473 553002
Attention: The Company Secretary
or to such other address in substitution therefor as is notified
in writing by the Guarantor to the Landlord hereafter;
(B) Any such notice or other communication shall be delivered by hand
or sent by courier fax or prepaid first class post. If sent by
courier or fax such notice or communication shall conclusively be
deemed to have been given or served at the time of despatch in
the case of service in the United Kingdom or on the following
Business Day in the case of international service. If sent by
post such notice or communication shall conclusively be deemed to
have been received two Business Days from the time of posting in
the case of inland mail in the United Kingdom or three Business
Days from the time of posting in the case of international mail;
(C) In this Clause 5.6 Business Day means a day on which banks are
open for business in England (excluding Saturdays Sundays and
public holidays);
5.7 EXCLUSION OF S.62 LPA
The operation of Section 62 of the Law of Property Act 1925 shall be
excluded from this Sub-Lease and the only rights granted to the Tenant
are those expressly set out in this Sub-Lease and the Tenant shall not
by virtue of this Sub-Lease be deemed to have acquired or be entitled
to and the Tenant shall not during the Term acquire or become entitled
by any means whatsoever to any easement from or over or affecting any
other land or premises now or at any time hereafter belonging to the
Landlord and not comprised in this SubLease;
5.8 REPRESENTATION
The Tenant acknowledges that this Sub-Lease has not been entered into
in reliance wholly or partly on any warranty undertaking statement or
representation made by or on behalf of the Landlord except any such
warranty undertaking statement or representation that is expressly set
out in this SubLease and (so far as permitted by law) waives any remedy
in respect of any such warranties undertakings statements and
representations not expressly set out in this Sub-Lease;
5.9 WORKING DAYS
In the event that any payment to be made by the Tenant to the Landlord
hereunder falls due on a day being a Saturday or a Sunday or a day on
which banking institutions in England are authorised by law
<PAGE>
to close and on which dealings are not carried on in the London
Interbank Market in Sterling then such payment shall be made on the
immediately preceding day not being such a day;
5.10 SEVERANCE
If any term or provision of this Sub-Lease is held to be illegal or
unenforceable in whole or in part under any enactment or rule of law
such term or provision or part shall to the extent be deemed not to
form part of this Sub-Lease but the enforceability of the remainder of
this Sub-Lease shall not be affected;
5.11 SUPPLY OF GOODS AND SERVICES ACT 1982
This Sub-Lease contains the whole agreement between the parties
relating to the subject matter of this Sub-Lease at the date hereof to
the exclusion of any terms which may be implied by law by the Supply of
Goods and Services Act 1982;
5.12 WITHHOLDINGS AND DEDUCTIONS
All sums payable under this Sub-Lease shall be paid free and clear of
all deductions or withholdings whatsoever save only as provided in this
Sub-Lease or as may be required by law and without abatement or set-off
(whether equitable or otherwise). If any deductions or withholdings are
required by law the party making the payment shall be obliged to pay
the other party such sums as will after such deduction or withholding
has been made leave the other party with the same amounts as it would
have been entitled to receive in the absence of any such requirement to
make a deduction or withholding;
6. GUARANTEE
The Guarantor covenants with the Landlord in the terms set out in the
Sixth Schedule.
In witness whereof this document has been executed as a Deed the day
and year first before written.
<PAGE>
FIRST SCHEDULE
PARTICULARS OF THE DEMISED PREMISES
(A) The power station land and buildings known as West Burton Power
Station off Gainsborough Road near Retford Nottinghamshire in
part registered under title numbers NT248499 NT249030 and
NT291811 and shown for the purpose of identification only edged
red on the plan annexed hereto and marked "West Burton";
(B) The power station land and buildings known as Ironbridge Power
Station Build was Road Telford Shropshire and shown for the
purpose of identification only edged red on the plan annexed
hereto and marked "Ironbridge" and the land at Devil's Dingle
shown for the purpose of identification only edged red on the
plan annexed hereto and marked "Devil's Dingle";
(C) The power station land and buildings known as Rugeley B Power
Station Armitage Road Rugeley Staffordshire in part registered
under title numbers SF7714 and SF86718 and shown for the purpose
of identification only edged red on the plan annexed hereto and
marked "Rugeley B";
<PAGE>
SECOND SCHEDULE
PART 1
RIGHTS GRANTED
In favour of the Tenant and its lessees agents and licensees and other persons
who now have or may hereafter be granted similar rights by the Tenant:
The right of passage and running of water telephone electricity telegraphic and
other services and supplies of whatever nature from and to the Demised Premises
through such of the Conduits currently serving the Demised Premises which are at
the date of this Sub-Lease in on or under the Adjoining Property and the right
at all reasonable times with or without workmen on giving reasonable notice
(except in an emergency) to the Superior Landlord to enter and remain upon those
parts of the Adjoining Property for the purpose of inspecting cleansing
repairing and maintaining such existing Conduits subject to the Tenant causing
the minimum disturbance and damage to the Adjoining Property which is reasonably
practicable and making good forthwith all damage caused thereby to the Adjoining
Property to the reasonable satisfaction of the Superior Landlord;
Provided that the Superior Landlord shall have the right at its own expense to
divert or relocate such Conduits to a reasonable alternative location and the
Tenant shall cooperate in respect thereof and shall (where appropriate) permit
the Superior Landlord to divert or relocate such Conduits in or under the
Demised Premises the Superior Landlord causing the minimum disturbance and
damage to the Demised Premises which is reasonably practicable and making good
forthwith all damage caused thereby to the Demised Premises to the reasonable
satisfaction of the Tenant.
PART 2
EXCEPTIONS AND RESERVATIONS OUT OF THE DEMISE
In favour of the Superior Landlord and its lessees agents and licensees and all
other persons who now have or may hereafter be granted similar rights by the
Landlord:
1. The right to erect or to consent hereafter to any person erecting a
new building or to alter any building for the time being on the
Adjoining Property in such manner as the Superior Landlord or the
person or persons exercising such right may think fit and
notwithstanding that such alteration or erection may diminish the
access of light and air enjoyed by the Demised Premises and the right
to deal with the Adjoining Property as it may think fit;
2. At all reasonable times so far as may be necessary or desirable with
or without workmen the right on giving reasonable notice (except in
emergency) to the Tenant to enter and remain upon the Demised Premises
with all necessary tools appliances and materials for the purpose of
carrying out construction or demolition work at the Adjoining Property
or repairing altering or rebuilding the Adjoining Property and to
cleanse empty remove replace and repair or carry out works to any of
the Conduits belonging to the same;
3. At all reasonable times until the Satisfaction Date but not thereafter
so far as may be necessary with or without workmen the right on giving
reasonable notice (except in emergency) to the Tenant to enter and
remain upon the Demised Premises with all necessary tools appliances
and materials for the purpose of repairing or rebuilding the Demised
Premises and to cleanse empty and repair any of the Conduits belonging
to the same where the Tenant is in breach of its obligations hereunder
in relation thereto;
4. The right to lay Conduits at the Demised Premises for the benefit of
any Adjoining Property and the right of passage and running of water
steam soil gas telephone electricity telegraphic
<PAGE>
and other services and supplies of whatsoever nature from and to the
Adjoining Property through such of the Conduits serving the Adjoining
Property which now are or may before the expiration of a period of
eighty years from the date hereof (which is the Perpetuity Period
applicable to this Sub-Lease) be in on or under the Demised Premises
and the right at all reasonable times with or without workmen on
giving reasonable notice (except in emergency) to the Tenant to enter
and remain upon the Demised Premises for the purpose of laying
inspecting repairing renewing relaying cleansing maintaining and
connecting up to any such existing or future Conduits; Provided that
the Tenant shall have the right at its own expense to divert or
relocate such Conduits to a reasonable alternative location within the
Demised Premises and the Landlord shall co-operate in respect thereof.
Provided that the Landlord shall use all reasonable endeavours to
cause the minimum disturbance and damage to the Demised Premises which
is reasonably practicable in the exercise of the rights contained in
paragraphs 2, 3 and 4 of this Schedule and shall make good forthwith
all damage caused thereby to the Demised Premises to the reasonable
satisfaction of the Tenant.
<PAGE>
THIRD SCHEDULE
DOCUMENTS WHICH AFFECT OR RELATE TO THE DEMISED PREMISES
(A) WEST BURTON POWER STATION:
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------
DATE DOCUMENT PARTIES
- ------------------------------------------------------------------------------------------------
<S> <C> <C>
I FREEHOLD DEEDS
- ------------------------------------------------------------------------------------------------
PART A
- ------------------------------------------------------------------------------------------------
23 December 1921 Conveyance Rt. Hon. Digby Wentworth
Bayard Baron Middleton and
others (1) F. Wright Esq. (2)
- ------------------------------------------------------------------------------------------------
1960 Abstract of Title Executors of F. Wright Deceased
- ------------------------------------------------------------------------------------------------
28 March 1961 Conveyance Personal Representatives of F.
Wright Deceased (1) to The
Central Generating Board
("CEGB") (2)
- ------------------------------------------------------------------------------------------------
PART B
- ------------------------------------------------------------------------------------------------
1960 Abstract of Title F.E. Warburton, Esq.
- ------------------------------------------------------------------------------------------------
9 May 1961 Conveyance F.E. Warburton (1) to CEGB (2)
- ------------------------------------------------------------------------------------------------
PART C
- ------------------------------------------------------------------------------------------------
1960 Abstract of Title R. Speed, Esq.
- ------------------------------------------------------------------------------------------------
25 April 1961 Conveyance R. Speed (1) CEGB (2)
- ------------------------------------------------------------------------------------------------
PART D
- ------------------------------------------------------------------------------------------------
6 October 1921 Conveyance Rt. Hon. Digby Wentworth
Bayard, Baron Middleton and
others (1) Mr. J.B. Booth (2)
- ------------------------------------------------------------------------------------------------
9 June 1961 Deed Supplemental to Assent J.B. Brown Deceased
3.12.1956
- ------------------------------------------------------------------------------------------------
15 June 1961 Conveyance Mrs. E.M.W. Brown & Others
(1) CEGB (2)
- ------------------------------------------------------------------------------------------------
PART E
- ------------------------------------------------------------------------------------------------
30 December 1921 Copy Conveyance Baron Middleton & Others (1)
T.H. Atkinson (2)
- ------------------------------------------------------------------------------------------------
6 July 1961 Acknowledgement R. Collier, Esq.
- ------------------------------------------------------------------------------------------------
6 July 1961 Conveyance R. Collier, Esq. (1) CEGB (2)
- ------------------------------------------------------------------------------------------------
PART F
- ------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------
DATE DOCUMENT PARTIES
- ------------------------------------------------------------------------------------------------
<S> <C> <C>
- ------------------------------------------------------------------------------------------------
1960 Abstract of Title Personal Representative of Mr.
Frederick Hill
- ------------------------------------------------------------------------------------------------
22 June 1961 Acknowledgement Midland Bank Executors and
Trustee Co. Ltd. (1) CEGB (2)
- ------------------------------------------------------------------------------------------------
22 June 1961 Conveyance Personal Representative of F. Hill
Deceased (1) CEGB (2)
- ------------------------------------------------------------------------------------------------
PART G
- ------------------------------------------------------------------------------------------------
1961 Abstract of Title J.W. Baddiley
- ------------------------------------------------------------------------------------------------
17 July 1961 Conveyance J.W. Baddiley (1) CEGB (2)
- ------------------------------------------------------------------------------------------------
PART H
- ------------------------------------------------------------------------------------------------
13 September 1949 Conveyance J.B. Brown (1) J.A. Forrest (2)
- ------------------------------------------------------------------------------------------------
18 April 1961 Conveyance Mr. J.A. Forrest (1) CEGB (2)
- ------------------------------------------------------------------------------------------------
PART I
- ------------------------------------------------------------------------------------------------
1947 Abstract of Title J.W. Muntus
- ------------------------------------------------------------------------------------------------
10 May 1961 Conveyance P.E. Muntus (1) CEGB (2)
- ------------------------------------------------------------------------------------------------
PART J
- ------------------------------------------------------------------------------------------------
1960 Abstract Title
- ------------------------------------------------------------------------------------------------
4 December 1961 Conveyance Murgatroyd (1) CEGB (2)
- ------------------------------------------------------------------------------------------------
PART K
- ------------------------------------------------------------------------------------------------
1961 Abstract of Title
- ------------------------------------------------------------------------------------------------
20 November 1961 Conveyance Personal Representatives of
E.W.S. Foljambe (1) CEGB (2)
- ------------------------------------------------------------------------------------------------
PART L
- ------------------------------------------------------------------------------------------------
24 November 1961 Conveyance BTC (1) CEGB (2)
- ------------------------------------------------------------------------------------------------
PART M
- ------------------------------------------------------------------------------------------------
1948 Abstract of Title
- ------------------------------------------------------------------------------------------------
25 April 1961 Conveyance Bland (1) CEGB (2)
- ------------------------------------------------------------------------------------------------
PART N
- ------------------------------------------------------------------------------------------------
1966 Abstract of Title
- ------------------------------------------------------------------------------------------------
1 July 1966 Conveyance Nottingham County Council (1)
CEGB (2)
- ------------------------------------------------------------------------------------------------
PART P
- ------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------
DATE DOCUMENT PARTIES
- ------------------------------------------------------------------------------------------------
<S> <C> <C>
- ------------------------------------------------------------------------------------------------
Entries on the registers of
title number NT248499
- ------------------------------------------------------------------------------------------------
PART Q
- ------------------------------------------------------------------------------------------------
12 September 1989 Contract C. Brown (1) CEGB (2)
- ------------------------------------------------------------------------------------------------
Entries on the registers of
title number NT249030
- ------------------------------------------------------------------------------------------------
PART R
- ------------------------------------------------------------------------------------------------
Entries on the registers of
title number NT291811
- ------------------------------------------------------------------------------------------------
AS TO WHOLE
- -----------------------------------------------------------------------------------
26 October 1962 Highway Diversion Order
- ------------------------------------------------------------------------------------------------
1 November 1990 Government Debenture Deed Secretary of State for Energy (1)
National Power PLC (2)
- ------------------------------------------------------------------------------------------------
20 June 1996 Conveyance National Power PLC (1) Severn
Trent Water Ltd. (2)
- ------------------------------------------------------------------------------------------------
II CONSENTS LICENCES AND
WAYLEAVES
- ------------------------------------------------------------------------------------------------
13 June 1961 Wayleave Order Minister of Public
- ------------------------------------------------------------------------------------------------
4 October 1963 Notice of abandonment of
oil pipeline Minister of Public
pipeline
- ------------------------------------------------------------------------------------------------
16 June 1994 Wayleave East Midlands Electricity plc (1)
National Power PLC (2)
- ------------------------------------------------------------------------------------------------
28 October 1976 Sidings Agreement British Railways Board (1) CEGB
(2)
- ------------------------------------------------------------------------------------------------
17 February 1995 BT Wayleave British Telecom Plc (1) National
Power PLC (2)
- ------------------------------------------------------------------------------------------------
16 September 1993 Section 106 Agreement Nottingham County Council (1)
National Power PLC (2)
- ------------------------------------------------------------------------------------------------
22 November 1966 Deed of Grant Crown Estates (1) CEGB (2)
- ------------------------------------------------------------------------------------------------
20 June 1996 Deed of Grant National Power PLC (1) Severn
Trent Water Ltd. (2)
- ------------------------------------------------------------------------------------------------
III. LEASES AND LICENSES
- ------------------------------------------------------------------------------------------------
31 March 1990 Lease National Power PLC (1) The
National Grid Company Plc
("NGC") (2)
- ------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------
DATE DOCUMENT PARTIES
- ------------------------------------------------------------------------------------------------
<S> <C> <C>
- ------------------------------------------------------------------------------------------------
29 September 1994 Tenancy National Power PLC (1)
P D & R E Warburton (2)
- ------------------------------------------------------------------------------------------------
22 March 1995 Grazing Licence National Power PLC (1)
A.R. Baker (2)
- ------------------------------------------------------------------------------------------------
22 March 1995 Grazing License National Power PLC (1)
C. G. Rowles Nicholson (2)
- ------------------------------------------------------------------------------------------------
22 March 1995 Grazing Licence National Power PLC (1)
D.B. Brown (2)
- ------------------------------------------------------------------------------------------------
13 December 1993 Agricultural Licence National Power PLC (1)
C.G. Rowles Nicholson (2)
- ------------------------------------------------------------------------------------------------
26 June 1996 Supplemental Lease National Power PLC (1) NGC (2)
- ------------------------------------------------------------------------------------------------
26 June 1996 Deed of Variation National Power PLC (1) NGC (2)
- ------------------------------------------------------------------------------------------------
25 June 1996 Lease National Power PLC (1) Ash
Resources Limited (2)
- ------------------------------------------------------------------------------------------------
IV. THE TRANSFER SCHEME
DOCUMENTS
- ------------------------------------------------------------------------------------------------
30 March 1990 Licence to Retain Assets CEGB (1) East Midlands
Electricity Board (2)
- ------------------------------------------------------------------------------------------------
30 March 1990 Interface Agreement CEGB (1) East Midlands
Electricity Board (2)
- ------------------------------------------------------------------------------------------------
31 March 1990 Interface Agreement National Power PLC (1) NGC (2)
- ------------------------------------------------------------------------------------------------
31 March 1990 Deed of Easement for Lines National Power PLC (1) to NGC
and Cables (2)
- ------------------------------------------------------------------------------------------------
I FREEHOLD DEEDS
- ------------------------------------------------------------------------------------------------
AS TO PART A
- ------------------------------------------------------------------------------------------------
8 August 1928 Conveyance H.R. Moseley (1) H.G. Archer &
G. Elliott (2) WMJEA (3)
- ------------------------------------------------------------------------------------------------
10 September 1928 Letter
- ------------------------------------------------------------------------------------------------
15 October 1928 Agreement F.G. Fowler (1) WMJEA (2)
- ------------------------------------------------------------------------------------------------
15 October 1928 Agreement W. Bishop (1) WMJEA (2)
- ------------------------------------------------------------------------------------------------
15 October 1928 Agreement W.W. Parkes (1)
WMJEA (2)
- ------------------------------------------------------------------------------------------------
15 October 1928 Agreement E Morgan (1) WMJEA (2)
- ------------------------------------------------------------------------------------------------
15 October 1928 Agreement E Hobson (1) WMJEA (2)
- ------------------------------------------------------------------------------------------------
23 October 1928 Agreement F.M. Cope-Darby (1) WMJEA
(2)
- ------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------
DATE DOCUMENT PARTIES
- ------------------------------------------------------------------------------------------------
<S> <C> <C>
- ------------------------------------------------------------------------------------------------
30 July 1965 Conveyance CEGB (1) F. Lee & J. Lee (2)
- ------------------------------------------------------------------------------------------------
AS TO PART B
- ------------------------------------------------------------------------------------------------
1964 Examined Abstract of Title
- ------------------------------------------------------------------------------------------------
16 October 1964 Conveyance E.G. Wilkes (1) CEGB (2)
- ------------------------------------------------------------------------------------------------
26 August 1982 Conveyance CEGB (1) Mr. and Mrs. J. A.
Owen (2)
- ------------------------------------------------------------------------------------------------
24 June 1859 Deed of Release and E. Moseley & Others (1) Severn
Disentailing Assurance Valley Railway Company (2) and
W. Moseley (1) Severn Valley
Railway Company (2)
- ------------------------------------------------------------------------------------------------
24 March 1860 Disentailing Assurance W. Moseley (1) Severn Junction
Railway Co. (2)
- ------------------------------------------------------------------------------------------------
16 April 1929 Agreement Great Western Railway Co. (1)
F. Woodgates (2)
- ------------------------------------------------------------------------------------------------
1947 Examined Abstract of Title
- ------------------------------------------------------------------------------------------------
26 January 1953 Agreement BTC (1) R.H.V. Drury (2)
- ------------------------------------------------------------------------------------------------
30 March 1966 Conveyance R.H.V. Drury (1) CEGB (2)
- ------------------------------------------------------------------------------------------------
9 March 1976 Agreement CEGB (1) A. Shropshire & J.
Jones (2)
- ------------------------------------------------------------------------------------------------
24 September 1986 Duplicate Conveyance CEGB (1) Mr. and Mrs. M. Kay
(2)
- ------------------------------------------------------------------------------------------------
8 May 1980 Conveyance CEGB (1) Shropshire County
Council (2)
- ------------------------------------------------------------------------------------------------
5 February 1986 Letter Nature Conservancy Council
- ------------------------------------------------------------------------------------------------
28 March 1991 Conveyance M. Roberts & Others (1)
National Power PLC (2)
- ------------------------------------------------------------------------------------------------
20 December 1995 Conveyance National Power PLC (1) R.H.
Jones (2)
- ------------------------------------------------------------------------------------------------
AS TO PART D
- ------------------------------------------------------------------------------------------------
16 November 1925 Guardianship Deed Commissioners for Works (1)
Moseley (2)
- ------------------------------------------------------------------------------------------------
1928 Examined Abstract of Title
- ------------------------------------------------------------------------------------------------
8 August 1928 Conveyance H. Moseley (1) WMJEA (2)
- ------------------------------------------------------------------------------------------------
27 September 1948 Agreement BTC (1) J.B. Carr (2)
- ------------------------------------------------------------------------------------------------
2 June 1961 Guardianship Deed H.R. Moseley (1) Commissioners
for Works (2)
- ------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------
DATE DOCUMENT PARTIES
- ------------------------------------------------------------------------------------------------
<S> <C> <C>
- ------------------------------------------------------------------------------------------------
1 March 1963 Conveyance J.B. Carr (1) CEGB (2)
- ------------------------------------------------------------------------------------------------
8 May 1980 Conveyance CEGB (1) Shropshire County
Council (2)
- ------------------------------------------------------------------------------------------------
10 April 1981 Notice of Ancient Monument Secretary of State for the
Environment
- ------------------------------------------------------------------------------------------------
11 May 1994 Deed of Exchange National Power PLC (1)
The Secretary of State for
National Heritage (2)
- ------------------------------------------------------------------------------------------------
11 February 1994 Duplicate Conveyance National Power PLC (1)
Shropshire County Council (2)
- ------------------------------------------------------------------------------------------------
9 February 1984 Subsidiary Vesting Deed CEGB (1) F.W. Carder & Others
(2)
- ------------------------------------------------------------------------------------------------
21 December 1995 Deed of Guardianship National Power PLC (1)
Secretary of State for National
Heritage (2)
- ------------------------------------------------------------------------------------------------
AS TO PART E
- ------------------------------------------------------------------------------------------------
28 October 1859 Conveyance Rt. Hon. Lord Forester (1)
Severn Valley Railway Co. (2)
- ------------------------------------------------------------------------------------------------
24 March 1860 Conveyance W. Moseley (1) Severn Junction
Railway Co. (2)
- ------------------------------------------------------------------------------------------------
18 October 1881 Conveyance W. Moseley (1) The Wenlock
Railway Co. (2)
- ------------------------------------------------------------------------------------------------
1 March 1941 Agreement Salop County Council (1) Great
Western Railway Company (2)
- ------------------------------------------------------------------------------------------------
15 January 1953 Agreement BTC (1) H.A.L. Price (2)
- ------------------------------------------------------------------------------------------------
16 December 1966 Conveyance British Railways Board (1) CEGB
(2)
- ------------------------------------------------------------------------------------------------
AS TO PART F
- ------------------------------------------------------------------------------------------------
1964 Examined Abstract of Title
- ------------------------------------------------------------------------------------------------
5 May 1967 Conveyance W.A.E. Pryce (1) CEGB (2)
- ------------------------------------------------------------------------------------------------
AS TO PART G
- ------------------------------------------------------------------------------------------------
1966 Examined Abstract of Title H.G. Passey
- ------------------------------------------------------------------------------------------------
8 August 1968 Conveyance H.G. Passey (1) CEGB (2)
- ------------------------------------------------------------------------------------------------
AS TO PART H
- ------------------------------------------------------------------------------------------------
1954 Examined Abstract of Title
- ------------------------------------------------------------------------------------------------
23 May 1967 Conveyance F.R. Coldicutt (1) CEGB (2)
- ------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------
DATE DOCUMENT PARTIES
- ------------------------------------------------------------------------------------------------
<S> <C> <C>
- ------------------------------------------------------------------------------------------------
AS TO PART I
- ------------------------------------------------------------------------------------------------
1928 Abstract of Title H.R. Moseley (1) H.G. Archer &
Another (2) F. Woodgates (3)
- ------------------------------------------------------------------------------------------------
7 July 1930 Conveyance F. Woodgates (1) M. Gilmore (2)
- ------------------------------------------------------------------------------------------------
27 January 1934 Agreement H.R. Moseley (1) M. Gilmore
- ------------------------------------------------------------------------------------------------
21 August 1942 Agreement J. Stokes (1) H. Gilmore (2)
- ------------------------------------------------------------------------------------------------
20 September 1968 Conveyance P.R. Gilmore (1) CEGB (2)
- ------------------------------------------------------------------------------------------------
AS TO PART J
- ------------------------------------------------------------------------------------------------
24 December 1929 Conveyance F. Woodgates (1) L.M. Mason
(2)
- ------------------------------------------------------------------------------------------------
26 August 1968 Conveyance L.M. Mason (1) CEGB (2)
- ------------------------------------------------------------------------------------------------
AS TO PART K
- ------------------------------------------------------------------------------------------------
18 January 1929 Conveyance F. Woodgates (1) H. Gilmore (2)
- ------------------------------------------------------------------------------------------------
7 November 1969 Land Charges Search G1060269
- ------------------------------------------------------------------------------------------------
20 November 1969 Deed of Exchange CEGB (1) L.E. Gilmore (2)
- ------------------------------------------------------------------------------------------------
AS TO PART L
- ------------------------------------------------------------------------------------------------
27 February 1970 Deed of Exchange CEGB (1) E.H. Gilmore (2)
- ------------------------------------------------------------------------------------------------
AS TO PART M
- ------------------------------------------------------------------------------------------------
25 September 1956 Conveyance E.C. Baillie & Another (1) E.G.
Wilkes (2)
- ------------------------------------------------------------------------------------------------
4 August 1969 Conveyance E.G. Wilkes (1) CEGB (2)
- ------------------------------------------------------------------------------------------------
AS TO PART N
- ------------------------------------------------------------------------------------------------
1 June 1934 Conveyance J. Todd (1) Hon. Hamilton
Russell (2)
- ------------------------------------------------------------------------------------------------
8 April 1970 Conveyance Coates of Kidderminster Ltd. (1)
CEGB (2)
- ------------------------------------------------------------------------------------------------
AS TO PART O
- ------------------------------------------------------------------------------------------------
10 January 1947 Conveyance J. Stokes & Another (1) M.A.
Gilmore (2)
- ------------------------------------------------------------------------------------------------
25 January 1955 Conveyance J.B. Carr (1) L.D.M. Whitney
(2)
- ------------------------------------------------------------------------------------------------
17 January 1972 Conveyance E.H. Gilmore (1) CEGB (2)
- ------------------------------------------------------------------------------------------------
AS TO PART P
- ------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------
DATE DOCUMENT PARTIES
- ------------------------------------------------------------------------------------------------
<S> <C> <C>
- ------------------------------------------------------------------------------------------------
1951 Examined Abstract of Title
- ------------------------------------------------------------------------------------------------
4 May 1976 Conveyance Mr. and Mrs. F. Lee (1) CEGB
- ------------------------------------------------------------------------------------------------
AS TO PART Q
- ------------------------------------------------------------------------------------------------
5 July 1967 Conveyance British Railways Board (1) A.J.
Heritage (2)
- ------------------------------------------------------------------------------------------------
13 December 1928 Conveyance F Woodgates (1) GWR Company
(2)
- ------------------------------------------------------------------------------------------------
11 March 1974 Conveyance British Railways Board (1) CEGB
(2)
- ------------------------------------------------------------------------------------------------
11 May 1994 Deed of Exchange National Power PLC (1) The
Secretary of State for National
Heritage (2)
- ------------------------------------------------------------------------------------------------
AS TO PART R
- ------------------------------------------------------------------------------------------------
11 May 1994 Deed of Exchange National Power PLC (1) The
Secretary of State for National
Heritage (2)
- ------------------------------------------------------------------------------------------------
AS TO WHOLE
- ------------------------------------------------------------------------------------------------
1 December 1990 Government Debenture Deed Secretary of State for Energy (1)
National Power PLC (2)
- ------------------------------------------------------------------------------------------------
II LICENCES AND
EASEMENTS
- ------------------------------------------------------------------------------------------------
10 March 1931 Agreement Great Western Railway Co (1)
WMJEA (2)
- ------------------------------------------------------------------------------------------------
5 April 1938 Agreement Great Western Railway Co (1)
WMJEA (2)
- ------------------------------------------------------------------------------------------------
11 December 1940 Agreement Great Western Railway Co (1)
WMJEA (2)
- ------------------------------------------------------------------------------------------------
9 April 1957 Wayleave CEA (1) Post Office (2)
- ------------------------------------------------------------------------------------------------
28 March 1964 Agreement Atcham RDC (1) CEGB (2)
- ------------------------------------------------------------------------------------------------
1 April 1965 Agreement for Domestic W Shropshire Water
1 January 1970 Water Supply Board (1) CEGB (2)
- ------------------------------------------------------------------------------------------------
14 August 1964 Agreement for Dedication of CEGB (1) Salop County Council
Land for Highway Purposes (2)
- ------------------------------------------------------------------------------------------------
15 June 1966 Licence to Impound and Severn River Authority (1) CEGB
Inland Water (2)
- ------------------------------------------------------------------------------------------------
15 July 1966 Deed of Easement A.L. Lowe (1) CEGB (2)
- ------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------
DATE DOCUMENT PARTIES
- ------------------------------------------------------------------------------------------------
<S> <C> <C>
- ------------------------------------------------------------------------------------------------
27 July 1966 Deed of Easement P.J. Garvey (1) CEGB (2)
- ------------------------------------------------------------------------------------------------
27 May 1980 Wayleave Midlands Electricity Board (1)
CEGB (2)
- ------------------------------------------------------------------------------------------------
24 March 1969 Deed of Covenant CEGB (1) Mr. and Mrs. F. Lee
(2)
- ------------------------------------------------------------------------------------------------
11 October 1972 Sidings Agreement BRB (1) CEGB (2)
- ------------------------------------------------------------------------------------------------
July 1976 Wayleave CEGB (1) The Post Office (2)
- ------------------------------------------------------------------------------------------------
4 May 1976 Duplicate Deed of Grant of CEGB (1) Shropshire County
Easement Council (2)
- ------------------------------------------------------------------------------------------------
8 May 1980 Deed of Grant of Easement CEGB (1) Shropshire County
Council (2)
- ------------------------------------------------------------------------------------------------
21 September 1984 Deed of Variation CEGB (1) Shropshire County
Council (2)
- ------------------------------------------------------------------------------------------------
2 March 1983 Deed of Grant of Easement Mr. and Mrs. O.E. Wood (1)
CEGB (2)
- ------------------------------------------------------------------------------------------------
25 June 1982 Deed of Grant of Easement J.E. Arthur (1) CEGB (2)
- ------------------------------------------------------------------------------------------------
25 June 1982 Consent of Grant of
Easement R.D. Reynolds (1) CEGB (2)
- ------------------------------------------------------------------------------------------------
2.4.1982 Deed of Easement Mr. Passey (1) CEGB (2)
- ------------------------------------------------------------------------------------------------
2.2.1982 Consent of Easement A. Ratcliffe and others (1) CEGB
(2)
- ------------------------------------------------------------------------------------------------
11 August 1982 Deed of Grant of Easement M. Berkeley (1) CEGB (2)
- ------------------------------------------------------------------------------------------------
4 February 1982 Deed of Covenant M. Passey & Another (1) CEGB
(2)
- ------------------------------------------------------------------------------------------------
29 December 1962 Deed of Covenant H.G. Passey (1) The Agricultural
Mortgage Corporation Limited (2)
CEGB (3)
- ------------------------------------------------------------------------------------------------
10 December 1954 Wayleave Post Office (1) CEA (2)
- ------------------------------------------------------------------------------------------------
27 June 1979 Deed of Covenant E. Passey (1) CEGB (2)
- ------------------------------------------------------------------------------------------------
III. LEASES
- ------------------------------------------------------------------------------------------------
25 January 1973 Lease CEGB (1) J. Aitchison (2)
- ------------------------------------------------------------------------------------------------
*30 March 1990 Lease CEGB (1) Midland Electricity
Board (2)
- ------------------------------------------------------------------------------------------------
2 November 1990 Deed of Confirmation National Power PLC (1)
Midlands Electricity PLC (2)
- ------------------------------------------------------------------------------------------------
*31 March 1990 Lease National Power PLC (1) The
National Grid Company plc (2)
- ------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------
DATE DOCUMENT PARTIES
- ------------------------------------------------------------------------------------------------
<S> <C> <C>
- ------------------------------------------------------------------------------------------------
20 September 1983 Lease CEGB (1) Severn Trent Water
Authority (2)
- ------------------------------------------------------------------------------------------------
9 March 1976 Counterpart Agricultural
Tenancy National Power PLC (1) A.E.
Shropshire and J.K. Jones (2)
- ------------------------------------------------------------------------------------------------
15 April 1996 Grazing Licence National Power PLC (1)
M. Aitchison (2)
- ------------------------------------------------------------------------------------------------
15 April 1996 Grazing Licence National Power PLC (1)
R. Lewis (2)
- ------------------------------------------------------------------------------------------------
15 April 1996 Grazing Licence National Power PLC (1)
R. Lewis (2)
- ------------------------------------------------------------------------------------------------
20 December 1995 Deed National Power PLC (1)
J.K. Jones (2)
- ------------------------------------------------------------------------------------------------
26 June 1996 Supplemental Lease and Deed National Power PLC (1)
of Variation NGC (2)
- ------------------------------------------------------------------------------------------------
IV. TRANSFER SCHEME
DOCUMENTS
- ------------------------------------------------------------------------------------------------
31 March 1990 Interface Agreement The National Grid Company plc
(1)
National Power PLC (2)
- ------------------------------------------------------------------------------------------------
31 March 1990 Deed of Grant National Power PLC (1)
The National Grid Company plc
(2)
- ------------------------------------------------------------------------------------------------
30 March 1990 Licence to Retain Assets National Power PLC (1)
Midlands Electricity Board (2)
- ------------------------------------------------------------------------------------------------
30 March 1990 Interface Agreement National Power PLC (1)
Midlands Electricity Board (2)
- ------------------------------------------------------------------------------------------------
(C) RUGELEY B POWER
STATION:
- ------------------------------------------------------------------------------------------------
AS TO PART A
- ------------------------------------------------------------------------------------------------
21 November 1923 Conveyance Trustees of Earl of Shrewsbury &
Earl Talbot (1) B Neville (2)
- ------------------------------------------------------------------------------------------------
16 October 1953 Conveyance W.E. Dunnicliffe (1)
BEA (2)
- ------------------------------------------------------------------------------------------------
AS TO PART B
- ------------------------------------------------------------------------------------------------
7 December 1953 Conveyance Earl of Shrewsbury (1)
BEA (2)
- ------------------------------------------------------------------------------------------------
14 April 1965 Deed of Exchange CEGB (1) NCB (2)
- ------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------
DATE DOCUMENT PARTIES
- ------------------------------------------------------------------------------------------------
<S> <C> <C>
- ------------------------------------------------------------------------------------------------
26 August 1955 The BEA (Langley Common)
CPO 1954
- ------------------------------------------------------------------------------------------------
AS TO PART C
- ------------------------------------------------------------------------------------------------
24 December 1953 Conveyance H. Clarke (1) BEA (2)
- ------------------------------------------------------------------------------------------------
14 April 1965 Deed of Exchange CEGB (1) NGC (2)
- ------------------------------------------------------------------------------------------------
22 January 1986 Transfer Deed CEGB (1) National Coal Board
(2)
- ------------------------------------------------------------------------------------------------
26 August 1955 The BEA (Langley Common)
CPO 1954
- ------------------------------------------------------------------------------------------------
AS TO PART D
- ------------------------------------------------------------------------------------------------
1953 Examined Abstract of Title
and Supplemental Abstract
- ------------------------------------------------------------------------------------------------
16 October 1953 Conveyance H.I. Meanley (1) BEA (2)
- ------------------------------------------------------------------------------------------------
AS TO PART E
- ------------------------------------------------------------------------------------------------
1953 Examined Abstract of Title
- ------------------------------------------------------------------------------------------------
4 June 1954 Conveyance The Shrewsbury & Wem Brewery
Company & Others (1)
BEA (2)
- ------------------------------------------------------------------------------------------------
14 April 1965 Deed of Exchange CEGB (1) National Coal Board
(2)
- ------------------------------------------------------------------------------------------------
22 January 1986 Transfer Deed CEGB (1) National Coal Board
(2)
- ------------------------------------------------------------------------------------------------
AS TO PART F
- ------------------------------------------------------------------------------------------------
28 October 1954 Conveyance A.C. Caddick (1) BEA (2)
- ------------------------------------------------------------------------------------------------
AS TO PART G
- ------------------------------------------------------------------------------------------------
1954 Examined Abstract of Title
- ------------------------------------------------------------------------------------------------
6 December 1954 Conveyance S. Craddock (1) BEA (2)
- ------------------------------------------------------------------------------------------------
AS TO PART H
- ------------------------------------------------------------------------------------------------
24 June 1946 Conveyance H.C. Ridout (1)
Rugeley UDC (2)
- ------------------------------------------------------------------------------------------------
8 February 1963 Conveyance Rugeley UDC (1)
CEGB (2)
- ------------------------------------------------------------------------------------------------
AS TO PART I
- ------------------------------------------------------------------------------------------------
1963 Examined Abstract of Title
- ------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------
DATE DOCUMENT PARTIES
- ------------------------------------------------------------------------------------------------
<S> <C> <C>
- ------------------------------------------------------------------------------------------------
22 June 1963 Conveyance F. Smith (1) CEGB (2)
- ------------------------------------------------------------------------------------------------
19 January 1981 Transfer Deed CEGB (1) British Waterways
Board (2)
- ------------------------------------------------------------------------------------------------
20 May 1985 Conveyance CEGB (1) National Coal Board
(2)
- ------------------------------------------------------------------------------------------------
7 May 1986 Deed of Rectification CEGB (1) National Coal Board
(2)
- ------------------------------------------------------------------------------------------------
AS TO PART J
- ------------------------------------------------------------------------------------------------
29 August 1949 Conveyance W.T. Punchard (1) S.J. Taylor
(2)
- ------------------------------------------------------------------------------------------------
3 November 1964 Conveyance S.J. Taylor (1) CEGB (2)
- ------------------------------------------------------------------------------------------------
AS TO PART K
- ------------------------------------------------------------------------------------------------
9 April 1956 Conveyance S.J. Taylor (1) G.A. Rutter (2)
- ------------------------------------------------------------------------------------------------
15 January 1965 Conveyance H. Bradshaw & E. Green (1)
CEGB (2)
- ------------------------------------------------------------------------------------------------
AS TO PART L
- ------------------------------------------------------------------------------------------------
31 January 1966 Conveyance CEGB (1) B.G. Gould (2)
- ------------------------------------------------------------------------------------------------
19 September 1972 Conveyance CEGB (1) Rugeley UDC (2)
- ------------------------------------------------------------------------------------------------
16 March 1977 Conveyance CEGB (1) M.J. Gleeson Ltd. (2)
- ------------------------------------------------------------------------------------------------
4 November 1977 Conveyance CEGB (1) ABI Properties Ltd.
(2)
- ------------------------------------------------------------------------------------------------
30 June 1978 Conveyance CEGB (1) Impetus Engineering
Ltd. (2)
- ------------------------------------------------------------------------------------------------
20 December 1978 Conveyance CEGB (1) Siaco Ltd. (2)
- ------------------------------------------------------------------------------------------------
AS TO PART M
- ------------------------------------------------------------------------------------------------
2 June 1954 Conveyance S. Johnson (1)
A. Parker & Sons Ltd. (2)
- ------------------------------------------------------------------------------------------------
24 February 1965 Conveyance A. Parker & Sons Ltd. (1) CEGB
(2)
- ------------------------------------------------------------------------------------------------
19 September 1972 Conveyance CEGB (1) Rugeley UDC (2)
- ------------------------------------------------------------------------------------------------
AS TO PART N
- ------------------------------------------------------------------------------------------------
9 October 1912 Conveyance H. Sharratt (1) Rugeley
UDC (2)
- ------------------------------------------------------------------------------------------------
6 June 1961 Licence NCB (1) Rugeley UDC (2)
- ------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------
DATE DOCUMENT PARTIES
- ------------------------------------------------------------------------------------------------
<S> <C> <C>
- ------------------------------------------------------------------------------------------------
13 April 1965 Conveyance Rugeley UDC (1)
CEGB (2)
- ------------------------------------------------------------------------------------------------
AS TO PART O
- ------------------------------------------------------------------------------------------------
1958 Examined Abstract of Title
- ------------------------------------------------------------------------------------------------
14 April 1965 Deed of Exchange CEGB (1) NCB (2)
- ------------------------------------------------------------------------------------------------
AS TO PART P
- ------------------------------------------------------------------------------------------------
29 July 1966 Conveyance Official Custodian for Charities
(1) Stafford County Council (2)
CEGB (3)
- ------------------------------------------------------------------------------------------------
AS TO PART Q
- ------------------------------------------------------------------------------------------------
30 May 1952 Conveyance C.B. Walker (1)
National Coal Board (2)
- ------------------------------------------------------------------------------------------------
14 April 1953 Conveyance R. Gates (1) National Coal Board
(2)
- ------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------
23 September 1953 Conveyance A. Parker (1) National Coal
Board (2)
- ------------------------------------------------------------------------------------------------
18 June 1952 Conveyance Earl of Shrewsbury (1)
National Coal Board (2)
- ------------------------------------------------------------------------------------------------
30 November 1951 Conveyance F. Ridout (1) National Coal
Board (2)
- ------------------------------------------------------------------------------------------------
31 May 1954 Conveyance T. Swan & Co. (1)
National Coal Board (2)
- ------------------------------------------------------------------------------------------------
8 April 1952 Conveyance A. Parker (1) National Coal
Board (2)
- ------------------------------------------------------------------------------------------------
4 September 1952 Conveyance A. Caddick (1)
National Coal Board (2)
- ------------------------------------------------------------------------------------------------
24 January 1953 Conveyance M.J. Richard (1)
National Coal Board (2)
- ------------------------------------------------------------------------------------------------
5 July 1957 Conveyance Official Trustee Charities (1)
National Coal Board (2)
- ------------------------------------------------------------------------------------------------
5 August 1966 Conveyance National Coal Board (1)
CEGB (2)
- ------------------------------------------------------------------------------------------------
Various Easements for lines and
cables Midlands Electricity Board (1)
Various (2)
- ------------------------------------------------------------------------------------------------
AS TO PART R
- ------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------
DATE DOCUMENT PARTIES
- ------------------------------------------------------------------------------------------------
<S> <C> <C>
- ------------------------------------------------------------------------------------------------
Entries on the registers of
title number SF7714
- ------------------------------------------------------------------------------------------------
AS TO PART S
- ------------------------------------------------------------------------------------------------
Entries on the registers of
title number SF86718
- ------------------------------------------------------------------------------------------------
5 April 1976 Conveyance CEGB (1) British Waterways
Board (2)
- ------------------------------------------------------------------------------------------------
II. LICENCES
- ------------------------------------------------------------------------------------------------
22 July 1947 Equitable Easement Rugeley UDC (1) Earl of
Shrewsbury and Others (2)
- ------------------------------------------------------------------------------------------------
19 January 1962 Pillar of Support Agreement National Coal Board (1) CEGB
(2)
- ------------------------------------------------------------------------------------------------
19 June 1970 Agreement for supply of
water to Rugeley B South Staffordshire
Water Works Company (1)
CEGB (2)
- ------------------------------------------------------------------------------------------------
5 July 1972 Sidings Agreement British Railways Board (1) CEGB
(2)
- ------------------------------------------------------------------------------------------------
20 January 1966 CEGB (1) Celcon Limited (2)
- ------------------------------------------------------------------------------------------------
27 September 1973 Deed of Grant British Railways Board (1) CEGB
(2)
- ------------------------------------------------------------------------------------------------
Various stopping up orders Ministry of Transport
- ------------------------------------------------------------------------------------------------
8 January 1995 Wayleave National Power PLC (1)
Midlands Electricity plc (2)
- ------------------------------------------------------------------------------------------------
26 June 1994 Licence National Power PLC (1)
F.W. Lewis (2)
- ------------------------------------------------------------------------------------------------
10 September 1990 Deed of Release S. Smith & Others (1)
National Power PLC (2)
- ------------------------------------------------------------------------------------------------
11 July 1995 Licence National Power PLC (1)
Milk Marque Lloyd Fraser (Daily
Services) Limited (2)
- ------------------------------------------------------------------------------------------------
III. LEASES
- ------------------------------------------------------------------------------------------------
7 August 1995 Lease National Power PLC (1)
Pozzolanic Lytag Limited (2)
- ------------------------------------------------------------------------------------------------
*30 March 1990 Lease CEGB (1) and
Midlands Electricity Board (2)
- ------------------------------------------------------------------------------------------------
*31 March 1990 Lease National Power PLC (1)
NGC (2)
- ------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------
DATE DOCUMENT PARTIES
- ------------------------------------------------------------------------------------------------
<S> <C> <C>
- ------------------------------------------------------------------------------------------------
2 November 1990 Deed of Confirmation National Power PLC (1)
Midlands Electricity PLC (2)
- ------------------------------------------------------------------------------------------------
*26 June 1996 Supplemental Lease National Power PLC (1)
NGC (2)
- ------------------------------------------------------------------------------------------------
IV. THE TRANSFER
SCHEME
DOCUMENTS
- ------------------------------------------------------------------------------------------------
30 March 1990 Interface Agreement CEGB (1)
Midlands Electricity Board (2)
- ------------------------------------------------------------------------------------------------
30 March 1990 Licence to Retain Assets Central Electricity Generating
Board (1)
Midlands Electricity Board (2)
- ------------------------------------------------------------------------------------------------
31 March 1990 Deed of Grant National Power PLC (1)
The National Grid Company plc
(2)
- ------------------------------------------------------------------------------------------------
31 March 1990 Interface Agreement National Grid Company plc (1)
National Power PLC (2)
================================================================================================
</TABLE>
<PAGE>
FOURTH SCHEDULE
ALLOCATION OF RENT FIRST RESERVED TO GENERATING SETS
Generating Set Rent ((pound) per annum)
(A) West Burton Power Station
Generating Set 1 25,000,000
Generating Set 2 25,000,000
Generating Set 3 25,000,000
Generating Set 4 25,000,000
(B) Ironbridge Power Station
Generating Set 1 25,000,000
Generating Set 2 25,000,000
(C) Rugeley B Power Station
Generating Set 1 25,000,000
Generating Set 25,000,000
<PAGE>
FIFTH SCHEDULE
SUPERIOR LANDLORD'S FIXTURES AND FITTINGS
(A) West Burton Power Station
QUANTITY DESCRIPTION
1 Heavy Oil Tanks
1 Coal Handling Plant System
1 Rail Weighbridge
I Road Weighbridge
1 Ash & Dust Handling Plant System
1 Final Metering Scheme
4 Boiler Structures
4 Boiler-Feedwater Systems
4 Boiler-Combustion Air System
4 Boiler-Gas System
4 Oil & Gas Firing System
4 Coal Firing System
4 Low Nox Burners
4 Boiler Auxiliary System
1 Boiler Control & Protection
Systems
4 HP & IP Turbine plus Auxiliaries
4 LP Turbines plus Auxiliaries
4 Generator plus Auxiliaries
4 Governing Equip & Hydraulic
4 Condenser & Air Extraction
4 Condensate System
4 Taprogge System
4 LP Feed Heating
4 Feedwater Tanks
8 Electric Feed Pump
4 Main Boiler Feed Pump Turbine
plus Pump
4 HP Feed System
1 Main & Auxil CW
1 Water Treatment Plant &
associated Water Systems
1 Hydrogen Production Plant (Not
Maintained)
1 Auxil, Steam & Condensate
1 Fire Detection & Fire Fighting
Equipment
1 Cranes Lifts & Hoists
1 Services Transformer HV/LV
1 Air Conditioning System
4 Generator Transformer
1 Station Elect System
4 Unit Elect Systems
1 General Services Water Supply
1 Compressed Air System
(B) Ironbridge Power Station
1 Heavy Oil Tank
1 Coal Handling Plant System
2 Weighbridges
4 Rail Coal Weighbridges
1 Rail Coal Sampler
1 Road Coal Sampler
1 Ash & Dust Handling Plant System
1 Final Metering Scheme
2 Boiler Structures
2 Boiler Superheat & Reheat System
2 Boiler Combustion Air System
2 Boiler Gas System
1 S03 Injection Equipment
2 Oil and Gas Firing Systems
2 Coal Firing System
2 Boiler Auxiliary System
2 Sootblower Equipment
1 Low Nox Burner Installation
2 Boiler Control and Prom. System
2 HP and IP Turbines plus
Auxiliaries
2 LP Turbines plus Auxiliaries
2 Generator plus Auxiliaries
2 Condensate System
2 LP Feed Heating System
4 Electric Feed Pumps
2 HP Feed System
2 Chemical Dosing
1 Main & Auxil. CW Systems
1 Water Treatment & Associated
Water Systems
1 Hydrogen Production Plant
1 Auxil. Steam & Condensate
1 Compressed Air Systems
1 Fire Detection and Fire Fighting
Equipment
1 Cranes Lifts & Hoists
1 Services Transformer (HV/LV)
1 Services Switchboard
1 Stn. Elect. System
2 Unit Elect. System
2 Generator Transformers
2 Turbine Governing Equipment
1 General Services Water Supply
2 Condenser & Air Extraction
Systems
(C) Rugeley B Power Station
1 Heavy Oil Tanks
1 Coal Handling Plant System
4 Rail Coal Weighbridges
2 Road Weighbridge
1 Ash & Dust Handling Plant System
1 Final Metering Scheme
2 Boiler Structures
2 Boiler Superheat & Reheat Steam
Systems
2 Attemporator Spray Feedwater
Systems
2 Boiler Combustion Air System
2 Boiler Gas System
2 Oil and Gas Firing Systems
2 Coal Firing System
2 Boiler Auxiliary System
2 Sootblower Equipment
2 Boiler Control and Protn. System
2 HP & IP Turbine plus Auxiliaries
2 LP Turbines plus Auxiliaries
2 Generator plus Auxiliaries
2 Turbine Governing Equipment
2 Condenser & Air Extraction System
2 LP Feed Heating
4 Electric Feed Pumps
2 HP Feed System
1 Main & Auxil. CW (incl.
Chlorination Plant)
1 Water Treatment Plant &
Associated Water Systems
1 Acid Dosing Plant
1 Sodium Hyperchlorite Plant
1 General Services Water Supply
1 Hydrogen Generation Plant
1 Auxil. Steam & Condensate System
1 Compressed Air Systems
1 Fire Detection and Fire Fighting
Equipment
1 Cranes Lifts & Hoists
1 Services Transformer (HV/LV)
1 Pollution Monitoring Equipment
1 Station Elect. System
2 Unit Elect. Systems
2 Generator Transformers
<PAGE>
SIXTH SCHEDULE
GUARANTEE
1 The Guarantor covenants with the Landlord as principal debtor that
throughout the Term or until the Tenant is released from its covenants
pursuant to the 1995 Act:
1.1 The Tenant will pay the rents reserved by and perform its obligations
contained in this Sub-Lease on the days and in the manner provided for
in this Sub-Lease;
1.2 The Guarantor will indemnify on an after-tax basis the Landlord on
demand against all losses damages costs and expenses properly arising
from any default of the Tenant in paying the rents and performing its
obligations under this Sub-Lease;
2 The liability of the Guarantor shall not be affected by:
2.1 Any time given to the Tenant or any failure by the Landlord to enforce
compliance with the Tenant's covenants and obligations;
2.2 The Landlord's refusal to accept rent at a time when it would or might
have been entitled to re-enter the Demised Premises;
2.3 Any variation of the terms of this Sub-Lease;
2.4 Any change in the constitution structure or powers of the Guarantor the
Tenant or the Landlord or the administration liquidation or bankruptcy
of the Tenant or Guarantor;
2.5 Any act which is beyond the powers of the Tenant;
2.6 The surrender of part of the Demised Premises;
2.7 The transfer of the reversion expectant on the Term;
2.8 Any other act or thing by which (but for this provision) the Guarantor
would have been released;
3 Where two or more persons have guaranteed obligations of the Tenant the
release of one or more of them shall not release the others;
4 The Guarantor shall not be entitled to participate in any security held
by the Landlord in respect of the Tenant's obligations or stand in the
Landlord's place in respect of such security.
<PAGE>
SEVENTH SCHEDULE
QUOTA RIGHT
Part A
Authorisations Quota
Sulphur dioxide (kilotonnes)
For the period from the date hereof 27.9 per month (and pro rata
to 31 December 1996 for part months)
1997 315
1998 287
1999 233
2000 233
2001 103
2002 103
2003 103
2004 103
2005 75
Part B
UK Plan Quota
Sulphur dioxide (kilotonnes)
1996 27.9 for each month by which the
date of this Sub-Lease falls
before 31 December 1996 (and pro
rata for part months)
1997 315
1998 287
1999 233
2000 233
2001 103
2002 103
2003 103
Oxides of nitrogen (kilotonnes)
1996
8.2 for each month by which the
date of this Sub-Lease falls
before 31 December 1996 (and pro
rata for part months)
1997 89
1998 85
<PAGE>
EIGHTH SCHEDULE
1.1 In this Clause "review date" means the expiration of the tenth year of
the Term and every fifth year thereafter and "review period" means the
period starting with any review date up to the next review date or
starting with the last review date up to the end of the said Term.
1.2 The Landlord may by giving to the Tenant prior written notice elect to
review the yearly rent payable hereunder on any review date whereupon
the yearly rent shall be:-
(A) until the first review date the yearly rent payable under
clause 2; and
(B) during each successive review period such revised rent as may be
ascertained as herein provided subject only to the provisions of
paragraph 1.4(E) of this Schedule.
1.3 Such revised rent for any review period may be agreed at any time
between the Landlord and the Tenant or (in the absence of agreement)
determined not earlier than the relevant review date by an arbitrator
such arbitrator to be nominated it, the absence of agreement by or on
behalf of the President for the time being of the Royal Institution of
Chartered Surveyors on the application of the Landlord or the Tenant
made not earlier than six months before the relevant review date but
not later than the end of the relevant review period and so that in the
case of such arbitration the revised rent to be awarded by the
arbitrator shall be such as he shall decide is the yearly rent at which
the Demised Premises might reasonably be expected to be let at the
relevant review date.
(A) On the following assumptions at that date:-
(i) that the Demised Premises:-
(a) are available to let on the open market without a fine
or premium with vacant possession by a willing landlord
to a willing tenant for a the residue then unexpired of
the term of this Sub-Lease;
(b) are to be let subject to the terms of this Sub-Lease
(other than the amount of the rent hereby reserved but
including the provisions for review of that rent);
(B) But disregarding any increase in rental value of the Demised
Premises attributable to the existence at the relevant review
date of any improvement to the Demised Premises or any part
thereof carried out with consent where required otherwise than in
pursuance of an obligation to the Landlord or its predecessors in
title except obligations requiring compliance with statutes or
directions of local authorities or other bodies exercising powers
under statute or Royal Charter either (a) by the Tenant its
sub-tenants or their respective predecessors in title during the
said term or during any period of occupation prior thereto
arising out of an agreement to grant such term or (b) by any
tenant or sub-tenant of the Demised Premises before the
commencement of the term hereby granted so long as the Landlord
or its predecessors in title have not since the improvement was
carried out had vacant possession of the relevant part of the
Demised Premises.
1.4 it is hereby further provided in relation to the ascertainment and
payment of revised rent as follows:-
(A) The arbitration shall be conducted in accordance with the
Arbitration Acts 1950 and 1979 or any statutory modification or
re-enactment thereof for the time being in force with the further
provision that if the arbitrator nominated pursuant to
paragraph 1.3 hereof shall die or decline to act as the President
for the time being of the Royal Institution of Chartered
Surveyors or the person acting on his behalf may on the
application of either the Landlord or the Tenant by writing
discharge the arbitrator and appoint another in his place
(B) When the amount of any rent to be ascertained or payable as
herein provided shall have been so ascertained or payable a
memoranda thereof shall thereupon be signed by or on behalf of
the Landlord and the Tenant and annexed to this lease and
counterpart thereof and the parties shall bear their own costs in
respect thereof.
(C) (i) If the revised rent payable on and from any review date has
not been agreed by that review date rent shall continue to
be payable at the rate previously payable and forthwith upon
the revised rent being ascertained:
(a) the Tenant shall pay to the Landlord any shortfall
between the rent and the revised rent payable up to and
on the preceding quarter day together with interest on
any shortfall at the seven-day deposit rate of National
Westminster Bank plc such interest to be calculated on
a day-to-day basis from the relevant review date on
which it would have been payable if the revised rent
had then been ascertained to the date of actual payment
of any shortfall; and
(b) the Landlord shall pay to the Tenant any excess between
the rent and the revised rent payable up to and on the
preceding quarter day together with interest in any
excess at the seven day deposit rate of National
Westminster Bank PLC on the same basis as in
sub-paragraph (a) of this present subclause (C)(i).
(ii) For the purposes of this proviso the revised rent shall be
deemed to have been ascertained on the date when the same
has been agreed between the Landlord and the Tenant or as
the case may be the date of the award of the arbitrator.
(D) If either the Landlord or the Tenant shall fail to pay any costs
awarded against it in an arbitration under the provisions hereof
within twenty-one days of the same being demanded by the
arbitrator the other shall be entitled to pay the name and the
amount so paid shall be repaid by the party chargeable on demand.
(E) If at any time on or after the tenth anniversary of the Term the
Demised Premises shall cease to be used for the generation of
electricity and shall be disconnected from the sub-station (the
close-down) the rent payable hereunder shall immediately become
(pound)100,000 per annum from the date of close-down unless
otherwise reviewed on the next or any subsequent review date.
<PAGE>
THE COMMON SEAL of )
EASTERN MERCHANT PROPERTIES )
LIMITED was )
hereunto affixed in the presence of: )
Authorized Signatory
Exhibit 10(l)
2nd July 1996
POWERGEN plc
EASTERN MERCHANT PROPERTIES LIMITED
-----------------------------
LEASE
of commercial premises at
High Marnham, Newark, Nottinghamshire
-----------------------------
FRESHFIELDS
<PAGE>
CONTENTS
CLAUSE PAGE
1. INTERPRETATION . . . . . . . . . . . . . . . . . . . . . . 1
Definitions . . . . . . . . . . . . . . . . . . . . . 1
Construction . . . . . . . . . . . . . . . . . . . . 5
2. GRANT AND PREMIUM . . . . . . . . . . . . . . . . . . . . 6
3. DEMISE AND RENT . . . . . . . . . . . . . . . . . . . . . 6
4. PREMIUM . . . . . . . . . . . . . . . . . . . . . . . . . 7
CAPACITY RENT . . . . . . . . . . . . . . . . . . . . . . . . . 7
EASTERN'S COVENANTS . . . . . . . . . . . . . . . . . . . . . . 7
POWERGEN'S COVENANTS . . . . . . . . . . . . . . . . . . . . . 7
PROVISOS . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SCHEDULE 1 . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Part 1 The Demised Premises . . . . . . . . . . . . . . . 7
Part 2 The Estate . . . . . . . . . . . . . . . . . . . . 7
Part 3 Rights Granted . . . . . . . . . . . . . . . . . . 8
1. Substation Rights . . . . . . . . . . . . . . . . . . 8
2. Services . . . . . . . . . . . . . . . . . . . . . . 8
3. Entry for maintenance purposes . . . . . . . . . . . 8
4. Emergency access . . . . . . . . . . . . . . . . . . 9
5. Footbridge . . . . . . . . . . . . . . . . . . . . . 9
6. Water pipelines and drainage ditches . . . . . . . . 9
7. Railside track . . . . . . . . . . . . . . . . . . . 9
8. Ash pipelines . . . . . . . . . . . . . . . . . . . . 9
9. Works to and use of Demised Premises . . . . . . . . 9
Part 4 Rights Excepted and Reserved . . . . . . . . . . 10
1. Services . . . . . . . . . . . . . . . . . . . . . 10
2. Entry for works and for purposes of this Lease . . 10
3. General Access . . . . . . . . . . . . . . . . . . 10
4. Works to and use of adjoining premises . . . . . . 12
5. Access for Environmental Inspection . . . . . . . . 12
6. Entry for PowerGen's Works . . . . . . . . . . . . 12
7. Emergency access . . . . . . . . . . . . . . . . . 12
8. Mines and minerals . . . . . . . . . . . . . . . . 12
9. Access to sports facilities for ex employees . . . 12
10. Use of sports facilities for ex employees . . . . . 12
11. Use of Car Park . . . . . . . . . . . . . . . . . . 12
Part 5 Documents referred to in clause 3 . . . . . . . . 13
Part 6 Ash Pipeline documents referred to in clause 3 . 15
Part 7 Permits and other documents referred to in
clause 3 . . . . . . . . . . . . . . . . . . . . 16
SCHEDULE 2 . . . . . . . . . . . . . . . . . . . . . . . . . 17
Capacity Rent . . . . . . . . . . . . . . . . . . . . . 17
SCHEDULE 3 . . . . . . . . . . . . . . . . . . . . . . . . . 19
Eastern's Covenants . . . . . . . . . . . . . . . . . . 19
1. Pay premium and rent . . . . . . . . . . . . . . . 19
2. Pay outgoings . . . . . . . . . . . . . . . . . . . 19
3. Common expenses . . . . . . . . . . . . . . . . . . 19
4. Repair . . . . . . . . . . . . . . . . . . . . . . 19
5. Conduct of Site . . . . . . . . . . . . . . . . . . 20
6. Yield up . . . . . . . . . . . . . . . . . . . . . 20
7. Transfer of Licences, etc. . . . . . . . . . . . . 20
8. Decommissioning and demolition . . . . . . . . . . 21
9. Permit entry for Landlord and others . . . . . . . 21
10. Remedy wants of repair and entry for Landlord on
Default . . . . . . . . . . . . . . . . . . . . . . . . 21
11. Notices . . . . . . . . . . . . . . . . . . . . . . 22
12. Statutory requirements . . . . . . . . . . . . . . 22
13. Alterations . . . . . . . . . . . . . . . . . . . . 22
14. Signs . . . . . . . . . . . . . . . . . . . . . . . 22
15. Fire precautions . . . . . . . . . . . . . . . . . 23
16. Securing premises . . . . . . . . . . . . . . . . . 23
17. User . . . . . . . . . . . . . . . . . . . . . . . 23
18. Prevent encroachments . . . . . . . . . . . . . . . 24
19. Alienation . . . . . . . . . . . . . . . . . . . . 24
20. Costs . . . . . . . . . . . . . . . . . . . . . . . 25
21. Value Added Tax . . . . . . . . . . . . . . . . . . 25
22. Ash and Waste Product Disposal Contracts and
Railway Agreements . . . . . . . . . . . . . . . . 25
23. Comply with title matters . . . . . . . . . . . . . 26
SCHEDULE 4
PowerGen's Covenants . . . . . . . . . . . . . . . . . . 26
1. Quiet enjoyment . . . . . . . . . . . . . . . . . . 26
2. Works . . . . . . . . . . . . . . . . . . . . . . . 26
3. Contribution to Expenses . . . . . . . . . . . . . 26
4. Sub-Station . . . . . . . . . . . . . . . . . . . . 27
5. Other documents . . . . . . . . . . . . . . . . . . 27
6. Decommissioning and Demolition . . . . . . . . . . 27
7. The Estate . . . . . . . . . . . . . . . . . . . . 27
8. Rates . . . . . . . . . . . . . . . . . . . . . . . 27
SCHEDULE 5
Decommissioning Arrangements . . . . . . . . . . . . . . 27
SCHEDULE 6
Provisos Agreements and Declarations . . . . . . . . . . 30
1. Premium . . . . . . . . . . . . . . . . . . . . . . 30
2. Forfeiture . . . . . . . . . . . . . . . . . . . . 30
3. Notices . . . . . . . . . . . . . . . . . . . . . . 31
4. L & T A compensation exclusion . . . . . . . . . . 31
5. Interest on unpaid rents and other moneys . . . . . 31
6. Non-acquisition of easements . . . . . . . . . . . 31
7. Rent acceptance when breach exists . . . . . . . . 32
8. Disputes . . . . . . . . . . . . . . . . . . . . . 32
9. Liability for Indirect Damage . . . . . . . . . . . 32
10. Landlord and Tenant (Covenants) Act 1995 . . . . . 32
11. Jurisdiction . . . . . . . . . . . . . . . . . . . 32
SCHEDULE 7 . . . . . . . . . . . . . . . . . . . . . . . . . 33
Part 1 Mobile Equipment . . . . . . . . . . . . . . . . 33
Part 2 Strategic Spares . . . . . . . . . . . . . . . . 33
MEMORANDUM OF HANDOVER DATE . . . . . . . . . . . . . . . . . 34
MEMORANDUM OF DATE OF PRACTICAL COMPLETION . . . . . . . . . 34
<PAGE>
H.M. LAND REGISTRY
LAND REGISTRATION ACTS 1925 - 1986
COUNTY AND DISTRICT : NOTTINGHAMSHIRE, NEWARK &
SHERWOOD
TITLE NUMBER :
PROPERTY : HIGH MARNHAM POWER STATION
THIS LEASE is made on 2nd July 1996
BETWEEN
POWERGEN PLC (registered in England and Wales with number
2366970), whose registered office is at 53 New Broad Street,
London EC2M 1JJ (POWERGEN); and
EASTERN MERCHANT PROPERTIES LIMITED (registered in England and
Wales with number 3181383), whose registered office is at
Wherstead Park, Wherstead, Ipswich, Suffolk IP9 2AQ (EASTERN)
NOW THIS DEED WITNESSES as follows:
INTERPRETATION
DEFINITIONS
1.1 In this Lease unless the context otherwise requires the
following expressions shall have the following meanings:
ACTS means Environmental Laws, Planning Acts and any statutes,
statutory instruments, directives, regulations and bye-laws which
are relevant to the Demised Premises and the Decommissioning
Works;
AGREEMENT FOR LEASE means the agreement dated 22 November 1995
made between PowerGen (1) and Eastern Group plc (2) (as amended
by a Deed of Variation dated 2 July 1996 between the same parties
as that agreement) pursuant to which, inter alia, this Lease and
the Drakelow Lease were granted;
BASIC RENT means the clear yearly rent of Five Hundred Pounds
((Pound Sign)500);
CAPACITY RENT means the rent calculated and payable at the times
and in the manner specified in Schedule 2;
CEGB means Central Electricity Generating Board;
CLAWBACK means any financial liability arising from the Clawback
Debenture;
CLAWBACK DEBENTURE means the debenture dated 2 November 1990 made
between PowerGen (1) and The Secretary of State for Energy (2);
DATE OF PRACTICAL COMPLETION means the date of Practical
Completion of the Decommissioning Works;
DECOMMISSIONING WORKS means the decommissioning and demolition
works, services and things to be executed, undertaken and done by
PowerGen pursuant to Schedule 5 to decommission the power station
at the Demised Premises and demolish and remove from the Demised
Premises all buildings, plant, machinery, fixtures, fittings,
pipes, wires and other conducting media (to the extent that the
same are above ground level) (other than the buildings and works
referred to in the proviso to paragraph 13 of Schedule 3) with
the intent that the Demised Premises shall, upon completion of
the works, be left clear in accordance with that Schedule;
DEMISED PREMISES means the land and buildings comprising High
Marnham power station more particularly described in Part 1 of
Schedule 1 and any part together with all buildings now or
hereafter during the Term constructed or erected thereon, all
additions, alterations and improvements thereto and the fixtures,
fittings, plant, equipment and machinery therein (other than
tenant's and trade fixtures and fittings and any plant, machinery
and equipment belonging to, or acknowledged by PowerGen or
Eastern as belonging to, The National Grid Company plc or East
Midlands Electricity plc) and the Mobile Equipment and the
Strategic Spares;
DRAKELOW LEASE means the lease of premises comprising Drakelow
"C" Power Station, Burton-on-Trent, Staffordshire dated the same
date as this Lease and made between PowerGen (1) and Eastern, or
a company within the same group as Eastern (2);
EASTERN includes its successors in title and assigns;
ENVIRONMENT means all, or any, of the following media, namely the
air (including without limitation the air within buildings and
the air within other natural or man-made structures above or
below ground), water and land and any living organisms or systems
supported by those media;
ENVIRONMENTAL LAWS means the following:
(a) all international, European, Union, national or local
treaties, statutes, directives, legislation, common law or
other laws concerning Environmental Matters which are
applicable to the Demised Premises and all regulations and
subordinate legislation made thereunder which are in force
at the date of this Lease;
(b) sections 78A - 78Y of the Environmental Act 1990 as amended
and section 161 (as amended) of the Water Resources Act
1990; and
(c) judicial and administrative interpretation of the foregoing.
ENVIRONMENTAL COVENANT means the agreement to pay certain sums in
relation to Environmental Liabilities or Remedial Works given to
PowerGen to Eastern pursuant to clause 11 of the Agreement for
Lease;
ENVIRONMENTAL LIABILITIES means liabilities under Environmental
Laws in relation to Environmental Matters including monetary
claim, award, fine, sums agreed by way of settlement, legal
and/or consultants fees or liability to make good, repair,
reinstate, treat or clean up the Demised Premises or (insofar as
it is affected by the operation of the generation of electricity
carried on from the Demised Premises) the Environment in the
vicinity of the Demised Premises;
ENVIRONMENTAL MATTERS means:
(a) the disposal, release, spillage, deposit, escape, discharge,
leak or emission of, contact with, and exposure of, any
person to Hazardous Materials or Waste;
(b) the creation of any noise, vibration, radiation, common law
or statutory nuisance, or other adverse impact on the
Environment;
(c) any other matters relating to the condition, protection,
maintenance, restoration or replacement of the Environment
or any part of it arising directly or indirectly out of the
manufacturing, processing, treatment, keeping, handling, use
(including as a building material), possession, supply,
receipt, sale, purchase, import, export, transportation or
presence of Hazardous Materials or Waste;
ESTATE means the land and premises belonging to PowerGen more
particularly described in Part 2 of Schedule 1;
HANDOVER DATE means the date being the later of (a) three months
after Eastern shall have notified PowerGen in writing that it has
ceased using the Demised Premises for the generation of
electricity and (b) one month after formal notification has been
received by PowerGen that the power station within the Demised
Premises has been electrically disconnected from the 275kV/400kV
substation adjoining the Demised Premises;
HAZARDOUS MATERIALS means anything which alone or in combination
with others is capable of causing harm or damage to property or
to man or any other organism supported by the Environment
including, without limitation, hazardous substances, pollutant,
contaminants, petroleum, petroleum products and radio active
materials;
MOBILE EQUIPMENT means the plant, machinery and equipment listed
in Part 1 of Schedule 7;
MOBILE EQUIPMENT RENT means the clear yearly rent of Twenty
Thousand Pounds (L20,000) payable in respect of the Mobile
Equipment;
NGC means The National Grid Company plc;
PERPETUITY PERIOD means the period expiring on the sooner of
eighty years from the date hereof and the Termination of the
Term;
PLANNING ACTS means the Town & Country Planning Act 1990, the
Planning (Listed Buildings and Conservation Areas) Act 1990, the
Planning (Hazardous Substances) Act 1990, the Planning
(Consequential Provisions) Act 1990, the Planning and
Compensation Act 1991, the Local Government and Land Act 1980,
the Local Government (Miscellaneous Provisions) Act 1982, the
Housing and Planning Act 1986 and any Act for the time being in
force of a similar nature and any laws and regulations intended
to control or regulate the construction demolition alteration or
change of use of land or buildings or to preserve or protect the
national heritage;
POWERGEN includes the estate owner(s) for the time being of the
reversion immediately expectant on the Termination of the Term;
PRACTICAL COMPLETION means completion of the Decommissioning
Works in accordance with paragraph 6.12 of Schedule 5;
PREMIUM means the capital sum to be paid by Eastern to PowerGen
as consideration for the grant of this Lease and the Drakelow
Lease, such sum to be calculated and payable in accordance with
the provisions of the Agreement for Lease and subject to the
agreement set out in paragraph 1 of Schedule 6;
PRESCRIBED RATE means two per centum per annum above the Screen
Rate, such rate to apply as well after as before any judgment;
RENT DAYS means 25 March, 24 June, 29 September and 25 December
in each year and RELEVANT RENT DAY shall be construed
accordingly;
RETAINED LAND means that part of the Estate which is not part of
the Demised Premises;
SCREEN RATE means, in relation to any relevant period for which
an interest calculation is to be made, the arithmetic mean
(rounded to three decimal places with the mid-point rounded up)
of the offered quotations in Pounds Sterling for that period
which appear on the relevant page of the Reuter Monitor Money
Rates Services at 11 a.m. (London time) on the first day of that
period;
STRATEGIC SPARES means the spare plant and equipment listed in
Part 2 of Schedule 7 other than any such plant and equipment that
has, prior to the date of this Lease, been affixed to the land
and buildings otherwise comprised within the Demised Premises;
SURVEYOR means an independent chartered surveyor of recognised
standing sufficiently experienced in the valuation of premises so
far as practicable of similar character or comparable to the
Demised Premises in the locality thereof or if there are no such
premises locally then in the same region as the Demised Premises
or nationally (as the case may require);
TERM means the term hereby granted;
TERMINATION OF THE TERM means the determination of the Term
whether by effluxion of time, re-entry or otherwise howsoever;
VALUE ADDED TAX means Value Added Tax pursuant to the Value Added
Tax Act 1994 and any other tax replacing or supplementing the
same from time to time;
WASTE includes any unwanted or surplus substance irrespective of
whether it is capable of being recycled or recovered or has any
value.
CONSTRUCTION
1.2 This Lease shall, unless the context otherwise requires, be
construed on the basis that:
(a) where the Tenant for the time being comprises more than one
person, covenants and obligations assumed by the Tenant
shall be construed as made by all such persons jointly and
severally;
(b) the Term shall be deemed to commence for all purposes on the
date of commencement specified in clause 3;
(c) references to any Act of Parliament, order, instrument,
regulation, direction or plan shall be deemed also to refer
to any statutory or other modification or re-enactment
thereof from time to time in force and to include any
requirement having the force of law in the United Kingdom
and any subordinate legislation, order, instrument,
regulation, direction or plan from time to time in force
made or issued thereunder or deriving validity therefrom or
from any enactment repealed thereby or under any such
modification or re-enactment;
(d) any covenant on the part of Eastern not to do any act or
thing shall include an obligation on the part of Eastern to
use reasonable endeavours not to permit or suffer such act
or thing;
(e) words demoting one gender include the other genders and
words denoting persons include firms and corporations and
vice versa;
(f) clause, Schedule, Appendix and paragraph headings shall not
affect the interpretation of this Lease and references to
any clause, Schedule, Appendix and paragraph are references
to clauses, schedules, the appendix and paragraphs of this
Lease.
GRANT AND PREMIUM
2. In consideration of the payment of the Premium, PowerGen
grants this Lease and the Drakelow Lease to Eastern.
DEMISE AND RENT
3. In consideration of the payment of the Premium as aforesaid
and the covenants on the part of Eastern (including as to payment
of the Basic Rent, Capacity Rent and Mobile Equipment Rent hereby
reserved) and the conditions hereinafter contained PowerGen
HEREBY DEMISES unto Eastern the Demised Premises TOGETHER WITH so
far as PowerGen is able to grant the same the rights set out in
Part 3 of Schedule 1 EXCEPTING AND RESERVING unto PowerGen and to
all other persons from time to time entitled thereto the rights
set out in Part 4 of Schedule 1 TO HOLD the Demised Premises unto
Eastern SUBJECT TO (and, where relevant and applicable, with the
benefit of) the rights, covenants, obligations and other matters
affecting the Demised Premises and all licenses, consents,
permissions and agreements at the date of this Agreement
affecting the operation of the Demised Premises and the power
station erected thereon and in particular (but without prejudice
to the generality of the foregoing) those matters more
particularly contained or referred to in the documents short
particulars whereof are set out in Parts 5, 6 and 7 of Schedule 1
as far as the same relate to the Demised Premises and are
subsisting and capable of taking effect for a term of ninety-nine
(99) years commencing on 2 July 1996 YIELDING AND PAYING therefor
unto PowerGen without deduction, set-off or counterclaim (except
such as Eastern may be required by law to deduct notwithstanding
any stipulation to the contrary), (a) in relation to the Demised
Premises (excluding the Mobile Equipment) (i) yearly during the
Term and so in proportion for any period less than a year, the
Basic Rent which shall be paid whether or not demanded in advance
by equal quarterly payments on each of the Rent Days except the
first payment which shall each be made on the date of this Lease
in respect of the period from 2 July 1996 to (but excluding) the
Rent Day next following the date of this Lease and (ii) yearly
until the Handover Date and so in proportion for any period less
than a year, the Capacity Rent which shall be paid whether or not
demanded in arrears as hereinafter provided and (b), in relation
to the Mobile Equipment, yearly until the Handover Date and so in
proportion for any period less than a year, the Mobile Equipment
Rent which shall be paid whether or not demanded in arrear
on 10 August in each year the first payment being made on 10
august 1997 in respect of the year ending 30 June 1997.
PREMIUM
4. Payment of the Premium is subject to the provisions of
paragraph 1 of Schedule 6.
CAPACITY RENT
5. The provisions of Part 2 of Schedule 2 shall apply in
relation to the Capacity Rent.
EASTERN'S COVENANTS
6. Eastern covenants with PowerGen in manner set out in
Schedule 3.
POWERGEN'S COVENANTS
7. PowerGen covenants with Eastern in manner set out in
Schedule 4.
PROVISOS
8. It is agreed and declared in manner set out in Schedules 5
and 6.
DULY DELIVERED AS A DEED on the date inserted on page 1
SCHEDULE 1
PART 1
THE DEMISED PREMISES
All those pieces or parcels of land edged red on Plan 1 annexed
hereto and situate at and forming part of the Estate and known as
High Marnham Power Station, Newark, Nottinghamshire together with
the buildings, plant and other structures erected thereon and (i)
including such part of the river bed adjacent to the land edged
red on Plan 1 and (ii) such part of the land coloured green on
Plan 1 being land under a roadbridge, in both cases as is vested
in PowerGen at the date hereof.
PART 2
THE ESTATE
All those pieces or parcels of land edged blue on Plan 1 annexed
hereto.
PART 3
RIGHTS GRANTED
The following rights (in common with PowerGen and all others now
or hereafter entitled to the like rights):
1. SUBSTATION RIGHTS
The rights contained in Part II and in paragraph 2 of Part V of
the Schedule to a lease of the 275kV/400kV substation adjoining
the Demised Premises dated 31 March 1990 and made between
PowerGen (1) and NGC (2);
2. SERVICES
The free and uninterrupted passage and running of water, soil,
gas, electricity and pulverised fuel ash and furnace bottom ash,
telephone and other services from and to the Demised Premises
through and along all conduits, mains, pipes, wires and cables or
other conducting media and all or any other services now or
hereafter during the Perpetuity Period provided for the Demised
Premises and laid in under or over the Estate and any other
adjoining or neighbouring land (if any) belonging to PowerGen or
in under or over any other property across which PowerGen shall
have rights to carry the same for the passage of surface water,
ash slurry and sewage from and water gas electricity
telecommunications and other services to and from the Demised
Premises SUBJECT TO Eastern maintaining, repairing, cleansing and
renewing and replacing the same as and when necessary (in
Eastern's reasonable opinion) in order to keep the same in good
and substantial repair and condition;
3. ENTRY FOR MAINTENANCE PURPOSES
The right to enter the Retained Land and any other adjoining or
neighbouring land belonging to PowerGen or any other adjoining or
neighbouring property over which PowerGen shall have such rights
of entry at all reasonable times on giving reasonable notice in
writing to the Landlord (except in an emergency when no notice
shall be required) with or without workmen or any other person
authorised by Eastern and all necessary appliances and materials
for the purpose of inspecting, maintaining, repairing and
renewing any boundary structures of the Demised Premises and to
inspect and test, maintain, renew, repair and make connections to
the conducting media and drainage channel referred to in
paragraphs 2, 6 and 8 of Part 3 of this Schedule and to exercise
any of the rights granted in this Lease and to comply with
Eastern's obligations in this Lease SUBJECT TO Eastern causing as
little damage as reasonably practicable to the Retained Land or
such other adjoining or neighbouring land belonging to PowerGen
or any other neighbouring or adjoining property and making good,
or procuring the making good of, all damage to the fabric thereof
thereby occasioned;
4. EMERGENCY ACCESS
A right of way over the Retained Land and/or any other adjoining
or neighbouring land belonging to PowerGen or over which PowerGen
shall have such rights in the event of fire or other emergency;
5. FOOTBRIDGE
A right of pedestrian access over under or along the footbridge
coloured yellow on Plan 1;
6. WATER PIPELINES AND DRAINAGE DITCHES
Without prejudice to the generality of paragraph 2 above to use
the water pipelines serving the Demised Premises and running from
the pumphouse to the remainder of the Demised Premises under the
Retained Land such pipelines to be used for the passage of water
from such pumphouse to High Marnham Power Station and to use the
drainage channel crossing both the Demised Premises and the
Retained Land insofar as they are not included in the demise;
7. RAILSIDE TRACK
The right to pass and repass at all times with or without
vehicles or other plant machinery equipment or otherwise for all
purposes connected with access to and egress from that part of
the Demised Premises to the south of the road bridge over the
track coloured purple on Plan 1;
8. ASH PIPELINES
A right of passage of ash pipelines over, under or along the
footbridge coloured yellow on Plan 1;
9. WORKS TO AND USE OF DEMISED PREMISES
At all times during the Term without reference to PowerGen or
making any compensation to PowerGen therefor to:
(a) execute or permit or suffer the execution of works or
alterations on or to the Demised Premises or the demolition,
rebuilding, alteration or extension of any buildings or
structures now or hereafter erected on such Demised
Premises;
(b) use or deal with the Demised Premises and buildings and
premises thereon in such manner as Eastern may in its
absolute discretion think fit;
provided that such rights shall be exercised so as to cause as
little inconvenience to PowerGen as is reasonably practicable and
any physical damage caused to the Retained Land as a result of
the exercise of such rights shall be made good to the reasonable
satisfaction of PowerGen at the expense of the person causing
such damage.
PART 4
RIGHTS EXCEPTED AND RESERVED
1. SERVICES
The free and uninterrupted passage and running of water soil gas
electricity telecommunications and other services from and to all
other buildings and premises on the Retained Land through and
along conduits pipes drains channels watercourses sewers wires
and cables or other conducting media which are now or may
hereafter during the Perpetuity Period be in over or under the
Demised Premises together with the rights to connect into the
same;
2. ENTRY FOR WORKS AND FOR PURPOSES OF THIS LEASE
The right to enter the Demised Premises at all times in case of
emergency and otherwise at all reasonable times on reasonable
notice with or without workmen and others and all necessary
appliances and materials for the purpose of:
(a) inspecting, maintaining, cleansing, repairing, altering,
testing, renewing and replacing, laying and making
connections to the said ducts, conduits, pipes, drains,
channels, watercourses, sewers, wires, and cables and other
conducting media and all connections serving the Retained
Land;
(b) carrying out all works, operations or acts or doing any
thing whatsoever comprised within PowerGen's obligations in
respect of the Estate or (whether or not within the same)
for which Eastern is liable hereunder to make a
contribution; and
(d) for any purpose mentioned in paragraph 5 of Schedule 3 to
the Clawback Debenture or in any of the documents mentioned
in Part 5 of this Schedule
the persons exercising such rights causing as little damage as
reasonably practicable to the Demised Premises and making good or
procuring the making good of all damage to the fabric thereof
thereby occasioned;
3. GENERAL ACCESS
A right to pass and repass at all reasonable times and for all
purposes connected with access to and egress from the Retained
Land over roads and paths designated from time to time by Eastern
for the purpose subject to all and any reasonable regulations as
to direction of traffic flow thereover or other traffic control
arrangements notified by Eastern to PowerGen in writing;
4. WORKS TO AND USE OF ADJOINING PREMISES
At all times during the Term without reference to Eastern to:
(a) execute or permit or suffer the execution of works or
alterations on or to the Retained Land or the demolition,
rebuilding, alteration or extension of any buildings or
structures now or hereafter erected on such lands;
(b) use or deal with the Retained Land and buildings and
premises thereon in such manner as PowerGen may in its
absolute discretion think fit;
provided that such rights shall be exercised so as to cause as
little inconvenience to Eastern as is reasonably practicable and
any physical damage caused to the Demised Premises as a result of
the exercise of such rights shall be made good to the reasonable
satisfaction of Eastern at the expense of the person causing such
damage;
5. ACCESS FOR ENVIRONMENTAL INSPECTION
If PowerGen is, or reasonably believes that it may be, liable
under the Environmental Covenant of the Environmental Acts in
respect of the Demised Premises, a right to enter the Demised
Premises at reasonable times and upon reasonable notice with or
without workmen, surveyors, consultants and all other persons
authorised by PowerGen together with all necessary vehicles,
plant, machinery, appliances and materials for the purpose of
inspecting and the carrying out of all environmental tests,
surveys and reports as PowerGen shall in its absolute discretion
consider appropriate whether over or under the surface of the
Demised Premises and whether or not the same causes any damage to
the Demised Premises Provided that, in exercising such right,
PowerGen shall
(a) make good or procure the making good of any damage so
caused;
(b) cause as little disruption and interference to the business
as reasonably practicable carried on upon the Demised
Premises;
(c) comply with all reasonable regulations or instructions
issued by Eastern; and
(d) ensure that adequate insurance cover against all insurable
third party liability claims is maintained in respect of the
works carried out under this paragraph 5.
6. ENTRY FOR POWERGEN'S WORKS
The right to enter upon the Demised Premises with or without
workmen and others and all necessary vehicles, plant, machinery,
equipment, appliances and materials in order to carry out and
complete the works referred to in paragraph 2 of Schedule 4;
7. EMERGENCY ACCESS
A right of way without interference through the Demised Premises
in the event of fire or other emergency;
8. MINES AND MINERALS
The mines and minerals (including for the avoidance of doubt
gravel) under that part of the Demised Premises hatched black on
Plan 1 (and any rights of any support for the Demised Premises
provided by the same) together with all rights necessary to win
and work the same PROVIDED THAT such rights shall be exercised so
as to cause as little inconvenience to Eastern as reasonably
practicable and any damage to the surface of the Demised Premises
or the buildings or erections from time to time thereon as a
result of the exercise of such rights shall be made good to the
reasonable satisfaction of Eastern and PROVIDED FURTHER that the
persons exercising these rights shall pay to Eastern the cost of
relocating any service conduits or roadways over under or upon
the Demised Premises; and
9. ACCESS TO SPORTS FACILITIES FOR EX EMPLOYEES
The right for ex employees of CEGB and PowerGen and all persons
authorised by PowerGen (on reasonable proof of identity and
status) of vehicular access to the sports ground and sports and
social facilities including the pavilion showers and training
room identified on Plan 1 situated on the Demised Premises over
the roads and footpaths situated on the Demised Premises.
10. USE OF SPORTS FACILITIES FOR EX EMPLOYEES
10.1 The right for ex employees of CEGB and PowerGen (on
reasonable proof of identity and status) to enter and use the
sports ground and sports and social facilities, pavilion and
showers adjoining the sports field on the Demised Premises at all
reasonable times during the normal hours from time to time of the
sports club and in compliance with the rules and regulations from
time to time of the sports and social club;
10.2 The right for ex employees of CEGB and PowerGen (by prior
appointment and subject to the prior consent of Eastern and on
reasonable proof of identity and status) to use (on a non
exclusive basis) the training room located on the Demised
Premises and indicated on Plan 1 subject to compliance with the
reasonable rules and regulations of Eastern of which the ex
employees of CEGB and PowerGen have prior notice.
11. USE OF CAR PARK
The right for ex employees of CEGB and PowerGen and all persons
authorised by PowerGen when using the sports facilities referred
to in paragraph 10 to park vehicles in the car parking area
coloured orange on Plan 1 or such alternative car parking area as
shall be provided by Eastern (being not materially less
convenient than the existing car park coloured orange on Plan 1).
PART 5
DOCUMENTS REFERRED TO IN CLAUSE 3
DATE DOCUMENT PARTIES
6 December 1955 Conveyance The Personal
Representatives of
J H Fox (1)
Central Electricity
Authority(2)
21 February 1956 Conveyance T E Pickin (1)
Central Electricity
Authority (2)
31 July 1956 Conveyance The British
Transport
Commission (1)
Central Electricity
Authority (2)
20 February 1957 Agreement by letter British Transport
varying covenants in Commission (1)
a Conveyance of 31 Central Electricity
July 1956 Authority (2)
31 March 1990 Lease (NGC LEASE) PowerGen (1)
NGC (2)
31 March 1990 Interface Agreement NGC (1)
(INTERFACE PowerGen (2)
AGREEMENT)
31 March 1990 Deed of Grant PowerGen(1)
(WAYLEAVE) NGC (2)
16 May 1972 Conveyance CEGB (1)
WH Strawson (2)
18 June 1974 Conveyance CEGB (1)
R W Sutton (2)
18 June 1974 Deed of Grant CEGB (1)
R W Sutton (2)
6 October 1972 Deed of Covenant Mr & Mrs D Owen (1)
CEGB (2)
25 September 1979 Deed of Covenants G G Nixon and D R
Nixon (1)
CEGB (2)
16 July 1980 Deed of Covenant M B Ashton (1)
CEGB (2)
8 March 1985 Deed of Covenant Mr & Mrs. E J
Beckett
(1)
CEGB (2)
14 July 1984 Licence British Waterways
Board (1)
CEGB (2)
15 February 1957 Agreement CEA (1)
County Council of
the Administrative
County of Nottingham
(2)
8 April 1958 Tenancy Agreement CEGB (1)
W H Strawson (2)
25 September 1959 Conveyance The Queen's Most
Excellent Majesty
(1) The Crown Estate
Commissioners (2)
CEGB (3)
3 July 1974 Tenancy Agreement CEGB (1)
W H Strawson (2)
7 June 1962 Tenancy Agreement CEGB (1)
W Hare and W H Hare
(2)
18 April 1963 Agreement for British Waterways
construction and use Board (1)
of bridge CEGB (2)
29 December 1959 Agreement as to CEGB (1)
laying British Transport
of cables Commission (2)
8 October 1956 Agreement for British Transport
construction of Commission (1)
flood Central Electricity
banks Authority (2)
2 July 1996 Transfer PowerGen plc (1)
William Henry
Swanson (2)
PART 6
ASH PIPELINE DOCUMENTS REFERRED TO IN CLAUSE 3
DATE DOCUMENT PARTIES
24 July 1979 Deed of Grant for K G and J Laing (1)
ash disposal CEGB (2)
pipeline
12 September 1979 Deed of Grant for M Brown and R W
ash disposal Whitehead (1)
pipeline CEGB (2)
29 September 1981 Consent to W Scott & Sons
construction (South
of ash disposal Clifton) Farmers
pipeline Limited (1)
CEGB (2)
10 December 1979 Deed of Grant for W T Yates & E M
ash disposal Yates
pipeline (1)
CEGB (2)
10 December 1979 Deed of Grant for Mr and Mrs T E
ash disposal Williams (1)
pipeline CEGB (2)
20 December 1979 Deed of Grant for C Coulson (1)
ash disposal CEGB (2)
pipeline
2 May 1980 Deed of Grant for E Bell (1)
ash CEGB (2)
disposal pipeline
11 August 1980 Deed of Grant for D D Pennington (1)
ash disposal CEGB (2)
pipeline
27 October 1982 Deed of Grant for W Scott & Others and
ash disposal Mortgagees (1)
pipeline CEGB (2)
27 October 1982 Deed of Grant for W Scott & his
ash disposal Mortgagees (1)
pipeline CEGB (2)
27 October 1982 Deed of Consent for W Scott & Sons
ash disposal (South
pipeline Clifton Farmers)
Tenants (1)
CEGB (2)
6 October 1959 Deed of Grant for Crown Estate
construction of Commissioners (1)
bridge and ash CEGB (2)
disposal pipeline
20 November 1958 Deed of Grant for H Staton &
ash disposal Mortgagees
pipeline (1) CEGB (2)
27 November 1958 Deed of Grant for W & W H Hare (1)
ash disposal CEGB (2)
pipeline
12 May 1958 Deed of Grant for H Scott (2)
ash disposal CEGB (2)
pipeline
12 May 1958 Deed of Grant for W Scott & Mortgagee
ash disposal (1) CEGB (2)
pipeline
28 May 1958 Deed of Grant for H C Grimes (1)
ash disposal CEGB (2)
pipeline
29 May 1958 Deed of Grant for A and A W Cooper (1)
ash disposal CEGB (2)
pipeline
PART 7
PERMITS AND OTHER DOCUMENTS REFERRED TO IN CLAUSE 3
DATE DOCUMENT PARTIES
22 September 1955 Section 2 Licence Ministry of Fuel and
Power
23 February 1966 (as Licence to abstract Trent River
varied 31 October water from River Authority
1980 and 12 Trent
August 1986)
21 March 1986 Consent for Severn Trent Water
discharge Authority
No S34/551204 (as
amended)
T/69/22/193/T
24 March 1995 Borehole Licence to National Rivers
abstract water Authority
(1) PowerGen (2)
16 January 1980 Waste Disposal Nottingham County
Licence re ash Counsil (1)
deposit at North CEGB (2)
Scarle
7 January 1993 Waste Disposal Nottingham County
Licence re ash Council (1)
deposit at Girton CEGB (2)
26 October 1994 RadioActive Her Majesty's
Substances Inspectorate of
Registration Ref Pollution (1)
AD3405 National Rivers
Authority (2)
14 March 1995 Agreement for Supply Anglian Water
of Water from Services Limited (1)
borehole PowerGen (2)
14 July 1972 Licence for British Waterways
construction Board (1)
of ash disposal CEGB (2)
pipeline under
canal
7 November 1960 Agreement for supply East Retford Rural
of water District Counsel (1)
CEGB (2)
26 April 1977 Licence to restore Newark District
worked out gravel Counsel (1)
pit at Girton GEGB (2)
18 April 1963 Licence to extract British Waterways
water and Licence Board (1)
to discharge GEGB (2)
and erect bridge
7 April 1993 IPC Authorisation Her Majesty's
Inspectorate
of Pollution (1)
National Rivers
Authority (2)
SCHEDULE 2
CAPACITY RENT
1. On 10 August 1997 and on 10 August in each year thereafter
(until and including 10 August 2001 or 40 days after the Handover
Date if such date is earlier than 30 June 2001) Eastern shall pay
the Capacity Rent, calculated in the manner set out in the
remainder of this Schedule.
2. The Capacity Rent payable on any 10 August shall be in
respect of the year ended on 30 June next before that payment
date.
3. To the extent relevant, if the Handover Date is not 30 June
in any relevant year, the Capacity Rent payable 40 days after the
Handover Date shall be in respect of the period from 1 July next
before the Handover Date to (but not including) the Handover
Date.
4. The Capacity Rent for any relevant year ended on or before
30 June 2001 shall be the amount which is the sum of ((Pound
Sign)2.60 multiplied by RPI(1) divided by RPI(2) multiplied by
GSC) minus (Pound Sign)20,000.
5. If the Handover Date occurs on any date other than 30 June
in any year, the Capacity Rent shall be reduced proportionately
(calculated on a daily basis).
6. In the above calculations:
(a) GSC is the time-weighted generating set capacity (in
kilowatts) of the generating sets comprised within the
Demised Premises for the relevant year;
(b) RPI(1) is the RPI for the month of May next before the
relevant payment date;
(c) RPI(2) is the RPI for the month of May 1996; and
(d) RPI is the Retail Prices Index (all items) prepared by the
Central Statistical Office from time to time.
SCHEDULE 3
EASTERN'S COVENANTS
1. PAY PREMIUM AND RENT
1. Subject to paragraph 1 of Schedule 6, to pay to PowerGen the
instalments of the Premium, and the Capacity Rent, the Basic
Rent, the Mobile Equipment Rent and other amounts payable under
this Lease at the times and in manner as provided herein without
any deduction, set-off or counterclaim except as aforesaid.
2. PAY OUTGOINGS
2. Subject to paragraph 8 of Schedule 4, to pay and discharge
all existing and future rates, taxes, duties, charges,
assessments, impositions and outgoings whatsoever (whether
parliamentary, parochial, local or of any other description and
whether or not of a capital or revenue or non-recurring nature
and even though of a wholly novel character) (CHARGES) which are
now or may at any time hereafter be assessed, charged, levied or
imposed upon or payable in respect of the Demised Premises or on
or by any estate owner, landlord, tenant or occupier in respect
thereof (except (subject to paragraphs 21(d) and 22 of this part
of this Schedule) any charges or Clawback payable by PowerGen
occasioned by receipt of any sums due hereunder or by the
ownership of, or an actual dealing (including the grant of this
Lease) by PowerGen with, its reversionary interest in the Demised
Premises or any interest immediately or mediately reversionary to
this Lease).
3. COMMON EXPENSES
3. Without prejudice to the generality of any other covenant by
Eastern, to pay on demand a fair proportion of the costs and
expenses of making, repairing, maintaining, rebuilding, renewing,
replacing, lighting, insuring, connecting and cleansing all ways,
roads, pavements, bridges, sewers, drains, pipes, channels,
watercourses, gutters, wires, cables, boundary walls, fences,
party walls, structures, open areas and other conveniences which
shall at any time belong to or be used for the Demised Premises
in common with other premises near or adjoining thereto.
4. REPAIR
4.1 Subject to Power Gen's obligations under the Environmental
Covenant and subject to paragraphs 4.2 and 4.3 of this Part of
this Schedule and taking account of the state and condition of
the Demised Premises at the date of this Lease and subject to
wear and tear and use of the Demised Premises as a power station,
to keep the Demised Premises safe;
4.2 Without prejudice to the generality of, and notwithstanding
paragraph 4.1 above, to comply fully with any obligation
contained or referred to in any of the documents listed in Parts
5, 6 and 7 of Schedule 1 for or relating to the repair,
maintenance or renewing, replacing or rebuilding of anything
comprised in, or anything in, under or on, the Demises Premises;
4.3 Subject to the provisions of Schedule 5, to keep the
Strategic Spares (so far as any of the same has not been affixed
to the Demised Premises during the Term) and the Mobile
Equipment, so far as practicable available for use.
5. CONDUCT OF SITE
5. Prior to the Handover Date, save as may arise as a result of
using the Demised Premises in accordance with paragraph 17 of
this Schedule, not to do or permit anything to be done at or on
the Demised Premises as shall materially increase the actual or
contingent liabilities of PowerGen pursuant to the covenant on
its part contained in paragraph 6 of Schedule 4 of its
obligations under Schedule 5.
6. YIELD UP
6. At the Termination of the Term:
6.1 Immediately to make any payment then due to PowerGen
pursuant to this Lease; and
6.2 To yield up the Demised Premises (including the Mobile
Equipment and the Strategic Spares so far as the same are still
subsisting) unto PowerGen as shall be in accordance with the
covenants and conditions contained in or imposed by virtue of
this Lease and, unless released from compliance by PowerGen, to
remove from the Demised Premises all tenant's and trade fixtures
and fittings and Eastern's furniture and effects and to remove
any sign, writing or painting of the name or business of Eastern
and other persons from the Demised Premises.
7. TRANSFER OF LICENCES, ETC.
7. As soon as practicable after yielding up the Demised
Premises to deliver up to PowerGen all written permissions,
permits, licences and authorisations for the operation of the
Demised Premises and to use all reasonable endeavours to transfer
or assign (to the extent possible and at PowerGen's cost and
expense) to PowerGen all such permissions, permits, licences and
authorisations in the name of Eastern and where the consent of a
third party is required for such assignment or transfer to join
with PowerGen in the making of any necessary application therefor
and to supply such assistance and information therewith as
PowerGen shall reasonably require Provided always that Eastern
shall not be obliged to act as surety or guarantor or give any
other form of security in relation to any such transfer or
assignment.
8. DECOMMISSIONING AND DEMOLITION
8. To comply with the covenants and obligations on the part of
Eastern contained in Schedule 5.
9. PERMIT ENTRY FOR LANDLORD AND OTHERS
9.1 To permit PowerGen and its servants, and other agents, it
contractors and workmen and, to the extent lawfully entitled, the
owner, tenants and occupiers of any adjoining or neighbouring
premises and their respective servants, agents and workmen with
all necessary plant, machinery, equipment, tools and appliances
at all times in case of emergency and otherwise at any reasonable
times on reasonable prior notice without interruption or
interference and subject to such safety requirements as Eastern
shall reasonably require to enter upon the Demised Premises and
remain thereon for such period as shall be necessary:
(a) to examine the Demised Premises to ensure that nothing has
been done or omitted which constitutes or may be or tend to
be a breach or non-performance of any of the covenants
contained in this Lease;
(b) to exercise any rights excepted and reserved to PowerGen or
such owners, tenants and occupiers and for any other purpose
properly connected with the interest of PowerGen in the
Demised Premises;
(c) to inspect the Demised Premises for all purposes connected
with the operation or implementation, or the proposed
implementation, of Schedule 5 and Eastern shall furnish such
information for the said purposes as may reasonably be
requested by PowerGen.
9.2 To permit the persons authorised by, or referred to in,
paragraph 5 of Schedule 3 to the Clawback Debenture to enter upon
the Demised Premises for the purposes therein mentioned.
10. REMEDY WANTS OF REPAIR AND ENTRY FOR LANDLORD ON DEFAULT
10. Forthwith to proceed to repair and make good all wants of
repair and defects of which notice shall be given by PowerGen to
Eastern and which Eastern shall be liable to repair or make good
provided always that if within two months or such shorter period
as is reasonable from the date of such notice Eastern shall fail
to commence to repair and make good the matters prescribed in
such notice then it shall be lawful for PowerGen and all persons
authorised by PowerGen with workmen, servants, agents and others
with or without all necessary plant, machinery, equipment, tools
and appliances to enter into and stay upon the Demised Premises
and repair and make good the same at the expense of Eastern (but
so that PowerGen's right of entry or any other right or remedy of
PowerGen under this Lease shall not thereby be prejudiced).
11. NOTICES
11. As soon as practicable after receipt by Easter of any notice
or communication from a competent authority affecting PowerGen's
interest in the Demised Premises to give to PowerGen a copy
thereof.
12. STATUTORY REQUIREMENTS
12.1 Save as provided in the Environmental Covenant, at the
expense of Eastern to comply with all Environmental Laws,
Planning Acts and the Electricity Act 1989 relating to the
Demised Premises or the use thereof and to execute at its own
expense any work required to be carried out in or to the Demised
Premises whether such work is required to be carried out by the
owner or the occupier or any other person.
12.2 Save as provided in the Environmental Covenant, not at any
time to do omit or permit on or about the Demised Premises any
act or thing by reason of which PowerGen may under any such
European Laws, Planning Acts and the Electricity Act 1989 incur
or have imposed upon it or become liable to pay any levy penalty
damages compensation costs charges or expenses Provided that use
of the Demised Premises in accordance with paragraph 17 of this
Schedule and the PowerGen Standards shall not, of itself,
constitute breach of this paragraph 12.2.
12.3 Save as provided in the Environmental Covenant, to obtain
all licences, permissions and consents and to execute and do all
works and things and to bear and pay all expenses required or
imposed by any such Environmental Laws, Planning Acts and the
Electricity Act 1989 in respect of any works carried out by
Eastern on the Demised Premises or of any user thereof.
13. ALTERATIONS
13. Prior to the Handover Date, if Eastern make any alterations
or additions in or to the Demised Premises which materially
increase PowerGen's obligations pursuant to paragraph 6 of
Schedule 4 and the provisions of Schedule 5 then, save for
alterations or additions required to comply with the provisions
of paragraph 12 of this Schedule, Eastern shall pay to PowerGen
the reasonable increase in cost and expense incurred by PowerGen
in complying with its said obligations.
14. SIGNS
14. Prior to the Handover Date, to display at the main and other
entrances to the Demised Premises appropriate signs indicating
that Eastern is in occupation thereof and in all relevant
locations appropriate warning signs and/or other instructional
notices to those persons who may, from time to time, be upon the
Demised Premises.
15. FIRE PRECAUTIONS
15. Prior to the Handover Date, at all times during the Term at
the expense of Eastern to comply with all recommendations
(whether legally enforceable or not) from time to time of the
appropriate authority in relation to fire precautions affecting
the Demised Premises and to keep and maintain sufficient fire
fighting and extinguishing apparatus in and about the Demised
Premises installed in compliance with such recommendations and
with any legal requirements and any requirements of any insurer
of the Demised Premises.
16. SECURING PREMISES
16.1 Prior to the Handover Date, at all times of the day or night
to keep the Demised Premises fully secured against intruders,
unauthorised persons, vandalism and to provide such security
arrangements and systems as may be necessary to comply with any
requirement of any appropriate authority (whether legally
enforceable or not).
16.2 Prior the Handover Date, to maintain all external and
security lighting in good condition and fully operational during
night time working hours.
16.3 To erect and thereafter until the Handover Date maintain in
a proper state of repair and condition such boundary fencing as
is required for the safe operation of the Power Station at the
Demised Premises or as is required by any statutory or other body
or pursuant to any statutory or other obligation.
17. USER
17.1 Prior to 31 March 2000 not to use those parts of the Demised
Premises which are hatched pink on Plan 1 annexed to this Lease
such that its use is other than an activity for which an
exemption or licence is required under Sections 5 or 6 of the
Electricity Act 1989 or involving the distribution of electricity
in so far as it does not require a licence under Section 6 of
that Act and, subject thereto, to use the Demised Premises for
the purpose of electricity generation substantially from the
plant and equipment comprised in the Demised Premises at the date
of this Lease and for other purposes ancillary thereto.
17.2 Prior to the Handover Date, to use all reasonable endeavours
(a) not at any time to use the Demised Premises or any part
thereof nor permit or suffer the same to be used in any way or
for any purpose which may unnecessarily be a nuisance, damage or
disturbance to the owners or occupiers of any premises adjoining
or near the Demised Premises or the neighbourhood and (b) to use
and operate the Demised Premises in such manner as engenders and
fosters good relations with the communities in the locality of
the Demised Premises and any representatives of such communities
and, in particular, but without prejudice to the generality of
the foregoing (i) to ensure that all lorries and other heavy or
wide goods vehicles having access to the Demised Premises comply
with all formal and informal agreements with such local
communities and representatives including relating to the use of
certain routes and any restrictions on the times or days at which
such routes can be used, (ii) to take steps to explain or inform
the local communities of any unusual operations at the Demised
Premises.
Provided always that use of the Demised Premises in accordance
with paragraph 17.1 of this Schedule shall not, of itself,
constitute a breach of this paragraph 17.2.
17.3 Subject to the provisions of Schedule 5, only to use the
Mobile Equipment at the Demised Premises.
17.4 Subject to the provisions of Schedule 5, only to use the
Strategic Spares at the Demised Premises or at the premises
comprised within the Drakelow Lease.
18. PREVENT ENCROACHMENTS
18. Not knowingly to permit any owner of any property adjoining
or near the Demised Premises to acquire any rights of way, light
or air or other privilege easement or make any encroachment over
against out of or upon the Demised Premises.
19. ALIENATION
19.1 Save as provided in paragraph 19.2 of this Schedule, in
relation to the whole or any part of those parts of the Demised
Premises hatched pink on Plan 1 annexed to this Lease, on or
before 1 April 2000, not to assign, transfer, underlease, charge,
share occupation or part with or share possession, declare trusts
over or otherwise deal with the same in any way whatsoever.
19.2 Not to assign the whole or any part of the Demised Premises
save to a member of Eastern's Group (as such expression is used
in the Agreement for Lease) without first obtaining from the
assignee a covenant by deed with PowerGen to pay the Premium and
the rents and other amounts payable hereunder and to observe and
perform all the covenants on the part of Eastern and the
condition as to user set out in paragraph 2 of Schedule 6 in such
form as PowerGen shall reasonably determine having regard, in
particular, to its obligations and liabilities pursuant to the
Clawback Debenture.
19.3 Within one month of every assignment, transfer, underlease
or charge affecting the Demised Premises or any devolution of the
estate of Eastern therein or this Lease, to give notice in
writing with particulars thereof to PowerGen and produce such
assignment, transfer, underlease or charge or the Probate of the
Will or Letters of Administration or other instrument, document,
or evidence of such devolution or surrender or sharing with a
certified copy thereof and in every case to pay to PowerGen a
reasonable registration fee of not less than (Pound Sign)25.00
plus Value Added Tax thereon.
20. COSTS
20. To pay:
(a) all legal costs and other professional fees and
disbursements incurred by PowerGen and the costs and
expenses of its daily authorised representatives in
connection with or incidental to every application made by
Eastern for a consent or licence (whether the same be
granted or refused or proffered subject to any lawful
qualification or condition or whether the application be
withdrawn);
(b) all expenses including solicitors' costs and surveyors' fees
incurred by PowerGen in contemplation of or incidental to
the preparation and service of a notice under Section 146 of
the Law of Property Act 1925 or of proceedings under
Sections 146 and 147 of that Act notwithstanding that in any
such case forfeiture is avoided otherwise than by relief
granted by the Court;
(c) all expenses including solicitors' costs, surveyors' fees
and bailiffs' costs and commission incurred by PowerGen in
connection with and incidental to any breach, non-
performance or non-observance of any of the covenants on the
part of Eastern and the conditions contained in this Lease
or in contemplation of the enforcement thereof including
(but without prejudice to the generality of the foregoing)
the service of all notices relating to and schedules
recording dilapidations and wants of repair to the Demised
Premises or of any negotiations in respect thereof;
(d) all Value Added Tax incurred by PowerGen on or included in
any amount reimbursable by Eastern to PowerGen under this
Lease.
21. VALUE ADDED TAX
21.1 Where any payment due under or by virtue of this Lease or
the grant of it is a payment on which Value Added Tax is or may
be chargeable (by reason of an election of PowerGen or otherwise)
to pay the amount of such tax in respect of the payment at the
rate applicable to that payment.
21.2 The Value Added Tax chargeable by reference to the Premium
shall be paid on 29 October 1996.
22. ASH AND WASTE PRODUCT DISPOSAL CONTRACTS AND RAILWAY
AGREEMENTS
22. Without prejudice to PowerGen's obligations contained in the
Agreement for Lease to use its reasonable endeavours to enter
into such agreements for the disposal of ash and all other Waste
and such agreements relating to the position, use and operation
of the railway sidings and any ancillary structures and equipment
serving the Demised Premises from time to time as are necessary
(in Eastern's reasonable opinion) for the safe and proper
Operation of the Power Station comprised within the Demised
Premises and Provided Further That nothing contained in this
paragraph shall require Eastern to enter into any such agreements
which would constitute renewals of agreements having expired
prior to Completion or new agreements in respect of which no
agreement was in place prior to Completion.
23. COMPLY WITH TITLE MATTERS
23.1 To perform and observe all the covenants, conditions and
provisions contained or referred to in the documents referred to
in Parts 5, 6 and 7 of Schedule 1 so far as the same relate to
the Demised Premises and are still subsisting and capable of
being enforced.
23.2 Without prejudice to the generality of paragraph 23.1 above,
to permit NGC having an interest or right in relation to any part
of the Demised Premises (whether directly or as part of the
Estate) to exercise all rights pursuant to:
(i) the NGC Lease;
(ii) the Interface Agreement; and
(iii) the Wayleave.
SCHEDULE 4
POWERGEN'S COVENANTS
1. QUIET ENJOYMENT
1. Eastern paying the Premium, the Basic Rent and other rents
and charges payable under this Lease and performing and observing
the several covenants and stipulations on the part of Eastern
contained in this Lease may peaceably and quietly hold and enjoy
the Demised Premises during the Term without any lawful
interruption or disturbance from or by PowerGen or any person
rightfully claiming under or in trust for it or by title
paramount.
2. WORKS
2. On or before the end of July 1997 at PowerGen's cost, to
disconnect the Wide Area Network (being the IT connections from
PowerGen headquarters into each power station's local area
network) and to remove all relevant wiring and related hardware
(if any) from the Demised Premises.
3. CONTRIBUTION TO EXPENSES
3. Without prejudice to the generality of any other covenant or
obligation by PowerGen, to pay on demand (to Eastern or such
other third party as shall be relevant) a fair proportion of the
costs and expenses of making, repairing, maintaining, rebuilding,
renewing, replacing, lighting, connecting and cleansing all ways,
roads, pavements, bridges, sewers, drains, pipes, channels, water
courses, gutters, wires, cables, boundary walls, fences, party
walls, structures, open areas and other conveniences (including,
for the avoidance of doubt, the inlet culvert referred to in
paragraph 4 of Part 3 of Schedule 1) which shall at any time
belong to or be used for the Retained Land in common with the
Demised Premises or other premises near or adjoining thereto.
4. SUB-STATION
4. To use reasonable endeavours to enforce the obligations on
the part of NGC contained in each of the NGC Lease, the Interface
Agreement and the Wayleave.
5. OTHER DOCUMENTS
5. To use reasonable endeavours to enforce the obligations on
the part of the grantor in each of the documents referred to in
Part 6 of Schedule 1.
6. DECOMMISSIONING AND DEMOLITION
6. To comply with the covenants and obligations on the part of
PowerGen contained in Schedule 5.
7. THE ESTATE
7. During such period as Eastern shall be using the Demised
Premises for the purpose set out in paragraph 17.1 of Part 1 of
this Schedule, not to use any part of the Estate (other than the
Demised Premises) for the purpose of generating electricity
Provided that this covenant shall not preclude any such part for
the purpose of transmitting, supplying or distributing
electricity by any person other than PowerGen.
8. RATES
8. To pay the rates (other than water rates) in respect of the
Demised Premises for the period ending 31 March 1997 but not
thereafter.
SCHEDULE 5
DECOMMISSIONING ARRANGEMENTS
1. When Eastern has ceased using the Demised Premises for the
purpose of generating electricity, it may give PowerGen notice of
its intention to require PowerGen to carry out its obligations
under this Schedule.
2. Prior to the Handover Date, Eastern shall ensure that all
the electrical connections and all electrical equipment comprised
within the Demised Premises and, to the extent that it is
comprised within the Demised Premises, the electrical plant and
equipment within the NGC substation adjoining the Demised
Premises are made electrically and mechanically safe. Eastern
shall comply with any obligations of NGC in relation thereto.
3. Prior to the Handover Date, Eastern shall ensure that all
contracts relating to the operation and maintenance of the Power
Station (save for those relating to the security thereof) are
terminated and that all contractors and contractors equipment
have left the Demised Premises.
4. At the Handover Date, such of the Strategic Spares as shall
then be in existence and all of the Mobile Equipment will be
returned to PowerGen for its own absolute use and thereafter such
items shall cease to be part of the Demised Premises.
5. Save insofar as it is legally or physically impossible
PowerGen shall execute and complete the Decommissioning Works in
accordance with the provisions of this Schedule and to the
satisfaction of Eastern.
6.1 PowerGen shall commence the Decommissioning Works forthwith
after the Handover Date and shall proceed with the same with
due expedition and without delay and shall complete the
Decommissioning Works as soon as reasonably practicable but
in any event within twelve months of the Handover Date;
6.2 on the Handover Date Eastern shall give PowerGen possession
of so much of the Demised Premises as may be required to
enable PowerGen to commence to proceed with the execution of
the Decommissioning Works;
6.3 immediately on being given possession of the Demised
Premises in accordance with paragraph 6.2 of this Schedule,
PowerGen shall assume responsibility for the Demised
Premises and all materials removed from the Demised Premises
by virtue of the Decommissioning Works;
6.4 PowerGen shall be solely responsible for the transportation
off site and safe disposal of such materials;
6.5 where during the execution of the Decommissioning Works
PowerGen discovers any Hazardous Materials, PowerGen shall
immediately do all such things as may be necessary to ensure
the safety of its personnel;
6.6 PowerGen shall comply with all notification and other
requirements of Acts and the reasonable requirements of the
Health and Safety Executive and any delay in and any cost
resulting from failure to comply with such requirements or
failure to notify or comply in due time shall be borne by
PowerGen;
6.7 all materials containing or comprised of asbestos in
whatever form, which require removal and disposal shall be
removed from the Demised Premises by a specialist contractor
by safe and suitable means and taken to an authorised
asbestos tip and disposed of in an appropriate manner;
6.8 all contractors shall be in possession of a licence in force
and granted by the Health and Safety Executive under the
Asbestos (Licensing) Regulations 1983 or any subsequent
amendment or re-enactment thereof;
6.9 PowerGen shall effect and maintain and shall require sub-
contractors to effect and maintain throughout the
continuance of the Decommissioning Works insurance policies
with insurers and under forms and policies satisfactory to
Eastern and shall bear any and all excesses or deductibles
incorporated therein;
6.10 PowerGen shall conform in all respect with the provisions of
any Acts and such rules and regulations of public bodies and
companies as aforesaid and shall keep Eastern indemnified
against all penalties and liabilities of every kind for
breach of any such Acts;
6.11 PowerGen shall ensure that all notices required as aforesaid
are given within the time limit specified and the delay in
and any cost resulting from any failure to comply with such
requirement shall be borne by PowerGen; and
6.12 when PowerGen shall consider that the whole of the
Decommissioning Works have been completed in accordance with
this schedule PowerGen shall give a notice to that effect to
Eastern. Such notice shall be in writing and shall be
deemed to be a request by PowerGen for Eastern to issue a
certificate that Practical Completion has occurred.
Following receipt of such request Eastern shall
(a) issue a certificate of Practical Completion
stating the date on which in its opinion the
Decommissioning Works were completed; or
(b) give instructions to PowerGen in writing
specifying all the Decommissioning Works which in
Eastern's opinion require to be done before the
issue of a certificate of Practical Completion;
Provided that at the discretion of Eastern it may issue a
certificate when the Decommissioning Works shall be
substantially completed and PowerGen shall pay to Eastern
the sum which, in Eastern's reasonable opinion, shall fairly
reflect the value of any works outstanding, such sum to be
payable on demand and to be recoverable from PowerGen as a
debt.
7. For the avoidance of doubt PowerGen shall be entitled to
carry out its obligations under this Schedule by way of the use
of contractors.
8. The parties shall arrange memoranda of the Handover Date and
the Date of Practical Completion to be endorsed on this Lease in
the spaces provided.
SCHEDULE 6
PROVISOS AGREEMENTS AND DECLARATIONS
1. PREMIUM
1. It is agreed and acknowledged that:
1.1 the Premium represents a single premium for the grant of
this Lease and the Drakelow Lease;
1.2 the Premium has not been, and will not be, apportioned
between the Demised Premises and the premises comprised within
the Drakelow Lease;
1.3 the Premium is due in full on the date of this Lease
Provided always that, Eastern observing and performing the
covenants on its part and the conditions contained in this Lease,
including those as to payment of the Premium, PowerGen will
accept payment of the Premium in accordance with the provisions
of clause 5 and Schedule 1 to the Agreement for Lease;
1.4 in the event that the Termination of the Term or the
Handover Date occurs at any time when any part or the whole of
the Premium is outstanding for whatever reason, then the whole of
the outstanding balance of the Premium shall immediately become
due and payable by Eastern;
1.5 Eastern shall not, and shall procure that no member of the
same group of companies as Eastern shall, seek to agree that any
part of the Premium (other than as mentioned in clause 28 of the
Agreement for Lease) should give rise to any relief or allowance
for tax purposes other than as consideration, falling within
section 38(1)(a) of the Transfer of Chargeable Gains Act 1992,
given for the acquisition of its leasehold interests in land
under this Lease and the Drakelow Lease.
2. FORFEITURE
2. This Lease is made on the express condition that if and
whenever there shall be a breach, non-performance or non-
observance of the covenant contained in paragraph 17.1 of
Schedule 3 then PowerGen or its agents may at any time thereafter
and notwithstanding the waiver or implied waiver of any previous
right of re-entry arising under this Lease re-enter upon the
Demised Premises or any part thereof in the name of the whole of
the Demised Premises whereupon the Term shall absolutely cease
and determine but without prejudice to any rights or remedies
which may then have accrued to PowerGen in respect of payment of
the Premium, arrears of rent or other breach or non-performance
or non-observance of any condition covenant or agreement on the
part of Eastern contained in this Lease or otherwise Provided
always that PowerGen shall, if able to do so without prejudicing
its obligations and liabilities under the Clawback Debenture,
give such notice as is reasonably practicable to Eastern prior to
exercising its rights pursuant to this paragraph.
3. NOTICES
3. All notices to be given under this Lease shall be in writing
and Section 196 of the Law of Property Act 1925 as amended by the
Recorded Delivery Service Act 1962 shall apply to the service of
all such notices and in case of any notice to be served on
Eastern such notice shall also be duly served if left at the
Demised Premises or sent to the last known address of Eastern.
4. L & T A COMPENSATION EXCLUSION
4. Subject to the provisions of sub-section (2) of Section 38
of the Landlord and Tenant Act 1954 neither Eastern nor any
assignee or underlessee (whether immediate or derivative) of the
Term or of the Demised Premises shall be entitled on quitting the
Demised Premises to any compensation under Section 37 of such Act
or under any corresponding provisions in any Act amending or
replacing the same.
5. INTEREST ON UNPAID RENTS AND OTHER MONEYS
5. If the Basic Rent or any other amounts payable hereunder
shall not be paid to PowerGen within seven days of the due date
for payment thereof then Eastern shall pay to PowerGen with any
such sums (but without prejudice to all or any other rights or
remedies of PowerGen under this Lease) interest thereon at the
Prescribed Rate calculated on a day-to-day basis (and compounded
with rests on the Rent Days) from the date on which the same
became due and payable or (if earlier) the date of expenditure by
PowerGen down to the date of payment or reimbursement by Eastern
(and as well after as before any judgment).
6. NON-ACQUISITION OF EASEMENTS
6. Except as expressly herein provided Eastern shall not by
implication of law or otherwise be entitled to any estate or any
right privilege or easement whatsoever nor shall Eastern by
virtue or in respect of the Demised Premises or this Lease be
deemed to have acquired or to be entitled nor shall it during the
Term acquire or become entitled by length of enjoyment
prescription or any other means to any such estate right
privilege or easement.
7. RENT ACCEPTANCE WHEN BREACH EXISTS
7. No demand for or acceptance or receipt of the Basic Rent or
any other rents or any payment on account thereof shall operate
as a waiver by PowerGen of any right which PowerGen may have to
forfeit this Lease or re-enter the Demised Premises by reason of
any breach of covenant by Eastern or otherwise notwithstanding
that PowerGen may know or be deemed to know of such at the time
of demand, acceptance or receipt.
8. DISPUTES
8. In the event of any dispute or difference between the
parties touching or concerning any matter or thing arising out of
this Lease or as to the rights, duties or obligations of the
parties hereunder, such dispute or difference shall be referred
to some independent and fit person to be nominated by the
President for the time being of the Royal Institution of
Chartered Surveyors (save in the case of any dispute or
difference relating to the construction of this Lease when such
nomination shall be made by the President for the time being of
the Law Society) on the application of either party and the
decision of such nominee shall be final and binding on the
parties Provided that in every case the nominee appointed shall
be entitled to act as an expert and not as an arbitrator in any
case where he expresses his willingness so to act and neither
party objects to him so acting within twenty-one days of his
statement that he is willing to do so and (subject to the
foregoing) the provisions of the Arbitration Acts 1950-1979 shall
apply.
9. LIABILITY FOR INDIRECT DAMAGE
9. Neither party shall be liable to the other for any loss of
profit, loss of use, loss of production, loss of contracts or for
any other indirect or consequential damage that may be suffered
by the other.
10. LANDLORD AND TENANT (COVENANTS) ACT 1995
10. This Lease was entered into pursuant to the Agreement for
Lease and is not a new tenancy for the purposes of the Landlord
and Tenant (Covenants) Act 1995.
11. JURISDICTION
11. The High Court of Justice in England shall have non-
exclusive jurisdiction to entertain any action or proceedings
whatsoever in respect of this Lease or any provision thereof or
any matter or thing arising under or by virtue or consequent upon
this Lease.
<PAGE>
SCHEDULE 7
PART 1
MOBILE EQUIPMENT
ASSET DESCRIPTION IDENTIFICATION NO:
Terrex TS40 Coal Scraper/Loader
Terrex TS40 Coal Scraper/Loader
Terrex TS40 Coal Scraper/Loader
Terrex TS40 Coal Scraper/Loader
JCB 418 Bulldozer
JCB 807 B Bulldozer
JCB 807 C Bulldozer
JCB 8230 Bulldozer
Barclay Diesel Shunter
PART 2
STRATEGIC SPARES
DESCRIPTION LOCATION
Hydrogen Blower
HP Rotor
Alternator Rotor
Main Steam Chest
Extraction Pump plus associated items
Cooling Water Pump
<PAGE>
MEMORANDUM OF HANDOVER DATE
The Handover Date referred to in this Lease is
-----------------
SIGNED for and on behalf of
---------------------
THIS day of
-------- ----------------------
MEMORANDUM OF DATE OF PRACTICAL COMPLETION
The Date of Practical Completion referred co this
Lease is
---------------------
SIGNED for and on behalf of
------------------
THIS day of
-------- --------- --------------
<PAGE>
EXECUTED and DELIVERED )
as a DEED by POWERGEN plc )
acting by Philip Hudson, its duly )
authorised attorney in the presence of: )
Exhibit 10(m)
2nd JULY 1996
EASTERN MERCHANT PROPERTIES LIMITED
EASTERN MERCHANT GENERATION LIMITED
------------------------------
UNDERLEASE
of commercial premises at
High Marnham, Newark, Nottinghamshire
------------------------------
Slaughter and May,
35 Basinghall Street,
London EC2V 5DB
<PAGE>
CONTENTS
CLAUSE PAGE
1. INTERPRETATION . . . . . . . . . . . . . . . . . . . . . 1
2. DEMISE AND RENT . . . . . . . . . . . . . . . . . . . . 6
3. GENERATION'S COVENANTS . . . . . . . . . . . . . . . . . 6
4. PROPERTIES' COVENANTS . . . . . . . . . . . . . . . . . 6
5. PROVISOS . . . . . . . . . . . . . . . . . . . . . . . . 7
SCHEDULE 1 . . . . . . . . . . . . . . . . . . . . . . . 8
Part 1 The Demised Premises . . . . . . . . . . . 8
Part 2 The Estate . . . . . . . . . . . . . . . . 8
Part 3 Rights Granted . . . . . . . . . . . . . . 8
Part 4 Rights Excepted and Reserved . . . . . . . 10
Part 5 Documents referred to in Clause 2 . . . . . 14
Part 6 Ash Pipeline Documents referred to in
clause 2 . . . . . . . . . . . . . . . . . 16
Part 7 Permits and other documents referred to in
clause 2 . . . . . . . . . . . . . . . . . 17
SCHEDULE 2: (not used) . . . . . . . . . . . . . . . . . . . 19
SCHEDULE 3: Generation's Covenants . . . . . . . . . . . . . 20
SCHEDULE 4: Properties' Covenants . . . . . . . . . . . . . 28
SCHEDULE 5: Decommissioning Arrangements . . . . . . . . . . 29
SCHEDULE 6: Provisos Agreements and Declarations . . . . . . 30
SCHEDULE 7 . . . . . . . . . . . . . . . . . . . . . . . . . 33
Part 1 Mobile Equipment . . . . . . . . . . . . . 33
Part 2 Strategic Spares . . . . . . . . . . . . . 33
SCHEDULE 8 . . . . . . . . . . . . . . . . . . . . . . . . . 34
<PAGE>
H.M. LAND REGISTRY
LAND REGISTRATION ACTS 1925 - 1986
County and District : Nottinghamshire, Newark & Sherwood
Title Number :
Property : High Marnham Power Station
THIS UNDERLEASE is made on 2nd July 1996
BETWEEN:
EASTERN MERCHANT PROPERTIES LIMITED (registered in England and
Wales with number 3181383), whose registered office is at
Wherstead Park, Wherstead, Ipswich, Suffolk 1P9 2AQ
("Properties"), and
EASTERN MERCHANT GENERATION LIMITED (registered in England and
Wales with number 3116225) whose registered office is at
Wherstead Park, Wherstead, Ipswich, Suffolk 1P9 2AQ
("Generation")
NOW THIS DEED WITNESSES as follows:
1. INTERPRETATION
1.1 Definitions
In this Lease unless the context otherwise requires the
following expressions shall have the following meanings:
"Acts" means Environmental Laws, Planning Acts and any
statutes, statutory instruments, directives, regulations and
bye-laws which are relevant to the Demised Premises;
"Agreement for Lease" means the agreement dated 22 November
1995 made between PowerGen (1) and Eastern Group plc (2) (as
amended by a Deed of Variation dated 2nd July made between
the same parties as that agreement) pursuant to which, inter
alia, the Headlease was granted;
"Basic Rent" means the clear yearly rent of Five Hundred
Pounds (pound sterling 500);
"CEGB" means Central Electricity Generating Board;
"Clawback" means any financial liability arising from the
Clawback Debenture;
"Clawback Debenture" means the debenture dated 2 November
1990 made between PowerGen (1) and The Secretary of State
for Energy (2);
"Demised Premises" means the land and buildings comprising
High Marnham power station more particularly described in
Part 1 of Schedule 1 and any part together with all
buildings now or hereafter during the Term constructed or
erected thereon, all additions, alterations and improvements
thereto and the fixtures, fittings, plant, equipment and
machinery therein (other than tenant's and trade fixtures
and fittings and any plant, machinery and equipment
belonging to, or acknowledged by PowerGen, Properties or
Generation as belonging to, The National Grid Company plc or
East Midlands Electricity plc) and the Mobile Equipment and
the Strategic Spares;
"Drakelow Lease" means the lease of premises comprising
Drakelow Power Station, Burton-on-Trent, Staffordshire dated
the same date as this Lease and made between PowerGen (1)
and Properties (2);
"Environment" means all, or any, of the following media,
namely the air (including without limitation the air within
buildings and the air within other natural or man-made
structures above or below ground), water and land and any
living organisms or systems supported by those media;
"Environmental Laws" means the following:
(a) all international, European, Union, national or local
treaties, statutes, directives, legislation, common law
or other laws concerning Environmental Matters and all
regulations and subordinate legislation made thereunder
which are in force at the date of this Lease;
(b) sections 78A - 78Y of the Environmental Act 1990 as
amended and section 161 (as amended) of the Water
Resources Act 1990; and
(c) judicial and administrative interpretation of the
foregoing.
"Environmental Covenant" means the agreement to pay certain
sums in relation to Environmental Liabilities or Remedial
Works given by PowerGen to Eastern Group plc pursuant to
clause 11 of the Agreement for Lease;
"Environmental Liabilities" means liabilities under
Environmental Laws in relation to Environmental Matters
including monetary claim, award, fine, sums agreed by way of
settlement, legal and/or consultants fees or liability to
make good, repair, reinstate, treat or clean up the Demised
Premises or (insofar as it is affected by the operation of
the generation of electricity carried on from the Demised
Premises) the Environment in the vicinity of the Demised
Premises;
"Environmental Matters" means:
(a) the disposal, release, spillage, deposit, escape,
discharge, leak or emission of, contact with, and
exposure of, any person to Hazardous Materials or
Waste;
(b) the creation of any noise, vibration, radiation, common
law or statutory nuisance, or other adverse impact on
the Environment;
(c) any other matters relating to the condition,
protection, maintenance, restoration or replacement of
the Environment or any part of it arising directly or
indirectly out of the manufacturing, processing,
treatment, keeping, handling, use (including as a
building material), possession, supply, receipt, sale,
purchase, import, export, transportation or presence of
Hazardous Materials or Waste;
"Estate" means the land and premises belonging to PowerGen
more particularly described in Part 2 of Schedule 1:
"Generation" includes its successors in title and assigns;
"Handover Date" means the date being the later of (a) three
months after Generation shall have notified Properties and
PowerGen in writing that it has ceased using the Demised
Premises for the generation of electricity and (b) one month
after formal notification has been received by Properties
and PowerGen that the power station within the Demised
Premises has been electrically disconnected from the
275kV/400kV substation adjoining the Demised Premises;
"Hazardous Materials" means anything which alone or in
combination with others is capable of causing harm or damage
to property or to man or any other organism supported by the
Environment including, without limitation, hazardous
substances, pollutant. contaminants, petroleum, petroleum
products and radio active materials;
"Headlease" means the Lease of even date made between
PowerGen and Properties pursuant to which Properties holds
the Demised Premises;
"Mobile Equipment" means the plant, machinery and equipment
listed in Part 1 of Schedule 7;
"Mobile Equipment Rent" means the clear yearly rent of
Twenty Thousand Pounds (pound sterling 20,000) payable in
respect of the Mobile Equipment;
"NGC" means The National Grid Company plc;
"Perpetuity Period" means the period expiring on the sooner
of eighty years from the date hereof and the Termination of
the Term;
"Planning Acts" means the Town & Country Planning Act 1990,
the Planning (Listed Buildings and Conservation Areas) Act
1990, the Planning (Hazardous Substances) Act 1990, the
Planning (Consequential Provisions) Act 1990, the Planning
and Compensation Act 1991, the Local Government and the Land
Act 1980, the Local Government (Miscellaneous Provisions)
Act 1982, the Housing and Planning Act 1986 and any Act for
the time being in force of a similar nature and any laws and
regulations intended to control or regulate the construction
demolition alteration or change of use of land or buildings
or to preserve or protect the national heritage;
"PowerGen" means PowerGen plc (registered in England and
Wales with number 2366970 whose registered office is at 53
New Broad Street, London EC2M 1JJ) and includes the estate
owners for the time being of the reversion immediately
expectant on the termination of the Headlease;
"Prescribed Rate" means two per centum per annum above the
Screen Rate, such rate to apply as well as before any
judgment;
"Properties" includes the estate owners for the time being
of the reversion immediately expectant on the Termination of
the Term;
"Rent" means thirty-one million two hundred and fifty
thousand pounds (pound sterling 31,250,000) per annum until
the expiration of the eighth year of the Term and
thereafter during the residue of the Term the Basic Rent
(subject to review in accordance with the terms of Schedule 8);
"Rent Days" means 25th March, 24th June, 29th September and
25th December in each year and "Relevant Rent Day" shall be
construed accordingly;
"Retained Land" means that part of the Estate which is not
part of the Demised Premises;
"Screen Rate" means, in relation to any relevant period for
which an interest calculation is to be made, the arithmetic
mean (rounded to three decimal places with the mid-point
rounded up) of the offered quotations in Pounds Sterling for
that period which appear on the relevant page of the Reuter
Monitor Money Rates Services at 11 a.m. (London time) on the
first day of that period;
"Strategic Spares" means the spare plant and equipment
listed in Part 2 of Schedule 7 other than any such plant and
equipment that has, prior to the date of this Lease, been
affixed to the land and buildings otherwise comprised within
the Demised Premises;
"Term" means the term hereby granted;
"Termination of the Term" means the determination of the
Term whether by effluxion of time, re-entry or otherwise
howsoever;
"Value Added Tax" means Value Added Tax pursuant to the
Value Added Tax Act 1994 and any other tax replacing or
supplementing the same from time to time;
"Waste" includes any unwanted or surplus substance
irrespective of whether it is capable of being recycled or
recovered or has any value.
1.2 Construction
This Lease shall, unless the context otherwise requires, be
construed on the basis that:
(A) where the Tenant for the time being comprises more than
one person, covenants and obligations assumed by the
Tenant shall be construed as made by all such persons
jointly and severally;
(B) the Term shall be deemed to commence for all purposes
on the date of commencement specified in clause 2;
(C) references to any Act of Parliament, order, instrument,
regulation, direction or plan shall be deemed also to
refer to any statutory or other modification or re-
enactment thereof from time to time in force and to
include any requirement having the force of law in the
United Kingdom and any subordinate legislation, order,
instrument, regulation, direction or plan from time to
time in force made or issued thereunder or deriving
validity therefrom or from any enactment repealed
thereby or under any such modification or re-enactment;
(D) any covenant on the part of Generation not to do any
act or thing shall include an obligation on the part of
Generation to use reasonable endeavours not to permit
or suffer such act or thing;
(E) words denoting one gender include the other genders and
words denoting persons include firms and corporations
and vice versa;
(F) clause, Schedule, Appendix and paragraph headings shall
not affect the interpretation of this Lease and
references to any clause, Schedule, Appendix and
paragraph are references to clauses, schedules, and
appendix and paragraphs of this Lease;
(G) reference to any right exercisable by Properties or any
right exercisable by Generation in common with
Properties shall be construed as including (where
appropriate) the exercise of such right (i) by PowerGen
and all persons authorised by PowerGen pursuant to the
Headlease (ii) in common with all other persons having
a like right and (iii) where under the terms of this
Lease the consent of Properties is required for any
matter or thing the consent of PowerGen under the terms
of the Headlease shall also be required.
2. DEMISE AND RENT
Properties HEREBY DEMISES unto Generation the Demised
Premises TOGETHER WITH so far as Properties is able to grant
the same the rights set out in Part 3 of Schedule 1
EXCEPTING AND RESERVING unto Properties and PowerGen and to
all other persons from time to time entitled thereto the
rights set out in Part 4 of Schedule 1 TO HOLD the Demised
Premises unto Generation SUBJECT TO (and, where relevant and
applicable, with the benefit of) the rights, covenants,
obligations and other matters affecting the Demised Premises
and all licenses, consents, permissions and agreements at
the date of this Lease affecting the operation of the
Demised Premises and the power station erected thereon and
in particular (but without prejudice to the generality of
the foregoing) those matters more particularly contained or
referred to in the documents short particulars whereof are
set out in Parts 5, 6 and 7 of Schedule 1 as far as the same
relate to the Demised Premises and are subsisting and
capable of taking effect for a term of ninety-nine (99)
years (less three days) commencing on 2nd July 1996 YIELDING
AND PAYING therefor unto Properties without deduction, set-
off or counterclaim (except such as Generation may be
required by law to deduct notwithstanding any stipulation to
the contrary), (a) in relation to the Demised Premises
(excluding the Mobile Equipment) yearly during the Term and
so in proportion for any period less than a year, the Rent
which shall be paid whether or not demanded in arrears by
equal quarterly payments on each of the Rent Days and (b),
in relation to the Mobile Equipment, yearly until the
Handover Date and so in proportion for any period less than
a year, the Mobile Equipment Rent which shall be paid
whether or not demanded in arrears on 10 August in each year
the first payment being made on 10 August 1997 in respect of
the year ending 30 June 1997.
3. GENERATION'S COVENANTS
Generation covenants with Properties in manner set out in
Schedule 3.
4. PROPERTIES' COVENANTS
Properties covenants with Generation in manner set out in
Schedule 4.
5. PROVISOS
It is agreed and declared in manner set out in Schedules 5
and 6.
DULY DELIVERED AS A DEED on the date inserted on page 1.
<PAGE>
SCHEDULE 1
Part 1
The Demised Premises
All those pieces or parcels of land edged red on Plan 1 annexed
hereto and situate at and forming part of the Estate and known as
High Marnham Power Station, Newark, Nottinghamshire together with
the buildings, plant and other structures erected thereon and (i)
including such part of the river bed adjacent to the land edged
red on Plan 1 and (ii) such part of the land coloured green on
Plan 1 being land under a roadbridge, in both cases as is vested
in Properties at the date hereof.
Part 2
The Estate
All those pieces or parcels of land edged blue on Plan 1 annexed
hereto.
Part 3
Rights Granted
The following rights (in common with Properties and PowerGen and
all others now or hereafter entitled to the like rights):
1. Substation Rights
The rights contained in Part II and in paragraph 2 of Part V
of the Schedule to a lease of the 275kV/400kV substation
adjoining the Demised Premises dated 31st March 1990 and
made between PowerGen (1) and NGC (2);
2. Services
The free and uninterrupted passage and running of water,
soil, gas, electricity and pulverized fuel ash and furnace
bottom ash, telephone and other services from and to the
Demised Premises through and along all conduits mains,
pipes, wires and cables or other conducting media and all or
any other services now or hereafter during the Perpetuity
Period provided for the Demised Premises and laid in under
or over the Estate and any other adjoining or neighbouring
land (if any) belonging to PowerGen or in under or over any
other property across which PowerGen shall have rights to
carry the same for the passage of surface water, ash slurry
and sewage from and water gas electricity telecommunications
and other services to and from the Demised Premises SUBJECT
TO Generation maintaining, repairing, cleansing and renewing
and replacing the same as and when necessary (in
Generation's reasonable opinion) in order to keep the same
in good and substantial repair and condition;
3. Entry for maintenance purposes
The right to enter upon the Retained Land (and any other
adjoining or neighbouring land over which Properties shall
have rights of entry, insofar as Properties is able to grant
such rights thereover), at all reasonable times on giving
reasonable written notice to the Landlord (except in the
case of emergency when no notice shall be required) with or
without workmen and others and all necessary appliances and
materials for the purposes of inspecting, maintaining,
cleansing, repairing and renewing any boundary structures of
the Demised Premises and to inspect and test maintain renew
repair and make connections to the conducting media and
drainage channel referred to in paragraphs 2, 6 and 8 of
Part 3 of this Schedule and to exercise any of the rights
granted to Generation and to comply with any of the
obligations on the part of Generation pursuant to this Lease
SUBJECT TO the persons exercising such rights causing as
little damage as reasonably practicable to the Retained Land
or such other adjoining or neighbouring land belonging to
PowerGen or any other neighbouring or adjoining property and
making good or procuring the making good of all damage to
the fabric thereof thereby occasioned;
4. Emergency access
A right of way over the Retained Land and/or any other
adjoining or neighbouring land belonging to PowerGen or over
which PowerGen shall have such rights in the event of fire
or other emergency);
5. Footbridge
A right of pedestrian access over under or along the
footbridge coloured yellow on Plan 1;
6. Water pipelines and drainage ditches
Without prejudice to the generality of paragraph 2 above to
use the water pipelines serving the Demised Premises and
running from the pumphouse to the remainder of the Demised
Premises under the Retained Land such pipelines to be used
for the passage of water from such pumphouse to High Marnham
Power Station and to use the drainage channel crossing both
the Demised Premises and the Retained Land insofar as they
are not included in the demise;
7. Railside track
The right to pass and repass at all times with or without
vehicles or other plant machinery equipment or otherwise for
all purposes connected with access to and egress from that
part of the Demised Premises to the south of the road bridge
over the track coloured purple on Plan 1;
8. Ash pipelines
A right of passage of ash pipelines over, under or along the
footbridge coloured yellow on Plan 1;
9. Works to and use of adjoining premises
At all times during the Term without reference to Properties
or PowerGen or making any compensation to Properties
therefor to:
(a) execute or permit or suffer the execution of works or
alterations on or to the Demised Premises or the
demolition, rebuilding, alteration or extension of any
buildings or structures now or hereafter erected on
such Demised Premises;
(b) use or deal with the Demised Premises and such
buildings and premises thereon in such manner as
Generation may in its absolute discretion think fit;
provided that such rights shall be exercised so as to cause
as little inconvenience to PowerGen as is reasonably
practicable and any physical damage caused to the Retained
Land as a result of the exercise of such rights shall be
made good to the reasonable satisfaction of PowerGen at the
expense of the person causing such damage.
Part 4
Rights Excepted and Reserved
1. Services
The free and uninterrupted passage and running of water,
soil, gas, electricity, telecommunications and other
services from and to all other buildings and premises on the
Retained Land through and along all conduits, pipes, drains,
channels, watercourses, sewers, wires and cables or other
conducting media which are now or may hereafter during the
Perpetuity Period be in over or under the Demised Premises
together with the right to connect into the same;
2. Entry for works and for purposes of this Lease
The right to enter the Demised Premises at all times in case
of emergency and otherwise at all reasonable times on
reasonable notice with or without workmen and others and all
necessary appliances and materials for the purpose of:
(a) inspecting, maintaining, cleansing, repairing,
altering, testing, renewing and replacing, laying and
making connections to the said ducts, conduits, pipes,
drains, channels, watercourses, sewers, wires, and
cables and other conducting media and all connections
serving the Retained Land;
(b) carrying out all works, operations or acts or doing any
thing whatsoever comprised within PowerGen's
obligations in respect of the Estate or (whether or not
within the same) for which Generation is liable
hereunder to make a contribution; and
(c) for any purpose mentioned in paragraph 5 of Schedule 3
to the Clawback Debenture or in any of the documents
mentioned in Part 5 of this Schedule
the persons exercising such rights causing as little damage
as reasonably practicable to the Demised Premises and making
good or procuring the making good of all damage to the
fabric thereof thereby occasioned;
3. General Access
A right to pass and repass at all reasonable times and for
all purposes connected with access to and egress from the
Retained Land over roads and paths designated from time to
time by Generation for the purpose subject to all and any
reasonable regulations as to direction of traffic flow
thereover or other traffic control arrangements notified by
Generation to PowerGen in writing;
4. Works to and use of adjoining premises
At all times during the Term without reference to
Generation:
(a) execute or permit or suffer the execution of works or
alterations on or to the Retained Land or the
demolition, rebuilding, alteration or extension of any
buildings or structures now or hereafter erected on
such Retained Land;
(b) use or deal with the Retained Land and such buildings
and premises thereon in such manner as PowerGen may in
its absolute discretion think fit;
provided that such rights shall be exercised so as to cause
as little inconvenience to Generation as is reasonably
practicable and any physical damage caused to the Demised
Premises as a result of the exercise of such rights shall be
made good to the reasonable satisfaction of Generation at
the expense of the person causing the damage;
5. Access for Environmental Inspection
If PowerGen or Properties is, or reasonably believes that it
may be, liable under the Environmental Covenant or the
Environmental Acts in respect of the Demised Premises, a
right to enter the Demised Premises at reasonable times and
upon reasonable notice with or without workmen, surveyors,
consultants and all other persons authorised by PowerGen
and/or Properties together with all necessary vehicles,
plant, machinery, appliances and materials for the purpose
of inspecting and the carrying out of environmental tests,
surveys and reports as PowerGen or Properties shall in its
absolute discretion consider appropriate whether over or
under the surface of the Demised Premises and whether or not
the same causes any damage to the Demised Premises PROVIDED
THAT, in exercising such right, PowerGen or Properties (as
appropriate) shall
(a) make good or procure the making good of any damage so
caused;
(b) cause as little disruption and interference to the
business as reasonably practicable carried on upon the
Demised Premises;
(c) comply with all reasonable regulations or instructions
issued by Eastern;
(d) ensure that adequate insurance cover against all
insurable third party liability claims is maintained in
respect of the works carried out under this paragraph
5;
6. Entry for PowerGen's Works
The right to enter upon the Demised Premises with or without
workmen and others and all necessary vehicles, plant,
machinery, equipment, appliances and materials in order to
carry out and complete the works referred to in paragraph 2
of Schedule 4 of the Headlease;
7. Emergency access
A right of way without interference through the Demised
Premises in the event of fire or other emergency;
8. Mines and minerals
The mines and minerals (including for the avoidance of doubt
gravel) under that part of the Demised Premises hatched
black on Plan 1 (and any rights of any support for the
Demised Premises provided by the same) together with all
rights necessary to win and work the same PROVIDED THAT such
rights shall be exercised so as to cause as little
inconvenience to Generation as reasonably practicable and
any damage to the surface of the Demised Premises or the
buildings or erections from time to time thereon as a result
of the exercise of such rights shall be made good to the
reasonable satisfaction of Generation and PROVIDED FURTHER
that the persons exercising these rights shall pay to
Generation the cost of relocating any service conduits or
roadways over under or upon the Demised Premises;
9. Access to sports facilities for ex-employees
The right for ex-employees of CEGB and PowerGen and all
persons authorised by PowerGen (on reasonable proof of
identity and status) of vehicular access to the sports
ground and sports and social facilities including the
pavilion showers and training room identified on Plan 1
situated on the Demised Premises over the roads and
footpaths situated on the Demised Premises;
10. Use of sports facilities for ex-employees
10.1 The right for ex-employees of CEGB and PowerGen (on
reasonable proof of identity and status) to enter and use
the sports ground and sports and social facilities, pavilion
and showers adjoining the sports field on the Demised
Premises at all reasonable times during the normal hours
from time to time of the sports club and in compliance with
the rules and regulations from time to time of the sports
and social club;
10.2 The right for ex-employees of CEGB and PowerGen (by prior
appointment and subject to the prior consent of Generation
and on reasonable proof of identity and status) to use (on a
non-exclusive basis) the training room located on the
Demised Premises and indicated on Plan I subject to
compliance with the reasonable rules and regulations of
Generation of which the ex-employees of CEGB and PowerGen
have prior notice;
11. Use of Car Park
The right of ex-employees of CEGB and PowerGen and all
persons authorised by PowerGen when using the sports
facilities referred to in paragraph 10 to park vehicles in
the car parking area coloured orange on Plan 1 or such
alternative car parking area as shall be provided by
Generation (being not materially less convenient than the
existing car park coloured orange on Plan 1).
<PAGE>
Part 5
Documents referred to in Clause 2
DATE NATURE OF DOCUMENT PARTIES
6 December 1955 Conveyance The Personal
Representatives of J.H.
Fox (1) Central
Electricity Authority
(2)
21 February 1956 Conveyance T.E. Pickin (1) Central
Electricity Authority
(2)
31 July 1956 Conveyance The British Transport
Commission (1) Central
Electricity Authority
(2)
20 February 1957 Agreement by letter British Transport
varying covenants Commission (1) Central
in a Conveyance of Electricity Authority
31 July 1956 (2)
1956
31 March 1990 Lease (NGC Lease) PowerGen(1) NGC(2)
31 March 1990 Interface Agreement NGC (1) PowerGen (2)
(Interface Agreement)
31 March 1990 Deed of Grant PowerGen (1) NGC (2)
(Wayleave)
16 May 1972 Conveyance CEGB (1) W. H. Strawson
(2)
18 June 1974 Conveyance CEGB (1) R.W. Sutton
(2)
18 June 1974 Deed of Grant CEGB (1) R.W. Sutton
(2)
6 October 1972 Deed of Covenant Mr. & Mrs. D. Owen (1)
CEGB (2)
25 September 1979 Deed of Covenant G.G. Nixon and D.R.
Nixon (1) CEGB (2)
16 July 1980 Deed of Covenant M.B. Ashton (1) CEGB
(2)
8 March 1985 Deed of Covenant Mrs. & Mrs. E.J.
Beckett (1) CEGB (2)
14 June 1984 Licence British Waterways Board
(1) CEGB (2)
15 February 1957 Agreement CEA (1) County Council
of the Administrative
County of Nottingham
(2)
8 April 1958 Tenancy Agreement CEGB (1) W.H. Strawson
(2)
25 September 1959 Conveyance The Queen's Most
Excellent Majesty (1)
The Crown Estate
Commissioners (2) CEGB
(3)
3 July 1974 Tenancy Agreement CEGB (1) W.H. Strawson
(2)
7 June 1962 Tenancy Agreement CEGB (1) W. Hare and
W.H. Hare (2)
18 April 1963 Agreement for British Waterways Board
construction and (1) CEGB (2)
use of bridge
29 December 1959 Agreement as to CEGB (1) British
laying of cables Transport Commission
(2)
8 October 1956 Agreement for British Transport
construction of flood Commission (1) Central
banks Electricity Authority
(2)
2 July 1996 Transfer PowerGen plc (1)
William Henry Shawson
(2)
<PAGE>
Part 6
Ash Pipeline Documents referred to in clause 2
DATE NATURE OF DOCUMENT PARTIES
24 July 1979 Deed of Grant for ash K. G. and J. Laing (1)
disposal pipeline CEGB (2)
12 September 1979 Deed of Grant for ash M. Brown and R.W.
disposal pipeline Whitehead (1) CEGB (2)
29 September 1981 Consent to W. Scott & Sons (South
construction of ash Clifton) Farmers
disposal pipeline Limited (1) CEGB (2)
10 December 1979 Deed of Grant for ash W. T. Yates and E.M.
disposal pipeline Yates (1) CEGB (2)
10 December 1979 Deed of Grant for ash Mr. and Mrs. T.E.
disposal pipeline Williams (1) CEGB (2)
20 December 1979 Deed of Grant for ash C. Coulson (1) CEGB (2)
disposal pipeline
2 May 1980 Deed of Grant for ash E. Bell (1) CEGB (2)
disposal pipeline
11 August 1980 Deed of Grant for ash D. D. Pennington (1)
disposal pipeline CEGB (2)
27 October 1982 Deed of Grant for ash W. Scott & Others and
disposal pipeline Mortgagees (1) CEGB (2)
27 October 1982 Deed of Grant for ash W. Scott and his
disposal pipeline Mortgagees (1) CEGB (2)
27 October 1982 Deed of Consent for W. Scott & Sons (South
ash disposal pipeline Clifton Farmers)
Tenants (1) CEGB (2)
6 October 1959 Deed of Grant for Crown Estate
construction of Commissioners (1) CEGB
bridge and ash (2)
disposal pipeline
20 November 1958 Deed of Grant for ash H. Staton & Mortgagees
disposal pipeline (1) CEGB (2)
27 November 1958 Deed of Grant for ash W. & W. H. Hare (1)
disposal pipeline CEGB (2)
12 May 1958 Deed of Grant for ash H. Scott (1) CEGB (2)
disposal pipeline
12 May 1958 Deed of Grant for ash W. Scott & Mortgagee
disposal pipeline (1) CEGB (2)
28 May 1958 Deed of Grant for ash H.C. Grimes (1) CEGB
disposal pipeline (2)
29 May 1958 Deed of Grant for ash A. and A.W. Cooper (1)
disposal pipeline CEGB (2)
Part 7
Permits and other documents referred to in clause 2
DATE NATURE OF DOCUMENT PARTIES
22 September 1955 Section 2 Licence Ministry of Fuel and
Power
23 February 1966 Licence to abstract Trent River Authority
(as varied 31 water from River
October 1980 and Trent
12 August 1986)
21 March 1986 Consent for discharge Severn Trent Water
No. S34/551204 (as Authority
amended) T/69/22/193/T
24 March 1995 Borehole Licence to National Rivers
abstract water Authority (1)
PowerGen (2)
16 January 1980 Waste Disposal Nottingham County
Licence re. ash Council (1) CEGB (2)
deposit at North
Scarle
7 January 1993 Waste Disposal Nottingham County
Licence re ash Council (1) CEGB (2)
disposal at Girton
26 October 1994 RadioActive Her Majesty's
Substances Inspectorate
Registration of Pollution (1)
Ref. AD3405 National Rivers
Authority (2)
14 March 1995 Agreement for Supply Anglian Water Services
of Water from Limited (1) PowerGen
borehole (2)
14 July 1972 Licence for British Waterways Board
construction of ash (1) CEGB (2)
disposal pipeline
under canal
7 November 1960 Agreement for supply East Retford Rural
of water District Council (1)
CEGB (2)
26 April 1977 Licence to restore Newark District Council
worked out gravel (1) CEGB (2)
pit at Girton
18 April 1963 Licence to extract British Waterways Board
water and Licence (1) CEGB (2)
to discharge and
erect bridge
7 April 1993 IPC Authorisation Her Majesty's
Inspectorate of
Pollution (1) National
Rivers Authority (2)
<PAGE>
SCHEDULE 2:
(not used)
<PAGE>
SCHEDULE 3:
Generation's Covenants
1. Pay rent
To pay to Properties the Rent, the Mobile Equipment Rent and
other amounts payable under this Lease at the times and in
manner as provided herein without any deduction, set-off or
counterclaim except as aforesaid.
2. Pay outgoings
To pay and discharge all existing and future rates, taxes,
duties, charges, assessments, impositions and outgoings
whatsoever (whether parliamentary, parochial, local or of
any other description and whether or not of a capital or
revenue or non-recurring nature and event though of a wholly
novel character) ("charges") which are now or may at any
time hereafter be assessed, charged, levied or imposed upon
or payable in respect of the Demised Premises or on or by
any estate owner, landlord, tenant or occupier in respect
thereof (except (subject to paragraphs 21(d) and 22 of this
Part of this Schedule) any charges or Clawback payable by
PowerGen occasioned by receipt of any sums due under the
Headlease hereunder or by the ownership of, or an actual
dealing (including the grant of the Headlease and this
Lease) by PowerGen with, its reversionary interest in the
Demised Premises or any interest immediately or mediately
reversionary to this Lease) and PROVIDED THAT Generation
shall only be liable hereunder to pay rates (other than
water rates) for the period from 1st April 1997.
3. Common expenses
Without prejudice to the generality of any other covenant by
Generation, to pay on demand a fair proportion of the costs
and expenses of making, repairing, maintaining, rebuilding,
renewing, replacing, lighting, insuring, connecting and
cleansing all ways, roads, pavements, bridges, sewers,
drains, pipes, channels, watercourses, gutters, wires,
cables, boundary walls, fences, party walls, structures,
open areas and other conveniences which shall at any time
belong to or be used for the Demised Premises in common with
other premises near or adjoining thereto.
4. Repair
4.1 Subject to PowerGen's obligations under the Environmental
Covenant and subject to paragraphs 4.2 and 4.3 of this Part
of this Schedule and taking into account the state and
condition of the Demised Premises at the date of this Lease
and subject to wear and tear and use of the Demised Premises
as a power station, to keep the Demised Premises safe;
4.2 Without prejudice to the generality of, and notwithstanding
paragraph 4.1 above, to comply fully with any obligation
contained or referred to in any of the documents listed in
Parts 5, 6 and 7 of Schedule 1 for or relating to the
repair, maintenance or renewing, replacing or rebuilding of
anything comprised in, or anything in, under or on, the
Demised Premises;
4.3 Subject to the provisions of Schedule 5, to keep the
Strategic Spares (so far as any of the same has not been
affixed to the Demised Premises during the Term) and the
Mobile Equipment, so far as practicable available for use.
5. Conduct of Site
Prior to the Handover Date, save as may arise as a result of
using the Demised Premises in accordance with paragraph 17
of this Schedule, not to do or permit anything to be done at
or on the Demised Premises as shall materially increase the
actual or contingent liabilities of PowerGen pursuant to the
covenant on its part contained in paragraph 6 of Schedule 4
or its obligations under Schedule 5 of the Headlease.
6. Yield up
At the Termination of the Term:
6.1 Immediately to make any payment then due to Properties
pursuant to this Lease; and
6.2 To yield up the Demised Premises (including the Mobile
Equipment and the Strategic Spares so far as the same
are still subsisting) unto Properties as shall be in
accordance with the covenants and conditions contained
in or imposed by virtue of this Lease and, unless
released from compliance by Properties, to remove from
the Demised Premises all tenant's and trade fixtures
and fittings and Generation's furniture and effects and
to remove any sign, writing or painting of the name or
business of Generation and other persons from the
Demised Premises.
7. Transfer of Licenses, etc.
As soon as practicable after yielding up the Demised
Premises to deliver up to Properties all written
permissions, permits, licenses and authorisations for the
operation of the Demised Premises and to use all reasonable
endeavours to transfer or assign (to the extent possible and
at Properties' cost and expense) to Properties or PowerGen
(as the case may require) all such permissions, permits,
licenses and authorisations in the name of Generation and
where the consent of a third party is required for such
assignment or transfer to join with PowerGen and/or
Properties in the making of any necessary application
therefor and to supply such assistance and information
therewith as PowerGen and/or Properties shall reasonably
require Provided always that Generation shall not be obliged
to act as surety or guarantor or give any other form of
security in relation to any such transfer or assignment.
8. Decommissioning and demolition
To comply with the covenants and obligations on the part of
Generation contained in Schedule 5.
9. Permit entry for Landlord and others
9.1 To permit Properties and PowerGen and their servants, and
other agents, their contractors and workmen and, to the
extent lawfully entitled, the owner, tenants and occupiers
of any adjoining or neighbouring premises and their
respective servants, agents and workmen with all necessary
plant, machinery, equipment, tools and appliances at all
times in case of emergency and otherwise at any reasonable
times on reasonable prior notice without interruption or
interference and subject to such safety requirements as
Generation shall reasonably require to enter upon the
Demised Premises and remain thereon for such period as shall
be necessary:
(a) to examine the Demised Premises to ensure that nothing
has been done or omitted which constitutes or may be or
tend to be a breach or nonperformance of any of the
covenants contained in this Lease or the Headlease;
(b) to exercise any rights excepted and reserved to
Properties or PowerGen or such owners, tenants and
occupiers and for any other purpose properly connected
with the interest of Properties or PowerGen in the
Demised Premises;
(c) to inspect the Demised Premises for all purposes
connected with the operation or implementation, or the
proposed implementation, of Schedule 5 to the Headlease
and Schedule 5 hereof and Generation shall furnish such
information for the said purposes as may reasonably be
requested by PowerGen.
9.2 To permit the persons authorised by, or referred to in,
paragraph 5 of Schedule 3 to the Clawback Debenture to enter
upon the Demised Premises for the purposes therein
mentioned.
10. Remedy wants of repair and entry for Landlord on Default
Forthwith to proceed to repair and make good all wants of
repair and defects of which notice shall be given by
Properties and/or PowerGen to Generation and which
Generation shall be liable to repair or make good provided
always that if within two months or such shorter period as
is reasonable from the date of such notice Generation shall
fail to commence to repair and make good the matters
prescribed in such notice then it shall be lawful for
PowerGen, Properties and all persons authorised by either or
them with workmen, servants, agents and others with or
without all necessary plant, machinery, equipment, tools and
appliances to enter into and stay upon the Demised Premises
and repair and make good the same at the expense of
Generation (but so that Properties' right of entry or any
other right or remedy of Properties under this Lease shall
not thereby be prejudiced).
11. Notices
As soon as practicable after receipt by Generation of any
notice or communication from a competent authority affecting
Properties or PowerGen's interest in the Demised Premises to
give to Properties and PowerGen a copy thereof.
12. Statutory requirements
12.1 Save as provided in the Environmental Covenant, at the
expense of Generation to comply with all Environmental Laws,
Planning Acts and the Electricity Act 1989 relating to the
Demised Premises or the use thereof and to execute at its
own expense any work required to be carried out in or to the
Demised Premises whether such work is required to be carried
out by the owner or the occupier or any other person.
12.2 Save as provided in the Environmental Covenant, not at any
time to do omit or permit on or about the Demised Premises
any act or thing by reason of which Properties or PowerGen
may under any such European Laws, Planning Acts and the
Electricity Act 1989 incur or have imposed upon it or
becoming liable to pay any levy penalty damages compensation
costs charges or expenses Provided that use of the Demised
Premises in accordance with paragraph 17 of this Part of
this Schedule and the PowerGen Standards shall not, of
itself, constitute breach of this paragraph 12.2.
12.3 Save as provided in the Environmental Covenant, to obtain
all licenses, permissions and consents and to execute and do
all works and things and to bear and pay all expenses
required or imposed by any such Environmental Laws, Planning
Acts and the Electricity Act 1989 in respect of any works
carried out by Eastern on the Demised Premises or of any
user thereof.
13. Alterations
Prior to the Handover Date, if Generation make any
alterations or additions in or to the Demised Premises which
materially increase PowerGen's obligations pursuant to
paragraph 6 of Schedule 4 and the provisions of Schedule 5
to the Headlease, then, save for alterations or additions
required to comply with the provisions of paragraph 12 of
this Schedule, Generation shall pay to Properties the
reasonable increase in cost and expense incurred by PowerGen
in complying with its said obligations.
14. Signs
Prior to the Handover Date, to display at the main and other
entrances to the Demised Premises appropriate signs
indicating that Generation is in occupation thereof and in
all relevant locations appropriate warning signs and/or
other instructional notices to those persons who may, from
time to time, be upon the Demised Premises.
15. Fire precautions
Prior the Handover Date, at all times during the Term at the
expense of Generation to comply with all recommendations
(whether legally enforceable or not) from time to time of
the appropriate authority in relation to fire precautions
affecting the Demised Premises and to keep and maintain
sufficient fire fighting and extinguishing apparatus in and
about the Demised Premises installed in compliance with such
recommendations and with any legal requirements and any
requirements of any insurer of the Demised Premises.
16. Securing premises
16.1 Prior to the Handover Date, at all times of the day or night
to keep the Demised Premises fully secured against
intruders, unauthorised persons, vandalism and to provide
such security arrangements and systems as may be necessary
to comply with any requirement of any appropriate authority
(whether legally enforceable or not).
16.2 Prior to the Handover Date, to maintain all external and
security lighting in good condition and fully operational
during night time working hours.
16.3 To erect and thereafter until the Handover Date maintain in
a proper state of repair and condition such boundary fencing
as is required for the safe operation of the Power Station
at the Demised Premises or as is required by any statutory
or other body or pursuant to any statutory or other
obligation.
17. User
17.1 Prior to 31st March 2000 not to use those parts of the
Demised Premises which are hatched pink on Plan 1 annexed to
this Lease such that their use is other than an activity for
which an exemption or licence is required under Sections 5
or 6 of the Electricity Act 1989 or involving the
distribution of electricity in so far as it does not require
a licence under Section 6 of that Act and, subject thereto,
to use the Demised Premises for the purposes of electricity
generation substantially from the plant and equipment
comprised in the Demised Premises at the date of this Lease
and for other purposes ancillary thereto.
17.2 Prior to the Handover Date, to use all reasonable endeavours
(a) not at any time to use the Demised Premises or any part
thereof nor permit or suffer the same to be used in any way
or for any purpose which may unnecessarily be a nuisance,
damage or disturbance to the owners or occupiers of any
premises adjoining or near the Demised Premises or the
neighbourhood and (b) to use and operate the Demised
Premises in such manner as engenders and fosters good
relations with the communities in the locality of the
Demised Premises and any representatives of such communities
and, in particular, but without prejudice to the generality
of the foregoing (i) to ensure that all lorries and other
heavy or wide goods vehicles having access to the Demised
Premises comply with all formal and informal agreements with
such local communities and representatives including
relating to the use of certain routes and any restrictions
on the times or days at which such routes can be used, (ii)
to take steps to explain or inform the local communities of
any unusual operations at the Demised Premises.
Provided always that use of the Demised Premises in
accordance with paragraph 17.1 of this Schedule shall not,
of itself, constitute a breach of this paragraph 17.2.
17.3 Subject to the provisions of Schedule 5, only to use the
Mobile Equipment at the Demised Premises.
17.4 Subject to the provisions of Schedule 5, only to use the
Strategic Spares at the Demised Premises or at the premises
comprised within the Drakelow Lease.
18. Prevent encroachments
Not knowingly to permit any owner of any property, adjoining
or near the Demised Premises to acquire any rights of way,
light or air or other privilege easements or make any
encroachment over against out of or upon the Demised
Premises.
19. Alienation
19.1 Save as provided in paragraph 19.2 of this Schedule, in
relation to the whole or any part of those parts of the
Demised Premises hatched pink on Plan 1 annexed to this
Lease, on or before 1st April 2000, not to assign, transfer,
underlease, charge, share occupation or part with or share
possession, declare trusts over or otherwise deal with the
same in any way whatsoever.
19.2 Not to assign the whole or any part of the Demised Premises
save to a member of Eastern's Group (as such expression is
used in the Agreement for Lease) without first obtaining
from the assignee a covenant by deed with Properties and
PowerGen to pay the rents and other amounts payable
hereunder and to observe and perform all the covenants on
the part of Generation and the condition as to user set out
in paragraph 2 of Schedule 6 in such form as Properties and
PowerGen shall reasonably determine having regard, in
particular, to PowerGen's obligations and liabilities
pursuant to the Clawback Debenture.
19.3 Within one month of every assignment, transfer, underlease
or charge affecting the Demised Premises or any devolution
of the estate of Generation therein or this Lease, to give
notice in writing with particulars thereof to Properties and
PowerGen and produce such assignment, transfer, underlease
or charge or the Probate of the Will or Letters of
Administration or other instrument, document, or evidence of
such devolution or surrender or sharing with a certified
copy thereof and in every case to pay to PowerGen a
reasonable registration fee of not less than pound sterling
25.00 plus Value Added Tax thereon.
20. Costs
To pay:
(a) all legal costs and other professional fees and
disbursements incurred by Properties and PowerGen and
the costs and expenses of its duly authorised
representatives in connection with or incidental to
every application made by Generation for a consent or
licence (whether the same be granted or refused or
proffered subject to any lawful qualification or
condition or whether the application be withdrawn);
(b) all expenses including solicitors' costs and surveyors'
fees incurred by Properties and/or PowerGen in
contemplation of or incidental to the preparation and
service of a notice under Section 146 of the Law of
Property Act 1925 or of proceedings under Sections 146
and 147 of that Act notwithstanding that in any such
case forfeiture is avoided otherwise than by relief
granted by the Court;
(c) all expenses including solicitors' costs, surveyors'
fees and bailiffs' costs and commission incurred by
Properties and PowerGen in connection with and
incidental to any breach, non-performance or non-
observance of any of the covenants on the part of
Generation and the conditions contained in this Lease
or in contemplation of the enforcement thereof
including (but without prejudice to the generality of
the foregoing) the service of all notices relating to
and schedules recording dilapidation and wants of
repair to the Demised Premises or of any negotiations
in respect thereof;
(d) all Value Added Tax incurred by Properties and/or
PowerGen on or included in any amount reimbursable by
Generation to Properties under this Lease.
21. Value Added Tax
Where any payment due under or by virtue of this Lease or
the grant of it is a payment on which Value Added Tax is or
may be chargeable (by reason of an election of PowerGen or
otherwise) to pay the amount of such tax in respect of the
payment at the rate applicable to that payment.
22. Ash and Waste Products Disposal Contracts and Railway
Agreements
Without prejudice to PowerGen's obligations contained in the
Agreement for Lease to use its reasonable endeavors to enter
into such agreements for the disposal of ash and all other
Waste and such agreements relating to the position, use and
operation of the railway sidings and any ancillary
structures and equipment serving the Demised Premises from
time to time as are necessary (in Generation's reasonable
opinion) for the safe and proper operation of the Power
Station comprised within the Demised Premises PROVIDED THAT
nothing contained in this paragraph shall require Generation
to enter into any such agreements which would constitute
renewals of agreements having expired prior to Completion or
new agreements in respect of which no agreement was in place
prior to Completion.
23. Comply with title matters
23.1 To perform and observe all the covenants, conditions and
provisions contained or referred to in the documents
referred to in Parts 5, 6 and 7 of Schedule 1 so far as the
same relate to the Demised Premises and are still subsisting
and capable of being enforced.
23.2 To perform and observe all the covenants and conditions
affecting the Demised Premises on the part of the Landlord
to be observed and performed contained in the Headlease
(except the covenants to pay the Premium (as defined in the
Headlease) and the rents payable thereunder).
23.3 Without prejudice to the generality of paragraph 23.1 above,
to permit NGC having an interest or right in relation to any
part of the Demised Premises (whether directly or as part of
the Estate) to exercise all rights pursuant to:
(i) the NGC Lease;
(ii) the Interface Agreement; and
(iii) the Wayleave.
24. Handover
On the Handover Date Generation shall give Properties and
PowerGen possession of so much of the Demised Premises as
may be required to enable PowerGen to comply with its
obligations set out in Schedule 5 to the Headlease.
SCHEDULE 4:
Properties' Covenants
1. Quiet enjoyment
Generation paying the Rent and other rents and charges
payable under this Lease and performing and observing the
several covenants and stipulations on the part of Generation
contained in this Lease may peaceably and quietly hold and
enjoy the Demised Premises during the Term without any
lawful interruption or disturbance from or by Properties or
any person rightfully claiming under or in trust for it or
by title paramount.
2. Contribution to Expenses
Without prejudice to the generality of any other covenant or
obligation by PowerGen, to pay on demand (to Generation or
such other third party as shall be relevant) a fair
proportion of the costs and expenses of making, repairing,
maintaining, rebuilding, renewing, replacing, lighting,
insuring, connecting and cleansing all ways, road,
pavements, bridges, sewers, drains, pipes, channels, water
courses, gutters, wires, cables, boundary walls, fences,
party walls, structures, open areas and other conveniences
(including for the avoidance of doubt, the inlet culvert
referred to in paragraph 4 of Part 3 of Schedule 1) which
shall at any time belong to or be used for the Retained Land
in common with the Demised Premises or other premises near
or adjoining thereto.
3. Performance of the Headlease
To pay the Premium (as defined in the Headlease) and rents
reserved by the Headlease and to perform so far as
Generation is not liable for such performance under the
terms of this Lease the covenants and conditions on the part
of the lessee contained in the Headlease.
4. PowerGen's consent
To take all reasonable steps to obtain the consent of
PowerGen wherever Generation makes application for any
consent required under this Lease where the consent of both
Properties and PowerGen is needed by virtue of this Lease
and the Headlease.
5. Enforce the Headlease
At the request of Generation to take all reasonable steps to
enforce the covenants on the part of PowerGen contained in
the Headlease.
6. Contribution to Expenses
Without prejudice to the generality of any other covenant or
obligation by Properties, to pay on demand (to Generation or
PowerGen or such other third party as shall be relevant) a
fair proportion of the costs and expenses of making,
repairing, maintaining, rebuilding, renewing, replacing,
lighting, insuring, connecting and cleansing all ways,
roads, pavements, bridges, sewers, drains, pipes, channels,
watercourses, gutters, wires, cables, boundary walls,
fences, party walls, structures, open areas and other
conveniences.
SCHEDULE 5:
Decommissioning Arrangements
1. When Generation has ceased using the Demised Premises for
the purpose of generating electricity, it may give
Properties and PowerGen notice of its intention to require
Properties to enforce PowerGen's covenant to carry out its
obligations under Schedule 5 of the Headlease pursuant to
Clause 6 of Schedule 4 of the Headlease.
2. Prior to the Handover Date, Generation shall ensure that all
the electrical connections and all electrical equipment
comprised within the Demised Premises and, to the extent
that it is comprised within the Demised Premises, the
electrical plant and equipment within the NGC substation
adjoining the Demised Premises are made electrically and
mechanically safe. Generation shall comply with any
obligation of NGC in relation thereto.
3. Prior to the Handover Date, Generation shall ensure that all
contracts relating to the operation and maintenance of the
Power Station (save for those relating to the security
thereof) are terminated and that all contractors and
contractors equipment have left the Demised Premises.
4. At the Handover Date, such of the Strategic Spares as shall
then be in existence and all of the Mobile Equipment will be
returned to Properties (or if Properties so requires)
PowerGen for its own absolute use and thereafter such items
shall cease to be part of the Demised Premises.
SCHEDULE 6:
Provisos Agreements and Declarations
1. Forfeiture
This Lease is made on the express condition that if and
whenever there shall be a breach, non-performance or non-
observance of the covenant contained in paragraph 17.1 of
Schedule 3 then Properties or its agents may at any time
thereafter and notwithstanding the waiver or implied waiver
of any previous right of re-entry arising under this Lease
re-enter upon the Demised Premises or any part thereof in
the name of the whole of the Demised Premises whereupon the
Term shall absolutely cease and determine but without
prejudice to any rights or remedies which may then have
accrued to Properties in respect of payment of the rent or
other breach or non-performance or non-observance of any
condition covenant or agreements on the part of Generation
contained in this Lease or otherwise Provided always that if
PowerGen gives notice to Properties prior to exercising its
rights pursuant to this paragraph, Properties shall give to
Generation a copy of such notice as soon as practicable
following receipt.
2. Notices
All notices to be given under this Lease shall be in writing
and Section 196 of the Law of Property Act 1925 as amended
by the Recorded Delivery Service Act 1962 shall apply to the
service of all such notices and in case of any notice to be
served on Generation such notice shall also be duly served
if left at the Demised Premises or sent to the last known
address of Generation.
3. L & T A compensation exclusion
Subject to the provisions of sub-section (2) of Section 38
of the Landlord and Tenant Act 1954 neither Generation nor
any assignee or underlessee (whether immediate or
derivative) of the Term or of the Demised Premises shall be
entitled on quitting the Demised Premises to any
compensation under Section 37 of such Act or under any
corresponding provisions in any Act amending or replacing
the same.
4. Interest on unpaid rents and other moneys
If the Rent or any other amounts payable hereunder shall not
be paid to Properties within seven days of the due date for
payment thereof then Generation shall pay to Properties with
any such sums (but without prejudice to all or any other
rights or remedies of Properties under this Lease) interest
thereon at the Prescribed Rate calculated on a day-to-day
basis (and compounded with rests on the Rent Days) from the
date on which the same became due and payable or (if
earlier) the date of expenditure by Properties down to the
date of payment or reimbursement by Generation (and as well
after as before any judgment).
6. Non-acquisition of easements
Except as expressly herein provided Generation shall not by
implication of law or otherwise be entitled to any estate or
any right privilege or easement whatsoever nor shall
Generation by virtue or in respect of the Demised Premises
or this Lease be deemed to have acquired or be entitled nor
shall it during the Term acquire or become entitled by
length of enjoyment prescription or any other means to any
such estate right privilege or easement.
7. Rent acceptance when breach exists
No demand for or acceptance or receipt of the Rent or any
other rents or any payment on account thereof shall operate
as a waiver by Properties of any right which Properties may
have to forfeit this Lease or re-enter the Demised Premises
by reason of any breach of covenant by Generation or
otherwise notwithstanding that Properties may know or be
deemed to know of such at the time of demand, acceptance or
receipt.
8. Disputes
In the event of any dispute or difference between the
parties touching or concerning any matter or thing arising
out of this Lease or as to the rights, duties or obligations
of the parties hereunder, such dispute or difference shall
be referred to some independent and fit person to be
nominated by the President for the time being of the Royal
Institution of Chartered Surveyors (save in the case of any
dispute or difference relating to the construction of this
Lease when such nomination shall be made by the President
for the time being of the Law Society) on the application of
either party and the decision of such nominee shall be final
and binding on the parties Provided that in every case the
nominee appointed shall be entitled to act as an expert and
not as an arbitrator in any case where he expresses his
willingness so to act and neither party objects to him so
acting within twenty-one days of his statement that he is
willing to do so and (subject to the foregoing) the
provisions of the Arbitration Acts 1950-1979 shall apply.
9. Liability for Indirect Damage
Neither party shall be liable to the other for any loss of
profit, loss of use, loss of production, loss of contracts
or for any other indirect or consequential damage that may
be suffered by the other.
10. Jurisdiction
The High Court of Justice in England shall have non-
exclusive jurisdiction to entertain any action or
proceedings whatsoever in respect of this Lease or any
provision thereof or any matter or thing arising under or by
virtue or consequent upon this Lease.
<PAGE>
SCHEDULE 7
Part 1
Mobile Equipment
Asset Description Identification No:
Terrex TS40 Coal Scraper/Loader
Terrex TS40 Coal Scraper/Loader
Terrex TS40 Coal Scraper/Loader
Terrex TS40 Coal Scraper/Loader
JCB 418 Bulldozer
JCB 807 B Bulldozer
JCB 807 C Bulldozer
JCB 8230 Bulldozer
Barclay Diesel Shunter
Part 2
Strategic Spares
Description Location
Hydrogen Blower
HP Rotor
Alternator Rotor
Main Steam Chest
Extraction Pump plus associated items
Cooling Water Pump
<PAGE>
SCHEDULE 8
1.1 In this Schedule "review date" means the expiration of the
eighth year of the Term and every fifth year thereafter and
`review period' means the period starting with any review
date up to the next review date or starting with the last
review date up to the end of the said Term.
1.2 Properties may by giving to Generation prior written notice
elect to review of the yearly rent payable hereunder on any
review date. The yearly rent shall be:
(A) until the first review date the yearly rent of thirty-
one million two hundred and fifty thousand pounds
(pound sterling 31,250,000) payable under clause 2; and
(B) during each successive review period such revised rent
as may be ascertained as herein provided subject only
to the provisions of clause 1.4(E) of this Schedule.
1.3 Such revised rent for any review period may be agreed at any
time between the Properties and Generation or (in the
absence of agreement) determined not earlier than the
relevant review date by an arbitrator such arbitrator to be
nominated in the absence of agreement by or on behalf of the
President for the time being of the Royal Institution of
Chartered Surveyors on the application of Properties or
Generation made not earlier than six months before the
relevant review date but not later than the end of the
relevant review period and so that in the case of such
arbitration the revised rent to be awarded by the arbitrator
shall be such as he shall decide is the yearly rent at which
the Demised Premises might reasonably be expected to be let
at the relevant review date:
(A) On the following assumptions at that date:
(i) that the Demised Premises:
(a) are available to let on the open market
without a fine or premium with vacant
possession by a willing landlord to a willing
tenant for the residue then unexpired of the
term of this lease;
(b) are to be let subject to the terms of this
Lease (other than the amount of the rent
hereby reserved but including the provisions
for review of that rent);
(B) But disregarding any increase in rental value of the
Demised Premises attributable to the existence at the
relevant review date of any improvement to the Demised
Premises or any part thereof carried out with consent
where required otherwise than in pursuance of an
obligation to Properties or its predecessors in title
except obligations requiring compliance with statutes
or directions of local authorities or other bodies
exercising powers under statute or Royal Charter either
(a) by Generation its sub-tenants or their respective
predecessors in title during the term or during any
period of occupation prior thereto arising out of an
agreement to grant such term or (b) by any tenant or
sub-tenant of the Demised Premises before the
commencement of the Term so long as the Properties or
its predecessors in title have not since the
improvement was carried out had vacant possession of
the relevant part of the Demised Premises.
1.4 It is hereby further provided in relation to the
ascertainment and payment of revised rent as follows:
(A) The arbitration shall be conducted in accordance with
the Arbitration Acts 1950 and 1979 or any statutory
modification or re-enactment thereof for the time being
in force with the further provision that if the
arbitrator nominated pursuant to sub-clause 1.3 hereof
shall die or decline to act as the President for the
time being of the Royal Institution of Chartered
Surveyors or the person acting on his behalf may on the
application of either the Properties or Generation by
writing discharge the arbitrator and appoint another in
his place.
(B) When the amount of any rent to be ascertained or
payable as herein provided shall have been so
ascertained or payable a memoranda thereof shall
thereupon be signed by or on behalf of Properties and
Generation and annexed to this lease and counterpart
thereof and the parties shall bear their own costs in
respect thereof.
(C) (i) If the revised rent payable on and from any review
date has not been agreed by that review date rent
shall continue to be payable at the rate
previously payable and forthwith upon the revised
rent being ascertained:
(a) Generation shall pay to Properties any
shortfall between the rent and the revised
rent payable up to and on the preceding
quarter day together with interest on any
shortfall at the seven-day deposit rate of
National Westminster Bank plc such interest
to be calculated on a day-to-day basis from
the relevant review date on which it would
have been payable if the revised rent had
then been ascertained to the date of actual
payment of any shortfall; and
(b) Properties shall pay to Generation any excess
between the rent and the revised rent payable
up to and on the preceding quarter day
together with interest in any excess at the
seven day deposit rate of National
Westminster Bank PLC on the same basis as in
subparagraph (a) of this present sub-clause
(C) (i).
(ii) For the purposes of this proviso the revised rent
shall be deemed to have been ascertained on the
date when the same has been agreed between
Properties and Generation or as the case may be
the date of the award of the arbitrator.
(D) If either Properties or Generation shall fail to pay
any costs awarded against it in an arbitration under
the provisions hereof within twenty-one days of the
same being demanded by the arbitrator the other shall
be entitled to pay the same and the amount so paid
shall be repaid by the party chargeable on demand.
(E) If the Handover Date shall fall at any time on or after
the tenth anniversary of the Term the rent payable
hereunder shall from the Handover Date become five
hundred pounds (pound sterling 500) per annum unless and
until otherwise reviewed on the next or any subsequent
review date.
EXECUTED as a DEED )
under the COMMON SEAL )
of EASTERN MERCHANT )
PROPERTIES LIMITED )
in the presence of: )
Authorised Signatory
EXECUTED as a DEED )
under the COMMON SEAL )
of EASTERN MERCHANT )
GENERATION LIMITED )
in the presence of: )
Authorised Signatory
Exhibit 10(n)
2 July 1996
POWERGEN plc
EASTERN MERCHANT PROPERTIES LIMITED
=========================================
LEASE
of commercial premises at
Drakelow, Burton-on-Trent, Staffordshire
==========================================
CERTIFIED TO BE A TRUE COPY
<PAGE>
CONTENTS
CLAUSE PAGE
1. INTERPRETATION.......................................................... 1
Definitions............................................................. 1
Construction............................................................ 5
2. GRANT AND PREMIUM....................................................... 6
3. DEMISE AND RENT......................................................... 6
4. PREMIUM................................................................. 8
5. CAPACITY RENT........................................................... 8
6. EASTERN'S COVENANTS..................................................... 8
7. POWERGEN'S COVENANTS.................................................... 8
8. PROVISOS................................................................ 8
SCHEDULE 1................................................................... 8
Part 1 The Demised Premises........................................... 8
Part 2 The Estate..................................................... 8
Part 3 Rights Granted................................................. 8
1. Substation Rights/Interface Agreement Rights............. 9
2. Roads.................................................... 9
3. Services................................................. 9
4. Inlet Culvert and Water Pipeline......................... 10
5. Ash Pipeline............................................. 10
6. Entry for maintenance purposes........................... 11
7. Railway Corridor......................................... 11
8. Water Cooling Towers and Sewage Works.................... 12
9. Electrical Connections................................... 12
10. "B" Ash Lagoon........................................... 12
11. Discharge of water....................................... 12
12. Emergency Access......................................... 13
13. Information Technology Equipment......................... 13
14. Telephone Equipment and Cabling.......................... 13
15. Works to and use of adjoining premises................... 13
(i)
<PAGE>
Part 4 Rights Excepted and Reserved................................... 14
1. Roads.................................................... 14
2. New Road................................................. 14
3. Services................................................. 14
4. Entry for works and for purposes of this Lease........... 15
5. Entry for PowerGen's Works............................... 15
6. Works to and use of adjoining premises................... 15
7. Access for Environmental Inspection...................... 16
8. Emergency access......................................... 16
9. Sports Facilities........................................ 16
Part 5 Documents referred to in clause 3.............................. 17
Part 6 Ash Pipeline Documents referred to in clause 3................. 17
Part 7 Permits and other documents referred to in clause 3............ 18
SCHEDULE 2................................................................... 19
Capacity Rent........................................................... 19
SCHEDULE 3................................................................... 20
Eastern's Covenants..................................................... 20
1. Pay premium and rent........................................... 20
2. Pay outgoings.................................................. 20
3. Common expenses................................................ 20
4. Repair......................................................... 21
5. Conduct of Site................................................ 21
6. Yield up....................................................... 21
7. Transfer of Licences, etc...................................... 21
8. Decommissioning and demolition................................. 22
9. Permit entry for Landlord and others........................... 22
10. Remedy wants of repair and entry for Landlord on Default....... 22
11. Notices........................................................ 23
12. Statutory requirements......................................... 23
13. Alterations.................................................... 23
14. Signs.......................................................... 24
15. Fire precautions............................................... 24
16. Securing premises.............................................. 24
17. User........................................................... 24
18. Prevent encroachments.......................................... 25
19. Alienation..................................................... 25
20. Costs.......................................................... 26
21. Value Added Tax................................................ 26
(ii)
<PAGE>
22. Ash and Waste Product Disposal Contracts and Railway
Agreements..................................................... 27
23. Comply with title matters...................................... 27
SCHEDULE 4................................................................... 27
PowerGen's Covenants.................................................... 27
1. Quiet enjoyment................................................ 27
2. Works.......................................................... 28
3. Contribution to Expenses....................................... 29
4. Sub-Station.................................................... 29
5. Other documents................................................ 29
6. Decommissioning and Demolition................................. 29
7. Rates.......................................................... 29
SCHEDULE 5................................................................... 29
Decommissioning Arrangements............................................ 29
SCHEDULE 6................................................................... 32
Provisos Agreements and Declarations.................................... 32
1. Premium........................................................ 32
2. Forfeiture..................................................... 32
3. Notices........................................................ 33
4. L & T A compensation exclusion................................. 33
5. Interest on unpaid rents and other moneys...................... 33
6. Non-acquisition of easements................................... 33
7. Rent acceptance when breach exists............................. 33
8. Disputes....................................................... 34
9. Liability for Indirect Damage.................................. 34
10. Landlord and Tenant (Covenants) Act 1995....................... 34
11. Jurisdiction................................................... 34
SCHEDULE 7................................................................... 35
Part 1 Mobile Equipment............................................... 35
Part 2 Strategic Spares............................................... 35
MEMORANDUM OF HANDOVER DATE.................................................. 36
MEMORANDUM OF DATE OF PRACTICAL COMPLETION................................... 36
(iii)
<PAGE>
H.M. LAND REGISTRY
LAND REGISTRATION ACTS 1925 - 1986
County and District : Staffordshire, East Staffordshire
Title Number :
Property : Drakelow "C" Power Station
THIS LEASE is made on 2 July 1996
BETWEEN
POWERGEN plc (registered in England and Wales with number 2366970), whose
registered office is at 53 New Broad Street, London EC2M 1JJ (POWERGEN); and
EASTERN MERCHANT PROPERTIES LIMITED (registered in England and Wales with number
3181383), whose registered office is at Wherstead Park, Wherstead, Ipswich,
Suffolk IP9 2AQ (EASTERN)
NOW THIS DEED WITNESSES as follows:
INTERPRETATION
Definitions
1.1 In this Lease unless the context otherwise requires the following
expressions shall have the following meanings:
ACTS means Environmental Laws, Planning Acts and any statutes, statutory
instruments, directives, regulations and bye-laws which are relevant to the
Demised Premises and the Decommissioning Works;
AGREEMENT FOR LEASE means the agreement dated 22 November 1995 made between
PowerGen (1) and Eastern Group plc (2) (as amended by a Deed of Variation dated
2 July 1996 made between the same parties as that agreement) pursuant to which,
inter alia, this Lease and the High Marnham Lease were granted;
BASIC RENT means the clear yearly rent of Five Hundred Pounds ((pound)500);
CAPACITY RENT means the rent calculated and payable at the times and in the
manner specified in Schedule 2;
CEGB means Central Electricity Generating Board;
CLAWBACK means any financial liability arising from the Clawback Debenture;
CLAWBACK DEBENTURE means the debenture dated 2 November 1990 made between
PowerGen (1) and The Secretary of State for Energy (2);
DATE OF PRACTICAL COMPLETION means the date of Practical Completion of the
Decommissioning Works;
DECOMMISSIONING WORKS means the decommissioning and demolition works, services
and things to be executed, undertaken and done by PowerGen pursuant to Schedule
5 to decommission the power station at the Demised Premises and demolish and
remove from the Demised Premises all buildings, plant, machinery, fixtures,
fittings, pipes, wires and other conducting media (to the extent that the same
are above ground level) with the intent that the Demised Premises shall, upon
completion of the works, be left clear in accordance with that Schedule;
DEMISED PREMISES means the land and buildings comprising, Drakelow "C" power
station more particularly described in Part 1 of Schedule 1 and any part
together with all buildings now or hereafter during the Term constructed or
erected thereon, all additions, alterations and improvements thereto and the
fixtures, fittings, plant, equipment and machinery therein (other than tenant's
and trade fixtures and fittings and any plant, machinery and equipment belonging
to, or acknowledged by PowerGen or Eastern as belonging to, The National Grid
Company plc or East Midlands Electricity plc) and the Mobile Equipment and the
Strategic Spares;
EASTERN includes its successors in title and assigns;
ENVIRONMENT means all, or any, of the following media, namely the air (including
without limitation the air within buildings and the air within other natural or
man-made structures above or below ground), water and land and any living
organisms or systems supported by those media;
ENVIRONMENTAL LAWS means the following:
(a) all international, European, Union, national or local treaties, statutes,
directives, legislation, common law or other laws concerning Environmental
Matters which are applicable to the Demised Premises and all regulations
and subordinate legislation made thereunder which are in force at the date
of this Lease;
(b) sections 78A - 78Y of the Environmental Act 1990 as amended and section 161
(as amended) of the Water Resources Act 1990; and
(c) judicial and administrative interpretation of the foregoing.
ENVIRONMENTAL COVENANT means the agreement to pay certain sums in relation to
Environmental Liabilities or Remedial Works given by PowerGen to Eastern
pursuant to clause 11 of the Agreement for Lease;
ENVIRONMENTAL LIABILITIES means liabilities under Environmental Laws in relation
to Environmental Matters including monetary claim, award, fine, sums agreed by
way of settlement, legal and/or consultants fees or liability to make good,
repair, reinstate, treat or clean up the Demised Premises or (insofar as it is
affected by the operation of the generation of electricity carried on from the
Demised Premises) the Environment in the vicinity of the Demised Premises;
ENVIRONMENTAL MATTERS means:
(a) the disposal, release, spillage, deposit, escape, discharge, leak or
emission of, contact with, and exposure of, any person to Hazardous
Materials or Waste;
(b) the creation of any noise, vibration, radiation, common law or statutory
nuisance, or other adverse impact on the Environment;
(c) any other matters relating to the condition, protection, maintenance,
restoration or replacement of the Environment or any part of it arising
directly or indirectly out of the manufacturing, processing, treatment,
keeping, handling, use (including as a building material), possession,
supply, receipt, sale, purchase, import, export, transportation or presence
of Hazardous Materials or Waste;
ESTATE means the land and premises belonging to PowerGen more particularly
described in Part 2 of Schedule 1;
HANDOVER DATE means the date being the later of (a) three months after Eastern
shall have notified PowerGen in writing that it has ceased using the Demised
Premises for the generation of electricity and (b) one month after formal
notification has been received by PowerGen that the power station within the
Demised Premises has been electrically disconnected from the 275kV/4OOkV
substation adjoining the Demised Premises;
HAZARDOUS MATERIALS means anything which alone or in combination with others is
capable of causing harm or damage to property or to man or any other organism
supported by the Environment including, without limitation, hazardous
substances, pollutant, contaminants, petroleum, petroleum products and radio
active materials;
HIGH MARNHAM LEASE means the lease of premises comprising High Marnham Power
Station, Newark, Nottinghamshire dated the same date as this Lease and made
between PowerGen (1) and Eastern, or a company within the same group as Eastern,
(2);
MOBILE EQUIPMENT means the plant, machinery and equipment listed in Part 1 of
Schedule 7;
MOBILE EQUIPMENT RENT means the clear yearly rent of Twenty Thousand Pounds
((pound)20,000) payable in respect of the Mobile Equipment;
NGC means The National Grid Company plc;
PERPETUITY PERIOD means the period expiring on the sooner of eighty years from
the date hereof and the Termination of the Term;
PLANNING ACTS means the Town & Country Planning Act 1990, the Planning (Listed
Buildings and Conservation Areas) Act 1990, the Planning (Hazardous Substances)
Act 1990, the Planning (Consequential Provisions) Act 1990, the Planning and
Compensation Act 1991, the Local Government and Land Act 1980, the Local
Government (Miscellaneous Provisions) Act 1982, the Housing and Planning Act
1986 and any Act for the time being in force of a similar nature and any laws
and regulations intended to control or regulate the construction demolition
alteration or change of use of land or buildings or to preserve or protect the
national heritage;
POWERGEN includes the estate owner(s) for the time being of the reversion
immediately expectant on the Termination of the Term;
PRACTICAL COMPLETION means completion of the Decommissioning Works in accordance
with paragraph 6.12 of Schedule 5;
PREMIUM means the capital sum to be paid by Eastern to PowerGen as consideration
for the grant of this Lease and the High Marnham Lease, such sum to be
calculated and payable in accordance with the provisions of the Agreement for
Lease and subject to the agreement set out in paragraph 1 of Schedule 6;
PRESCRIBED RATE means two per centum per annum above the Screen Rate, such rate
to apply as well after as before any judgment;
RENT DAYS means 25 March, 24 June, 29 September and 25 December in each year and
RELEVANT RENT DAY shall be construed accordingly;
RETAINED LAND means that part of the Estate which is not part of the Demised
Premises;
SCREEN RATE means, in relation to any relevant period for which an interest
calculation is to be made, the arithmetic mean (rounded to three decimal places
with the mid-point rounded up) of the offered quotations in Pounds Sterling for
that period which appear on the relevant page of the Reuter Monitor Money Rates
Services at 11 a.m. (London time) on the first day of that period;
STRATEGIC SPARES means the spare plant and equipment listed in Part 2 of
Schedule 7 other than any such plant and equipment that has, prior to the date
of this Lease, been affixed to the land and buildings otherwise comprised within
the Demised Premises;
TERM means the term hereby granted;
TERMINATION OF THE TERM means the determination of the Term whether by effluxion
of time, re-entry or otherwise howsoever;
VALUE ADDED TAX means Value Added Tax pursuant to the Value Added Tax Act 1994
and any other tax replacing or supplementing the same from time to time;
WASTE includes any unwanted or surplus substance irrespective of whether it is
capable of being recycled or recovered or has any value.
CONSTRUCTION
1.2 This Lease shall, unless the context otherwise requires, be construed on
the basis that:
(a) where the Tenant for the time being comprises more than one person,
covenants and obligations assumed by the Tenant shall be construed as made
by all such persons jointly and severally;
(b) the Term shall be deemed to commence for all purposes on the date of
commencement specified in clause 3;
(c) references to any Act of Parliament, order, instrument, regulation,
direction or plan shall be deemed also to refer to any statutory or other
modification or re-enactment thereof from time to time in force and to
include any requirement having the force of law in the United Kingdom and
any subordinate legislation, order, instrument, regulation, direction or
plan from time to time in force made or issued thereunder or deriving
validity therefrom or from any enactment repealed thereby or under any such
modification or re-enactment;
(d) any covenant on the part of Eastern not to do any act or thing shall
include an obligation on the part of Eastern to use reasonable endeavours
not to permit or suffer such act or thing;
(e) words denoting one gender include the other genders and words denoting
persons include firms and corporations and vice versa;
(f) clause, Schedule, Appendix and paragraph headings shall not affect the
interpretation of this Lease and references to any clause, Schedule,
Appendix and paragraph are references to clauses, schedules, the appendix
and paragraphs of this Lease.
GRANT AND PREMIUM
2. In consideration of the payment of the Premium, PowerGen grants this Lease
and the High Marnham Lease to Eastern.
DEMISE AND RENT
3. In consideration of the payment of the Premium as aforesaid and the
covenants on the part of Eastern (including as to payment of the Basic Rent,
Capacity Rent and Mobile Equipment Rent hereby reserved) and the conditions
hereinafter contained PowerGen HEREBY DEMISES unto Eastern the Demised Premises
TOGETHER WITH so far as PowerGen is able to grant the same the rights set out in
Part 3 of Schedule 1 EXCEPTING AND RESERVING unto PowerGen and to all other
persons from time to time entitled thereto the rights set out in Part 4 of
Schedule 1 TO HOLD the Demised Premises unto Eastern SUBJECT TO (and, where
relevant and applicable, with the benefit of) the rights, covenants, obligations
and other matters affecting the Demised Premises and all licences, consents,
permissions and agreements at the date of this Lease affecting the operation of
the Demised Premises and the power station erected thereon and in particular
(but without prejudice to the generality of the foregoing) those matters more
particularly contained or referred to in the documents short particulars whereof
are set out in Parts 5, 6 and 7 of Schedule 1 as far as the same relate to the
Demised Premises and are subsisting and capable of taking effect for a term of
ninety-nine (99) years commencing on 2 July 1996 YIELDING AND PAYING therefor
unto PowerGen without deduction, set-off or counterclaim (except such as Eastern
may be required by law to deduct notwithstanding any stipulation to the
contrary), (a) in relation to the Demised Premises (excluding the Mobile
Equipment) (i) yearly during the Term and so in proportion for any period less
than a year, the Basic Rent which shall be paid whether or not demanded in
advance by equal quarterly payments on each of the Rent Days except the first
payment which shall each be made on the date of this Lease in respect of the
period from 2 July 1996 to (but excluding) the Rent Day next following the date
of this Lease and (ii) yearly until the Handover Date and so in proportion for
any period less than a year, the Capacity Rent which shall be paid whether or
not demanded in arrears as hereinafter provided and (b), in relation to the
Mobile Equipment, yearly until the Handover Date and so in proportion for any
period less than a year, the Mobile Equipment Rent which shall be paid whether
or not demanded in arrear on 10 August in each year the first payment being made
on 10 August 1997 in respect of the year ending 30 June 1997.
<PAGE>
[MAP]
<PAGE>
PREMIUM
4. Payment of the Premium is subject to the provisions of paragraph 1 of
Schedule 6.
CAPACITY RENT
5. The provisions of Schedule 2 shall apply in relation to the calculation and
payment of the Capacity Rent.
EASTERN'S COVENANTS
6. Eastern covenants with PowerGen in manner set out in Schedule 3.
POWERGEN'S COVENANTS
7. PowerGen covenants with Eastern in manner set out in Schedule 4.
PROVISOS
8. It is agreed and declared in manner set out in Schedules 5 and 6.
DULY DELIVERED AS A DEED on the date inserted on page 1
SCHEDULE 1
PART 1
THE DEMISED PREMISES
All those pieces or parcels of land and river edged red on Plan 1 annexed hereto
and situate at and forming part of the Estate and known as Drakelow "C" Power
Station, Burton-on-Trent, Staffordshire together with the buildings, plant and
other structures erected thereon.
PART 2
THE ESTATE
All those pieces or parcels of land edged blue on Plan 1 annexed hereto.
PART 3
RIGHTS GRANTED
The following rights (in common with PowerGen and all others now or hereafter
entitled to the like rights):
1. SUBSTATION RIGHTS/INTERFACE AGREEMENT RIGHTS
(i) The rights contained in Part II and in paragraph 2 of Part V of the
Schedule to a lease of the 275kV/400kV substation adjoining the Demised
Premises dated 31 March 1990 and made between PowerGen (1) and NGC (2);
(ii) The rights in favour of PowerGen contained in an Interface Agreement dated
31 March 1990 and made between NGC (1) and PowerGen (2).
2. ROADS
(i) To pass and repass at all times and for all purposes (with or without
vehicles or other plant, machinery, equipment or otherwise) connected with
access to and egress from that part of the Demised Premises marked "pump house"
on Plan 1 (THE PUMP HOUSE) and the bridge on the Retained Land marked "ash
bridge" on Plan 1 (THE ASH BRIDGE) over and along the road and footpath on the
Retained Land the approximate position of which is shown coloured brown on
Plan 1;
(ii) To pass and repass at all times and for all purposes (with or without
vehicles or other plant, machinery, equipment or otherwise) over the roadway on
the Retained Land running between the points marked C and D on Plan 1;
(iii)In substitution for the rights granted by sub-paragraph (i) and/or (ii)
above to pass and repass at all times along such other road or roads as PowerGen
may construct from time to time during the Perpetuity Period and designate from
time to time for the purpose (such road or roads being materially no less
convenient as a means to and egress from the pump house and the ash bridge and
around the perimeter of the Demised Premises as those referred to in
sub-paragraphs 2(i) and 2(ii) above) as have not been adopted by the Local
Authority as maintainable by such Authority SUBJECT TO Eastern cleansing,
maintaining, repairing, renewing and replacing the roads referred to in
sub-paragraphs (i), (ii) and (iii) as and when necessary (in Eastern's
reasonable opinion) in order to keep such roads in adequate repair and condition
(provided that there shall be no obligation to keep such roads in a better state
and condition than they are at the date hereof) PROVIDED THAT the use of any of
the roads and footpaths referred to in sub-paragraphs (i), (ii) and (iii) shall
be subject to all and any reasonable regulations as to direction of traffic flow
thereover or other traffic control arrangements notified by PowerGen to Eastern
in writing;
3. SERVICES
The free and uninterrupted passage and running of water, soil, gas, electricity
and pulverised fuel ash and furnace bottom ash, telephone and other services
from and to the Demised Premises through and along with conduits mains, pipes,
wires and cables or other conducting media and all or any other services now or
hereafter during the Perpetuity Period provided for the Demised Premises and/or
the lighting tower referred to in paragraph 7 of this Part of this Schedule
and/or for the water cooling towers and sewage works referred to in paragraph 8
of this Part of this Schedule and laid in under or over the Estate or the
adjoining or neighbouring land (if any) belonging to PowerGen or in under or
over any other property across which PowerGen shall have rights to carry the
same for the passage of surface water ash slurry and sewage from and water gas
electricity and other services to and from the Demised Premises SUBJECT TO
Eastern cleansing, maintaining, repairing, renewing and replacing such drains,
sewers, channels and watercourses and water, gas, electric and pulverised fuel
ash and furnace bottom ash conduits, mains, pipes, wires and cables or other
conducting media as and when necessary (in Eastern's reasonable opinion) in
order to keep them in good and substantial repair and condition;
4. INLET CULVERT AND WATER PIPELINE
Without prejudice to the generality of paragraph 3 of this Part of this Schedule
to use the concrete water culvert running under that part of the Retained Land
coloured brown on Plan 1 from the pump house to the other part of the Demised
Premises such pipeline to be used for the passage of water from the pump house
to the Drakelow "C" Power Station on the Demised Premises and to use the water
pipeline running over the ash bridge and thereafter under the Retained Land to
the Demised Premises SUBJECT TO Eastern cleansing, maintaining, repairing,
renewing and replacing the culvert and the water pipeline as and when necessary
(in Eastern's absolute discretion with respect to the inlet culvert and in
Eastern's reasonable opinion with respect to the water pipeline) in order to
keep the culvert in good and substantial repair and condition PROVIDED THAT if
at any time after Completion water shall spill, leak or otherwise discharge from
such inlet culvert or water pipeline over the Retained Land as a result of any
damage to the inlet culvert or water pipeline (or any part thereof), Eastern
shall be under an obligation to repair, renew or replace the relevant damaged
part of such inlet culvert or water pipeline running under the Retained Land
without unreasonable delay;
5. ASH PIPELINE
Without prejudice to the generality of paragraph 3 of this Part of this Schedule
to use the ash pipeline running under that part of the Retained Land coloured
brown on Plan 1 and over the ash bridge between the point marked "Z" on Plan 1
and the Demised Premises such pipeline to be used for the passage of ash from
the Drakelow "C" Power Station on the Demised Premises to and over the ash
bridge SUBJECT TO Eastern cleansing, maintaining, repairing, renewing and
replacing the pipeline as and when necessary (in Eastern's absolute discretion)
in order to keep the pipeline in good and substantial repair and condition
PROVIDED THAT if at any time after Completion ash shall spill, leak or otherwise
discharge from the ash pipeline over the Retained Land as a result of any damage
to that ash pipeline (or any part thereof), Eastern shall be under an obligation
to repair, renew or replace the relevant damaged part of such ash pipeline
without unreasonable delay;
6. ENTRY FOR MAINTENANCE PURPOSES
The right to enter upon the Retained Land (and any other adjoining or
neighbouring land over which PowerGen shall have rights of entry, insofar as
PowerGen is able to grant such rights thereover), at all reasonable times on
reasonable written notice (except in the case of emergency when no notice shall
be required) with or without workmen and others and all necessary appliances and
materials for the purpose of inspecting, maintaining, cleansing, repairing,
renewing and replacing: the roads referred to in paragraph 2 of this Part of
this Schedule; the conducting media referred to in paragraph 3 of this Part of
this Schedule; the inlet culvert and water pipeline referred to in paragraph 4
of this Part of this Schedule; the ash pipeline referred to in paragraph 5 of
this Part of this Schedule; the railway sidings, signalbox, cabling and lighting
tower referred to in paragraph 7 of this Part of this Schedule; the water
cooling towers and sewage works referred to in paragraph 8 of this Part of this
Schedule; the electrical and other connections and switches referred to in
paragraph 9 of this Part of this Schedule; the ash lagoon referred to in
paragraph 10 of this Part of this Schedule; the water discharge points referred
to in paragraph 11 of this Part of this Schedule; the information technology
equipment referred to in paragraph 13 of this Part of this Schedule; the
telephone equipment referred to in paragraph 14 of this Part of this Schedule;
the pump house; the boundary fences surrounding the Demised Premises erected by
Eastern in accordance with its covenant contained in paragraph 16.3 of Part 1 of
Schedule 3 and any other ducts, conduits, pipes, drains, channels, watercourses,
sewers, wires and cables and other conducting media and all connections serving
the Demised Premises and to exercise any of the rights granted to Eastern and to
comply with any of the obligations on the part of Eastern pursuant to this Lease
SUBJECT TO the persons exercising such rights causing as little damage as
reasonably practicable to the Retained Land and making good or procuring the
making good of all damage to the fabric thereof thereby occasioned;
7. RAILWAY CORRIDOR
The right to use that part of the Retained Land shown coloured green on Plan 1
(or such other part of the Retained Land as PowerGen in its absolute discretion
shall designate PROVIDED THAT the point at which the railway corridor joins the
Demised Premises shall not be altered from its current position shown on Plan 1
and PROVIDED FURTHER that PowerGen shall not, in altering the position of the
railway corridor, thereby interrupt or materially interfere with or prevent the
continued use of railway sidings from the Railtrack plc main line (save to the
extent (in either case) that PowerGen and Eastern shall otherwise agree)) as a
railway corridor for the for the siting of railway sidings to serve the Demised
Premises together with the right (for itself or for Railtrack plc) to erect (if
necessary) in such location as PowerGen shall reasonably agree and retain a
signalbox on the Retained Land and such cabling relating to such railway sidings
and such signalbox as is necessary from time to time together with the right to
use the lighting tower marked Y on Plan 1 SUBJECT TO Eastern cleansing,
maintaining, repairing, renewing and replacing the sidings, the signalbox and
any associated cabling and the lighting tower as and when necessary (in
Eastern's absolute discretion save where Eastern is required to do so pursuant
to the provisions of an Agreement dated 28 March 1994 made between British
Railways Board (1) and PowerGen (2)) in order to keep the sidings, the signalbox
and any associated cabling and the lighting tower in good and substantial repair
and condition;
8. WATER COOLING TOWERS AND SEWAGE WORKS
To the extent that the relevant works referred to in paragraph 2.2 of Schedule 4
have not been completed prior to the date of this Lease, a temporary right to
use the water cooling towers and the sewage works (and the related pipework) now
situated on the Retained Land at all times and for all purposes (in each case,
such right to continue only until PowerGen shall have completed, to the
reasonable satisfaction of Eastern, the relevant works set out in paragraph 2.2
of Schedule 4);
9. ELECTRICAL CONNECTIONS
To the extent that the relevant works referred to in paragraph 2.2 of Schedule 4
have not been completed prior to the date of this Lease, a temporary right to
use the electrical switches, connections, lines, wires and cables currently
situated in the Drakelow "B" power station and other parts of the Retained Land
(other than in the 275kV/4OOkV substation forming part thereof) such right to
continue only until PowerGen shall have completed, to the reasonable
satisfaction of Eastern, the relevant works referred to in paragraph 2.2 of
Schedule 4;
10. "B" ASH LAGOON
To the extent that the relevant works referred to in paragraph 2.2 of Schedule 4
have not been completed prior to the date of this Lease, a temporary right to
use the ash lagoon on the Retained Land marked "Lagoon B" on Plan 1, together
with the water pipeline running thereto from the Demised Premises and the water
pipeline running from Lagoon B to the discharge point or points to which the
pipeline connects, for the passage of water from Drakelow "C" Power Station on
the Demised Premises to and from Lagoon B such right to continue until the
appropriate valves attached to the water pipelines have been switched by
PowerGen (in accordance with its obligations contained in paragraph 2.2 of
Schedule 4) in order that the passage of water from the Demised Premises shall
pass to the outfall on the Demised Premises rather than passing to Lagoon B;
11. DISCHARGE OF WATER
The right to use whichever points of discharge of water are required for the
operational use of the Drakelow "C" Power Station insofar as such points of
discharge are situated on the Retained Land SUBJECT TO Eastern cleansing
maintaining, repairing, renewing and replacing the same as and when necessary
(in Eastern's absolute discretion);
12. EMERGENCY ACCESS
A right of way without interference through the Retained Land in the event of
fire or other emergency.
13. INFORMATION TECHNOLOGY EQUIPMENT
(i) A temporary right to use the information technology equipment and all
cabling and ancillary apparatus currently situated in Drakelow "B" Power Station
until such time as Eastern's information technology equipment is installed in
Drakelow "C" Power Station (and in any event such right shall continue only
until 31 July 1997 at the latest);
(ii) A right to move the aforesaid information technology equipment from
Drakelow "B" Power Station to Drakelow "C" Power Station SUBJECT TO the persons
exercising such rights causing as little damage as reasonably practicable to the
Retained Land and making good or procuring the making good of all damage to the
fabric thereof thereby occasioned;
14. TELEPHONE EQUIPMENT AND CABLING
(i) A temporary right to use the telephone equipment and cabling relating
thereto currently situated in Drakelow "B" Power Station until the earlier of:
(a) Eastern moving the aforesaid telephone equipment and cabling from
Drakelow "B" Power Station to Drakelow "C" Power Station; and
(b) 31 July 1997;
(ii) A right to move the aforesaid telephone equipment from Drakelow "B" Power
Station to Drakelow "C" Power Station SUBJECT TO the persons exercising such
rights causing as little damage as reasonably practicable to the Retained Land
and making good or procuring the making good of all damage to the fabric thereof
thereby occasioned;
15. WORKS TO AND USE OF ADJOINING PREMISES
At all times during the Term without reference to PowerGen or making any
compensation to PowerGen therefor to:
(a) execute or permit or suffer the execution of works or alterations on or to
the Demised Premises or the demolition, rebuilding, alteration or extension
of any buildings or structures now or hereafter erected on such Demised
Premises;
(b) use or deal with the Demised Premises and such buildings and premises
thereon in such manner as Eastern may in its absolute discretion think fit;
provided that such rights shall be exercised so as to cause as little
inconvenience to PowerGen as is reasonably practicable and any physical damage
caused to the Retained Land as a result of the exercise of such rights shall be
made good to the reasonable satisfaction of PowerGen at the expense of the
person causing such damage.
PART 4
RIGHTS EXCEPTED AND RESERVED
1. ROADS
The right to pass and repass at all times and for all purposes connected with
access to and egress from the Retained Land over and along that part of the road
on the Demised Premises running between points E and C as shown on Plan 1, such
right to extend to all persons who are from time to time permitted by PowerGen
to fish along the bank of the River Trent within the Retained Land and to all
persons entitled (upon reasonable proof of identity and entitlement) to obtain
access to the wildlife reserve situated on the Retained Land for such time as
the said reserve remains in existence;
2. NEW ROAD
The right, after the Date of Practical Completion, to construct a road across
the Demised Premises between the points marked A and B on Plan 1 and thereafter
the right to pass and repass at all times and for all purposes connected with
access to and egress from one part of the Retained Land to another part of the
Retained Land over and along such road PROVIDED THAT neither the position,
construction, retention or use of the road shall interfere with the
uninterrupted use and enjoyment by Eastern of the water outfall situated in or
on the Demised Premises or of the railway sidings situated on the Demised
Premises or the Retained Land PROVIDED THAT PowerGen shall keep such road in
good and substantial repair and condition and PROVIDED FURTHER THAT Eastern
shall be entitled to block off or remove such road temporarily if reasonably
necessary to carry out other works of repair, maintenance or construction on the
Demised Premises subject to Eastern having given reasonable written notice of
such works to PowerGen and Eastern causing as little damage as reasonably
practicable to such road and making good or procuring the making good of all
damage to the fabric thereof thereby occasioned;
3. SERVICES
The free and uninterrupted passage and running of water, soil, gas, electricity,
telephone and other services from and to all other buildings and premises on the
Retained Land through and along all conduits, pipes, drains, channels,
watercourses, sewers, wires and cables or other conducting media which are now
or may hereafter during the Perpetuity Period be in over or under the Demised
Premises together with the right to connect into the same;
4. ENTRY FOR WORKS AND FOR PURPOSES OF THIS LEASE
The right to enter the Demised Premises at all times in case of emergency and
otherwise at all reasonable times on reasonable notice with or without workmen
and others and all necessary appliances and materials for the purpose of:
(a) decommissioning and demolishing the Drakelow "A" and "B" power stations
comprised within the Retained Land;
(b) inspecting, maintaining, cleansing, repairing, altering, testing, renewing
and replacing, laying and making connections to the said ducts, conduits,
pipes, drains, channels, watercourses, sewers, wires, and cables and other
conducting media and all connections serving the Retained Land;
(c) carrying out all works, operations or acts or doing any thing whatsoever
comprised within PowerGen's obligations in respect of the Estate or
(whether or not within the same) for which Eastern is liable hereunder to
make a contribution; and
(d) for any purpose mentioned in paragraph 5 of Schedule 3 to the Clawback
Debenture or in any of the documents mentioned in Part 5 of this Schedule
the persons exercising such rights causing as little damage as reasonably
practicable to the Demised Premises and making good or procuring the making good
of all damage to the fabric thereof thereby occasioned;
5. ENTRY FOR POWERGEN'S WORKS
To the extent that any of the works which are referred to in paragraph 2 of
Schedule 4 or are otherwise the obligation of PowerGen pursuant to the Agreement
for Lease have not been completed prior to the date of this Lease, the right to
enter upon the Demised Premises at reasonable times and on reasonable written
notice (save in case of emergency) with or without workmen and others and all
necessary vehicles, plant, machinery, equipment, appliances and materials in
order to carry out and complete the same;
6. WORKS TO AND USE OF ADJOINING PREMISES
At all times during the Term without reference to Eastern or making any
compensation to Eastern therefor to:
(a) execute or permit or suffer the execution of works or alterations on or to
the Retained Land or the demolition, rebuilding, alteration or extension of
any buildings or structures (including, but without prejudice to the
generality of the foregoing, the demolition and decommissioning of the said
Drakelow "A" and "B" power stations) now or hereafter erected on such
Retained Land;
(b) use or deal with the Retained Land and such buildings and premises thereon
in such manner as PowerGen may in its absolute discretion think fit;
provided that such rights shall be exercised so as to cause as little
inconvenience to Eastern as is reasonably practicable and any physical damage
caused to the Demised Premises as a result of the exercise of such rights shall
be made good to the reasonable satisfaction of Eastern at the expense of the
person causing such damage;
7. ACCESS FOR ENVIRONMENTAL INSPECTION
If PowerGen is, or reasonably believes that it may be, liable under the
Environmental Covenant or the Environmental Laws in respect of the Demised
Premises, a right to enter the Demised Premises at reasonable times and upon
reasonable written notice (save in case of emergency) with or without workmen,
surveyors, consultants and all other persons authorised by PowerGen together
with all necessary vehicles, plant, machinery, appliances and materials for the
purpose of environmental inspection and the carrying out of all tests, surveys
and reports as PowerGen shall in its absolute discretion consider appropriate
whether on or under the surface of the Demised Premises and whether or not the
same causes any damage to the Demised Premises PROVIDED THAT, in exercising such
right, PowerGen shall
(a) make good or procure the making good of any damage so caused;
(b) cause as little disruption and interference to the business as reasonably
practicable carried on upon the Demised Premises;
(c) comply with all reasonable regulations or instructions issued by Eastern;
(d) ensure that adequate insurance cover against all insurable third party
liability claims is maintained in respect of the works carried out under
this paragraph 7;
8. EMERGENCY ACCESS
A right of way without interference through the Demised Premises in the event of
fire or other emergency;
9. SPORTS FACILITIES
The right for ex-employees of CEGB and PowerGen (upon reasonable proof of
identity and status) who are members of the sports and social club situated on
the Demised Premises to enter and use the sports ground and sports and social
facilities on the Demised Premises at all reasonable times in accordance with
the normal hours of use thereof and in compliance with the rules and regulations
from time to time of the sports and social club.
<PAGE>
PART 5
DOCUMENTS REFERRED TO IN CLAUSE 3
DATE NATURE OF DOCUMENT PARTIES
10 July 1950 Conveyance C F Gothard (1)
British Electricity
Authority (2)
23 January 1987 Conveyance CEGB (1)
D Lewis and
K M Willoughby (2)
15 March 1988 Deed of Grant D Lewis and
K M Willoughby (1)
CEGB (2)
31 March 1990 Deed of Grant PowerGen (1) NGC (2)
31 March 1990 Interface Agreement NGC (1) PowerGen (2)
(INTERFACE AGREEMENT)
30 March 1990 License to Retain Assets CEGB (PowerGen Division) (1)
(LICENSE TO RETAIN ASSETS) East Midlands Electricity
Board (2)
31 March 1990 Lease (NGC LEASE) PowerGen (1) NGC (2)
20 February 1995 Wayleave Agreement PowerGen (1)
(WAYLEAVE AGREEMENT) East Midlands Electricity
plc (2)
14 March 1988 Conveyance CEGB (1) R A Bullivant (2)
22 March 1995 Transfer PowerGen (1)
Roger Bullivant Limited (2)
26 July 1962 Lease CEGB (1)
Trent River Board (2)
PART 6
ASH PIPELINE DOCUMENTS REFERRED TO IN CLAUSE 3
26 February 1970 License British Waterways Board (1)
CEGB (2)
29 April 1970 Deed of Grant Midland Gravel Co. Ltd (1)
CEGB (2)
17 January 1972 Deed of Grant Marley Tile Company Ltd (1)
CEGB (2)
24 November 1971 Deed of Grant Sharp Bros & Knight Ltd (1)
CEGB (2)
18 May 1972 Deed of Grant Staffordshire County
Council (1)
CEGB (2)
13 December 1960 Deed of Grant Personal Representatives of G D
Flatt (1)
CEGB (2)
25 January 1961 Agreement British Transport
Commission (1)
CEGB Midlands and East
Midlands Region (2)
16 September 1963 Deed of Easement Branston Gravels Limited (1)
CEGB (2)
26 September 1962 Agreement British Transport
Commission (1)
CEGB Midlands Project
Group (2)
PART 7
PERMITS AND OTHER DOCUMENTS REFERRED TO IN CLAUSE 3
DATE DOCUMENT PARTIES
2 September 1963 Agreement for the supply of South Staffordshire Waterworks
mains water to Drakelow Co Ltd (1) CEGB (2)
"C"' Power Station
9 December 1970 Supplemental Agreement South Staffordshsire Waterworks
increase in supply of water Co Ltd (1) CEGB (2)
to 909,000 gallons per day
20 April 1959 Consent to extension of Ministry of Power
existing Drakelow
Generating Station
23 December 1960 Variation of terms of Ministry of Power
consent of 20 April 1959
22 February 1966 License to abstract water Trent River Authority
21 March 1986 Consent for a discharge, Severn Trent Water Authority
Reference Number:
S34/S/7/275
28 December 1990 Land Drainage Consent, National Rivers Authority
Newbold Quarry pipeline
and outfall Consent
Reference: UT 2116
7 April 1993 IPC Authorisation Her Majesty's Inspectorate of
Reference AA2925 Pollution
14 July 1994 Variation of IPC Her Majesty's Inspectorate of
Authorisation Pollution
27 March 1995 Variation of IPC Her Majesty's Inspectorate of
Authorisation Pollution
23 June 1995 Variation of IPC Her Majesty's Inspectorate of
Authorisation Pollution
SCHEDULE 2
CAPACITY RENT
1. On 10 August 1997 and on 10 August in each year thereafter (until and
including 10 August 2001 or 40 days after the Handover Date if such date is
earlier than 30 June 2001) Eastern shall pay the Capacity Rent, calculated in
the manner set out in the remainder of this Part of this Schedule.
2. The Capacity Rent payable on any 10 August shall be in respect of the year
ended on 30 June next before that payment date.
3. To the extent relevant, if the Handover Date is not 30 June in any relevant
year, the Capacity Rent payable 40 days after the Handover Date shall be in
respect of the period from 1 July next before the Handover Date to (but not
including) the Handover Date.
4. The Capacity Rent for any relevant year ending on or before 30 June 2001
shall be the amount which is the sum of ((pound)2.60 multiplied by RPI(1)
divided by RPI(2) multiplied by GSC) minus (pound)20,000.
5. If the Handover Date occurs on any date other than 30 June in any year, the
Capacity Rent calculation shall be reduced proportionately (calculated on a
daily basis).
6. In the above calculations:
(a) GSC is the time-weighted generating set capacity (in kilowatts) of the
generating sets comprised within the Demised Premises for the relevant
year;
(b) RPI(1) is the RPI for the month of May next before the relevant payment
date; and
(c) RPI(2) is the RPI for the month of May 1996; and
(d) RPI is the Retail Prices Index (all items) prepared by the Central
Statistical Office from time to time.
SCHEDULE 3
EASTERN'S COVENANTS
1. PAY PREMIUM AND RENT
1. Subject to paragraph 1 of Schedule 6, to pay to PowerGen the instalments of
the Premium, and the Capacity Rent, the Basic Rent, the Mobile Equipment Rent
and other amounts payable under this Lease at the times and in manner as
provided herein without any deduction, set-off or counterclaim except as
aforesaid.
2. PAY OUTGOINGS
2. Subject to paragraph 7 of Schedule 4, to pay and discharge all existing and
future rates, taxes, duties, charges, assessments, impositions and outgoings
whatsoever (whether parliamentary, parochial, local or of any other description
and whether or not of a capital or revenue or non-recurring nature and even
though of a wholly novel character) (CHARGES) which are now or may at any time
hereafter be assessed, charged, levied or imposed upon or payable in respect of
the Demised Premises or on or by any estate owner, landlord, tenant or occupier
in respect thereof (except (subject to paragraphs 21(d) and 22 of this Part of
this Schedule)) any charges or Clawback payable by PowerGen occasioned by
receipt of any sums due hereunder or by the ownership of, or an actual dealing
(including the grant of this Lease) by PowerGen with, its reversionary interest
in the Demised Premises or any interest immediately or immediately reversionary
to this Lease).
3. COMMON EXPENSES
3. Without prejudice to the generality of any other covenant by Eastern, to
pay on demand a fair proportion of the costs and expenses of making, repairing,
maintaining, rebuilding, renewing, replacing, lighting, insuring, connecting and
cleansing all ways, roads, pavements, bridges, sewers, drains, pipes, channels,
watercourses, gutters, wires, cables, boundary walls, fences, party walls,
structures, open areas and other conveniences which shall at any time belong to
or be used for the Demised Premises in common with other Premises near or
adjoining thereto.
4. REPAIR
4.1 Subject to PowerGen's obligations under the Environmental Covenant and
subject to paragraphs 4.2 and 4.3 of this Part of this Schedule and taking into
account the state and condition of the Demised Premises at the date of this
Lease and subject to wear and tear and use of the Demised Premises as a power
station, to keep the Demised Premises safe;
4.2 Without prejudice to the generality of, and notwithstanding paragraph 4.1
above, to comply fully with any obligation contained or referred to in any of
the documents listed in Parts 5, 6 and 7 of Schedule 1 for or relating to the
repair, maintenance or renewing, replacing or rebuilding of anything comprised
in, or anything in, under or on, the Demised Premises;
4.3 Subject to the provisions of Schedule 5, to keep the Strategic Spares (so
far as any of the same has not been affixed to the Demised Premises during the
Term) and the Mobile Equipment, so far as practicable available for use.
5. CONDUCT OF SITE
5. Prior to the Handover Date, save as may arise as a result of using the
Demised Premises in accordance with paragraph 17 of this Schedule, not to do or
permit anything to be done at or on the Demised Premises as shall materially
increase the actual or contingent liabilities of PowerGen pursuant to the
covenant on its part contained in paragraph 6 of Schedule 4 or its obligations
under Schedule 5.
6. YIELD UP
6. At the Termination of the Term:
6.1 Immediately to make any payment then due to PowerGen pursuant to this
Lease; and
6.2 To yield up the Demised Premises (including the Mobile Equipment and the
Strategic Spares so far as the same are still subsisting) unto PowerGen as shall
be in accordance with the covenants and conditions contained in or imposed by
virtue of this Lease and, unless released from compliance by PowerGen, to remove
from the Demised Premises all tenant's and trade fixtures and fittings and
Eastern's furniture and effects and to remove any sign, writing or painting of
the name or business of Eastern and other persons from the Demised Premises.
7. TRANSFER OF LICENCES, ETC.
7. As soon as practicable after yielding up the Demised Premises to deliver up
to PowerGen all written permissions, permits, licences and authorisations for
the operation of the Demised Premises and to use all reasonable endeavours to
transfer or assign (to the extent possible and at PowerGen's cost and expense)
to PowerGen all such permissions, permits, licences and authorisations in the
name of Eastern and where the consent of a third party is required for such
assignment or transfer to join with PowerGen in the making of any necessary
application therefor and to supply such assistance and information therewith as
PowerGen shall reasonably require Provided always that Eastern shall not be
obliged to act as surety or guarantor or give any other form of security in
relation to any such transfer or assignment.
8. DECOMMISSIONING AND DEMOLITION
8. To comply with the covenants and obligations on the part of Eastern
contained in Schedule 5.
9. PERMIT ENTRY FOR LANDLORD AND OTHERS
9.1 To permit PowerGen and its servants, and other agents, its contractors and
workmen and, to the extent lawfully entitled, the owner, tenants and occupiers
of any adjoining or neighbouring premises and their respective servants, agents
and workmen with all necessary plant, machinery, equipment, tools and appliances
at all times in case of emergency and otherwise at any reasonable times on
reasonable prior notice without interruption or interference and subject to such
safety requirements as Eastern shall reasonably require to enter upon the
Demised Premises and remain thereon for such period as shall be necessary:
(a) to examine the Demised Premises to ensure that nothing has been done or
omitted which constitutes or may be or tend to be a breach or
non-performance of any of the covenants contained in this Lease;
(b) to exercise any rights excepted and reserved to PowerGen or such owners,
tenants and occupiers and for any other purpose properly connected with the
interest of PowerGen in the Demised Premises;
(c) to inspect the Demised Premises for all purposes connected with the
operation or implementation, or the proposed implementation, of Schedule 5
and Eastern shall furnish such information for the said purposes as may
reasonably be requested by PowerGen.
9.2 To permit the persons authorised by, or referred to in, paragraph 5 of
Schedule 3 to the Clawback Debenture to enter upon the Demised Premises for the
purposes therein mentioned.
10. REMEDY WANTS OF REPAIR AND ENTRY FOR LANDLORD ON DEFAULT
10. Forthwith to proceed to repair and make good all wants of repair and
defects of which notice shall be given by PowerGen to Eastern and which Eastern
shall be liable to repair or make good provided always that if within two months
or such shorter period as is reasonable from the date of such notice Eastern
shall fail to commence to repair and make good the matters prescribed in such
notice then it shall be lawful for PowerGen and all persons authorised by
PowerGen with workmen, servants, agents and others with or without all necessary
plant, machinery, equipment, tools and appliances to enter into and stay upon
the Demised Premises and repair and make good the same at the expense of Eastern
(but so that PowerGen's right of entry or any other right or remedy of PowerGen
under this Lease shall not thereby be prejudiced).
11. NOTICES
11. As soon as practicable after receipt by Eastern of any notice or
communication from a competent authority affecting PowerGen's interest in the
Demised Premises to give to PowerGen a copy thereof.
12. STATUTORY REQUIREMENTS
12.1 Save as provided in the Environmental Covenant, at the expense of Eastern
to comply with all Environmental Laws, Planning Acts and the Electricity Act
1989 relating to the Demised Premises or the use thereof and to execute at its
own expense any work required to be carried out in or to the Demised Premises
whether such work is required to be carried out by the owner or the occupier or
any other person.
12.2 Save as provided in the Environmental Covenant, not at any time to do omit
or permit on or about the Demised Premises any act or thing by reason of which
PowerGen may under any such European Laws, Planning Acts and the Electricity Act
1989 incur or have imposed upon it or become liable to pay any levy penalty
damages compensation costs charges or expenses Provided that use of the Demised
Premises in accordance with paragraph 17 of this Part of this Schedule and the
PowerGen Standards shall not, of itself, constitute breach of this paragraph
12.2.
12.3 Save as provided in the Environment Covenant, to obtain all licences,
permissions and consents and to execute and do all works and things and to bear
and pay all expenses required or imposed by any such Environmental Laws,
Planning Acts and the Electricity Act 1989 in respect of any works carried out
by Eastern on the Demised Premises or of any user thereof.
13. ALTERATIONS
13. Prior to the Handover Date, if Eastern make any alterations or additions in
or to the Demised Premises which materially increase PowerGen's obligations
pursuant to paragraph 6 of Schedule 4 and the provisions of Schedule 5, then,
save for alterations or additions required to comply with the provisions of
paragraph 12 of this Schedule, Eastern shall pay to PowerGen the reasonable
increase in cost and expense incurred by PowerGen in complying with its said
obligations.
14. SIGNS
14. Prior to the Handover Date, to display at the main and other entrances to
the Demised Premises appropriate signs indicating that Eastern is in occupation
thereof and in all relevant locations appropriate warning signs and/or other
instructional notices to those persons who may, from time to time, be upon the
Demised Premises.
15. FIRE PRECAUTIONS
15. Prior to the Handover Date, at all times during the Term at the expense of
Eastern to comply with all recommendations (whether legally enforceable or not)
from time to time of the appropriate authority in relation to fire precautions
affecting the Demised Premises and to keep and maintain sufficient fire fighting
and extinguishing apparatus in and about the Demised Premises installed in
compliance with such recommendations and with any legal requirements and any
requirements of any insurer of the Demised Premises.
16. SECURING PREMISES
16.1 Prior to the Handover Date, at all times of the day or night to keep the
Demised Premises fully secured against intruders, unauthorised persons,
vandalism and to provide such security arrangements and systems as may be
necessary to comply with any requirement of any appropriate authority (whether
legally enforceable or not).
16.2 Prior to the Handover Date, to maintain all external and security lighting
in good condition and fully operational during night time working hours.
16.3 To erect and thereafter until the Handover Date maintain in a proper state
of repair and condition such boundary fencing as is required for the safe
operation of the Power Station at the Demised Premises or as is required by any
statutory or other body or pursuant to any statutory or other obligation.
17. USER
17.1 Prior to 31 March 2000 not to use those parts of the Demised Premises which
are coloured yellow on Plan 1 annexed to this Lease such that their use is other
than an activity for which all exemption or licence is required under Sections 5
or 6 of the Electricity Act 1989 or involving the distribution of electricity in
so far as it does not require a licence under Section 6 of that Act and, subject
thereto, to use the Demised Premises for the purpose of electricity generation
substantially from the plant and equipment comprised in the Demised Premises at
the date of this Lease and for other purposes ancillary thereto.
17.2 Prior to the Handover Date, to use all reasonable endeavours (a) not at any
time to use the Demised Premises or any part thereof nor permit or suffer the
same to be used in any way or for any purpose which may unnecessarily be a
nuisance, damage or disturbance to the owners or occupiers of any premises
adjoining or near the Demised Premises or the neighbourhood and (b) to use and
operate the Demised Premises in such manner as engenders and fosters good
relations with the communities in the locality of the Demised Premises and any
representatives of such communities and, in particular, but without prejudice to
the generality of the foregoing (i) to ensure that all lorries and other heavy
or wide goods vehicles having access to the Demised Premises comply with all
formal and informal agreements with such local communities and representatives
including relating to the use of certain routes and any restrictions on the
times or days at which such routes can be used, (ii) to take steps to explain or
inform the local communities of any unusual operations at the Demised Premises.
Provided always that use of the Demised Premises in accordance with
paragraph 17.1 of this Schedule shall not, of itself, constitute a breach of
this paragraph 17.2.
17.3 Subject to the provisions of Schedule 5, only to use the Mobile Equipment
at the Demised Premises.
17.4 Subject to the provisions of Schedule 5, only to use the Strategic Spares
at the Demised Premises or at the premises comprised within the High Marnham
Lease.
18. PREVENT ENCROACHMENTS
18. Not knowingly to permit any owner of any property adjoining or near the
Demised Premises to acquire any rights of way, light or air or other privilege
easement or make any encroachment over against out of or upon the Demised
Premises.
19. ALIENATION
19.1 Save as provided in paragraph 19.2 of this Schedule, in relation to the
whole or any part of those parts of the Demised Premises coloured yellow on Plan
1 annexed to this Lease, on or before 1 April 2000, not to assign, transfer,
underlease, charge, share occupation or part with or share possession, declare
trusts over or otherwise deal with the same in any way whatsoever.
19.2 Not to assign the whole or any part of the Demised Premises save to a
member of Eastern's Group (as such expression is used in the Agreement for
Lease) without first obtaining from the assignee a covenant by deed with
PowerGen to pay the Premium and the rents and other amounts payable hereunder
and to observe and perform all the covenants on the part of Eastern and the
condition as to user set out in paragraph 2 of Schedule 6 in such form as
PowerGen shall reasonably determine having regard, in particular, to its
obligations and liabilities pursuant to the Clawback Debenture.
19.3 Within one month of every assignment, transfer, underlease or charge
affecting the Demised Premises or any devolution of the estate of Eastern
therein or this Lease, to give notice in writing with particulars thereof to
PowerGen and produce such assignment, transfer, underlease or charge or the
Probate of the Will or Letters of Administration or other instrument, document,
or evidence of such devolution or surrender or sharing with a certified copy
thereof and in every case to pay to PowerGen a reasonable registration fee of
not less than (pound)25.00 plus Value Added Tax thereon.
20. COSTS
20. To pay:
(a) all legal costs and other professional fees and disbursements incurred by
PowerGen and the costs and expenses of its duly authorised representatives
in connection with or incidental to every application made by Eastern for a
consent or licence (whether the same be granted or refused or proffered
subject to any lawful qualification or condition or whether the application
be withdrawn);
(b) all expenses including solicitors' costs and surveyors' fees incurred by
PowerGen in contemplation of or incidental to the preparation and service
of a notice under Section 146 of the Law of Property Act 1925 or of
proceedings under Sections 146 and 147 of that Act notwithstanding that in
any such case forfeiture is avoided otherwise than by relief granted by the
Court;
(c) all expenses including solicitors' costs, surveyors' fees and bailiffs'
costs and commission incurred by PowerGen in connection with and incidental
to any breach, non-performance or non-observance of any of the covenants on
the part of Eastern and the conditions contained in this Lease or in
contemplation of the enforcement thereof including (but without prejudice
to the generality of the foregoing) the service of all notices relating to
and schedules recording dilapidations and wants of repair to the Demised
Premises or of any negotiations in respect thereof;
(d) all Value Added Tax incurred by PowerGen on or included in any amount
reimbursable by Eastern to PowerGen under this Lease.
21. VALUE ADDED TAX
21.1 Where any payment due under or by virtue of this Lease or the grant of it
is a payment on which Value Added Tax is or may be chargeable (by reason of an
election of PowerGen or otherwise) to pay the amount of such tax in respect of
the payment at the rate applicable to that payment.
21.2 The Value Added Tax chargeable by reference to the Premium shall be paid on
29 October 1996.
22. ASH AND WASTE PRODUCT DISPOSAL CONTRACTS AND RAILWAY AGREEMENTS
22. Without prejudice to PowerGen's obligations contained in the Agreement for
Lease to use its reasonable endeavours to enter into such agreements for the
disposal of ash and all other Waste and such agreements relating to the
position, use and operation of the railway sidings and any ancillary structures
and equipment serving the Demised Premises from time to time as are necessary
(in Eastern's reasonable opinion) for the safe and proper operation of the Power
Station comprised within the Demised Premises Provided That where such
agreements are required to be obtained due to any exercise by PowerGen of its
rights to relocate the railway sidings and equipment pursuant to paragraph 7 of
Part 3 of Schedule 1 PowerGen shall bear the reasonable costs of such agreement
and Provided Further That nothing contained in this paragraph shall require
Eastern to enter into any such agreements which would constitute renewals of
agreements having expired prior to Completion or new agreements in respect of
which no agreement was in place prior to Completion.
23. COMPLY WITH TITLE MATTERS
23.1 To perform and observe all the covenants, conditions and provisions
contained or referred to in the documents referred to in Parts 5, 6 and 7 of
Schedule 1 so far as the same relate to the Demised Premises and are still
subsisting and capable of being enforced.
23.2 Without prejudice to the generality of paragraph 23.1 above, to permit NGC
and (in relation to sub-paragraph 23.2(i) only) East Midlands Electricity plc
having an interest or right in relation to any part of the Demised Premises
(whether directly or as part of the Estate) to exercise all rights pursuant to:
(i) the Licence to Retain Assets;
(ii) the NGC Lease;
(iii) the Interface Agreement; and
(iv) the Wayleave.
SCHEDULE 4
POWERGEN'S COVENANTS
1. QUIET ENJOYMENT
1. Eastern paying the Premium, the Basic Rent and other rents and charges
payable under this Lease and performing and observing the several covenants and
stipulations on the part of Eastern contained in this Lease may peaceably and
quietly hold and enjoy the Demised Premises during the Term without any lawful
interruption or disturbance from or by PowerGen or any person rightfully
claiming under or in trust for it or by title paramount.
2. WORKS
2.1 On or before the end of July 1997 at PowerGen's cost, to disconnect the
Wide Area Network (being the IT connections from PowerGen headquarters into each
power station's local area network) and to remove all relevant wiring and
related hardware (if any) from the Demised Premises.
2.2 To the extent that the same have not been completed by the date of this
Lease, at PowerGen's cost to carry out the following works within a timetable
agreed with Eastern and otherwise to the reasonable satisfaction of Eastern:
2.2.1 to redirect and transfer the water cooling arrangements subsisting in
relation to Drakelow "C" Power Station so that the water cooling
pipework between Drakelow "C" Power Station and the cooling towers
situated on the Demised Premises shall be direct and shall not pass
through any part of the Retained Land;
2.2.2 to make all necessary arrangements for, and to carry out, the
redirection and transfer of all electrical connections (including the
installation of all necessary electrical works) so that the electrical
connections between Drakelow "C" Power Station and the 275kV/4OOkV
substation adjoining the Demised Premises shall be direct and shall
not pass through the Retained Land (save for the said substation) and
pending such direction shall ensure that the said connections shall be
kept in a condition adequate for the continued use thereof for their
current purposes;
2.2.3 to construct a septic tank on the Demised Premises (for the use of
the Demised Premises and the Sports Club and Lodge adjoining the
Demised Premises) in a position agreed with Eastern, and to construct
all appropriate pipework and conduits to enable Eastern to use the
same;
2.2.4 to demolish and remove the ash-launder on the Demised Premises;
2.2.5 to switch such appropriate valves in order to re-route any water
pipeline currently running from the Demised Premises to Lagoon B and
thereafter running from Lagoon B to the discharge point or points to
which such pipeline connects as and when PowerGen shall consider
appropriate in order that the passage of water from the Demised
Premises shall pass to the outfall on the Demised Premises rather than
passing to Lagoon B.
3. CONTRIBUTION TO EXPENSES
3. Without prejudice to the generality of any other covenant or obligation by
PowerGen, to pay on demand (to Eastern or such other third party as shall be
relevant) a fair proportion of the costs and expenses of making, repairing,
maintaining, rebuilding, renewing, replacing, lighting, insuring, connecting and
cleansing all ways, roads, pavements, bridges, sewers, drains, pipes, channels,
watercourses, gutters, wires, cables, boundary walls, fences, party walls,
structures, open areas and other conveniences (including, for the avoidance of
doubt, the inlet culvert referred to in paragraph 4 of Part 3 of Schedule 1)
which shall at any time belong to or be used for the Retained Land in common
with the Demised Premises or other premises near or adjoining thereto.
4. SUB-STATION
4. To use reasonable endeavours to enforce the obligations on the part of NGC
contained in each of the NGC Lease, the Interface Agreement and the Wayleave and
the obligations on the part of East Midlands Electricity Plc contained in the
License to Retain Assets.
5. OTHER DOCUMENTS
5. To use reasonable endeavours to enforce the obligations on the part of the
grantor in each of the documents referred to in Part 6 of Schedule 1.
6. DECOMMISSIONING AND DEMOLITION
6. To comply with the covenants and obligations on the part of PowerGen
contained in Schedule 5.
7. RATES
7. To pay the rates (other than water rates) in respect of the Demised
Premises for the period ending 31 March 1997 but not thereafter.
SCHEDULE 5
DECOMMISSIONING ARRANGEMENTS
1. When Eastern has ceased using the Demised Premises for the purpose of
generating electricity, it may give PowerGen notice of its intention to require
PowerGen to carry out its obligations under this Schedule.
2. Prior to the Handover Date, Eastern shall ensure that all the electrical
connections and all electrical equipment comprised within the Demised Premises
and, to the extent that it is comprised within the Demised Premises, the
electrical plant and equipment within the NGC substation adjoining the Demised
Premises are made electrically and mechanically safe. Eastern shall comply with
any obligations of NGC in relation thereto.
3. Prior to the Handover Date, Eastern shall ensure that all contracts
relating to the operation and maintenance of the Power Station (save for those
relating to the security thereof) are terminated and that all contractors and
contractors equipment have left the Demised Premises.
4. At the Handover date, such of the Strategic Spares as shall then be in
existence and all of the Mobile Equipment will be returned to PowerGen for its
own absolute use and thereafter such items shall cease to be part of the Demised
Premises.
5. Save insofar as it is legally or physically impossible PowerGen shall
execute and complete the Decommissioning Works in accordance with the provisions
of this Schedule and to the satisfaction of Eastern.
6.1 PowerGen shall commence the Decommissioning works forthwith after the
Handover Date and shall proceed with the same with due expedition and
without delay and shall complete the Decommissioning Works as soon as
reasonably practicable but in any event within twelve months of the
Handover Date;
6.2 on the Handover Date Eastern shall give PowerGen possession of so much of
the Demised Premises as may be required to enable PowerGen to commence to
proceed with the execution of the Decommissioning Works;
6.3 immediately on being given possession of the Demised Premises in accordance
with paragraph 6.2 of this Schedule, PowerGen shall assume responsibility
for the Demised Premises and all materials removed from the Demised
Premises by virtue of the Decommissioning Works;
6.4 PowerGen shall be solely responsible for the transportation off site and
safe disposal of such materials;
6.5 where during the execution of the Decommissioning Works PowerGen discovers
any Hazardous Materials, PowerGen shall immediately do all such things as
may be necessary to ensure the safety of its personnel;
6.6 PowerGen shall comply with all notification and other requirements of Acts
and the reasonable requirements of the Health and Safety Executive and any
delay in and any cost resulting from failure to comply with such
requirements or failure to notify or comply in due time shall be borne by
PowerGen;
6.7 all materials containing or comprised of asbestos in whatever form, which
require removal and disposal shall be removed from the Demised Premises by
a specialist contractor by safe and suitable means and taken to an
authorised asbestos tip and disposed of in an appropriate manner;
6.8 all contractors shall be in possession of a license in force and granted by
the Health and Safety Executive under the Asbestos (Licensing) Regulations
1983 or any subsequent amendment or re-enactment thereof;
6.9 PowerGen shall effect and maintain and shall require sub-contractors to
effect and maintain throughout the continuance of the Decommissioning Works
insurance policies with insurers and under forms and policies satisfactory
to Eastern and shall bear any and all excesses or deductibles incorporated
therein;
6.10 PowerGen shall conform in all respect with the provisions of any Acts and
such rules and regulations of public bodies and companies as aforesaid and
shall keep Eastern indemnified against all penalties and liabilities of
every kind for breach of any such Acts;
6.11 PowerGen shall ensure that all notices required as aforesaid are given
within the time limit specified and the delay in and any cost resulting
from any failure to comply with such requirement shall be borne by
PowerGen; and
6.12 when PowerGen shall consider that the whole of the Decommissioning Works
have been completed in accordance with this schedule PowerGen shall give a
notice to that effect to Eastern. Such notice shall be in writing and shall
be deemed to be a request by PowerGen for Eastern to issue a certificate
that Practical Completion has occurred. Following receipt of such request
Eastern shall
(a) issue a certificate of Practical Completion stating the date on which
in its opinion the Decommissioning Works were completed; or
(b) give instructions to PowerGen in writing specifying all the
Decommissioning Works which in Eastern's opinion require to be done
before the issue of a certificate of Practical Completion;
Provided that at the discretion of Eastern it may issue a certificate when
the Decommissioning Works shall be substantially completed and PowerGen
shall pay to Eastern the sum which, in Eastern's reasonable opinion, shall
fairly reflect the value of any works outstanding, such sum to be payable
on demand and to be recoverable from PowerGen as a debt.
7. For the avoidance of doubt PowerGen shall be entitled to carry out its
obligations under this Schedule by way of the use of contractors.
8. The parties shall arrange memoranda of the Handover Date and the Date of
Practical Completion to be endorsed on this Lease in the spaces provided.
SCHEDULE 6
PROVISOS AGREEMENTS AND DECLARATIONS
1. PREMIUM
1. It is agreed and acknowledged that:
1.1 the Premium represents a single premium for the grant of this Lease and the
High Marnham Lease;
1.2 the Premium has not been, and will not be, apportioned between the Demised
Premises and the premises comprised within the High Marnham Lease;
1.3 the Premium is due in full on the date of this Lease Provided always that,
Eastern observing and performing the covenants on its part and the conditions
contained in this Lease, including those as to payment of the Premium, PowerGen
will accept payment of the Premium in accordance with the provisions of clause 5
of and Schedule 1 to the Agreement for Lease;
1.4 in the event that the Termination of the Term or the Handover Date occurs
at any time when any part or the whole of the Premium is outstanding for
whatever reason, then the whole of the outstanding balance of the Premium shall
immediately become due and payable by Eastern;
1.5 Eastern shall not, and shall procure that no member of the same group of
companies as Eastern shall, seek to agree that any part of the Premium (other
than as mentioned in clause 28 of the Agreement for Lease) should give rise to
any relief or allowance for tax purposes other than as consideration, falling
within section 38(1)(a) of the Transfer of Chargeable Gains Act 1992, given for
the acquisition of its leasehold interests in land under this Lease and the High
Marnham Lease.
2. FORFEITURE
2. This Lease is made on the express condition that if and whenever there
shall be a breach, non-performance or non-observance of the covenant contained
in paragraph 17.1 of Schedule 3 then PowerGen or its agents may at any time
thereafter and notwithstanding the waiver or implied waiver of any previous
right of re-entry arising under this Lease re-enter upon the Demised Premises or
any part thereof in the name of the whole of the Demised Premises whereupon the
Term shall absolutely cease and determine but without prejudice to any rights or
remedies which may then have accrued to PowerGen in respect of payment of the
Premium, arrears of rent or other breach or non-performance or non-observance of
any condition covenant or agreement on the part of Eastern contained in this
Lease or otherwise Provided always that PowerGen shall, if able to do so without
prejudicing its obligations and liabilities under the Clawback Debenture, give
such notice as is reasonably practicable to Eastern prior to exercising its
rights pursuant to this paragraph.
3. NOTICES
3. All notices to be given under this Lease shall be in writing and
Section 196 of the Law of Property Act 1925 as amended by the Recorded Delivery
Service Act 1962 shall apply to the service of all such notices and in case of
any notice to be served on Eastern such notice shall also be duly served if left
at the Demised Premises or sent to the last known address of Eastern.
4. L & T A COMPENSATION EXCLUSION
4. Subject to provisions of sub-section (2) of Section 38 of the Landlord and
Tenant Act 1954 neither Eastern nor any assignee or underlessee (whether
immediate or derivative) of the Term or of the Demised Premises shall be
entitled on quitting the Demised Premises to any compensation under Section 37
of such Act or under any corresponding provisions in any Act amending or
replacing same.
5. INTEREST ON UNPAID RENTS AND OTHER MONEYS
5. If the Basic Rent or any other amounts payable hereunder shall not be paid
to PowerGen within seven days of the due date for payment thereof then Eastern
shall pay to PowerGen with any such sums (but without prejudice to all or any
other rights or remedies of PowerGen under this Lease) interest thereon at the
Prescribed Rate calculated on a day-to-day basis (and compounded with rests on
the Rent Days) from the date on which the same became due and payable or (if
earlier) the date of expenditure by PowerGen down to the date of payment or
reimbursement by Eastern (and as well after as before any judgment).
6. NON-ACQUISITION OF EASEMENTS
6. Except as expressly herein provided Eastern shall not by implication of law
or otherwise be entitled to any estate or any right privilege or easement
whatsoever nor shall Eastern by virtue or in respect of the Demised Premises or
this Lease be deemed to have acquired or to be entitled nor shall it during the
Term acquire or become entitled by length of enjoyment prescription or any other
means to any such estate right privilege or easement.
7. RENT ACCEPTANCE WHEN BREACH EXISTS
7. No demand for or acceptance or receipt of the Basic Rent or any other rents
or any payment on account thereof shall operate as a waiver by PowerGen of any
right which PowerGen may have to forfeit this Lease or re-enter the Demised
Premises by reason of any breach of covenant by Eastern or otherwise
notwithstanding that PowerGen may know or be deemed to know of such at the time
of demand, acceptance or receipt.
8. DISPUTES
8. In the event of any dispute or difference between the parties touching or
concerning any matter or thing arising out of this Lease or as to the rights,
duties or obligations of the parties hereunder, such dispute or difference shall
be referred to some independent and fit person to be nominated by the President
for the time being of the Royal Institution of Chartered Surveyors (save in the
case of any dispute or difference relating to the construction of this Lease
when such nomination shall be made by the President for the time being of the
Law Society) on the application of either party and the decision of such nominee
shall be final and binding on the parties Provided that in every case the
nominee appointed shall be entitled to act as an expert and not as an arbitrator
in any case where he expresses his willingness so to act and neither party
objects to him so acting within twenty-one days of his statement that he is
willing to do so and (subject to the foregoing) the provisions of the
Arbitration Acts 1950-1979 shall apply.
9. LIABILITY FOR INDIRECT DAMAGE
9. Neither party shall be liable to the other for any loss of profit, loss of
use, loss of production, loss of contracts or for any other indirect or
consequential damage that may be suffered by the other.
10. LANDLORD AND TENANT (COVENANTS) ACT 1995
10. This Lease was entered into pursuant to the Agreement for Lease and is not
a new tenancy for the purposes of the Landlord and Tenant (Covenants) Act 1995.
11. JURISDICTION
11. The High Court of Justice in England shall have non-exclusive jurisdiction
to entertain any action or proceedings whatsoever in respect of this Lease or
any provision thereof or any matter or thing arising under or by virtue or
consequent upon this Lease.
<PAGE>
SCHEDULE 7
PART 1
MOBILE EQUIPMENT
ASSET DESCRIPTION IDENTIFICATION NO:
Terrex TS40 Coal Scraper/Loader
Terrex TS40 Coal Scraper/Loader
Terrex TS40 Coal Scraper/Loader
Terrex TS40 Coal Scraper/Loader
JCB 700 Excavator
Caterpillar D8N Bulldozer
Caterpillar D8N Bulldozer
Caterpillar 980C Wheelloader x 2
Schaete Wheelloader
Hunslett Diesel Locomotive
PART 2
STRATEGIC SPARES
The following strategic spares are held in a used but serviceable condition
EE350MW Alternator Rotor, Unit 9/10
EE350MW Generator Stator, Unit 9/10
EE350MW LP1 LP Rotor
EE350MW LP2 LP Rotor
Reyrolle 275k Circuit breaker
The following strategic spares are held in situ or in operation but are surplus
to the requirements for 3 unit operation
1 Cooling tower
1 CW pump
1 River water make-up pump
1 Hydrogen generation plant
1 Unit 11 Generator transformer
<PAGE>
MEMORANDUM OF HANDOVER DATE
The Handover Date referred to in this Lease is ___________________________
SIGNED for an on behalf of ____________________
THIS ______________ day of __________________________________
MEMORANDUM OF DATE OF PRACTICAL COMPLETION
The Date of Practical Completion referred to in this Lease is ______________
SIGNED for and on behalf of ________________
THIS ___________ day of ______________________________
EXECUTED and DELIVERED )
as a DEED by POWERGEN plc )
acting by Philip Hudson, its duly )
authorised attorney in the presence of: )
Exhibit 10(o)
2 JULY 1996
EASTERN MERCHANT PROPERTIES LIMITED
EASTERN MERCHANT GENERATION LIMITED
-----------------------------------------------------------------------
UNDERLEASE
OF COMMERCIAL PREMISES AT
DRAKELOW, BURTON-ON-TRENT, STAFFORDSHIRE
-----------------------------------------------------------------------
SLAUGHTER AND MAY,
35 BASINGHALL STREET,
LONDON EC2V 5DB
<PAGE>
CONTENTS
CLAUSE PAGE
1. INTERPRETATION...................................................... 1
2. DEMISE AND RENT..................................................... 6
3. GENERATION'S COVENANTS.............................................. 7
4. PROPERTIES' COVENANTS............................................... 7
5. PROVISOS............................................................ 7
SCHEDULE 1
Part 1 The Demised Premises......................................... 8
Part 2 The Estate................................................... 8
Part 3 Rights Granted............................................... 8
Part 4 Rights Excepted and Reserved................................. 14
Part 5 Documents referred to in Clause 2............................ 17
Part 6 Ash Pipeline Documents referred to in Clause 2............... 18
Part 7 Permits and other documents referred to in
Clause 2..................................................... 19
SCHEDULE 2
Not used.............................................................18
SCHEDULE 3
Generation's Covenants.............................................. 21
SCHEDULE 4
Properties' Covenants............................................... 29
SCHEDULE 5
Decommissioning Arrangements........................................ 30
SCHEDULE 6
Provisos Agreements and Declarations................................ 31
SCHEDULE 7
Part I Mobile Equipment............................................. 33
Part 2 Strategic Spares............................................. 34
SCHEDULE 8................................................................... 34
<PAGE>
H.M. LAND REGISTRY
LAND REGISTRATION ACTS 1925 - 1986
County and District : Staffordshire, East
Staffordshire
Title Number :
Property : Drakelow "C" Power Station
THIS UNDERLEASE is made on 2 July 1996
BETWEEN:
EASTERN MERCHANT PROPERTIES LIMITED (registered in England and Wales with number
3181383), whose registered office is at Wherstead Park, Wherstead, Ipswich,
Suffolk 1P9 2AQ ("Properties"); and
EASTERN MERCHANT GENERATION LIMITED (registered in England and Wales with number
3116225), whose registered office is at Wherstead Park, Wherstead, Ipswich,
Suffolk 1P9 2AQ
("Generation").
NOW THIS DEED WITNESSES as follows:
1. INTERPRETATION
1.1 Definitions
In this Lease unless the context otherwise requires the following
expressions shall have the following meanings:
"Acts" means Environmental Laws, Planning Acts and any statutes,
statutory instruments, directives, regulations and bylaws which are
relevant to the Demised Premises;
"Agreement for Lease" means the agreement dated 22 November 1995 made
between PowerGen (1) and Eastern Group plc (2) (as amended by a Deed of
Variation dated 2nd July made between the same parties as that
agreement) pursuant to which, inter alia, the Headlease was granted;
"Basic Rent" means the clear yearly rent of Five Hundred
Pounds ((pound)500);
"CEGB" means Central Electricity Generating Board;
"Clawback" means any financial liability arising from the
Clawback Debenture;
<PAGE>
"Clawback Debenture" means the debenture dated 2 November 1990 made
between PowerGen (1) and The Secretary of State for Energy (2);
"Demised Premises" means the land and buildings comprising Drakelow "C"
power station more particularly described in Part 1 of Schedule 1 and
any part together with all buildings now or hereafter during the Term
constructed or erected thereon, all additions, alterations and
improvements thereto and the fixtures, fittings, plant, equipment and
machinery therein (other than tenant's and trade fixtures and fittings
and any plant, machinery and equipment belonging to, or acknowledged by
PowerGen, Properties or Generation as belonging to, The National Grid
Company plc or East Midlands Electricity plc) and the Mobile Equipment
and the Strategic Spares;
"Environment" means all, or any, of the following media, namely the air
(including without limitation the air within buildings and the air
within other natural or man-made structures above or below ground),
water and land and any living organisms or systems supported by those
media;
"Environmental Laws" means the following:
(a) all international, European, Union, national or local
treaties, statutes, directives, legislation, common law or
other laws concerning Environmental Matters and all
regulations and subordinate legislation made thereunder which
are in force at the date of this Lease;
(b) sections 78A - 78Y of the Environmental Act 1990 as amended
and section 161 (as amended) of the Water Resources Act 1990;
and
(c) judicial and administrative interpretation of the
foregoing.
"Environmental Covenant" means the agreement to pay certain sums in
relation to Environmental Liabilities or Remedial Works given by
PowerGen to Eastern Group plc pursuant to clause 11 of the Agreement
for Lease;
"Environmental Liabilities" means liabilities under Environmental Laws
in relation to Environmental Matters including monetary claim, award,
fine, sums agreed by way of settlement, legal and/or consultants fees
or liability to make good, repair, reinstate, treat or clean up the
Demised Premises or (insofar as it is affected by the operation of the
generation of electricity carried on from the Demised Premises) the
Environment in the vicinity of the Demised Premises;
<PAGE>
"Environmental Matters" means:
(a) the disposal, release, spillage, deposit, escape, discharge,
leak or emission of, contact with, and exposure of, any person
to Hazardous Materials or Waste;
(b) the creation of any noise, vibration, radiation, common law or
statutory nuisance, or other adverse impact on the
Environment;
(c) any other matters relating to the condition,
protection, maintenance, restoration or replacement of
the Environment or any part of it arising directly or
indirectly out of the manufacturing, processing,
treatment, keeping, handling, use (including as a
building material), possession, supply, receipt, sale,
purchase, import, export, transportation or presence of
Hazardous Materials or Waste;
"Estate" means the land and premises belonging to PowerGen
more particularly described in Part 2 of Schedule 1;
"Generation" includes its successors in title and assigns;
"Handover Date" means the date being the later of (a) three months
after Generation shall have notified Properties and PowerGen in writing
that it has ceased using the Demised Premises for the generation of
electricity and (b) one month after formal notification has been
received by Properties and PowerGen that the power station within the
Demised Premises has been electrically disconnected from the
275kV/4OOkV substation adjoining the Demised Premises;
"Hazardous Materials" means anything which alone or in combination with
others is capable of causing harm or damage to property or to man or
any other organism supported by the Environment including, without
limitation, hazardous substances, pollutant, contaminants, petroleum,
petroleum products and radio active materials;
"Headlease" means the Lease of even date made between PowerGen and
Properties pursuant to which Properties holds the Demised Premises;
"High Marnham Lease" means the lease of premises comprising High
Marnham Power Station, Newark, Nottinghamshire dated the same date as
this Lease and made between PowerGen (1) and Properties (2);
"Mobile Equipment" means the plant, machinery and equipment
listed in Part 1 of Schedule 7;
<PAGE>
"Mobile Equipment Rent" means the clear yearly rent of Twenty Thousand
Pounds ((pound)20,000) payable in respect of the Mobile Equipment;
"NGC" means The National Grid Company plc;
"Perpetuity Period" means the period expiring on the sooner
of eighty years from the date hereof and the Termination of
the Term;
"Planning Acts" means the Town & Country Planning Act 1990, the
Planning (Listed Buildings and Conservation Areas) Act 1990, the
Planning (Hazardous Substances) Act 1990, the Planning (Consequential
Provisions) Act 1990, the Planning and Compensation Act 1991, the Local
Government and the Land Act 1980, the Local Government (Miscellaneous
Provisions) Act 1982, the Housing and Planning Act 1986 and any Act for
the time being in force of a similar nature and any laws and
regulations intended to control or regulate the construction demolition
alteration or change of use of land or buildings or to preserve or
protect the national heritage;
"PowerGen" means PowerGen plc (registered in England and Wales with
number 2366970 whose registered office is at 53 New Broad Street,
London EC2M 1JJ) and includes the estate owners for the time being of
the reversion immediately expectant on the termination of the
Headlease;
"Prescribed Rate" means two per centum per annum above the Screen Rate,
such rate to apply as well as before any judgment;
"Properties" includes the estate owners for the time being
of the reversion immediately expectant on the Termination of
the Term;
"Rent" means thirty-one million two hundred and fifty thousand pounds
((pound)31,250,000) per annum until the expiration of the eighth year
or the Term and thereafter during the residue of the Term five the
Basic Rent (subject to review in accordance with the terms of Schedule
8);
"Rent Days" means 25th March, 24th June, 29th September and 25th
December in each year and "Relevant Rent Day" shall be construed
accordingly;
"Retained Land" means that part of the Estate which is not
part of the Demised Premises;
"Screen Rate" means, in relation to any relevant period for which an
interest calculation is to be made, the arithmetic mean (rounded to
three decimal places with the mid-point rounded up) of the offered
quotations in Pounds Sterling for
<PAGE>
that period which appear on the relevant page of the Reuter
Monitor Money Rates Services at 11 a.m. (London time) on the
first day of that period;
"Strategic Spares" means the spare plant and equipment listed in Part 2
of Schedule 7 other than any such plant and equipment that has, prior
to the date of this Lease, been affixed to the land and buildings
otherwise comprised within the Demised Premises;
"Term" means the term hereby granted;
"Termination of the Term" means the determination of the
Term whether by effluxion of time, re-entry or otherwise
howsoever;
"Value Added Tax" means Value Added Tax pursuant to the Value Added Tax
Act 1994 and any other tax replacing or supplementing the same from
time to time;
"Waste" includes any unwanted or surplus substance irrespective of
whether it is capable of being recycled or recovered or has any value.
1.2 Construction
This Lease shall, unless the context otherwise requires, be construed
on the basis that:
(A) where the Tenant for the time being comprises more than one
person, covenants and obligations assumed by the Tenant shall
be construed as made by all such persons jointly and
severally;
(B) the Term shall be deemed to commence for all purposes on the
date of commencement specified in clause 2;
(C) references to any Act of Parliament, order, instrument,
regulation, direction or plan shall be deemed also to
refer to any statutory or other modification or
reenactment thereof from time to time in force and to
include any requirement having the force of law in the
United Kingdom and any subordinate legislation, order,
instrument, regulation, direction or plan from time to
time in force made or issued thereunder or deriving
validity therefrom or from any enactment repealed
thereby or under any such modification or re-enactment;
(D) any covenant on the part of Generation not to do any act of
thing shall include an obligation on the part of Generation to
use reasonable endeavours not to permit or suffer such act or
thing;
<PAGE>
(E) words denoting one gender include the other genders and words
denoting persons include firms and corporations and vice
versa:
(F) clause, Schedule, Appendix and paragraph headings shall not
affect the interpretation of this Lease and references to any
clause, Schedule, Appendix and paragraph are references to
clauses, schedules, and appendix and paragraphs of this Lease;
(G) reference to any right exercisable by Properties or any
right exercisable by Generation in common with
Properties shall be construed as including (where
appropriate) the exercise of such right (i) by PowerGen
and all persons authorized by PowerGen pursuant to the
Headlease (ii) in common with all other persons having
a like right and (iii) where under the terms of this
Lease the consent of Properties is required for any
matter or thing the consent of PowerGen under the terms
of the Headlease shall also be required.
2. DEMISE AND RENT
Properties HEREBY DEMISES unto Generation the Demised Premises TOGETHER
WITH so far as Properties is able to grant the same the rights set out
in Part 3 of Schedule 1 EXCEPTING AND RESERVING unto Properties and
PowerGen and to all other persons from time to time entitled thereto
the rights set out in Part 4 of Schedule 1 TO HOLD the Demised Premises
unto Generation SUBJECT TO (and, where relevant and applicable, with
the benefit of) the rights, covenants, obligations and other matters
affecting the Demised Premises and all licenses, consents, permissions
and agreements at the date of this Lease affecting the operation of the
Demised Premises and the power station erected thereon and in
particular (but without prejudice to the generality of the foregoing)
those matters more particularly contained or referred to in the
documents short particulars whereof are set out in Parts 5, 6 and 7 of
Schedule 1 as far as the same relate to the Demised Premises and are
subsisting and capable of taking effect for a term of ninety-nine (99)
years (less three days) commencing on 2nd July 1996 YIELDING AND PAYING
therefor unto Properties without deduction, set-off or counterclaim
(except such as Generation may be required by law to deduct
notwithstanding any stipulation to the contrary), (a) in relation to
the Demised Premises (excluding the Mobile Equipment) yearly during the
Term and so in proportion for any period less than a year, the Rent
which shall be paid whether or not demanded in arrears by equal
quarterly payments on each of the Rent Days and (b), in relation to the
Mobile Equipment, yearly until the Handover Date and so in proportion
for any period less than a year, the Mobile Equipment Rent which shall
be paid
<PAGE>
whether or not demanded in arrear on 10 August in each year the first
payment being made on 10 August 1997 in respect of the year ending 30
June 1997.
3. GENERATION'S COVENANTS
Generation covenants with Properties in manner set out in Schedule 3.
4. PROPERTIES' COVENANTS
Properties covenants with Generation in manner set out in Schedule 4.
5. PROVISOS
It is agreed and declared in manner set out in Schedules 5 and 6.
DULY DELIVERED AS A DEED on the date inserted on page 1.
<PAGE>
SCHEDULE 1
PART 1
THE DEMISED PREMISES
All those pieces or parcels of land and river edged red on Plan 1 annexed hereto
and situate at and forming part of the Estate and known as Drakelow "C" Power
Station, Burton-on-Trent, Staffordshire together with the buildings, plant and
other structures erected thereon.
PART 2
THE ESTATE
All those pieces or parcels of land edged blue on Plan 1 annexed hereto.
PART 3
RIGHTS GRANTED
The following rights (in common with Properties and PowerGen and all others now
or hereafter entitled to the like rights):
1. SUBSTATION RIGHTS/INTERFACE AGREEMENT RIGHTS
(i) The rights contained in Part II and in paragraph 2 of Part V
of the Schedule to a lease of the 275kV/4OOkV substation
adjoining the Demised Premises dated 31st March 1990 and made
between PowerGen (1) and NGC (2);
(ii) The rights in favor of PowerGen contained in an Interface
Agreement dated 31st March 1990 and made between NGC (1) and
PowerGen (2).
2. ROADS
(i) To pass and repass at all times and for all purposes
(with or without vehicles or other plant, machinery,
equipment or otherwise) connected with access to and
egress from that part of the Demised Premises marked
"pump house" on Plan I ("the pump house") and the
bridge on the Retained Land marked "ash bridge" on Plan
1 ("the ash bridge") over and along the road and
footpath on the Retained Land the approximate position
of which is shown colored brown on Plan 1;
(ii) To pass and repass at all times and for all purposes (with or
without vehicles or other plant, machinery or equipment or
otherwise) over the roadway on the Retained Land running
between the points marked C and D on Plan 1;
<PAGE>
(iii) In substitution for the rights granted by sub-
paragraphs (i) and/or (ii) above to pass and
repass at all times along such other road or roads
as may be constructed from time to time during the
Perpetuity Period and designated from time to time
for the purpose (such road or roads being
materially no less convenient as a means of access
to and egress from the pump house and the ash
bridge and around the perimeter of the Demised
Premises as those referred to in sub-paragraphs
2(i) and 2(ii) above) as have not been adopted by
the Local Authority as maintainable by such
Authority SUBJECT TO Generation cleansing,
maintaining, repairing, renewing and replacing the
roads referred to in sub-paragraphs (i), (ii) and
(iii) as and when necessary (in Generation's
reasonable opinion) in order to keep such roads in
adequate repair and condition (provided that there
shall be no obligation to keep such roads in a
better state and condition that they are at the
date hereof) PROVIDED THAT the use of any of the
roads and footpaths referred to in sub-paragraphs
(i), (ii) and (iii) shall be subject to all and
any reasonable regulations as to direction of
traffic flow thereover or other traffic control
arrangements notified by Properties or PowerGen to
Generation in writing.
3. SERVICES
The free and uninterrupted passage and running of water, soil, gas,
electricity and pulverized fuel ash and furnace bottom ash, telephone
and other services from and to the Demised Premises through and along
all conduits mains, pipes, wires and cables or other conducting media
and all or any other services now or hereafter during the Perpetuity
Period provided for the Demised Premises and/or the lighting tower
referred to in paragraph 7 of this Part of this Schedule and/or for the
water cooling towers and sewage works referred to in paragraph 8 of
this Part of this Schedule and laid in under or over the Estate or the
adjoining or neighboring land (if any) belonging to PowerGen or in
under or over any property across which PowerGen shall have rights to
carry the same for the passage of surface water ash slurry and sewage
from and water gas electricity and other services to and from the
Demised Premises SUBJECT TO Generation cleansing, maintaining,
repairing, renewing and replacing such drains, sewers, channels and
watercourses and water, gas, electric and pulverized fuel ash and
furnace bottom ash conduits, mains, pipes, wires and cables or other
conducting media as and when necessary (in Generation's
<PAGE>
reasonable opinion) in order to keep them in good and
substantial repair and condition.
4. INLET CULVERT AND WATER PIPELINE
Without prejudice to the generality of paragraph 3 of this Part of this
Schedule to use the concrete water culvert running under that part of
the Retained Land colored brown on Plan I from the pump house to the
other part of the Demised Premises such pipeline to be used for the
passage of water from the pump house to the Drakelow "C" Power Station
on the Demised Premises and to use the water pipeline running over the
ash bridge and thereafter under the Retained Land to the Demised
Premises SUBJECT TO Generation cleansing, maintaining, repairing,
renewing and replacing the culvert and the water pipeline as and when
necessary (in Generation's absolute discretion with respect to the
inlet culvert and in Generation's reasonable opinion with respect to
the water pipeline) in order to keep the culvert in good and
substantial repair and condition PROVIDED THAT if at any time after
Completion water shall spill, leak or otherwise discharge from such
inlet culvert or water pipeline over the Retained Land as a result of
any damage to the inlet culvert or water pipeline (or any part
thereof), Generation shall be under an obligation to repair, renew or
replace the relevant damaged part of such inlet culvert or water
pipeline running under the Retained Land without unreasonable delay.
5. ASH PIPELINE
Without prejudice to the generality of paragraph 3 of this Part of this
Schedule to use the ash pipeline running under that part of the
Retained Land colored brown on Plan 1 and over the ash bridge between
the point marked "Z" on Plan 1 and the Demised Premises such pipeline
to be used for the passage of ash from the Drakelow "C" Power Station
on the Demised Premises to and over the ash bridge SUBJECT TO
Generation cleansing, maintaining, repairing, renewing and replacing
the pipeline as and when necessary (in Generation's absolute
discretion) in order to keep the pipeline in good and substantial
repair and condition PROVIDED THAT if at any time after Completion ash
shall spill, leak or otherwise discharge from the ash pipeline over the
Retained Land as a result of any damage to that ash pipeline (or any
part thereof), Generation shall be under an obligation to repair, renew
or replace the relevant damaged part of such ash pipeline without
unreasonable delay.
6. ENTRY FOR MAINTENANCE PURPOSES
The right to enter upon the Retained Land (and any other adjoining or
neighboring land over which Properties shall have rights of entry,
insofar as Properties is able to grant
<PAGE>
such rights thereover), at all reasonable times on reasonable written
notice (except in the case of emergency when no notice shall be
required) with or without workmen and others and all necessary
appliances and materials for the purposes of inspecting, maintaining,
cleansing, repairing, renewing and replacing: the roads referred to in
paragraph 2 of this Part of this Schedule; the conducting media
referred to in paragraph 3 of this Part of this Schedule; the inlet
culvert and water pipeline referred to in paragraph 4 of this Part of
this Schedule; the ash pipeline referred to in paragraph 5 of this Part
of this Schedule; the railway sidings, signalbox, cabling and lighting
tower referred to in paragraph 7 of this Part of this Schedule; the
water cooling towers and sewage works referred to in paragraph 8 of
this Part of this Schedule; the electrical and other connections and
switches referred to in paragraph 9 of this Part of this Schedule; the
ash lagoon referred to in paragraph 10 of this Part of this Schedule;
the water discharge points referred to in paragraph 11 of this Part of
this Schedule; the information technology equipment referred to in
paragraph 12 of this Part of this Schedule; the telephone equipment
referred to in paragraph 13 of this Part of this Schedule; the pump
house; the boundary fences surrounding the Demised Premises erected by
Generation in accordance with its covenant contained in paragraph 16.3
of Part 1 of Schedule 3 and any other ducts, conduits, pipes, drains,
channels, watercourses, sewers, wires and cables and other conducting
media and all connections serving the Demised Premises and to exercise
any of the rights granted to Generation and to comply with any of the
obligations on the part of Generation pursuant to this Lease SUBJECT TO
the persons exercising such rights causing as little damage as
reasonably practicable to the Retained Land and making good or
procuring the making good of all damage to the fabric thereof thereby
occasioned.
7. RAILWAY CORRIDOR
The right to use that part of the Retained Land shown colored green on
Plan 1 (or such other part of the Retained Lard as PowerGen in its
absolute discretion shall designate PROVIDED THAT the point at which
the railway corridor joins the Demised Premises shall not be altered
from its current position shown on Plan 1 and PROVIDED FURTHER that
Properties shall not without Generation's agreement, agree that
PowerGen may alter the position of the railway corridor, thereby
interrupt or materially interfere with, or prevent the continued use
of, railway sidings from the Railtrack plc main line as a railway
corridor for the siting of railway sidings to serve the Demised
Premises together with the right (for itself or for Railtrack plc) to
erect (if necessary) in such location as PowerGen shall reasonably
<PAGE>
agree and retain a signalbox on the Retained Land and such cabling
relating to such railway sidings and such signalbox as is necessary
from time to time together with the right to use the lighting tower
marked Y on Plan 1 SUBJECT TO Generation cleansing, maintaining,
repairing, renewing and replacing the sidings, the signalbox and any
associated cabling and the lighting tower as and when necessary (in
Generation's absolute discretion save where Generation is required to
do so pursuant to the provisions of an Agreement dated 28th March 1994
made between British Railways Board (1) and PowerGen (2)) in order to
keep the sidings, the signalbox and any associated cabling and the
lighting tower in good and substantial repair and condition.
8. WATER COOLING TOWERS AND SEWAGE WORKS
To the extent that the relevant works referred to in paragraph 2.2 of
Schedule 4 of the Headlease have not been completed prior to the date
of this Lease, a temporary right to use the water cooling towers and
the sewage works (and the related pipework) now situated on the
Retained Land at all times and for all purposes (in each case, such
right to continue only until PowerGen shall have completed the relevant
works in accordance with the Headlease).
9. ELECTRICAL CONNECTIONS
To the extent that relevant works referred to in paragraph 2.2 of
Schedule 4 of the Headlease have not been completed prior to the date
of this Lease, a temporary right to use the electrical switches,
connections, lines, wires and cables currently situated in the Drakelow
"B" power station and other parts of the Retained Land (other than in
the 275kV/4OOkV substation forming part thereof) such right to continue
only until PowerGen shall have completed the relevant works referred to
in paragraph 2.2 of Schedule 4 of the Headlease.
10. "B" ASH LAGOON
To the extent that the relevant works referred to in paragraph 2.2 of
Schedule 4 of the Headlease have not been completed prior to the date
of this Lease, a temporary right to use the ash lagoon on the Retained
Land marked "Lagoon B" on Plan 1, together with the water pipeline
running thereto from the Demised Premises and the water pipeline
running from Lagoon B to the discharge point or points to which the
pipeline connects, for the passage of water from Drakelow "C" Power
Station on the Demised Premises to and from Lagoon B such right to
continue until the appropriate valves attached to the water pipelines
have been switched by PowerGen in order that the passage of water from
the Demised
<PAGE>
Premises shall pass to the outfall on the Demised Premises rather than
passing to Lagoon B.
11. DISCHARGE OF WATER
The right to use whichever points of discharge of water are required
for the operational use of the Drakelow "C" Power Station insofar as
such points of discharge are situated on the Retained Land SUBJECT TO
Generation cleansing, maintaining, repairing, renewing and replacing
the same as and when necessary (in Generation's absolute discretion).
12. EMERGENCY ACCESS
A right of way without interference through the Retained Land in the
event of fire or other emergency.
13. INFORMATION TECHNOLOGY EQUIPMENT
(i) A temporary right to use the information technology equipment
and all cabling and ancillary apparatus currently situated in
Drakelow "B" Power Station until such time as Generation's
information technology equipment is installed in Drakelow "C"
Power Station (and in any event such right shall continue only
until 31st July 1997 at the latest);
(ii) A right to move the aforesaid information technology equipment
from Drakelow "B" Power Station to Drakelow "C" Power Station
SUBJECT TO the persons exercising such rights causing as
little damage as reasonably practicable to the Retained Land
and making good or procuring the making good of all damage to
the fabric thereof thereby occasioned.
14. TELEPHONE EQUIPMENT AND CABLING
(i) A temporary right to use the telephone equipment and cabling
relating thereto currently situated in Drakelow "B" Power
Station until the earlier of:
(a) Generation moving the aforesaid telephone equipment
and cabling from Drakelow "B" Power Station to
Drakelow "C" Power Station; and
(b) 31st July 1997;
(ii) A right to move the aforesaid telephone equipment from
Drakelow "B" Power Station to Drakelow "C" Power Station
SUBJECT TO the persons exercising such rights causing as
little damage as reasonably practicable to the Retained Land
and making good or procuring the
<PAGE>
making good of all damage to the fabric thereof thereby
occasioned.
15. WORKS TO AND USE OF ADJOINING PREMISES
At all times during the Term without reference to Properties or
PowerGen or making any compensation to Properties therefor to:
(a) execute or permit or suffer the execution of works or
alterations on or to the Demised Premises or the demolition,
rebuilding, alteration or extension of any buildings or
structures now or hereafter erected on such Demised Premises;
(b) use or deal with the Demised Premises and such buildings and
premises thereon in such manner as Generation may in its
absolute discretion think fit;
provided that such rights shall be exercised so as to cause as little
inconvenience to PowerGen as is reasonably practicable and any physical
damage caused to the Retained Land as a result of the exercise of such
rights shall be made good to the reasonable satisfaction of PowerGen at
the expense of the person causing such damage.
PART 4
RIGHTS EXCEPTED AND RESERVED
1. ROADS
The right to pass and repass at all times and for all purposes
connected with access to and egress from the Retained Land over and
along that part of the road on the Demised Premises running between
points E and C as shown on Plan 1, such right to extend to all persons
who are from time to time permitted by PowerGen to fish along the bank
of the River Trent within the Retained Land and to all persons entitled
(upon reasonable proof of identity and entitlement) to obtain access to
the wildlife reserve situated on the Retained Land for such time as the
said reserve remains in existence.
2. NEW ROAD
The right, after the Date of Practical Completion, to construct a road
across the Demised Premises between the points marked A and B on Plan 1
and thereafter the right to pass and repass at all times and for all
purposes connected with access to and egress from one part of the
Retained Land to another part of the Retained Land over and along such
road PROVIDED THAT neither the position, construction,
<PAGE>
retention or use of the road shall interfere with the uninterrupted use
and enjoyment by Generation of the water outfall situated in or on the
Demised Premises or of the railway sidings situated on the Demised
Premises or the Retained Land PROVIDED THAT PowerGen or Properties
shall keep such road in good and substantial repair and condition and
PROVIDED FURTHER THAT Generation shall be entitled to block off or
remove such road temporarily if reasonably necessary to carry out other
works of repair, maintenance or construction on the Demised Premises
subject to Generation having given reasonable written notice of such
works to Properties and PowerGen and Generation causing as little
damage as reasonably practicable to such road and making good or
procuring the making good of all damage to the fabric thereof thereby
occasioned.
3. SERVICES
The free and uninterrupted passage and running of water, soil, gas,
electricity, telephone and other services from and to all other
buildings and premises on the Retained Land through and along all
conduits, pipes, drains, channels, watercourses, sewers, wires and
cables or other conducting media which are now or may hereafter during
the Perpetuity Period be in over or under the Demised Premises together
with the right to connect into the same.
4. ENTRY FOR WORKS AND FOR PURPOSES OF THIS LEASE
The rights to enter the Demised Premises at all times in case of
emergency and otherwise at all reasonable times on reasonable notice
with or without workmen and others and all necessary appliances and
materials for the purpose of:
(a) decommissioning and demolishing the Drakelow "A" and
"B" power stations comprised within the Retained Land;
(b) inspecting, maintaining, cleansing, repairing, altering,
testing, renewing and replacing, laying and making connections
to the said ducts, conduits, pipes, drains, channels,
watercourses, sewers, wires, and cables and other conducting
media and all connections serving the Retained Land;
(c) carrying out all works, operations or acts or doing any thing
whatsoever comprised within PowerGen's obligations in respect
of the Estate or (whether or not within the same) for which
Generation is liable hereunder to make a contribution; and
(d) for any purpose mentioned in paragraph 5 of Schedule 3 to the
Clawback Debenture or in any of the documents mentioned in
Part 5 of this Schedule
<PAGE>
the persons exercising such rights causing as little damage as
reasonably practicable to the Demised Premises and making good or
procuring the making good of all damage to the fabric thereof thereby
occasioned.
5. ENTRY FOR POWERGEN'S WORKS
To the extent that any of the works which are referred to in paragraph
2 of Schedule 4 of the Headlease or are otherwise the obligation of
PowerGen pursuant to the Agreement for Lease have not been completed
prior to the date of this Lease, the right to enter upon the Demised
Premises at reasonable times and on reasonable written notice (save in
case of emergency) with or without workmen and others and all necessary
vehicles, plant, machinery, equipment, appliances and materials in
order to carry out and complete the same.
6. WORKS TO AND USE OF ADJOINING PREMISES
At all times during the Term without reference to Generation or making
any compensation to Generation therefor to:
(a) execute or permit or suffer the execution of works or
alterations on or to the Retained Land or the
demolition, rebuilding, alteration or extension of any
buildings or structures (including, but without
prejudice to the generality of the foregoing, the
demolition and decommissioning of the said Drakelow "A"
and "B" power station) now or hereafter erected on such
Retained Land;
(b) use or deal with the Retained Land and such buildings and
premises thereon in such manner as PowerGen may in its
absolute discretion think fit.
7. ACCESS FOR ENVIRONMENTAL INSPECTION
If PowerGen or Properties is, or reasonably believes that it may be,
liable under the Environmental Covenant or the Environmental Laws in
respect of the Demised Premises, a right to enter the Demised Premises
at reasonable times and upon reasonable written notice (save in case of
emergency) with or without workmen, surveyors, consultants and all
other persons authorized by PowerGen and/or Properties together with
all necessary vehicles, plant, machinery, appliances and materials for
the purpose of environmental inspection and the carrying out of all
tests, surveys and reports as PowerGen shall in its absolute discretion
consider appropriate whether on or under the surface of the Demised
Premises and whether or not the same causes any damage to the Demised
Premises PROVIDED THAT, in exercising such right, PowerGen or
Properties (as appropriate) shall
<PAGE>
(a) make good or procure the making good of any damage so
caused;
(b) cause as little disruption and interference as reasonably
practicable to the business carried on upon the Demised
Premises;
(c) comply with all reasonable regulations or instructions
issued by Eastern;
(d) ensure that adequate insurance cover against all insurable
third party liability claims is maintained in respect of the
works carried out under this paragraph 7.
8. EMERGENCY ACCESS
A right of way without interference through the Demised Premises in the
event of fire or other emergency.
9. SPORTS FACILITIES
The right for ex-employees of CEGB and PowerGen (upon reasonable proof
of identity and status) who are members of the sports and social club,
to use the sports ground and sports and social facilities situated on
the Demised Premises at all reasonable times in accordance with the
normal hours of use thereof and in compliance with the rules and
regulations from time to time of the sports and social club.
PART 5
DOCUMENTS REFERRED TO IN CLAUSE 2
DATE Nature of Document Parties
10th July 1950 Conveyance C F Gothard (1)
British Electricity
Authority
(2)
23rd January 1987 Conveyance CECB (1)
D Lewis and
K M Willoughby (2)
15th March 1988 Deed of Grant D Lewis and K M
Willoughby (1)
CEGB (2)
31st March 1990 Deed of Grant PowerGen (1) NGC
(2)
<PAGE>
31st March 1990 Interface Agreement NGC (1) PowerGen
("Interface (2)
Agreement")
30th March 1990 Licence to Retain CEGB (PowerGen
Assets Division)(1)
("Licence to Retain East Midlands
Assets") Electricity
Board (2)
31st March 1990 Lease ("NGC Lease") PowerGen (1) NGC
(2)
20th February Wayleave Agreement PowerGen (1)
1995 ("Wayleave East Midlands
Agreement") Electricity
plc (2)
14th March 1988 Conveyance CEGB (1) R A
Bullivant (2)
22nd March 1995 Transfer PowerGen (1)
Roger Bullivant
Limited (2)
26th July 1962 Lease CEGB (1)
Trent River Board
(2)
PART 6
ASH PIPELINE DOCUMENTS REFERRED TO IN CLAUSE 2
26th February 1970 Licence British Waterways
Board (1)
CEGB (2)
29th April 1970 Deed of Grant Midland Gravel Co.
Ltd (1)
CEGB (2)
17th January 1972 Deed of Grant Marley Tile Company
Ltd
(1)
CEGB (2)
24th November 1971 Deed of Grant Sharp Bros & Knight
Ltd
(1)
CEGB (2)
<PAGE>
18th May 1972 Deed of Grant Staffordshire
County
Council (1)
CEGB (2)
13th December 1960 Deed of Grant Personal
Representatives of
G D Flatt (1)
CEGB (2)
25th January 1961 Agreement British Transport
Commission (1)
CEGB Midlands and
East
Midlands Regions
(2)
16th September 1963 Deed of Easement Branston Gravels
Limited (1)
CEGB (2)
26th September 1962 Agreement British Transport
Commission (1)
CEGB Midlands
Project
Group (2)
PART 7
PERMITS AND OTHER DOCUMENTS REFERRED TO IN CLAUSE 2
Date Document Parties
2nd September 1963 Agreement for the South Staffordshire
supply of mains Waterworks Co Ltd
water to Drakelow (1)
"C" Power Station CEGB (2)
9th December 1970 Supplemental South Staffordshire
Agreement increase Waterworks Co Ltd
in supply of water (1) CEGB (2)
to 909,000 gallons
per day
20th April 1959 Consent to Ministry of Power
extension of
existing Drakelow
Generating Station
23rd December 1960 Variation of terms Ministry of Power
of consent of 20
April 1959
22nd February 1966 License to Trent River
abstract water Authority
<PAGE>
21st March 1986 Consent for a Severn Trent Water
discharge, Authority
Reference Number:
S34/S/7/275
28th December 1990 Land Drainage National Rivers
Consent, Newbold Authority
Quarry pipeline
and outfall
Consent Reference:
UT 2116
7th April 1993 IPC Authorisation Her Majesty's
Reference AA2925 Inspectorate
of Pollution
14th July 1994 Variation of IPC Her Majesty's
Authorisation Inspectorate
of Pollution
27th March 1995 Variation of IPC Her Majesty's
Authorisation Inspectorate
of Pollution
23rd June 1995 Variation of IPC Her Majesty's
Authorisation Inspectorate
of Pollution
SCHEDULE 2:
(not used)
<PAGE>
SCHEDULE 3:
GENERATION'S COVENANTS
1. PAY RENT
To pay to Properties the Rent, the Mobile Equipment Rent and other
amounts payable under this Lease at the times and in manner as provided
herein without any deduction, set-off or counterclaim except as
aforesaid.
2. PAY OUTGOINGS
To pay and discharge all existing and future rates, taxes, duties,
charges, assessments, impositions and outgoings whatsoever (whether
parliamentary, parochial, local or of any other description and whether
or not of a capital or revenue or non-recurring nature and event though
of a wholly novel character) ("charges") which are now or may at any
time hereafter be assessed, charged, levied or imposed upon or payable
in respect of the Demised Premises or on or by any estate owner,
landlord, tenant or occupier in respect thereof (except (subject to
paragraphs 21(d) and 22 of this Part of this Schedule) any charges or
Clawback payable by PowerGen occasioned by receipt of any sums due
under the Headlease hereunder or by the ownership of, or an actual
dealing (including the grant of the Headlease and this Lease) by
PowerGen with, its reversionary interest in the Demised Premises or any
interest immediately or mediately reversionary to this Lease) and
PROVIDED THAT Generation shall only be liable hereunder to pay rates
(other than water rates) for the period from 1st April 1997.
3. COMMON EXPENSES
Without prejudice to the generality of any other covenant by
Generation, to pay on demand a fair proportion of the costs and
expenses of making, repairing, maintaining, rebuilding, renewing,
replacing, lighting, insuring, connecting and cleansing all ways,
roads, pavements, bridges, sewers, drains, pipes, channels,
watercourses, gutters, wires, cables, boundary walls, fences, party
walls, structures, open areas and other conveniences which shall at any
time belong to or be used for the Demised Premises in common with other
premises near or adjoining thereto.
4. REPAIR
4.1 Subject to PowerGen's obligations under the Environmental Covenant and
subject to paragraphs 4.2 and 4.3 of this Part of this Schedule and
taking into account the state and condition of the Demised Premises at
the date of this Lease and subject to wear and tear and use of the
Demised Premises as a power station, to keep the Demised Premises safe;
<PAGE>
4.2 Without prejudice to the generality of, and notwithstanding
paragraph 4.1 above, to comply fully with any obligation
contained or referred to in any of the documents listed in
Parts 5, 6 and 7 of Schedule 1 for or relating to the
repair, maintenance or renewing, replacing or rebuilding of
anything comprised in, or anything in, under or on, the
Demised Premises;
4.3 Subject to the provisions of Schedule 5, to keep the Strategic Spares
(so far as any of the same has not been affixed to the Demised Premises
during the Term) and the Mobile Equipment, so far as practicable
available for use.
5. CONDUCT OF SITE
Prior to the Handover Date, save as may arise as a result of using the
Demised Premises in accordance with paragraph 17 of this Schedule, not
to do or permit anything to be done at or on the Demised Premises as
shall materially increase the actual or contingent liabilities of
PowerGen pursuant to the covenant on its part contained in paragraph 6
of Schedule 4 or its obligations under Schedule 5 of the Headlease.
6. YIELD UP
At the Termination of the Term:
6.1 Immediately to make any payment then due to Properties
pursuant to this Lease; and
6.2 To yield up the Demised Premises (including the Mobile
Equipment and the Strategic Spares so far as the same
are still subsisting) unto Properties as shall be in
accordance with the covenants and conditions contained
in or imposed by virtue of this Lease and, unless
released from compliance by Properties, to remove from
the Demised Premises all tenant's and trade fixtures
and fittings and Generation's furniture and effects and
to remove any sign, writing or painting of the name or
business of Generation and other persons from the
Demised Premises.
7. TRANSFER OF LICENSES, ETC.
As soon as practicable after yielding up the Demised Premises to
deliver up to Properties all written permissions, permits, licenses and
authorisations for the operation of the Demised Premises and to use all
reasonable endeavours to transfer or assign (to the extent possible and
at Properties' cost and expense) to Properties or PowerGen (as the case
may require) all such permissions, permits, licenses and authorisations
in the name of Generation and where the consent of a third party is
required for such
<PAGE>
assignment or transfer to join with PowerGen and/or Properties in the
making of any necessary application therefore and to supply such
assistance and information therewith as PowerGen and/or Properties
shall reasonably require Provided always that Generation shall not be
obliged to act as surety or guarantor or give any other form of
security in relation to any such transfer or assignment.
8. DECOMMISSIONING AND DEMOLITION
To comply with the covenants and obligations on the part of Generation
contained in Schedule 5.
9. Permit entry for Landlord and others
9.1 To permit Properties and PowerGen and their servants, and
other agents, their contractors and workmen and, to the
extent lawfully entitled, the owner, tenants and occupiers
of any adjoining or neighboring premises and their
respective servants, agents and workmen with all necessary
plant, machinery, equipment, tools and appliances at all
times in case of emergency and otherwise at any reasonable
times on reasonable prior notice without interruption or
interference and subject to such safety requirements as
Generation shall reasonably require to enter upon the
Demised Premises and remain thereon for such period as shall
be necessary:
(a) to examine the Demised Premises to ensure that nothing has
been done or omitted which constitutes or may be or tend to be
a breach or nonperformance of any of the covenants contained
in this Lease or the Headlease;
(b) to exercise any rights excepted and reserved to Properties or
PowerGen or such owners, tenants and occupiers and for any
other purpose properly connected with the interest of
Properties or PowerGen in the Demised Premises;
(c) to inspect the Demised Premises for all purposes connected
with the operation or implementation, or the proposed
implementation, of Schedule 5 to the Headlease and Schedule 5
hereof and Generation shall furnish such information for the
said purposes as may reasonably be requested by PowerGen.
9.2 To permit the persons authorized by, or referred to in, paragraph 5 of
Schedule 3 to the Clawback Debenture to enter upon the Demised Premises
for the purposes therein mentioned.
<PAGE>
10. REMEDY WANTS OF REPAIR AND ENTRY FOR LANDLORD ON DEFAULT
Forthwith to proceed to repair and make good all wants of repair and
defects of which notice shall be given by Properties and/or PowerGen to
Generation and which Generation shall be liable to repair or make good
provided always that if within two months or such shorter period as is
reasonable from the date of such notice Generation shall fail to
commence to repair and make good the matters prescribed in such notice
then it shall be lawful for PowerGen, Properties and all persons
authorized by either or them with workmen, servants, agents and others
with or without all necessary plant, machinery, equipment, tools and
appliances to enter into and stay upon the Demised Premises and repair
and make good the same at the expense of Generation (but so that
Properties' right of entry or any other right or remedy of Properties
under this Lease shall not thereby be prejudiced).
11. NOTICES
As soon as practicable after receipt by Generation of any notice or
communication from a competent authority affecting Properties or
PowerGen's interest in the Demised Premises to give to Properties and
PowerGen a copy thereof.
12. STATUTORY REQUIREMENTS
12.1 Save as provided in the Environmental Covenant, at the
expense of Generation to comply with all Environmental
Laws, Planning Acts and the Electricity Act 1989
relating to the Demised Premises or the use thereof and
to execute at its own expense any work required to be
carried out in or to the Demised Premises whether such
work is required to be carried out by the owner or the
occupier or any other person.
12.2 Save as provided in the Environmental Covenant, not at
any time to do omit or permit on or about the Demised
Premises any act or thing by reason of which Properties
or PowerGen may under any such European Laws, Planning
Acts and the Electricity Act 1989 incur or have imposed
upon it or becoming liable to pay any levy penalty
damages compensation costs charges or expenses Provided
that use of the Demised Premises in accordance with
paragraph 17 of this Part of this Schedule and the
PowerGen Standards shall not, of itself, constitute
breach of this paragraph 12.2.
12.3 Save as provided in the Environmental Covenant, to obtain all
licenses, permissions and consents and to execute and do all
works and things and to bear and pay all expenses required or
imposed by any such
<PAGE>
Environmental Laws, Planning Acts and the Electricity Act 1989
in respect of any works carried out by Eastern on the Demised
Premises or of any user thereof.
13. ALTERATIONS
Prior to the Handover Date, if Generation make any alterations or
additions in or to the Demised Premises which materially increase
PowerGen's obligations pursuant to paragraph 6 of Schedule 4 and the
provisions of Schedule 5 to the Headlease, then, save for alterations
or additions required to comply with the provisions of paragraph 12 of
this Schedule, Generation shall pay to Properties the reasonable
increase in cost and expense incurred by PowerGen in complying with its
said obligations.
14. SIGNS
Prior to the Handover Date, to display at the main and other entrances
to the Demised Premises appropriate signs indicating that Generation is
in occupation thereof and in all relevant locations appropriate warning
signs and/or other instructional notices to those persons who may, from
time to time, be upon the Demised Premises.
15. FIRE PRECAUTIONS
Prior the Handover Date, at all times during the Term at the expense of
Generation to comply with all recommendations (whether legally
enforceable or not) from time to time of the appropriate authority in
relation to fire precautions affecting the Demised Premises and to keep
and maintain sufficient fire fighting and extinguishing apparatus in
and about the Demised Premises installed in compliance with such
recommendations and with any legal requirements and any requirements of
any insurer of the Demised Premises.
16. SECURING PREMISES
16.1 Prior to the Handover Date, at all times of the day or night to keep
the Demised Premises fully secured against intruders, unauthorised
persons, vandalism and to provide such security arrangements and
systems as may be necessary to comply with any requirement of any
appropriate authority (whether legally enforceable or not).
16.2 Prior to the Handover Date, to maintain all external and security
lighting in good condition and fully operational during night time
working hours.
16.3 To erect and thereafter until the Handover Date maintain in a proper
state of repair and condition such boundary fencing as is required for
the safe operation of the Power Station
<PAGE>
at the Demised Premises or as is required by any statutory or other
body or pursuant to any statutory or other obligation.
17. USER
17.1 Prior to 31st March 2000 not to use those parts of the
Demised Premises which are hatched black on Plan 1 annexed
to this Lease such that their use is other than an activity
for which an exemption or licence is required under Sections
5 or 6 of the Electricity Act 1989 or involving the
distribution of electricity in so far as it does not require
a licence under Section 6 of that Act and, subject thereto,
to use the Demised Premises for the purposes of electricity
generation substantially from the plant and equipment
comprised in the Demised Premises at the date of this Lease
and for other purposes ancillary thereto.
17.2 Prior to the Handover Date, to use all reasonable endeavours
(a) not at any time to use the Demised Premises or any part
thereof nor permit or suffer the same to be used in any way
or for any purpose which may unnecessarily be a nuisance,
damage or disturbance to the owners or occupiers of any
premises adjoining or near the Demised Premises or the
neighbourhood and (b) to use and operate the Demised
Premises in such manner as engenders and fosters good
relations with the communities in the locality of the
Demised Premises and any representatives of such communities
and, in particular, but without prejudice to the generality
of the foregoing (i) to ensure that all lorries and other
heavy or wide goods vehicles having access to the Demised
Premises comply with all formal and informal agreements with
such local communities and representatives including
relating to the use of certain routes and any restrictions
on the times or days at which such routes can be used, (ii)
to take steps to inform the local communities of any unusual
operations at the Demised Premises.
Provided always that use of the Demised Premises in accordance with
paragraph 17.1 of this Schedule shall not, of itself, constitute a
breach of this paragraph 17.2.
17.3 Subject to the provisions of Schedule 5, only to use the Mobile
Equipment at the Demised Premises.
17.4 Subject to the provisions of Schedule 5, only to use the Strategic
Spares at the Demised Premises or at the premises comprised within the
High Marnham Lease.
18. PREVENT ENCROACHMENTS
Not knowingly to permit any owner of any property, adjoining or near
the Demised Premises to acquire any rights of way,
<PAGE>
light or air or other privilege easements or make any encroachment over
against out of or upon the Demised Premises.
19. ALIENATION
19.1 Save as provided in paragraph 19.2 of this Schedule, in
relation to the whole or any part of those parts of the
Demised Premises colored yellow on Plan 1 annexed to this
Lease, on or before 1st April 2000, not to assign, transfer,
underlease, charge, share occupation or part with or share
possession, declare trusts over or otherwise deal with the
same in any way whatsoever.
19.2 Not to assign the whole or any part of the Demised Premises
save to a member of Eastern's Group (as such expression is
used in the Agreement for Lease) without first obtaining
from the assignee a covenant by deed with Properties and
PowerGen to pay the rents and other amounts payable
hereunder and to observe and perform all the covenants on
the part of Generation and the condition as to user set out
in paragraph 2 of Schedule 6 in such form as Properties and
PowerGen shall reasonably determine having regard, in
particular, to PowerGen's obligations and liabilities
pursuant to the Clawback Debenture.
19.3 Within one month of every assignment, transfer, underlease
or charge affecting the Demised Premises or any devolution
of the estate of Generation therein or this Lease, to give
notice in writing with particulars thereof to Properties and
PowerGen and produce such assignment, transfer, underlease
or charge or the Probate of the Will or Letters of
Administration or other instrument, document, or evidence of
such devolution or surrender or sharing with a certified
copy thereof and in every case to pay to PowerGen a
reasonable registration fee of not less than(pound)25.00 plus
Value Added Tax thereon.
20. COSTS
To pay:
(a) all legal costs and other professional fees and
disbursements incurred by Properties and PowerGen and
the costs and expenses of its duly authorized
representatives in connection with or incidental to
every application made by Generation for a consent or
licence (whether the same be granted or refused or
proffered subject to any lawful qualification or
condition or whether the application be withdrawn);
(b) all expenses including solicitors' costs and surveyors' fees
incurred by Properties and/or PowerGen in
<PAGE>
contemplation of or incidental to the preparation and service
of a notice under Section 146 of the Law of Property Act 1925
or of proceedings under Sections 146 and 147 of that Act
notwithstanding that in any such case forfeiture is avoided
otherwise than by relief granted by the Court;
(c) all expenses including solicitors' costs, surveyors'
fees and bailiffs' costs and commission incurred by
Properties and PowerGen in connection with and
incidental to any breach, non-performance or non-
observance of any of the covenants on the part of
Generation and the conditions contained in this Lease
or in contemplation of the enforcement thereof
including (but without prejudice to the generality of
the foregoing) the service of all notices relating to
and schedules recording dilapidations and wants of
repair to the Demised Premises or of any negotiations
in respect thereof;
(d) all Value Added Tax incurred by Properties and/or PowerGen on
or included in any amount reimbursable by Generation to
Properties under this Lease.
21. VALUE ADDED TAX
Where any payment due under or by virtue of this Lease or the grant of
it is a payment on which Value Added Tax is or may be chargeable (by
reason of an election of PowerGen or otherwise) to pay the amount of
such tax in respect of the payment at the rate applicable to that
payment.
22. ASH AND WASTE PRODUCTS DISPOSAL CONTRACTS AND RAILWAY
AGREEMENTS
Without prejudice to PowerGen's obligations contained in the Agreement
for Lease to use its reasonable endeavours to enter into such
agreements for the disposal of ash and all other Waste and such
agreements relating to the position, use and operation of the railway
sidings and any ancillary structures and equipment serving the Demised
Premises from time to time as are necessary (in Generation's reasonable
opinion) for the safe and proper operation of the Power Station
comprised within the Demised Premises PROVIDED THAT nothing contained
in this paragraph shall require Generation to enter into any such
agreements which would constitute renewals of agreements having expired
prior to Completion or new agreements in respect of which no agreement
was in place prior to Completion.
<PAGE>
23. COMPLY WITH TITLE MATTERS
23.1 To perform and observe all the covenants, conditions and provisions
contained or referred to in the documents referred to in Parts 5, 6 and
7 of Schedule 1 so far as the same relate to the Demised Premises and
are still subsisting and capable of being enforced.
23.2 To perform and observe all the covenants, conditions and provisions
affecting the Demised Premises and on the part of the Landlord to be
observed and performed contained in the Headlease (except the covenants
to pay the Premium (as defined in the Headlease) and the rents payable
thereunder).
23.3 Without prejudice to the generality of paragraph 23.1 above, to permit
NGC and (in relation to sub-paragraph 23.2(i) only) East Midlands
Electricity plc having an interest or right in relation to any part of
the Demised Premises (whether directly or as part of the Estate) to
exercise all rights pursuant to:
(i) the Licence to Retain Assets;
(ii) the NGC Lease;
(iii) the Interface Agreement; and
(iv) the Wayleave.
24. HANDOVER
On the Handover Date Generation shall give Properties and PowerGen
possession of so much of the Demised Premises as may be required to
enable PowerGen to comply with its obligations set out in Schedule 5 to
the Headlease.
SCHEDULE 4:
PROPERTIES' COVENANTS
1. QUIET ENJOYMENT
Generation paying the Rent and other rents and charges payable under
this Lease and performing and observing the several covenants and
stipulations on the part of Generation contained in this Lease may
peaceably and quietly hold and enjoy the Demised Premises during the
Term without any lawful interruption or disturbance from or by
Properties or any person rightfully claiming under or in trust for it
or by title paramount.
<PAGE>
2. PERFORMANCE OF THE HEADLEASE
To pay the rents reserved by the Headlease and to perform so far as
Generation is not liable for such performance under the terms of this
Lease the covenants and conditions on the part of the lessee contained
in the Headlease.
3. POWERGEN'S CONSENT
To take all reasonable steps to obtain the consent of PowerGen wherever
Generation makes application for any consent required under this Lease
where the consent of both Properties and PowerGen is needed by virtue
of this Lease and the Headlease.
4. ENFORCE THE HEADLEASE
At the request of Generation to take all reasonable steps to enforce
the covenants on the part of PowerGen contained in the Headlease.
5. CONTRIBUTION TO EXPENSES
Without prejudice to the generality of any other covenant or obligation
by Properties, to pay on demand (to Generation or PowerGen or such
other third party as shall be relevant) a fair proportion of the costs
and expenses of making, repairing, maintaining, rebuilding, renewing,
replacing, lighting, insuring, connecting and cleansing all ways,
roads, pavements, bridges, sewers, drains, pipes, channels,
watercourses, gutters, wires, cables, boundary walls, fences, party
walls, structures, open areas and other conveniences (including, for
the avoidance of doubt, the inlet culvert referred to in paragraph 4 of
Part 3 of Schedule 1) which shall at any time belong to or be used for
the Retained Land in common with the Demised Premises or other premises
near or adjoining thereto.
SCHEDULE 5:
DECOMMISSIONING ARRANGEMENTS
1. When Generation has ceased using the Demised Premises for the purpose
of generating electricity, it may give Properties and PowerGen notice
of its intention to require Properties to enforce PowerGen's covenant
to carry out its obligations under Schedule 5 of the Headlease pursuant
to paragraph 4 of Schedule 4 of the Headlease.
2. Prior to the Handover Date, Generation shall ensure that all the
electrical connections and all electrical equipment comprised within
the Demised Premises and, to the extent that it is comprised within the
Demised Premises, the
<PAGE>
electrical plant and equipment within the NGC substation adjoining the
Demised Premises are made electrically and mechanically safe.
Generation shall comply with any obligation of NGC in relation thereto.
3. Prior to the Handover Date, Generation shall ensure that all contracts
relating to the operation and maintenance of the Power Station (save
for those relating to the security thereof) are terminated and that all
contractors and contractors equipment have left the Demised Premises.
4. At the Handover Date, such of the Strategic Spares as shall then be in
existence and all of the Mobile Equipment will be returned to
Properties (or if Properties so requires) PowerGen for its own absolute
use and thereafter such items shall cease to be part of the Demised
Premises.
SCHEDULE 6:
PROVISOS AGREEMENTS AND DECLARATIONS
1. FORFEITURE
This Lease is made on the express condition that if and whenever there
shall be a breach, non-performance or non-observance of the covenant
contained in paragraph 17.1 of Schedule 3 then Properties or its agents
may at any time thereafter and notwithstanding the waiver or implied
waiver of any previous right of re-entry arising under this Lease
re-enter upon the Demised Premises or any part thereof in the name of
the whole of the Demised Premises whereupon the Term shall absolutely
cease and determine but without prejudice to any rights or remedies
which may then have accrued to Properties in respect of payment of the
rent or other breach or non-performance or non-observance of any
condition covenant or agreements on the part of Generation contained in
this Lease or otherwise Provided always that if PowerGen gives notice
to Properties prior to exercising its rights pursuant to this
paragraph, Properties shall give to Generation a copy of such notice as
soon as practicable following receipt.
2. NOTICES
All notices to be given under this Lease shall be in writing and
Section 196 of the Law of Property Act 1925 as amended by the Recorded
Delivery Service Act 1962 shall apply to the service of all such
notices and in case of any notice to be served on Generation such
notice shall also be duly served if left at the Demised Premises or
sent to the last known address of Generation.
<PAGE>
3. L & T A COMPENSATION EXCLUSION
Subject to the provisions of sub-section (2) of Section 38 of the
Landlord and Tenant Act 1954 neither Generation nor any assignee or
underlessee (whether immediate or derivative) of the Term or of the
Demised Premises shall be entitled on quitting the Demised Premises to
any compensation under Section 37 of such Act or under any
corresponding provisions in any Act amending or replacing the same.
4. INTEREST ON UNPAID RENTS AND OTHER MONEYS
If the Rent or any other amounts payable hereunder shall not be paid to
Properties within seven days of the due date for payment thereof then
Generation shall pay to Properties with any such sums (but without
prejudice to all or any other rights or remedies of Properties under
this Lease) interest thereon at the Prescribed Rate calculated on a
day-to-day basis (and compounded with rests on the Rent Days) from the
date on which the same became due and payable or (if earlier) the date
of expenditure by Properties down to the date of payment or
reimbursement by Generation (and as well after as before any judgment).
6. NON-ACQUISITION OF EASEMENTS
Except as expressly herein provided Generation shall not by implication
of law or otherwise be entitled to any estate or any right privilege or
easement whatsoever nor shall Generation by virtue or in respect of the
Demised Premises or this Lease be deemed to have acquired or be
entitled nor shall it during the Term acquire or become entitled by
length of enjoyment prescription or any other means to any such estate
right privilege or easement.
7. RENT ACCEPTANCE WHEN BREACH EXISTS
No demand for or acceptance or receipt of the Rent or any other rents
or any payment on account thereof shall operate as a waiver by
Properties of any right which Properties may have to forfeit this Lease
or re-enter the Demised Premises by reason of any breach of covenant by
Generation or otherwise notwithstanding that Properties may know or be
deemed to know of such at the time of demand, acceptance or receipt.
8. DISPUTES
In the event of any dispute or difference between the parties touching
or concerning any matter or thing arising out of this Lease or as to
the rights, duties or obligations of the parties hereunder, such
dispute or difference shall be referred to some independent and fit
person to be nominated by the President for the time being of the Royal
Institution of
<PAGE>
Chartered Surveyors (save in the case of any dispute or difference
relating to the construction of this Lease when such nomination shall
be made by the President for the time being of the Law Society) on the
application of either party and the decision of such nominee shall be
final and binding on the parties Provided that in every case the
nominee appointed shall be entitled to act as an expert and not as an
arbitrator in any case where he expresses his willingness so to act and
neither party objects to him so acting within twenty-one days of his
statement that he is willing to do so and (subject to the foregoing)
the provisions of the Arbitration Acts 1950- 1979 shall apply.
9. LIABILITY FOR INDIRECT DAMAGE
Neither party shall be liable to the other for any loss of profit, loss
of use, loss of production, loss of contracts or for any other indirect
or consequential damage that may be suffered by the other.
10. JURISDICTION
The High Court of Justice in England shall have non-exclusive
jurisdiction to entertain any action or proceedings whatsoever in
respect of this Lease or any provision thereof or any matter or thing
arising under or by virtue or consequent upon this Lease.
SCHEDULE 7
PART I
MOBILE EQUIPMENT
ASSET DESCRIPTION IDENTIFICATION NO:
Terrex TS40 Coal Scraper/Loader
Terrex TS40 Coal Scraper/Loader
Terrex TS40 Coal Scraper/Loader
Terrex TS40 Coal Scraper/Loader
JCB 700 Excavator
Caterpillar D8N Bulldozer
Caterpillar D8N Bulldozer
Caterpillar 980C Wheelloader x 2
Schaefe Wheelloader
<PAGE>
Hunslett Diesel Locomotive
PART 2
STRATEGIC SPARES
The following strategic spares are held in a used but serviceable
condition
EE35OMW Alternator Rotor, Unit 9/10
EE35OMW Generator Stator, Unit 9/10
EE35OMW LPI LP Rotor
EE35OMW LP2 LP Rotor
Reyrolle 275kV Circuit breaker
The following strategic spares are held in situ or in operation but are surplus
to the requirements for 3 unit operation
1 Cooling tower
1 CW pump
1 River water make-up pump
1 Hydrogen generation plant
1 Unit 11 Generator transformer
SCHEDULE 8
1.1 In this Schedule "review date" means the expiration of the eighth year
of the Term and every fifth year thereafter and 'review period' means
the period starting with any review date up to the next review date or,
in the case of the final review period, starting with the last review
date up to the end of the Term.
1.2 Properties may by giving to Generation prior written notice elect to
review the Rent on any review date. The Rent thirty-one million two
hundred and fifty thousand pounds ((pound)31,250,000) during each
successive review period shall be ascertained as herein provided
subject only to the provisions of clause 1.4(E) of this Schedule.
1.3 Such revised Rent for any review period may be agreed at any
time between Properties and Generation or (in the absence of
agreement) determined not earlier than the relevant review
date by an arbitrator such arbitrator to be nominated in the
absence of agreement by or on behalf of the President for the
time being of the Royal Institution of Chartered Surveyors on
the application of Properties or Generation made not earlier
than six months before the relevant review date but not later
than the end of the relevant review period and so that in the
case of such arbitration the revised Rent to be awarded by the
arbitrator shall be such as he shall decide is the yearly rent
<PAGE>
at which the Demised Premises might reasonably be expected to
be let at the relevant review date:
(A) On the following assumptions at that date:
(i) that the Demised Premises:
(a) are available to let on the open market
without a fine or premium with vacant
possession by a willing landlord to a
willing tenant for a the residue then
unexpired of the term of this lease;
(b) are to be let subject to the terms of this
Lease (other than the amount of the rent
hereby reserved but including the provisions
for review of that rent);
(B) But disregarding any increase in rental value of the
Demised Premises attributable to the existence at the
relevant review date of any improvement to the Demised
Premises or any part thereof carried out with consent
where required otherwise than in pursuance of an
obligation to Properties or its predecessors in title
except obligations requiring compliance with statutes or
directions of local authorities or other bodies
exercising powers under statute or Royal Charter either
(a) by Generation its sub-tenants or their respective
predecessors in title during the term or during any
period of occupation prior thereto arising out of an
agreement to grant such term or (b) by any tenant or sub-
tenant of the Demised Premises before the commencement of
the Term so long as the Properties or its predecessors in
title have not since the improvement was carried out had
vacant possession of the relevant part of the Demised
Premises.
1.4 it is hereby further provided in relation to the ascertainment
and payment of revised Rent as follows:-
(A) The arbitration shall be conducted in accordance with the
Arbitration Acts 1950 and 1979 or any statutory
modification or re-enactment thereof for the time being
in force with the further provision that if the
arbitrator nominated pursuant to sub-clause 1.3 hereof
shall die or decline to act as the President for the time
being of the Royal Institution of Chartered Surveyors or
the person acting on his behalf may on the application of
either the Properties or Generation by writing discharge
the arbitrator and appoint another in his place
(B) When the amount of any Rent to be ascertained or payable as
herein provided shall have been so ascertained or
<PAGE>
payable a memoranda thereof shall thereupon be signed by or on
behalf of Properties and Generation and annexed to this lease
and counterpart thereof and the parties shall bear their own
costs in respect thereof.
(C) (i) If the revised Rent payable on and from any
review date has not been agreed by that review date
Rent shall continue to be payable at the rate
previously payable and forthwith upon the revised
rent being ascertained:
(a) Generation shall pay to Properties any
shortfall between the Rent and the revised
Rent payable up to and on the preceding
quarter day together with interest on any
shortfall at the seven-day deposit rate of
National Westminster Bank plc such interest to
be calculated on a day-to-day basis from the
relevant review date on which it would have
been payable if the revised Rent had then been
ascertained to the date of actual payment of
any shortfall; and
(b) Properties shall pay to Generation any excess
between the Rent and the revised Rent payable
up to and on the preceding quarter day
together with interest in any excess at the
seven day deposit rate of National Westminster
Bank PLC on the same basis as in sub-paragraph
(a) of this present sub-clause (C)(i).
(ii) For the purposes of this proviso the revised Rent
shall be deemed to have been ascertained on the date
when the same has been agreed between Properties and
Generation or as the case may be the date of the
award of the arbitrator.
(D) If either Properties or Generation shall fail to pay any costs
awarded against it in an arbitration under the provisions
hereof within twenty-one days of the same being demanded by
the arbitrator the other shall be entitled to pay the same and
the amount so paid shall be repaid by the party chargeable on
demand.
<PAGE>
(E) If the Handover Date shall fall at any time on or after the
eighth anniversary of the Term the Rent payable hereunder
shall from the Handover Date become the Basic Rent unless and
until otherwise reviewed on the next or any subsequent review
date.
EXECUTED as a DEED )
under the COMMON SEAL )
of EASTERN MERCHANT )
PROPERTIES LIMITED )
in the presence of:
Authorized Signatory
EXECUTED as a DEED )
under the COMMON SEAL )
of EASTERN MERCHANT )
GENERATION LIMITED )
in the presence of: )
Authorized Signatory
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<NAME> TXU EASTERN HOLDINGS LTD
<MULTIPLIER> 1,000,000
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<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> FEB-05-1998
<PERIOD-END> MAR-31-1999
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<TOTAL-NET-UTILITY-PLANT> 2,516
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<TOTAL-CURRENT-ASSETS> 1,234
<TOTAL-DEFERRED-CHARGES> 3,819
<OTHER-ASSETS> 0
<TOTAL-ASSETS> 8,583
<COMMON> 1,467
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0
0
<LONG-TERM-DEBT-NET> 3,654
<SHORT-TERM-NOTES> 353
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0
<CAPITAL-LEASE-OBLIGATIONS> 782
<LEASES-CURRENT> 261
<OTHER-ITEMS-CAPITAL-AND-LIAB> 1,727
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<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
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