Exhibit 10(m)
2nd JULY 1996
EASTERN MERCHANT PROPERTIES LIMITED
EASTERN MERCHANT GENERATION LIMITED
------------------------------
UNDERLEASE
of commercial premises at
High Marnham, Newark, Nottinghamshire
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Slaughter and May,
35 Basinghall Street,
London EC2V 5DB
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
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.
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).
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)
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)
SCHEDULE 2:
(not used)
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.
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
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