Exhibit 10(n)
2 July 1996
POWERGEN plc
EASTERN MERCHANT PROPERTIES LIMITED
=========================================
LEASE
of commercial premises at
Drakelow, Burton-on-Trent, Staffordshire
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CERTIFIED TO BE A TRUE COPY
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)
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)
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)
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.
[MAP]
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.
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.
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
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: )