Exhibit 10(o)
2 JULY 1996
EASTERN MERCHANT PROPERTIES LIMITED
EASTERN MERCHANT GENERATION LIMITED
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UNDERLEASE
OF COMMERCIAL PREMISES AT
DRAKELOW, BURTON-ON-TRENT, STAFFORDSHIRE
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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.............................................. 7
4. PROPERTIES' COVENANTS............................................... 7
5. PROVISOS............................................................ 7
SCHEDULE 1
Part 1 The Demised Premises......................................... 8
Part 2 The Estate................................................... 8
Part 3 Rights Granted............................................... 8
Part 4 Rights Excepted and Reserved................................. 14
Part 5 Documents referred to in Clause 2............................ 17
Part 6 Ash Pipeline Documents referred to in Clause 2............... 18
Part 7 Permits and other documents referred to in
Clause 2..................................................... 19
SCHEDULE 2
Not used.............................................................18
SCHEDULE 3
Generation's Covenants.............................................. 21
SCHEDULE 4
Properties' Covenants............................................... 29
SCHEDULE 5
Decommissioning Arrangements........................................ 30
SCHEDULE 6
Provisos Agreements and Declarations................................ 31
SCHEDULE 7
Part I Mobile Equipment............................................. 33
Part 2 Strategic Spares............................................. 34
SCHEDULE 8................................................................... 34
H.M. LAND REGISTRY
LAND REGISTRATION ACTS 1925 - 1986
County and District : Staffordshire, East
Staffordshire
Title Number :
Property : Drakelow "C" Power Station
THIS UNDERLEASE is made on 2 July 1996
BETWEEN:
EASTERN MERCHANT PROPERTIES LIMITED (registered in England and Wales with number
3181383), whose registered office is at Wherstead Park, Wherstead, Ipswich,
Suffolk 1P9 2AQ ("Properties"); and
EASTERN MERCHANT GENERATION LIMITED (registered in England and Wales with number
3116225), whose registered office is at Wherstead Park, Wherstead, Ipswich,
Suffolk 1P9 2AQ
("Generation").
NOW THIS DEED WITNESSES as follows:
1. INTERPRETATION
1.1 Definitions
In this Lease unless the context otherwise requires the following
expressions shall have the following meanings:
"Acts" means Environmental Laws, Planning Acts and any statutes,
statutory instruments, directives, regulations and bylaws which are
relevant to the Demised Premises;
"Agreement for Lease" means the agreement dated 22 November 1995 made
between PowerGen (1) and Eastern Group plc (2) (as amended by a Deed of
Variation dated 2nd July made between the same parties as that
agreement) pursuant to which, inter alia, the Headlease was granted;
"Basic Rent" means the clear yearly rent of Five Hundred
Pounds ((pound)500);
"CEGB" means Central Electricity Generating Board;
"Clawback" means any financial liability arising from the
Clawback Debenture;
"Clawback Debenture" means the debenture dated 2 November 1990 made
between PowerGen (1) and The Secretary of State for Energy (2);
"Demised Premises" means the land and buildings comprising Drakelow "C"
power station more particularly described in Part 1 of Schedule 1 and
any part together with all buildings now or hereafter during the Term
constructed or erected thereon, all additions, alterations and
improvements thereto and the fixtures, fittings, plant, equipment and
machinery therein (other than tenant's and trade fixtures and fittings
and any plant, machinery and equipment belonging to, or acknowledged by
PowerGen, Properties or Generation as belonging to, The National Grid
Company plc or East Midlands Electricity plc) and the Mobile Equipment
and the Strategic Spares;
"Environment" means all, or any, of the following media, namely the air
(including without limitation the air within buildings and the air
within other natural or man-made structures above or below ground),
water and land and any living organisms or systems supported by those
media;
"Environmental Laws" means the following:
(a) all international, European, Union, national or local
treaties, statutes, directives, legislation, common law or
other laws concerning Environmental Matters and all
regulations and subordinate legislation made thereunder which
are in force at the date of this Lease;
(b) sections 78A - 78Y of the Environmental Act 1990 as amended
and section 161 (as amended) of the Water Resources Act 1990;
and
(c) judicial and administrative interpretation of the
foregoing.
"Environmental Covenant" means the agreement to pay certain sums in
relation to Environmental Liabilities or Remedial Works given by
PowerGen to Eastern Group plc pursuant to clause 11 of the Agreement
for Lease;
"Environmental Liabilities" means liabilities under Environmental Laws
in relation to Environmental Matters including monetary claim, award,
fine, sums agreed by way of settlement, legal and/or consultants fees
or liability to make good, repair, reinstate, treat or clean up the
Demised Premises or (insofar as it is affected by the operation of the
generation of electricity carried on from the Demised Premises) the
Environment in the vicinity of the Demised Premises;
"Environmental Matters" means:
(a) the disposal, release, spillage, deposit, escape, discharge,
leak or emission of, contact with, and exposure of, any person
to Hazardous Materials or Waste;
(b) the creation of any noise, vibration, radiation, common law or
statutory nuisance, or other adverse impact on the
Environment;
(c) any other matters relating to the condition,
protection, maintenance, restoration or replacement of
the Environment or any part of it arising directly or
indirectly out of the manufacturing, processing,
treatment, keeping, handling, use (including as a
building material), possession, supply, receipt, sale,
purchase, import, export, transportation or presence of
Hazardous Materials or Waste;
"Estate" means the land and premises belonging to PowerGen
more particularly described in Part 2 of Schedule 1;
"Generation" includes its successors in title and assigns;
"Handover Date" means the date being the later of (a) three months
after Generation shall have notified Properties and PowerGen in writing
that it has ceased using the Demised Premises for the generation of
electricity and (b) one month after formal notification has been
received by Properties and PowerGen that the power station within the
Demised Premises has been electrically disconnected from the
275kV/4OOkV substation adjoining the Demised Premises;
"Hazardous Materials" means anything which alone or in combination with
others is capable of causing harm or damage to property or to man or
any other organism supported by the Environment including, without
limitation, hazardous substances, pollutant, contaminants, petroleum,
petroleum products and radio active materials;
"Headlease" means the Lease of even date made between PowerGen and
Properties pursuant to which Properties holds the Demised Premises;
"High Marnham Lease" means the lease of premises comprising High
Marnham Power Station, Newark, Nottinghamshire dated the same date as
this Lease and made between PowerGen (1) and Properties (2);
"Mobile Equipment" means the plant, machinery and equipment
listed in Part 1 of Schedule 7;
"Mobile Equipment Rent" means the clear yearly rent of Twenty Thousand
Pounds ((pound)20,000) payable in respect of the Mobile Equipment;
"NGC" means The National Grid Company plc;
"Perpetuity Period" means the period expiring on the sooner
of eighty years from the date hereof and the Termination of
the Term;
"Planning Acts" means the Town & Country Planning Act 1990, the
Planning (Listed Buildings and Conservation Areas) Act 1990, the
Planning (Hazardous Substances) Act 1990, the Planning (Consequential
Provisions) Act 1990, the Planning and Compensation Act 1991, the Local
Government and the Land Act 1980, the Local Government (Miscellaneous
Provisions) Act 1982, the Housing and Planning Act 1986 and any Act for
the time being in force of a similar nature and any laws and
regulations intended to control or regulate the construction demolition
alteration or change of use of land or buildings or to preserve or
protect the national heritage;
"PowerGen" means PowerGen plc (registered in England and Wales with
number 2366970 whose registered office is at 53 New Broad Street,
London EC2M 1JJ) and includes the estate owners for the time being of
the reversion immediately expectant on the termination of the
Headlease;
"Prescribed Rate" means two per centum per annum above the Screen Rate,
such rate to apply as well as before any judgment;
"Properties" includes the estate owners for the time being
of the reversion immediately expectant on the Termination of
the Term;
"Rent" means thirty-one million two hundred and fifty thousand pounds
((pound)31,250,000) per annum until the expiration of the eighth year
or the Term and thereafter during the residue of the Term five the
Basic Rent (subject to review in accordance with the terms of Schedule
8);
"Rent Days" means 25th March, 24th June, 29th September and 25th
December in each year and "Relevant Rent Day" shall be construed
accordingly;
"Retained Land" means that part of the Estate which is not
part of the Demised Premises;
"Screen Rate" means, in relation to any relevant period for which an
interest calculation is to be made, the arithmetic mean (rounded to
three decimal places with the mid-point rounded up) of the offered
quotations in Pounds Sterling for
that period which appear on the relevant page of the Reuter
Monitor Money Rates Services at 11 a.m. (London time) on the
first day of that period;
"Strategic Spares" means the spare plant and equipment listed in Part 2
of Schedule 7 other than any such plant and equipment that has, prior
to the date of this Lease, been affixed to the land and buildings
otherwise comprised within the Demised Premises;
"Term" means the term hereby granted;
"Termination of the Term" means the determination of the
Term whether by effluxion of time, re-entry or otherwise
howsoever;
"Value Added Tax" means Value Added Tax pursuant to the Value Added Tax
Act 1994 and any other tax replacing or supplementing the same from
time to time;
"Waste" includes any unwanted or surplus substance irrespective of
whether it is capable of being recycled or recovered or has any value.
1.2 Construction
This Lease shall, unless the context otherwise requires, be construed
on the basis that:
(A) where the Tenant for the time being comprises more than one
person, covenants and obligations assumed by the Tenant shall
be construed as made by all such persons jointly and
severally;
(B) the Term shall be deemed to commence for all purposes on the
date of commencement specified in clause 2;
(C) references to any Act of Parliament, order, instrument,
regulation, direction or plan shall be deemed also to
refer to any statutory or other modification or
reenactment thereof from time to time in force and to
include any requirement having the force of law in the
United Kingdom and any subordinate legislation, order,
instrument, regulation, direction or plan from time to
time in force made or issued thereunder or deriving
validity therefrom or from any enactment repealed
thereby or under any such modification or re-enactment;
(D) any covenant on the part of Generation not to do any act of
thing shall include an obligation on the part of Generation to
use reasonable endeavours not to permit or suffer such act or
thing;
(E) words denoting one gender include the other genders and words
denoting persons include firms and corporations and vice
versa:
(F) clause, Schedule, Appendix and paragraph headings shall not
affect the interpretation of this Lease and references to any
clause, Schedule, Appendix and paragraph are references to
clauses, schedules, and appendix and paragraphs of this Lease;
(G) reference to any right exercisable by Properties or any
right exercisable by Generation in common with
Properties shall be construed as including (where
appropriate) the exercise of such right (i) by PowerGen
and all persons authorized by PowerGen pursuant to the
Headlease (ii) in common with all other persons having
a like right and (iii) where under the terms of this
Lease the consent of Properties is required for any
matter or thing the consent of PowerGen under the terms
of the Headlease shall also be required.
2. DEMISE AND RENT
Properties HEREBY DEMISES unto Generation the Demised Premises TOGETHER
WITH so far as Properties is able to grant the same the rights set out
in Part 3 of Schedule 1 EXCEPTING AND RESERVING unto Properties and
PowerGen and to all other persons from time to time entitled thereto
the rights set out in Part 4 of Schedule 1 TO HOLD the Demised Premises
unto Generation SUBJECT TO (and, where relevant and applicable, with
the benefit of) the rights, covenants, obligations and other matters
affecting the Demised Premises and all licenses, consents, permissions
and agreements at the date of this Lease affecting the operation of the
Demised Premises and the power station erected thereon and in
particular (but without prejudice to the generality of the foregoing)
those matters more particularly contained or referred to in the
documents short particulars whereof are set out in Parts 5, 6 and 7 of
Schedule 1 as far as the same relate to the Demised Premises and are
subsisting and capable of taking effect for a term of ninety-nine (99)
years (less three days) commencing on 2nd July 1996 YIELDING AND PAYING
therefor unto Properties without deduction, set-off or counterclaim
(except such as Generation may be required by law to deduct
notwithstanding any stipulation to the contrary), (a) in relation to
the Demised Premises (excluding the Mobile Equipment) yearly during the
Term and so in proportion for any period less than a year, the Rent
which shall be paid whether or not demanded in arrears by equal
quarterly payments on each of the Rent Days and (b), in relation to the
Mobile Equipment, yearly until the Handover Date and so in proportion
for any period less than a year, the Mobile Equipment Rent which shall
be paid
whether or not demanded in arrear on 10 August in each year the first
payment being made on 10 August 1997 in respect of the year ending 30
June 1997.
3. GENERATION'S COVENANTS
Generation covenants with Properties in manner set out in Schedule 3.
4. PROPERTIES' COVENANTS
Properties covenants with Generation in manner set out in Schedule 4.
5. PROVISOS
It is agreed and declared in manner set out in Schedules 5 and 6.
DULY DELIVERED AS A DEED on the date inserted on page 1.
SCHEDULE 1
PART 1
THE DEMISED PREMISES
All those pieces or parcels of land and river edged red on Plan 1 annexed hereto
and situate at and forming part of the Estate and known as Drakelow "C" Power
Station, Burton-on-Trent, Staffordshire together with the buildings, plant and
other structures erected thereon.
PART 2
THE ESTATE
All those pieces or parcels of land edged blue on Plan 1 annexed hereto.
PART 3
RIGHTS GRANTED
The following rights (in common with Properties and PowerGen and all others now
or hereafter entitled to the like rights):
1. SUBSTATION RIGHTS/INTERFACE AGREEMENT RIGHTS
(i) The rights contained in Part II and in paragraph 2 of Part V
of the Schedule to a lease of the 275kV/4OOkV substation
adjoining the Demised Premises dated 31st March 1990 and made
between PowerGen (1) and NGC (2);
(ii) The rights in favor of PowerGen contained in an Interface
Agreement dated 31st March 1990 and made between NGC (1) and
PowerGen (2).
2. ROADS
(i) To pass and repass at all times and for all purposes
(with or without vehicles or other plant, machinery,
equipment or otherwise) connected with access to and
egress from that part of the Demised Premises marked
"pump house" on Plan I ("the pump house") and the
bridge on the Retained Land marked "ash bridge" on Plan
1 ("the ash bridge") over and along the road and
footpath on the Retained Land the approximate position
of which is shown colored brown on Plan 1;
(ii) To pass and repass at all times and for all purposes (with or
without vehicles or other plant, machinery or equipment or
otherwise) over the roadway on the Retained Land running
between the points marked C and D on Plan 1;
(iii) In substitution for the rights granted by sub-
paragraphs (i) and/or (ii) above to pass and
repass at all times along such other road or roads
as may be constructed from time to time during the
Perpetuity Period and designated from time to time
for the purpose (such road or roads being
materially no less convenient as a means of access
to and egress from the pump house and the ash
bridge and around the perimeter of the Demised
Premises as those referred to in sub-paragraphs
2(i) and 2(ii) above) as have not been adopted by
the Local Authority as maintainable by such
Authority SUBJECT TO Generation cleansing,
maintaining, repairing, renewing and replacing the
roads referred to in sub-paragraphs (i), (ii) and
(iii) as and when necessary (in Generation's
reasonable opinion) in order to keep such roads in
adequate repair and condition (provided that there
shall be no obligation to keep such roads in a
better state and condition that they are at the
date hereof) PROVIDED THAT the use of any of the
roads and footpaths referred to in sub-paragraphs
(i), (ii) and (iii) shall be subject to all and
any reasonable regulations as to direction of
traffic flow thereover or other traffic control
arrangements notified by Properties or PowerGen to
Generation in writing.
3. SERVICES
The free and uninterrupted passage and running of water, soil, gas,
electricity and pulverized fuel ash and furnace bottom ash, telephone
and other services from and to the Demised Premises through and along
all conduits mains, pipes, wires and cables or other conducting media
and all or any other services now or hereafter during the Perpetuity
Period provided for the Demised Premises and/or the lighting tower
referred to in paragraph 7 of this Part of this Schedule and/or for the
water cooling towers and sewage works referred to in paragraph 8 of
this Part of this Schedule and laid in under or over the Estate or the
adjoining or neighboring land (if any) belonging to PowerGen or in
under or over any property across which PowerGen shall have rights to
carry the same for the passage of surface water ash slurry and sewage
from and water gas electricity and other services to and from the
Demised Premises SUBJECT TO Generation cleansing, maintaining,
repairing, renewing and replacing such drains, sewers, channels and
watercourses and water, gas, electric and pulverized fuel ash and
furnace bottom ash conduits, mains, pipes, wires and cables or other
conducting media as and when necessary (in Generation's
reasonable opinion) in order to keep them in good and
substantial repair and condition.
4. INLET CULVERT AND WATER PIPELINE
Without prejudice to the generality of paragraph 3 of this Part of this
Schedule to use the concrete water culvert running under that part of
the Retained Land colored brown on Plan I from the pump house to the
other part of the Demised Premises such pipeline to be used for the
passage of water from the pump house to the Drakelow "C" Power Station
on the Demised Premises and to use the water pipeline running over the
ash bridge and thereafter under the Retained Land to the Demised
Premises SUBJECT TO Generation cleansing, maintaining, repairing,
renewing and replacing the culvert and the water pipeline as and when
necessary (in Generation's absolute discretion with respect to the
inlet culvert and in Generation's reasonable opinion with respect to
the water pipeline) in order to keep the culvert in good and
substantial repair and condition PROVIDED THAT if at any time after
Completion water shall spill, leak or otherwise discharge from such
inlet culvert or water pipeline over the Retained Land as a result of
any damage to the inlet culvert or water pipeline (or any part
thereof), Generation shall be under an obligation to repair, renew or
replace the relevant damaged part of such inlet culvert or water
pipeline running under the Retained Land without unreasonable delay.
5. ASH PIPELINE
Without prejudice to the generality of paragraph 3 of this Part of this
Schedule to use the ash pipeline running under that part of the
Retained Land colored brown on Plan 1 and over the ash bridge between
the point marked "Z" on Plan 1 and the Demised Premises such pipeline
to be used for the passage of ash from the Drakelow "C" Power Station
on the Demised Premises to and over the ash bridge SUBJECT TO
Generation cleansing, maintaining, repairing, renewing and replacing
the pipeline as and when necessary (in Generation's absolute
discretion) in order to keep the pipeline in good and substantial
repair and condition PROVIDED THAT if at any time after Completion ash
shall spill, leak or otherwise discharge from the ash pipeline over the
Retained Land as a result of any damage to that ash pipeline (or any
part thereof), Generation shall be under an obligation to repair, renew
or replace the relevant damaged part of such ash pipeline without
unreasonable delay.
6. ENTRY FOR MAINTENANCE PURPOSES
The right to enter upon the Retained Land (and any other adjoining or
neighboring land over which Properties shall have rights of entry,
insofar as Properties is able to grant
such rights thereover), at all reasonable times on reasonable written
notice (except in the case of emergency when no notice shall be
required) with or without workmen and others and all necessary
appliances and materials for the purposes of inspecting, maintaining,
cleansing, repairing, renewing and replacing: the roads referred to in
paragraph 2 of this Part of this Schedule; the conducting media
referred to in paragraph 3 of this Part of this Schedule; the inlet
culvert and water pipeline referred to in paragraph 4 of this Part of
this Schedule; the ash pipeline referred to in paragraph 5 of this Part
of this Schedule; the railway sidings, signalbox, cabling and lighting
tower referred to in paragraph 7 of this Part of this Schedule; the
water cooling towers and sewage works referred to in paragraph 8 of
this Part of this Schedule; the electrical and other connections and
switches referred to in paragraph 9 of this Part of this Schedule; the
ash lagoon referred to in paragraph 10 of this Part of this Schedule;
the water discharge points referred to in paragraph 11 of this Part of
this Schedule; the information technology equipment referred to in
paragraph 12 of this Part of this Schedule; the telephone equipment
referred to in paragraph 13 of this Part of this Schedule; the pump
house; the boundary fences surrounding the Demised Premises erected by
Generation in accordance with its covenant contained in paragraph 16.3
of Part 1 of Schedule 3 and any other ducts, conduits, pipes, drains,
channels, watercourses, sewers, wires and cables and other conducting
media and all connections serving the Demised Premises and to exercise
any of the rights granted to Generation and to comply with any of the
obligations on the part of Generation pursuant to this Lease SUBJECT TO
the persons exercising such rights causing as little damage as
reasonably practicable to the Retained Land and making good or
procuring the making good of all damage to the fabric thereof thereby
occasioned.
7. RAILWAY CORRIDOR
The right to use that part of the Retained Land shown colored green on
Plan 1 (or such other part of the Retained Lard as PowerGen in its
absolute discretion shall designate PROVIDED THAT the point at which
the railway corridor joins the Demised Premises shall not be altered
from its current position shown on Plan 1 and PROVIDED FURTHER that
Properties shall not without Generation's agreement, agree that
PowerGen may alter the position of the railway corridor, thereby
interrupt or materially interfere with, or prevent the continued use
of, railway sidings from the Railtrack plc main line as a railway
corridor for the siting of railway sidings to serve the Demised
Premises together with the right (for itself or for Railtrack plc) to
erect (if necessary) in such location as PowerGen shall reasonably
agree and retain a signalbox on the Retained Land and such cabling
relating to such railway sidings and such signalbox as is necessary
from time to time together with the right to use the lighting tower
marked Y on Plan 1 SUBJECT TO Generation cleansing, maintaining,
repairing, renewing and replacing the sidings, the signalbox and any
associated cabling and the lighting tower as and when necessary (in
Generation's absolute discretion save where Generation is required to
do so pursuant to the provisions of an Agreement dated 28th March 1994
made between British Railways Board (1) and PowerGen (2)) in order to
keep the sidings, the signalbox and any associated cabling and the
lighting tower in good and substantial repair and condition.
8. WATER COOLING TOWERS AND SEWAGE WORKS
To the extent that the relevant works referred to in paragraph 2.2 of
Schedule 4 of the Headlease have not been completed prior to the date
of this Lease, a temporary right to use the water cooling towers and
the sewage works (and the related pipework) now situated on the
Retained Land at all times and for all purposes (in each case, such
right to continue only until PowerGen shall have completed the relevant
works in accordance with the Headlease).
9. ELECTRICAL CONNECTIONS
To the extent that relevant works referred to in paragraph 2.2 of
Schedule 4 of the Headlease have not been completed prior to the date
of this Lease, a temporary right to use the electrical switches,
connections, lines, wires and cables currently situated in the Drakelow
"B" power station and other parts of the Retained Land (other than in
the 275kV/4OOkV substation forming part thereof) such right to continue
only until PowerGen shall have completed the relevant works referred to
in paragraph 2.2 of Schedule 4 of the Headlease.
10. "B" ASH LAGOON
To the extent that the relevant works referred to in paragraph 2.2 of
Schedule 4 of the Headlease have not been completed prior to the date
of this Lease, a temporary right to use the ash lagoon on the Retained
Land marked "Lagoon B" on Plan 1, together with the water pipeline
running thereto from the Demised Premises and the water pipeline
running from Lagoon B to the discharge point or points to which the
pipeline connects, for the passage of water from Drakelow "C" Power
Station on the Demised Premises to and from Lagoon B such right to
continue until the appropriate valves attached to the water pipelines
have been switched by PowerGen in order that the passage of water from
the Demised
Premises shall pass to the outfall on the Demised Premises rather than
passing to Lagoon B.
11. DISCHARGE OF WATER
The right to use whichever points of discharge of water are required
for the operational use of the Drakelow "C" Power Station insofar as
such points of discharge are situated on the Retained Land SUBJECT TO
Generation cleansing, maintaining, repairing, renewing and replacing
the same as and when necessary (in Generation's absolute discretion).
12. EMERGENCY ACCESS
A right of way without interference through the Retained Land in the
event of fire or other emergency.
13. INFORMATION TECHNOLOGY EQUIPMENT
(i) A temporary right to use the information technology equipment
and all cabling and ancillary apparatus currently situated in
Drakelow "B" Power Station until such time as Generation's
information technology equipment is installed in Drakelow "C"
Power Station (and in any event such right shall continue only
until 31st July 1997 at the latest);
(ii) A right to move the aforesaid information technology equipment
from Drakelow "B" Power Station to Drakelow "C" Power Station
SUBJECT TO the persons exercising such rights causing as
little damage as reasonably practicable to the Retained Land
and making good or procuring the making good of all damage to
the fabric thereof thereby occasioned.
14. TELEPHONE EQUIPMENT AND CABLING
(i) A temporary right to use the telephone equipment and cabling
relating thereto currently situated in Drakelow "B" Power
Station until the earlier of:
(a) Generation moving the aforesaid telephone equipment
and cabling from Drakelow "B" Power Station to
Drakelow "C" Power Station; and
(b) 31st July 1997;
(ii) A right to move the aforesaid telephone equipment from
Drakelow "B" Power Station to Drakelow "C" Power Station
SUBJECT TO the persons exercising such rights causing as
little damage as reasonably practicable to the Retained Land
and making good or procuring the
making good of all damage to the fabric thereof thereby
occasioned.
15. WORKS TO AND USE OF ADJOINING PREMISES
At all times during the Term without reference to Properties or
PowerGen or making any compensation to Properties therefor to:
(a) execute or permit or suffer the execution of works or
alterations on or to the Demised Premises or the demolition,
rebuilding, alteration or extension of any buildings or
structures now or hereafter erected on such Demised Premises;
(b) use or deal with the Demised Premises and such buildings and
premises thereon in such manner as Generation may in its
absolute discretion think fit;
provided that such rights shall be exercised so as to cause as little
inconvenience to PowerGen as is reasonably practicable and any physical
damage caused to the Retained Land as a result of the exercise of such
rights shall be made good to the reasonable satisfaction of PowerGen at
the expense of the person causing such damage.
PART 4
RIGHTS EXCEPTED AND RESERVED
1. ROADS
The right to pass and repass at all times and for all purposes
connected with access to and egress from the Retained Land over and
along that part of the road on the Demised Premises running between
points E and C as shown on Plan 1, such right to extend to all persons
who are from time to time permitted by PowerGen to fish along the bank
of the River Trent within the Retained Land and to all persons entitled
(upon reasonable proof of identity and entitlement) to obtain access to
the wildlife reserve situated on the Retained Land for such time as the
said reserve remains in existence.
2. NEW ROAD
The right, after the Date of Practical Completion, to construct a road
across the Demised Premises between the points marked A and B on Plan 1
and thereafter the right to pass and repass at all times and for all
purposes connected with access to and egress from one part of the
Retained Land to another part of the Retained Land over and along such
road PROVIDED THAT neither the position, construction,
retention or use of the road shall interfere with the uninterrupted use
and enjoyment by Generation of the water outfall situated in or on the
Demised Premises or of the railway sidings situated on the Demised
Premises or the Retained Land PROVIDED THAT PowerGen or Properties
shall keep such road in good and substantial repair and condition and
PROVIDED FURTHER THAT Generation shall be entitled to block off or
remove such road temporarily if reasonably necessary to carry out other
works of repair, maintenance or construction on the Demised Premises
subject to Generation having given reasonable written notice of such
works to Properties and PowerGen and Generation causing as little
damage as reasonably practicable to such road and making good or
procuring the making good of all damage to the fabric thereof thereby
occasioned.
3. SERVICES
The free and uninterrupted passage and running of water, soil, gas,
electricity, telephone and other services from and to all other
buildings and premises on the Retained Land through and along all
conduits, pipes, drains, channels, watercourses, sewers, wires and
cables or other conducting media which are now or may hereafter during
the Perpetuity Period be in over or under the Demised Premises together
with the right to connect into the same.
4. ENTRY FOR WORKS AND FOR PURPOSES OF THIS LEASE
The rights to enter the Demised Premises at all times in case of
emergency and otherwise at all reasonable times on reasonable notice
with or without workmen and others and all necessary appliances and
materials for the purpose of:
(a) decommissioning and demolishing the Drakelow "A" and
"B" power stations comprised within the Retained Land;
(b) inspecting, maintaining, cleansing, repairing, altering,
testing, renewing and replacing, laying and making connections
to the said ducts, conduits, pipes, drains, channels,
watercourses, sewers, wires, and cables and other conducting
media and all connections serving the Retained Land;
(c) carrying out all works, operations or acts or doing any thing
whatsoever comprised within PowerGen's obligations in respect
of the Estate or (whether or not within the same) for which
Generation is liable hereunder to make a contribution; and
(d) for any purpose mentioned in paragraph 5 of Schedule 3 to the
Clawback Debenture or in any of the documents mentioned in
Part 5 of this Schedule
the persons exercising such rights causing as little damage as
reasonably practicable to the Demised Premises and making good or
procuring the making good of all damage to the fabric thereof thereby
occasioned.
5. ENTRY FOR POWERGEN'S WORKS
To the extent that any of the works which are referred to in paragraph
2 of Schedule 4 of the Headlease or are otherwise the obligation of
PowerGen pursuant to the Agreement for Lease have not been completed
prior to the date of this Lease, the right to enter upon the Demised
Premises at reasonable times and on reasonable written notice (save in
case of emergency) with or without workmen and others and all necessary
vehicles, plant, machinery, equipment, appliances and materials in
order to carry out and complete the same.
6. WORKS TO AND USE OF ADJOINING PREMISES
At all times during the Term without reference to Generation or making
any compensation to Generation therefor to:
(a) execute or permit or suffer the execution of works or
alterations on or to the Retained Land or the
demolition, rebuilding, alteration or extension of any
buildings or structures (including, but without
prejudice to the generality of the foregoing, the
demolition and decommissioning of the said Drakelow "A"
and "B" power station) now or hereafter erected on such
Retained Land;
(b) use or deal with the Retained Land and such buildings and
premises thereon in such manner as PowerGen may in its
absolute discretion think fit.
7. ACCESS FOR ENVIRONMENTAL INSPECTION
If PowerGen or Properties is, or reasonably believes that it may be,
liable under the Environmental Covenant or the Environmental Laws in
respect of the Demised Premises, a right to enter the Demised Premises
at reasonable times and upon reasonable written notice (save in case of
emergency) with or without workmen, surveyors, consultants and all
other persons authorized by PowerGen and/or Properties together with
all necessary vehicles, plant, machinery, appliances and materials for
the purpose of environmental inspection and the carrying out of all
tests, surveys and reports as PowerGen shall in its absolute discretion
consider appropriate whether on or under the surface of the Demised
Premises and whether or not the same causes any damage to the Demised
Premises PROVIDED THAT, in exercising such right, PowerGen or
Properties (as appropriate) shall
(a) make good or procure the making good of any damage so
caused;
(b) cause as little disruption and interference as reasonably
practicable to the business carried on upon the Demised
Premises;
(c) comply with all reasonable regulations or instructions
issued by Eastern;
(d) ensure that adequate insurance cover against all insurable
third party liability claims is maintained in respect of the
works carried out under this paragraph 7.
8. EMERGENCY ACCESS
A right of way without interference through the Demised Premises in the
event of fire or other emergency.
9. SPORTS FACILITIES
The right for ex-employees of CEGB and PowerGen (upon reasonable proof
of identity and status) who are members of the sports and social club,
to use the sports ground and sports and social facilities situated on
the Demised Premises at all reasonable times in accordance with the
normal hours of use thereof and in compliance with the rules and
regulations from time to time of the sports and social club.
PART 5
DOCUMENTS REFERRED TO IN CLAUSE 2
DATE Nature of Document Parties
10th July 1950 Conveyance C F Gothard (1)
British Electricity
Authority
(2)
23rd January 1987 Conveyance CECB (1)
D Lewis and
K M Willoughby (2)
15th March 1988 Deed of Grant D Lewis and K M
Willoughby (1)
CEGB (2)
31st March 1990 Deed of Grant PowerGen (1) NGC
(2)
31st March 1990 Interface Agreement NGC (1) PowerGen
("Interface (2)
Agreement")
30th March 1990 Licence to Retain CEGB (PowerGen
Assets Division)(1)
("Licence to Retain East Midlands
Assets") Electricity
Board (2)
31st March 1990 Lease ("NGC Lease") PowerGen (1) NGC
(2)
20th February Wayleave Agreement PowerGen (1)
1995 ("Wayleave East Midlands
Agreement") Electricity
plc (2)
14th March 1988 Conveyance CEGB (1) R A
Bullivant (2)
22nd March 1995 Transfer PowerGen (1)
Roger Bullivant
Limited (2)
26th July 1962 Lease CEGB (1)
Trent River Board
(2)
PART 6
ASH PIPELINE DOCUMENTS REFERRED TO IN CLAUSE 2
26th February 1970 Licence British Waterways
Board (1)
CEGB (2)
29th April 1970 Deed of Grant Midland Gravel Co.
Ltd (1)
CEGB (2)
17th January 1972 Deed of Grant Marley Tile Company
Ltd
(1)
CEGB (2)
24th November 1971 Deed of Grant Sharp Bros & Knight
Ltd
(1)
CEGB (2)
18th May 1972 Deed of Grant Staffordshire
County
Council (1)
CEGB (2)
13th December 1960 Deed of Grant Personal
Representatives of
G D Flatt (1)
CEGB (2)
25th January 1961 Agreement British Transport
Commission (1)
CEGB Midlands and
East
Midlands Regions
(2)
16th September 1963 Deed of Easement Branston Gravels
Limited (1)
CEGB (2)
26th September 1962 Agreement British Transport
Commission (1)
CEGB Midlands
Project
Group (2)
PART 7
PERMITS AND OTHER DOCUMENTS REFERRED TO IN CLAUSE 2
Date Document Parties
2nd September 1963 Agreement for the South Staffordshire
supply of mains Waterworks Co Ltd
water to Drakelow (1)
"C" Power Station CEGB (2)
9th December 1970 Supplemental South Staffordshire
Agreement increase Waterworks Co Ltd
in supply of water (1) CEGB (2)
to 909,000 gallons
per day
20th April 1959 Consent to Ministry of Power
extension of
existing Drakelow
Generating Station
23rd December 1960 Variation of terms Ministry of Power
of consent of 20
April 1959
22nd February 1966 License to Trent River
abstract water Authority
21st March 1986 Consent for a Severn Trent Water
discharge, Authority
Reference Number:
S34/S/7/275
28th December 1990 Land Drainage National Rivers
Consent, Newbold Authority
Quarry pipeline
and outfall
Consent Reference:
UT 2116
7th April 1993 IPC Authorisation Her Majesty's
Reference AA2925 Inspectorate
of Pollution
14th July 1994 Variation of IPC Her Majesty's
Authorisation Inspectorate
of Pollution
27th March 1995 Variation of IPC Her Majesty's
Authorisation Inspectorate
of Pollution
23rd June 1995 Variation of IPC Her Majesty's
Authorisation Inspectorate
of Pollution
SCHEDULE 2:
(not used)
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 therefore and to supply such
assistance and information therewith as PowerGen and/or Properties
shall reasonably require Provided always that Generation shall not be
obliged to act as surety or guarantor or give any other form of
security in relation to any such transfer or assignment.
8. DECOMMISSIONING AND DEMOLITION
To comply with the covenants and obligations on the part of Generation
contained in Schedule 5.
9. Permit entry for Landlord and others
9.1 To permit Properties and PowerGen and their servants, and
other agents, their contractors and workmen and, to the
extent lawfully entitled, the owner, tenants and occupiers
of any adjoining or neighboring premises and their
respective servants, agents and workmen with all necessary
plant, machinery, equipment, tools and appliances at all
times in case of emergency and otherwise at any reasonable
times on reasonable prior notice without interruption or
interference and subject to such safety requirements as
Generation shall reasonably require to enter upon the
Demised Premises and remain thereon for such period as shall
be necessary:
(a) to examine the Demised Premises to ensure that nothing has
been done or omitted which constitutes or may be or tend to be
a breach or nonperformance of any of the covenants contained
in this Lease or the Headlease;
(b) to exercise any rights excepted and reserved to Properties or
PowerGen or such owners, tenants and occupiers and for any
other purpose properly connected with the interest of
Properties or PowerGen in the Demised Premises;
(c) to inspect the Demised Premises for all purposes connected
with the operation or implementation, or the proposed
implementation, of Schedule 5 to the Headlease and Schedule 5
hereof and Generation shall furnish such information for the
said purposes as may reasonably be requested by PowerGen.
9.2 To permit the persons authorized by, or referred to in, paragraph 5 of
Schedule 3 to the Clawback Debenture to enter upon the Demised Premises
for the purposes therein mentioned.
10. REMEDY WANTS OF REPAIR AND ENTRY FOR LANDLORD ON DEFAULT
Forthwith to proceed to repair and make good all wants of repair and
defects of which notice shall be given by Properties and/or PowerGen to
Generation and which Generation shall be liable to repair or make good
provided always that if within two months or such shorter period as is
reasonable from the date of such notice Generation shall fail to
commence to repair and make good the matters prescribed in such notice
then it shall be lawful for PowerGen, Properties and all persons
authorized by either or them with workmen, servants, agents and others
with or without all necessary plant, machinery, equipment, tools and
appliances to enter into and stay upon the Demised Premises and repair
and make good the same at the expense of Generation (but so that
Properties' right of entry or any other right or remedy of Properties
under this Lease shall not thereby be prejudiced).
11. NOTICES
As soon as practicable after receipt by Generation of any notice or
communication from a competent authority affecting Properties or
PowerGen's interest in the Demised Premises to give to Properties and
PowerGen a copy thereof.
12. STATUTORY REQUIREMENTS
12.1 Save as provided in the Environmental Covenant, at the
expense of Generation to comply with all Environmental
Laws, Planning Acts and the Electricity Act 1989
relating to the Demised Premises or the use thereof and
to execute at its own expense any work required to be
carried out in or to the Demised Premises whether such
work is required to be carried out by the owner or the
occupier or any other person.
12.2 Save as provided in the Environmental Covenant, not at
any time to do omit or permit on or about the Demised
Premises any act or thing by reason of which Properties
or PowerGen may under any such European Laws, Planning
Acts and the Electricity Act 1989 incur or have imposed
upon it or becoming liable to pay any levy penalty
damages compensation costs charges or expenses Provided
that use of the Demised Premises in accordance with
paragraph 17 of this Part of this Schedule and the
PowerGen Standards shall not, of itself, constitute
breach of this paragraph 12.2.
12.3 Save as provided in the Environmental Covenant, to obtain all
licenses, permissions and consents and to execute and do all
works and things and to bear and pay all expenses required or
imposed by any such
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 black on Plan 1 annexed
to this Lease such that their use is other than an activity
for which an exemption or licence is required under Sections
5 or 6 of the Electricity Act 1989 or involving the
distribution of electricity in so far as it does not require
a licence under Section 6 of that Act and, subject thereto,
to use the Demised Premises for the purposes of electricity
generation substantially from the plant and equipment
comprised in the Demised Premises at the date of this Lease
and for other purposes ancillary thereto.
17.2 Prior to the Handover Date, to use all reasonable endeavours
(a) not at any time to use the Demised Premises or any part
thereof nor permit or suffer the same to be used in any way
or for any purpose which may unnecessarily be a nuisance,
damage or disturbance to the owners or occupiers of any
premises adjoining or near the Demised Premises or the
neighbourhood and (b) to use and operate the Demised
Premises in such manner as engenders and fosters good
relations with the communities in the locality of the
Demised Premises and any representatives of such communities
and, in particular, but without prejudice to the generality
of the foregoing (i) to ensure that all lorries and other
heavy or wide goods vehicles having access to the Demised
Premises comply with all formal and informal agreements with
such local communities and representatives including
relating to the use of certain routes and any restrictions
on the times or days at which such routes can be used, (ii)
to take steps to inform the local communities of any unusual
operations at the Demised Premises.
Provided always that use of the Demised Premises in accordance with
paragraph 17.1 of this Schedule shall not, of itself, constitute a
breach of this paragraph 17.2.
17.3 Subject to the provisions of Schedule 5, only to use the Mobile
Equipment at the Demised Premises.
17.4 Subject to the provisions of Schedule 5, only to use the Strategic
Spares at the Demised Premises or at the premises comprised within the
High Marnham Lease.
18. PREVENT ENCROACHMENTS
Not knowingly to permit any owner of any property, adjoining or near
the Demised Premises to acquire any rights of way,
light or air or other privilege easements or make any encroachment over
against out of or upon the Demised Premises.
19. ALIENATION
19.1 Save as provided in paragraph 19.2 of this Schedule, in
relation to the whole or any part of those parts of the
Demised Premises colored yellow on Plan 1 annexed to this
Lease, on or before 1st April 2000, not to assign, transfer,
underlease, charge, share occupation or part with or share
possession, declare trusts over or otherwise deal with the
same in any way whatsoever.
19.2 Not to assign the whole or any part of the Demised Premises
save to a member of Eastern's Group (as such expression is
used in the Agreement for Lease) without first obtaining
from the assignee a covenant by deed with Properties and
PowerGen to pay the rents and other amounts payable
hereunder and to observe and perform all the covenants on
the part of Generation and the condition as to user set out
in paragraph 2 of Schedule 6 in such form as Properties and
PowerGen shall reasonably determine having regard, in
particular, to PowerGen's obligations and liabilities
pursuant to the Clawback Debenture.
19.3 Within one month of every assignment, transfer, underlease
or charge affecting the Demised Premises or any devolution
of the estate of Generation therein or this Lease, to give
notice in writing with particulars thereof to Properties and
PowerGen and produce such assignment, transfer, underlease
or charge or the Probate of the Will or Letters of
Administration or other instrument, document, or evidence of
such devolution or surrender or sharing with a certified
copy thereof and in every case to pay to PowerGen a
reasonable registration fee of not less than(pound)25.00 plus
Value Added Tax thereon.
20. COSTS
To pay:
(a) all legal costs and other professional fees and
disbursements incurred by Properties and PowerGen and
the costs and expenses of its duly authorized
representatives in connection with or incidental to
every application made by Generation for a consent or
licence (whether the same be granted or refused or
proffered subject to any lawful qualification or
condition or whether the application be withdrawn);
(b) all expenses including solicitors' costs and surveyors' fees
incurred by Properties and/or PowerGen in
contemplation of or incidental to the preparation and service
of a notice under Section 146 of the Law of Property Act 1925
or of proceedings under Sections 146 and 147 of that Act
notwithstanding that in any such case forfeiture is avoided
otherwise than by relief granted by the Court;
(c) all expenses including solicitors' costs, surveyors'
fees and bailiffs' costs and commission incurred by
Properties and PowerGen in connection with and
incidental to any breach, non-performance or non-
observance of any of the covenants on the part of
Generation and the conditions contained in this Lease
or in contemplation of the enforcement thereof
including (but without prejudice to the generality of
the foregoing) the service of all notices relating to
and schedules recording dilapidations and wants of
repair to the Demised Premises or of any negotiations
in respect thereof;
(d) all Value Added Tax incurred by Properties and/or PowerGen on
or included in any amount reimbursable by Generation to
Properties under this Lease.
21. VALUE ADDED TAX
Where any payment due under or by virtue of this Lease or the grant of
it is a payment on which Value Added Tax is or may be chargeable (by
reason of an election of PowerGen or otherwise) to pay the amount of
such tax in respect of the payment at the rate applicable to that
payment.
22. ASH AND WASTE PRODUCTS DISPOSAL CONTRACTS AND RAILWAY
AGREEMENTS
Without prejudice to PowerGen's obligations contained in the Agreement
for Lease to use its reasonable endeavours to enter into such
agreements for the disposal of ash and all other Waste and such
agreements relating to the position, use and operation of the railway
sidings and any ancillary structures and equipment serving the Demised
Premises from time to time as are necessary (in Generation's reasonable
opinion) for the safe and proper operation of the Power Station
comprised within the Demised Premises PROVIDED THAT nothing contained
in this paragraph shall require Generation to enter into any such
agreements which would constitute renewals of agreements having expired
prior to Completion or new agreements in respect of which no agreement
was in place prior to Completion.
23. COMPLY WITH TITLE MATTERS
23.1 To perform and observe all the covenants, conditions and provisions
contained or referred to in the documents referred to in Parts 5, 6 and
7 of Schedule 1 so far as the same relate to the Demised Premises and
are still subsisting and capable of being enforced.
23.2 To perform and observe all the covenants, conditions and provisions
affecting the Demised Premises and on the part of the Landlord to be
observed and performed contained in the Headlease (except the covenants
to pay the Premium (as defined in the Headlease) and the rents payable
thereunder).
23.3 Without prejudice to the generality of paragraph 23.1 above, to permit
NGC and (in relation to sub-paragraph 23.2(i) only) East Midlands
Electricity plc having an interest or right in relation to any part of
the Demised Premises (whether directly or as part of the Estate) to
exercise all rights pursuant to:
(i) the Licence to Retain Assets;
(ii) the NGC Lease;
(iii) the Interface Agreement; and
(iv) the Wayleave.
24. HANDOVER
On the Handover Date Generation shall give Properties and PowerGen
possession of so much of the Demised Premises as may be required to
enable PowerGen to comply with its obligations set out in Schedule 5 to
the Headlease.
SCHEDULE 4:
PROPERTIES' COVENANTS
1. QUIET ENJOYMENT
Generation paying the Rent and other rents and charges payable under
this Lease and performing and observing the several covenants and
stipulations on the part of Generation contained in this Lease may
peaceably and quietly hold and enjoy the Demised Premises during the
Term without any lawful interruption or disturbance from or by
Properties or any person rightfully claiming under or in trust for it
or by title paramount.
2. PERFORMANCE OF THE HEADLEASE
To pay the rents reserved by the Headlease and to perform so far as
Generation is not liable for such performance under the terms of this
Lease the covenants and conditions on the part of the lessee contained
in the Headlease.
3. POWERGEN'S CONSENT
To take all reasonable steps to obtain the consent of PowerGen wherever
Generation makes application for any consent required under this Lease
where the consent of both Properties and PowerGen is needed by virtue
of this Lease and the Headlease.
4. ENFORCE THE HEADLEASE
At the request of Generation to take all reasonable steps to enforce
the covenants on the part of PowerGen contained in the Headlease.
5. CONTRIBUTION TO EXPENSES
Without prejudice to the generality of any other covenant or obligation
by Properties, to pay on demand (to Generation or PowerGen or such
other third party as shall be relevant) a fair proportion of the costs
and expenses of making, repairing, maintaining, rebuilding, renewing,
replacing, lighting, insuring, connecting and cleansing all ways,
roads, pavements, bridges, sewers, drains, pipes, channels,
watercourses, gutters, wires, cables, boundary walls, fences, party
walls, structures, open areas and other conveniences (including, for
the avoidance of doubt, the inlet culvert referred to in paragraph 4 of
Part 3 of Schedule 1) which shall at any time belong to or be used for
the Retained Land in common with the Demised Premises or other premises
near or adjoining thereto.
SCHEDULE 5:
DECOMMISSIONING ARRANGEMENTS
1. When Generation has ceased using the Demised Premises for the purpose
of generating electricity, it may give Properties and PowerGen notice
of its intention to require Properties to enforce PowerGen's covenant
to carry out its obligations under Schedule 5 of the Headlease pursuant
to paragraph 4 of Schedule 4 of the Headlease.
2. Prior to the Handover Date, Generation shall ensure that all the
electrical connections and all electrical equipment comprised within
the Demised Premises and, to the extent that it is comprised within the
Demised Premises, the
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 I
MOBILE EQUIPMENT
ASSET DESCRIPTION IDENTIFICATION NO:
Terrex TS40 Coal Scraper/Loader
Terrex TS40 Coal Scraper/Loader
Terrex TS40 Coal Scraper/Loader
Terrex TS40 Coal Scraper/Loader
JCB 700 Excavator
Caterpillar D8N Bulldozer
Caterpillar D8N Bulldozer
Caterpillar 980C Wheelloader x 2
Schaefe Wheelloader
Hunslett Diesel Locomotive
PART 2
STRATEGIC SPARES
The following strategic spares are held in a used but serviceable
condition
EE35OMW Alternator Rotor, Unit 9/10
EE35OMW Generator Stator, Unit 9/10
EE35OMW LPI LP Rotor
EE35OMW LP2 LP Rotor
Reyrolle 275kV Circuit breaker
The following strategic spares are held in situ or in operation but are surplus
to the requirements for 3 unit operation
1 Cooling tower
1 CW pump
1 River water make-up pump
1 Hydrogen generation plant
1 Unit 11 Generator transformer
SCHEDULE 8
1.1 In this Schedule "review date" means the expiration of the eighth year
of the Term and every fifth year thereafter and 'review period' means
the period starting with any review date up to the next review date or,
in the case of the final review period, starting with the last review
date up to the end of the Term.
1.2 Properties may by giving to Generation prior written notice elect to
review the Rent on any review date. The Rent thirty-one million two
hundred and fifty thousand pounds ((pound)31,250,000) during each
successive review period shall be ascertained as herein provided
subject only to the provisions of clause 1.4(E) of this Schedule.
1.3 Such revised Rent for any review period may be agreed at any
time between Properties and Generation or (in the absence of
agreement) determined not earlier than the relevant review
date by an arbitrator such arbitrator to be nominated in the
absence of agreement by or on behalf of the President for the
time being of the Royal Institution of Chartered Surveyors on
the application of Properties or Generation made not earlier
than six months before the relevant review date but not later
than the end of the relevant review period and so that in the
case of such arbitration the revised Rent to be awarded by the
arbitrator shall be such as he shall decide is the yearly rent
at which the Demised Premises might reasonably be expected to
be let at the relevant review date:
(A) On the following assumptions at that date:
(i) that the Demised Premises:
(a) are available to let on the open market
without a fine or premium with vacant
possession by a willing landlord to a
willing tenant for a the residue then
unexpired of the term of this lease;
(b) are to be let subject to the terms of this
Lease (other than the amount of the rent
hereby reserved but including the provisions
for review of that rent);
(B) But disregarding any increase in rental value of the
Demised Premises attributable to the existence at the
relevant review date of any improvement to the Demised
Premises or any part thereof carried out with consent
where required otherwise than in pursuance of an
obligation to Properties or its predecessors in title
except obligations requiring compliance with statutes or
directions of local authorities or other bodies
exercising powers under statute or Royal Charter either
(a) by Generation its sub-tenants or their respective
predecessors in title during the term or during any
period of occupation prior thereto arising out of an
agreement to grant such term or (b) by any tenant or sub-
tenant of the Demised Premises before the commencement of
the Term so long as the Properties or its predecessors in
title have not since the improvement was carried out had
vacant possession of the relevant part of the Demised
Premises.
1.4 it is hereby further provided in relation to the ascertainment
and payment of revised Rent as follows:-
(A) The arbitration shall be conducted in accordance with the
Arbitration Acts 1950 and 1979 or any statutory
modification or re-enactment thereof for the time being
in force with the further provision that if the
arbitrator nominated pursuant to sub-clause 1.3 hereof
shall die or decline to act as the President for the time
being of the Royal Institution of Chartered Surveyors or
the person acting on his behalf may on the application of
either the Properties or Generation by writing discharge
the arbitrator and appoint another in his place
(B) When the amount of any Rent to be ascertained or payable as
herein provided shall have been so ascertained or
payable a memoranda thereof shall thereupon be signed by or on
behalf of Properties and Generation and annexed to this lease
and counterpart thereof and the parties shall bear their own
costs in respect thereof.
(C) (i) If the revised Rent payable on and from any
review date has not been agreed by that review date
Rent shall continue to be payable at the rate
previously payable and forthwith upon the revised
rent being ascertained:
(a) Generation shall pay to Properties any
shortfall between the Rent and the revised
Rent payable up to and on the preceding
quarter day together with interest on any
shortfall at the seven-day deposit rate of
National Westminster Bank plc such interest to
be calculated on a day-to-day basis from the
relevant review date on which it would have
been payable if the revised Rent had then been
ascertained to the date of actual payment of
any shortfall; and
(b) Properties shall pay to Generation any excess
between the Rent and the revised Rent payable
up to and on the preceding quarter day
together with interest in any excess at the
seven day deposit rate of National Westminster
Bank PLC on the same basis as in sub-paragraph
(a) of this present sub-clause (C)(i).
(ii) For the purposes of this proviso the revised Rent
shall be deemed to have been ascertained on the date
when the same has been agreed between Properties and
Generation or as the case may be the date of the
award of the arbitrator.
(D) If either Properties or Generation shall fail to pay any costs
awarded against it in an arbitration under the provisions
hereof within twenty-one days of the same being demanded by
the arbitrator the other shall be entitled to pay the same and
the amount so paid shall be repaid by the party chargeable on
demand.
(E) If the Handover Date shall fall at any time on or after the
eighth anniversary of the Term the Rent payable hereunder
shall from the Handover Date become the Basic Rent unless and
until otherwise reviewed on the next or any subsequent review
date.
EXECUTED as a DEED )
under the COMMON SEAL )
of EASTERN MERCHANT )
PROPERTIES LIMITED )
in the presence of:
Authorized Signatory
EXECUTED as a DEED )
under the COMMON SEAL )
of EASTERN MERCHANT )
GENERATION LIMITED )
in the presence of: )
Authorized Signatory