Exhibit 2.13
LINKLATERS
& ALLIANCE
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Dated 6th October 2001
EDISON FIRST POWER LIMITED
and
AEP ENERGY SERVICES UK GENERATION LIMITED
and
AEPR GLOBAL HOLLAND HOLDING B.V.
and
AMERICAN ELECTRIC POWER COMPANY, INC.
AGREEMENT
- relating to -
the sale and purchase of the business carried on at
Ferrybridge "C" Power Station, Knottingley, West Yorkshire
LINKLATERS
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Telephone: (▇▇-▇▇) ▇▇▇▇ ▇▇▇▇
Facsimile: (▇▇-▇▇) ▇▇▇▇ ▇▇▇▇
Ref: STRS/ROES
TABLE OF CONTENTS
CONTENTS PAGE
1 Interpretation.........................................................................................1
2 Agreement to sell the Business........................................................................14
3 Consideration.........................................................................................16
4 Pre-Completion Obligations............................................................................19
5 Conditions Precedent..................................................................................24
6 Completion............................................................................................27
7 Third Party Consents..................................................................................30
8 Post Completion Obligations...........................................................................32
9 The Relevant Employees................................................................................37
10 Pensions..............................................................................................39
11 Prepayments and Apportionments etc....................................................................39
12 Purchasers' and Guarantor's Representations and Warranties............................................41
13 EFPL Warranties.......................................................................................42
14 Property and Environmental Matters....................................................................43
15 Guarantee.............................................................................................47
16 Dispute Resolution....................................................................................48
17 Other Provisions......................................................................................49
Schedule 1 The Warranties........................................................................................54
Schedule 2 Allocation of Consideration...........................................................................59
Schedule 3 Intellectual Property and Information Technology......................................................60
Schedule 4 Transfer Scheme Documents.............................................................................85
Schedule 5 Deed of Assignment....................................................................................86
Schedule 6 Deed of Novation......................................................................................90
i
Schedule 7 Joint Contract Deed of Assignment.....................................................................95
Schedule 8 Joint Contract Deed of Novation......................................................................100
Schedule 9 Joint Contracts......................................................................................105
Schedule 10 Insurance Policies..................................................................................107
Schedule 11 Property............................................................................................108
Schedule 12 Coal Sale Contracts, Coal Purchase Contracts and Electricity Trading Contracts......................146
Schedule 13 Pensions............................................................................................155
Schedule 14 "on an after tax basis".............................................................................169
Schedule 15 Fuel................................................................................................171
Schedule 16 Form of Legal Opinion...............................................................................175
Schedule 17 Trading Strategy....................................................................................179
Schedule 18 Operating Permits...................................................................................181
Schedule 19 Relevant Employees..................................................................................183
Schedule 20 Edison Mission Energy Guarantee.....................................................................192
Schedule 21 Edison Mission Energy Legal Opinion.................................................................201
Schedule 22 IT Support Agreement................................................................................204
ii
AGREEMENT FOR PURCHASE OF BUSINESS
THIS AGREEMENT is made on 6 October 2001
BETWEEN:
(1) EDISON FIRST POWER LIMITED registered in Guernsey with registered
number 35167 and whose registered office is at ▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ Port, Guernsey, Channel Islands, GY1 4HP (EFPL); and
(2) AEP ENERGY SERVICES UK GENERATION LIMITED registered in
England and
Wales with registered number 4277342 and whose registered office is at
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇ ▇▇▇▇▇), ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (PURCHASER A);
(3) AEPR GLOBAL HOLLAND HOLDING B.V. registered in The Netherlands and
whose registered office is at 548 ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ (PURCHASER B); and
(4) AMERICAN ELECTRIC POWER COMPANY, INC. registered in the United States
and whose registered office is at ▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇ (the GUARANTOR).
IT IS AGREED as follows:
1 INTERPRETATION
In this Agreement the headings shall not affect its interpretation and,
unless the context otherwise requires, the provisions in this Clause 1
apply:
1.1 DEFINITIONS
AGREED TERMS means, in relation to any document, such document in the
terms agreed between the parties and signed by or on behalf of them for
the purposes of identification, as that document may be amended by
agreement in writing between EFPL and the Purchasers from time to time
for any reason, including to take account of any changes between the
date of this Agreement and Completion;
ANCILLARY BUSINESS ACTIVITIES means:
(i) the storage, disposal and sale of ash;
(ii) managing agricultural and other tenancies at the Property;
(iii) providing a sports club (including a golf course) for the
employees at the Power Station; and
(iv) carrying on such other activities as are carried on at or from
the Power Station or as are incidental to the activities
referred to in paragraphs (i) or (ii) of the definition of
Business;
ANCILLARY SERVICES means services which are required for the security
and stability of the National Grid transmission system;
AR or AS RECEIVED means the basis on which the sample of coal is
analysed containing total moisture in the sample as received in the
laboratory, according to British Standards, and the results are
reported as a weight percentage of the sample weight;
ASSETS means the property, rights and assets agreed to be sold pursuant
to Clause 2.1.2 but excludes those listed in Clause 2.1.3;
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ASSUMED LIABILITIES means the Liabilities of EFPL to be assumed by the
relevant Purchaser pursuant to Clause 2.2;
AUTHORISATION means the authorisation granted by the Environment Agency
or its predecessors, together with any subsequent variations to that
authorisation, pursuant to Section 6 of the Environmental Protection
▇▇▇ ▇▇▇▇, in respect of the Power Station;
BORROWED MONEYS means any obligation for the payment or repayment of
moneys for or in respect of moneys borrowed (including bank overdrafts
and debit balances, loans, amounts raised by issue of bonds, notes or
other debt securities, but excluding finance leases, hire purchase,
sale and lease back transactions and sale and repurchase transactions
entered into in the ordinary course of business with an aggregated
annual liability not exceeding POUND STERLING 50,000);
BUSINESS means the business of EFPL in:
(i) generating electricity from and otherwise operating the Power
Station;
(ii) providing Ancillary Services from the Power Station; and
(iii) conducting the Ancillary Business Activities,
including the Assets and the Assumed Liabilities subsisting at
Completion;
BUSINESS DAY means a day on which banks are open for business in
England (excluding Saturdays, Sundays and public holidays);
CASH BALANCES means cash in hand, or credited to any account with a
bank, and securities with a maturity of less than one year;
CERTIFICATE OF TITLE means a certificate of title to the Property in
the agreed terms;
CHAPS means clearing houses automated payment systems;
CLAIMS means all rights and claims of EFPL arising:
(i) at any time (whether arising or accruing before or after
Completion);
(ii) out of or in connection with the Business (whether arising or
accruing under any warranties, conditions, guarantees,
indemnities, contracts, agreements (in each case whether
express or implied) or otherwise howsoever),
to the extent that they relate exclusively to any of the Assets, the
Property or any of the Assumed Liabilities other than:
(i) a claim or right under an insurance policy:
(a) made by EFPL prior to Completion; or
(b) in respect of the matters referred to in paragraphs
6(a)(i) and 6(a)(ii) of the specific disclosures in
the Disclosure Letter;
(ii) a claim or right in respect of Taxation;
(iii) a claim or right under the Transaction Documents;
(iv) a claim under or in connection with the Powergen Sale and
Lease Documents; or
(v) any claim or right under or in connection with any liability
which the Purchasers (or either of them) are not required to
assume pursuant to the terms of this Agreement;
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CLIENT ACCOUNT means the bank account number ▇▇▇▇▇▇▇▇ of EFPL's
Solicitors with Lloyd's TSB Bank plc, Moorgate Branch, ▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ and with sort code 30-95-74, or such other client
account as EFPL's Solicitors may nominate from time to time;
CLIMATE CHANGE LEVY RECORDS means any climate change levy records
relating to the Business which are held at the Power Station at the
Completion Date;
COAL PURCHASE CONTRACTS means the coal purchase contracts listed in
Part A of Schedule 12;
COAL STOCKS or DETERMINED STATION COAL STOCK means the stocks of coal
at the Power Station at Completion determined in accordance with Part B
of Schedule 15;
COAL SALE CONTRACTS means the coal sale contracts listed in Part A of
Schedule 12;
COLLECTIVE AGREEMENTS shall have the meaning given to that term in the
Transfer Regulations;
COMPETENT AUTHORITY means any legal person (including any government
department, authority or agency) having regulatory powers and/or
authority at law and/or any court of law or tribunal;
COMPLETION means the completion of the sale and purchase of the
Business pursuant to Clause 6;
COMPLETION DATE means 11.00 am on the date on which Completion occurs;
COMPUTER EQUIPMENT means the equipment listed in Part A of Schedule 3,
being:
(i) all items of mainframe and PC terminals, printers and other
computer hardware owned by EFPL and used exclusively in
relation to the Power Station at the Completion Date; and
(ii) certain pieces of additional equipment;
CONTRACT OF EMPLOYMENT shall have the meaning given to that term in the
Transfer Regulations;
CONTRACTS means:
(i) the Supplier Contracts and the Customer Contracts;
(ii) the Electricity Trading Contracts, the Coal Sale Contracts and
the Coal Purchase Contracts;
(iii) the Decommissioning Deed;
(iv) the Master Ancillary Services Agreement and the Datum
Solutions Limited Services Agreement; and
(v) all other contracts, undertakings, arrangements and agreements
entered into, on or prior to the Completion Date by or on
behalf of EFPL, or to be assigned or novated to EFPL,
exclusively in connection with the Business,
in each case to the extent that at Completion the same remain to be
completed or performed or remain in force, but excluding:
(i) any contracts of employment, collective agreements or
insurance policies;
(ii) the Property Agreements;
(iii) the Stamp Duty Deed;
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(iv) the Deed of Goodwill Assignment;
(v) any contracts referred to in Clause 2.1.3; and
(vi) any finance arrangements existing in connection with the
Business, including loans, bonds, guarantees and derivative
arrangements;
CUSTOMER CONTRACTS means all contracts, undertakings, arrangements and
agreements (other than the Electricity Trading Contracts and the Coal
Sale Contracts) entered into on or prior to the Completion Date by or
on behalf of EFPL with customers for the supply of goods or the
provision of services by EFPL exclusively in connection with the
Business;
CUSTOMS means HM Customs and Excise;
DATA CENTRE means the room at the Power Station known at the date of
this Agreement as the data centre;
DATUM SOLUTIONS LIMITED SERVICES AGREEMENT means the agreement of that
name dated 17 May 1999 between Datum Solutions Limited and EFPL;
DECOMMISSIONING DEED means the deed dated 19 July 1999 made between
Powergen and EFPL regarding, INTER ALIA, certain rights and obligations
of those parties in relation to land, buildings and other structures
adjoining the Power Station;
DEED OF ASSIGNMENT means the deed of assignment referred to in Clause
6.2.3 and set out in Schedule 5, with such modifications as may be
appropriate having regard to the relevant Contract; DEED OF ASSIGNMENT
OF PROPERTY AGREEMENTS means a deed of assignment between EFPL and
Purchaser B relating to the Property Agreements referred to in Clause
6.5.1 and set out in Part I of Schedule 11;
DEED OF COVENANT IN RESPECT OF THE DECOMMISSIONING DEED means the deed
of covenant set out in Part E of Schedule 11;
DEED OF COVENANT IN RESPECT OF THE LEASE means the deed of covenant set
out in Part F of Schedule 11;
DEED OF GOODWILL ASSIGNMENT means the goodwill agreement dated 30 April
1999 made between EFPL and Powergen;
DEED OF NOVATION means the deed of novation referred to in Clause 6.2.3
and set out in Schedule 6, with such modifications as may be
appropriate having regard to the relevant Contract(s);
DEED OF PARTICIPATION means the deed of participation for Purchaser A
to participate in the Pension Scheme in accordance with the clauses and
rules of the Pension Scheme, such deed to be entered into in the agreed
terms on Completion in accordance with Clause 6.5;
DEPOSIT means the cash sum payable by Purchaser A pursuant to Clause
3.1.1;
DISCLOSURE DOCUMENTS has the same meaning as that given in the
Disclosure Letter;
DISCLOSURE LETTER means the letter dated the same date as this
Agreement, addressed by EFPL to the Purchasers disclosing exceptions to
the Warranties, together with the attachments to that letter;
DISCLOSED TRADING DATA means the items set out in Schedule 3 to the
Disclosure Letter;
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DISPUTE means any dispute, controversy or claim arising out of, under,
in connection with or in relation to this Agreement, including any
question regarding its existence, validity or termination;
EFPL'S GROUP means EFPL and any subsidiary undertaking and associated
company of EFPL;
EFPL INTELLECTUAL PROPERTY means all rights and interests in
Intellectual Property or Know-how:
(i) listed in Part B of Schedule 3; or
(ii) used both in the Business and by other members of the EFPL
Group and either owned by or licensed-in to the EFPL Group
(under the same licence agreement),
but excluding the rights and interests in Intellectual Property owned
by EFPL in the agreements listed in Part A of Schedule 3;
EFPL'S SOLICITORS means Linklaters of ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇;
ELECTRICITY TRADING CONTRACTS means the electricity trading contracts
listed in Part B of Schedule 12;
EME GROUP means any company in the same Group as
Edison Mission Energy;
EMPLOYEE shall have the meaning given to that term in the Transfer
Regulations;
ENCUMBRANCE means any claim, charge, mortgage, security, lien, option,
equity, power of sale, hypothecation or other third party right;
ENVIRONMENT means all or any of the following media, namely the air,
water and land, and human, animal and plant life;
ENVIRONMENT AGENCY means The Environment Agency and its successors from
time to time;
ENVIRONMENTAL CONDITION means all or any, or any combination, of the
following:
(i) pollution or protection of the Environment and human health
including, though not limited to, noise, emissions, the
condition of buildings and the workplace, discharges and
releases of any substances or energy into air (within natural
or man made structures above or below ground), water
(including underground water), sewage systems and land;
(ii) contaminated land and the pollution of waters;
(iii) the environmental aspects of the manufacture, processing,
distribution, use, treatment, storage, disposal, transport and
handling of any Hazardous Materials,
and, in the case of any of paragraphs (i), (ii) or (iii) above, which:
(i) is in existence at the Power Station, the Property and any
land over, under or through which any right is exercised in
connection with the Power Station or the Property whether
before or after the date of Completion; or
(ii) results or arises from or is aggravated by the disposal,
release, spillage, deposit, escape, discharge, leak, emission,
leaching or migration of any Hazardous Materials from the
Power Station, the Property and any land over, under or
through which any right is exercised in connection with the
Power Station or Property occurring after Completion;
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ENVIRONMENTAL CONSULTANT'S AGREEMENT means the agreement between EFPL
and ▇▇ ▇▇▇▇▇▇ under which ▇▇ ▇▇▇▇▇▇ agreed to carry out certain
professional consultancy services in relation to the environmental
condition of the Power Station;
ENVIRONMENTAL LAW means any national, supranational or local laws or
legislation (including the common law), all secondary or subordinate
legislation and all rules, regulations, orders, ordinances, notices,
codes, decrees, circulars or guidance notes made under those laws
having the force of law:
(i) in the United Kingdom whether before or after Completion; and
(ii) that are applicable to the Business and which concern or
compensate damage to the Environment or relate to any
Environmental Condition (but excluding any of the foregoing
that relate to town and country planning or health and
safety);
ENVIRONMENTAL LIABILITIES means any liability arising under
Environmental Law including liability to carry out Remedial Works;
ENVIRONMENTAL LOSSES means, in relation to the Power Station, the
Assets, the Property, ▇▇▇▇ Common and the Business, all Losses
(including professional and/or consultants' fees and any expenses), and
any moneys paid or to be paid pursuant to any Environmental Proceedings
or Settlement, arising under Environmental Laws or in relation to any
Environmental Condition including any Losses (whether actual or
contingent):
(i) incurred in carrying out Remedial Works;
(ii) resulting from Remedial Works being carried out; and
(iii) incurred in otherwise complying with Environmental Law;
ENVIRONMENTAL PERMIT means any permits, licences, consents, approvals,
certificates, authorisations or permissions which are necessary under
Environmental Law for the operation of the Business at the date of this
Agreement;
ENVIRONMENTAL PROCEEDINGS means any criminal, civil, judicial,
regulatory or administrative proceeding, suit or claim brought by any
Environmental Authority or third party or any notice, order,
instruction or requirement of any Environmental Authority or third
party in relation to any Environmental Condition;
ENVIRONMENTAL REGULATORY AUTHORITY means any central or local
government department or statutory or European Union agency, body,
authority or organisation (including the Environment Agency) which has
regulatory or enforcement powers in relation to Environmental Law;
ESTIMATED COAL STOCK AMOUNT means the amount to be paid for an agreed
estimated amount in gigajoules of coal stocks at the Power Station on
Completion of 65,641,625 gigajoules;
ESTIMATED OIL STOCK AMOUNT means the amount to be paid for an agreed
estimated amount in gigajoules of:
(i) Heavy Fuel Oil 285,485 GJ; and
(ii) Gas Oil 16,960 GJ,
at the Power Station on Completion;
FIXED PLANT AND EQUIPMENT means all fixed plant, equipment and
machinery owned by EFPL and affixed to the land comprised within the
Power Station and the Property and used for, in
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connection with or ancillary to the generation of electricity or for
the electrical and mechanical connection of such plant, equipment and
machinery to any electricity transmission or distribution system;
▇▇▇▇ COMMON means the ash disposal site to the south of the ▇▇▇
▇▇▇▇▇▇▇▇ at ▇▇▇▇▇, North Yorkshire, shown edged red on Plan 1 attached
to the licence dated 9 May 2001 between (1) Eggborough Power Limited;
and (2) EFPL;
▇▇▇▇ COMMON DEEDS means the deeds of which short particulars are set
out in the schedule to the Deed of Assignment at Part G of Schedule 11;
GOODWILL means any goodwill of EFPL exclusively in connection with the
Business;
GROUP means any company, its parent undertaking and any subsidiary
undertaking or associated company of that company or of its parent
undertaking;
HAZARDOUS MATERIALS means any material (whether in solid, liquid or
gaseous form) which alone or in combination with one or more others is
any one of the following: Waste, hazardous, volatile, toxic,
radioactive, ionising, radiating, carcinogenic, corrosive, explosive,
capable of polluting the Environment, capable of causing harm to human
health or any living organism or its ecosystem or capable of causing a
nuisance;
INTERCONDITIONALITY LETTER means the letter between EFPL, the
Purchasers and the Guarantor dated the same date as this Agreement
relating to the interconditionality of this Agreement with the
sale and
purchase agreement (between the same parties and dated the same date as
this Agreement) relating to the sale and purchase of Fiddler's Ferry
power station;
INTEGRATED POLLUTION CONTROL CONSENT means the integrated pollution
control consent issued to the Power Station in respect of the Business
by the Environment Agency pursuant to Section 6 of the Environmental
Protection Act 1990 as such authorisation is varied from time to time;
INTELLECTUAL PROPERTY means trade marks, service marks, trade names,
logos, get-up, patents, inventions, registered and unregistered design
rights, copyrights, semi-conductor topography rights, rights of
extraction relating to databases, and all other similar proprietary
rights which may subsist in any part of the world (but excluding
Know-how) including, where such rights are obtained or enhanced by
registration, any registration of such rights and applications and
rights to apply for such registrations;
IT FINALISATION means the necessary hardware, software and
communications links have been installed, appropriate facilities for
such hardware and software have been established and all of EFPL's
hardware and software has been removed or partitioned such that the
Relevant Tests may be run and completed to the reasonable satisfaction
of Purchaser A;
IT SUPPORT AGREEMENT means the agreement referred to in Clause 5.4.4
and which shall incorporate (INTER ALIA) terms to the effect set out in
Schedule 22;
JOINT CONTRACTS means the contracts and agreements entered into on or
prior to the Completion Date by or on behalf of EFPL and relating to
the Business (but not exclusively so) and listed in Schedule 9, to the
extent that at Completion the same remain to be completed or performed
or remain in force;
JOINT CONTRACT DEED OF ASSIGNMENT means the deed of assignment referred
to in Clause 4.2.1 and set out in Schedule 7, with such modifications
as may be appropriate having regard to the relevant Joint Contract;
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JOINT CONTRACT DEED OF NOVATION means the deed of novation referred to
in Clause 4.2.1 and set out in Schedule 8, and with such modifications
as may be appropriate having regard to the relevant Joint Contract;
KNOW-HOW means confidential and proprietary industrial and commercial
information and techniques in any form (including paper, electronically
stored data, magnetic media, film and microfilm), including (without
limiting the foregoing) drawings, formulae, test results, reports,
project reports and testing procedures, instruction and training
manuals, tables of operating conditions, market forecasts,
specifications, quotations, tables, lists and particulars of customers
and suppliers, marketing methods and procedures and advertising copy;
LEASE means the lease referred to in Section 1 of Part A of Schedule
11; LEASE DOCUMENTS means the Lease and the documents listed in Section
2 of Part A of Schedule 11 (if any);
LETTING DOCUMENTS means the leases, licences and other agreements
listed in Part C of Schedule 11;
LIABILITIES means all liabilities, duties and obligations of every
description, including fines, interest and penalties, whether deriving
from contract, common law, statute or otherwise, whether present or
future, actual or contingent, ascertained or unascertained or disputed
and whether owed or incurred severally or jointly and as principal or
surety;
LICENCES means licences, consents, authorisations, orders, warrants,
confirmations, permissions, certificates, approvals and authorities;
LONG-STOP DATE means 21 December 2001 or, if either of the Purchasers
gives a notification pursuant to Clause 6.1.2, 21 January 2002 or such
other date as the parties may agree in writing;
LOSSES means all losses, liabilities, damages, costs (including legal
costs), charges, expenses, actions, proceedings, claims and demands;
MASTER ANCILLARY SERVICES AGREEMENT means the agreement of that name
dated 15 July 1999 between EFPL and the National Grid Company plc;
MOTOR VEHICLES means all the motor vehicles owned by EFPL and:
(i) used primarily by Relevant Employees at the Completion Date;
or
(ii) used exclusively in connection with the Business at the
Completion Date;
NEW DATA ROOM means the room situated in the Power Station nominated by
EFPL for use by Purchaser A as a temporary replacement for the Data
Centre and to act as a computer and communications centre for the
operation of the Business until Purchaser A obtains access to the Data
Centre;
NON-QUALIFYING DISCLOSURE means any disclosure relating to any matter
or thing to the extent to which such matter or thing could have been
prevented or its effect mitigated by the exercise of Prudent Operating
Practice in respect of the Business by or on behalf of EFPL;
OFFICE EQUIPMENT means all loose items of office and store equipment,
furniture and furnishings (but excluding Computer Equipment) owned by
EFPL and held at the Power Station at the Completion Date;
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OIL STOCKS or DETERMINED STATION OIL STOCK means the stocks of
distillate and heavy fuel oil contained in tanks or other storage
arrangements at the Power Station at Completion determined in
accordance with Part A of Schedule 15;
PART XV means Part XV of the Value Added Tax Regulations 1995 (Capital
Goods Scheme);
PAYMENT ACCOUNT DETAILS means, in relation to any relevant payment to
be made under or pursuant to this Agreement, the name, account number,
sort code, account location and other details specified by the payee
and necessary to effect payment to the payee in accordance with this
Agreement;
PENSION SCHEME means the
Edison Mission Energy Group of the Electricity
Supply Pension Scheme established by a Resolution of the Electricity
Council passed on 20 January 1983 and governed by clauses and rules
which came into operation on 1 April 1983 and which have been amended
from time to time;
PILLAR OF SUPPORT AGREEMENT means the pillar of support agreement dated
23 June 1971 made between (1) National Coal Board and (2) CEGB;
PLANT AND MACHINERY means loose or mobile plant and machinery, tools,
moulds, dies, goods, fittings and other equipment (but excluding the
Spares, the Office Equipment, the Computer Equipment, the Oil Stock,
the Coal Stock and the Stock) owned by EFPL and held at the Power
Station at the Completion Date;
POWERGEN means Powergen UK plc;
POWERGEN INSTRUMENTS means the Property Agreements and the following
instruments (as amended) entered into between Powergen and EFPL:
(i) the Lease;
(ii) the Decommissioning Deed;
(iii) the Coal Purchase Contract (as amended) listed under the
heading "Ferrybridge Index Documents" in Part A of Schedule 12
with reference number 9/8.2/4 (the POWERGEN COAL PURCHASE
CONTRACT); and
(iv) the agreement entitled "Liverpool Bulk Terminal Agreement"
dated 9 July 1999 (the LBT AGREEMENT);
POWERGEN SALE AND LEASE DOCUMENTS means the Sale and Lease Agreement
dated 30 April 1999 and the Deed of Amendment dated 8 July 1999 between
EFPL and Powergen;
POWER STATION means the power station at the Property;
PROPERTY means the leasehold property, brief details of which are set
out in Part A of Schedule 11;
PROPERTY AGREEMENTS means the agreements listed in Part D of Schedule
11;
PRUDENT OPERATING PRACTICE means the exercise of that degree of
prudence and foresight which would reasonably and ordinarily be
exercised by a skilled and experienced operator of a coal-fired power
station under the same or substantially the same circumstances and
conditions;
PURCHASER means either of Purchaser A or Purchaser B and PURCHASERS
means both of them;
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PURCHASERS' GROUP means any company in the same Group as either of the
Purchasers provided such company is not also in the same Group as EFPL;
PURCHASERS' SOLICITORS means ▇▇▇▇▇▇▇▇ Chance, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ except as otherwise specified in this Agreement;
RECEIVABLES means the book and other debts receivable by or owing to
EFPL to the extent that they arise in connection with the Business
(save insofar as they arise under any Contract) and to the extent that
they relate to the period prior to the Completion Date, whether or not
the same are due or payable at the Completion Date (including trade
debts, deposits, prepayments, retrospective rebates and overpayments)
and interest receivable from any third party in respect of the payment
by it of any such sum but excluding any book and other debts listed or
which relate to any other item referred to in Clause 2.1.3;
RECIPIENT has the meaning given in Schedule 14;
RECORDS means all books and information, including all documents and
other material (including all forms of computer or machine readable
material), relating exclusively to the Business, excluding:
(i) all Taxation records (other than the Transferring VAT Records
and any Climate Change Levy Records);and
(ii) Intellectual Property and Know-how;
REGISTERED TITLE means the title to the Lease once registered at HM
Land Registry;
RELEVANT ASSET has the meaning given to it in Clause 7.2.1;
RELEVANT EMPLOYEES means those employees who are employed in the
Business immediately prior to the Completion Date. A list of Employees
is set out in Schedule 19 and this will be updated prior to and at the
Completion Date;
RELEVANT TEST means such tests that Purchaser A may need to perform
prior to Completion to satisfy itself, acting reasonably, that the
Computer Equipment and all software forming part of the Station
Intellectual Property or which is the subject of any Joint Contract in
respect of the Business has been properly installed and connected,
including without limitation, to external communications links, and the
Business is able, as a consequence, to operate in accordance with
Prudent Operating Practice under normal load conditions for an
uninterrupted period of 48 hours subject, however, to the following:
(i) Purchaser A shall seek EFPL's consent prior to conducting all
such tests (such consent not to be unreasonably withheld);
(ii) such tests must not interfere with EFPL's ability to conduct
the Business or operate the Power Station in accordance with
Prudent Operating Practice; and
(iii) Purchaser A shall not, prior to Completion, be entitled to
access EFPL's networks other than in accordance with Clause
4.3 or otherwise access, or seek to access, any confidential
information of EFPL;
RELIEF has the meaning given to it in Schedule 14;
REMEDIAL WORKS means the carrying out of works preventing, mitigating,
removing, remedying, cleaning up, abating, containing or ameliorating
the presence or effect of any Hazardous Material as required under any
Environmental Laws or any relevant permits or authorities or as is
necessary to avert, reduce or mitigate any Environmental Losses;
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REQUEST FOR ARBITRATION has the meaning given in the Rules;
RESPONSE has the meaning given in the Rules;
RETAINED VAT RECORDS has the meaning given in Clause3.5.8;
RULES means the rules of the LCIA;
SETTLEMENT means an agreement concluded between EFPL and the claimant
or potential claimant in any actual or potential Environmental
Proceedings on the basis of which such Environmental Proceedings do not
arise or are discontinued or withdrawn;
SHARED INTELLECTUAL PROPERTY AGREEMENT means the agreement in the
agreed terms which is to be entered into by the parties on Completion
pursuant to which EFPL will license Purchaser A to use certain
Intellectual Property and Know-how that is owned by EFPL or that EFPL
is licensed to use in order to operate the Business;
SPARES means all spare plant and machinery, tools, moulds, dies and
other equipment which are owned by EFPL and held at the Power Station
at the Completion Date;
STAMP DUTY DEED means the stamp duty deed dated 30 April 1999 made
between EFPL and Powergen;
STATION INTELLECTUAL PROPERTY means all rights and interest in
Intellectual Property owned by EFPL which at the Completion Date are:
(i) used or enjoyed exclusively in connection with the Business;
or
(ii) contained in the agreements listed in Part A of Schedule 3,
but, for the avoidance of doubt, excluding the EFPL Intellectual
Property;
STATION KNOW-HOW means all rights and interest in Know-how owned by
EFPL which at the Completion Date are used or enjoyed exclusively in
connection with the Business but, for the avoidance of doubt, excluding
the Know-how listed in Part B of Schedule 3;
STOCK means the stocks of spare parts and consumables (other than the
Spares, the Oil Stocks and the Coal Stocks) which will be held at the
Power Station at Completion and which are not treated as fixed assets
under EFPL's accounting policies;
SUPPLIER CONTRACTS means all contracts, undertakings, arrangements and
agreements (other than the Coal Purchase Contracts) entered into on or
prior to the Completion Date by or on behalf of EFPL with suppliers
exclusively in connection with the Business and being for the sale,
hire, rental or other supply of goods or the provision of services;
TAXATION means all forms of taxation whether direct or indirect and
whether levied by reference to income, profits, gains, net wealth,
asset values, turnover or added value and statutory, governmental,
state, provincial, local governmental or municipal impositions, duties,
contributions and levies (including social security contributions and
any other payroll taxes (including PAYE and National Insurance
Contributions) but excluding all forms of rates), whenever and wherever
imposed (whether imposed by way of a withholding or deduction for or on
account of taxation or otherwise) and all penalties, charges and
interest relating thereto;
TAXATION AUTHORITY means any taxing or other statutory, governmental,
state, provincial or local governmental authority, body, court,
tribunal or official whatsoever (whether of the United Kingdom or
elsewhere in the world) competent to impose, administer or collect any
Taxation or make any decision or ruling on any matter relating to
Taxation;
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TAXES ACT means the Income and Corporation Taxes ▇▇▇ ▇▇▇▇;
TECHNICAL SUPPORT AGREEMENT means the agreement in the agreed terms for
the provision by EFPL of certain technical support services to be
entered into by the parties on Completion;
TENANT means any occupier of the Property or part thereof under a
Letting Document;
THIRD PARTY ASSETS means any physical assets at the Property belonging
to any party other than EFPL including, without limitation, any assets
owned or operated by or under the control of any contractor or visitor
to the Property including any vans, trucks, tractors and other
vehicles, elevators, boats, hand tools, tipping and dumping equipment,
cleaning equipment, storage equipment, skips and other waste disposal
equipment, insulation equipment, oil, slurry, water and other tank
tanks or tankers, ▇▇▇▇▇▇, containers, office furniture, decontamination
equipment, screening and shredding plant, scaffolding, gardening
equipment, equipment used in the ash disposal process, cranes,
roadsweeping equipment, portacabins, mobile workshops, microprocessors,
compressors, filters, shackles, chainblocks, jacks, cables, welding and
burning equipment, chains, winches and other lifting equipment,
trailers, grinders, girder runners, cutting machines, drills, lifters,
transformers, extension leads, crimpers, circuit breakers or other
electrical or mechanical devices used in or in connection with or which
are ancillary to the carrying out of the Business or any activities
carried out at the Property;
TERMINAL POINTS means, with respect to Unit 4, the points identified in
the Terminal Points protocol and which delineate Unit 4 from the
adjacent areas of, or plant and equipment at, the Power Station;
THIRD PARTY CONSENTS means all consents, licences, approvals,
authorisations or waivers required from third parties for the
conveyance, transfer, assignment or novation in favour of the relevant
Purchaser of any of the Assets or Assumed Liabilities (excluding, in
each case, in respect of the Property and/or Property Agreements) in
terms reasonably acceptable to the relevant Purchaser;
TONNE or T means 1,000 kilograms;
TRADING STRATEGY means the trading strategy set out in Schedule 17;
TRANSACTION DOCUMENTS means this Agreement, the Transfer, the Deed of
Covenant in respect of the Decommissioning Deed, the Deed of Covenant
in respect of the Lease, the assignments of the benefit, or the
novations, of the Contracts, the Joint Contracts and the Property
Agreements, the Disclosure Letter, the Shared Intellectual Property
Agreements, the Deed of Participation, the Technical Support Agreement,
the Interconditionality Letter and such other agreements or
arrangements to be entered into under, or contemplated by, this
Agreement, each as amended, varied, supplemented or modified from time
to time;
TRANSFER means the transfer of the Property by EFPL to Purchaser B,
referred to in paragraph 5 of Part B of Schedule 11, such transfer to
be entered into on Completion in accordance with Clause 6.5;
TRANSFER REGULATIONS means the Transfer of Undertakings (Protection of
Employment) Regulations 1981;
TRANSFER SCHEME DOCUMENTS means the documents listed in Schedule 4
together with any documents supplemental to those documents;
TRANSFERRING VAT RECORDS has the meaning given to it in Clause 3.5.8;
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UNIT 4 means the coal fired electricity generating unit located at the
Power Station known as unit 4 and comprising all that plant and
equipment and ancillaries up to the Terminal Points and including the
common interfaces with common equipment or supply points;
VAT means United Kingdom Value Added Tax;
VATA means the Value Added Tax ▇▇▇ ▇▇▇▇;
VAT ORDER means the Value Added Tax (Special Provisions Order) 1995
(Statutory Instrument: 1995/1268);
WARRANTIES means the warranties set out in Schedule 1 given by EFPL;
WASTE means any unwanted or surplus substance irrespective of whether
it is capable of being recycled or recovered or has any value; and
▇▇ ▇▇▇▇▇▇ RELIANCE AGREEMENT means an agreement in the agreed form
pursuant to which the Purchasers may rely on the environmental site
assessment prepared by ▇▇ ▇▇▇▇▇▇ Consultants Ltd in relation to the
Power Station dated July 2001.
1.2 SUBORDINATE LEGISLATION
Any reference to a statutory provision shall include any subordinate
legislation made from time to time under that provision.
1.3 MODIFICATION ETC. OF STATUTES
Except to the extent that any statutory provision made or enacted after
the date of this Agreement would create or increase any liability of
EFPL under the Transaction Documents, any reference to a statutory
provision:
1.3.1 shall include such provision as from time to time modified or
re-enacted or consolidated whether before or after the date of
this Agreement so far as such modification, re-enactment or
consolidation applies or is capable of applying to any
transactions entered into under the Transaction Documents on
or prior to Completion; and
1.3.2 (so far as liability under such provisions may exist or can
arise) shall include also any past statutory provision (as
from time to time modified, re-enacted or consolidated) which
such provision has directly or indirectly replaced.
1.4 COMPANIES ▇▇▇ ▇▇▇▇ AND TAXES ACT
1.4.1 The terms SUBSIDIARY UNDERTAKING and PARENT UNDERTAKING shall
have the same meanings in this Agreement as their respective
definitions in the Companies ▇▇▇ ▇▇▇▇; and
1.4.2 The term ASSOCIATED COMPANY shall have the same meaning in
this Agreement as its definition in the Taxes Act.
1.5 INTERPRETATION ▇▇▇ ▇▇▇▇
The Interpretation Act 1978 shall apply to this Agreement in the same
way as it applies to an enactment.
1.6 REFERENCES
References to this Agreement shall include any Schedules to it and
references to Clauses and Schedules are to Clauses of, and Schedules
to, this Agreement.
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1.7 SINGULAR/PLURAL
References in this Agreement (including the definitions in Clause 1.1)
to the singular include the plural and vice versa.
1.8 INFORMATION
Any reference to books, records or other information means books,
records or other information in any form including paper,
electronically stored data, magnetic media, film and microfilm.
1.9 INDEMNITY ON AN AFTER-TAX BASIS
Where any indemnity contained in this Agreement is expressed to be on
an after-tax basis, then in calculating the liability of the
indemnifying party and determining the obligations of the Recipient,
the provisions of Schedule 14 shall apply.
1.10 AWARENESS
Any Warranty which is qualified as being made so far as EFPL is aware
or to the best of the knowledge, information and belief of EFPL means
so far as EFPL is aware or to the best of EFPL's knowledge, information
and belief, as the case may be, having made reasonable enquiries.
Reasonable enquiries for this purpose means those enquiries made of
those persons listed in Schedule 2 to the Disclosure Letter.
2 AGREEMENT TO SELL THE BUSINESS
2.1 SALE AND PURCHASE OF BUSINESS
2.1.1 Subject to Clause ▇, ▇▇▇▇ shall sell, and Purchaser A shall
purchase, free from all Encumbrances (except as expressly
provided in this Agreement or disclosed in the Disclosure
Letter) as at the Completion Date, the whole of the Business
as a going concern except the Property and such right, title
and interest as EFPL has in the Property Agreements which EFPL
shall sell, and Purchaser B shall purchase (all on the terms
and conditions set out in Part B of Schedule 11), free from
all Encumbrances (except as expressly provided in this
Agreement or disclosed in the Disclosure Letter) as at the
Completion Date.
2.1.2 Without prejudice to the generality of Clause 2.1.1, and
subject to Clause 2.1.3, there shall be included in the sale
under this Agreement to the relevant Purchaser the following:
(i) the Plant and Machinery;
(ii) the Property and such right, title and interest as
EFPL has in the Property Agreements and the ▇▇▇▇
Common Deeds (all on the terms and conditions set out
in Part B of Schedule 11);
(iii) the Spares;
(iv) the Stock;
(v) the Oil Stocks;
(vi) the Coal Stocks;
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(vii) the benefit of the Contracts, insofar as EFPL is
entitled, subject to the provisions of Clause 7, to
transfer the same;
(viii) the Motor Vehicles;
(ix) the Office Equipment;
(x) the Computer Equipment;
(xi) the Station Know-how;
(xii) the Station Intellectual Property;
(xiii) the benefit of any claim under an insurance policy
listed in Schedule 10 made by EFPL prior to
Completion to the extent that such claim relates
exclusively to any of the Assets, the Property or any
Assumed Liability, save to the extent that any such
claim relates to:
(a) a Loss incurred by EFPL which has been made
good prior to the Completion Date;
(b) any business interruption at the Power
Station;
(c) the Powergen Sale and Lease Documents; or
(d) the matters referred to in paragraph 6(a) of
the specific disclosures in the Disclosure
Letter.
(xiv) the benefit (so far as the same can lawfully be
assigned or transferred to the relevant Purchaser) of
the Claims. To the extent that any payment is made to
EFPL after the Completion Date in respect of any such
Claim, EFPL shall receive the same as trustee for the
relevant Purchaser, shall record the payment
separately in its books and shall account to the
relevant Purchaser for the same within five Business
Days after receipt;
(xv) the Goodwill; and
(xvi) the Records.
2.1.3 There shall be excluded from the sale under this Agreement the
following:
(i) the Receivables and the benefit of all securities in
relation to those Receivables and of all guarantees,
indemnities and rights in respect of those
Receivables;
(ii) the EFPL Intellectual Property;
(iii) the Cash Balances;
(iv) any Third Party Assets including all assets which are
the subject of the Transfer Scheme Documents; and
(v) the benefit of the Powergen Sale and Lease Documents.
2.2 ASSUMPTION OF LIABILITIES
2.2.1 With effect from the Completion Date and subject to any
express provisions of this Agreement to the contrary, the
Purchasers shall assume, duly and punctually pay, satisfy,
discharge, perform and fulfil all Liabilities of EFPL
(including Environmental Liabilities but excluding any
Liabilities for Taxation (other than any climate change levy
payable by EFPL in respect of any deemed supplies to itself of
taxable commodities)
- 15 -
and Borrowed Moneys) to the extent that they relate to the
Business, the Assets and the Relevant Employees (and any
former employees) (other than liabilities in respect of
retirement or death benefits save to the extent that Schedule
13 applies) which are existing, outstanding or in force at the
Completion Date (to the extent that such Liabilities have not
been fully paid, satisfied, performed, fulfilled or discharged
before the Completion Date) or which arise, accrue or are
assessed after the Completion Date.
2.2.2 EFPL and the Purchasers shall use their respective best
endeavours to procure that the waste management licence issued
by the Environment Agency under reference number NYCC/042 for
the disposal of pulverised fuel ash from the Power Station is
transferred to the relevant Purchaser at, or as soon as
reasonably practicable after, Completion, including the giving
of any financial or other guarantee or undertaking or bond by
the relevant Purchaser as the Environment Agency may require.
2.2.3 The relevant Purchaser undertakes that if the waste management
licence referred to in Clause 2.2.2 is not transferable until
after Completion, it will notify EFPL if it disposes of any
pulverised fuel ash at the Property as soon as is practicable
after each disposal (providing EFPL with sufficient details to
enable it to comply with all its obligations in respect of
landfill tax arising from each such disposal). The Purchasers
shall indemnify EFPL and keep EFPL indemnified on an after tax
basis against any liability EFPL has to landfill tax
(including penalties and interest relating to landfill tax) in
respect of any such disposal(s).
2.2.4 EFPL shall be responsible for all liabilities for non-domestic
rates which accrue before the Completion Date.
3 CONSIDERATION
3.1 DEPOSIT
3.1.1 On or before the date of this Agreement, Purchaser A shall pay
or procure the payment of the cash sum of POUND STERLING
25,000,000 to the Client Account. The Deposit shall be held
by EFPL's Solicitors as stakeholders, pending Completion or
earlier lapse or termination of this Agreement pursuant to
Clause 5.4.3.
3.1.2 The Deposit and all interest accrued on it (net of any
Taxation payable) shall be paid to:
(i) EFPL on Completion (by way of a reduction to the
consideration payable on the Completion Date pursuant
to Clause 3.2); or
(ii) Purchaser A (or its nominee) within five Business
Days after earlier lapse or termination of this
Agreement pursuant to Clause 5.4.3,
save in the circumstances referred to in Clause 5.5, in which
case the Deposit and any interest accrued on it shall (without
prejudice to any other rights and remedies of EFPL) be
forfeited by Purchaser A and paid to EFPL in accordance with
Clause 5.5.
3.2 AMOUNT
The consideration for the purchase of the Business shall be the cash
sum of POUND STERLING 360,100,000 (three hundred and sixty million one
hundred thousand pounds) allocated as set out in Schedule 2 as adjusted
pursuant to the provisions of Schedule 15.
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3.3 RISK
Risk of loss or damage to the Assets shall pass to the Purchasers on
the date of this Agreement.
3.4 ALLOCATION OF SUBSEQUENT PAYMENTS
If any payment is made by EFPL to either Purchaser in respect of any
claim against EFPL for any breach of the Transaction Documents (or any
agreement entered into pursuant to the Transaction Documents) or
pursuant to any indemnity under this Agreement:
3.4.1 if the payment and/or claim relates to a single category of
Asset, the payment shall be made by way of adjustment to the
consideration given by the relevant Purchaser for the
particular category of Asset;
3.4.2 if the payment and/or claim relates to more than one category
of Asset, the payment shall be allocated rateably to the
consideration given by the relevant Purchaser for the relevant
category or categories of Asset; and
3.4.3 if the payment and/or claim relates to no particular category
of Asset, the payment shall be allocated rateably to the
consideration given by the relevant Purchaser for the
Property,
in each case by reference to the proportions in which the initial
consideration payable under Clause 3.2 is allocated as set out in
Schedule 2 and the consideration for the Business shall be deemed to
have been reduced as appropriate by the amount of such payment.
3.5 VALUE ADDED TAX AND STAMP DUTY
3.5.1 All amounts expressed in this Agreement as payable by the
Purchasers are expressed exclusive of any VAT which may be
chargeable on those amounts.
3.5.2 EFPL and the Purchasers intend that, and shall use all
reasonable endeavours to secure that, the sale and transfer of
the Business and the Assets pursuant to this Agreement shall
(pursuant to Article 5 Value Added Tax (Special Provisions)
Order 1995) be treated as neither a supply of goods nor a
supply of services for the purpose of VAT, but as a transfer
of a business as a going concern (TOGC).
3.5.3 EFPL shall (subject to the Purchasers complying with their
obligations under this Clause 3), within one month of the date
of this Agreement, submit to Customs a written request (in a
form agreed between EFPL and the Purchasers and disclosing
therein all material facts) for confirmation that Customs will
treat the sale and transfer of the Business and Assets
pursuant to this Agreement as a TOGC.
3.5.4 The Purchasers represent, warrant and undertake to EFPL as
follows:
(i) that they will on Completion be registered taxable
persons for the purposes of VAT and they will on or
before Completion have made and notified to Customs
an election in respect of the Property pursuant to
paragraph 2 schedule 10 VATA (delivering copies to
EFPL on or before Completion);
(ii) following Completion that they intend to use the
Assets to carry on the same kind of business as that
carried on by EFPL at the Property prior to
Completion; and
(iii) there will be no significant break in the normal
trading pattern of the Business immediately after
Completion.
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3.5.5 If Customs determine in writing (the WRITTEN DETERMINATION)
(whether in response to the submission referred to in Clause
3.5.3 above, as a result of the breach of any of the
representations, warranties and undertakings given by the
Purchasers in Clauses 3.5.4 (i), (ii) and (iii) above or
otherwise), that VAT is chargeable in respect of the supply of
all or any part of the Business and the Assets under this
Agreement:
(i) EFPL shall give notice to the Purchasers of the
Written Determination within five Business Days of it
receiving such Written Determination and shall at the
same time as giving such notice provide the
Purchasers with a copy of such Written Determination;
(ii) the Purchasers shall pay to EFPL (subject to delivery
by EFPL of a valid VAT invoice for VAT purposes) a
sum equal to the amount of VAT (the VAT AMOUNT) that
has thereby been determined to be chargeable in
respect of the supply of all or any part of the
Business and the Assets under this Agreement together
with an amount (the PENALTIES AMOUNT) equivalent to
any interest or penalties payable thereon, such
payment to be made no later than the date five
Business Days prior to the latest date EFPL can
account to Customs for the VAT Amount and the
Penalties Amount, if any, without incurring penalties
and interest (or further penalties and interest) for
late payment; and
(iii) in the event that the Purchasers fail to duly pay the
VAT Amount and/or the Penalties Amount to EFPL
pursuant to this Clause 3.5.5, the Guarantor hereby
agrees to indemnify EFPL, on demand, on an after tax
basis for an amount equivalent to the VAT Amount
and/or (as the case may be) the Penalties Amount in
full and final settlement of the obligations of the
Purchasers and the Guarantor under this Clause 3.5.5,
Provided always that upon full discharge by the Purchasers
and/or the Guarantor of their respective obligations under
this Clause 3.5.5, EFPL shall cease to have any right to make
any claim against any of the Purchasers and/or the Guarantor
in respect of a breach of the representations, warranties and
undertakings set out in Clause 3.5.4 above.
3.5.6 Amounts due from the Purchasers and/or the Guarantor under
this Clause 3.5 shall not be set off by the Purchasers and/or
the Guarantor against any amounts due or owing for any reason
from EFPL to the Purchasers and/or the Guarantor or any other
liability or obligation (contingent or otherwise) of EFPL to
the Purchasers and/or the Guarantor.
3.5.7 If the Purchasers pay any amount to EFPL in respect of VAT
which is not properly chargeable then EFPL shall promptly
repay such amount to the Purchasers.
3.5.8 EFPL undertakes that it will not at any time seek a direction
that EFPL be entitled to custody of any of the records
relating to the Business which are held at the Power Station
at the Completion Date and which are required to be preserved
after Completion pursuant to the provisions of schedule 11
paragraph 6 VATA (the TRANSFERRING VAT RECORDS). In relation
to the VAT records relating to the Business not held at the
Power Station at the Completion Date (the RETAINED VAT
RECORDS), EFPL will seek a direction from Customs that it be
entitled to retain those records. Each party shall during the
period for which the records are required to be preserved
under schedule 11 paragraph 6 VATA, preserve such records and,
where such records are required by any other party for the
purposes of complying with its obligations under the laws in
relation to VAT, afford to such other party (on reasonable
prior notice and at the
- 18 -
cost of such other party) access to such records for the
purposes of inspecting and making copies of the same.
3.5.9 EFPL hereby confirms that it has made an election pursuant to
schedule 10 paragraph 2 VATA in respect of the Property and
will supply to the Purchasers on or before Completion a copy
of that election.
3.5.10 All VAT payable in respect of goods and services supplied or
deemed to be supplied by EFPL in connection with the Business
prior to Completion and all interest payable on, and penalties
attributable to, those supplies shall be paid to Customs by
EFPL. Subject to Clause 3.5.12 below, EFPL shall be entitled
to receive and to retain for its own benefit all
reimbursements or credits from Customs for VAT borne by EFPL
on goods and services supplied to EFPL prior to Completion and
any payments received in respect of VAT overpaid to Customs
prior to that date.
3.5.11 All VAT payable in respect of goods and services supplied or
deemed to be supplied by the Purchasers in connection with the
Business on or after Completion and all interest payable on,
and penalties attributable to, those supplies shall be paid to
Customs by the Purchasers. The Purchasers shall be entitled to
receive and to retain for their own benefit all reimbursement
or credit from Customs for VAT borne by the Purchasers on
goods and services supplied to the Purchaser on or after
Completion and any payments received in respect of VAT
overpaid to Customs after that date.
3.5.12 Any recovery of input tax after the date of this Agreement in
respect of any asset to which Part XV applies shall be
retained by the Purchasers. The Purchasers shall not make any
claim against EFPL in respect of any adjustment of input tax
relating to any such item pursuant to Part XV. EFPL shall
provide to the Purchasers on request such information in
respect of its recovery of input tax and adjustments to that
tax as shall reasonably be required by the Purchasers to
comply fully with its obligations under Part XV.
3.5.13 The Purchasers agree that they shall cooperate fully with EFPL
after Completion in relation with any obligation on EFPL to
re-present for stamping to Inland Revenue Stamp Office any of
the Lease Documents or associated documents. The Purchasers
agree that they will return or procure the return to EFPL of
any of the Lease Documents (subject to mutually acceptable
undertakings) to enable EFPL to comply with any such
obligation.
4 PRE-COMPLETION OBLIGATIONS
4.1 EFPL'S OBLIGATIONS IN RESPECT OF CONTRACTS
4.1.1 EFPL shall procure that from the date of this Agreement up to
Completion (or, in the case of Contracts not transferred at
Completion, the time of the relevant transfer) the Contracts
and any collective agreements, insurance policies and material
contracts of employment are carried out and completed and that
EFPL's obligations under the Contracts are performed in the
ordinary course and in accordance with their respective terms
(subject, in the case of Contracts not transferred at
Completion, to the provisions of Clause 7.2).
4.1.2 Subject to Clause 4.1.3, EFPL shall not, without Purchaser A's
prior written consent (such approval not to be unreasonably
delayed or withheld), from the date of this Agreement up to
Completion:
- 19 -
(i) other than in the ordinary and usual course business,
remove Power Station Assets;
(ii) other than in the ordinary and usual course of
business, enter into or amend, renew or extend any
Contracts relating to the Power Station having a
value of POUND STERLING 100,000 or more if those
Contracts are to be transferred to Purchaser A on
Completion; and
(iii) enter into or amend, renew or extend any Contracts
relating to the Power Station having a value of
POUND STERLING 500,000 or more individually or
having, when aggregated with all other Contracts (of
any value) of the same nature, an aggregate value of
POUND STERLING 2,000,000 or more if those Contracts
are to be transferred to Purchaser A on Completion.
4.1.3 From the date of this Agreement up to Completion EFPL may,
without the Purchasers' prior written consent, enter into
contracts for the supply and purchase of electricity by EFPL
to and from counterparties, pursuant to Grid Trade Master
Agreements between EFPL and such counterparties in accordance
with the Trading Strategy.
4.1.4 EFPL shall from and including the date of this Agreement until
Completion act in accordance with Prudent Operating Practice
in respect of the ongoing maintenance of the Power Station
and, for the purposes of this Clause 4.1.4 only and to the
extent consistent with its obligations under the foregoing
provisions of this Clause 4.1, the standard of "Prudent
Operating Practice" shall not be compromised by the fact that
the Business is intended to be transferred to the Purchasers
at Completion.
4.2 JOINT CONTRACTS
4.2.1 EFPL shall use reasonable endeavours to effect the assignment
(with the consent of the relevant counterparty or
counterparties) to the relevant Purchaser, or the novation in
favour of the relevant Purchaser (in each case as notified by
the Purchasers to EFPL as soon as practicable following
signing of this Agreement), of EFPL's benefit, interest,
rights and liabilities in or under such part of the Joint
Contracts as relates exclusively to the Business, such
assignment or novation to be in the form of the Joint Contract
Deed of Assignment or the Joint Contract Deed of Novation (as
appropriate) and to take effect from the Completion Date.
EFPL's obligations under this Clause 4.2 will not require it
to do anything which may prejudice EFPL's own benefits,
interests and rights under the Joint Contracts insofar as they
relate to retained businesses of EFPL or of its Group.
4.2.2 The provisions of Clauses 4.1 and 8.3 shall apply, MUTATIS
MUTANDIS (but as if the references in those Clauses to
CONTRACTS were to JOINT CONTRACTS), in respect of that part of
any Joint Contract (specified in the Joint Contract
Notification) relating exclusively to the Business.
4.2.3 The provisions of Clauses 7.1.4 and 7.1.5 and Clauses 7.2 and
7.3 shall apply, MUTATIS MUTANDIS, to the obtaining of
consents from Joint Contract counterparties to the assignment
or novation as appropriate of that part of any Joint Contract
(specified in the Joint Contract Notification) relating
exclusively to the Business.
4.2.4 EFPL shall not be required to assign or novate that part of a
Joint Contract relating exclusively to the Business otherwise
than to or in favour of the relevant Purchaser where any Third
Party Consent is required.
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4.2.5 Purchaser A agrees that the provisions of this Clause 4.2
shall apply to additional joint contracts (not listed in
Schedule 9) which are notified by EFPL to Purchaser A in
writing following signing of this Agreement and which have
been entered into:
(i) in the ordinary course of trading; or
(ii) outside the ordinary course of trading but on
arms-length commercial terms.
EFPL and Purchaser A agree that they will in good faith
discuss and seek to agree appropriate arrangements in respect
of additional joint contracts notified to Purchaser A and not
falling within (i) or (ii) above.
4.3 ACCESS TO POWER STATION
4.3.1 EFPL shall use all reasonable endeavours to:
(i) provide Purchaser A and its employees, agents and
sub-contractors with such access to the Power Station
as is necessary for Purchaser A to carry out the
Works, such access to be provided for Purchaser A and
its third party contractors during the hours of
8.30a.m. and 4.30p.m. and thereafter reasonable
access shall be provided with the prior approval of
EFPL;
(ii) allocate one employee of EFPL at the Power Station to
be the contact for Purchaser A and any third party
contractors which require access to the Power Station
to carry out Works and provide services on behalf of
Purchaser A;
(iii) provide all reasonable assistance to enable any third
party contractors to carry out any Works. Purchaser A
agrees to provide EFPL with reasonable notice of the
identity of any third party contractor requiring
access to the Power Station, and EFPL shall not
unreasonably refuse access to any such contractor;
(iv) provide Purchaser A with co-operation and assistance
reasonably requested in relation to the carrying out
of the Works including reasonable access to those
agents, consultants, contractors, officers and
employees of EFPL that may be able to assist
Purchaser A in carrying out the Works;
(v) ensure that its agents, consultants, contractors,
officers and employees co-operate with reasonable
requests from Purchaser A in relation to the
provision of the assistance referred to in Clause
4.3.1(iv);
(vi) complete those matters which form part of the Works
and for which EFPL is responsible in a timely and
competent manner and using all reasonable skill and
care; and
(vii) immediately notify Purchaser A of any applicable
security, health and safety requirements of which it
is, or becomes, aware and Purchaser A agrees to
comply with such requirements.
4.3.2 For the purposes of this Clause 4.3, the WORKS are those works
to be carried out by each of the parties as set out in Clause
4.3.3.
4.3.3 EFPL shall use all reasonable endeavours to:
(i) forthwith upon the public announcement of this
Agreement in compliance with Clause 17.2 or shortly
thereafter:
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(a) provide Purchaser A with such access to the
New Data Room to install communications
links, servers, routers and any such other
equipment and links as in Purchaser A's
reasonable opinion are necessary to enable
Purchaser A to operate the Business;
(b) assign to Purchaser A a test IP address for
the purpose of EDL line qualification; and
(c) allow Purchaser A, subject to the
supervision and control of EFPL, to conduct
an audit of the site and the operations of
the Power Station in order to determine how
it wishes to best configure and organise the
Computer Equipment (such configuration and
organisation to be carried out in accordance
with the other provisions of this clause).
(ii) within two weeks or such other time as may be agreed
after the date of this Agreement:
(a) ensure that there is adequate air
conditioning, power supply, fire suppression
and access control to enable Purchaser A to
operate the New Data Room so as to enable
Purchaser A to operate the Business;
(b) subject to all necessary consents being
obtained, provide Purchaser A with access to
the NGC software and access to the EDL line
and access (subject to a firewall) to the
EDL router in the telecommunications block
in the Power Station and allow Purchaser A
to install its own servers and software to
operate with the EDL lines so as to enable
Purchaser A to carry out the necessary
qualification process with NGC so as to
enable Purchaser A to operate the Business;
(c) provide a feed of the on-line meter data
into the New Data Room;
(d) subject to EFPL's reasonable requirements to
operate the Business, transfer sufficient
servers and EDL routers and any on-line
metering routers or servers (if any) to the
New Data Room so as to enable Purchaser A to
operate the Business and shall transfer to
and install on those servers, all those
software and systems being transferred to
Purchaser A as are required to be installed
on those servers for the proper operation of
the Business;
(e) ensure that appropriate security actions are
taken to ensure that there can be no
unauthorised access of Purchaser A's network
and that no communications that transit
through the Data Centre are compromised or
intercepted; and
(f) ensure that the server or servers which EFPL
provides for use by Purchaser A do not
contain any viruses, computer worms, Trojan
horses, drop dead devices, or other
malicious code or any hardware devices that
could be used to interrupt or monitor the
performance of the servers of the software
resident on the servers.
4.3.4 In the event that EFPL is not able to not transfer the EDL
routers and any on-line metering routers or servers (if any)
to the New Data Room in accordance with the provisions of
Clause 4.3.3 then EFPL shall, immediately following Completion
and until such time as such routers or servers are transferred
to Purchaser A, provide Purchaser
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A with 24-hour supervised access to the sites at which those
routers or servers are located.
4.3.5 For the avoidance of doubt, nothing in Clause 4.3 shall
require EFPL to provide human, technical or management
resources which exceed the resources deployed for the benefit
of the Power Station prior to the signing of this Agreement.
4.3.6 The Purchasers shall indemnify and hold EFPL, its affiliated
and subsidiary companies and its and their officers,
directors, agents and employees, harmless from and against all
claims, actions, expenses, losses, liabilities, damages,
fines, penalties, costs and demands arising directly out of or
directly concerning the Works. Without limiting the foregoing,
the Purchasers acknowledge that the above indemnity shall
apply to any claim, action, cost, expense, loss, liability,
damage, fine, penalty or demand brought or caused by any of
its licensees, employees, agents or sub-contractors against
EFPL or its employees or agents arising directly from the
Works. EFPL acknowledges that the above indemnity shall not
apply where such claim, action, cost, expense, loss,
liability, damage, fine, penalty or demand arises as a result
of gross negligence on the part of EFPL or its officers,
directors, or employees (save where EFPL or its officers,
directors or employees are acting in accordance with Purchaser
A's requests pursuant to Clause 4.3.1(v)).
4.3.7 Purchaser A and its employees, agents and sub-contractors
shall not, during the Works, interfere with, alter or
interrupt EFPL's Computer Equipment, infrastructure, software
or communications, or generally interfere with the conduct of
the Business in any way except to the extent required in order
to conduct and complete the Works.
4.3.8 EFPL shall be responsible for the payment of all time, labour
costs (including employees of EFPL or of any member of the EME
Group), expenses, materials, components, equipment, costs and
charges of any nature which are paid, suffered, incurred by
EFPL, or any member of the EME Group, their agents, employees
or contractors in carrying-out any and all aspects of the
Works (the WORKS COSTS) up to a maximum amount of
(pound)50,000.
4.3.9 If the verifiable Works Costs exceed (pound)50,000 the
Purchasers shall pay, compensate and fully indemnify EFPL (on
an after-tax basis) for the Works Costs which exceed such
amount upon receipt of a valid invoice from EFPL (WORKS
INVOICE).
4.3.10 EFPL must maintain accurate records for all costs incurred and
maintain all invoices for third party supplies and supporting
time sheets for all labour costs (WORKS RECORDS) and shall
produce such material if requested by Purchaser A. No amounts
shall be considered in the calculation of the (pound)50,000
cap which cannot be supported by such records.
4.3.11 Purchaser A shall pay to EFPL such sums as are stated in the
relevant Works Invoice within 20 days of the date of the Works
Invoice.
4.3.12 EFPL must not make any purchases of hardware or software
relating to the Works that exceed POUND STERLING 1,000 without
first obtaining Purchaser A's consent and allowing Purchaser
A, in its absolute discretion, to purchase such hardware or
software on its own account. unless, at the date of this
Agreement, purchases or orders of such hardware or software
have already been made.
4.3.13 If this Agreement is terminated for any reason prior to
Completion, Purchaser A shall, on request by EFPL:
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(i) at its own cost, remove all Works and return the
affected areas of the Power Station; and
(ii) reimburse EFPL (on an after tax basis) for any and
all labour costs, expenses, materials, components,
equipment, costs and charges of any nature which are
paid, suffered or incurred in returning the affected
areas of the Power Station,
to the state of repair, order and condition enjoyed by EFPL
prior to conduct of the Works unless otherwise agreed between
the parties.
4.3.14 Any amount that is properly payable to EFPL pursuant to this
Clause 4.3 and which remains unpaid after the date when the
payment was due shall bear interest thereafter, such interest
to accrue from day to day at the rate of 2 per cent. above the
prevailing base lending rate published from time to time by
the National Westminster Bank PLC from (and including) the
date which amount is due until (but excluding) the date upon
which the amount due is actually received.
4.3.15 All parties shall use reasonable endeavours to ensure that IT
Finalisation is achieved by the Completion Date or as soon
thereafter as is reasonably possible.
4.3.16 If, on or before 10 Business Days before the Completion Date,
Purchaser A reasonably believes that IT Finalisation will not
be achieved by the Completion Date then:
(i) Purchaser A will immediately give notice of such
belief to EFPL;
(ii) the parties will negotiate in good faith to agree the
full and final terms of the IT Support Agreement
prior to the Completion Date;
(iii) if the parties cannot agree the full and final terms
of the IT Support Agreement then any dispute shall be
referred to arbitration in accordance with the
provisions set out in Clause 16 (but not Clause
16.2.3) of this Agreement although the reference to
"20 days" in Clause 16.2.1 shall be deemed to read "2
days"; and
(iv) the parties will enter into the IT Support Agreement
(taking into account the result of any arbitration
under Clause 4.3.16(iii) above) when such full and
final terms are agreed (whether this occurs before or
after Completion).
4.3.17 Without prejudice to the specific provisions set out in
Clauses 4.3.1 to 4.3.16 above, EFPL shall, in two weeks prior
to the Completion Date, grant reasonable access to the plant
manager at the Power Station (subject always to EFPL's
reasonable requirements to operate the Business of the Power
Station).
5 CONDITIONS PRECEDENT
Completion of this Agreement is conditional upon satisfaction of the
following conditions, or their satisfaction subject only to Completion
of this Agreement.
5.1 CONDITIONS TO BE SATISFIED BY EFPL
5.1.1 EFPL having taken all necessary corporate action and obtained
all approvals and consents of any necessary authority or as
may otherwise be required by law or by its constituent
documents to permit it to enter into and perform its
obligations under the Transaction Documents;
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5.1.2 Completion to the satisfaction of EFPL of EFPL's obligations
to inform and consult appropriate representatives as required
by Regulation 10 of the Transfer Regulations;
5.1.3 The Director General of Electricity Supply consenting to the
disposal for the purposes of paragraph 4 of schedule 3 to the
Electricity ▇▇▇ ▇▇▇▇;
5.1.4 The Purchasers having received a legal opinion from EFPL's
Guernsey legal counsel, Ozannes, in the form set out in
Schedule 16;
5.1.5 The Purchasers having received a guarantee of EFPL's
obligations from
Edison Mission Energy in the form set out in
Schedule 20;
5.1.6 The Purchasers having received from legal counsel to
Edison
Mission Energy a legal opinion relating to the guarantee
described in Clause 5.1.5 substantially in the form set out in
Schedule 21;
5.1.7 EFPL having disclosed the Confirmations of Electricity Trades
(CONFIRMS) executed pursuant to the Electricity Trading
Contracts prior to the date of this Agreement which relate to
the period referenced in the Disclosed Trading Data and the
trading position for such period established by the said
Confirms not being materially inconsistent with the aggregate
trading position of EFPL for such period set out in the
Disclosed Trading Data; and
5.1.8
Edison Mission Energy not being, as at immediately prior to
Completion, insolvent or the subject of:
(i) any bankruptcy proceedings within the meaning of
Chapter 11 of the US Bankruptcy Code; or
(ii) any similar proceedings of equivalent materiality.
5.2 CONDITIONS TO BE SATISFIED BY THE PURCHASERS AND/OR THE GUARANTOR
5.2.1 EFPL having received a legal opinion from the Guarantor's US
counsel, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, General Counsel of American
Electric Power Company, Inc., in form and substance reasonably
satisfactory to EFPL, in relation to the validity and
enforceability of the Guarantor's obligations under the
Transaction Documents; and
5.2.2 EFPL having received a legal opinion from the Purchasers'
legal counsel as follows:
(i) for Purchaser A - ▇▇▇▇▇▇▇▇ Chance, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇; and
(ii) for Purchaser B - ▇▇▇▇▇▇, Strawinskylaan 2001,
Postbus 75640, ▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇,
in form and substance reasonably satisfactory to EFPL, in
relation to the validity and enforceability of the Purchasers'
respective obligations under the Transaction Documents.
5.3 RESPONSIBILITY FOR SATISFACTION
5.3.1 EFPL hereby undertakes to use its reasonable endeavours to
ensure the satisfaction of each of the conditions set out in
Clause 5.1. The Purchasers and the Guarantor shall procure the
satisfaction of each of the conditions set out in Clause 5.2.
- 25 -
5.3.2 Without prejudice to the foregoing, each of the parties agrees
that it shall, upon a request from the other, promptly
co-operate with and provide all necessary information
reasonably required by the other party or by any Competent
Authority or any government, governmental, supranational or
trade agency, court or other regulatory body, in respect of
all requests and enquiries in connection with the Transaction
Documents and the arrangements relating to those documents
from any such Competent Authority or government, governmental,
supranational or trade agency, court or other regulatory body.
5.4 NON-SATISFACTION/WAIVER
5.4.1 Either of the Purchasers (in respect of the conditions set out
in Clause 5.1.4 to 5.1.8 inclusive) or EFPL (in respect of the
conditions set out in Clause 5.2) may at any time waive, in
whole or in part and conditionally or unconditionally, the
relevant conditions by notice in writing to EFPL (in respect
of either of the Purchasers) or to either of the Purchasers
(in respect of EFPL).
5.4.2 Whichever of EFPL and the Purchasers is responsible for
satisfaction of each condition as specified in Clause 5.3.1
shall (unless the condition is capable of waiver and has been
waived by the other party) promptly give notice to the other
party of the satisfaction of the relevant conditions within
two Business Days after becoming aware of the same.
5.4.3 If any of the conditions specified in Clause 5.1 or 5.2 are
not satisfied (or, if capable of waiver, have not been waived
by the relevant party) on or before the Long-Stop Date, this
Agreement shall lapse and no party shall have any claim
against any other under it, save for any claim:
(i) arising from breach of any of the undertakings or
agreements contained in Clauses 5.3 or 17.2; or
(ii) in the case of EFPL, pursuant to Clause 5.5, Clause
4.3.5, Clause 4.3.6, Clause 4.3.9 or Clause 4.3.13.
5.5 FORFEITURE OF DEPOSIT
If either of the Purchasers or the Guarantor fail to comply with their
obligations (where those obligations have not been waived by EFPL)
pursuant to:
5.5.1 Clause 5.3 prior to the Long-Stop Date; or
5.5.2 Clause 6,
and, in the case of Clause 5.5.1, EFPL has in all material respects
fulfilled its obligations pursuant to Clauses 5.1 and 5.3.1 (save to
the extent waived by either of the Purchasers) and is capable of
performing in all material respects its obligations under Clause 6.2
(or would be so capable but for any failure or inability of the
Purchasers to comply with their obligations as aforesaid) and
Completion fails to occur as a result then that default by either of
the Purchasers or Guarantor shall be deemed to constitute repudiation
by the Purchasers of this Agreement, which shall entitle EFPL to
terminate this Agreement forthwith. Upon such termination the Deposit
(and any interest accrued on it (net of any Taxation payable) up to the
date of such termination) shall, without prejudice to any other rights
and remedies of EFPL, be forfeited by the Purchasers and the
Purchasers:
- 26 -
5.5.3 consent to the payment of the Deposit (and any accrued
interest) by EFPL's Solicitors to EFPL; and
5.5.4 waive any rights to the Deposit (and any accrued interest).
5.6 RETURN OF DEPOSIT
If EFPL fails to comply in all material aspects with its obligations
(save to the extent waived by either of the Purchasers) pursuant to:
5.6.1 Clause 5.3 prior to the Long-Stop Date and each Purchaser has
in all material respects fulfilled its obligations pursuant to
Clause 5.3; or
5.6.2 Clause 6,
and Completion fails to occur as a result by the Long-Stop Date, then
this Agreement shall terminate on the Long-Stop Date and the Deposit
shall be returned to Purchaser A (or its nominee) within five Business
Days after the Long-Stop Date together with all interest accrued on it
(net of any Taxation payable) up to that date.
5.7 CHANGE IN LAW
If, as a result of any change in any applicable law (which, for the
avoidance doubt, shall not include a change in governmental or
regulatory policy) after the date of this Agreement it becomes unlawful
for Completion to occur on or prior to the Long-Stop Date, this
Agreement shall terminate and the Deposit and all interest accrued on
it (net of any Taxation payable) up to the date of repayment shall be
paid to Purchaser A (or its nominee) within five Business Days after
the Long-Stop Date.
5.8 CONSENTS ETC.
For the avoidance of doubt but without prejudice to the provisions of
Clause 5.7, the inability of either Purchaser to obtain any necessary
consents, licences, approvals or other authorisation (including,
without limitation, a generation licence under Section 6 of the
Electricity ▇▇▇ ▇▇▇▇ (as amended)) to carry on the Business shall not
constitute grounds for the return of the Deposit pursuant to Clauses
3.1.2(ii) or 5.6.
6 COMPLETION
6.1 DATE AND PLACE
6.1.1 Completion shall take place at the offices of EFPL's
Solicitors on Friday 14 December 2001, or (subject to Clause
6.1.2 below) at such other place, time or date as may be
agreed in writing between the Purchasers and EFPL.
6.1.2 If, by close of business on Friday 30 November 2001, neither
of the Purchasers has obtained a generation licence under
Section 6 of the Electricity ▇▇▇ ▇▇▇▇ either of the Purchasers
may elect, by notification in writing to EFPL, that Completion
should take place on Monday 14 January 2002.
6.2 EFPL'S OBLIGATIONS ON COMPLETION
Except where Clause 7.2 or paragraph 9.2 of Part B of Schedule 11
applies, on Completion EFPL shall deliver or make available to the
Purchasers:
6.2.1 evidence of due fulfilment of the conditions specified in
Clause 5.1;
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6.2.2 those Assets which are capable of transfer by delivery, with
the intent that title in such Assets should pass upon such
delivery;
6.2.3 with respect to the Assets which are not capable of transfer
by delivery, any applicable:
(i) conveyances or transfers;
(ii) assignments; and
(iii) novations.
In the case of assignments and novations, these shall be in
the form of the Deed of Assignment or Deed of Novation (as
relevant), in each case duly executed as a deed by EFPL, any
third party and, if so required by EFPL, the relevant
Purchaser. For the avoidance of doubt, failure by the relevant
Purchaser to execute as required any such Deed of Assignment
or Deed of Novation shall not be considered for the purposes
of this Agreement as a failure by EFPL to comply with this
Clause 6.2;
6.2.4 the documents of title relating to the Assets;
6.2.5 such Third Party Consents as EFPL may have obtained (subject
always in the case of the Property and the Property Agreements
to the provisions of Part B of Schedule 11);
6.2.6 in each case where the said information is not at the
Property, the Records and all information relating exclusively
to the Business as the Purchasers may reasonably require,
other than information which is:
(i) reasonably regarded as legally privileged;
(ii) reasonably regarded as confidential to the activities
of EFPL (otherwise than in connection with the
Business); or
(iii) Intellectual Property and Know-how (other than that
which EFPL is transferring or otherwise making
available at Completion); and
6.2.7 the Certificate of Title provided by Linklaters and addressed
to the Purchasers and a supplemental certificate in respect of
matters (including the results of new searches carried out
following the date of this Agreement and prior to Completion)
arising since the Effective Date (as defined in the
Certificate of Title) which, had the Effective Date been the
date of Completion, should have been disclosed in the
Certificate of Title,
Provided that with respect to the obligations in Clause 6.2.3, EFPL
shall not be obliged to convey, transfer, assign or novate any Assets
otherwise than to or in favour of the Purchasers where any relevant
Third Party Consent is required.
6.3 PURCHASERS' OBLIGATIONS ON COMPLETION
As soon as practicable following satisfaction or waiver of the
conditions set out in Clause 5 and against compliance by EFPL with
Clause 6.2, there shall be delivered to EFPL evidence of due fulfilment
of the conditions specified in Clause 5.2.
6.4 COMPLETION
On Completion, the Purchasers shall pay or procure that there is paid
the consideration for the purchase of the Business in the manner
specified in Clause 3.
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6.5 ADDITIONAL AGREEMENTS
On Completion, the parties shall enter into the following documents in
order, in the case of the documents referred to in Clauses 6.5.1,
6.5.2, 6.5.3 and 6.5.4, to give effect to certain aspects of the
transfer of the Business and, in the case of the documents referred to
in Clause 6.5.5, to regulate the provision of certain services by EFPL
to Purchaser A following Completion:
6.5.1 subject to the provisions of paragraph 9 of Part B of Schedule
11, the Deed of Assignment of Property Agreements;
6.5.2 the Deed of Participation;
6.5.3 the Deed of Covenant in respect of the Decommissioning Deed
and the Deed of Covenant in respect of the Lease;
6.5.4 the Transfer;
6.5.5 the Technical Support Agreement; and
6.5.6 the Shared Intellectual Property Agreement.
The parties expressly confirm that the execution of the above documents
by the relevant Purchaser does not form part of the consideration for
the transfer of the Business.
6.6 PURCHASERS' ADDITIONAL AGREEMENTS
On or prior to Completion (or, in the case of the deeds referred to in
Clause 6.6.1, as soon as reasonably practicable after Completion), the
relevant Purchaser shall:
6.6.1 enter into deeds of covenant with The National Grid Company
plc, National Power plc, English Welsh & Scottish Railway
Limited and Yorkshire Electricity plc which relate to the
Property wherever such deeds of covenant are properly required
pursuant to the Transfer Scheme Documents, and in the form
required by such Transfer Scheme Documents;
6.6.2 enter into (as appropriate at the relevant time) either:
(a) the Master Connection and Use of System Agreement; or
(b) the Multiparty Master Connection and Use of System
Agreement, the Bi-party Amendment Agreement and the
Bi-party ASA Amendment Agreement (to the extent
mandatory ancillary services are required to be
provided by the Power Station) as set out in the
connection and use of System Code, in each case with
The National Grid Company plc and others governing
connection to, and use of, the national grid; and
6.6.3 give notice to The National Grid Company plc of the
assignments of the Interface Agreements dated 31 March 1990
made between Powergen and The National Grid Company plc
pursuant to clause 15.5 of each of those documents within one
month following completion of the assignment.
6.7 GUARANTOR OBLIGATIONS
The Guarantor acknowledges and undertakes to EFPL (for itself and each
other member of the EME Group) to do all such things and execute all
such documents as may be reasonably required to comply with its
obligation under the foregoing provisions of this Clause 6, Clause 7
and Clause 8.3. Without prejudice to the generality of the foregoing,
the Guarantor undertakes to EFPL (for itself and each other member of
the EME Group) that it shall:
- 29 -
6.7.1 provide such financial information as may be required by EFPL
to obtain Third Party Consents together with such
authorisations and legal opinions as may be reasonably
requested in connection with the guarantees and commitments
referred to in Clauses 6.7.2 and 6.7.3;
6.7.2 provide to Powergen a guarantee of the relevant Purchaser's
obligations under each of the Powergen Instruments on terms
which are substantially the same (MUTATIS MUTANDIS) as those
provided to EFPL pursuant to Clause 15 subject to such
additions or modifications as may be reasonably requested by
Powergen;
6.7.3 provide to counterparties under any Electricity Trading
Contracts a guarantee of the relevant Purchaser's obligations
under such Contracts on terms which are substantially the same
(MUTATIS MUTANDIS) as any such guarantee given by any member
of the EME Group in respect of the relevant Electricity
Trading Contract failing which on terms which are
substantially the same (MUTATIS MUTANDIS) as those provided to
EFPL pursuant to Clause 15 subject to such modifications or
additions as may be reasonably requested by the relevant
counterparty;
6.7.4 to the extent not covered by Clause 6.7.2 or Clause 6.7.3,
provide such guarantees or other commitments to counterparties
under any Contracts listed in Schedule 12 as may be reasonably
requested by them in order for EFPL to obtain any necessary
Third Party Consents to the novation of such Contracts in
favour of the relevant Purchaser and the release of any
guarantees or other credit support provided by EFPL in
connection therewith; and
6.7.5 provide such guarantees or other commitments as may be
required to ensure that the relevant Purchaser complies with
its obligations under Clause 6.6.
7 THIRD PARTY CONSENTS
7.1 EFPL'S OBLIGATION TO OBTAIN CONSENTS
7.1.1 To the extent that the benefit of any of the Contracts can be
assigned by EFPL to the relevant Purchaser without any Third
Party Consents, this Agreement shall constitute an assignment
of the relevant Contract with effect from Completion.
7.1.2 Where a Third Party Consent is required to the assignment of
the benefit or novation of a Contract, this Agreement shall
not constitute an assignment or attempted assignment of the
relevant Contract if the assignment or attempted assignment
would constitute a breach of the Contract.
7.1.3 EFPL shall use reasonable endeavours to obtain the Third Party
Consents prior to Completion, to take effect from the
Completion Date. EFPL shall not be obliged to assign or novate
any Contract otherwise than to or in favour of the relevant
Purchaser where any relevant Third Party Consent is required.
7.1.4 The relevant Purchaser shall supply to EFPL such information
(including references regarding the financial position of the
relevant Purchaser) as may be reasonably requested by EFPL or
any relevant third party in connection with EFPL's endeavours
to obtain the Third Party Consent. The relevant Purchaser
shall enter into undertakings or procure guarantees (including
parent company guarantees) in favour of any relevant third
party as may be reasonably requested in respect of any
Liabilities to which it will become subject or which it will
incur on conveyance, transfer, assignment or novation of the
relevant Contract.
- 30 -
7.1.5 A Third Party Consent shall be deemed to have been obtained
when all requirements of the relevant third party or parties
have been complied with on terms reasonably acceptable to EFPL
and the relevant Purchaser, such terms not to be any more
favourable to the relevant Purchaser than are the then current
terms of the relevant Contract to EFPL.
7.2 FAILURE TO OBTAIN CONSENTS
7.2.1 Where a Third Party Consent has not been obtained by
Completion in respect of any Asset (a RELEVANT ASSET), such
Relevant Asset will not be conveyed, transferred or assigned
on Completion but will be held in trust for the relevant
Purchaser absolutely from Completion until such Third Party
Consent is obtained and the Relevant Asset is so conveyed,
transferred or assigned. EFPL shall continue to use reasonable
endeavours to obtain the necessary Third Party Consent after
Completion to convey, transfer or assign any Relevant Asset.
7.2.2 EFPL shall account to the relevant Purchaser accordingly and
shall deliver to such Purchaser as soon as reasonably
practicable:
(i) upon receipt, any notice or other document relating
to such Relevant Asset; and
(ii) upon request from such Purchaser, a power of attorney
to enable such Purchaser to deal with such Relevant
Asset.
7.2.3 The relevant Purchaser shall indemnify EFPL and keep EFPL
indemnified on an after tax basis against all Losses
associated with the holding of any such Relevant Asset.
7.2.4 The indemnity given by the relevant Purchaser in Clause 7.2.3
shall not cover Losses to the extent that they arise or are
increased by the failure of EFPL to comply in any material
respect with its obligations under this Clause 7.
7.3 POST-COMPLETION CONSENTS
After Completion EFPL shall continue to use reasonable endeavours
(assisted if EFPL shall so require by the relevant Purchaser) to obtain
Third Party Consents in respect of each Relevant Asset and keep the
relevant Purchaser informed of progress in obtaining such Third Party
Consents.
7.4 OPERATING PERMITS AND CONNECTION LICENCES
EFPL and each Purchaser agree to comply with the terms of Schedule 18
to the extent such terms refer or relate to it.
7.5 NOVATIONS OF PILLAR OR SUPPORT AGREEMENT
7.5.1 EFPL and Purchaser B shall each use their best endeavours to
obtain novations in favour of Purchaser B of the Pillar of
Support Agreement prior to Completion in terms which are
substantially the same (MUTATIS MUTANDIS) as those contained
in the novation agreements dated 15 July 1999 made between
firstly the Coal Authority and EFPL and secondly RJB Mining UK
Limited, Powergen and EFPL. If EFPL and Purchaser B fail to
obtain such novations in favour of Purchaser B by Completion
they shall each continue to use their best endeavours to
obtain such novations as soon as practicable thereafter.
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7.5.2 EFPL shall be liable for half of any fee charged by the
contractual counterparty/ies for the obtaining of the
novations up to a maximum total amount of POUND STERLING
50,000 for both novations. Each of EFPL and Purchaser B agree
that they otherwise will pay their own legal, accountancy and
other costs and expenses incurred by them in connection with
the obtaining of such novations.
8 POST COMPLETION OBLIGATIONS
8.1 LICENCE
8.1.1 From Completion, and subject to the provisions of this Clause
8.1, the relevant Purchaser grants to EFPL and anyone
authorised by EFPL, a licence to occupy the Data Centre
without charge for an initial period of one calendar month
(extendable at EFPL's sole option by four consecutive periods
of one calendar month each by EFPL giving 10 Business Days
prior written notice to the relevant Purchaser), commencing on
and including the Completion Date.
8.1.2 Whenever EFPL is occupying or entitled to occupy the Data
Centre pursuant to this Clause 8.1 the relevant Purchaser
grants to EFPL and its agents, employees and anyone authorised
by them, the following rights:
(i) a right to park three private vehicles in the car
parks at the Property in connection with the use of
the Data Centre;
(ii) the right of access to and egress from the Data
Centre and the car parks over the access ways at the
Property both on foot and by vehicle and over the
entrances corridors staircases and lifts in the
building in which the Data Centre is situated;
(iii) the right to use the toilets which serve the Data
Centre together with a right to use all corridors
staircases and lifts in the building in which the
Data Centre is situated to access such toilets; and
(iv) the right to exclusive possession of the Data Centre
without interference by the relevant Purchaser, its
agents or employees and the relevant Purchaser hereby
acknowledges that EFPL shall be entitled to lock the
Data Centre and prevent entry by any other person,
and the relevant Purchaser covenants during such period to
supply or procure the supply to the Data Centre, (and all
other areas of the Property which EFPL is entitled to use
pursuant to this Clause 8.1) at no cost to EFPL, of
electricity and water supplies together with any other
utilities which in EFPL's sole opinion are necessary or
desirable.
8.2 THE ASSUMED LIABILITIES
8.2.1 If EFPL becomes aware after Completion of any claim which
constitutes or may constitute an Assumed Liability, EFPL shall
as soon as reasonably practicable give written notice of that
claim to the relevant Purchaser and shall not admit,
compromise, settle, discharge or otherwise deal with such
claim without the prior agreement of the relevant Purchaser
(such agreement not to be unreasonably withheld or delayed)
where the relevant Purchaser is required to comply with an
order, regulatory award or ruling of any Competent Authority.
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8.2.2 EFPL shall take such action (including an omission to act) as
the Purchasers may reasonably request at the Purchasers' cost
to avoid, dispute, resist, appeal, compromise, settle,
postpone, defend or mitigate any claim which constitutes or
may constitute an Assumed Liability but subject to EFPL being
indemnified and kept indemnified on an after-tax basis and
secured and kept secured to its reasonable satisfaction by the
Purchasers against all Losses which may thereby be incurred.
8.2.3 In connection with the actions referred to in Clause 8.2.2,
EFPL shall make, or procure to be made, available to the
Purchasers or its duly authorised agents on reasonable notice
during normal business hours all relevant books of account,
records and correspondence relating to the Business which have
been retained by EFPL (and shall permit the Purchasers to take
copies of those documents) for the purposes of enabling the
Purchasers to ascertain or extract any information relevant to
the claim, save always that EFPL shall not be required to make
available or provide copies of commercially confidential or
legally privileged books of account, records, correspondence
or other information.
8.3 PURCHASERS TO COMPLETE CONTRACTS
The Purchasers shall procure that with effect from Completion (or, in
the case of Contracts not transferred at Completion, the time of
transfer of those Contracts):
8.3.1 each of the Contracts is carried out and completed (so far as
the Purchasers are lawfully able to do so); and
8.3.2 that EFPL's obligations under the Contracts are performed (to
the extent that the same have not been previously carried out
or completed) in the ordinary course (where applicable):
(i) in a proper and workmanlike manner; and
(ii) in accordance with their respective terms,
and shall indemnify EFPL and keep EFPL indemnified on an
after-tax basis against all Losses incurred by EFPL in respect
of the Contracts arising out of or in respect of any failure
by the Purchasers to comply with their obligations under this
Clause 8.3.
8.4 EFPL'S GENERAL OBLIGATIONS
Subject to Clause 17.9 if, at any time after Completion, EFPL receives
any insurance or other monies from a third party in respect of any
Claim (other than as excluded pursuant to Clause 2.1.2(xiii) or Clause
2.1.3), then EFPL shall pay to the relevant Purchaser as soon as
reasonably practicable the amount recovered less an amount equal to any
liability of EFPL to Taxation (which for the purpose of this Clause 8.4
includes any liability to Taxation of EFPL which is eliminated, offset
or reduced by any Relief available to EFPL) which would not have arisen
but for the receipt of such monies.
8.5 EFPL'S CONTINUING OBLIGATION
Notwithstanding Completion, subject to the provisions of Clause ▇, ▇▇▇▇
shall (at the Purchasers' expense save in respect of Clause 8.5.1) from
time to time execute and perform all such acts, deeds and documents and
afford to the Purchasers such assistance as the Purchasers may
reasonably require:
8.5.1 for the purpose of vesting in the Purchasers the full benefit
of the Business;
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8.5.2 for the purpose of implementing all the provisions of this
Agreement;
8.5.3 to enable any claim, action, suit, prosecution, litigation,
proceeding, dispute or arbitration to which EFPL was a party
and which relates to any Claim (other than as referred to in
Clause 2.1.3) or Assumed Liability to be continued by the
Purchasers; and
8.5.4 to enable any judgment or award obtained by EFPL and not fully
satisfied as at Completion, to the extent to which it is a
Claim (other than as excluded pursuant to Clause 2.1.2(xiii)
or Clause 2.1.3) enforceable by EFPL, to be enforced by the
Purchasers.
8.6 CONDUCT OF CLAIMS
8.6.1 If either Purchaser becomes aware of any matter that may give
rise to a claim against EFPL under the Transaction Documents,
notice of that fact (together with details of the matter in
question as are available) shall be given within 10 Business
Days to EFPL.
8.6.2 Without prejudice to the validity of the claim or alleged
claim in question:
(i) each Purchaser shall allow, and shall procure that
any relevant member of its Group allows, EFPL and its
duly authorised agents to investigate the matter or
circumstance alleged to give rise to such claim and
whether and to what extent any amount is payable in
respect of such claim; and
(ii) in connection with the actions referred to in Clause
8.6.2(i), each Purchaser shall (at its own expense)
make, or procure to be made, available to EFPL or its
duly authorised agents on reasonable notice during
normal business hours all relevant books of account,
records and correspondence relating to the Business
(and shall permit EFPL to take copies of those
documents) for the purposes of enabling EFPL to
ascertain or extract any information relevant to the
claim, save always that neither Purchaser shall be
required to make available or provide copies of
commercially confidential or legally privileged books
of account, records, correspondence or other
information.
8.6.3 If the claim in question is a result of or in connection with
a claim by or liability to a third party (including a Taxation
Authority or in respect of Taxation) then:
(i) no admission of liability shall be made by or on
behalf of a Purchaser or any member of its Group and
the claim shall not be compromised, disposed of or
settled and no matter which may affect the outcome of
any dispute or negotiation with any Taxation
Authority in relation to a claim for Taxation shall
be agreed, in each case without the prior written
consent of EFPL such consent not to be unreasonably
withheld or delayed where the relevant Purchaser is
required to comply with an order, regulatory award or
ruling of any Competent Authority;
(ii) EFPL shall be entitled in its absolute discretion to
take such action as it shall deem necessary to avoid,
dispute, deny, defend, resist, appeal, postpone,
settle, compromise or contest such claim or liability
or any adjudication in respect of such claim
(including making counterclaims or other claims
against third parties) in the name of and on behalf
of the Purchasers (or either of them) or any member
of the Purchasers' Group concerned and to have the
conduct of any related proceedings, negotiations or
appeals; and
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(iii) each Purchaser shall, and will procure that any
relevant member of its Group shall, take all such
action and give all such information, documentation
and assistance, including access to premises and
personnel, copies of any relevant correspondence and
the right to examine and copy or photograph any
assets, accounts, documents, books and records, for
the purpose of avoiding, disputing, denying,
defending, resisting, appealing, postponing,
settling, compromising or contesting any such claim,
liability or adjudication as EFPL or its professional
advisers request save always that neither Purchaser
shall be required to make available or provide copies
of commercially confidential or legally privileged
books of account, records, correspondence or other
information.
8.7 RECOVERY
8.7.1 If EFPL pays an amount in discharge of any claim under any
Transaction Document and either Purchaser or any member of its
Group has previously recovered or subsequently recovers
(whether by payment, discount, credit, relief, set-off or
otherwise) from a third party or insurer a sum which is
referable to the subject matter of the claim, the relevant
Purchaser shall forthwith pay, or shall procure that the
relevant member of its Group forthwith pays, to EFPL an amount
equal to:
(i) the sum recovered from the third party; or
(ii) if less, the amount previously paid by EFPL to the
relevant Purchaser.
8.7.2 Where either Purchaser has or may have a claim against a third
party in relation to any matter which may give rise to, or has
given rise to, a claim under any Transaction Document, the
Purchasers shall use all reasonable endeavours, and shall
procure that all reasonable endeavours are used, to recover
any amounts due from such third party.
8.8 DOUBLE CLAIMS
8.8.1 Neither EFPL nor either of the Purchasers shall be entitled to
recover under the Transaction Documents more than once in
respect of the same subject matter.
8.8.2 Neither of the Purchasers nor the Guarantor shall be entitled
to recover from EFPL under the Transaction Documents to the
extent that either of the other two has already recovered in
respect of the same subject matter.
8.8.3 EFPL shall not be entitled to recover under the Transaction
Documents from either Purchaser or the Guarantor to the extent
that it has already recovered from the other Purchaser or the
Guarantor in respect of the same subject matter.
8.9 TAX
In calculating the Liability of EFPL for any breach of any Transaction
Document, there shall be taken into account the amount (if any) by
which any Taxation for which the Purchasers or any member of the
Purchasers' Group would otherwise have been accountable or liable to be
assessed is actually reduced or extinguished as a result of the matter
giving rise to such Liability.
8.10 RECORDS
8.10.1 The Purchasers undertake to EFPL that they shall, and shall
procure that members of the Purchasers' Group shall, preserve
for a period of at least seven years (or any
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longer period as may be required by law or relevant
regulations from time to time) after Completion all books,
records and documents of or relating to the Business existing
at Completion.
8.10.2 The Purchasers shall permit and allow, and shall procure that
members of the Purchasers' Group shall permit and allow, upon
reasonable notice (and in any event within seven Business Days
of written notice being given) and during normal business
hours, the employees, agents and professional advisers of EFPL
or any member of its Group access to the books, records and
documents referred to in Clause 8.10.1 (including Transferring
VAT Records) and the right to inspect the same and make copies
of those documents save always that the Purchasers shall not
be required to make available or provide copies of
commercially confidential or legally privileged books of
account, records, correspondence or other information.
8.10.3 The Purchasers shall, and shall procure that members of the
Purchasers' Group shall, provide all reasonable assistance
requested by EFPL to enable EFPL to access and inspect the
books, records and documents referred to in Clause 8.10.4.
8.10.4 If Completion does not take place in accordance with the terms
of this Agreement and this Agreement thereby lapses or is
terminated in accordance with its terms, the Purchasers shall
forthwith:
(i) hand-over or procure the handing over of:
(a) all correspondence, budgets, accounts,
records, documents, papers or other forms of
information of, or relating to, EFPL and/or
the Business, which shall have been made
available to them; and
(b) all copies or other records derived from
such materials; and
(ii) expunge any information derived from such materials
or otherwise concerning the subject matter of the
Transaction Documents (and any other agreements
referred to in those documents) from any computer,
word processor or other device containing
information.
8.11 RELEASE OF SECURITY
8.11.1 The Purchasers agree to use their best endeavours to procure
at Completion or as soon as practicable thereafter the
cancellation and/or release of any securities, guarantees or
indemnities given by EFPL,
Edison Mission Energy or any member
of the EME Group (including in respect of the Electricity
Trading Contracts) in respect of the Business.
8.11.2 The Purchasers shall indemnify EFPL (on an after tax basis)
against and in respect of all or any Losses incurred by any
member of the EME Group (for EFPL's own account and as trustee
for the benefit of such persons) pursuant to any such
securities, guarantees or indemnities to which Clause 8.11.1
refers.
8.11.3 For the avoidance of doubt Clauses 8.11.1 and 8.11.2 shall not
apply to securities, guarantees or indemnities given by EFPL,
Edison Mission Energy or any member of the EME Group in
respect of Borrowed Moneys.
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9 THE RELEVANT EMPLOYEES
9.1 TRANSFER REGULATIONS
The parties accept that this Agreement and the sale of the Business to
be effected by it are governed by the Transfer Regulations and the
following provisions shall apply in connection therewith:
9.1.1 the contract of employment (save in so far as such contract
relates to any occupational pension scheme) of each of the
Relevant Employees (except for persons who exercise their
right under Regulation 5(4A) of the Transfer Regulations)
shall be transferred to Purchaser A with effect from the
Completion Date pursuant to the Transfer Regulations;
9.1.2 EFPL (or a member of its Group) shall pay to the Relevant
Employees all sums to which they are entitled and which are
due and payable on or before the Completion Date. Purchaser A
will discharge all obligations thereafter;
9.1.3 EFPL shall indemnify Purchaser A and keep Purchaser A
indemnified (on an after tax basis) against all Losses which
relate to or arise out of any dismissal by EFPL, or by a
member of its Group, of any employee (not being a Relevant
Employee) before the Completion Date and which Purchaser A may
incur pursuant to the provisions of the Transfer Regulations;
9.1.4 Purchaser A shall deliver to each of the Relevant Employees a
letter from Purchaser A in the agreed terms;
9.1.5 if the contract of employment of any Relevant Employee is not
automatically transferred to Purchaser A pursuant to the
Transfer Regulations, Purchaser A shall offer to employ each
such person with effect from the Completion Date on terms at
least as good as those on which that person would have been
employed by Purchaser A had the contract of employment been so
transferred;
9.1.6 EFPL shall be responsible for direct payment of the Retention
Bonuses as defined in the Retention Bonus Agreements with
Relevant Employees dated 18 May 2001, 25 May 2001 and 31 May
2001 where any such payments fall due and payable prior to the
Completion Date. In the event that a due and payable Retention
Bonus remains unpaid at the Completion Date or falls to be
payable after the Completion Date, EFPL may request that
Purchaser A makes these payments. If such a request is made or
if EFPL fails to make the payments directly to the Relevant
Employees then provided Purchaser A makes these payments in
accordance with their terms, EFPL shall reimburse Purchaser A
the costs incurred by Purchaser A in connection with making
payment of the Retention Bonus entitlement;
9.1.7 in the event that any person not designated as a Relevant
Employee (the UNDISCLOSED EMPLOYEE) asserts or establishes
that his employment has transferred to Purchaser A pursuant to
the Transfer Regulations upon the Completion Date Purchaser A
shall within 7 days of being so informed either by the
Undisclosed Employee or by EFPL (whichever is the earlier)
inform EFPL whether or not it wishes to employ the Undisclosed
Employee. If Purchaser A does not wish to employ the
Undisclosed Employee, within 7 days of being so advised EFPL
may offer employment to the Undisclosed Employee. In the event
that:
(i) such an offer is not made within that 7 day period;
or
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(ii) such an offer is made within that 7 day period and
not accepted by the Undisclosed Employee within 7
days of such offer being made,
then Purchaser A shall be entitled to terminate the
Undisclosed Employee's employment and provided Purchaser A
carries out any such termination within 14 days of the expiry
of the later of the periods described in (i) and (ii) above
and in a way which does not increase any exposure to any claim
for race, sex or disability discrimination and provided that
any claim under this indemnity is made within five months of
the Completion Date Purchaser A shall be indemnified by EFPL
(on an after tax basis) in respect of all Losses which it may
sustain arising under or in connection with the Undisclosed
Employee's contract of employment after Completion and/or
termination of his or her employment; and ; and
9.1.8 the parties agree that all liabilities, losses, cost or
expenses in respect of any claim by a Relevant Employee (or an
employee representative) that the requirements of Regulation
10 of the Transfer Regulations have not been satisfied (a
CONSULTATION CLAIM) shall be borne in equal proportions
between the parties provided that if Purchaser A announces, or
begins consultation in respect of, any redundancies of any of
the Relevant Employees within three months of the Completion
Date then Purchaser A agrees to indemnify EFPL on an on-going
basis against all costs, expenses and liabilities in respect
of any Consultation Claim, whether such Consultation Claim
arises or is made prior to, on or after the Completion Date.
9.2 PURCHASERS' OBLIGATIONS
9.2.1 The Purchasers shall indemnify EFPL and keep EFPL indemnified
(on an after tax basis) from and against any Losses which
arise from:
(i) the employment by Purchaser A of the Relevant
Employees; or
(ii) which arises out of the employment relationship,
including but not limited to any liability arising
out of the termination or dismissal of any Relevant
Employee by Purchaser A or which arises out of any
act or omission of the Purchasers or any event,
matter or occurrence prior to the Transfer Date which
EFPL incurs by virtue of Regulation 5(5) of the
Transfer Regulations and/or Article 4(2) of Council
Directive 77/187 EC; or
(iii) any collective agreement applicable to the employment
of the Relevant Employees in respect of the period
after the Completion Date; or
(iv) any failure by Purchaser A to offer terms and
conditions of employment and working conditions no
less favourable than those which apply to the
Relevant Employees up to the Completion Date.
9.2.2 Purchaser A agrees with EFPL that for a period of at least 12
months after the Completion Date:
(i) it will not change any term or condition of
employment upon which any Relevant Employee is
employed by EFPL, or by a member of its Group,
immediately prior to the Completion Date without the
consent of that Relevant Employee; and
(ii) Purchaser A will for Relevant Employees in its
employment provide private medical insurance cover no
less favourable to those employees than the cover
provided to them by EFPL immediately prior to the
Completion Date.
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For the avoidance of doubt, this provision only applies while
Relevant Employees remain in the employment of Purchaser A or
any member of its Group.
10 PENSIONS
The provisions of Schedule 13 shall have effect.
11 PREPAYMENTS AND APPORTIONMENTS ETC.
11.1 PAYMENTS MADE BY EFPL
11.1.1 Subject to Clause 11.1.2, if:
(i) EFPL has, prior to the Completion Date, made any
deposit or payment in advance relating to the period
after the Completion Date in respect of any Contract,
the relevant Purchaser shall, to the extent such
deposit or payment in advance relates to the period
after Completion, account to EFPL for the same on the
Completion Date; and
(ii) after the Completion Date, any payment is made to
either Purchaser relating to the period before the
Completion Date in respect of any Contract, the
relevant Purchaser shall, to the extent that such
payment relates to the period prior to Completion:
(a) receive the same as trustee;
(b) record the same separately in its books; and
(c) account to EFPL for the same within five
Business Days after receipt,
and for the purposes of this Clause 11.1 only, the
reference to Contracts shall include the Lease, the
Property Agreements and such similar agreements to
which the Property is subject or of which it has the
benefit.
11.1.2 In determining the liability of the relevant Purchaser under
Clause 11.1.1 to reimburse or account to EFPL for amounts paid
by EFPL, regard shall be had to the extent to which EFPL has
been able to obtain credit or repayment of input tax for VAT
purposes in respect of supplies of goods and/or services (made
under a Contract) to which such amounts relate, and the
liability of such Purchaser under Clause 11.1.1 shall be
reduced accordingly.
11.2 PAYMENTS RECEIVED BY EFPL
11.2.1 Subject to Clause 11.2.2, if:
(i) EFPL has, prior to the Completion Date, received any
deposit or payment in advance relating to the period
after the Completion Date in respect of any Contract,
EFPL shall, to the extent such deposit or payment in
advance relates to the period after Completion,
account to the relevant Purchaser for the same on the
Completion Date; and
(ii) after the Completion Date, any payment is made to
EFPL relating to the period after the Completion Date
in respect of any Contract, EFPL shall, to the extent
such payment relates to the period after Completion:
(a) receive the same as trustee;
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(b) record the same separately in its books; and
(c) account to the relevant Purchaser for the
same within five Business Days after
receipt,
and for the purposes of this Clause 11.2 only, the
reference to Contracts shall include the Lease, the
Property Agreements and such similar agreements to
which the Property is subject or of which it has the
benefit.
11.2.2 In determining the liability under Clause 11.2.1 of EFPL to
account to the relevant Purchaser for amounts received by
EFPL, regard shall be had to any liability of EFPL to account
to Customs for any VAT in respect of the supplies of goods
and/or services (made under a Contract) to which such amounts
relate, and the liability of EFPL under Clause 11.2.1 shall be
reduced accordingly.
11.3 POWERGEN COAL PURCHASE CONTRACT ETC.
11.3.1 EFPL, the Purchasers and the Guarantor agree that they will
use all reasonable endeavours to negotiate and agree the terms
of a tripartite agreement to be entered into between EFPL,
Powergen, the Purchasers and/or the Guarantor to govern
payment to Powergen:
(i) for coal delivered by it to the Power Station
pursuant to the Powergen Coal Purchase Contract and
(ii) for use of the Liverpool Bulk Terminal by EFPL and
the relevant Purchaser pursuant to the LBT Agreement,
in each case before and after the Completion Date.
11.3.2 The agreement referred to in Clause 11.3.1 above will contain
terms that:
(i) Powergen will invoice EFPL in accordance with clause
12 of the Powergen Coal Purchase Contract for coal
Delivered in the Delivery Period immediately
preceding the Delivery Period in which the Completion
Date occurs;
(ii) Powergen will invoice EFPL in accordance with clause
15 of the LBT Agreement for the use by EFPL of the
Liverpool Bulk Terminal during the month immediately
preceding the month in which the Completion Date
occurs;
(iii) EFPL will, to the extent that such sums are properly
invoiced and not disputed, pay Powergen for the
amounts invoiced pursuant to (i) and (ii) above;
(iv) subject to satisfaction of the Guarantors obligations
under Clause 6.7.2 above, Powergen will consent to
the assignment of the Powergen Coal Purchase Contract
and the LBT Agreement to the relevant Purchaser;
(v) Powergen will invoice the relevant Purchaser in
accordance with clause 12 of the Powergen Coal
Purchase Contract for coal Delivered in the Delivery
Period in which the Completion Date occurs;
(vi) Powergen will invoice the relevant Purchaser in
accordance with clause 15 of the LBT Agreement for
the use by EFPL and the relevant Purchaser of the
Liverpool Bulk Terminal during the month in which the
Completion Date occurs; and
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(vii) the relevant Purchaser will, to the extent that such
sums are properly invoiced and not disputed, pay
Powergen for the amounts invoiced pursuant to (v) and
(vi) above.
11.3.3 For the purpose of this Clause 11.3 DELIVERED and DELIVERY
PERIOD have the meanings given in the Powergen Coal Purchase
Contract.
12 PURCHASERS' AND GUARANTOR'S REPRESENTATIONS AND WARRANTIES
12.1 REPRESENTATIONS AND WARRANTIES
12.1.1 Each of the Purchasers and the Guarantor represents and
warrants that:
(i) it is a company duly incorporated and validly
existing under the laws of the jurisdiction of its
incorporation;
(ii) it has the requisite power and authority to enter
into and perform the Transaction Documents, which
when executed will constitute valid and binding
obligations of each Purchaser or the Guarantor (as
the case may be) enforceable against the Purchasers
or the Guarantor (as the case may be), in accordance
with their respective terms;
(iii) the execution and delivery of, and the performance by
it of its obligations under, the Transaction
Documents will not:
(a) result in a breach of any provision of its
memorandum or articles of association; or
(b) result in a breach of any agreement, licence
or other instrument or of any order,
judgment or decree of any court,
governmental agency or regulatory body to
which it is a party or by which it is bound;
(iv) all corporate action required by it to validly and
duly authorise the execution and delivery of, and to
exercise its rights and perform its obligations
under, the Transaction Documents has been duly taken;
(v) no order has been made or petition presented or
resolution passed for the winding-up of either
Purchaser or the Guarantor or for the appointment of
a provisional liquidator to either Purchaser or the
Guarantor or for an administration order in respect
of either Purchaser or the Guarantor;
(vi) no receiver or receiver and manager has been
appointed by any person of the whole or any part of
the business or assets of either Purchaser or the
Guarantor;
(vii) no voluntary arrangement has been proposed under
section 1 of the Insolvency ▇▇▇ ▇▇▇▇ or any
applicable bankruptcy act in any applicable
jurisdiction in respect of either Purchaser or the
Guarantor and no compromise or arrangement has been
proposed, agreed to or sanctioned under section 425
of the Companies ▇▇▇ ▇▇▇▇, or any similar act in any
applicable jurisdiction in respect of either
Purchaser or Guarantor;
(viii) neither of the Purchasers nor the Guarantor (as the
case may be) are insolvent or unable to pay its debts
within the meaning of section 123 of the Insolvency
▇▇▇ ▇▇▇▇;
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(ix) neither of the Purchasers nor the Guarantor (as the
case may be) is incapable of paying its debts as they
fall due;
(x) no distress, execution or other process has been
levied on any of the assets of either Purchaser or
the Guarantor;
(xi) there is no unfulfilled or unsatisfied judgment or
court order outstanding against either Purchaser or
the Guarantor; and
(xii) neither of the Purchasers nor the Guarantor has been
declared bankrupt (either voluntarily or at the
petition of creditors) nor been granted temporary
suspension of payment.
12.2 AWARENESS
Neither of the Purchasers nor the Guarantor are aware, nor are any of
their directors or legal, financial, technical or banking advisers
aware, of any event which results or may result in any of the
Warranties being untrue, misleading or incorrect in any material
respect.
12.3 REPETITION OF WARRANTIES
All warranties given by the Purchasers and/or the Guarantor under this
Agreement shall be deemed to be repeated immediately before Completion
with reference to the facts and circumstances then existing.
▇▇ ▇▇▇▇ WARRANTIES
13.1 WARRANTIES
13.1.1 EFPL warrants to each Purchaser in the terms of the
Warranties.
13.1.2 Each of the Warranties shall be construed as a separate and
independent Warranty.
13.2 REPETITION OF WARRANTIES
The Warranties (save for Warranty 3.2) shall be deemed to be repeated
immediately before Completion with reference to the facts and
circumstances then existing.
13.3 CLAIM FOR BREACH OF WARRANTIES
13.3.1 Without prejudice to the circumstances of any fraud on the
part of EFPL, neither Purchaser shall be entitled to claim
that any fact causes any of the Warranties (other than those
contained in paragraph 13 of Schedule 1) to be breached or
renders any of them misleading to the extent that:
(i) it has been disclosed to the Purchasers in the
Disclosure Letter or is otherwise provided for under
the terms of this Agreement; or
(ii) in respect of any matter or thing arising after the
date of this Agreement:
(a) it has been disclosed to the Purchasers in
writing prior to Completion and is not a
Non-qualifying Disclosure; or
(b) it has been done or omitted to be done at
the request in writing or with the approval
in writing of either Purchaser.
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13.4 REMEDY FOR BREACH OF WARRANTIES
The sole remedy of each Purchaser for any breach of any of the
Warranties shall be damages and neither Purchaser shall be entitled to
rescind this Agreement.
13.5 LIMITATION OF LIABILITY
13.5.1 EFPL shall not be liable for any claim for breach of Warranty
unless it receives from either Purchaser written notice
containing specific details of the claim (including such
Purchaser's estimate of the amount of such claim) on or before
the date falling six months after Completion.
13.5.2 EFPL shall only be liable for any claim for breach of Warranty
if its liability in respect thereof exceeds (pound)100,000.
For the avoidance of doubt, claims of less than (pound)100,000
in respect of different matters shall not be treated as a
single claim exceeding (pound)100,000.
13.5.3 EFPL shall not be liable in respect of any claim under any of
the Warranties unless and until its liability for all such
claims exceeds in aggregate (pound)500,000.
13.5.4 EFPL shall not be liable in respect of any claim for breach of
Warranty to the extent that it would cause EFPL's total
liability for all claims for breach of Warranty to exceed
(pound)100,000,000.
13.5.5 Where EFPL or any member of its Group has made a payment to
either Purchaser in respect of, or relating to, any claim
under any of the Warranties and such Purchaser or any member
of that Purchaser's Group has a right of reimbursement against
any other person in respect of or relating to that claim, such
Purchaser shall:
(i) promptly notify EFPL of that fact and provide such
information as EFPL may require;
(ii) take all such steps or proceedings as EFPL may
reasonably require to enforce such right; and
(iii) if such Purchaser is reimbursed any amount,
immediately pay EFPL an amount equal to the amount
reimbursed, less any reasonable costs of recovery.
Thereafter, any claim under Warranties shall be limited (in
addition to the limitations on liability of EFPL referred to
in this Clause 13) to the amount by which the loss or damage
suffered by such Purchaser as a result of such breach shall
exceed the amount so recovered.
14 PROPERTY AND ENVIRONMENTAL MATTERS
14.1 ACKNOWLEDGEMENT
For the purposes of the statutory guidance issued under Part II A of
the Environmental Protection Act 1990 and for the purposes of any
similar guidance (whether statutory or non-statutory) issued in
relation to any other legislation under which similar responsibilities
may be imposed:
14.1.1 Each Purchaser and the Guarantor has:
(i) other than ▇▇▇▇ Common, inspected the Power Station,
the Assets and the Property and any Fixed Plant and
Equipment and the title to those Assets;
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(ii) been given permission to review relevant
environmental information of EFPL relating to the
Business; and
(iii) entered into the Transaction Documents, solely on the
basis of its inspection, its own enquiries, due
diligence and judgment, the ▇▇ ▇▇▇▇▇▇' Reliance
Agreement and its associated reports, the Warranties
and Disclosure Letter and the terms of this Agreement
and not in reliance wholly or partly upon any other
statement, representation or warranty whether
written, oral or implied made by or on behalf of
EFPL, its Group or any of its agents, employees or
advisers.
14.1.2 Each Purchaser and the Guarantor further acknowledges in
relation to the Property that:
(i) this Agreement is made with the intention that any
Environmental Regulatory Authority serving any notice
or (as the case may be) seeking to recover its costs
in respect of any Remedial Works shall give effect to
this Agreement pursuant to the statutory guidance
issued under Part IIA of the Environmental Protection
Act 1990 and pursuant to any similar guidance
(whether statutory or non-statutory) issued in
relation to any other legislation under which similar
responsibilities may be imposed. It is also intended
that, in the absence of such guidance, this Agreement
should be borne in mind by an Environmental
Regulatory Authority under any legislation under
which similar responsibilities may be imposed, in
considering how to exercise any discretion available
to them or how to make any relevant determination;
(ii) they have been provided with the environmental
documents identified in the Disclosure Letter prior
to the date of this Agreement and that they
acknowledge that such information is likely to be
sufficient to make the Purchasers and the Guarantor
aware of the presence (and the broad measure of that
presence) at or about the Power Station and the
Property of the Hazardous Materials referred to in
that information;
(iii) EFPL, the Purchasers and the Guarantor are `large
commercial organisations' (as such term is understood
in the circular entitled "Contaminated Land"
published by the Department of the Environment,
Transport and the Regions dated 20 March 2000);
(iv) the effect of such access, information and permission
referred to in Clauses 14.1.1 and 14.1.2(ii) in
accordance with any applicable statutory or
non-statutory guidance shall be to exclude EFPL from
liability as an appropriate person to bear
responsibility for any Remedial Works in relation to
the relevant Hazardous Materials or for the cost of
such actions if carried out by an Environmental
Regulatory Authority whether under Part IIA
Environmental Protection Act 1990 or under any other
Environmental Law imposing obligations in respect of
Remedial Works and to transfer any such liability in
its entirety to the relevant Purchaser, who assumes
it; and
(v) the consideration payable by the Purchasers under
Clause 3 has been agreed having regard to, and taking
account of, Environmental Liabilities in respect of
the Power Station, the Property, the Assets and the
Fixed Plant and Equipment, including Hazardous
Materials in, on or under and/or migrating from the
Property and the presence of Hazardous Materials in
the Environment which has arisen as a result of
operating the Business. Accordingly, the Purchasers
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and the Guarantor agree that any liability which EFPL
might otherwise have had in respect of the Business
under Part IIA of the Environmental Protection Act
1990 and any applicable statutory and non-statutory
guidance or any other Environmental Law imposing
obligations in respect of Remedial Works is hereby
transferred to and assumed in its entirety by the
Purchasers and the Guarantor and EFPL shall be
excluded from any such liability in respect of those
obligations.
14.2 ENVIRONMENTAL LIABILITIES
14.2.1 The parties agree that if any relevant court or regulatory
authority seeks to allocate Environmental Liabilities other
than in accordance with the terms of this Agreement, the terms
of this Agreement shall prevail and the parties further agree
that, if EFPL is subject to Environmental Proceedings under
Part IIA of the Environmental Protection Act or under any
other Environmental Law imposing obligations in respect of
Remedial Works, they will communicate in writing to confirm
their agreement as to the allocation of Environmental
Liabilities as contained in this Agreement to any relevant
court or regulatory authority notwithstanding any provisions
in this Agreement relating to confidentiality.
14.2.2 Each Purchaser and the Guarantor accepts responsibility for
and acknowledges that EFPL shall have no liability of any kind
to either Purchaser, the Guarantor or any successors in title
of either of them for or consequent on:
(i) the state and condition of the Power Station, the
Property, the Assets, ▇▇▇▇ Common and any Fixed Plant
and Equipment or land adjacent to the Property;
(ii) the suitability of the Power Station, the Property,
▇▇▇▇ Common, the Assets and any Fixed Plant and
Equipment for any future use including any liability
arising out of or in connection with any actual or
asserted presence of any Hazardous Material on, in or
under the Power Station, the Property, the Assets and
the Fixed Plant and Equipment;
(iii) any actual or asserted escape of such Hazardous
Material from the Power Station, Property, ▇▇▇▇
Common, the Assets and the Fixed Plant and Equipment;
or
(iv) any consequences in respect of Clauses 14.2.2(i),
(ii) or (iii) (including liabilities arising in any
way out of any claims by third parties, any actual or
proposed requirement or directions by any regulatory
body to remediate any land or waters or to pay for
such remediation costs or off-site waste disposal and
all legal and consultants and other professional fees
incurred in relation to any such matter).
14.3 ▇▇ ▇▇▇▇▇▇ RELIANCE AGREEMENT
Prior to Completion, EFPL shall use its reasonable endeavours to
procure the signing by ▇▇ ▇▇▇▇▇▇ of the ▇▇ ▇▇▇▇▇▇ Reliance Agreement.
14.4 ENVIRONMENTAL INDEMNITY
Each Purchaser shall indemnify EFPL and keep EFPL indemnified on an
after tax basis, against:
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14.4.1 all Environmental Losses incurred, suffered or sustained by
EFPL after Completion; and
14.4.2 the costs of procuring compliance by the Purchasers with this
indemnity.
14.5 CONDUCT OF ENVIRONMENTAL PROCEEDINGS
14.5.1 At its sole discretion either Purchaser may assume conduct of
any Environmental Proceedings or negotiation relevant to any
matter referred to in Clause 14.4 provided that such Purchaser
ensures that:
(i) periodic reports shall be provided expeditiously to
EFPL regarding the progress of such negotiations or
Environmental Proceedings;
(ii) reasonable consultation with EFPL shall take place;
(iii) as far as it is reasonably able, all reasonable steps
are taken and efforts made to reduce or minimise any
Environmental Losses as the case may be;
(iv) all reasonable requests of EFPL in relation to such
negotiations or Environmental Proceedings are
complied with including provision of copies of
correspondence or documents held by either Purchaser
which is material to the Environmental Proceedings
(except to the extent that such material is legally
privileged or disclosure would be prohibited by law
or the rules/orders of the court); and
(v) neither Purchaser shall make any admission of
liability or agree any Settlement without the prior
consent in writing of EFPL (such consent not to be
unreasonably delayed or withheld).
In relation to any such negotiations or Environmental
Proceedings, EFPL shall provide or procure that there is
provided to each Purchaser all relevant information and access
to personnel, premises, chattels, documents and records as
that Purchaser may reasonably request save always that EFPL
shall not be required to make available or provide copies of
commercially confidential or legally privileged books of
account, records, correspondence or other information.
14.5.2 Where neither Purchaser has assumed conduct of any
Environmental Proceeding or negotiation under Clause 14.5 the
matters referred to in Clauses 14.5.1(i) to 14.5.1(v) shall
apply to EFPL as if the words "EFPL" were replaced with the
word "the Purchasers".
14.6 Clauses 14.1 to 14.5 shall not operate to the extent EFPL can recover
such Losses under its existing insurance policies (in which case EFPL
shall remain liable to such an extent).
14.7 Clauses 14.1 to 14.5 shall not operate in respect of any matter where
EFPL has without the consent of the relevant Purchaser admitted
liability (such consent not to be unreasonably withheld or delayed).
14.8 EFPL shall inform the Purchasers as soon as reasonably practicable on
becoming aware of any matter which could give rise to a claim under
Clauses 14.1 to 14.8 and shall co-operate in providing the Purchasers
with all necessary information and documentation in relation thereto.
- 46 -
14.9 EFPL PROPERTY INDEMNITIES
EFPL shall indemnify each of the Purchasers and keep them indemnified
on an after tax basis against:
14.9.1 any stamp duty payable in respect of the Lease and any
associated penalties and interest; and
14.9.2 all Losses incurred, suffered or sustained by such Purchaser
as a result, directly or indirectly, of a claim by the
Landlord under the indemnity on the part of the tenant
contained in the Lease in relation to liability under the
clawback debenture issued on 2 November 1990.
15 GUARANTEE
15.1 GUARANTEE TO EFPL
In consideration of EFPL entering into this Agreement, the Guarantor
(as principal obligor and not merely as a surety) unconditionally and
irrevocably, as a continuing obligation, hereby guarantees to EFPL the
proper and punctual observance and performance by the Purchasers of all
their obligations, commitments and undertakings under or pursuant to
the Transaction Documents and the Contracts.
15.2 GUARANTOR'S LIABILITY
15.2.1 The Guarantor's liability under this Clause 15 shall remain in
full force and effect notwithstanding any act, omission,
neglect, event or any matter whatsoever (whether or not known
to either Purchaser, EFPL or the Guarantor). Nothing shall
impair or discharge the Guarantor's liability or obligations
under this Clause 15 and this shall apply, without limitation,
in relation to:
(i) anything which would have discharged the Guarantor
(wholly or in part) whether as surety, co-obligor or
otherwise or which would have afforded the Guarantor
any legal or equitable defence; or
(ii) the existence or validity of any other security taken
by EFPL in relation to the Transaction Documents, the
Contracts or in relation to the Property or any
enforcement of or failure to enforce or the release
of any such security; or
(iii) any amendment to or variation of any of the
Transaction Documents, the Contracts or documents
relating to the Property or any security or other
document relating to any of the Transaction
Documents, the Contracts or the Property or any
assignment of or any waiver or departure from their
respective terms or any such security or document; or
(iv) any release of, or granting of time or any other
indulgence to, either Purchaser or any other person;
or
(v) any winding up, dissolution, reconstruction,
arrangement or reorganisation, legal limitation,
disability, incapacity or lack of corporate power or
authority or other circumstances of, or any change in
the constitution or corporate identity or loss of
corporate identity by, either Purchaser or any other
person (or any act taken by EFPL in relation to any
such event); or
- 47 -
(vi) any other circumstances which might render void or
unenforceable the obligations, commitments and
undertakings of either Purchaser under any of
Transaction Documents, the Contracts or any documents
relating to the Property or which might affect EFPL's
ability to recover amounts from the Purchasers; or
(vii) any defence or counterclaim which either Purchaser
may be able to assert against EFPL.
15.3 ADDITIONAL OBLIGATION
As a separate, additional, continuing and primary obligation, the
Guarantor, unconditionally and irrevocably, undertakes to EFPL to
indemnify EFPL on an after tax basis on demand against any and all
losses, actions, claims, proceedings, liabilities, expenditure or costs
suffered or incurred by EFPL as a result of either Purchaser's failure
to observe and perform properly and punctually all of its obligations
under the Transaction Documents, the Contracts or any documents
relating to the Property (including (but not limited to) by reason of
the obligations of either Purchaser under the Transaction Documents,
the Contracts or in relation to the Property being or becoming void,
voidable, unenforceable or otherwise invalid under any applicable law).
15.4 AMOUNTS PAYABLE
15.4.1 Any amount payable under this Clause 15 shall be paid in full
without any deduction, or withholding whatsoever (whether in
respect of set-off, counterclaim, duties, charges, taxes, or
otherwise) unless such deduction or withholding is required by
law, in which case the Guarantor shall pay to EFPL an
additional amount so that the net amount received by EFPL will
equal the full amount which EFPL would have received had no
such deduction or withholding been made.
15.4.2 To the extent that EFPL's tax position is adversely affected
by virtue of any payment being made by the Guarantor rather
than by either Purchaser, the Guarantor shall pay to EFPL an
additional amount such that EFPL's after tax position (taking
into account the tax treatment in EFPL's hands of the receipt
of the additional amount) is no worse than it would have been
had the relevant payment been received in full from the
relevant Purchaser.
16 DISPUTE RESOLUTION
16.1 RESOLUTION BY PARTIES
16.1.1 Any Dispute (other than where express provision has been made
for settlement of that particular Dispute in another clause of
this Agreement) shall be resolved in accordance with the terms
of this Clause 16.1.
16.1.2 If any Dispute arises any party may, by notice to the other
party identifying the nature of the Dispute, require the
matter to be the subject of good faith discussions between
board directors or other senior officers of the parties.
16.2 ARBITRATION
16.2.1 If the Dispute has not been resolved following reference to
the parties' directors or other officers in accordance with
Clause 16.1.2 within 20 Business Days after the notice
requiring the Dispute to be referred to good faith discussion,
the Dispute shall be
- 48 -
referred to and finally resolved by arbitration under the
Rules which Rules are deemed to be incorporated by reference
into this Clause 16.2. The seat of the arbitration shall be
London.
16.2.2 Subject to the provisions of Clause 16.2.3, the arbitration
shall be before three arbitrators. Each of the parties shall
be entitled to nominate one arbitrator, the third arbitrator
being appointed by agreement of EFPL and each Purchaser or,
failing such agreement within 10 Business Days, by the
President of the LCIA.
16.2.3 If the Dispute:
(i) touches or concerns any matter or thing arising out
of Schedule 11 or the Property Agreements or as to
the rights, duties or obligations of the parties
under that Schedule or those agreements; or
(ii) relates to Environmental Laws, Remedial Works or any
permits granted by the Environment Agency,
the Dispute shall be referred to arbitration in accordance
with the Rules before a sole arbitrator. The arbitrator shall
be appointed by agreement of EFPL and the Purchasers or,
failing such agreement within 10 Business Days, by the
President of the LCIA which shall, in appointing the
arbitrator, take account of the nature of the Dispute and the
qualifications or identity of the proposed arbitrator set out
in the Request for Arbitration and the Response in accordance
with articles 1 and 2 of the Rules. Any arbitrator appointed
under this Clause 16.2.3 shall have at least 10 years
experience relevant to the matters which appear, from the
Request for Arbitration and the Response, to be in issue.
17 OTHER PROVISIONS
17.1 RELEASE, INDULGENCE ETC.
Any Liability to any party under the Transaction Documents may in whole
or in part be released, compounded or compromised or time or indulgence
given by that party in its absolute discretion without in any way
prejudicing or affecting its rights against other parties under the
same or a like Liability.
17.2 ANNOUNCEMENTS AND CONFIDENTIALITY
17.2.1 Subject to Clause 17.2.2, EFPL, each Purchaser and the
Guarantor each undertake to keep confidential and not directly
or indirectly to disclose to any third party (without the
prior written consent of the other parties):
(i) the terms of the Transaction Documents; or
(ii) any information disclosed to it relating to the
activities of the other parties.
17.2.2 The obligations contained in Clause 17.2.1 shall not apply if
and to the extent that:
(i) any information is now in, or after the date of this
Agreement, enters the public domain (other than as a
consequence of unauthorised disclosure by either
Purchaser or the Guarantor or EFPL or any third
party); or
(ii) any information disclosed is at the date of
disclosure already otherwise lawfully in the
possession of either Purchaser or the Guarantor or
EFPL (as relevant); or
- 49 -
(iii) the disclosure of any information is required by law,
any regulatory authority or any stock exchange
whether in the United Kingdom or elsewhere or is to a
Taxation Authority in connection with the Taxation
affairs of the disclosing party; or
(iv) the disclosure is made to consultants of and
professional advisers to either Purchaser or the
Guarantor or EFPL (as relevant), provided that such
Purchaser or the Guarantor or EFPL (as relevant)
obtains an undertaking from such third party on terms
no less restrictive than the terms set out in this
Clause 17.2 and such Purchaser and the Guarantor
shall, in each case, take all steps reasonably
required by EFPL to enforce such undertaking; or
(v) the disclosure is made by EFPL to any member of the
EME Group provided that a breach of this Clause 17.2
by such member in respect of information so disclosed
to it shall be deemed to be a breach by EFPL for the
purposes of this Agreement; or
(vi) the disclosure is made by either of the Purchasers or
the Guarantor to any member of the Purchasers' Group
provided that a breach of this Clause 17.2 by such
member in respect of information so disclosed to it
shall be deemed to be a breach by either of the
Purchasers or the Guarantor (as appropriate) for the
purposes of this Agreement.
17.3 THIRD PARTY RIGHTS
17.3.1 A person who is not a party to this Agreement has no right
under the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to
enforce any term of this Agreement except to the extent set
out in this Clause 17.3.
17.3.2 The Relevant Employees may enforce and rely on Clauses 9.2,
17.3.3 and 17.3.4 to the same extent as if they were parties
to this Agreement.
17.3.3 This Agreement may be terminated and any term may be amended
or waived without the consent of any person described in
Clause 17.3.2 except to the extent set out in Clause 17.3.4.
17.3.4 The consent of the Relevant Employees is needed to amend,
waive or terminate Clause 9.2.
17.4 SUCCESSORS AND ASSIGNS
17.4.1 This Agreement is personal to the parties to it. Accordingly,
none of the Purchasers, the Guarantor nor EFPL may, without
the prior written consent of the others, assign the benefit of
all or any of the other's obligations under this Agreement,
nor any benefit arising under or out of this Agreement, nor
shall either Purchaser be entitled to make any claim against
EFPL in respect of any Loss which it does not suffer in its
own capacity as beneficial owner of the Business.
17.4.2 If Purchaser A sells all or some of the Business to a
purchaser and, in connection with that sale, gives any
warranties, representations, covenants, indemnities,
undertakings and other assurances to such purchaser, Purchaser
A agrees that it will not be entitled to make any claim
against EFPL in consequence of any claim made by such
purchaser against Purchaser A in respect of such warranties,
representations, covenants, indemnities, undertakings and
assurances.
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17.5 VARIATION ETC.
No variation of this Agreement shall be effective unless in writing and
signed by or on behalf of all of the parties to this Agreement.
17.6 TIME OF THE ESSENCE
Any time, date or period referred to in any provision of this Agreement
may be extended by mutual agreement between EFPL and Purchaser A
(acting for itself and for Purchaser B and/or the Guarantor) but in
relation to the obligations of the Purchasers set out in Clauses 3 and
5 as regards any time, date or period originally fixed or any time,
date or period so extended, time shall be of the essence.
17.7 COSTS
EFPL shall bear all legal, accountancy and other costs and expenses
incurred by it in connection with this Agreement and the sale of the
Business. The Purchasers and the Guarantor shall bear all such costs
and expenses incurred by them.
17.8 INTEREST
If EFPL or either Purchaser defaults in the payment when due of any sum
payable under this Agreement (whether determined by agreement or
pursuant to an order of a court or otherwise) the liability of EFPL or
the relevant Purchaser (as the case may be) shall be increased to
include a payment of interest on such sum (subject to deduction or
withholding of tax as required by law) from the date when such payment
is due until the date of actual payment (as well after as before
judgment) at a rate per annum of three per cent above the base rate
from time to time of the Bank of Scotland. Such interest shall accrue
from day to day.
17.9 SET-OFF
EFPL may deduct and set-off against any amounts which are due and
payable by it under or in connection with the Transaction Documents,
any amounts due and payable to it by either Purchaser under or in
connection with the Transaction Documents.
17.10 WITHHOLDINGS AND DEDUCTIONS
17.10.1 All sums payable under this Agreement by either Purchaser
(including any amounts payable by the Guarantor) shall be paid
free and clear of all deductions or withholdings whatsoever
save only as provided in this Agreement or as may be required
by law and without abatement or set-off (whether equitable or
otherwise).
17.10.2 If any deductions or withholdings to any sums payable by
either Purchaser under this Agreement are required by law,
such Purchaser shall (except in the case of payments of
interest) be obliged to pay EFPL such sums as will, after such
deduction or withholding has been made, leave EFPL with the
same amounts as it would have been entitled to receive in the
absence of any such requirement to make a deduction or
withholding.
17.10.3 If EFPL receives a credit for or refund of any Taxation or
other monies payable by it or similar benefit by reason of any
deduction or withholding for or on account of Taxation or any
other matter then it shall reimburse to the relevant Purchaser
such part of such additional payments paid to it pursuant to
Clause 17.10.2 as EFPL certifies to the relevant Purchaser
will leave it (after such reimbursement) in no better or worse
- 51 -
position than it would have been if the relevant Purchaser had
not been required to make such deduction or withholding.
17.11 METHOD OF PAYMENT
Wherever in this Agreement provision is made for payment by one party
to another, such payment shall be effected by crediting the account
specified in the Payment Account Details of the party entitled to
payment by way of CHAPS on or before the due date for payment unless
the payee by notice to the payer, not later than three Business Days
prior to the due date for payment, elects to be paid by banker's draft
drawn on any international bank reasonably acceptable to the payee and
having an office in London. Payment of such sum shall be a good
discharge to the payer of its obligation to make such payment.
17.12 NOTICES
17.12.1 Any notice or other communication requiring to be given or
served under or in connection with this Agreement shall be in
writing and shall be sufficiently given or served if delivered
or sent to the contact details of each party as notified by
them from time to time to the other.
17.12.2 Any such notice or other communication shall be delivered by
hand or sent by courier, fax or prepaid first class post. If
sent by:
(i) hand or courier, such notice or communication shall
conclusively be deemed to have been given or served:
(a) at the time of despatch, in case of service
in the United Kingdom; or
(b) on the following Business Day, in the case
of international service;
(ii) fax, such notice or communication shall be deemed to
have been given or served at the time of despatch
provided a suitable confirmation of such delivery is
received by the sender of such fax and a copy of the
fax containing such notice or communication (together
with such confirmation) is sent by post as soon as
practicable afterward;
(iii) post, such notice or communication shall conclusively
be deemed to have been received two Business Days
from the time of posting, in the case of inland mail
in the United Kingdom; or
(iv) four Business Days from the time of posting, in the
case of international mail.
17.13 SEVERANCE
If at any time any term or provision of this Agreement is or becomes
illegal, invalid or unenforceable, in whole or in part, under the law
of any jurisdiction or any enactment or rule of law, such term or
provision or part shall to that extent be deemed not to form part of
this Agreement but the legality, validity or enforceability of any
other term or provision of this Agreement (including under the law of
any other jurisdiction) shall not in any way be affected or impaired.
17.14 ENTIRE AGREEMENT
17.14.1 This Agreement contains the whole agreement between the
parties relating to its subject matter at the date of this
Agreement to the exclusion of any terms implied by law which
may be excluded by contract.
- 52 -
17.14.2 Each Purchaser acknowledges that it has not been induced to
enter this Agreement by and, so far as is permitted by law
(and except in the case of fraud), waives any remedy in
respect of (and acknowledges that neither EFPL nor any of its
agents, officers or employees have given) any warranties,
representations, indemnities, undertakings or other statements
whatsoever (written or oral) not expressly incorporated into
this Agreement.
17.15 COUNTERPARTS
This Agreement may be executed in any number of counterparts each of
which shall be deemed an original, but all the counterparts shall
together constitute one and the same instrument.
17.16 GOVERNING LAW
This Agreement and, save as expressly referred to in this Agreement,
the other Transaction Documents, shall be governed by and construed in
accordance with English law.
- 53 -
SCHEDULE 1
THE WARRANTIES
EFPL warrants to each Purchaser as follows:
1 AUTHORITY AND CAPACITY OF EFPL
1.1 EFPL is a company duly incorporated and validly existing under the
laws of Guernsey.
1.2 EFPL has the requisite power and authority to enter into and perform
the Transaction Documents which, when executed, will constitute
valid and binding obligations of EFPL, in accordance with their
terms.
1.3 The execution and delivery of, and the performance by EFPL of its
obligations under, the Transaction Documents will not:
1.3.1 result in a breach of any provision of the memorandum or
articles of association of EFPL; or
1.3.2 result in a breach of any agreement, licence or other
instrument or of any order, judgment or decree of any court,
governmental agency or regulatory body to which EFPL is a
party or by which EFPL is bound.
1.4 All corporate action required by EFPL validly and duly to authorise
the execution and delivery of, and to exercise its rights and
perform its obligations under, the Transaction Documents has been
duly taken.
2 OWNERSHIP OF ASSETS
2.1 Each of the Assets, other than the Property, at Completion will be
owned both legally and beneficially by EFPL (or in the case of any
of the Fixed Plant and Equipment which is affixed to land belonging
to a third party, would so be but for the law of fixtures) and will
be free from any Encumbrance at Completion (other than those arising
by operation of law).
2.2 No option, right to acquire, mortgage, charge, pledge, lien (other
than a lien arising by operation of law in the ordinary course of
trading in respect of non-material amounts so far as the same are
not overdue) or other form of security or Encumbrance or equity on
or over any of the Assets will be outstanding at Completion and
there is no agreement or commitment to give or create any and no
claim has been made by any person to be so entitled, save to the
extent that the same has been deduced to the Purchasers or is
evident from documentation supplied to the Purchasers.
3 OPERATION OF THE POWER STATION
3.1 To the best of the knowledge, information and belief of EFPL, from
19 July 1999 the Business including the Power Station has been
operated in all material respects in accordance with all applicable
laws, regulations and bylaws which, in the event of a failure to
comply with the provisions of those laws, could result either in the
Power Station being withdrawn from service or in a fine in excess of
POUND STERLING 100,000 imposed on the owner of the Power Station,
in each case, by any relevant authority.
3.2 So far as EFPL is aware, any Contract which obliges EFPL to incur
capital expenditure in excess of POUND STERLING 100,000 has been
included in the Disclosure Documents.
- 54 -
4 LICENCES
4.1 All Licences necessary for the carrying on of the Business as now
carried on have been obtained, are in full force and effect and have
been and are being complied with in all material respects.
5 LITIGATION
In respect of the Business, EFPL is not involved in any litigation
or arbitration in which the amount claimed exceeds (POUND
STERLING)500,000 (save to the extent covered by insurance or in
relation to Claims or Assets excluded from the sale pursuant to
Clause 2.1.3) or in any administrative or criminal proceedings,
whether as plaintiff, defendant or otherwise and, so far as EFPL is
aware, no such litigation, arbitration or proceedings is pending or
threatened.
6 ADEQUACY OF ASSETS
To the best of the knowledge, information and belief of EFPL, the
Assets comprise all the property, rights and assets that have been
used by EFPL to carry on the Business, including the operation of,
and generation of electricity at, the Power Station.
7 ENVIRONMENT
7.1 To the best of the knowledge, information and belief of EFPL:
7.1.1 the Business has been carried on in all material respects in
compliance with Environmental Laws then applicable to the
Business;
7.1.2 the Business is being carried on in all material respects in
compliance with Environmental Laws applicable to the Business
at the date of this Agreement;
7.1.3 all material Environmental Permits are valid and in force and
have been complied with in all material respects;
7.1.4 there is no civil, criminal, regulatory or administrative
action, claim, investigation or other proceeding or suit
pending or threatened in respect of the Business arising from
or relating to Environmental Law or Environmental Permits
which would materially affect the Business as currently
operated; and
7.1.5 except in relation to the Property, ▇▇▇▇ Common or migration
of substances (whether through the air or on or under the
ground or through groundwaters or surface waters) from the
Property or ▇▇▇▇ Common, there are no Environmental
Liabilities relating to the Business in respect of pollution,
contamination or the deposit of waste by EFPL or for which
EFPL is responsible under Environmental Law.
7.2 As at the date of signing this Agreement:
7.2.1 From 1 October 2000 to 31 August 2001 approximately the
following quantities of releases have taken place from the
Power Station:
Sulphur Dioxide: approximately 51,580 tonnes.
Oxides of Nitrogen: approximately 14,051 tonnes.
The quantities specified above have been ascertained in
accordance with the provisions in the relevant Integrated
Pollution Control Consent.
7.2.2 The quantity of water abstracted under Licence 2/27/18046 from
1 January 2001 to 31 August 2001 is approximately 30,392,000
m(3).
- 55 -
8 COMPLIANCE WITH CONTRACTS
All Contracts to which EFPL is a party have been complied with in
all material respects by EFPL and, to the best of the knowledge,
information and belief of EFPL, there are no grounds for rescission,
avoidance or repudiation of any of the Contracts which are material
to the operation of the Business and no notice of termination or of
intention to terminate has been received in respect of those
Contracts.
9 TAXATION
9.1 None of the Assets are subject to any security interest arising in
connection with the failure (or alleged failure) of EFPL to pay tax.
All customs duties, VAT and other taxes payable to any revenue
authority (including Customs) upon the importation or acquisition of
any of the Assets and all excise duties payable to any revenue
authority (including Customs) in respect of any of the Assets have
been paid in full, and none of the Assets is liable to confiscation
or forfeiture (whether by virtue of non-payment or underpayment of
any taxation or duty or by virtue of non-compliance with any
legislation or regulation relating to any taxation or duty or
otherwise howsoever).
9.2 None of the Assets other than the Power Station are capital items
for the purposes of Part XV.
9.3 EFPL has maintained all records for the purposes of VAT, PAYE and
national insurance contributions required to be kept by it in
relation to the Business and the Assets, all proper payments and
returns in relation thereto have been made to the Inland Revenue,
Customs and the Contributions Agency and none of the same are
subject to any dispute.
9.4 The Disclosure Letter contains details and copies of all elections
made by EFPL pursuant to schedule 10 paragraph 2 VATA.
10 INTELLECTUAL PROPERTY AND INFORMATION TECHNOLOGY
10.1 To the best of the knowledge, information and belief of EFPL all
material Station Intellectual Property (whether registered or not)
and all pending applications therefore are (or, where appropriate in
the case of pending applications, will upon registration be) legally
owned by, licensed to or used under the authority of the owner by
EFPL.
10.2 To the best of the knowledge, information and belief of the EFPL all
material Station Intellectual Property which is owned by EFPL
(whether registered or not) and all pending applications therefore
are (or, where appropriate in the case of pending applications, will
upon registration be):
10.2.1 not being infringed or attacked or opposed by any person:
10.2.2 not licensed to a third party except under those licences
brief details of which are set out in Part A of Schedule 3;
and
10.2.3 in force and in the case of such rights as are registered or
the subject of applications for registration, listed and
briefly described in Part A of Schedule 3,
and no claims have been made and no applications are pending (other
than as listed in Part A of Schedule 3), which if pursued or granted
might be material to the truth and accuracy of any of the above.
10.3 To the best of the knowledge, information and belief of EFPL the
principal processes employed and the principal products and services
dealt in by each company in the EFPL Group do not infringe any
rights of third parties in Intellectual Property and no claims of
infringement of any such rights have been made by any third party.
Notwithstanding the
- 56 -
foregoing, nothing in this paragraph 10.3 shall be taken as any
statement as to the infringement or otherwise of any such
intellectual property rights if such operations were conducted in
the same manner after the Completion Date.
11 EMPLOYMENT
11.1 To the best of knowledge, information and belief of EFPL, there are
no amounts owing by EFPL or a member of its Group to any Relevant
Employee which only become payable more than one calendar month
after the Completion Date (other than amounts representing accrued
holiday pay for the current holiday year, holidays in suspense or
reimbursement of business expenses or the payment of incentives or
bonuses).
11.2 EFPL has, in relation to each of the Relevant Employees, complied in
all material respects with all obligations owed to, and in respect
of, the Relevant Employees including under legislation, regulations,
collective agreements, terms and conditions of employment and has
complied in all material respect with all its obligations concerning
the health and safety at work of each of the Relevant Employees and
has not incurred any liability to any Relevant Employee in respect
of any accident or injury.
11.3 No payment has been made or promised to be made or benefit given or
promised to be given by EFPL in connection with the actual or
proposed termination or suspension of employment or variation of any
contract of employment of any former employee or Relevant Employee.
11.4 The Disclosure Documents contain copies of all collective and
recognition agreements, details of any agreements in connection with
the future remuneration of Relevant Employees, standard form
contracts of employment and other standard form employee
documentation, such as handbooks and policy statements. Where
Relevant Employees are employed on terms and conditions which are
materially different from the standard terms, copies of the relevant
contracts of employment and other employment documentation have been
disclosed to the Purchasers.
11.5 To the best of the knowledge, information and belief of EFPL, EFPL
is not involved in, and no fact or circumstance exists which might
give rise to, a dispute with a trade union, works council, staff
association or other body representing any of the Relevant Employees.
11.6 Save as disclosed in the Disclosure Documents, EFPL does not have
and is not proposing to introduce a share incentive, share option,
profit sharing, redundancy, severance, bonus or other incentive
scheme for any of the Relevant Employees and no Relevant Employee
will be entitled to receive a benefit or payment as a consequence of
entering into this Agreement.
12 PENSIONS
12.1 Other than the state retirement scheme, the Pension Scheme is the
only arrangement under which EFPL provides or is liable to provide
retirement, death, disability or life assurance benefits in respect
of Relevant Employees. No proposal has been announced to establish
or contribute to any other scheme or arrangement for providing any
such benefits and EFPL does not provide and has not promised to
provide any such benefits in respect of any Relevant Employee other
than in accordance with the disclosed terms of the Pension Scheme.
12.2 The Pension Scheme is an exempt approved scheme within the meaning
of Chapter I Part XIV of the Income and Corporation Taxes ▇▇▇ ▇▇▇▇.
The Relevant Employees are contracted-out of the State Earnings
Related Pension Scheme by reference to the Pension Scheme on a
salary related basis.
- 57 -
12.3 EFPL has disclosed to the Purchasers copies of the trust deed and
rules currently governing the Pension Scheme and the latest
explanatory booklet relating to the Pension Scheme and all
announcements to members detailing changes to benefits and/or
contributions, subsequent to that booklet. These documents contain
full details of all benefits payable under the Pension Scheme for
and in respect of the Relevant Employees. No power to increase those
benefits or to provide different benefits has been exercised in
respect of any Relevant Employee and there exists no established
custom or practice of exercising such a power under the Pension
Scheme.
12.4 EFPL has notified the Purchasers in the Disclosure Letter of the
rate at which contributions to the Pension Scheme are being paid.
12.5 So far as EFPL is aware, and in all material respects, the Pension
Scheme complies with, and has at all times been managed in
accordance with, its terms and all applicable laws and regulations
so far as they apply to the Relevant Employees.
12.6 There is no material dispute about the benefits or contributions
payable under the Pension Scheme for or in respect of any Relevant
Employee, and so far as EFPL is aware there are no circumstances
which might give rise to any such dispute.
13 CERTIFICATE OF TITLE
13.1 The Certificate of Title has been reviewed by EFPL and is true,
complete and accurate in all material respects and all information
provided by EFPL in connection with the Certificate of Title was,
when given, and remains, true, complete and accurate in all material
respects.
13.2 EFPL is not aware of any fact, matter or circumstance which was not
disclosed for the purposes of the preparation of the Certificate of
Title which renders the Certificate of Title materially untrue,
inaccurate or misleading.
- 58 -
SCHEDULE 2
ALLOCATION OF CONSIDERATION
The consideration for the purchase of the Business shall be allocated for all
purposes (including all taxation purposes) as follows:
ITEM AMOUNT
(POUND) MILLION
1 Motor Vehicles, Office Equipment, Computer 5.0
Equipment, Plant and Machinery
2 Spares -
3 Stock 85.6
4 Contracts (10.5)
5 Station Know-how -
6 Station Intellectual Property -
7 Claims -
8 Goodwill -
9 Records -
10 Property Agreements -
11 Property (including fixed plant) 280
12 Operating Permits -
13 All other assets of the Business -
---------
TOTAL 360.1
- 59 -
SCHEDULE 3
INTELLECTUAL PROPERTY AND INFORMATION TECHNOLOGY
PART A - COMPUTER EQUIPMENT, INTELLECTUAL PROPERTY AND KNOW-HOW THAT IS
TRANSFERRING TO PURCHASER A
SOFTWARE
-----------------------------------------------------------------------------------------------------------------------------------
CATEGORY NAME DESCRIPTION TECHNOLOGY
-----------------------------------------------------------------------------------------------------------------------------------
PC/Laptop Installed Autodesk AutoCAD 2000 Drawing package.
-----------------------------------------------------------------------------------------------------------------------------------
PC/Laptop Installed Baccess Sends payment information via modem. 16 bit application
-----------------------------------------------------------------------------------------------------------------------------------
PC/Laptop Installed BarCoding Used in Stores.
-----------------------------------------------------------------------------------------------------------------------------------
PC/Laptop Installed Citrix ICA Client Freeware
-----------------------------------------------------------------------------------------------------------------------------------
PC/Laptop Installed DunManager Dial-up networking manager software.
-----------------------------------------------------------------------------------------------------------------------------------
PC/Laptop Installed Efax Faxes remittance Advice. Dos based
-----------------------------------------------------------------------------------------------------------------------------------
PC/Laptop Installed Netscape Navigator PC Software
-----------------------------------------------------------------------------------------------------------------------------------
PC/Laptop Installed Visio Technical Diagram drawing package
-----------------------------------------------------------------------------------------------------------------------------------
Server Installed Arcserve 6.6 for Netware Server Software
-----------------------------------------------------------------------------------------------------------------------------------
Server Installed Data Gatherer Performance Department system for Excel Spreadsheets, with
gathering plant information. SQL database on FbrApp1
-----------------------------------------------------------------------------------------------------------------------------------
Server Installed Electronic Dispatch EDL (Nat Grid) to be reinstated and Requires NT Server &
Logging (EDL) Transferred to Buyer. EDL (ISIS) MS-SQL server
to be removed and not transferred
to buyer. For receiving grid
instructions.
-----------------------------------------------------------------------------------------------------------------------------------
Server Installed FMS Fuel Management System, records Written in clipper/Dbase
(oil and coal) as well as burn and
chemical analysis.
-----------------------------------------------------------------------------------------------------------------------------------
Server Installed Information System Collection of HTML pages containing
(Local Intranet with links to various station
links to files on information.
Netware server)
-----------------------------------------------------------------------------------------------------------------------------------
Server Installed Proates Module Library Programme model for various Programme written by
generating plant parameters. Powergen, Power
Technology
-----------------------------------------------------------------------------------------------------------------------------------
Server Installed Psi (Envy) PSI (Lifting Tackle Register)
Software package.
-----------------------------------------------------------------------------------------------------------------------------------
- 60 -
-----------------------------------------------------------------------------------------------------------------------------------
CATEGORY NAME DESCRIPTION TECHNOLOGY
-----------------------------------------------------------------------------------------------------------------------------------
Server Installed VK2 Visual Kismet Version 2. (data SQL server 6.5 with a
currently being exported. Server Client front end
will no longer be used)
-----------------------------------------------------------------------------------------------------------------------------------
Server Operating System Citrix Metaframe 1.8 Server Software
-----------------------------------------------------------------------------------------------------------------------------------
Terminal Server Installed ▇▇▇▇▇▇▇ Index Health and Safety and Environmental
legislation database.
-----------------------------------------------------------------------------------------------------------------------------------
Terminal Server Installed Entek Emonitor and Store and analyses vibrations from SQLv7
Odyssey (Plant rotating plant and electrical
Vibration Monitoring). motors.
-----------------------------------------------------------------------------------------------------------------------------------
Terminal Server Installed OPAS Occupational Health Monitoring Applications which uses
system. Used by the Nurse. SQL server from FbrApps1.
-----------------------------------------------------------------------------------------------------------------------------------
Terminal Server Installed PayFact Used to access Payroll
Bureau data via modem.
-----------------------------------------------------------------------------------------------------------------------------------
Terminal Server Installed PI Data Link Tool to enable access to the data 1.8
stored in the Pi database. Allows
monitoring of plant items and
trends analysis.
-----------------------------------------------------------------------------------------------------------------------------------
Terminal Server Installed PI Process Book Tool to graphically display the 2.12
data stored in the Pi database.
Allows monitoring of plant items
and trends analysis.
-----------------------------------------------------------------------------------------------------------------------------------
Terminal Server Installed Plant Link (Entek) 2
-----------------------------------------------------------------------------------------------------------------------------------
- 61 -
COMPUTER EQUIPMENT
SERVERS
----------------------------------------------------------------------------------------------------------------
DESCRIPTION SERIAL NUMBER SERVER NAME
----------------------------------------------------------------------------------------------------------------
Compaq RM ProLiant 8000 XN550-1MB 8942CB770077 MEC-FBR-01
----------------------------------------------------------------------------------------------------------------
Compaq ProLiant 1850R PIII550 128 M1 8943CSC10003 MEC-FBR-02
----------------------------------------------------------------------------------------------------------------
Compaq ProLiant DL380R PIII733/133 X 8014DKN11270 FBRAPP1
----------------------------------------------------------------------------------------------------------------
Compaq ProLiant 1850R PIII550 128 M1 8009CSC10069 FBRAPP2
----------------------------------------------------------------------------------------------------------------
Compaq ProLiant 2000 - 590 8507HLN10041 Not in use
----------------------------------------------------------------------------------------------------------------
Compaq ProLiant 1850R PIII550 128 M1 8943CSC10084 FBRDHCP1
----------------------------------------------------------------------------------------------------------------
Compaq ProLiant 1850R PIII550 128 M1 8009CSC10073 FBRTS1
----------------------------------------------------------------------------------------------------------------
Compaq ProLiant 1850R PIII550 128 M1 8009CSC10039 FBRTS2
----------------------------------------------------------------------------------------------------------------
Compaq Proliant 1500 5/100 6545HNF10297 Not in use
----------------------------------------------------------------------------------------------------------------
Compaq Proliant 1850R Pii450 Mod 1 8911CFW10101 FBREDL1 (EX GPMSTEST2)
----------------------------------------------------------------------------------------------------------------
Compaq Proliant 5000 8647BHJ20148 Not in use
----------------------------------------------------------------------------------------------------------------
PC'S (LIST ACCURATE TO 1 JUNE 2001 - CONSTANTLY BEING UPDATED)
----------------------------------------------------------------------------------------------------------------
LOCATION USERNAME COMPAQ IBM LAPTOP PC SERIAL NUMBER P ASSET NO
----------------------------------------------------------------------------------------------------------------
Technical Services ▇▇▇▇▇▇▇ ▇▇▇▇▇ X 801CYH40693 9262
----------------------------------------------------------------------------------------------------------------
Technical Services ▇▇▇▇ ▇▇▇▇▇▇▇ X 8944CKP20567 7013
----------------------------------------------------------------------------------------------------------------
Technical Services ▇▇▇▇▇ ▇▇▇▇▇▇ X 8944CKP20530 9263
----------------------------------------------------------------------------------------------------------------
Technical Services ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ X 8945CKP21721 7247
----------------------------------------------------------------------------------------------------------------
Technical Services ▇▇▇ ▇▇▇▇▇▇▇ X 894OCKP20120 7147
----------------------------------------------------------------------------------------------------------------
Technical Services Helpdesk Laptop X 55184PZ 9141
----------------------------------------------------------------------------------------------------------------
Technical Services ▇▇▇▇▇ ▇▇▇▇▇ X 5523CY2 9013
----------------------------------------------------------------------------------------------------------------
Technical Services ▇▇▇▇ Montserrat X 5517ML6 6213
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Turbine Office ▇▇▇▇▇▇▇▇ ▇▇▇▇ X 8840BW340246 9050
----------------------------------------------------------------------------------------------------------------
Turbine Office Andy Rome X 8945CKP20022 7114
----------------------------------------------------------------------------------------------------------------
Turbine Office Spare Monitor
----------------------------------------------------------------------------------------------------------------
Turbine Office Spare X 8944CKP20556 7126
----------------------------------------------------------------------------------------------------------------
Turbine Office A Abbass X 8944CKP20563 7148
----------------------------------------------------------------------------------------------------------------
Turbine Office ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ X 8939CKP20256 7129
----------------------------------------------------------------------------------------------------------------
- 62 -
----------------------------------------------------------------------------------------------------------------
LOCATION USERNAME COMPAQ IBM LAPTOP PC SERIAL NUMBER P ASSET NO
----------------------------------------------------------------------------------------------------------------
Turbine Office ▇▇▇ ▇▇▇▇▇▇▇▇ X 8944CKP20551 7039
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
EC+I Office ▇▇▇▇▇ ▇▇▇▇▇▇ X 8944CKP20576 7125
----------------------------------------------------------------------------------------------------------------
EC+I Office ▇▇▇▇▇ ▇▇▇▇▇▇▇ X 8944CKP20560 7001
----------------------------------------------------------------------------------------------------------------
EC+I Office ▇▇▇▇ ▇▇▇▇▇▇▇ X 5521RN3 7050
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Reception Reception X 8945CKP20058 7127
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Office Services ▇▇▇ ▇▇▇▇▇▇▇ X 8944CKP20570 7012
----------------------------------------------------------------------------------------------------------------
Office Services ▇▇▇▇ ▇▇▇▇▇▇▇ X 8944CKP20566 7057
----------------------------------------------------------------------------------------------------------------
Office Services ▇▇▇▇▇ ▇▇▇▇▇▇▇ X 8944CKP20531 9098
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
HR ▇▇▇▇▇ ▇▇▇▇▇▇ X 5517MH3 6145
----------------------------------------------------------------------------------------------------------------
HR ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ X 8944CKP20510 7019
----------------------------------------------------------------------------------------------------------------
HR ▇▇▇▇▇ ▇▇▇▇ X 8944CKP20548 7060
----------------------------------------------------------------------------------------------------------------
HR ▇▇▇▇▇ ▇▇▇▇▇▇ X 8940CKP20226 7020
----------------------------------------------------------------------------------------------------------------
HR ▇▇▇▇▇▇ ▇▇▇▇▇▇ X 8939CKP20144 7021
----------------------------------------------------------------------------------------------------------------
HR ▇▇▇▇ ▇▇▇▇▇▇▇▇ X 8945CKP26010 7280
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Finance ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ X 8944CKP20515 7016
----------------------------------------------------------------------------------------------------------------
Finance ▇▇▇▇▇ ▇▇▇▇▇ X 8939CKP20260 7074
----------------------------------------------------------------------------------------------------------------
Finance ▇▇▇ ▇▇▇▇ X 8939CKP20097 7032
----------------------------------------------------------------------------------------------------------------
Finance ▇▇▇▇▇ ▇▇▇▇▇ X 8945CKP20019 7029
----------------------------------------------------------------------------------------------------------------
Finance ▇▇▇▇▇▇ ▇▇▇▇▇ X 55183T8 9125
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Procurement ▇▇▇▇ ▇▇▇▇▇▇ X 8944CKP20574 7030
----------------------------------------------------------------------------------------------------------------
Procurement ▇▇▇▇ ▇▇▇▇▇ X 8944CKP20583 7020
----------------------------------------------------------------------------------------------------------------
Procurement ▇▇▇▇ ▇▇▇▇▇▇▇ X 8944CKP20582 7034
----------------------------------------------------------------------------------------------------------------
Procurement ▇▇▇ ▇▇▇▇▇▇▇ X 5518375 9108
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Executive ▇▇▇▇▇▇ ▇▇▇▇ X 55188L0
----------------------------------------------------------------------------------------------------------------
Executive ▇▇▇▇▇▇▇ ▇▇▇▇ X 5515RP9 2005
----------------------------------------------------------------------------------------------------------------
Executive ▇▇▇ ▇▇▇▇▇▇▇▇▇ X 5515RP8 2003
----------------------------------------------------------------------------------------------------------------
- 63 -
----------------------------------------------------------------------------------------------------------------
LOCATION USERNAME COMPAQ IBM LAPTOP PC SERIAL NUMBER P ASSET NO
----------------------------------------------------------------------------------------------------------------
Executive ▇▇▇▇ ▇▇▇▇▇▇ X 5521WL2 2798
----------------------------------------------------------------------------------------------------------------
Executive ▇▇▇▇ ▇▇▇ X 5515RP2 2749
----------------------------------------------------------------------------------------------------------------
Executive ▇▇▇ ▇▇▇▇▇▇▇ X 5515RN9
----------------------------------------------------------------------------------------------------------------
Executive ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ X 89944CKP20517 9506
----------------------------------------------------------------------------------------------------------------
Executive ▇▇▇▇ ▇▇▇▇▇ X 55184H7 9146
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
MCC ▇▇▇ ▇▇▇▇▇▇▇▇▇ X 8926CKP20193 9032
----------------------------------------------------------------------------------------------------------------
MCC ▇▇▇▇ ▇▇▇▇▇▇ X 8944CKP20544 9035
----------------------------------------------------------------------------------------------------------------
MCC Charlie Amp X 8940CKP20135 7208
----------------------------------------------------------------------------------------------------------------
MCC ▇▇▇▇▇ ▇▇▇▇▇▇ X 8940CKP20012 7151
----------------------------------------------------------------------------------------------------------------
MCC ▇▇▇▇ ▇▇▇▇▇▇ X 8944CKP20224 7141
----------------------------------------------------------------------------------------------------------------
MCC ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ X 8945CKP20117 7143
----------------------------------------------------------------------------------------------------------------
MCC ▇▇▇▇▇ ▇▇▇▇▇▇▇ X 8945CKP20154 7200
----------------------------------------------------------------------------------------------------------------
MCC ▇▇▇▇ ▇▇▇▇▇▇ X 8926CKP20192
----------------------------------------------------------------------------------------------------------------
MCC ▇▇▇ ▇▇▇▇▇▇▇ X 8842BW840296 9048
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Turbine Monitoring ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ X 8949CKP20222 7106
----------------------------------------------------------------------------------------------------------------
Turbine Monitoring ▇▇▇▇ ▇▇▇▇▇▇ X 8945CKP20125 7033
----------------------------------------------------------------------------------------------------------------
Turbine Monitoring ▇▇▇ ▇▇▇▇▇▇ X 8940CKP20223 7113
----------------------------------------------------------------------------------------------------------------
Turbine Monitoring Spare X 8944CKP20539 7242
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
MCC EC+I ▇▇▇▇ ▇▇▇▇▇▇ X 8939CKP20264 7128
----------------------------------------------------------------------------------------------------------------
MCC EC+I ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ X 8940CKP20022 7130
----------------------------------------------------------------------------------------------------------------
MCC EC+I General Everyone X 8939CKP20143 7116
----------------------------------------------------------------------------------------------------------------
MCC EC+▇ ▇ ▇▇▇▇▇▇ X 8944CKP20508 7148
----------------------------------------------------------------------------------------------------------------
MCC EC+I M ▇▇▇▇▇▇▇▇ X 8944CKP20550 9029
----------------------------------------------------------------------------------------------------------------
MCC EC+I B G ▇▇▇▇▇▇ X 8944CKP20561 7105
----------------------------------------------------------------------------------------------------------------
MCC EC+▇ ▇ ▇▇▇▇▇▇▇ X 8940CKP20026 7121
----------------------------------------------------------------------------------------------------------------
MCC EC+I ▇▇▇ ▇▇▇▇▇ X 9839CKP20084 7109
----------------------------------------------------------------------------------------------------------------
MCC EC+I ▇▇▇▇ ▇▇▇▇▇ X 8944CKP20336 7119
----------------------------------------------------------------------------------------------------------------
MCC EC+I ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ X 8944CKP20534 9006
----------------------------------------------------------------------------------------------------------------
MCC EC+I ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ X 8945CKP20163 7123
----------------------------------------------------------------------------------------------------------------
MCC EC+I Weirs X 8939CKP20015 7110
----------------------------------------------------------------------------------------------------------------
- 64 -
----------------------------------------------------------------------------------------------------------------
LOCATION USERNAME COMPAQ IBM LAPTOP PC SERIAL NUMBER P ASSET NO
----------------------------------------------------------------------------------------------------------------
MCC EC+I P Hook X 8944CKP20533 7107
----------------------------------------------------------------------------------------------------------------
Turbine Outage N Brooksbank X 8840BW340346 9053
----------------------------------------------------------------------------------------------------------------
Turbine Outage Obi X 8945CKP20116 7120
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Stores J ▇▇▇▇▇▇▇▇ X 8944CKP20532 7024
----------------------------------------------------------------------------------------------------------------
Stores S ▇▇▇▇▇▇ X 8940CKP20164 9009
----------------------------------------------------------------------------------------------------------------
Stores J ▇▇▇▇▇▇ X 8939CKP20261 7028
----------------------------------------------------------------------------------------------------------------
Stores S ▇▇▇▇▇ X 8944CKP20546 7018
----------------------------------------------------------------------------------------------------------------
Stores M ▇▇▇▇▇▇▇ X 8940CKP20011 7031
----------------------------------------------------------------------------------------------------------------
Stores ▇▇▇▇ ▇▇▇▇▇ X 8944CKP20507 7027
----------------------------------------------------------------------------------------------------------------
Stores ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ X 8944CKP20558 7080
----------------------------------------------------------------------------------------------------------------
Stores General Stores Use X 8944CKP20585 7058
----------------------------------------------------------------------------------------------------------------
Stores ▇▇▇▇▇ ▇▇▇▇ X 8944CKP20513 7014
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
HSE ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ X 5521PD0 7052
----------------------------------------------------------------------------------------------------------------
HSE ▇▇▇▇ ▇▇▇▇▇▇▇ X 8945CKP20134 7207
----------------------------------------------------------------------------------------------------------------
HSE Spare X 8939CKP20161 7202
----------------------------------------------------------------------------------------------------------------
HSE Spare X 8945CKP20021 7204
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Ash & Dust ▇▇▇▇▇▇▇ Bones X 8940CKP20017 7255
----------------------------------------------------------------------------------------------------------------
Ash & Dust ▇▇▇▇ ▇▇▇▇▇▇ X 8940CKP20016 7257
----------------------------------------------------------------------------------------------------------------
Ash & Dust Canteen/Office X 8940CKP20105 7256
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Drawing Office ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ X 8945CKP21785 7259
----------------------------------------------------------------------------------------------------------------
Drawing Office CAD Machine X 8944CKP20540 9036
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Station Services ▇▇▇▇▇ Domleo X 8940CKP20104 7140
----------------------------------------------------------------------------------------------------------------
Station Services ▇▇▇▇ ▇▇▇▇▇ X 8945CKP21712 7245
----------------------------------------------------------------------------------------------------------------
Station Services ▇▇▇▇ ▇▇▇▇▇▇▇ X 8940CKP20102 7203
----------------------------------------------------------------------------------------------------------------
Station Services ▇▇▇▇ ▇▇▇▇▇▇ X 8944CKP20506
----------------------------------------------------------------------------------------------------------------
Station Services AMCO X 8945CKP21635 7251
----------------------------------------------------------------------------------------------------------------
Station Services ▇▇▇▇▇ ▇▇▇▇▇ X 8944CKP20549 7252
----------------------------------------------------------------------------------------------------------------
- 65 -
----------------------------------------------------------------------------------------------------------------
LOCATION USERNAME COMPAQ IBM LAPTOP PC SERIAL NUMBER P ASSET NO
----------------------------------------------------------------------------------------------------------------
Security ▇▇▇▇▇▇ ▇▇▇▇▇ X 8945CKP20035 7114
----------------------------------------------------------------------------------------------------------------
Security ▇▇▇▇ ▇▇▇▇▇▇▇ X 8940CKP20021 7210
----------------------------------------------------------------------------------------------------------------
Security Photo PC X 8945CKP21769 7209
----------------------------------------------------------------------------------------------------------------
Security Training X 8944CKP20537
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Performance ▇▇▇▇▇▇ ▇▇▇▇ X 5521HK4 6241
----------------------------------------------------------------------------------------------------------------
Performance ▇▇▇▇▇▇ ▇▇▇▇▇▇ X 8940CKP20113 7118
----------------------------------------------------------------------------------------------------------------
Performance ▇▇▇ ▇▇▇▇▇ X 5520GK1 7309
----------------------------------------------------------------------------------------------------------------
Performance ▇▇▇▇▇▇ ▇▇▇▇▇ X 8945CKP20061 7111
----------------------------------------------------------------------------------------------------------------
Performance ▇▇▇ ▇▇▇▇ X 8945CKP21660 7265
----------------------------------------------------------------------------------------------------------------
Performance ▇▇▇▇▇▇ ▇▇▇▇▇▇ X 55183W2 9113
----------------------------------------------------------------------------------------------------------------
Performance ▇▇▇▇▇ ▇▇▇▇▇▇▇ X 8940CKP20020 7025
----------------------------------------------------------------------------------------------------------------
Performance ▇▇▇▇▇ ▇▇▇▇ X 8945CKP21786 7261
----------------------------------------------------------------------------------------------------------------
Performance ▇▇▇▇ ▇▇▇▇▇▇ X 8939CKP20259 7253
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Control Room Centre Desk X 8922CKP20301
----------------------------------------------------------------------------------------------------------------
Control Room Centre Desk EDL X
----------------------------------------------------------------------------------------------------------------
Control ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇▇
----------------------------------------------------------------------------------------------------------------
Control Room Unit 1 GPMS X 8035DYS24327
----------------------------------------------------------------------------------------------------------------
Control Room ▇▇▇▇ ▇ X 8945CKP21788
----------------------------------------------------------------------------------------------------------------
Control Room Unit 4 GPMS X 8024DQK32179 7268
----------------------------------------------------------------------------------------------------------------
Control Room Unit 4 X 8841BW340541
----------------------------------------------------------------------------------------------------------------
Control Room ▇▇▇▇ ▇ X 8945CKP21713
----------------------------------------------------------------------------------------------------------------
Control Room ▇▇▇▇ ▇ ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇▇
----------------------------------------------------------------------------------------------------------------
Control Room Permit Office X 8945CKP21770 7266
----------------------------------------------------------------------------------------------------------------
Control Room Permit Office X 8944CKP20577
----------------------------------------------------------------------------------------------------------------
Control Room Permit Office X 8945CKP21787 7246
----------------------------------------------------------------------------------------------------------------
Control Room Assistant Shift X 8945CKP20045 7243
Manager
----------------------------------------------------------------------------------------------------------------
Control Room Shift Manager See Shift Manager List
----------------------------------------------------------------------------------------------------------------
Control Room Unit 2 X 8944CKP20526
----------------------------------------------------------------------------------------------------------------
- 66 -
----------------------------------------------------------------------------------------------------------------
LOCATION USERNAME COMPAQ IBM LAPTOP PC SERIAL NUMBER P ASSET NO
----------------------------------------------------------------------------------------------------------------
Control Room ▇▇▇▇ ▇ ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇▇
----------------------------------------------------------------------------------------------------------------
Control Room ▇▇▇▇▇ ▇▇▇▇▇▇ X 8945CKP21790 9097
----------------------------------------------------------------------------------------------------------------
Water Treatment General Use X 8940CKP20015 7258
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Coal Plant Control ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ X 8944CKP20579 9008
----------------------------------------------------------------------------------------------------------------
Coal Plant Control ▇▇▇▇▇ ▇▇▇▇▇▇▇ X 8939CKP20109 7136
----------------------------------------------------------------------------------------------------------------
Coal Plant Control ▇▇▇▇ ▇▇▇▇▇▇ X 8944CKP20512 7135
----------------------------------------------------------------------------------------------------------------
Coal Plant Control Permit Office X 8944CKP20511 7134
----------------------------------------------------------------------------------------------------------------
Coal Plant Control Control Room X 8940CKP20018 7137
----------------------------------------------------------------------------------------------------------------
Coal Plant Control Training Room X 8945CKP21750 7260
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Coal Plant Maintenance Spare X 8945CKP21711 7262
----------------------------------------------------------------------------------------------------------------
Coal Plant Maintenance ▇▇▇▇ ▇▇▇▇▇ X 8945CKP21484 7263
----------------------------------------------------------------------------------------------------------------
Coal Plant Maintenance ▇▇▇▇▇▇ France X 8945CKP21661 7264
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Outage Cabins ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ X 8944CKP20505
----------------------------------------------------------------------------------------------------------------
Outage Cabins ▇▇▇▇▇ ▇▇▇▇▇▇ X 5516TV7 2752
----------------------------------------------------------------------------------------------------------------
Outage Cabins ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ X 8944CKP20520 7131
----------------------------------------------------------------------------------------------------------------
Outage Cabins ▇▇▇▇ ▇▇▇▇▇▇▇ X 8851BW340428 9046
----------------------------------------------------------------------------------------------------------------
Outage Cabins ▇▇▇▇▇▇ ▇▇▇▇▇ X 5515RV5 2735
----------------------------------------------------------------------------------------------------------------
Outage Cabins ▇▇▇▇▇▇ ▇▇▇▇▇▇ X 8940CKP20014 7132
----------------------------------------------------------------------------------------------------------------
Outage Cabins ▇▇▇▇▇ ▇▇▇▇▇ X 8945CKP21753 7250
----------------------------------------------------------------------------------------------------------------
Outage Cabins ▇▇▇▇▇ ▇▇▇▇▇▇ X 8939CKP20160 7138
----------------------------------------------------------------------------------------------------------------
Outage Cabins ▇▇▇▇ ▇▇▇▇▇▇ X 8840BW340342 9042
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
B' Gate Security General Use X 8944CKP20555 9503
----------------------------------------------------------------------------------------------------------------
C' Gate Security General Use X 8944CKP20557 7149
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Canteen General Use X 8945CKP20060 7201
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Laboratory Naz Khan X 8944CKP20325 7112
----------------------------------------------------------------------------------------------------------------
- 67 -
----------------------------------------------------------------------------------------------------------------
LOCATION USERNAME COMPAQ IBM LAPTOP PC SERIAL NUMBER P ASSET NO
----------------------------------------------------------------------------------------------------------------
Laboratory ▇▇▇▇▇ ▇▇▇▇▇ X 8944CKP20578 7117
----------------------------------------------------------------------------------------------------------------
Laboratory ▇▇▇▇ ▇▇▇▇▇▇ X 8944CKP20518 7142
----------------------------------------------------------------------------------------------------------------
Laboratory ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ X 5521RG7 7053
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
E&T Block ▇▇▇▇▇ ▇▇▇▇▇▇▇ X 8032DFG30818 9148
----------------------------------------------------------------------------------------------------------------
E&T Block ▇▇▇▇▇ ▇▇▇▇▇ X 8032DFG30744 9149
----------------------------------------------------------------------------------------------------------------
E&T Block Training X 8026DD220318
----------------------------------------------------------------------------------------------------------------
E&T Block Training X 8026DD220107
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Shift Charge Manager ▇▇▇▇▇▇ ▇▇▇▇▇ X 5515RP0 2739
----------------------------------------------------------------------------------------------------------------
Shift Charge Manager ▇▇▇▇ ▇▇▇▇▇ X 5521LV6 6207
----------------------------------------------------------------------------------------------------------------
Shift Charge Manager ▇▇▇ ▇▇▇▇▇▇▇ X 55188F5 9078
----------------------------------------------------------------------------------------------------------------
Shift Charge Manager ▇▇▇ ▇▇▇▇▇ X 5520GK1 7309
----------------------------------------------------------------------------------------------------------------
Shift Charge Manager Ray Barnsley X 55188H3
----------------------------------------------------------------------------------------------------------------
Shift Charge Manager ▇▇▇▇▇ ▇▇▇▇▇▇ X
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Nurse ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ X 8940CKP20225 7145
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Weather Station Technical Services X
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
PRINTERS (LIST ACCURATE TO 1 JUNE 2001 - CONSTANTLY BEING UPDATED)
-------------------------------------------------------------------
PRINTERS SERIAL NUMBER MODEL
-------------------------------------------------------------------
FB-001 NL7T049787 HP LaserJet 4050N
-------------------------------------------------------------------
FB-002 NL7T049797 HP LaserJet 4050N
-------------------------------------------------------------------
FB-003 NL7V006405 HP LaserJet 4050N
-------------------------------------------------------------------
FB-004 NL7V006396 HP LaserJet 4050N
-------------------------------------------------------------------
FB-005 NL7N017381 HP LaserJet 4050N
-------------------------------------------------------------------
FB-006 NL7V006399 HP LaserJet 4050N
-------------------------------------------------------------------
FB-007 NL7R007689 HP LaserJet 4050N
-------------------------------------------------------------------
- 68 -
-------------------------------------------------------------------
PRINTERS SERIAL NUMBER MODEL
-------------------------------------------------------------------
FB-008 NL7N017402 HP LaserJet 4050N
-------------------------------------------------------------------
FB-009 NL7R007688 HP LaserJet 4050N
-------------------------------------------------------------------
FB-010 NL7N017385 HP LaserJet 4050N
-------------------------------------------------------------------
FB-011 NL7V006397 HP LaserJet 4050N
-------------------------------------------------------------------
FB-012 SL501LDQFC HP LaserJet 5
-------------------------------------------------------------------
Printers Serial Number Model
-------------------------------------------------------------------
FB-013 NL7R007690 HP LaserJet 4050N
-------------------------------------------------------------------
FB-014 NL7T049672 HP LaserJet 4050N
-------------------------------------------------------------------
FB-015 NL7R007674 HP LaserJet 4050N
-------------------------------------------------------------------
FB-016 NL7R007677 HP LaserJet 4050N
-------------------------------------------------------------------
FB-017 NL7Y123343 HP LaserJet 4050N
-------------------------------------------------------------------
FB-018 NL7V006398 HP LaserJet 4050N
-------------------------------------------------------------------
FB-019 NL7V006403 HP LaserJet 4050N
-------------------------------------------------------------------
FB-020 NL7N017406 HP LaserJet 4050N
-------------------------------------------------------------------
FB-021 NL7R007680 HP LaserJet 4050N
-------------------------------------------------------------------
FB-022 NL7T046106 HP LaserJet 4050N
-------------------------------------------------------------------
FB-023 NL7Y123336 HP LaserJet 4050N
-------------------------------------------------------------------
FB-028 NL7V006400 HP LaserJet 4050N
-------------------------------------------------------------------
FB-029 NL7R006469 HP LaserJet 4050N
-------------------------------------------------------------------
FB-101 NL7Y123339 HP LaserJet 4050N
-------------------------------------------------------------------
FB-102 NL7T049790 HP LaserJet 4050N
-------------------------------------------------------------------
FB-103 NL7R007673 HP LaserJet 4050N
-------------------------------------------------------------------
FB-104 NL7V006383 HP LaserJet 4050N
-------------------------------------------------------------------
FB-105 NL7V006369 HP LaserJet 4050N
-------------------------------------------------------------------
FB-107 NL7T046095 HP LaserJet 4050N
-------------------------------------------------------------------
FB-108 NL7V006393 HP LaserJet 4050N
-------------------------------------------------------------------
FB-109 NL7T046105 HP LaserJet 4050N
-------------------------------------------------------------------
FB-110 NL7Y123328 HP LaserJet 4050N
-------------------------------------------------------------------
FB-111 NL7Y123350 HP LaserJet 4050N
-------------------------------------------------------------------
▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
-------------------------------------------------------------------
▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
-------------------------------------------------------------------
FB-303 JPDF503191 HP LaserJet4500DN
-------------------------------------------------------------------
FB-306 JPHFA05470 HP LaserJet4500DN
-------------------------------------------------------------------
- 68 -
-------------------------------------------------------------------
PRINTERS SERIAL NUMBER MODEL
-------------------------------------------------------------------
FB-307 JPHFB09912 HP LaserJet4500DN
-------------------------------------------------------------------
FB-400 SG88511087 HP DesignJet 450C
-------------------------------------------------------------------
NETWORK KIT
-----------------------------------------------------------------------------------------------------------------
DESCRIPTION P/N QUANTITY
-----------------------------------------------------------------------------------------------------------------
1000BASE-LX/LH "long haul" GBIC (singlemode or multimode) WS-G5486 36
-----------------------------------------------------------------------------------------------------------------
1000BASE-SX "Short Wavelength" GBIC (Multimode only) WS-G5484 30
-----------------------------------------------------------------------------------------------------------------
Catalyst 3524 XL Enterprise Edition WS-C3524-XL-EN 10
-----------------------------------------------------------------------------------------------------------------
Cisco 3640 Series IOS Enterprise Plus S364AP-12.0.6 1
-----------------------------------------------------------------------------------------------------------------
Cisco 3600 4-slot modular router, use w/ AC RPS with IP CISCO3640-RPS 1
-----------------------------------------------------------------------------------------------------------------
600W Redundant AC Power System With DC Power Cables PWR600-AC-RPS-CAB 1
-----------------------------------------------------------------------------------------------------------------
16Mb Flash card for the Cisco 3600 MEM3600-16FC 1
-----------------------------------------------------------------------------------------------------------------
32-to-64 MB DRAM Factory Upgrade for the Cisco 3640 MEM3640-32U64D 1
-----------------------------------------------------------------------------------------------------------------
2 Ethernet 2 WAN Card Slot Network Module NM-2E2W 1
-----------------------------------------------------------------------------------------------------------------
12-port 100BaseFX Switch With Two Module Slots (Enterprise E WS-C2912MF-XL 3
-----------------------------------------------------------------------------------------------------------------
1000BaseX uplink for Catalyst 2900 XL WS-X2931-XL 6
-----------------------------------------------------------------------------------------------------------------
FastHub 424M 10/100 Hubs WS-C424M 5
-----------------------------------------------------------------------------------------------------------------
3-Com 16Port Hub n/a 3
-----------------------------------------------------------------------------------------------------------------
TERMINAL SERVER APPLICATIONS AND LICENCES
-----------------------------------------------------------------------------------------------------------------
SERVERS OS CITRIX LOAD BALANCING
-----------------------------------------------------------------------------------------------------------------
FBRTS1 Terminal Server 4 sp 4 Metaframe 1.8 Feature Release 1 - 15User Yes
-----------------------------------------------------------------------------------------------------------------
FBRTS2 Terminal Server 4 sp 4 Metaframe 1.8 Feature Release 1 - 15User Yes
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
SOFTWARE VERSION LICENCES
-----------------------------------------------------------------------------------------------------------------
Microsoft XL 97 N/A
-----------------------------------------------------------------------------------------------------------------
Nisoft (FID) 1.5a
-----------------------------------------------------------------------------------------------------------------
Nisoft (FBR) 1.5a
-----------------------------------------------------------------------------------------------------------------
Odyssey (Entek) 2.1 Held by Ferrybridge
-----------------------------------------------------------------------------------------------------------------
Plant Link (Entek) 2 Held by Ferrybridge
-----------------------------------------------------------------------------------------------------------------
Safety Organiser 1.4 10 + Unlimited Read-Only
-----------------------------------------------------------------------------------------------------------------
- 70 -
Weather Station 80-120986A-08 23/02/1999 2
-----------------------------------------------------------------------------------------------------------------
PI Process Book 2.12 30
-----------------------------------------------------------------------------------------------------------------
PI Data Link 1.8 Shared with Process Book
-----------------------------------------------------------------------------------------------------------------
E-Reports 22.01.12 3
-----------------------------------------------------------------------------------------------------------------
DATA CENTRE
o L V switch panel divided into 2 main sections which consist of 2
incoming 300 amp. Supplies via interlocked mccb's with auto change
over.
o 80 kva "planet 3" model cp580-a33xp ups.
o UPS remote mimic panel.
o Essential power supply board for data centre.
o Essential power supply board for pabx room.
o Non essential power supply board for data centre.
o General and emergency lighting.
o General and essential small power board.
o Toshiba air conditioning units consisting of :-
- (data centre)
1off RAV.164u-pe ceiling cassette (4.5 kw)
4 off RAV.464u-pe ceiling cassettes (12.5 kw)
- (pabx room)
▇ ▇▇▇ ▇▇▇.▇▇▇-▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (▇▇▇▇)
o 6 off condensing units are located on the flat roof area
o Emergency power off button.
o Fire alarm system to cover both data centre and pabx room
o Fire suppression system for data centre.
o Fire suppression system for pabx room.
o Environmental monitoring system (data centre).
o Water leak detection system (data centre).
o Cctv system (data centre and pabx room).
o Access control systems (data centre and pabx room)
o Door entry system (data centre)
o Ventilation unit (data centre)
o Fresh air filtration unit (data centre)
- 71 -
o All under floor galvanised cable trays.
o Under floor raised power tracks (electrack)
TELEPHONY PRODUCTS
o Pabx - Admin telephone system - Siemens ISDX
o Pax - Plant telephone system - Siemens ISDX
o Video Conference unit - PictureTel Concorde 4500
o 31 Orange Mobile Telephones
- 72 -
PROCESS CONTROL SOFTWARE
------------------------------------------------------------------------------------------------------------------------------------
NO DESCRIPTION NO. LICENSE FOLDER LICENSE OWNERSHIP COMMENTS SUPPLIER
REF TYPE CATEGORY
------------------------------------------------------------------------------------------------------------------------------------
1 Microsoft Windows NT 38 1 L A Operating System Microsoft
------------------------------------------------------------------------------------------------------------------------------------
2 Microsoft Windows 95 12 2 L A Operating System Microsoft
------------------------------------------------------------------------------------------------------------------------------------
3 Microsoft Windows 3.11 1 3 L A Operating System Microsoft
------------------------------------------------------------------------------------------------------------------------------------
4 Microsoft Dos 6.22 6 4 L A Operating System Microsoft
------------------------------------------------------------------------------------------------------------------------------------
5 Microsoft Visual Basic 1 5 L A Operating System Microsoft
------------------------------------------------------------------------------------------------------------------------------------
6 Microsoft Visual C++ 1 6 L A Operating System Microsoft
------------------------------------------------------------------------------------------------------------------------------------
7 Microsoft SQL Server V7.0, 5 2 N L A DataBase Microsoft
Client
------------------------------------------------------------------------------------------------------------------------------------
8 ScoUNIX 1 7 L A Weighbridge System SCO
------------------------------------------------------------------------------------------------------------------------------------
9 Rockwell WIN LINX 16 8 MD A Unit Process Rockwell
9352-WAB300S Control Automation
------------------------------------------------------------------------------------------------------------------------------------
10 Rockwell WIN VIEW Runtime 11 8 MD A Unit Process Rockwell
9304-WVR300S Control Automation
------------------------------------------------------------------------------------------------------------------------------------
11 Rockwell WIN 1 8 MD A Unit Process Rockwell
LOGIG/OM/On-line 9323-WL5300S Control Automation
------------------------------------------------------------------------------------------------------------------------------------
12 Rockwell WIN EMULATE 1 8 MD A Unit Process Rockwell
9310-WE5200S Control Automation
------------------------------------------------------------------------------------------------------------------------------------
13 ▇▇▇▇▇▇▇▇ ▇▇▇ Logistics 3 8 MD A Unit Process Rockwell
9354-LN100S Control Automation
------------------------------------------------------------------------------------------------------------------------------------
14 ▇▇▇▇▇▇▇▇ ▇▇ LOGIX 500 3 8 MD A Unit Process Rockwell
Control Automation
------------------------------------------------------------------------------------------------------------------------------------
15 ▇▇▇▇▇▇▇▇ ▇▇ LOGIX 5 3 8 MD A Unit Process Rockwell
Control Automation
------------------------------------------------------------------------------------------------------------------------------------
16 ▇▇▇▇▇▇▇▇ ▇▇ LOGIC 5000 1 8 MD A Unit Process Rockwell
Control Automation
------------------------------------------------------------------------------------------------------------------------------------
17 Rockwell RSLinks 12 8 MD A Unit Process Rockwell
Control Automation
------------------------------------------------------------------------------------------------------------------------------------
18 Symantec PC Anywhere 8 9 L A Remote Access Symantec
------------------------------------------------------------------------------------------------------------------------------------
- 73 -
------------------------------------------------------------------------------------------------------------------------------------
NO DESCRIPTION NO. LICENSE FOLDER LICENSE OWNERSHIP COMMENTS SUPPLIER
REF TYPE CATEGORY
------------------------------------------------------------------------------------------------------------------------------------
19 GEM80 programmer 1 N D A No formal License CEGELEC
Agreement
------------------------------------------------------------------------------------------------------------------------------------
20 Rochester TADS Software V3.18 6 N L A No formal License Rochester
Agreement
------------------------------------------------------------------------------------------------------------------------------------
21 UPDOC Programme Software 1 10 SI A PLC Programming Xcel Controls
Texas 5TI Software
------------------------------------------------------------------------------------------------------------------------------------
22 Square "D" Syplus PLC 2 11 D A PLC Programming Group
programming software Software Schneider
------------------------------------------------------------------------------------------------------------------------------------
23 Square "D" SFW 374 PLC 1 11 D A PLC Programming Group
programming software Software Schneider
------------------------------------------------------------------------------------------------------------------------------------
24 Wonderware Intouch2000 SCADA 1 12 D A Coal Shuttle Wonderware
software (Runtime & SY/Link) Conveyer Corp
------------------------------------------------------------------------------------------------------------------------------------
25 DEC RSX11M plus operating 2 13 L A Cutlass Host Digital
system software v4.2 Facility
------------------------------------------------------------------------------------------------------------------------------------
26 DECnet comms softare v4.3 2 13 L A Cutlass Host Digital
Facility
------------------------------------------------------------------------------------------------------------------------------------
27 DEC Pathworks v4.1 2 13 L A Cutlass Host Digital
Facility
------------------------------------------------------------------------------------------------------------------------------------
28 Powergen Cutlass Operating Site 14 L C cutlass Host Powergen
system software Facility
------------------------------------------------------------------------------------------------------------------------------------
29 Powergen Cutlass API 7 14 D C Cutlass Host Powergen
Facility
------------------------------------------------------------------------------------------------------------------------------------
30 PDS alarm software 25 N L A Part of P ▇▇▇▇▇▇
integrated Desk Systems
Project
------------------------------------------------------------------------------------------------------------------------------------
31 PDS Maths and Logic Software 25 N L A Part of P ▇▇▇▇▇▇
Integrated Desk Systems
Project
------------------------------------------------------------------------------------------------------------------------------------
32 USData Factory Link ECS v6.6 27 15 K A Part of USDATA
SCADA software integrated Desk
Project
------------------------------------------------------------------------------------------------------------------------------------
- 74 -
------------------------------------------------------------------------------------------------------------------------------------
NO DESCRIPTION NO. LICENSE FOLDER LICENSE OWNERSHIP COMMENTS SUPPLIER
REF TYPE CATEGORY
------------------------------------------------------------------------------------------------------------------------------------
33 USData Factory Link ECS v7.0 2 15 K A Part of USDATA
SCADA software integrated Desk
Project
------------------------------------------------------------------------------------------------------------------------------------
34 FactoryLink SY/LINK EDI 1 N K A Dust Plant Axiaware
Driver Control System
------------------------------------------------------------------------------------------------------------------------------------
35 IBM OS/2 operating Software 2 16 L A Part of Intercole
Integrated Desk
Project
------------------------------------------------------------------------------------------------------------------------------------
36 PC/TCP for OS/2 network 2 16 L A Part of Intercole
software Integrated Desk
Project
------------------------------------------------------------------------------------------------------------------------------------
37 NOVA Data logger support 1 16 L A Part of Intercole
Integrated Desk
Project
------------------------------------------------------------------------------------------------------------------------------------
38 Vukit v2.3 1 16 L A Part of Intercole
Integrated Desk Micro
Project
------------------------------------------------------------------------------------------------------------------------------------
39 Micro Speciality System RTM 4 17 D A Bearing Monitor Speciality
3500 v3.1 software Systems
------------------------------------------------------------------------------------------------------------------------------------
40 PCIM SCADA Software 1 18 D A Dry Dust Plant Afcon Control
------------------------------------------------------------------------------------------------------------------------------------
41 ETC Cem View v2.43 1 N L A Emission Energy Tech
Monitoring Systems
------------------------------------------------------------------------------------------------------------------------------------
42 HP RTE-A Operating Systems 1 19 L A Vibration Hewlett
Monitoring Packard
------------------------------------------------------------------------------------------------------------------------------------
43 HP VC plus 1 19 L A Vibration Hewlett
Monitoring Packard
------------------------------------------------------------------------------------------------------------------------------------
44 HP Fortran complier 1 19 L A Vibration Hewlett
Monitoring Packard
------------------------------------------------------------------------------------------------------------------------------------
45 HP Forms Manager 1 19 L A Vibration Hewlett
Monitoring Packard
------------------------------------------------------------------------------------------------------------------------------------
46 National Power Vibration 1 SC L A Vibration Hewlett
Monitoring Application Monitoring Packard
software v1.2
------------------------------------------------------------------------------------------------------------------------------------
47 Plant Data System PDS v3.2 Site 20 L A Office/Plant Davant
Monitoring
------------------------------------------------------------------------------------------------------------------------------------
48 Control and display Altair 1 21 D A RF Water Altair
v2.24 Consumption
------------------------------------------------------------------------------------------------------------------------------------
- 75 -
------------------------------------------------------------------------------------------------------------------------------------
NO DESCRIPTION NO. LICENSE FOLDER LICENSE OWNERSHIP COMMENTS SUPPLIER
REF TYPE CATEGORY
------------------------------------------------------------------------------------------------------------------------------------
48A PI server 1off Oil System Inc
------------------------------------------------------------------------------------------------------------------------------------
48B PI Combo inc 30 off Oil System Inc
------------------------------------------------------------------------------------------------------------------------------------
48C ProcessBook & DataLink Oil System Inc
------------------------------------------------------------------------------------------------------------------------------------
48D PI OPC 1 off Oil System Inc
------------------------------------------------------------------------------------------------------------------------------------
48E DeTransfer v2.0 Data
Electronics
------------------------------------------------------------------------------------------------------------------------------------
48F DeLogger Plus v3.0 Data
Electronics
------------------------------------------------------------------------------------------------------------------------------------
48G DeTerminal for DOS v2.20 Data
Electronics
------------------------------------------------------------------------------------------------------------------------------------
48H DeTerminal for Windows v1.02 Data
Electronics
------------------------------------------------------------------------------------------------------------------------------------
48I ReView for 95/NT v2.1 Eurotherm
Chessel
------------------------------------------------------------------------------------------------------------------------------------
48J Review for windows 3.1 Eurotherm
Chessel
------------------------------------------------------------------------------------------------------------------------------------
48K Universal Config Editor v4.14 Eurotherm
Chessel
------------------------------------------------------------------------------------------------------------------------------------
48L WeatherLink for Windows v4.0 ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
48M PC208W Datalogger v10 ▇▇▇▇▇▇▇▇
Scientific
------------------------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ rev B ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
48N PeakNet Chromatography Dionex
Workstation 5.2
------------------------------------------------------------------------------------------------------------------------------------
48O VA Computrace 757 v1.0 Metrohm
------------------------------------------------------------------------------------------------------------------------------------
- 76 -
APPLICATIONS SOFTWARE
------------------------------------------------------------------------------------------------------------------------------------
NO DESCRIPTION NO. LICENSE FOLDER LICENSE OWNERSHIP COMMENTS SUPPLIER
REF TYPE CATEGORY
------------------------------------------------------------------------------------------------------------------------------------
49 Rochester MP AS 90 Systems 6 SC N A Alarm system Rochester
------------------------------------------------------------------------------------------------------------------------------------
50 ▇▇▇▇▇ 765 Operating and 1 22 L A Vibration Rochester
Application Software Monitoring
------------------------------------------------------------------------------------------------------------------------------------
50A ▇▇▇▇▇ 766 Client Software Rochester
v1.2
------------------------------------------------------------------------------------------------------------------------------------
51 Valve and Damper 4 SC B Unit Process Powergen FBC
Control Systems
------------------------------------------------------------------------------------------------------------------------------------
52 Discrepancy 4 SC B Unit Process Powergen FBC
Control Systems
------------------------------------------------------------------------------------------------------------------------------------
53 Scoblower controls 4 N B Unit Process Powergen FBC
Control Systems
------------------------------------------------------------------------------------------------------------------------------------
54 Windbox Fire Detection 4 N B Unit Process Powergen FBC
Control Systems
------------------------------------------------------------------------------------------------------------------------------------
55 Noise Monitor 4 N B Unit Process Powergen FBC
Control Systems
------------------------------------------------------------------------------------------------------------------------------------
56 Oil Burner 4 N A Unit Process Spectus
Control Systems
------------------------------------------------------------------------------------------------------------------------------------
57 Castlet Precip Commander 4 23 SC A Unit Process Castlel
Control Systems
------------------------------------------------------------------------------------------------------------------------------------
58 GEC AVR Application Software 4 N SC A Unit Process GEC Alsthorn
Control Systems
------------------------------------------------------------------------------------------------------------------------------------
Dewplan 5TL Ladder
59 Application Softare Hypo 1 N SC A WTP Process Dewplan
Plant Control Systems
------------------------------------------------------------------------------------------------------------------------------------
60 Dewplan 5TL Ladder 1 N SC A WTP Process Dewplan
Application Software RO Plant Control Systems
------------------------------------------------------------------------------------------------------------------------------------
61 Dewplan 535 Application 1 N SC A WTP Process Dewplan
Software Water Treatment Control Systems
Sections 4 & 5
------------------------------------------------------------------------------------------------------------------------------------
62 Wet Dusting Application 1 N SC A Wet Dusting Bristol
Software ▇▇▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
63 Shuttle Conveyor 3 N SC A Coal Shuttle Concol
Conveyor
------------------------------------------------------------------------------------------------------------------------------------
- 77 -
------------------------------------------------------------------------------------------------------------------------------------
NO DESCRIPTION NO. LICENSE FOLDER LICENSE OWNERSHIP COMMENTS SUPPLIER
REF TYPE CATEGORY
------------------------------------------------------------------------------------------------------------------------------------
64 Dry Dusting Application 1 N SC A Dry Dusting ▇▇▇▇▇ (Simon
Software McAwber)
------------------------------------------------------------------------------------------------------------------------------------
65 Road Samplers 1 N SC A Coal Sampling Bristol
▇▇▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
66 Barge Samplers 1 N SC A Coal Sampling Bristol
▇▇▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
67 Dust Conditioner 1 N SC A Dust Conditioner ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
69 TOPSs System Software
------------------------------------------------------------------------------------------------------------------------------------
70 Roadweigher and sampling 1 N SC A Coal Sampling ▇▇▇▇▇ ▇▇▇▇▇▇
application software
------------------------------------------------------------------------------------------------------------------------------------
71 Ferrybridge Cutlass Software Site N B Unit Process Powergen FBC
Control and Display Control Systems
Applications
------------------------------------------------------------------------------------------------------------------------------------
72 Bristol ▇▇▇▇▇▇▇ Cutlass Site N SC A Unit Process Bristol
Software Control Systems ▇▇▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
73 Powergen Cutlass Software Site 14 SC C Unit Process PowerTechnology
Control and Display Control Systems
Applications
------------------------------------------------------------------------------------------------------------------------------------
74 SLS Application Software for 25 L SC A Unit Process SLS
IOD Control Systems
------------------------------------------------------------------------------------------------------------------------------------
75 Intercole Applications 5 N SC A Unit Process Intercole
Software Control Systems
------------------------------------------------------------------------------------------------------------------------------------
76 Land Flamescan Display 4 N SC A Unit Process Land
Software Control Systems
------------------------------------------------------------------------------------------------------------------------------------
77 ETC 4000 Monitor 1 N SC A Emission Energy Tech
Monitoring Systems
------------------------------------------------------------------------------------------------------------------------------------
77A GNOCIS Powergen
------------------------------------------------------------------------------------------------------------------------------------
All Computer Equipment exclusively used in relation to aforementioned Process
Control Contracts.
- 78 -
PART B - COMPUTER EQUIPMENT, INTELLECTUAL PROPERTY AND KNOW-HOW THAT IS
NOT TRANSFERRING TO PURCHASER A
All Computer Equipment, Intellectual Property and Know-How that is not included
in Part A of Schedule 3 including but not limited to:
SOFTWARE
--------------------------------------------------------------------------------------------------------------------------
CATEGORY NAME DESCRIPTION TECHNOLOGY
--------------------------------------------------------------------------------------------------------------------------
Access Database ▇▇▇▇▇ Contract and Placement Planning. Access database
--------------------------------------------------------------------------------------------------------------------------
Access Database EDS Live Environmental Management. Access 2
Manages the
environmental impact
of the station.
Records the substances
used and their impact.
--------------------------------------------------------------------------------------------------------------------------
Access Database Various Locally Developed Various databases developed MS Access
Access Databases locally at Ferrybridge by
Ferrybridge.
--------------------------------------------------------------------------------------------------------------------------
Excel Spreadsheet Various Locally Developed Excel Various Excel spreadsheets Excel
Spreadsheets developed at Ferrybridge by
Ferrybridge.
--------------------------------------------------------------------------------------------------------------------------
Interactive Video Various Interactive Video CD's
--------------------------------------------------------------------------------------------------------------------------
Notes Database EH&S UK Legislative Briefs & Notes database
Standards
--------------------------------------------------------------------------------------------------------------------------
Notes Database Environmental Complaints Notes database
--------------------------------------------------------------------------------------------------------------------------
Notes Database Ferrybridge Bulletin Boards Notes database
--------------------------------------------------------------------------------------------------------------------------
Notes Database Ferrybridge HR Database Notes database
--------------------------------------------------------------------------------------------------------------------------
Notes Database Ferrybridge LMIs Notes Database
--------------------------------------------------------------------------------------------------------------------------
Server Installed Arcserve 6.51 for NT Backup Software Server Software
--------------------------------------------------------------------------------------------------------------------------
Server Installed GPMS Generator Performance Monitoring -
Software
--------------------------------------------------------------------------------------------------------------------------
Terminal Server Banner(SCT) Fuel System currently under --
Installed development. Main fuel system
currently in use FMS.
--------------------------------------------------------------------------------------------------------------------------
Terminal Server ▇▇▇▇ (subject to Technical Maintenance Management, Stores --
Installed Services Agreement) (Stock Control), Procurement and
Accounting System
--------------------------------------------------------------------------------------------------------------------------
- 79 -
SERVERS
--------------------------------------------------------------------------------------------------------------------------
ITEM DESCRIPTION SERIAL NUMBER SERVER NAME
--------------------------------------------------------------------------------------------------------------------------
Compaq ProLiant DL360 R01 800MHz 7J06FCX2VK8A FBR1
--------------------------------------------------------------------------------------------------------------------------
Compaq ProLiant 1850R PIII550 128 M1 8943CSC10005 FBRBACKUP1
--------------------------------------------------------------------------------------------------------------------------
Compaq ProLiant DL360 R01 800MHz 7J0CFCX2MK6R FBRDMZTS1
--------------------------------------------------------------------------------------------------------------------------
Compaq Proliant DL380R PIII 800MHz 8026FD411763 FBREUROFS1
--------------------------------------------------------------------------------------------------------------------------
Compaq ProLiant DL360 R01 800MHz 7J06FCX2SK20 FBREUROTS1
--------------------------------------------------------------------------------------------------------------------------
Compaq ProLiant DL360 R01 800MHz 7J06FCX2SK16 FBREUROTS2
--------------------------------------------------------------------------------------------------------------------------
Compaq ProLiant DL380R PIII733/133 X 8026DKN11128 FBRFAX1
--------------------------------------------------------------------------------------------------------------------------
Compaq ProLiant DL380R PIII733/133 X 8026DKN11917 FBRGPMS1
--------------------------------------------------------------------------------------------------------------------------
Compaq ProLiant DL360 R01 800MHz 7J06FCX2M03G FBRGPMS2
--------------------------------------------------------------------------------------------------------------------------
Compaq ProLiant DL360 R01 800MHz 7J0CFCX26K2W FBRIIS1
--------------------------------------------------------------------------------------------------------------------------
Compaq RM ProLiant 8000 XN550-2MB 8942CB780017 FBRNOTES1
--------------------------------------------------------------------------------------------------------------------------
Compaq RM ProLiant 8000 XN550-2MB 8945CB780002 FBRNOTES2
--------------------------------------------------------------------------------------------------------------------------
Compaq Proliant DL380 D028FD51K666 FBRNOTES3
--------------------------------------------------------------------------------------------------------------------------
Compaq ProLiant DL360 R01 800MHz 7J06FCX2VKA6 FBRPAM1
--------------------------------------------------------------------------------------------------------------------------
Compaq ProLiant 1850R PIII550 128 M1 8003CSC10103 FBRPi2
--------------------------------------------------------------------------------------------------------------------------
Compaq ProLiant DL360 R01 550MHz 7J06FCL1301C FBRSEC1
--------------------------------------------------------------------------------------------------------------------------
Compaq ProLiant DL360 R01 800MHz 7J0CFCX2MK71 FBRSQLTEST1
--------------------------------------------------------------------------------------------------------------------------
Compaq ProLiant DL380R PIII733/133 X 8026DKN11130 FBRSUN1
--------------------------------------------------------------------------------------------------------------------------
Compaq ProLiant 1850R PIII550 128 M1 8009CSC10041 FBRTSTEST
--------------------------------------------------------------------------------------------------------------------------
Compaq ProLiant DL380R PIII733/133 X 8026DKN11142 FBRXDEV1
--------------------------------------------------------------------------------------------------------------------------
Compaq ProLiant 1850R PIII550 128 M1 8002CSC10079 GPMSTEST1
--------------------------------------------------------------------------------------------------------------------------
Compaq ProLiant 7000R 1P PIIIX500 1MBX 8927CPJ10033 Out of service, used for spares
--------------------------------------------------------------------------------------------------------------------------
Compaq ProLiant DL360 ▇▇▇ ▇▇▇▇▇▇ 7J06FCX2VK9K Spare
--------------------------------------------------------------------------------------------------------------------------
Compaq ProLiant DL360 R01 800MHz 7J0CFCX2MKB8 Spare
--------------------------------------------------------------------------------------------------------------------------
- 80 -
--------------------------------------------------------------------------------------------------------------------------
ITEM DESCRIPTION SERIAL NUMBER SERVER NAME
--------------------------------------------------------------------------------------------------------------------------
Compaq ProLiant DL360 R01 800MHz 7J12FCX21K3K Spare
--------------------------------------------------------------------------------------------------------------------------
Compaq ProLiant DL380R PIII733/133 X 8027DKN11541 Spare
--------------------------------------------------------------------------------------------------------------------------
Compaq RM ProLiant 8000 XN550-1MB 8942CB770075 Spare
--------------------------------------------------------------------------------------------------------------------------
Compaq RM ProLiant 8500R XN550-2MB 8024BX711027 UKNETAB01
--------------------------------------------------------------------------------------------------------------------------
Compaq RM ProLiant 8500R XN550-2MB 8029BX711008 UKNETAB02
--------------------------------------------------------------------------------------------------------------------------
Compaq RM ProLiant 8500R XN550-2MB 8024BX711034 UKNETABODB1
--------------------------------------------------------------------------------------------------------------------------
Compaq RM ProLiant 8500R XN550-2MB 8024BX711025 UKNETABODB2
--------------------------------------------------------------------------------------------------------------------------
Compaq ProLiant DL380R PIII733/133 X 8026DKN12375 UKNETABU1
--------------------------------------------------------------------------------------------------------------------------
Compaq ProLiant DL360 R01 800MHz 7J06FCX2H0BP UKNETADEV1
--------------------------------------------------------------------------------------------------------------------------
Compaq ProLiant DL360 R01 800MHz 7J06FCX2H0E0 UKNETADEV2
--------------------------------------------------------------------------------------------------------------------------
Compaq ProLiant DL360 R01 800MHz 7J06FCX2H0BM UKNETADEV3
--------------------------------------------------------------------------------------------------------------------------
Compaq ProLiant DL360 R01 800MHz 7J06FCX2VK8K UKNETAENC1
--------------------------------------------------------------------------------------------------------------------------
Compaq ProLiant DL360 R01 800MHz 7J0CFCX26K39 UKNETAFAX1
--------------------------------------------------------------------------------------------------------------------------
Compaq RM ProLiant 8500R XN550-2MB 8024BX711021 UKNETALOGSDB1
--------------------------------------------------------------------------------------------------------------------------
Compaq RM ProLiant 8500R XN550-2MB 8024BX711019 UKNETALOGSDB2
--------------------------------------------------------------------------------------------------------------------------
Compaq ProLiant DL360 R01 800MHz 7J07FCX2D06S UKNETAPDC1
--------------------------------------------------------------------------------------------------------------------------
Compaq ProLiant DL380R PIII733/133 X 8027DKN11475 UKNETATS1
--------------------------------------------------------------------------------------------------------------------------
Compaq ProLiant DL380R PIII733/133 X 8026DKN12392 UKNETATS2
--------------------------------------------------------------------------------------------------------------------------
Compaq ProLiant DL380R PIII733/133 X 8026DKN12376 ▇▇▇▇▇▇▇▇▇
--------------------------------------------------------------------------------------------------------------------------
Compaq ProLiant DL380R PIII733/133 X 8026DKN12391 UKNETATS4
--------------------------------------------------------------------------------------------------------------------------
Compaq ProLiant DL360 R01 800MHz 7J0CFCX26K1F UKNETATS6
--------------------------------------------------------------------------------------------------------------------------
Compaq ProLiant DL380R PIII733/133 X 8026DKN12404 UKNETAGPMS1
--------------------------------------------------------------------------------------------------------------------------
Compaq Proliant 1850R 8924CNH10281 UKNETATSPU1
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
- 81 -
DATA CENTRE
DESCRIPTION QUANTITY
PSU for 1850R 6
SCSI 18Gb 10K drives 12
PSU for 8000 1
DLT ▇▇/▇▇ ▇▇▇▇ ▇▇▇▇▇ 1
DLT 35/70 Tape Drives 4
3200 Raid Card 1
UPS Cards 2
RIB boards 2
Axis Network Cameras 2
RAM 128MB 9
RAM 256MB 9
RAM 512MB 5
KMM Switch Boxes 5
DL360 800Mhz Processor 1
Rack PDUs 4
TFT 5000 Rack Mount Monitors 3
- 82 -
NETWORK KIT
------------------------------------------------------------------------------------------------------------------
DESCRIPTION P/N QUANTITY
------------------------------------------------------------------------------------------------------------------
Catalyst 6509 Chassis WS-C6509 4
------------------------------------------------------------------------------------------------------------------
Catalyst 6000 1300W AC Power Supply WS-CAC-1300W 4
------------------------------------------------------------------------------------------------------------------
Catalyst 6000 Second 1300W AC Power Supply WS-CAC-1300W/2 4
------------------------------------------------------------------------------------------------------------------
Catalyst 6000 Supervisor Flash Image, Release 5.2(2) SFC6K-SUP-5.2.2 4
------------------------------------------------------------------------------------------------------------------
Catalyst 6000 Supervisor Engine1, 2GE (Req. GBICs) WS-X6K-SUP1-2GE 6
------------------------------------------------------------------------------------------------------------------
Catalyst 6x09 RMON Agent License WS-C6X09-EMS-LIC 4
------------------------------------------------------------------------------------------------------------------
Catalyst 6000 8-port Gigabit Ethernet Module (Req. GBICs) WS-X6408-GBIC 12
------------------------------------------------------------------------------------------------------------------
1000BASE-LX/LH "long haul" GBIC (singlemode or multimode) WS-G5486 18
------------------------------------------------------------------------------------------------------------------
1000BASE-SX "Short Wavelength" GBIC (Multimode only) WS-G5484 72
------------------------------------------------------------------------------------------------------------------
Catalyst 6000 48-port 10/100 RJ-45 Module WS-X6248-RJ-45 5
------------------------------------------------------------------------------------------------------------------
Catalyst 6000 24 Port 100 FX MultiMode MT-RJ WS-X6224-100FX-MT 4
------------------------------------------------------------------------------------------------------------------
Catalyst 6000 Multilayer Switch Module WS-X6302-MSM 4
------------------------------------------------------------------------------------------------------------------
Catalyst 3524 XL Enterprise Edition WS-C3524-XL-EN 8
------------------------------------------------------------------------------------------------------------------
7206VXR Bundle with NPE-300 and I/O Controller with FE CISCO7206VXR/300 3
------------------------------------------------------------------------------------------------------------------
Cisco 7200 AC Power Supply Option PWR-7200 3
------------------------------------------------------------------------------------------------------------------
Cisco 7200 Dual AC Power Supply Option, 280W PWR-7200/2 3
------------------------------------------------------------------------------------------------------------------
Cisco IOS 7200 Series WAN Packet Protocols PLUS License FR-WPP72 3
------------------------------------------------------------------------------------------------------------------
Cisco 7200 Series IOS ENTERPRISE S72A-12.0.5XE 3
------------------------------------------------------------------------------------------------------------------
4 Port Serial Port Adapter, Enhanced PA-4T+ 3
------------------------------------------------------------------------------------------------------------------
i Port Enhanced ATM adapter n/a 3
------------------------------------------------------------------------------------------------------------------
8-Port ISDN-BRI Network Module NM-8B-S/T 2
------------------------------------------------------------------------------------------------------------------
1-Port Fast Ethernet 100BaseTx Port Adapter PA-FE-TX 3
------------------------------------------------------------------------------------------------------------------
64MB Memory for NPE-300/NPE-225/NPE-175 in 7200 Series MEM-SD-NPE-64MB 3
------------------------------------------------------------------------------------------------------------------
Cisco 3640 Series IOS Enterprise Plus S364AP-12.0.6 2
------------------------------------------------------------------------------------------------------------------
Cisco 3600 4-slot modular router, use w/ AC RPS with IP CISCO3640-RPS 2
------------------------------------------------------------------------------------------------------------------
600W Redundant AC Power System With DC Power Cables PWR600-AC-RPS-CAB 2
------------------------------------------------------------------------------------------------------------------
16Mb Flash card for the Cisco 3600 MEM3600-16FC 2
------------------------------------------------------------------------------------------------------------------
32-to-64 MB DRAM Factory Upgrade for the Cisco 3640 MEM3640-32U64D 2
------------------------------------------------------------------------------------------------------------------
2 Ethernet 2 WAN Card Slot Network Module NM-2E2W 3
------------------------------------------------------------------------------------------------------------------
- 83 -
------------------------------------------------------------------------------------------------------------------
DESCRIPTION P/N QUANTITY
------------------------------------------------------------------------------------------------------------------
X.21 Cable, DTE, Male, 10 Feet CAB-X21MT 10
------------------------------------------------------------------------------------------------------------------
12-port 100BaseFX Switch With Two Module Slots (Enterprise E WS-C2912MF-XL 1
------------------------------------------------------------------------------------------------------------------
1000BaseX uplink for Catalyst 2900 XL WS-X2931-XL 6
------------------------------------------------------------------------------------------------------------------
FastHub 424M 10/100 Hubs WS-C424M 2
------------------------------------------------------------------------------------------------------------------
Cisco Access Server 2511 Ethernet/Dual Serial/16 Async CISCO2511 3
------------------------------------------------------------------------------------------------------------------
Cisco 2500 Series IOS IP S25C-12.0.6 3
------------------------------------------------------------------------------------------------------------------
Cisco Dual Ethernet Modular Router Cisco2611 5
------------------------------------------------------------------------------------------------------------------
1-Port Serial WAN Interface Card WIC-1T 1
------------------------------------------------------------------------------------------------------------------
SUN Netra Firewall (rented) n/a 1
------------------------------------------------------------------------------------------------------------------
spare Aironet 342 Wireless Bridge for Fiddler's V/Centre n/a 1
------------------------------------------------------------------------------------------------------------------
spare Wireless Antenna for Fiddler's V/Centre n/a 1
------------------------------------------------------------------------------------------------------------------
spare router module for London Cat 5500 n/a 1
------------------------------------------------------------------------------------------------------------------
spare PSU for London Cat 5500 n/a 1
------------------------------------------------------------------------------------------------------------------
- 84 -
SCHEDULE 4
TRANSFER SCHEME DOCUMENTS
------------------------------------------------------------------------------------------------------------------
DATE DESCRIPTION PARTIES
------------------------------------------------------------------------------------------------------------------
30 March 1990 Lease Central Electricity Generating Board
(Powergen Division) (1)
Yorkshire Electricity Board (2)
------------------------------------------------------------------------------------------------------------------
30 March 1990 Interface Agreement for Ferrybridge B Central Electricity Generating Board
and C (Powergen Division) (1)
Yorkshire Electricity Board (2)
------------------------------------------------------------------------------------------------------------------
30 March 1990 Licence to Retain Assets at Central Electricity Generating Board
Ferrybridge B and C Power Station (Powergen Division) (1)
Yorkshire Electricity Board (2)
------------------------------------------------------------------------------------------------------------------
31 March 1990 Interface Agreement for Ferrybridge C The National Grid Company plc (1)
Powergen plc (2)
------------------------------------------------------------------------------------------------------------------
31 March 1990 Interface Agreement for Ferrybridge B The National Grid Company plc (1)
Powergen plc (2)
------------------------------------------------------------------------------------------------------------------
31 March 1990 Lease of Ferrybridge B Substation Powergen plc (1)
The National Grid Company plc (2)
------------------------------------------------------------------------------------------------------------------
31 March 1990 Lease of Ferrybridge C Substation Powergen plc (1)
The National Grid Company plc (2)
------------------------------------------------------------------------------------------------------------------
31 March 1990 Deed of Grant for electric lines and Powergen plc (1)
cables at Ferrybridge Power Station The National Grid Company plc (2)
------------------------------------------------------------------------------------------------------------------
31 March 1990 Deed of Easement Powergen (1)
National Power plc (2)
------------------------------------------------------------------------------------------------------------------
08 May 1994 Lease of Lines Powergen plc (1)
The National Grid Company plc (2)
------------------------------------------------------------------------------------------------------------------
04 August 1994 Deed of Variation Powergen plc (1)
Yorkshire Electricity Group (2)
------------------------------------------------------------------------------------------------------------------
14 July 1999 Deed of Variation - Ferrybridge C Powergen UK plc (1)
Substation The National Grid Company plc (2)
------------------------------------------------------------------------------------------------------------------
16 July 1999 Supplemental Lease and Deed of Powergen UK plc (1)
Variation - Ferrybridge B Substation The National Grid Company plc (2)
------------------------------------------------------------------------------------------------------------------
- 85 -
SCHEDULE 5
DEED OF ASSIGNMENT
-86-
LINKLATERS
& ALLIANCE
--------------------------------------------------------------------------------
Dated [o] 2001
EDISON FIRST POWER LIMITED
and
[PURCHASER]
DEED OF ASSIGNMENT
LINKLATERS
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Telephone: (▇▇-▇▇) ▇▇▇▇ ▇▇▇▇
Facsimile: (▇▇-▇▇) ▇▇▇▇ ▇▇▇▇
Ref: STRS/ROES
DEED OF ASSIGNMENT
THIS DEED is made on [o] 2001
BETWEEN:
(1) EDISON FIRST POWER LIMITED registered in Guernsey with registered
number 35167 and whose registered office is at ▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ Port, Guernsey, Channel Islands, GY1 4HP (EFPL); and
(2) [COMPANY] registered in [o] with registered number [o] and whose
registered office is at [o] (the Company).
WHEREAS:
(A) The Company and EFPL are parties to an agreement (the SALE OF BUSINESS
AGREEMENT) dated [o] under which EFPL agreed INTER ALIA to sell or
procure to be sold, and the Company agreed to purchase, the Business
(as defined therein).
(B) EFPL and [o] of [o] with registered number [o] (the SUPPLIER) are
parties to an agreement dated [o] bearing Contract Ref [o] (the
CONTRACT).
(C) EFPL wishes to assign to the Company the Contract and the parties have
agreed to the assignment of the Contract by EFPL to the Company on the
terms and conditions set out below.
IT IS AGREED as follows:
1 DEFINITIONS AND INTERPRETATION
1.1 In this Deed the following words and expressions shall, unless the
context otherwise requires, bear the following meanings:
COMPLETION means the date the Company or EFPL notifies to the Supplier
as the date upon which completion under the Sale of Business Agreement
occurred; and
LIABILITIES means all liabilities, duties and obligations of every
description, including fines, interest and penalties, whether deriving
from contract, common law, statute or otherwise, whether present or
future, actual or contingent, ascertained or unascertained or disputed
and whether owed or incurred severally or jointly and as principal or
surety.
1.2 The headings in this Deed are for convenience only and shall not affect
its interpretation.
1.3 References to Recitals and Clauses are to the recitals and clauses of
this Deed.
2 ASSIGNMENT
2.1 In consideration of the obligations undertaken by the Company pursuant
to this Clause ▇, ▇▇▇▇ hereby assigns absolutely all its benefits,
interest and rights in and to the Contract to the Company and the
Company hereby agrees to accept the assignment from EFPL of the
Contract.
2.2 The Company hereby covenants with EFPL (for the benefit of EFPL and for
the benefit of any guarantor of EFPL's Liabilities under the Contract
or similar third party) with effect from and including Completion and
at all times thereafter during the continuance of the Contract to
perform, fulfil and observe all the Liabilities on the part of EFPL
therein contained (solely to the
-88-
extent provided in the Sale of Business Agreement) in respect of the
Contract and to be bound by the terms thereof.
3 FURTHER OBLIGATIONS
The parties shall perform, execute and deliver such further acts and
documents as may be required by law or reasonably requested by each
other to implement the purposes of and to perfect this Deed.
4 STAMP DUTY
The Company shall be responsible for all or any stamp duty payable on
or in respect of this Deed.
5 COUNTERPARTS
This Deed may be executed in any number of counterparts each of which
when executed and delivered shall be an original but all the
counterparts together shall constitute one and the same instrument.
6 JURISDICTION
This Deed shall be governed by and construed in accordance with English
Law and the parties irrevocably agree that the Courts of
England shall
have exclusive jurisdiction to settle any claims or disputes which may
arise out of or in connection with this Deed and each party irrevocably
submits to the jurisdiction of the Courts of
England for such purpose.
EXECUTED as a deed on the date set out on page one of this document:
SIGNED by )
on behalf of )
EDISON FIRST POWER LIMITED )
in the presence of: )
Director
Director/Secretary
SIGNED by )
on behalf of [COMPANY] )
in the presence of: )
Director
Director/Secretary
-89-
SCHEDULE 6
DEED OF NOVATION
-90-
LINKLATERS
& ALLIANCE
--------------------------------------------------------------------------------
Dated [o] 2001
EDISON FIRST POWER LIMITED
and
[SUPPLIER]
and
[PURCHASER]
DEED OF NOVATION
LINKLATERS
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Telephone: (▇▇-▇▇) ▇▇▇▇ ▇▇▇▇
Facsimile: (▇▇-▇▇) ▇▇▇▇ ▇▇▇▇
Ref: STRS/ROES
DEED OF NOVATION
THIS DEED is made on [o] 2001
BETWEEN:
(1) EDISON FIRST POWER LIMITED registered in Guernsey with registered number
35167 and whose registered office is at ▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Port, Guernsey, Channel Islands, GY1 4HP (EFPL); and
(2) [o] registered in [o] with registered number [o] and whose [registered
office] [principal place of business] is at [o] (the SUPPLIER); and
(3) [COMPANY] registered in [o] with registered number [o] and whose
registered office is at [o] (the COMPANY).
WHEREAS:
(A) The Company and EFPL are parties to an agreement (the SALE OF BUSINESS
AGREEMENT) dated [o] under which EFPL agreed INTER ALIA to sell or
procure to be sold, and the Company agreed to purchase, the Business (as
defined therein).
(B) EFPL and the Supplier are parties to an agreement made dated [o] bearing
Contract Ref [o] (the CONTRACT).
(C) EFPL wishes to be released and discharged from the Contract and the
parties have agreed to the novation of the Contract on the terms and
conditions set out below and to the substitution of the Company in place
of EFPL as a party to the Contract.
IT IS AGREED as follows:
1 DEFINITIONS AND INTERPRETATION
1.1 In this Deed the following words and expressions shall, unless the
context otherwise requires, bear the following meanings:
COMPLETION means the date the Company or EFPL notifies to the Supplier
as the date upon which completion under the Sale of Business Agreement
occurred; and
LIABILITIES means all liabilities, duties and obligations of every
description, including fines, interest and penalties, whether deriving
from contract, common law, statute or otherwise, whether present or
future, actual or contingent, ascertained or unascertained or disputed
and whether owed or incurred severally or jointly and as principal or
surety.
1.2 The headings in this Deed are for convenience only and shall not affect
its interpretation.
1.3 References to Recitals and Clauses are to the recitals and clauses of
this Deed.
2 NOVATION
Each of the Company and the Supplier agree to perform the Contract as
from Completion and to be bound by its terms and conditions as from
that date as if the Company had been a party to the Contract AB INITIO
in place of EFPL. EFPL shall, as from Completion, cease to be a party
to the Contract.
-92-
3 CONSENT OF THE SUPPLIER
The Supplier hereby releases and discharges EFPL (for the benefit of
EFPL and for the benefit of any guarantor of EFPL's obligations under
the contract or similar third party) as from Completion from the
further performance of the Contract and from all Liabilities under or
in connection with the Contract (or any guarantee as aforesaid) whether
arising prior or subsequent to that date. For the avoidance of doubt,
the Company shall assume and perform all Liabilities of EFPL under or
in connection with the Contract whether arising prior, or subsequent,
to Completion.
4 REFERENCES
As from Completion, references to EFPL (by whatever name known) in the
Contract shall be deleted and replaced by references to the Company.
5 CONTINUING EFFECT
It is hereby agreed that the Contract shall continue in full force and
effect and that as from Completion its terms and conditions have only
changed to the extent set out in this Deed.
6 FURTHER OBLIGATIONS
The parties shall perform, execute and deliver such further acts and
documents as may be required by law or reasonably requested by each
other to implement the purposes of and to perfect this Deed.
7 STAMP DUTY
The Company shall be responsible for all or any stamp duty payable on
or in respect of this Deed.
8 COUNTERPARTS
This Deed may be executed in any number of counterparts each of which
when executed and delivered shall be an original but all the
counterparts together shall constitute one and the same instrument.
9 JURISDICTION
This Deed shall be governed by and construed in accordance with English
Law and the parties irrevocably agree that the Courts of
England shall
have exclusive jurisdiction to settle any claims or disputes which may
arise out of or in connection with this Deed and each party irrevocably
submits to the jurisdiction of the Courts of
England for such purpose.
EXECUTED as a deed on the date set out on page one of this document:
-93-
SIGNED by )
on behalf of )
EDISON FIRST POWER LIMITED )
in the presence of: )
Director
Director/Secretary
SIGNED by )
on behalf of )
[SUPPLIER] )
in the presence of: )
Director
Director/Secretary
SIGNED by )
on behalf of )
[PURCHASER] )
in the presence of: )
Director
Director/Secretary
-94-
SCHEDULE 7
JOINT CONTRACT DEED OF ASSIGNMENT
-95-
LINKLATERS
& ALLIANCE
-------------------------------------------------------------------------------
Dated [o] 2001
EDISON FIRST POWER LIMITED
and
[PURCHASER]
JOINT CONTRACT
DEED OF ASSIGNMENT
LINKLATERS
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Telephone: (▇▇-▇▇) ▇▇▇▇ ▇▇▇▇
Facsimile: (▇▇-▇▇) ▇▇▇▇ ▇▇▇▇
Ref: STRS/ROES
JOINT CONTRACT DEED OF ASSIGNMENT
THIS DEED is made on [o] 2001
BETWEEN:
(1) EDISON FIRST POWER LIMITED registered in Guernsey with registered number
35167 and whose registered office is at ▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Port, Guernsey, Channel Islands, GY1 4HP (EFPL); and
(2) [COMPANY] registered in [o] with registered number [o] and whose
registered office is at [o] (the COMPANY).
WHEREAS:
(D) The Company and EFPL are parties to an agreement (the SALE OF BUSINESS
AGREEMENT) dated [o] under which EFPL agreed INTER ALIA to sell or
procure to be sold, and the Company agreed to purchase, the Business
(as defined therein).
(E) EFPL and [o] of [o], with registered number [o] (the SUPPLIER) are
parties to an agreement dated [o] bearing Contract Ref [o] (the
CONTRACT).
(F) EFPL wishes to assign to the Company that part of the Contract which
relates exclusively to the Power Station (as defined in the Sale of
Business Agreement) and the parties have agreed to the assignment of
that part of the Contract which relates exclusively to the Power
Station by EFPL to the Company on the terms and conditions set out
below.
IT IS AGREED as follows:
1 DEFINITIONS AND INTERPRETATION
1.1 In this Deed the following words and expressions shall, unless the
context otherwise requires, bear the following meanings:
COMPLETION means the date the Company or EFPL notifies to the Supplier
as the date upon which completion under the Sale of Business Agreement
occurred; and
LIABILITIES means all liabilities, duties and obligations of every
description, including fines, interest and penalties, whether deriving
from contract, common law, statute or otherwise, whether present or
future, actual or contingent, ascertained or unascertained or disputed
and whether owed or incurred severally or jointly and as principal or
surety.
1.2 The headings in this Deed are for convenience only and shall not
affect its interpretation.
1.3 References to Recitals and Clauses are to the recitals and clauses
of this Deed.
2 ASSIGNMENT
2.1 In consideration of the obligations undertaken by the Company pursuant
to this Clause ▇, ▇▇▇▇ hereby assigns absolutely all its benefits,
interest and rights in and to that part of the Contract which relates
exclusively to the Power Station to the Company and the Company hereby
agrees to accept the assignment from EFPL of such part of the Contract.
2.2 The Company hereby covenants with EFPL (for the benefit of EFPL and for
the benefit of any guarantor of EFPL's Liabilities under the Contract
or similar third party) with effect from and including Completion and
at all times thereafter during the continuance of the Contract to
perform, fulfil and observe all the Liabilities on the part of EFPL
therein contained (solely to the
- 97 -
extent provided in the Sale of Business Agreement) in respect of that
part of the Contract which relates exclusively to the Power Station
and to be bound by the terms thereof to the extent that the Contract
relates exclusively to the Power Station.
3 FURTHER OBLIGATIONS
The parties shall perform, execute and deliver such further acts and
documents as may be required by law or reasonably requested by each
other to implement the purposes of and to perfect this Deed.
4 STAMP DUTY
The Company shall be responsible for all or any stamp duty payable on
or in respect of this Deed.
5 COUNTERPARTS
This Deed may be executed in any number of counterparts each of which
when executed and delivered shall be an original but all the
counterparts together shall constitute one and the same instrument.
6 JURISDICTION
This Deed shall be governed by and construed in accordance with English
Law and the parties irrevocably agree that the Courts of
England shall
have exclusive jurisdiction to settle any claims or disputes which may
arise out of or in connection with this Deed and each party irrevocably
submits to the jurisdiction of the Courts of
England for such purpose.
EXECUTED as a deed on the date set out on page one of this document:
SIGNED by )
on behalf of )
EDISON FIRST POWER LIMITED )
in the presence of: )
Director
Director/Secretary
- 98 -
SIGNED by )
on behalf of )
[PURCHASER] )
in the presence of: )
Director
Director/Secretary
- 99 -
SCHEDULE 8
JOINT CONTRACT DEED OF NOVATION
- 100 -
LINKLATERS
& ALLIANCE
-------------------------------------------------------------------------------
Dated [o] 2001
EDISON FIRST POWER LIMITED
and
[SUPPLIER]
and
[PURCHASER]
JOINT CONTRACT
DEED OF NOVATION
LINKLATERS
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Telephone: (▇▇-▇▇) ▇▇▇▇ ▇▇▇▇
Facsimile: (▇▇-▇▇) ▇▇▇▇ ▇▇▇▇
Ref: STRS/ROES
JOINT CONTRACT DEED OF NOVATION
THIS DEED is made on [o] 2001
BETWEEN:
(1) EDISON FIRST POWER LIMITED registered in Guernsey with registered number
35167 and whose registered office is at ▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Port, Guernsey, Channel Islands, GY1 4HP (EFPL); and
(2) [o] registered in [o] with registered number [o] and whose
[registered office] [principal place of business] is at [o] (the
SUPPLIER); and
(3) [COMPANY] registered in [o] with registered number [o] and whose
registered office is at [o] (the COMPANY).
WHEREAS:
(A) The Company and EFPL are parties to an agreement (the SALE OF BUSINESS
AGREEMENT) dated [o] under which EFPL agreed INTER ALIA to sell or
procure to be sold, and the Company agreed to purchase, the Business (as
defined therein).
(B) EFPL and the Supplier are parties to an agreement made dated [o] bearing
Contract Ref [o] (the CONTRACT).
(C) EFPL wishes to be released and discharged from that part of the Contract
which relates exclusively to the Power Station (as defined in the Sale of
Business Agreement) and the parties have agreed to the novation of that
part of the Contract which relates exclusively to the Power Station on
the terms and conditions set out below and to the substitution of the
Company in place of EFPL as a party to the Contract in respect of that
part of the Contract.
IT IS AGREED as follows:
1 DEFINITIONS AND INTERPRETATION
1.1 In this Deed the following words and expressions shall, unless the
context otherwise requires, bear the following meanings:
COMPLETION means the date the Company or EFPL notifies to the Supplier
as the date upon which completion under the Sale of Business Agreement
occurred; and
LIABILITIES means all liabilities or duties and obligations of every
description, including fines, interest and penalties, whether deriving
from contract, common law, statute or otherwise, whether present or
future, actual or contingent, ascertained or unascertained or disputed
and whether owed or incurred severally or jointly and as principal or
surety.
1.2 The headings in this Deed are for convenience only and shall not affect
its interpretation.
1.3 References to Recitals and Clauses are to the recitals and clauses
of this Deed.
2 NOVATION
Each of the Company and the Supplier agree to perform the Contract as
from Completion and to be bound by its terms and conditions as from
that date in respect of that part of the Contract which relates
exclusively to the Power Station as if the Company had been a party to
the Contract, to the extent that it relates exclusively to the Power
Station, AB INITIO in place of EFPL. EFPL
- 102 -
shall, as from Completion, cease to be a party to the Contract to the
extent that it relates exclusively to the Power Station.
3 CONSENT OF THE SUPPLIER
The Supplier hereby releases and discharges EFPL (for the benefit of
EFPL and for the benefit of any guarantor of EFPL's obligations under
the contract or similar third party) as from Completion from the
further performance of that part of the Contract which relates to the
Power Station and from all Liabilities under or in connection with that
part of the Contract (or any guarantee as aforesaid) whether arising
prior or subsequent to that date. For the avoidance of doubt, the
Company shall assume and perform all Liabilities of EFPL under or in
connection with the Contract whether arising prior, or subsequent, to
Completion.
4 REFERENCES
As from Completion, references to EFPL (by whatever name known) in that
part of the Contract relating exclusively to the Power Station shall be
deleted and replaced by references to the Company.
5 CONTINUING EFFECT
It is hereby agreed that the Contract shall continue in full force and
effect and that as from Completion its terms and conditions have only
changed to the extent set out in this Deed.
6 FURTHER OBLIGATIONS
The parties shall perform, execute and deliver such further acts and
documents as may be required by law or reasonably requested by each
other to implement the purposes of and to perfect this Deed.
7 STAMP DUTY
The Company shall be responsible for all or any stamp duty payable on
or in respect of this Deed.
8 COUNTERPARTS
This Deed may be executed in any number of counterparts each of which
when executed and delivered shall be an original but all the
counterparts together shall constitute one and the same instrument.
9 JURISDICTION
This Deed shall be governed by and construed in accordance with English
Law and the parties irrevocably agree that the Courts of
England shall
have exclusive jurisdiction to settle any claims or disputes which may
arise out of or in connection with this Deed and each party irrevocably
submits to the jurisdiction of the Courts of
England for such purpose.
- 103 -
EXECUTED as a deed on the date set out on page one of this document:
SIGNED by )
on behalf of )
EDISON FIRST POWER LIMITED )
in the presence of: )
Director
Director/Secretary
SIGNED by )
on behalf of )
[SUPPLIER] )
in the presence of: )
Director
Director/Secretary
SIGNED by )
on behalf of )
[PURCHASER] )
in the presence of: )
Director
Director/Secretary
- 104 -
SCHEDULE 9
JOINT CONTRACTS
CONTRACT COUNTERPARTY CONTRACT NAME/PURPOSE
--------------------------------------------------------------------------------------------------------------------
OSI Software Inc Plant Information System Maintenance/License
--------------------------------------------------------------------------------------------------------------------
UK Quality Ash Association Trade Association Membership
--------------------------------------------------------------------------------------------------------------------
Novell, Inc Corporate Licence Agreement
--------------------------------------------------------------------------------------------------------------------
Network Associates, Inc Purchase Order for Microsoft products and support
--------------------------------------------------------------------------------------------------------------------
Network Associates, Inc Purchase Order for McAfee Total Virus Control
--------------------------------------------------------------------------------------------------------------------
Lotus Development Corporation Ltd IBM Lotus International Passport Advantage Agreement
--------------------------------------------------------------------------------------------------------------------
MSLI, LLC (Microsoft affiliate) Licence Agreement and other purchase orders etc. relating
to Microsoft Enterprise Bundle for the office environment
( Word, Excel, Powerpoint, Access)
--------------------------------------------------------------------------------------------------------------------
Microsoft Corporation Licence Agreement for Microsoft Project
--------------------------------------------------------------------------------------------------------------------
Microsoft Corporation End- User Licence Agreement for Microsoft NT 4 Server and
Addendum to Windows '98 Licence
--------------------------------------------------------------------------------------------------------------------
Microsoft Corporation Licence Agreement for Microsoft NT Server Client Access
Licence
--------------------------------------------------------------------------------------------------------------------
Microsoft Corporation Licence Agreement for NT Server Terminal
--------------------------------------------------------------------------------------------------------------------
Software Spectrum Inc. Licence Agreement documents relating to Lotus
Lotus Development Corporation and Magneta Systems Software Products & Support
--------------------------------------------------------------------------------------------------------------------
Network Associates Purchase Orders for Licence Agreement for McAfee Total
Virus Defence
--------------------------------------------------------------------------------------------------------------------
WinZip Computing, Inc Licence and Invoice re: WinZip
--------------------------------------------------------------------------------------------------------------------
Novell Inc Licence Agreement for Novell
--------------------------------------------------------------------------------------------------------------------
Santa ▇▇▇▇ Operation, Inc Licence for Ganetime/ ScoUNIX
--------------------------------------------------------------------------------------------------------------------
Komminicate Ltd Licence Agreement for Right Fax
--------------------------------------------------------------------------------------------------------------------
Microsoft Ltd Licence Agreement for Microsoft Visio2000
--------------------------------------------------------------------------------------------------------------------
Computer Associates International Inc Licence Agreement for Micro Product
--------------------------------------------------------------------------------------------------------------------
Citrix Systems International GmbH Licence Agreement for Citrix
--------------------------------------------------------------------------------------------------------------------
Entek IRD International Corporation Licence Agreement for E monitor Odyssey
--------------------------------------------------------------------------------------------------------------------
E. O. Associates Ltd Licence Agreement for Safety Organiser
--------------------------------------------------------------------------------------------------------------------
The Crown Licence Agreement for Health and Safety Climate Assessment
Tool
---------------------------------------------------------------------------------------------------------------------
- 105 -
--------------------------------------------------------------------------------------------------------------------
CONTRACT COUNTERPARTY CONTRACT NAME/PURPOSE
--------------------------------------------------------------------------------------------------------------------
SCO OpenServer Enterprise Certificate of licence and authenticity for SCO Unix
--------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Limited End User software licence agreement for weather station
--------------------------------------------------------------------------------------------------------------------
Gane International Limited Software licence agreement contract ref: GI/LIC- May 1994
for Ganetime (unsigned)
--------------------------------------------------------------------------------------------------------------------
NiSoft (UK) Limited NiSoft Software licence Agreement
--------------------------------------------------------------------------------------------------------------------
- 106 -
SCHEDULE 10
INSURANCE POLICIES
-----------------------------------------------------------------------------------------------------------
TYPE OF POLICY INSURERS POLICY NUMBER RISK REFERENCE
-----------------------------------------------------------------------------------------------------------
"All Risks" Property Lloyd's Syndicates and DG001601 N/A
Damage/Business Interruption Others
-----------------------------------------------------------------------------------------------------------
UK Terrorism Lloyd's Syndicates DU069201 N/A
-----------------------------------------------------------------------------------------------------------
Public/Products Liability Zurich Insurance Co 16/005047/50963091/2 N/A
-----------------------------------------------------------------------------------------------------------
1st Excess Public/Products Aegis N/A N/A
Liability
-----------------------------------------------------------------------------------------------------------
2nd Excess Public/Products EIM N/A N/A
Liability
-----------------------------------------------------------------------------------------------------------
Directors' & Officers' National Union Fire N/A N/A
Liability Insurance Company of
Pittsburgh PA
-----------------------------------------------------------------------------------------------------------
Employers Liability Royal and SunAlliance RKJ962524 VA642000
-----------------------------------------------------------------------------------------------------------
Excess Employers Liability Lloyds Underwriters AO430396E990 VA641500
-----------------------------------------------------------------------------------------------------------
Motor Zurich International (UK) 16/013518/80960802/JL VA640700
Limited
-----------------------------------------------------------------------------------------------------------
Uninsured Loss Recovery ▇▇▇▇▇ Fleetrisk, Town & ULR 21765 VA647800
Service Country Assistance Ltd
-----------------------------------------------------------------------------------------------------------
Group Personal Accident and Royal & SunAlliance RKJ962524 VA642000
Travel
-----------------------------------------------------------------------------------------------------------
- 107 -
SCHEDULE 11
PROPERTY
PART A
DETAILS OF PROPERTY
SECTION 1 - LEASE
All that leasehold property known as ▇▇▇▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ being all the property comprised in a lease dated 19 July 1999
made between Powergen UK plc (1) and Edison First Power Limited (2)
SECTION 2 - LEASE DOCUMENTS
-----------------------------------------------------------------------------------------------------------
DATE DESCRIPTION PARTIES
-----------------------------------------------------------------------------------------------------------
19 July 1999 Lease Powergen UK plc(1)
Edison First Power Limited (2)
-----------------------------------------------------------------------------------------------------------
- 108 -
PART B
PROPERTY TRANSFER TERMS
1 STANDARD CONDITIONS
1.1 This Agreement incorporates the Standard Commercial Property Conditions
(First Edition). In case of conflict between this Agreement and the
Conditions, this Agreement prevails. Terms used or defined in the
Conditions have the same meanings when used in this Agreement, and vice
versa.
1.2 The following conditions shall not apply:
2.2 (deposit); 4.1 (timetable); 4.2 (proof of title); 4.3.2 (defining
the property).
2 TITLE GUARANTEE
EFPL shall transfer with full title guarantee, but any covenant implied
in the Transfer under Section 4 of the Law of Property (Miscellaneous
Provisions) ▇▇▇ ▇▇▇▇ shall not impose on EFPL liability for any
subsisting breach of obligation relating to the physical state of the
Property. The Transfer shall contain a declaration to that effect and
Purchaser B will join in requesting that an appropriate entry be made
on the Registered Title.
3 TITLE
3.1 The Purchasers shall not raise any requisition on matters relating to
the title to the Property arising before the date of this Agreement.
3.2 In particular, no requisition shall be raised in respect of the fact
that:
3.2.1 EFPL's title to the Lease is still in course of registration at
HM Land Registry and no title number or class of title is
known;
3.2.2 EFPL has not produced and will not produce any other evidence
of title other than a copy of the application to HM Land
Registry for first registration of the Lease and (at or before
completion) a Certificate of Title from Linklaters;
3.2.3 following completion no title documents will be produced to
Purchaser B unless the same are received from HM Land Registry
following completion of registration of the Lease.
3.3 EFPL undertakes to use reasonable endeavours to deal with any enquiries
raised by HM Land Registry in connection with the registration of the
Lease.
3.4 If at the Completion Date registration of the Lease at HM Land Registry
has not been completed, then EFPL shall supply to Purchaser B a
certified true copy of the Lease.
3.5 EFPL shall procure that on or prior to the date on which EFPL is due to
return the Lease to Purchaser B the Lease shall have been duly stamped
with a particulars delivered stamp.
3.6 EFPL shall use its reasonable endeavours, at the reasonable request of
Purchaser B or any of its successors in title or assigns made at any
time prior to the date described in paragraph 3.5, to procure the
stamping of the Lease with a particulars delivered stamp at an earlier
date than that described in paragraph 3.5.
3.7 EFPL shall deliver to Purchaser B on Completion the original or a
certified copy of the statutory declaration made by a representative of
Powergen relating to the use of the ash pipelines
- 109 -
servicing the Property, which is referred to in the Certificate of
Title and a statutory declaration in terms acceptable to Purchaser B
(acting reasonably) relating to the use of those ash pipelines by EFPL.
4 ENCUMBRANCES AFFECTING THE PROPERTY
4.1 The Property is sold subject to and where applicable with the benefit
of:
4.1.1 all matters which are, or if the Property were registered would
be, overriding interests as defined by the Land Registration
▇▇▇ ▇▇▇▇ as amended;
4.1.2 all matters contained or referred to in the Property
Proprietorship and Charges registers of the Registered Title
(except fixed or floating charges securing money or
liabilities);
4.1.3 the rents, obligations and other provisions contained or
referred to in the Lease Documents;
4.1.4 the Letting Documents; and
4.1.5 the rights, obligations and other provisions contained or
referred to in the Property Agreements,
as well as those encumbrances mentioned in Condition 3.1.2 but free
from any mortgage charge or debenture to secure the repayment of money.
4.2 Purchaser B is deemed to purchase with full knowledge of the
encumbrances referred to in Condition 3.1.2 and paragraph 4.1 without
prejudice to Purchaser B's reliance on the Certificate of Title.
5 TRANSFER
5.1 The Transfer of the Property shall contain covenants with EFPL by
Purchaser B to comply with:
5.1.1 the obligations arising from:
(i) the matters mentioned in the Registered Title once the
application referred to in paragraph 3.2.1 has been
completed by HM Land Registry; and
(ii) the matters mentioned in the Certificate of Title
(whether or not such application has been completed but
if it has only to the extent that such matters are in
addition to those mentioned in the Registered Title);
5.1.2 the obligations arising under the Letting Documents;
5.1.3 the obligations arising under the Lease Documents,
insofar as EFPL may remain liable directly or indirectly for them after
the date of the Transfer and to indemnify EFPL against any
non-compliance and against any liability under any authorised guarantee
agreement entered into by EFPL.
5.2 The Transfer shall be engrossed and executed in duplicate. The
duplicate copy shall be delivered within twenty-one days after
completion to EFPL's solicitor (for retention by EFPL), duly stamped at
Purchaser B's expense and denoted.
5.3 The assignment of the benefit of the ▇▇▇▇ Common Deeds shall be in the
form set out in Part G of Schedule 11.
- 110 -
5.4 Condition 4.5.5 shall not apply.
5.5 Condition 3.4 shall not apply.
6 PURCHASER B'S FURTHER OBLIGATIONS
6.1 Purchaser B shall at Completion enter into a deed of covenant in favour
of EFPL and Powergen covenanting to comply with the terms of the
Decommissioning Deed in the form annexed at Part E of Schedule 11.
6.2 Purchaser B shall prior to Completion enter into such deeds of covenant
with Powergen and any other party reasonably stipulated by Powergen in
the form annexed at Part F of Schedule 11 or otherwise in such form or
forms as Powergen and/or such third parties reasonably stipulate as
provided for in paragraph 13.3 of schedule 2 to the Lease.
6.3 Purchaser B shall, prior to Completion, enter into a deed of covenant
and indemnity with Powergen in the form annexed at Part H of Schedule
11.
7 MANAGEMENT OF PROPERTY PENDING COMPLETION
7.1 Except pursuant to any statutory duty or contractual obligation, EFPL
shall not:
7.1.1 grant any lease;
7.1.2 terminate or accept a surrender of any lease;
7.1.3 vary the terms of the Letting Documents; and
7.1.4 grant any consent under the Letting Documents,
without Purchaser B's approval (such approval not to be unreasonably
delayed or withheld), but may otherwise continue to manage the Property
as it thinks fit.
7.2 EFPL shall inform Purchaser B without delay if EFPL learns of any
application by a Tenant for consent under the Letting Documents. EFPL
shall then act as Purchaser B reasonably directs and Purchaser B shall
indemnify EFPL against all consequent loss and expense. In the absence
of any such direction within a reasonable time, EFPL may act as it
thinks fit. Conditions 3.3.3 to 3.3.6 shall not apply.
8 INSURANCE
As between EFPL and Purchaser B, the Property shall be at the risk of
Purchaser B from the date of this Agreement. Conditions 5.1.1 to 5.1.3
shall not apply.
9 PROPERTY AGREEMENTS
9.1 EFPL'S OBLIGATION TO OBTAIN CONSENTS
9.1.1 To the extent that the benefit of any of the Property
Agreements can be assigned by EFPL to Purchaser B without any
Property Consents, a Deed of Assignment of Property Agreements
will be entered into between EFPL and Purchaser B with effect
from Completion.
9.1.2 Where a Property Consent is required to the assignment of the
benefit, or novation of a Property Agreement this Agreement
shall not constitute an assignment or attempted
- 111 -
assignment of the relevant Property Agreement if the assignment
or attempted assignment would constitute a breach of the
Property Agreement.
9.1.3 Subject to the provisions in this Agreement relating to
the Pillar of Support Agreement, EFPL shall use all
reasonable endeavours (at its own expense but such
expenses will not include the payment of any premium
payable in return for granting consent) to obtain the
Property Consents prior to Completion, to take effect
from no later than the Completion Date. A Property Consent
shall be deemed to have been obtained only when all
requirements of the relevant third party or parties have
been complied with on terms reasonably acceptable to
Purchaser B and EFPL, such terms not to be any more
favourable to Purchaser B than are the then current
terms of the relevant Property Agreement to EFPL.
Purchaser B shall supply to EFPL such information
(including references regarding the financial position
of Purchaser B) as may be reasonably requested by EFPL or
any relevant third party in connection therewith and
shall enter into such undertakings or procure such
guarantees in favour of any relevant third party as
may be reasonably requested in respect of any Liabilities
to which Purchaser B will become subject or which Purchaser B
will incur on conveyance, transfer, assignment or novation.
9.1.4 Subject to Completion taking place and with effect from
Completion, Purchaser B undertakes to EFPL to assume the
obligations and become entitled to the benefits of EFPL
under the Property Agreements and Purchaser B undertakes
to carry out perform and complete all the obligations and
liabilities created by or arising under the Property
Agreements and shall indemnify EFPL and keep it fully
indemnified against all liabilities losses actions
proceedings costs demands and expenses brought or made
against or incurred by EFPL in respect of the
non-performance or wrongful or defective or negligent
performance by Purchaser B or its employees agents or
subcontractors of the Property Agreement after Completion.
9.1.5 Once a Property Consent is obtained (whether before or after
Completion but subject always to the provisions of paragraphs
9.3.2 and 9.3.3), EFPL and Purchaser B shall enter into a Deed
of Assignment of Property Agreements as soon as reasonably
practical thereafter.
9.2 FAILURE TO OBTAIN CONSENTS
9.2.1 Where a Property Consent has not been obtained by Completion in
respect of any Property Agreement (a RELEVANT AGREEMENT) such
Relevant Agreement will not be assigned on Completion but will
be held in trust for Purchaser B absolutely from Completion
until such Property Consent is obtained and the Relevant
Agreement is so conveyed, transferred or assigned. EFPL shall
account to Purchaser B accordingly and shall deliver to
Purchaser B as soon as reasonably practicable upon receipt any
notice or other document concerning or relating to such
Relevant Agreement.
9.2.2 EFPL will co-operate in any reasonable arrangements proposed by
Purchaser B designed to provide for Purchaser B the benefits of
any Relevant Agreement until the assignment thereof to
Purchaser. B
9.3 POST-COMPLETION CONSENTS
9.3.1 After Completion EFPL shall continue to use all reasonable
endeavours (assisted if EFPL shall so require at EFPL's cost by
Purchaser B) to obtain Property Consents in respect of
- 112 -
each Relevant Agreement and keep Purchaser B informed of
progress in obtaining such Property Consents.
9.3.2 If a Property Consent is refused or otherwise not obtained
within 90 Business Days of Completion Purchaser B shall be
entitled to require EFPL to terminate the Relevant Agreement
provided Purchaser B shall indemnify EFPL for any costs
incurred by them in connection with any such termination.
9.3.3 If a Property Consent has not been obtained or refused by the
date which is 12 calendar months from the date of this
Agreement EFPL shall be entitled to require Purchaser B to take
an assignment of the Property Agreement in the form of the Deed
of Assignment of Property Agreements which deed shall include a
covenant from Purchaser B to indemnify EFPL and keep it fully
indemnified against all liabilities losses actions proceedings
costs demands and expenses brought or made against or incurred
by EFPL due to the absence of the Property Consent.
10 POSTAL COMPLETION
Any completion by post or through a document exchange shall be at
Purchaser B's expense and risk and neither EFPL nor EFPL's solicitor
shall be liable for the loss of any documents so sent so long as they
were properly addressed.
11 ACKNOWLEDGEMENT
Purchaser B acknowledges that it has not relied on any representation
unless in the Certificate of Title or given by EFPL's solicitor in a
written reply to an enquiry made by Purchaser B's solicitor before the
date of this Agreement.
- 113 -
PART C
LETTING DOCUMENTS
DATE DOCUMENT PARTIES
30 March 1990 Lease of Kirkhaw Lane substation CEGB (Powergen Division) (1)
Yorkshire Electricity Board (2)
17 December 1992 Lease of land at Ferrybridge B Powergen plc (1)
Yorkshire Electricity Group plc (2)
31 March 1990 Lease of Ferrybridge B substation Powergen plc (1)
The National Grid Company plc (2)
8 May 1994 Lease of lines Powergen plc (1)
The National Grid Company plc (2)
31 March 1990 Lease of Ferrybridge C substation Powergen plc (1)
The National Grid Company plc (2)
9 May 1969 Agricultural lease CEGB (1)
J ▇▇▇▇▇▇ (2)
11 July 1980 Agricultural lease CEGB (1)
▇▇▇▇▇▇ ▇▇▇▇▇ & Others (2)
2 June 1978 Licence to erect supports of bus shelter CEGB (1)
on CEGB Land at Low Street ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Parish Council (2)
16 December 1978 Licence to exercise horses Powergen plc (1)
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (2)
- Social Club -
- 114 -
PART D
THE PROPERTY AGREEMENTS
DATE DOCUMENT PARTIES
1 December 1964 Licence for ash pipeline and bridge British Waterways Board (1)
across the River Aire at Brotherton CEGB (2)
9 August 1999 Licence to lay and maintain works British Waterways Board (1)
over the Aire and Calder Waterway at Edison First Power Limited (2)
Kellingley Canal Bridge, Gasgoine
Hill Reach and ▇▇▇▇▇▇▇▇▇▇ Railway
Bridge
7 January 1969 Agreement to lay water and ash British Railways Board (1)
disposal pipe on or under railway land CEGB (2)
22 August 1980 Licence to lay ash pipe in highway at West Yorkshire Metropolitan County
Kirkhaw Lane/Stranglands Lane and Old Council (1)
Ferry Bridge pursuant to Section ▇▇ ▇▇▇▇ (▇)
▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
13 March 1981 Agreement to permit a corridor under British Railways Board (1)
bridge number ▇▇ (▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ (2)
Bridge A and B Stations)
5 February 1982 Licence to lay, use and maintain ash British Waterways Board (1)
pipeline in and across the Aire and CEGB (2)
Calder Navigation at Kellingley
13 June 1986 Supplemental Licence for three ash British Waterways Board (1)
pipelines and pipeline bridge across CEGB (2)
the River Aire at Brotherton
24 June 1986 Supplemental Agreement to Licence British Waterways Board (1)
dated 5 February 1982 to lay ash CEGB (2)
pipeline at Kellingley
26 July 1993 Licence for ash pipeline across the British Waterways Board (1)
Aire and Calder Navigation at Powergen (2)
Kellingley
25 March 1996 Licence to lay ash pipeline under Railtrack plc (1)
railway Powergen (2)
28 March 1994 Agreement for Construction and use of British Railways Board (1)
sidings at Ferrybridge Powergen (2)
- 115 -
DATE DOCUMENT PARTIES
23 April 1963 Licence to lay maintain and use British Transport Commission (1)
reinforced concrete purge pipe CEGB (2)
through bridge number 9 on
Knottingley Branch Railway
12 November 1980 Licence to lay and maintain asbestos British Railways Board (1)
cement pipe in 1 metre steel sleeve CEGB (2)
between Ferrybridge `A' and `B' Power
Stations
16 February 1953 Licence to obtain and use underground British Transport Commission (1)
electric cables and water main under British Electricity Authority (2)
bridge number 10 Knottingley Branch
Railway
28 February 1961 Licence to lay and maintain electric British Transport Commission (1)
cable under Brotherton Bridge CEGB (2)
Ferrybridge
17 April 1962 Supplemental Agreement to Licence British Transport Commission (1)
dated 12 September ▇▇▇▇ ▇▇▇▇ (2)
12 October 1993 Licence to retain and use a water British Railways Board (1)
main in the roadway under bridge Powergen (2)
number 10
31 July 1957 Agreement for Supply of water for British Transport Commission (1)
giving to Ferrybridge `B' Central Electricity Authority (2)
20 November 1962 Licence to install two temperature British Transport Commission (1)
recorders in River Aire at Ferrybridge CEGB (2)
29 May 1964 Licence to construct 2 surface water British Transport Commission (1)
discharge outfalls into River Aire CEGB (2)
29 May 1964 Licence for water discharge outfall British Transport Commission (1)
from Ferrybridge `C' Power Station CEGB (2)
cold water system
18 September 1964 Licence for construction of coal wharf British Waterways Board (1)
CEGB (2)
9 February 1988 Licence for water discharge outfall British Waterways Board (1)
pipes from Ferrybridge `C' Power CEGB (2)
Station cold water system and coal
store
30 March 1990 Interface Agreement CEGB (Powergen division) (1)
YEB (2)
- 116 -
DATE DOCUMENT PARTIES
15 July 1999 Deed of Novation of 2 Interface Powergen plc (1)
Agreements both dated 31 March 1990 Edison First Power Limited (2)
The National Grid Company Plc (3)
15 July 1999 Deed of Novation of Pillar of Support The Coal Authority (1)
Agreement dated 23 June 1971 Edison First Power Limited (2)
15 July 1999 Deed of Novation of Pillar of Support RJB Mining (UK) Limited (1)
Agreement dated 23 June 1971 Powergen UK plc (2)
Edison First Power Limited (3)
- 117 -
PART E
DEED OF COVENANT
(DECOMMISSIONING DEED)
- 118 -
LINKLATERS
& ALLIANCE
-------------------------------------------------------------------------------
Dated [o] 2001
POWERGEN UK PLC
and
EDISON FIRST POWER LIMITED
and
AEPR GLOBAL HOLLAND HOLDING B.V.
DEED OF COVENANT
- relating to -
Decommissioning of Power Station Premises
Ferrybridge "C" Power Station, Knottingley, West Yorkshire
LINKLATERS
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Telephone: (▇▇-▇▇) ▇▇▇▇ ▇▇▇▇
Facsimile: (▇▇-▇▇) ▇▇▇▇ ▇▇▇▇
Ref: STRS/ROES
DEED OF COVENANT
THIS DEED is made on [o] 2001
BETWEEN:
(1) POWERGEN UK PLC registered in England and Wales with registered number
2366970 and whose registered office is at ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ (▇▇▇ LANDLORD);
(2) EDISON FIRST POWER LIMITED registered in Guernsey with registered
number 35167 and whose registered office is at ▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ Port, Guernsey, Channel Islands GY1 4HP (EFPL); and
(3) AEPR GLOBAL HOLLAND HOLDING B.V. registered in The Netherlands and
whose registered office is at 548 ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ (the PURCHASER).
WHEREAS:
(A) The Landlord granted the Lease of the Property to EFPL pursuant to the
Agreement for Lease dated 30 April 1999 made between the Landlord (1)
and EFPL (2) (as amended by a Deed of Amendment dated 8 July 1999
between the same parties).
(B) Pursuant to the Lease the Landlord and EFPL entered into the Deed of
Agreement in which the parties agreed that, in the circumstances set
out in that Deed of Agreement, the Tenant will carry out the
Decommissioning Works (as defined therein).
(C) EFPL has entered into an agreement with the Purchaser to assign the
Lease of the Property to the Purchaser.
IT IS AGREED as follows:
1 DEFINITIONS AND INTERPRETATION
1.1 In this Deed the following words and expressions shall, unless the
context otherwise requires, bear the following meanings:
DEED OF AGREEMENT means the Deed of Agreement dated 19 July 1999
between the Landlord and EFPL relating to the decommissioning of the
Power Station at the Property;
LEASE means the lease dated 19 July 1999 granted by the Landlord to
EFPL of the Property for a term of 199 years from 19 July 1999;
PROPERTY means land and buildings at Ferrybridge "C" Power Station,
Knottingley, West Yorkshire as more particularly described in and
demised by the Lease; and
TERM means the term of the Lease and any holding over, extension or
continuation of it whether by statute, agreement or otherwise.
1.2 The headings in this Deed are for convenience only and shall not affect
its interpretation.
1.3 References to Recitals and Clauses are to recitals and clauses of this
Deed.
2 PURCHASER'S AGREEMENTS
The Purchaser covenants with the Landlord and with EFPL severally from
the date of the assignment of the Lease to it by EFPL and for the
remainder of the Term to observe and perform the covenants and
obligations on the part of EFPL contained in the Deed of Agreement and
to indemnify EFPL and keep it fully indemnified against all
liabilities, losses, actions, proceedings, costs, demands and expenses
brought or made against or incurred by EFPL in respect of the
- 120 -
non-performance or wrongful or defective or negligent performance by
the Purchaser or its employees, agents or sub-contractors of such
covenants and obligations.
3 RELEASE OF EFPL
The Landlord releases EFPL, from the date of the assignment of the
Lease to the Purchaser, from all obligations on EFPL's part contained
in, and all the Liabilities whatsoever under, the Deed of Agreement
whether past, present or future and all actions, proceedings, costs,
claims, damages, losses, demands and expenses arising from any such
obligations and Liabilities and the Landlord shall have no claim
against EFPL in respect of the same.
4 CONTRACTS (RIGHTS OF THIRD PARTIES) ACT
A person who is not a party to this Deed has no right under the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of
this Deed but this does not affect any right or remedy of a third party
which exists or is available apart from that Act.
EXECUTED as a deed on the date set out above:
EXECUTED AND DELIVERED as a DEED by )
POWERGEN UK PLC )
acting by: )
)
Director
Director/Secretary
EXECUTED AND DELIVERED as a DEED by )
EDISON FIRST POWER LIMITED )
acting by: )
)
Director
Director/Secretary
EXECUTED AND DELIVERED as a DEED by )
AEPR GLOBAL HOLLAND HOLDING B.V. )
acting by: )
Director
Director/Secretary
- 121 -
PART F
DEED OF COVENANT
(LEASE)
- 122 -
LINKLATERS
& ALLIANCE
-------------------------------------------------------------------------------
Dated [o] 2001
POWERGEN UK PLC
and
EDISON FIRST POWER LIMITED
and
AEPR GLOBAL HOLLAND HOLDING B.V.
DEED OF COVENANT
- relating to -
The assignment of a Lease of commercial premises
at Ferrybridge "C" Power Station, Knottingley, West Yorkshire
LINKLATERS
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Telephone: (▇▇-▇▇) ▇▇▇▇ ▇▇▇▇
Facsimile: (▇▇-▇▇) ▇▇▇▇ ▇▇▇▇
Ref: STRS/ROES
DEED OF COVENANT
THIS DEED is made on [o] 2001
BETWEEN:
(1) POWERGEN UK PLC registered in England and Wales with registered number
2366970 and whose registered office is at ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ (▇▇▇ LANDLORD); and
(2) EDISON FIRST POWER LIMITED registered in Guernsey with registered
number 35167 and whose registered office is at ▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ Port, Guernsey, Channel Islands GY1 4HP (EFPL); and
(3) AEPR GLOBAL HOLLAND HOLDING B.V. registered in The Netherlands and
whose registered office is at 548 ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ (the PURCHASER).
WHEREAS:
(A) The Landlord granted the Lease of the Property to EFPL pursuant to the
Agreement for Lease dated 30 April 1999 made between the Landlord (1)
and EFPL (2) as amended by a Deed of Amendment dated 8 July 1999
between the same parties (together the AGREEMENT).
(B) EFPL has entered into an agreement with the Purchaser to assign the
Lease of the Property to the Purchaser.
(C) The Lease is a new tenancy within the meaning of Section 1(3) of the
Landlord and Tenant (Covenants) ▇▇▇ ▇▇▇▇.
(D) The Purchaser is obliged by clause 13.3 of Schedule 2 of the Lease to
enter into such deeds of covenant with the Landlord as the Landlord may
reasonably stipulate.
IT IS AGREED as follows:
1 DEFINITIONS AND INTERPRETATION
1.1 In this Deed the following words and expressions shall, unless the
context otherwise requires, bear the following meanings:
ASSIGNMENT means the deed of assignment of the Lease of even date
herewith between EFPL (1) and the Purchaser (2);
LEASE means the lease dated 19 July 1999 granted by the Landlord to
EFPL of the Property for a term of 199 years from 19 July 1999;
PROPERTY means land and buildings at Ferrybridge "C" Power Station,
Knottingley, West Yorkshire as more particularly described in and
demised by the Lease; and
TERM means the term of the Lease and any holding over, extension or
continuation of it whether by statute, agreement or otherwise.
1.2 The headings in this Deed are for convenience only and shall not affect
its interpretation.
1.3 References to Recitals and Clauses are to recitals and clauses of this
Deed.
2 PURCHASER'S AGREEMENTS
The Purchaser covenants with the Landlord from the date of the
Assignment and for the remainder of the Term that:
- 124 -
2.1 the information that it has provided about its identity and financial
strength to the Landlord pursuant to Clause 13.3 to Schedule 2 of the
Lease is true and accurate; and
2.2 it will observe and perform all covenants, conditions, obligations and
provisions on the part of the tenant contained in the Lease.
3 THE LANDLORD'S ACKNOWLEDGEMENT
The Landlord acknowledges to EFPL and the Purchaser that the Purchaser
has satisfied the net asset value requirements set out in Clause 13.2
of Schedule 2 of the Lease and is a permitted assignee for the purposes
of the Lease.
4 CONTRACTS (RIGHTS OF THIRD PARTIES) ACT
A person who is not a party to this Deed has no right under the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of
this Deed but this does not affect any right or remedy of a third party
which exists or is available apart from that Act.
EXECUTED as a deed on the date set out above:
EXECUTED AND DELIVERED as a DEED by )
POWERGEN UK PLC )
acting by: )
Director
Director/Secretary
EXECUTED AND DELIVERED as a DEED by )
AEPR GLOBAL HOLLAND HOLDING B.V. )
acting by: )
Director
Director/Secretary
- 125 -
EXECUTED AND DELIVERED as a DEED by )
EDISON FIRST POWER LIMITED )
acting by: )
Director
Director/Secretary
- 126 -
PART G
DEED OF ASSIGNMENT OF ▇▇▇▇ COMMON DEEDS
- 127 -
LINKLATERS
& ALLIANCE
-------------------------------------------------------------------------------
Dated [o] 2001
EDISON FIRST POWER LIMITED
and
AEP ENERGY SERVICES UK GENERATION LIMITED
DEED OF ASSIGNMENT OF
▇▇▇▇ COMMON DEEDS
- relating to -
Ferrybridge "C" Power Station, Knottingley, West Yorkshire
LINKLATERS
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Telephone: (▇▇-▇▇) ▇▇▇▇ ▇▇▇▇
Facsimile: (▇▇-▇▇) ▇▇▇▇ ▇▇▇▇
Ref: STRS/ROES
DEED OF ASSIGNMENT OF ▇▇▇▇ COMMON DEEDS
THIS DEED is made on [o] 2001
BETWEEN:
(1) EDISON FIRST POWER LIMITED registered in Guernsey with number 35167 and
whose registered office is at ▇/▇ ▇▇▇▇▇▇▇, ▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ Port, Guernsey GY1 4HP (the ASSIGNOR); and
(2) AEP ENERGY SERVICES UK GENERATION LIMITED registered in England and
Wales with registered number 4277342 and whose registered office is at
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇ ▇▇▇▇▇), ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (the ASSIGNEE).
WHEREAS:
(A) The Assignor has the benefit of the various deeds (the DEEDS) briefly
described in the Schedule hereto relating or appurtenant to the
properties respectively known as ▇▇▇▇ Common, and as Ferrybridge "C"
Power Station, Knottingley, West Yorkshire.
(B) By a further deed of assignment dated 9 May 2001 Powergen UK plc
transferred such right as it had in the Slurry Pipes (as therein
defined) to the Assignor.
(C) By a
sale and purchase agreement (the CONTRACT) dated [o] the Assignor
agreed to transfer and the Assignee agreed to take, INTER ALIA, the
benefit of the Deeds in consideration of the agreements contained in
and the sums to be paid under the Contract.
(D) The Assignee is the holder of the Electricity generation licence issued
under the Electricity Acts for Ferrybridge C Power Station.
THIS DEED WITNESSES as follows:
1 In pursuance of the Contract and in consideration of the covenant
contained in Clause 2 the Assignor (insofar as it is able) HEREBY
ASSIGNS unto the Assignee such right, title and interest as the
Assignee has in the Deeds (subject to any covenants and obligations on
the part of the Assignor contained in the Deeds) and in the Slurry
Pipes TO HOLD the same unto the Assignee absolutely.
2 The Assignee hereby covenants with the Assignor with the object and
intention of affording the Assignor a full and sufficient indemnity but
not further or otherwise that the Assignee will from the date hereof
during the continuance of the Deeds perform and observe the covenants
conditions and obligations binding on the Assignor contained in the
Deeds and will at all times indemnify and keep the Assignor indemnified
from and against all actions, proceedings, claims, costs, demands and
liabilities whatsoever arising by reason of any breach non-performance
or non-observance of any of these covenants conditions and obligations.
EXECUTED as a deed on the date set out above:
- 129 -
SCHEDULE
DATE DOCUMENT PARTIES
9 May 2001 Contract Deed of Novation International Power plc (1)
Powergen UK Plc (2)
Eggborough Power Limited (3)
Edison First Power Limited (4)
9 May 2001 Slurry Pipes Licence Eggborough Power Limited (1)
Edison First Power Limited (2)
- 130 -
EXECUTED AND DELIVERED as a DEED by )
EDISON FIRST POWER LIMITED )
acting by: )
Director
Director/Secretary
EXECUTED AND DELIVERED as a DEED by )
AEP ENERGY SERVICES UK GENERATION )
LIMITED )
acting by: )
Director
Director/Secretary
- 131 -
PART H
DEED OF COVENANT (PROPERTY AGREEMENTS)
- 132 -
LINKLATERS
& ALLIANCE
-------------------------------------------------------------------------------
Dated [o] 2001
POWERGEN UK PLC
and
EDISON FIRST POWER LIMITED
and
AEPR GLOBAL HOLLAND HOLDING B.V.
DEED OF COVENANT
- relating to -
land at Ferrybridge "C" Power Station, Knottingley, West Yorkshire
LINKLATERS
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Telephone: (▇▇-▇▇) ▇▇▇▇ ▇▇▇▇
Facsimile: (▇▇-▇▇) ▇▇▇▇ ▇▇▇▇
Ref: STRS/ROES
DEED OF COVENANT
THIS DEED is made on [o] 2001
BETWEEN:
(1) POWERGEN UK PLC whose registered office is at ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (formerly known as Powergen Plc) (POWERGEN);
(2) EDISON FIRST POWER LIMITED registered in Guernsey under Company Number
35167 and whose registered office is at ▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇, Channel Islands GY1 4HP (EFPL); and
(3) AEPR GLOBAL HOLLAND HOLDING B.V. registered in The Netherlands and
whose registered office is at 548 ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ (PURCHASER).
WHEREAS:
(A) Powergen granted the Lease (as defined below) to EFPL pursuant to an
Agreement for Lease dated 30 April 1999 between (1) Powergen and (2)
EFPL and amended by a Deed of Amendment dated 8 July 1999 between the
same parties (together the AGREEMENT).
(B) Pursuant to the Agreement Powergen agreed to assign to EFPL on the
grant of the Lease or as soon as permitted thereafter certain
agreements which contained rights beneficial for the use of the
Property as a power station (the PROPERTY AGREEMENTS) and EFPL
undertook to assume the obligations of Powergen in respect of the
Property Agreements and to indemnify Powergen in respect of all
liabilities arising therefrom.
(C) EFPL has entered into an agreement with the Purchaser to assign the
Lease and the benefit of the Property Agreements to the Purchaser.
DEFINITIONS AND INTERPRETATION
1.1 In this Deed the following words and expressions have the following
meanings unless inconsistent with the context:
ASSIGNMENT means the deed of assignment of the Lease of even date
herewith made between (1) EFPL and (2) the Purchaser;
LEASE means the lease of the Property dated 19 July 1999 between (1)
Powergen and (2) EFPL for a term of 199 years from 19 July 1999;
PROPERTY means the land and buildings at Ferrybridge "C" Power Station,
Knottingley, West Yorkshire and more particularly described in Schedule
1 of the Lease; and
PROPERTY AGREEMENTS means the contracts licences and other agreements
set out in Schedule 4 to the Agreement and set out for the avoidance of
doubt in the Schedule hereto.
1.2 The headings to the clauses shall not affect the construction of this
Deed.
COVENANTS BY THE PURCHASER
2 The Purchaser covenants with Powergen from the date of the Assignment
that it will during the continuation of any of the Property Agreements
carry out, perform and complete all the obligations and liabilities of
Powergen created by or arising under the Property Agreements and shall
indemnify Powergen and keep it fully and effectually indemnified
against all liabilities, losses, actions, proceedings, costs, claims,
demands and expenses brought or made against or made or incurred by
Powergen in respect of the non-performance or wrongful or defective or
negligent
- 134 -
performance by the Purchaser or its employees, agents or
sub-contractors of the Property Agreements after the date hereof and
such indemnity shall include any taxes or other duties payable by
Powergen in respect of any of the amounts mentioned in this clause.
RELEASE OF EFPL
3 Powergen hereby releases EFPL from all obligations on its part
contained in and all liabilities whatsoever under or in connection with
the Property Agreements or any covenant or indemnity given in relation
thereto arising from the date of the Assignment and all actions
proceedings costs claims damages losses demands and expenses arising
from any such obligations and liabilities and Powergen shall have no
claim against EFPL in respect of the same.
EXECUTED as a deed on the date set out above.
- 135 -
SCHEDULE
PROPERTY AGREEMENTS
---------------------------------------------------------------------------------------------------------------
DATE DOCUMENT PARTIES
------------------------------- --------------------------------------- -----------------------------------------
1 December 1964 Licence for ash pipeline and bridge British Waterways Board (1)
across the River Aire at Brotherton CEGB (2)
------------------------------- --------------------------------------- -----------------------------------------
9 August 1999 Licence to lay and maintain works British Waterways Board (1)
over the Aire and Calder Waterway Edison First Power Limited (2)
at Kellingley Canal Bridge,
Gasgoine Hill Reach and Brotherton
Railway Bridge
------------------------------- --------------------------------------- -----------------------------------------
7 January 1969 Agreement to lay water and ash British Railways Board (1)
disposal pipe on or under railway CEGB (2)
land
------------------------------- --------------------------------------- -----------------------------------------
22 August 1980 Licence to lay ash pipe in highway West Yorkshire Metropolitan County
at Kirkhaw Lane/Stranglands Lane Council (1)
and Old Ferry Bridge pursuant to CEGB (2)
Section 41 of the ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
------------------------------- --------------------------------------- -----------------------------------------
13 March 1981 Agreement to permit a corridor British Railways Board (1)
under bridge number 9A (between CEGB (2)
Ferry Bridge A and B Stations)
------------------------------- --------------------------------------- -----------------------------------------
5 February 1982 Copy licence to lay, use and British Waterways Board (1)
maintain ash pipeline in and across CEGB (2)
the Aire and Calder Navigation at
Kellingley
------------------------------- --------------------------------------- -----------------------------------------
13 June 1986 Supplemental Licence for three ash British Waterways Board (1)
pipelines and pipeline bridge CEGB (2)
across the River Aire at Brotherton
------------------------------- --------------------------------------- -----------------------------------------
24 June 1986 Supplemental Agreement to Licence British Waterways Board (1)
dated 5 February 1982 to lay ash CEGB (2)
pipeline at Kellingley
------------------------------- --------------------------------------- -----------------------------------------
26 July 1993 Licence for ash pipeline across the British Waterways Board (1)
Aire and Calder Navigation at Powergen (2)
Kellingley
------------------------------- --------------------------------------- -----------------------------------------
25 March 1996 Licence to lay ash pipeline under Railtrack plc (1)
railway Powergen (2)
------------------------------- --------------------------------------- -----------------------------------------
28 March 1994 Agreement for Construction and use British Railways Board (1)
of sidings at Ferrybridge Powergen (2)
------------------------------- --------------------------------------- -----------------------------------------
- 136 -
------------------------------- --------------------------------------- -----------------------------------------
23 April 1963 Licence to lay maintain and use British Transport Commission (1)
reinforced concrete purge pipe CEGB (2)
through bridge number 9 on
Knottingley Branch Railway
------------------------------- --------------------------------------- -----------------------------------------
12 November 1980 Licence to lay and maintain British Railways Board (1)
asbestos cement pipe in 1 metre CEGB (2)
steel sleeve between Ferrybridge
`A' and `B' Power Stations
------------------------------- --------------------------------------- -----------------------------------------
16 February 1953 Licence to obtain and use British Transport Commission (1)
underground electric cables and British Electricity Authority (2)
water main under bridge number 10
Knottingley Branch Railway
------------------------------- --------------------------------------- -----------------------------------------
28 February 1961 Licence to lay and maintain British Transport Commission (1)
electric cable under Brotherton CEGB (2)
Bridge Ferrybridge
------------------------------- --------------------------------------- -----------------------------------------
17 April 1962 Supplemental Agreement to Licence British Transport Commission (1)
dated 12 September 1961 CEGB (2)
------------------------------- --------------------------------------- -----------------------------------------
12 October 1993 Licence to retain and use a water British Railways Board (1)
main in the roadway under bridge Powergen (2)
number 10
------------------------------- --------------------------------------- -----------------------------------------
31 July 1957 Agreement for Supply of water for British Transport Commission (1)
giving to Ferrybridge `B' Central Electricity Authority (2)
------------------------------- --------------------------------------- -----------------------------------------
20 November 1962 Licence to install two temperature British Transport Commission (1)
recorders in River Aire at CEGB (2)
Ferrybridge
------------------------------- --------------------------------------- -----------------------------------------
29 May 1964 Licence to construct 2 surface British Transport Commission (1)
water discharge outfalls into River CEGB (2)
Aire
------------------------------- --------------------------------------- -----------------------------------------
29 May 1964 Licence for water discharge outfall British Transport Commission (1)
from Ferrybridge `C' Power Station CEGB (2)
cold water system
------------------------------- --------------------------------------- -----------------------------------------
18 September 1964 Licence for construction of coal British Waterways Board (1)
wharf CEGB (2)
------------------------------- --------------------------------------- -----------------------------------------
9 February 1988 Licence for water discharge outfall British Waterways Board (1)
pipes from Ferrybridge `C' Power CEGB (2)
Station cold water system and coal
store
------------------------------- --------------------------------------- -----------------------------------------
30 March 1990 Interface Agreement CEGB (Powergen division) (1)
YEB (2)
------------------------------- --------------------------------------- -----------------------------------------
- 137 -
EXECUTED AND DELIVERED as a DEED by )
EDISON FIRST POWER LIMITED )
acting by: )
Director
Director/Secretary
EXECUTED AND DELIVERED as a DEED by )
AEPR GLOBAL HOLLAND HOLDING B.V. )
acting by: )
Director
Director/Secretary
EXECUTED AND DELIVERED as a DEED by )
POWERGEN UK PLC )
acting by: )
Director
Director/Secretary
- 138 -
PART I
DEED OF ASSIGNMENT OF PROPERTY AGREEMENTS
- 139 -
LINKLATERS
& ALLIANCE
-------------------------------------------------------------------------------
Dated [o] 2001
EDISON FIRST POWER LIMITED
and
AEPR GLOBAL HOLLAND HOLDING B.V.
DEED OF ASSIGNMENT OF PROPERTY
AGREEMENTS
- relating to -
Ferrybridge "C" Power Station, Knottingley, West Yorkshire
LINKLATERS
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Telephone: (▇▇-▇▇) ▇▇▇▇ ▇▇▇▇
Facsimile: (▇▇-▇▇) ▇▇▇▇ ▇▇▇▇
Ref: STRS/ROES
DEED OF ASSIGNMENT OF PROPERTY AGREEMENTS
THIS DEED is made on [o] 2001
BETWEEN:
(1) EDISON FIRST POWER LIMITED registered in Guernsey with number 35167
and whose registered office is at ▇/▇ ▇▇▇▇▇▇▇, ▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇ Port, Guernsey GY1 4HP (the ASSIGNOR); and
(2) AEPR GLOBAL HOLLAND HOLDING B.V. registered in The Netherlands
and whose registered office is at 548 ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ (the ASSIGNEE).
WHEREAS:
(A) The Assignor has the benefit of the various agreements (the
AGREEMENTS) pursuant to a Deed of Assignment dated 19 July 1999
between Powergen UK plc and the Assignor, and briefly described in
the Schedule hereto relating or appurtenant to the property known as
Ferrybridge "C" Power Station, Knottingley, West Yorkshire (the
PROPERTY).
(B) The Assignor has assigned to the Assignee the lease of the Property
dated 19 July 1999 between Powergen UK plc and the Assignor (the
LEASE) for a term of 199 years commencing on 19 July 1999.
(C) By a
sale and purchase agreement (the CONTRACT) dated [o] the
Assignor agreed to transfer and the Assignee agreed to take, INTER
ALIA, the benefit of the Agreements in consideration of the
agreements contained in and the sums to be paid under the Contract.
THIS DEED WITNESSES as follows:
In pursuance of the Contract the Assignor (insofar as it is able) HEREBY ASSIGNS
unto the Assignee such right, title and interest as the Assignee has in the
Agreements (subject to any covenants and obligations on the part of the Assignor
contained in the Agreements) TO HOLD the same unto the Assignee absolutely.
EXECUTED as a deed on the date set out above.
- 141 -
SCHEDULE
--------------------------------------------------------------------------------------------------------------------
DATE DOCUMENT PARTIES
--------------------------------------------------------------------------------------------------------------------
1 December 1964 Licence for ash pipeline and bridge British Waterways Board (1)
across the River Aire at Brotherton CEGB (2)
--------------------------------------------------------------------------------------------------------------------
9 August 1999 Licence to lay and maintain works British Waterways Board (1)
over the Aire and Calder Waterway Edison First Power Limited (2)
at Kellingley Canal Bridge,
Gasgoine Hill Reach and Brotherton
Railway Bridge
--------------------------------------------------------------------------------------------------------------------
7 January 1969 Agreement to lay water and ash British Railways Board (1)
disposal pipe on or under railway CEGB (2)
land
--------------------------------------------------------------------------------------------------------------------
22 August 1980 Licence to lay ash pipe in highway West Yorkshire Metropolitan County
at Kirkhaw Lane/Stranglands Lane Council (1)
and Old Ferry Bridge pursuant to CEGB (2)
Section 41 of the ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
--------------------------------------------------------------------------------------------------------------------
13 March 1981 Agreement to permit a corridor British Railways Board (1)
under bridge number 9A (between CEGB (2)
Ferry Bridge A and B Stations)
--------------------------------------------------------------------------------------------------------------------
5 February 1982 Copy licence to lay, use and British Waterways Board (1)
maintain ash pipeline in and across CEGB (2)
the Aire and Calder Navigation at
Kellingley
--------------------------------------------------------------------------------------------------------------------
13 June 1986 Supplemental Licence for three ash British Waterways Board (1)
pipelines and pipeline bridge CEGB (2)
across the River Aire at Brotherton
--------------------------------------------------------------------------------------------------------------------
24 June 1986 Supplemental Agreement to Licence British Waterways Board (1)
dated 5 February 1982 to lay ash CEGB (2)
pipeline at Kellingley
--------------------------------------------------------------------------------------------------------------------
26 July 1993 Licence for ash pipeline across the British Waterways Board (1)
Aire and Calder Navigation at Powergen (2)
Kellingley
--------------------------------------------------------------------------------------------------------------------
25 March 1996 Licence to lay ash pipeline under Railtrack plc (1)
railway Powergen (2)
--------------------------------------------------------------------------------------------------------------------
28 March 1994 Agreement for Construction and use British Railways Board (1)
of sidings at Ferrybridge Powergen (2)
--------------------------------------------------------------------------------------------------------------------
- 142 -
--------------------------------------------------------------------------------------------------------------------
DATE DOCUMENT PARTIES
--------------------------------------------------------------------------------------------------------------------
23 April 1963 Licence to lay maintain and use British Transport Commission (1)
reinforced concrete purge pipe CEGB (2)
through bridge number 9 on
Knottingley Branch Railway
--------------------------------------------------------------------------------------------------------------------
12 November 1980 Licence to lay and maintain British Railways Board (1)
asbestos cement pipe in 1 metre CEGB (2)
steel sleeve between Ferrybridge
`A' and `B' Power Stations
--------------------------------------------------------------------------------------------------------------------
16 February 1953 Licence to obtain and use British Transport Commission (1)
underground electric cables and British Electricity Authority (2)
water main under bridge number 10
Knottingley Branch Railway
--------------------------------------------------------------------------------------------------------------------
28 February 1961 Licence to lay and maintain British Transport Commission (1)
electric cable under Brotherton CEGB (2)
Bridge Ferrybridge
--------------------------------------------------------------------------------------------------------------------
17 April 1962 Supplemental Agreement to Licence British Transport Commission (1)
dated 12 September 1961 CEGB (2)
--------------------------------------------------------------------------------------------------------------------
12 October 1993 Licence to retain and use a water British Railways Board (1)
main in the roadway under bridge Powergen (2)
number 10
--------------------------------------------------------------------------------------------------------------------
31 July 1957 Agreement for Supply of water for British Transport Commission (1)
giving to Ferrybridge `B' Central Electricity Authority (2)
--------------------------------------------------------------------------------------------------------------------
20 November 1962 Licence to install two temperature British Transport Commission (1)
recorders in River Aire at CEGB (2)
Ferrybridge
--------------------------------------------------------------------------------------------------------------------
29 May 1964 Licence to construct 2 surface British Transport Commission (1)
water discharge outfalls into River CEGB (2)
Aire
--------------------------------------------------------------------------------------------------------------------
29 May 1964 Licence for water discharge outfall British Transport Commission (1)
from Ferrybridge `C' Power Station CEGB (2)
cold water system
--------------------------------------------------------------------------------------------------------------------
18 September 1964 Licence for construction of coal British Waterways Board (1)
wharf CEGB (2)
--------------------------------------------------------------------------------------------------------------------
9 February 1988 Licence for water discharge outfall British Waterways Board (1)
pipes from Ferrybridge `C' Power CEGB (2)
Station cold water system and coal
store
--------------------------------------------------------------------------------------------------------------------
30 March 1990 Interface Agreement CEGB (Powergen division) (1)
YEB (2)
--------------------------------------------------------------------------------------------------------------------
- 143 -
--------------------------------------------------------------------------------------------------------------------
DATE DOCUMENT PARTIES
--------------------------------------------------------------------------------------------------------------------
15 July 1999 Deed of Novation of 2 Interface Powergen plc (1)
Agreements both dated 31 March 1990 Edison First Power Limited (2)
The National Grid Company (3)
--------------------------------------------------------------------------------------------------------------------
15 July 1999 Deed of Novation of Pillar of The Coal Authority (1)
Support Agreement dated 23 June 1971 Edison First Power Limited (2)
--------------------------------------------------------------------------------------------------------------------
15 July 1999 Deed of Novation of Pillar of RJB Mining (UK) Limited (1)
Support Agreement dated 23 June 1971 Powergen UK plc (2)
Edison First Power Limited (3)
--------------------------------------------------------------------------------------------------------------------
- 144 -
EXECUTED AND DELIVERED as a DEED by )
EDISON FIRST POWER LIMITED )
acting by: )
Director
Director/Secretary
EXECUTED AND DELIVERED as a DEED by )
AEPR GLOBAL HOLLAND HOLDING B.V. )
acting by: )
Director
Director/Secretary
- 145 -
SCHEDULE 12
COAL SALE CONTRACTS, COAL PURCHASE CONTRACTS AND ELECTRICITY TRADING CONTRACTS
PART A
COAL SALE CONTRACTS AND COAL PURCHASE CONTRACTS
COMMON INDEX DOCUMENTS
-----------------------------------------------------------------------------------------------------------------
REFERENCE DATE OF DOCUMENT PARTIES DESCRIPTION
NUMBER: FF
FILE/ DUE
DILIGENCE/
▇▇▇.▇▇
-----------------------------------------------------------------------------------------------------------------
5/8.1/1 23/07/01 EFPL; and Humber International Terminal 1 Agreement
Associated British Ports
-----------------------------------------------------------------------------------------------------------------
5/8.1/2 25-Jul-01 English Welsh & Scottish Coal Haulage Agreement
Railway Limited; and EFPL
-----------------------------------------------------------------------------------------------------------------
5/8.1/3 1-Nov-00 ▇▇▇▇▇▇▇▇▇'▇ Limited Polish Coal Charter Party Form
(Shipbroker);
Cobelfret S.A. (Owners); and
EFPL (Charterers)
-----------------------------------------------------------------------------------------------------------------
5/8.1/4 30-Apr-99 PG; and Liverpool Bulk Terminal Agreement Contract
EFPL No.FPIF030
-----------------------------------------------------------------------------------------------------------------
5/8.1/5 8-Mar-01 Cobam N.V.; and Charter Party Contract Two Shipments from
EFPL La Cienaga to United Kingdom
-----------------------------------------------------------------------------------------------------------------
5/8.1/6 31-Mar-90 EFPL; ▇▇▇▇ Common Agreement
Powergen; and
National Power
-----------------------------------------------------------------------------------------------------------------
5/8.1/8 23-Dec-99 EFPL; and Side letter to contract no. FPIF 030 -
Powergen UK plc Liverpool Bulk Terminal, dated 30th April
1999, amending the Standard Option Date and
the Premium Option Date
-----------------------------------------------------------------------------------------------------------------
5/8.1/9 11-May-99 EFPL; and Side letter to contract no. FPIF 030 -
Powergen UK plc Liverpool Bulk Terminal, dated 30th April
1999, amending the terms and conditions of
the contract and the terms for demurrage
and dispatch in US dollars
-----------------------------------------------------------------------------------------------------------------
5/8.1/10 23-Jun-00 EFPL; and Side letter to contract no FPIP 030 -
Powergen UK plc Liverpool Bulk Terminal, dated 30th April
1999, amending the terms and conditions of
the contract and concerning tonnage
-----------------------------------------------------------------------------------------------------------------
- 146 -
-----------------------------------------------------------------------------------------------------------------
REFERENCE DATE OF DOCUMENT PARTIES DESCRIPTION
NUMBER: FF
FILE/ DUE
DILIGENCE/
▇▇▇.▇▇
-----------------------------------------------------------------------------------------------------------------
5/8.1/11 5-Jul-00 EFPL; and Side letter to contract no FPIP 030 -
Powergen UK plc Liverpool Bulk Terminal, dated 30th April
1999, amending the terms and conditions of
the contract and concerning tonnage
-----------------------------------------------------------------------------------------------------------------
5/8.1/12 23-Aug-00 EFPL; and Side letter to contract no FPIP 030 -
Powergen UK plc Liverpool Bulk Terminal, dated 30th April
1999, amending the terms and conditions of
the contract and the Shipping Programme
-----------------------------------------------------------------------------------------------------------------
5/8.1/13 20-Dec-00 EFPL; and Side letter to contract no FPIP 030 -
Powergen UK plc Liverpool Bulk Terminal, dated 30th April
1999, amending the terms and conditions of
the contract and the Shipping Programme
-----------------------------------------------------------------------------------------------------------------
5/8.1/14 12-Apr-01 EFPL; and Side letter to contract no FPIP 030 -
Powergen UK plc Liverpool Bulk Terminal, dated 30th April
1999, amending the terms and conditions of
the contract and the Shipping Programme
-----------------------------------------------------------------------------------------------------------------
5/8.1/15 Undated EFPL; and Master Coal Purchase and Sale Agreement for
Enron Capital & Trade FF and FB
Resources Ltd
-----------------------------------------------------------------------------------------------------------------
6/8.2/1 15-Feb-01 EFPL; and CIF Contract for the Supply of Russian Coal
Glencore International AG by Panamax Vessel into LBT
-----------------------------------------------------------------------------------------------------------------
6/8.2/2 21-Dec-00 EFPL; and CIF Contract for the Supply of Russian Coal
Glencore International AG
-----------------------------------------------------------------------------------------------------------------
6/8.2/3 18-Aug-99 EFPL; and Master Coal Purchase and Sale Agreement for
Enron Capital & Trade FF & FB
Resources Limited
-----------------------------------------------------------------------------------------------------------------
6/8.2/4 13-Jul-00 EFPL; and Letter Confirming Terms of Master Coal Sale
Enron Capital & Trade and Purchase Agreement for Delivery of Coal
Resources Limited to the Liverpool Bulk Terminal
-----------------------------------------------------------------------------------------------------------------
6/8.2/5 13-Jul-00 EFPL; and Letter referring to Master Coal Purchase
Enron Capital & Trade and Sale Agreement for FB & FF
Resources Limited
-----------------------------------------------------------------------------------------------------------------
6/8.2/6 13-Jul-00 EFPL; and Amendment Agreement relating to Master Coal
Enron Capital & Trade Purchase and Sale Agreement dated 13 August
Resources Limited 1999
-----------------------------------------------------------------------------------------------------------------
- 147 -
-----------------------------------------------------------------------------------------------------------------
REFERENCE DATE OF DOCUMENT PARTIES DESCRIPTION
NUMBER: FF
FILE/ DUE
DILIGENCE/
▇▇▇.▇▇
-----------------------------------------------------------------------------------------------------------------
6/8.2/7 17-Jan-01 PG; and Contract No. FSIC 152 for the supply of
EFPL coal to Drax Power Station
-----------------------------------------------------------------------------------------------------------------
6/8.2/8 5-Jan-01 EFPL; and Contract No. FS03/2001 for the supply of
Innogy UK Limited coal to Drax and/or Eggborough Power
Stations
-----------------------------------------------------------------------------------------------------------------
6/8.2/9 Undated EFPL; and FOB Contract for the supply of
Billiton Marketing AG International Coal
-----------------------------------------------------------------------------------------------------------------
6/8.2/10 4-May-01 EFPL; and FOB Contract for the supply of
Interocean Coal Sales LDC International Coal
-----------------------------------------------------------------------------------------------------------------
7/8.2/11 Draft dated 2 April EFPL; and Contract No. FS04 for the supply of coal to
2001 TXU Europe Energy Trading Power Station
Limited
-----------------------------------------------------------------------------------------------------------------
7/8.2/12 Apr-01 EFPL; and Contract No. FP06 Free On Rail Contract for
The Scottish Coal Company the Supply of Steam Coal
-----------------------------------------------------------------------------------------------------------------
7/8.2/13 20-Apr-01 PG; and Contract No. FSIC 160 for the Supply of
EFPL Coal to West Burton Power Station
-----------------------------------------------------------------------------------------------------------------
7/8.2/13a 25-Jul-01 Powergen; and Letter re: Contract Reference FSIC ▇▇▇-
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Power Station; FSIC 135- FF
Power Station; FSIC 134- FB Power Station
-----------------------------------------------------------------------------------------------------------------
7/8.2/14 25-Jan-01 EFPL; and FOB Contract for the Supply of
ICF Trading Limited International Coal
-----------------------------------------------------------------------------------------------------------------
7/8.2/15 17-Aug-00 PG; and Contract for the Supply of Coal Contract
EFPL No. FPIF 044
-----------------------------------------------------------------------------------------------------------------
7/8.2/16 25-Jul-00 PG; and Contract for the Supply of Coal Contract
EFPL No. FPIF 043
-----------------------------------------------------------------------------------------------------------------
7/8.2/17 12-Sep-00 EFPL; and Contract for the Supply of Coal Contract
Parkhil Estates Ltd No. FS02/2000
-----------------------------------------------------------------------------------------------------------------
7/8.2/18 5-Sep-00 EFPL; and Contract for the Supply of Coal Contract
Scottish Power UK PLC No. FS01/2000
-----------------------------------------------------------------------------------------------------------------
7/8.2/19 27-Apr-01 EFPL; and CIF Contract for Supply of Russian Coal
Glencore International AG FP07/2001
-----------------------------------------------------------------------------------------------------------------
- 148 -
-----------------------------------------------------------------------------------------------------------------
REFERENCE DATE OF DOCUMENT PARTIES DESCRIPTION
NUMBER: FF
FILE/ DUE
DILIGENCE/
▇▇▇.▇▇
-----------------------------------------------------------------------------------------------------------------
7/8.2/20 3-Apr-01 EFPL; and Free On Rail Contract for the Supply of
The Scottish Coal Company Steam Coal Contract No. FP06
-----------------------------------------------------------------------------------------------------------------
7/8.2/21 20-Apr-01 EFPL; and Contract for the Supply of Coal Contract
TXU Europe Energy Trading Ltd No. FSIC 152
-----------------------------------------------------------------------------------------------------------------
7/8.2/21a 8-Aug-01 EFPL; and Side Letter to contract No. FSIC 152
TXU Europe Energy Trading
Limited
-----------------------------------------------------------------------------------------------------------------
7/8.2/22 20-Apr-01 PG UK plc; and EFPL Contract No. FSIC160 for the supply of coal
to West Burton Power Station.
-----------------------------------------------------------------------------------------------------------------
8.2/23 3-Aug-01 EFPL; and FOB Contract for the supply of South
Total Exploration South African coal by Panamax vessel into LBT
Africa (Pty) Limited Contract Ref. FP10 (Signed)
-----------------------------------------------------------------------------------------------------------------
7/8.2/24 Undated EFPL; and Glencore Draft CIF Contract Reference FP09 for the
International AG Supply of South African Coal by Capesize
Vessel into Hunterston
-----------------------------------------------------------------------------------------------------------------
7/8.2/25 2-Mar-01 ▇▇▇▇▇ Limited; and EME Terms of Insurance cover provided by ▇▇▇▇▇
Limited to EME for Shipment and Storage of
Coal
-----------------------------------------------------------------------------------------------------------------
7/8.2/26 22-Jun-01 Pacific Carriers Ltd; Charter Party
and EFPL
-----------------------------------------------------------------------------------------------------------------
7/8.2/27 Undated EFPL; and Draft Humber International Terminal 1
Associated British Ports Agreement
-----------------------------------------------------------------------------------------------------------------
8.2/28 ▇-▇▇▇-▇▇ ▇▇▇▇ Bulk Handling Ltd; and Quotation for Imports of Steam
EME Coal through Hull Bulk Handling for Period
1st Jan 02 - 21 Dec 02
-----------------------------------------------------------------------------------------------------------------
8.2/29 30-Jul-01 Powergen Summary of EFPL
Contract Tonnage
(Not verified by EFPL)
-----------------------------------------------------------------------------------------------------------------
8.2/30 11-Dec-00 EFPL; and Contract for the supply of Reclaimed fuel
Oil Salvage Ltd oil
-----------------------------------------------------------------------------------------------------------------
8.2/31 Undated EFPL; and Agreement for the supply of fuel to FB
Totalfina Great Britain Ltd
-----------------------------------------------------------------------------------------------------------------
- 149 -
-----------------------------------------------------------------------------------------------------------------
REFERENCE DATE OF DOCUMENT PARTIES DESCRIPTION
NUMBER: FF
FILE/ DUE
DILIGENCE/
▇▇▇.▇▇
-----------------------------------------------------------------------------------------------------------------
8.2/32 Undated Powergen; and Contract for the supply of Gas oil with
Shell UK Ltd letter re: contract extension
-----------------------------------------------------------------------------------------------------------------
8.2/33 1-Aug-01 EFPL; and CIF contract for the supply of Tselentsis
Glencore International AG coal by Paanamax vessel into BT. Contract
Ref. FP11 (Signed)
-----------------------------------------------------------------------------------------------------------------
8.2/34 17-May-01 Medmar; and Americanized Welsh Coal Charter Party
EFPL
-----------------------------------------------------------------------------------------------------------------
8.2/34 21-Sep-01 EFPL Edison First Power Limited Statement of
Committed Sales
-----------------------------------------------------------------------------------------------------------------
FERRYBRIDGE INDEX DOCUMENTS
-----------------------------------------------------------------------------------------------------------------
REFERENCE DATE OF DOCUMENT PARTIES DESCRIPTION
NUMBER: FF
FILE/ DUE
DILIGENCE/
▇▇▇.▇▇
-----------------------------------------------------------------------------------------------------------------
8/8.1/4 12-Feb-01 EFPL; and Side Letter to contract no. FSIC134, dated
Powergen UK plc 30th April 1999, concerning the 'deferred
tonage'
-----------------------------------------------------------------------------------------------------------------
8/8.1/5 2-Jan-01 EFPL; and Side Letter to contract no. FSIC134, dated
Powergen UK plc 30th April 1999, concerning the 'deferred
tonage'
-----------------------------------------------------------------------------------------------------------------
8/8.1/6 20-Nov-00 EFPL; and Side Letter to contract no. FSIC134, dated
Powergen UK plc 30th April 1999, concerning the 'deferred
tonage'
-----------------------------------------------------------------------------------------------------------------
8/8.1/7 11-May-00 EFPL; and Side Letter to contract no. FSIC134, dated
Powergen UK plc 30th April 1999, concerning the delivery of
tonnage from FF to FB power stations
-----------------------------------------------------------------------------------------------------------------
8/8.1/8 21-Dec-99 EFPL; and Side Letter to contract no. FSIC134, dated
Powergen UK plc 30th April 1999, relating to weight
determination
-----------------------------------------------------------------------------------------------------------------
8/8.1/9 18-Aug-99 EFPL; and Side Letter to contract no. FSIC134, dated
Powergen UK plc 30th April 1999, relating to weight
determination
-----------------------------------------------------------------------------------------------------------------
- 150 -
-----------------------------------------------------------------------------------------------------------------
REFERENCE DATE OF DOCUMENT PARTIES DESCRIPTION
NUMBER: FF
FILE/ DUE
DILIGENCE/
▇▇▇.▇▇
-----------------------------------------------------------------------------------------------------------------
8/8.1/10 18-Dec-99 EFPL; and Coal Sale Agreement
Enron Capital & Trade
Resources International Corp.
-----------------------------------------------------------------------------------------------------------------
8/8.1/11 18-Dec-99 EFPL; and Coal Sale Agreement
Powergen UK plc
-----------------------------------------------------------------------------------------------------------------
9/8.2/1 3-Sep-99 EFPL; and Confirmation to the Master Coal Purchase
Enron Capital & Trade and Sale Agreement for the Delivery of Coal
Resources Limited to FB
-----------------------------------------------------------------------------------------------------------------
9/8.2/2 16-Dec-99 EFPL; and Confirmation to the Master Coal Purchase
Enron Capital & Trade and Sale Agreement for the Delivery of Coal
Resources Limited to FB
-----------------------------------------------------------------------------------------------------------------
9/8.2/3 13-Jul-00 EFPL; and Letter re: the Master Coal Purchase and
Enron Capital & Trade Sale Agreement for FB and the September
Resources Limited Confirmations
-----------------------------------------------------------------------------------------------------------------
9/8.2/4 30-Apr-99 EFPL; and Contract No. FSIC 134 for the Supply of
Powergen UK plc Coal to FB
-----------------------------------------------------------------------------------------------------------------
9/8.2/4a 8-Jul-99 EFPL; and Amendment Agreement with respect to Coal
Powergen UK plc Supply Contract No. FSIC 134 for the
supply of Coal to FB C
-----------------------------------------------------------------------------------------------------------------
9/8.2/5 12-Apr-01 Powergen; and Side letter to Contract No FSIC 134 (FB)
EFPL and Contract FSIC 135 (FF)
-----------------------------------------------------------------------------------------------------------------
9/8.2/6 12-Feb-01 Powergen; and Side letter to contract ▇▇. ▇▇▇▇ ▇▇▇ - ▇▇
▇▇▇▇
-----------------------------------------------------------------------------------------------------------------
9/8.2/7 9-Jan-01 Powergen; and Side letter to contract ▇▇. ▇▇▇▇ ▇▇▇ - ▇▇
▇▇▇▇
-----------------------------------------------------------------------------------------------------------------
9/8.2/8 2-Jan-01 Powergen; and Side letter to contract ▇▇. ▇▇▇▇ ▇▇▇ - ▇▇
▇▇▇▇
-----------------------------------------------------------------------------------------------------------------
9/8.2/9 ▇▇-▇▇▇-▇▇ ▇▇▇▇▇▇▇▇; and Side letter to contract ▇▇. ▇▇▇▇ ▇▇▇ - ▇▇
▇▇▇▇
-----------------------------------------------------------------------------------------------------------------
9/8.2/10 6-Oct-00 EME; and Side letter to Contract No FSIC 134 (FB)
Powergen UK plc and Contract FSIC 135 (FF)
-----------------------------------------------------------------------------------------------------------------
- 151 -
-----------------------------------------------------------------------------------------------------------------
REFERENCE DATE OF DOCUMENT PARTIES DESCRIPTION
NUMBER: FF
FILE/ DUE
DILIGENCE/
▇▇▇.▇▇
-----------------------------------------------------------------------------------------------------------------
8.2/11 5-Oct-00 Powergen; and Side letter to Contract No FSIC 134 (FB)
EFPL and Contract FSIC 135 (FF)
-----------------------------------------------------------------------------------------------------------------
9/8.2/12 20-Jul-00 EME; and Side letter to Contract No FSIC 134 (FB)
Powergen UK plc and Contract FSIC 135 (FF)
-----------------------------------------------------------------------------------------------------------------
9/8.2/13 5-Jul-00 Powergen; and Side letter to contract ▇▇. ▇▇▇▇ ▇▇▇ - ▇▇
▇▇▇▇
-----------------------------------------------------------------------------------------------------------------
9/8.2/14 11-May-00 Powergen; and Side letter to contract ▇▇. ▇▇▇▇ ▇▇▇ - ▇▇
▇▇▇▇
-----------------------------------------------------------------------------------------------------------------
9/8.2/15 26-Apr-00 Powergen; and Side letter to contract ▇▇. ▇▇▇▇ ▇▇▇ - ▇▇
▇▇▇▇
-----------------------------------------------------------------------------------------------------------------
9/8.2/16 23-Aug-00 Powergen; and Side letter to contract ▇▇. ▇▇▇▇ ▇▇▇ - ▇▇
▇▇▇▇
-----------------------------------------------------------------------------------------------------------------
9/8.2/17 4-Jan-00 Powergen; and Side letter to contract ▇▇. ▇▇▇▇ ▇▇▇ - ▇▇
▇▇▇▇
-----------------------------------------------------------------------------------------------------------------
9/8.2/18 21-Dec-99 Powergen; and Side letter to contract ▇▇. ▇▇▇▇ ▇▇▇ - ▇▇
▇▇▇▇
-----------------------------------------------------------------------------------------------------------------
9/8.2/19 Draft date 4 April EFPL; and Contract for the Supply of Coal delivered
2001 ▇▇▇▇▇▇ Haulage Limited by road with letter dated 01/08/01
-----------------------------------------------------------------------------------------------------------------
9/8.2/20 Draft date April EFPL; and CIF Contract for the Supply of Russian
2001 Glencore International AG Coal, Contract No. FP07/2001
-----------------------------------------------------------------------------------------------------------------
8.2/21 19-Jul-99 RJB Mining (UK) Ltd; Agreement in respect of a
Powergen UK Plc; and pillar of support agreement
EFPL for Ferrybridge 'C' Power
Station Yorkshire
-----------------------------------------------------------------------------------------------------------------
8.2/22 19-Jul-99 The Coal Authority; Novation of a pillar of support agreement
Powergen; and for Ferrybridge 'C' Power Station Yorkshire
EFPL
-----------------------------------------------------------------------------------------------------------------
- 152 -
PART B
ELECTRICITY TRADING CONTRACTS
COMMON CONFIDENTIAL INDEX DOCUMENTS
Electricity Forward Association Grid Trade Master Agreements
----------------------- ---------------------------- ----------------------------------------------------
6.3/1 Undated EFPL
----------------------- ---------------------------- ----------------------------------------------------
6.3/3 21-Mar-01 EFPL; and
Accord Energy Limited
----------------------- ---------------------------- ----------------------------------------------------
6.3/4 20-Mar-01 EFPL; and
AEP Energy Services Limited
----------------------- ---------------------------- ----------------------------------------------------
6.3/5 21-Mar-01 EFPL; and ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Limited
----------------------- ---------------------------- ----------------------------------------------------
6.3/6 21-Mar-01 EFPL; and
British Gas Trading Limited
----------------------- ---------------------------- ----------------------------------------------------
6.3/7 26-Mar-01 Enron Capital & Trade Resources International Corp.;
Enron Capital & Trade Resources Limited; and EFPL
----------------------- ---------------------------- ----------------------------------------------------
6.3/8 19-Mar-01 EFPL; and
First Hydro Company
----------------------- ---------------------------- ----------------------------------------------------
6.3/9 21-Mar-01 EFPL; and
London Electricity plc
----------------------- ---------------------------- ----------------------------------------------------
6.3/10 20-Mar-01 EFPL; and
Magnox Electric plc
----------------------- ---------------------------- ----------------------------------------------------
6.3/11 6-Mar-01 EFPL; and
Northern Electric plc
----------------------- ---------------------------- ----------------------------------------------------
6.3/12 2-Mar-01 EFPL; and
PG
----------------------- ---------------------------- ----------------------------------------------------
6.3/13 20-Mar-01 EFPL; and
Scottish and Southern Energy plc
----------------------- ---------------------------- ----------------------------------------------------
6.3/14 23-Mar-01 EFPL; and
Scottish Power UK plc
----------------------- ---------------------------- ----------------------------------------------------
6.3/15 20-Mar-01 EFPL; and
Seeboard plc
----------------------- ---------------------------- ----------------------------------------------------
6.3/16 26-Mar-01 EFPL; and
TXU Europe Energy Trading Limited
----------------------- ---------------------------- ----------------------------------------------------
6.3/17 5-Mar-01 EFPL; and
YEG plc
----------------------- ---------------------------- ----------------------------------------------------
6.3/58 12-Jul-01 EFPL; and
Innogy Plc
----------------------- ---------------------------- ----------------------------------------------------
6.3/59 11-Jul-01 EFPL; and
Killingholme Power Ltd
----------------------- ---------------------------- ----------------------------------------------------
6.3/70 1-Aug-01 EFPL; and
British Energy Power and Energy Trading Limited
----------------------- ---------------------------- ----------------------------------------------------
- 153 -
----------------------- ---------------------------- ----------------------------------------------------
6.3/72 Undated EFPL and
Entergy-▇▇▇▇ Trading Ltd
----------------------- ---------------------------- ----------------------------------------------------
together with all contracts entered into pursuant to Clause 4.1.3.
- 154 -
SCHEDULE 13
PENSIONS
1 DEFINITIONS
ACTUARY'S LETTER means the letter from EFPL's Actuary to and
countersigned by the Purchaser's Actuary, a copy of which is attached;
EMPLOYEE MEMBER means those Relevant Members who are members of the
Pension Scheme at Completion and any (subject to Inland Revenue
approval) other employees employed in the Business who with the consent
of EFPL become members of the Pension Scheme during the Transitional
Period and who at the relevant time are employed by Purchaser A;
EFPL'S ACTUARY means ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, or another
actuary appointed by EFPL for the purpose of this Schedule;
MEMBERSHIP TRANSFER DATE means 1 April 2002, or another date agreed
by EFPL and Purchaser A;
PAYMENT DATE means the date on which payment of the Transfer Payment
is due under paragraph 5.3;
PROTECTED EMPLOYEE means an Employee Member who is a protected employee
as defined in Regulation 3 of the Protection Regulations;
PROTECTION REGULATIONS means the Electricity (Protected Persons)
(England and Wales) Pensions Regulations 1990 (SI 1990 No 346);
Purchaser's Actuary means ▇▇▇▇▇▇ ▇▇▇▇ FIA of Deloitte & Touche, or
another actuary appointed by Purchaser A for the purpose of this
Schedule;
PURCHASER'S SCHEME means the pension scheme set up or nominated by
Purchaser A as described in paragraph 2.1;
TRANSFER PAYMENT means the amount to be paid from the Pension Scheme to
the Purchaser's Scheme calculated as described in paragraph 4 of the
Actuary's Letter;
TRANSFERRING MEMBER means an Employee Member who immediately before the
Membership Transfer Date is employed by Purchaser A and is also a
member of the Pension Scheme, who joins the Purchaser's Scheme on the
Membership Transfer Date, and who consents to a transfer of assets
being made for him to the Purchaser's Scheme under paragraph 5.1; and
Transitional Period means the period commencing on the date of
Completion and ending on the day immediately preceding the Membership
Transfer Date (both days inclusive).
2 PURCHASER'S SCHEME
2.1 Purchaser A will set up or nominate a pension scheme by the Membership
Transfer Date which will be a contracted-out and an exempt approved
scheme or capable of approval as an exempt approved scheme for the
purposes of Chapter I Part XIV of the Income and Corporation Taxes ▇▇▇
▇▇▇▇.
2.2 Purchaser A will before the Membership Transfer Date invite the
Employee Members to join the Purchaser's Scheme on that date. Any
Relevant Employee who has not become eligible to join the Pension
Scheme by the Membership Transfer Date will be able to join the
Purchaser's Scheme on
- 155 -
the date he or she would have become eligible to join the Pension
Scheme if it had continued to apply to him.
2.3 EFPL and Purchaser A will use all reasonable endeavours to ensure that
before the Membership Transfer Date, each Employee Member who is
entitled to benefits under the Pension Scheme immediately before the
Membership Transfer Date is invited, in terms approved by each of them
(such approval not to be unreasonably delayed or withheld), to consent
within 4 weeks of the Membership Transfer Date to a transfer of assets
being made for him or her from the Pension Scheme to the Purchaser's
Scheme.
2.4 The Purchaser's Scheme will at the outset provide benefits in respect
of each Transferring Member's service with Purchaser A from the
Membership Transfer Date on a basis which is agreed by EFPL's Actuary
and the Purchaser's Actuary to be at least equivalent in value to the
basis on which benefits are provided by the Pension Scheme immediately
before the date of this Agreement (as in force at the date of this
Agreement and disclosed to Purchaser A).
3 PROTECTED EMPLOYEES
3.1 Purchaser A undertakes to EFPL and to Powergen and warrants that it
will comply with the provisions of the Protection Regulations in
respect of the Protected Employees.
3.2 Purchaser A agrees that, should it fail to comply in any way or if such
arrangements that it sets in place in order to comply fail or are held
not to be sufficient to comply with the Protection Regulations and
liability attaches to EFPL or Powergen as a consequence of Purchaser
A's failure to comply with the Protection Regulations, it shall fully
indemnify (on an after tax basis) EFPL or Powergen (as the case may be)
in respect of any such liability, including but not limited to any
costs incurred or awards made.
3.3 Purchaser A agrees that, should it request that the Protected Employees
waive their rights under the Protection Regulations, it shall be
responsible for all and any consideration payable to the Protected
Employees in respect of the waiving of such rights and shall indemnify
(on an after tax basis) EFPL and Powergen against any costs,
liabilities or claims for which EFPL or Powergen (as the case may be)
may be held responsible or which they may incur as a consequence of
such a request or such a waiver, including, but not limited to any
claim that the waiver is ineffective or has been improperly obtained.
3.4 If the accrued or future pension rights in respect of any Protected
Employees are transferred to any other employer in circumstances where
they remain protected beneficiaries under the Protection Regulations,
Purchaser A will ensure that the successor enters into an identical
undertaking with EFPL and Powergen as Purchaser A's undertaking to EFPL
and Powergen in paragraph 3.1. It will also ensure that the undertaking
includes an undertaking by the successor to ensure that identical
obligations are imposed on any subsequent employers to whom such rights
are transferred. Purchaser A will indemnify (on an after tax basis)
EFPL and Powergen against any failure by the successor or any such
subsequent employer to comply with those obligations and any breach by
the successor or any subsequent employer of those obligations will be
treated as if it were a breach by Purchaser A of its obligations under
paragraph 3.1.
3.5 Powergen shall be entitled to enforce the provisions of paragraphs 3.1
to 3.4 of this Schedule against Purchaser A in accordance with the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇. That Act shall apply to
paragraphs 3.1 to 3.4 for this purpose, notwithstanding any contrary
provisions elsewhere in this Agreement.
- 156 -
4 TRANSITIONAL PERIOD OF PARTICIPATION
The following will apply between Completion and the day before the
Membership Transfer Date.
4.1 EFPL will ensure that Purchaser A may participate in the Pension Scheme
in respect of the Employee Members during the Transitional Period. For
this purpose Purchaser A will enter into the Deed of Participation in a
form required by EFPL. The deed will be in the form attached as
Appendix 1 to this schedule.
4.2 Purchaser A will do everything necessary to procure that the
employments of the Employee Members are contracted-out by reference to
the Pension Scheme during the Transitional Period and EFPL will lend
all reasonable assistance to that end.
4.3 Purchaser A will pay contributions in respect of the Employee Members
in accordance with clause 13 of the Pension Scheme when due and will
observe all other provisions of the Pension Scheme that are applicable
to it as a Temporary Participant (as defined in the clauses and rules
of the Pension Scheme). In particular, Purchaser A shall pay
contributions under Clause 13(1)(a) of the Pension Scheme at the rate
of 10% or 12%, as appropriate, of the Salary (as defined in the clauses
and rules of the Pension Scheme) of the Employee Members. EFPL
undertakes to procure that no determination shall be made under Clause
13(1)(g) or (h) of the Pension Scheme requiring any further sums to be
contributed by Purchaser A under that provision.
4.4 Purchaser A will pay expenses at a rate of 0.75% of each Employee
Member's Salary (as defined in the clauses and rules of the Pension
Scheme) to EFPL at the same time as it makes contributions under Clause
13(1)(a) of the Pension Scheme in respect of the Employee Members.
4.5 The pensionable pay of any Employee Member shall not be increased at a
rate greater than 6% per annum during the Transitional Period without
the approval of EFPL.
4.6 Purchaser A appoints First Hydro Company to act on its behalf in
dealing with all requirements and other matters applicable to Purchaser
A under the Pensions Act 1995 by virtue of its participation in the
Pension Scheme. Purchaser A will take any steps required by First Hydro
Company to give effect to this authorisation.
4.7 EFPL undertakes to ensure that except as required by law or with the
prior consent of Purchaser A (such approval not be unreasonably
withheld or delayed):
4.7.1 the provisions of the Pension Scheme will not be amended in a
manner which may affect the benefits or contributions of any
of the Employee Members;
4.7.2 no power or discretion of the Principal Employer or of any
Employer (other than Purchaser A) will be exercised in any
manner which may affect the benefits or contributions under the
Pension Scheme of any Employee Member or any spouse or
dependant of any Employee Member;
4.7.3 the provisions of the Pension Scheme will not be amended in a
manner which may affect the contributions payable to the
Pension Scheme by Purchaser A; and
4.7.4 it will not terminate the Pension Scheme before the Payment
Date.
4.8 If at any time (whether or not during the Transitional Period)
Purchaser A is required to make any payment to or in respect of the
Pension Scheme pursuant either to section 75 of the Pensions ▇▇▇ ▇▇▇▇
or to Clause 13(1)(g) or (h) of the Pension Scheme, EFPL shall fully
indemnify (on an after tax basis) Purchaser A by way of adjustment to
the consideration given by Purchaser A under this Agreement, in respect
of the payment.
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5 TRANSFER PAYMENT FROM THE PENSION SCHEME
5.1 EFPL will ensure that on the Payment Date the trustees of the Pension
Scheme transfer to the Purchaser's Scheme (subject to any restriction
in Rule 17C of the Pension Scheme as to the maximum amount that may be
transferred from the Pension Scheme) the Transfer Payment described in
the Actuary's Letter on the basis that Article 141 of the Treaty of
Rome (as amended) does not apply to guaranteed minimum pensions or to
the matters disclosed against warranty 11.2 or 12.5 in the Disclosure
Letter and calculated by EFPL's Actuary. The transfer will comprise a
reasonable cross section of the UK and overseas equity assets of the
Pension Scheme, to be agreed between EFPL's Actuary and the Purchaser's
Actuary, or paid in cash. To the extent that such agreement is not
reached, the payment shall be in cash and may be subject to such
deduction (not exceeding 1/2% of the value of the underlying non-cash
assets) as EFPL's Actuary and the Purchaser's Actuary agree to be
reasonable to reflect the cost of any realisation of non-cash assets by
the trustees of the Pension Scheme as may be necessary to enable the
payment (or part thereof) to be made in cash. The Transfer Payment will
initially be calculated by EFPL's Actuary and shall then be verified
and agreed by the Purchaser's Actuary. EFPL will ensure that the
Purchaser's Actuary is supplied within 40 working days after the
Membership Transfer Date with all information reasonably required by
the Purchaser's Actuary to enable her to verify and agree EFPL's
Actuary's calculations.
5.2 Payment to the Purchaser's Scheme will only be made on the following
conditions:
5.2.1 the Inland Revenue has consented to the making of the payment
which consent EFPL and Purchaser A shall use their best
endeavours to secure as soon as reasonably practicable after
Completion;
5.2.2 Purchaser A has complied with all its obligations in this
Schedule which fall due to be complied with before the date of
payment;
5.2.3 the trustees of the Purchaser's Scheme have confirmed that they
will accept the payment on the terms set out in paragraph 6;
and
5.2.4 the Transfer Payment has been agreed under paragraph 5.1 or
determined under paragraph 8.
5.3 Payment to the Purchaser's Scheme is due on the latest of the
following:
5.3.1 four months after the Membership Transfer Date; and
5.3.2 seven days after the date when the last of the conditions in
paragraph 5.2 have been satisfied.
5.4 If the Trustees of the Pension Scheme do not transfer in full, within
14 days of the Payment Date, the amount which EFPL has undertaken in
the first sentence of paragraph 5.1 to ensure that they will pay, EFPL
will pay to the Purchaser (or as the Purchaser may direct) in cash the
amount unpaid less any amount paid by the Trustees in the meantime,
further adjusted in accordance with the Actuary's Letter from the
Payment Date, by way of an adjustment to the consideration given by the
Purchaser under this Agreement. The Purchaser will procure that the
amount paid by EFPL is paid into the Purchaser's Scheme.
6 BENEFITS TO BE PROVIDED BY THE PURCHASER'S SCHEME IN RESPECT OF
SERVICE UNDER THE PENSION SCHEME
6.1 Subject to receipt of the amount referred to in the first sentence of
paragraph 5.1, Purchaser A will ensure that the Purchaser's Scheme
provides in respect of each Transferring Member benefits on
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a basis that EFPL's Actuary and Purchasers A's Actuary agree to be
equal in value (on the basis and assumptions set out in the Actuary's
Letter) to the basis of the benefits under the Pension Scheme in
respect of the Transferring Member's pensionable service before the
Membership Transfer Date under the Pension Scheme (in accordance with
its provisions as in force at the date of this Agreement and disclosed
to Purchaser A in the Disclosure Letter).
6.2 Purchaser A will ensure that pursuant to paragraph 6.1 the Purchaser's
Scheme accepts liability for each Transferring Member's accrued rights
to a guaranteed minimum pension and rights under Section 9(2B) of the
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇.
7 VOLUNTARY CONTRIBUTIONS
Nothing previously contained in this Schedule will apply to money
purchase voluntary contributions or to the money purchase benefits
secured by them. However, EFPL will use reasonable endeavours to ensure
that the assets representing Transferring Members' voluntary
contributions will be transferred to the Purchaser's Scheme, and
Purchaser A will ensure that in that event its scheme credits in full
to the account of each of the members concerned an amount equal in
value to the assets so transferred in respect of him.
8 DISPUTES
Clause 16 of this Agreement shall not apply to any matter that falls to
be agreed between EFPL and Purchaser A, or EFPL's Actuary and the
Purchaser's Actuary, in accordance with this Schedule and the Actuary's
Letter. Any dispute between EFPL and Purchaser A, or between EFPL's
Actuary and the Purchaser's Actuary, concerning any of the matters to
be agreed between them under the provisions of this Schedule and the
Actuary's Letter shall in the absence of agreement between them be
referred to an independent actuary, whose identity shall be agreed
between EFPL and Purchaser A within ten working days of the issue of
such a reference first being raised by either party (or failing such
agreement, appointed at the request of either EFPL or Purchaser A by
the President for the time being of the Institute of Actuaries). The
independent actuary shall act as an expert and not as an arbitrator;
his decision shall be final and binding on the parties and his expenses
shall be borne equally by EFPL and Purchaser A, or otherwise as the
independent actuary in his absolute discretion may determine.
9 BACK SERVICE CREDIT
In respect of any Transferring Members who may be entitled to benefit
from a Back Service Credit under the draft resolution under Rule 32 and
the letter dated 18 May 2001 (as described in the Disclosure Letter)
("Back Service Credit Members"), Purchaser A undertakes to EFPL that it
will grant Back Service Credits in the Purchaser's Scheme to the Back
Service Credit Members as if their pensionable service in the Pension
Scheme and the Purchaser's Scheme were continuous on the terms set out
in the said draft resolution and letter and (a) will pay to the
Purchaser's Scheme any outstanding contributions which First Hydro
Company or the participating employer concerned would otherwise have
been obliged to pay to secure those benefits and (b) will allow the
Back Service Credit Members concerned to continue to pay to the
Purchaser's Scheme any outstanding contributions which they would
otherwise have been obliged to pay to the Pension Scheme to secure
those benefits.
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ELECTRICITY SUPPLY PENSION SCHEME
EDISON MISSION ENERGY GROUP
DEED OF TEMPORARY PARTICIPATION
THIS DEED is made on 2001
BETWEEN:
(1) FIRST HYDRO COMPANY
(2) AEP ENERGY SERVICES UK GENERATION LIMITED
WHEREAS:
(A) This Deed is supplemental to the Electricity Supply Pension Scheme (the
SCHEME) which is an exempt approved retirement benefits scheme (as
defined in Chapter 1 of Part XIV of the Taxes Act 1988) established by
resolution of the Electricity Council passed on 20 January 1983 and
subsequently amended from time to time, INTER ALIA by the Principal
Employer and by the Co-ordinator on behalf of the Principal Employer,
insofar as they relate to itself and its Participating Subsidiaries
from time to time and to the Members, Former Members and Beneficiaries
associated with its Group.
(B) By an agreement dated [o] October 2001 (the AGREEMENT) Edison First
Power Limited, a participating subsidiary of the Scheme, has, subject
to the satisfaction of certain conditions precedent, agreed to transfer
its business to AEP Energy Services UK Generation Limited.
(C) Pursuant to Clause 2B(4A) of the Scheme, AEP Energy Services UK
Generation Limited wishes to participate in the Edison Mission Energy
Group of the Scheme (the Edison Mission Energy Group) as a Temporary
Participant (as defined in Clause 2B(4A) of the Scheme) with effect
from Completion until the day before the Membership Transfer Date (as
defined in the Agreement) (the INTERIM PERIOD) so that those persons
who are Employee Members (as defined in the Agreement) (the ELIGIBLE
EMPLOYEES) may participate in the Edison Mission Energy Group during
the Interim Period.
(D) First Hydro Company is the Principal Employer in relation to the
Edison Mission Energy Group.
(E) First Hydro Company is willing to consent to such temporary
participation by AEP Energy Services UK Generation Limited, provided
that such participation will not prejudice the approval of the Scheme.
(F) Terms and expressions defined in the Scheme have the same meanings in
this Deed.
THIS DEED WITNESSES:
1 AEP Energy Services UK Generation Limited covenants with First Hydro
Company that during the Interim Period it will:
1.1 in respect of the Eligible Employees, participate in the Scheme as a
Temporary Participant associated with the Edison Mission Energy Group;
1.2 make and procure that there shall be made the appropriate contributions
in respect of the Eligible Employees as described in the Agreement, and
otherwise comply with and be bound by the terms
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of the Scheme from time to time in effect, insofar as they apply to
AEP Energy Services UK Generation Limited in relation to that Group;
1.3 except in relation to Rules 16 and 17 (where the terms of those Rules
apply), not exercise any power, right or discretion of an Employer
under the Scheme except on such terms (whether as to the payment of
additional contributions or otherwise) as First Hydro Company may
agree; and
1.4 not do or omit to do any act or thing whereby the approval of the
Scheme as an exempt approved scheme or the Edison Mission Energy Group
as a contracted-out scheme would be prejudiced.
2 Any amounts due under Clauses 13(1)(b) to 13(1)(f) must be paid in full
in lump sum form by the end of the month following the month to which
they relate. However, where actuarial factors in respect of amounts due
under Clauses 13(1)(e) and 13(1)(f) have not yet been finally
determined, the payment made at the end of the month following the
month to which it relates will be based on the actuarial factors
previously in force. When the actuarial factors have been finally
determined, AEP Energy Services UK Generation Limited will pay any
balancing payment necessary to reflect the revised actuarial factors as
soon as reasonably practicable after it has been notified of the
balancing payment required. First Hydro Company undertakes to AEP
Energy Services UK Generation Limited that the actuarial factors used
in respect of amounts due from AEP Energy Services UK Generation
Limited under Clauses 13(1)(e) and 13(1)(f) will be the standard
factors applying to any other Employer participating in the Edison
Mission Energy Group.
3 AEP Energy Services UK Generation Limited appoints First Hydro Company
to act on its behalf in relation to the Scheme for the purposes of
dealing with the requirements of the Pensions ▇▇▇ ▇▇▇▇ and the ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and the regulations made thereunder and do all such
acts and execute and sign all such documents on its behalf as First
Hydro Company may reasonably consider necessary or desirable in
connection therewith.
4 AEP Energy Services UK Generation Limited will cease to participate in
the Scheme at the end of the day before the Membership Transfer Date,
whereupon the provisions of Rule 17 or Rule 17C (as appropriate) of the
Scheme in respect of the Edison Mission Group shall apply on the terms
provided for in the Agreement.
5 First Hydro Company agrees to AEP Energy Services UK Generation
Limited's participation in the Scheme provided that such participation
shall not prejudice approval of the Scheme.
6 First Hydro Company shall give notice to the Co-ordinator, the Scheme
Trustees and the Group Trustees of the Edison Mission Energy Group
forthwith on the execution of this Deed in accordance with Clause
2B(4D) and forthwith on AEP Energy Services UK Generation Limited's
ceasing to participate in the Edison Mission Energy Group as a
Temporary Participant at the end of the Interim Period, in accordance
with Clause 2B(4F).
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IN WITNESS whereof this Deed has been duly executed as a deed by the parties on
the date written above.
EXECUTED AND DELIVERED as a Deed )
by FIRST HYDRO COMPANY )
acting by: )
Director
Director/Secretary
EXECUTED AND DELIVERED as a Deed )
by AEP ENERGY SERVICES UK )
GENERATION LIMITED )
acting by: )
Director
Director/Secretary
- 162 -
SCHEDULE 14
"ON AN AFTER TAX BASIS"
1 As stated in Clause 1.9, where any indemnity contained in this
Agreement is expressed to be ON AN AFTER TAX BASIS, then in
calculating the liability of the Payer and determining the
obligations (if any) of the Recipient the following provisions
shall apply.
In this Schedule:
the following terms have the meanings given below:
GROUP MEMBER means any member of EFPL's Group in the event of EFPL
being the Recipient or the relevant Purchaser's Group in the event
of one of the Purchasers being the Recipient;
PAYER means the party required to make payment under the relevant
indemnity;
RECIPIENT means the person to whom the payment under the relevant
indemnity is to be made; and
RELIEF includes, unless the context otherwise requires, any
allowance, credit, deduction, exemption, losses or set-off in
respect of any Taxation or relevant to the computation of any
income, profits or gains for the purposes of Taxation, or any right
to repayment of or saving of Taxation, and any reference to the use
or set off of Relief shall be construed accordingly; and
1.1 references to RELIEFS AVAILABLE TO THE RECIPIENT shall include
all Reliefs that are available for surrender to the Recipient by
any Group Member; and
1.2 references to RELIEFS AVAILABLE TO THE GROUP MEMBER shall include all
Reliefs that are available for surrender to the Group Member by any
member of EFPL's Group in the event of any members of EFPL's Group
being the Group Member or the relevant Purchaser's Group in the event
of any members of the relevant Purchaser's Group being the Group
Member.
2 If any Taxation authority brings into charge to Taxation for the
Recipient any sum paid under the relevant indemnity then the Payer
shall pay to the Recipient such additional amount as shall be required
to ensure that the total amount paid, less the Taxation chargeable on
such amount, is equal to the amount that would otherwise be payable
under the relevant indemnity.
3 Any additional payment under paragraph 3 (an ADDITIONAL AMOUNT) shall
be payable by reference to the accounting period(s) (the RELEVANT
PERIOD(S)) in which the sum referred to in paragraph 3 is actually
charged to Taxation, taking account of Reliefs available to the
Recipient to offset or reduce any such charge to Taxation which would
otherwise arise in accordance with paragraph 5 below. In cases where
the sum in question is finally determined to be chargeable more than 11
months after the beginning of the relevant period, the payment of the
additional amount shall be made, together with an amount equal to
interest (net of any applicable Taxation) at 1% above the base rate of
National Westminster Bank PLC from that date to the date of payment,
within five Business Days of the date the final determination is made.
In other cases where the payment of an additional amount is due, it
shall be payable 11 months after the beginning of the relevant period.
4 The Recipient will be obliged to use Reliefs available to the Recipient
to offset or reduce any charge to Taxation which would otherwise arise
to the Recipient in respect of the sum referred to in paragraph 3 in
the following manner. The Recipient will be obliged to use any Relief
available to the Recipient in the relevant period which is not
otherwise used or usable by the Recipient and/or any Group Member(s) in
the relevant period or in prior periods against any other taxable
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income and chargeable gains of the Recipient and/or any Group Member.
If such a Relief is so utilised in the relevant period by the Recipient
against the receipt of any sum paid to it under any indemnity and, in a
subsequent accounting period or periods, the Recipient and/or any Group
Member suffers a charge to Taxation as a direct result of the inability
to use the Relief which was so utilised in the relevant period (having
utilised all other Reliefs available to the Recipient (and/or all other
Reliefs available to the Group Member) in that subsequent period or
periods), then the Payer shall pay to the Recipient such additional
amount that shall leave the Recipient, taking into account any Taxation
chargeable on such additional amount, with a net amount equal to the
amount of such Taxation suffered by the Recipient and/or the relevant
Group Member. Such additional amount shall be payable by reference to
the accounting period (the ACTUAL PERIOD) in which such charge to
Taxation is actually suffered. In cases where the charge is finally
determined to be suffered more than 11 months after the beginning of
the actual period, the payment of the additional amount shall be made,
together with an amount equal to interest (net of any applicable
Taxation) at 1% above the base rate of National Westminster Bank PLC
from that date to the date of payment, within five Business Days of the
date of the final determination is made. In other cases where the
payment of an additional amount is due, it shall be payable 11 months
after the beginning of the actual period.
5 If the matter which gives rise to the relevant indemnity claim gives
rise to a Relief for the Recipient (including a Relief that may be
surrendered by the Recipient to any Group Member) which would not
otherwise have arisen, the Recipient shall make a payment to the Payer
equal to the amount of Taxation actually saved by the Recipient and/or
any Group Member by virtue of the availability of such Relief.
6 Any payment due under paragraph 6 above shall be payable by reference
to the accounting period (the RELEVANT PERIOD) in relation to which the
Relief in question is utilised to reduce or eliminate Taxation
otherwise payable by the Recipient (and/or the Group Member) and the
Recipient will be obliged to use (and/or procure the use by the Group
Member of) the Relief in question at the earliest opportunity, provided
that nothing in this paragraph 7 shall require the Recipient (and/or
the Group Member) to use (and/or procure the use of) the Relief in
question in priority to any other Reliefs available to the Recipient
(and/or the Group Member). In cases where the Relief in question is
finally determined to have arisen at a time more than 11 months after
the beginning of the relevant period, the payment shall be made
together with an amount equal to interest (net of any applicable
Taxation) at 1% above the base rate of National Westminster Bank PLC
from that date to the date of payment, seven days following the date
when the final determination is made. In other cases where a payment is
due, it shall be payable 11 months after the beginning of the relevant
period.
7 If any payment is made in accordance with this Schedule and it later
transpires that taxable amounts or Taxation saved through use of a
Relief differs from the relevant amount previously assumed to be
chargeable to Taxation or available for Relief, any necessary
adjustment payments shall be made between the Payer and the Recipient.
8 In respect of any payment or subsequent adjustment pursuant to this
Schedule, either party may request that the other shall procure that,
at the requesting party's cost, the other party's auditors shall
provide to the requesting party a letter confirming their satisfaction
that the principles in this Schedule are accurately reflected in the
amounts and timing of payments made between the parties under this
Schedule. To the extent the auditors consider that those principles
have not been so reflected, any necessary adjustment payments shall be
made between the parties.
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SCHEDULE 15
FUEL
PART A
OIL STOCKS
1 OIL STOCKS
EFPL will have in place stocks of oil at the Power Station on the
Completion Date.
2 COMPLETION
On the Completion Date, Purchaser A shall pay EFPL the Estimated Oil
Stock Amount. The oil stocks shall be deemed to be delivered on the
Completion Date and title to the oil stocks shall pass on delivery.
3 DETERMINED STATION OIL STOCK
3.1 As soon as is reasonably practicable after the Completion Date (but not
more than ten Business Days after the Completion Date, unless the
Independent Assessor is not available during this period in which case
as soon as reasonably practicable thereafter) Purchaser A and EFPL
shall jointly appoint a competent independent person (the INDEPENDENT
ASSESSOR) to determine the oil stocks in place at the Power Station as
at the Completion Date (the DETERMINED STATION OIL STOCK), which
determination shall take into account any movement in such stocks
determining between the Completion Date and the date of assessment in
determining the position as at the Completion Date. Purchaser A and
EFPL shall meet the costs of the Independent Assessor equally. The
opinion of the Independent Assessor shall, save in the case of manifest
error, be binding on Purchaser A and EFPL.
3.2 The independent persons shall determine the tonnage and net
calorific value of the oil stocks as follows:
3.2.1 the tonnage of the oil stocks shall be determined by
measuring each oil storage tank with an appropriate
calibrated measurement device making due allowance for
residual sediment and water that does not form part of the
oil stock and converting the measurement results into
volume by the use of appropriate tank calibration table,
such calibration tables to be suitably validated by
competent independent persons. The converted volume
shall then be converted into volume at 15(Degree)C and into
metric Ts (using the density of the oil stocks determined
in accordance with paragraph 3.2.2 of this paragraph 2)
in accordance with the relevant Institute of Petroleum
and/or ASTM methods as appropriate; and
3.2.2 the net calorific value, sulphur content and density of the
oil stocks shall be determined by:
(i) taking representative samples of oil in each storage
tank at the Power Station in accordance with the
prevailing Institute of Petroleum methods of manually
sampling bulk oil storage tanks; and
(ii) providing from each sample taken a net calorific value
and density analysis in accordance with the prevailing
Institute of Petroleum and/or ASTM methods as
appropriate.
3.3 If EFPL has, prior to the Completion Date, made any deposit or payment
in respect of any consignment of oil which will be delivered to the
Power Station after the Completion Date, the
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relevant Purchaser shall fully reimburse EFPL for all amounts paid
in relation to such oil (including transport costs and taxes) within
five Business Days following the Completion Date.
3.4 If a consignment of oil has been delivered to the Power Station prior
to the Completion Date but for which payment has not been made by or on
behalf of EFPL prior to the Completion Date, EFPL shall fully reimburse
the relevant Purchaser for all amounts due in relation to such oil
(including transport costs and taxes) within five Business Days
following the Completion Date.
4 ADJUSTMENT
4.1 When the calculations relating to the Determined Station Oil Stocks
have been finalised by the independent persons, the amount paid by
Purchaser A to EFPL pursuant to paragraph 2 for the oil stocks shall be
adjusted, using the upward or downward price adjustments set out in
paragraphs 4.2, to reflect the price that would have been paid by
Purchaser A on the Completion Date had it been paying for the
Determined Station Oil Stocks. The payment or refund (if any) in
respect of any such adjustment shall be made within 20 Business Days
after the day on which all such results become available.
4.2 NET CALORIFIC VALUE
4.2.1 Heavy Fuel Oil
(i) +190p/GJ for each GJ net calorific value AR above
285,485 GJ, being the amount of gigajoules
paid for on Completion; and
(ii) -190p/GJ for each GJ net calorific value AR below
285,485 GJ, being the amount of gigajoules paid for on
Completion.
4.2.2 GasOil
(i) +315p/GJ for each GJ net calorific value AR
above 16,960 GJ, being the amount of
gigajoules paid for on Completion; and
(ii) -315p/GJ for each GJ net calorific value AR below
16,960 GJ, being the amount of gigajoules paid for on
Completion.
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PART B
COAL STOCKS
1 COAL STOCKS
EFPL will have in place stocks of coal at the Power Station on the
Completion Date.
2 COMPLETION
On the Completion Date, Purchaser A shall pay EFPL the Estimated Coal
Stock Amount. The coal stocks shall be deemed to be delivered on the
Completion Date and title to the coal stocks shall pass on delivery.
3 DETERMINED STATION COAL STOCK
3.1 As soon as is reasonably practicable after the Completion Date (but,
not more than ten Business Days after the Completion Date, unless
the Independent Assessor is not available during this period in
which case as soon as reasonably practicable thereafter) Purchaser A
and EFPL shall jointly appoint a competent independent person (the
INDEPENDENT ASSESSOR) to determine the coal stocks in place at the
Power Station as at the Completion Date (the DETERMINED STATION COAL
STOCK), which determination shall take into account any movement in
such stocks between the Completion Date and the date of assessment
in determining the position as at the Completion Date. Purchaser A
and EFPL shall meet the costs of the Independent Assessor equally.
The opinion of the Independent Assessor shall, save in the case of
manifest error, be binding on Purchaser A and EFPL.
3.2 The independent persons shall determine the tonnage and net
calorific value of the coal stocks as follows:
3.2.1 the tonnage of the Determined Station Coal Stock shall be
determined by:
(i) gathering the data on the coal stocks in place
using calibrated Spectra Precision Geotronics
electronic total stations (traceable to NAMAS); and
(ii) converting such data into tonnage through volumetric
calculations using coal density measurements in
accordance with the relevant British Standard and/or
ISO Standard, as appropriate conducted with the use of
▇▇▇▇ Ground Modelling software; and
3.2.2 the average net calorific value of the Determined Station
Coal Stock shall be determined by:
(i) taking representative core samples from the coal
stocks in place; and
(ii) providing a net calorific value analysis from each core
sample taken, in each case in accordance with the
relevant British Standard and/or ISO Standard as
appropriate.
3.3 The independent persons appointed pursuant to paragraph 3.1 shall
also determine the sulphur content of the Determined Station Coal
Stocks. The sulphur content shall be determined by taking
representative core samples from the coal stocks in place and
providing a sulphur content analysis of each core sample taken, in
each case in accordance with the relevant British Standard and/or
ISO Standard as appropriate.
3.4 If EFPL has, prior to the Completion Date, made any deposit or
payment in respect of any consignment of coal which will be
delivered to the Power Station after the Completion Date, the
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relevant Purchaser shall fully reimburse EFPL for all amounts paid
in relation to such coal (including transport costs and taxes)
within five Business Days following the Completion Date.
3.5 If a consignment of coal has been delivered to the Power Station
prior to the Completion Date but for which payment has not been made
by or on behalf of EFPL prior to the Completion Date, EFPL shall
fully reimburse the relevant Purchaser for all amounts due in
relation to such coal (including transport costs and taxes) within
five Business Days following the Completion Date.
4 ADJUSTMENT
4.1 When the calculations relating to the Determined Station Coal Stocks
have been finalised by the independent persons, the amount paid by
Purchaser A to EFPL pursuant to paragraph 2 for the coal stocks
shall be adjusted, using the upward or downward price adjustments
set out in paragraphs 4.2 and 4.3, to reflect the price that would
have been paid by Purchaser A on the Completion Date had it been
paying for the Determined Station Coal Stocks. The payment or refund
(if any) in respect of any such adjustment shall be made within 20
Business Days after the day on which all such results become
available.
4.2 NET CALORIFIC VALUE
4.2.1 +110p/GJ for each GJ net calorific value AR above 65,641,625
GJ, being the amount of gigajoules paid for on Completion; and
4.2.2 -110p/GJ for each GJ net calorific value AR below 65,641,625
GJ, being the amount of gigajoules paid for on Completion.
4.3 SULPHUR
4.3.1 Where the average sulphur content exceeds 0.6666 kg/GJ net
calorific value AR:
-1.20p/GJ for each 0.01 kg/GJ net calorific value AR above
0.6666 kg/GJ net calorific value AR; and
4.3.2 Where the average sulphur content falls below 0.6666 kg/GJ net
calorific value AR:
+1.20p/GJ for each 0.01 kg/GJ net calorific value AR below
0.6666 kg/GJ net calorific value AR.
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SCHEDULE 16
FORM OF LEGAL OPINION
Effective Date:
[XX] December 2001/ January 2002
The Directors
[XX]
Dear Sirs
RE: SALE AND PURCHASE OF THE BUSINESS CARRIED ON AT AND CERTAIN
ASSETS OF FERRYBRIDGE "C" POWER STATION, KNOTTINGLEY, WEST YORKSHIRE (THE
POWER STATION)
1 We act as legal counsel in Guernsey to Edison First Power Limited
(the COMPANY) and have been requested to give this opinion in
relation to the sale of the Power Station by the Company to [XX] and
[XX] (together hereinafter referred to as the PURCHASERS).
2 For the purposes of giving this opinion we have examined the
following:
(a) copies provided by Messrs Linklaters of the following
documents relating to the Power Station dated [o] September/
October 2001 or to be dated on or about [XX] December 2001/
January 2002:
(i) the Agreement for Sale and Purchase between the
Company, the Purchasers and [XX] as guarantor;
(ii) a disclosure letter from the Company to the
Purchasers; and
(iii) the Technical Services Agreement between the Company
and the Purchasers,
(together the TRANSACTION DOCUMENTS);
(b) a [faxed] copy of the minutes of meetings of the Board of
Directors of the Company held on [XX] September/ October 2001
approving the Company entering into the Transaction Documents
(the MINUTES);
(c) the records held at the Guernsey Company Registry
(GREFFE) as at [XX] December 2001/ January 2002;
(d) the Memorandum and Articles of Association of the
Company as amended by Special Resolutions dated 29 June
1999 and 15 July 1999; and
(e) a certificate from the [Company Secretary] [Director] of the
Company confirming certain details and dated [XX] December
2001/ January 2002 a copy of which is attached hereto (the
CERTIFICATE);
3 We can confirm that the above indicates that:
(a) the Company was incorporated on 27 April 1999 and the
Certificate of Incorporation of the Company bears the
same date;
(b) the Company is a duly registered and validly existing
corporation incorporated in Guernsey pursuant to the
Companies (Guernsey) Laws, 1994 to 1996, as amended under
registration number 35167 and, to the best of our knowledge,
no steps have been, or are being taken to appoint a receiver
or liquidator over, or to wind up, the Company;
- 169 -
(c) the Board or such number amongst them as may be
authorised by the Board may enter into binding obligations
on behalf of the Company;
(d) the Company has the requisite corporate capacity to enter
into the Transaction Documents and to perform its
obligations thereunder;
(e) the execution and delivery of the Transaction Documents have
been duly authorised by all necessary corporate action on
the part of the Company and the Transaction Documents may be
duly executed and delivered on behalf of the Company by any
one Director in accordance with the authorisations set forth
in the Minutes which execution and delivery does not and
will not result in any violation by the Company of any term
of its Memorandum or Articles of Association or of any law
or regulation having the force of law in Guernsey and
applicable to the Company;
(f) the obligations of the Company under the Transaction
Documents constitute legal, valid and binding obligations
of the Company enforceable by the Purchasers;
(g) no consents, licences, approvals or authorisations of any
governmental or other authority or agency in Guernsey are
required by law in connection with the execution, delivery
and performance of the Transaction Documents by the Company;
(h) no filing or registration of the Transaction Documents is
necessary under Guernsey law;
(i) the choice of English law to govern the Transaction
Documents will be recognised and upheld by the Guernsey
courts;
(j) a final and conclusive judgement capable of execution given
by the High Court of England having jurisdiction over a
defendant for a fixed sum (other than for taxes or similar
charges) in respect of the Transaction Documents and after a
hearing of the merits will be recognised and enforced by the
Royal Court of Guernsey without re-examination of the merits
but subject to compliance with procedural requirements
except if (1) obtained by fraud or in contravention of
natural justice (2) in conflict with Guernsey public policy
or (3) in respect of a matter already determined by another
Court having jurisdiction; and
(k) to the best of our knowledge there is no material pending or
threatening action, suit or proceeding before the Royal
Court of Guernsey or before any regulatory authority or body
or arbitrator against the Company.
4 Note that:
(a) matters expressed to be to the "best of our knowledge" are
based on our enquiry of the [Company Secretary] [Director]
and, where relevant, a search of computerised records of
matters which have already been raised in Court maintained
by the Greffe for its own use the accuracy of which is not
officially assured, and have not been otherwise
independently verified;
(b) we have made no enquiry in relation to any document to be
executed by the Company;
(c) applications to wind-up a Guernsey company are not
placed in the records of the Company available for
inspection by the public;
(d) there is no official register of pending actions in Guernsey
available for inspection by the public and information given
in our opinion concerning legal proceedings for winding-up
and pending actions generally is based upon a search of
computerised records of matters which have already been
raised in Court maintained by the Greffe for its own use the
accuracy of which is not officially assured;
- 170 -
(e) the question whether or not any provisions which may be
invalid on account of illegality may be severed from other
provisions in order to save those other provisions will be
determined by the Courts of Guernsey in their discretion;
(f) only certain equitable remedies are available in the
Courts of Guernsey and only certain equitable principles
are recognised;
(g) there is no procedural provision under the laws of Guernsey
to enable the Courts of Guernsey to appoint a receiver or
administrator of assets situate within the jurisdiction
other than upon the application for a liquidator or a
provisional liquidator to be appointed nor is there any
facility whereby a floating or other equitable charge or
debenture would be capable of being enforced against assets
of the borrower situate within the Island of Guernsey;
(h) information available at the Greffe in Guernsey is limited
and there are, in particular, limited obligations on
Guernsey companies to update information held other than at
the date of the annual return;
(i) the Courts of Guernsey may decline to accept jurisdiction in
an action where it is determined that a court of competent
jurisdiction has already made a determination of the
relevant matter or where there is litigation pending in
respect thereof in another jurisdiction and they may stay
proceedings if concurrent proceedings are instituted
elsewhere; and
(j) enforcement of any agreement may be limited by bankruptcy,
insolvency, liquidation, reorganisation and any other laws
of general application relating to or affecting the rights
of creditors and matters of public policy including the
provisions of the Companies (Guernsey) Law 1994.
5 We have assumed that:
(a) the records of the Company available for inspection by the
public on [XX] December 2001/ January 2002 were accurate and
complete (notwithstanding that certain events may have
occurred which have not yet been notified to H.M. Greffier
or that such notification has not yet been made available
for inspection by the public) and remain unchanged at the
date hereof;
(b) all copies of documents examined by us are authentic, and
any signatures and seals thereon are genuine and that
Transaction Documents reviewed in draft form will be
executed and delivered in materially the same form and that
following execution will be dated and delivered by Directors
of the Company in accordance with the authorisations
reflected in the Minutes;
(c) the Transaction Documents have been validly executed by each
other party other than the Company and will be binding on them
in accordance with:
(i) the constitutions and the laws regulating the
existence of the parties thereto other than the
Company; and
(ii) the laws by which the Transaction Documents are
expressed to be governed;
(d) the Minutes accurately reflect the proceedings of the
relevant board meeting duly convened and held in accordance
with the Company's Articles of Association; and
(e) the Certificate is accurate and remains unchanged at the
date hereof.
- 171 -
6 This opinion relates solely to the law of Guernsey and matters
verifiable in Guernsey as at the date hereof and by an examination
of the matters referred to in paragraph 2 above and is solely for
your benefit and may not be disclosed to or relied upon by any
person without our prior agreement in writing.
Yours faithfully
OZANNES
- 172 -
SCHEDULE 17
TRADING STRATEGY
TRANSITIONAL TRADING ARRANGEMENTS
1 GENERAL
1.1 For the period commencing on the 36th day following the date of this
Agreement and ending on the Completion Date, Purchaser A and EFPL
shall discuss any material operational decisions with regard to
entering into any Trading Agreements in respect of the period after
the Completion Date. With a view to achieving this EFPL and
Purchaser A agree that weekly meetings shall be held to discuss such
decisions between their duly authorised representatives.
1.2 Where Purchaser A is required to provide prior approval for any of
the matters specified in this Schedule, such approval will at no
time be unreasonably withheld or delayed and for the avoidance of
doubt it shall be unreasonable to withhold or delay consent to
decisions which would otherwise be taken by EFPL in accordance with
Prudent Operating Practice.
1.3 For the purposes of this Schedule 17 TRADING AGREEMENTS means
contracts for the supply and purchase of electricity by EFPL to and
from counterparties, pursuant to Grid Trade Master Agreements or
otherwise other than any ancillary services contracts.
2 POWER
2.1 EFPL will not, without Purchaser A's prior written approval, agree
any material amendments to any existing Trading Agreement or enter
into any Trading Agreements after the date of this Agreement that
include any volume, whether firm or optional, in respect of the
period after the Completion Date.
2.2 Subject to paragraph 4.2, EFPL and Purchaser A agree that, in
respect of the period between the date of this Agreement and the
Completion Date, the combined average metered generation from both
Fiddler's Ferry and Ferrybridge Power Stations shall not exceed 45
GWh per day.
3 ANCILLARY SERVICES
EFPL, acting as a reasonable and prudent operator, will use its
reasonable endeavours up to the Completion Date to secure ancillary
services contracts with NGC plc that maximise value, irrespective of
whether such contracts are to be performed after the Completion Date.
4 EMISSIONS
4.1 Subject to paragraph 4.2, EFPL will be entitled to emit from both
Fiddler's Ferry and Ferrybridge "C" Power Stations a combined daily
average total of not more than 0.265kTe of SO(2) per day for the
period from 1st October 2001 to the Completion Date.
4.2 In the event of any emergency situation not caused by the actions of
EFPL (except where acting as a reasonable prudent operator)
including, without limitation, an Emergency Instruction being issued
by NGC plc pursuant to the Grid Code (being the code so entitled
issued by NGC plc in accordance with its transmission licence for
the development, maintenance and operation of the NGC plc
transmission system and as amended, supplemented or replaced by NGC
plc) or any analogous or similar instruction issued by a Competent
Authority, the emissions limit prescribed in paragraph 4.1 shall
cease to be effective and such minimum adjustments to the emissions
limit as are necessary to enable EFPL to comply with such emergency
instruction shall take effect.
- 173 -
4.3 EFPL will not operate the Power Station prior to Completion in such
a manner as will consume a disproportionate volume of abstracted
water or will result in the emission of a disproportionate amount of
NOx during the remaining period for which any Environmental Permit
is valid subject to seasonal fluctuations and to any obligation
incumbent upon EFPL to operate the Power Station in such a way as to
satisfy demands which EFPL must meet.
5 COAL
EFPL will not, without Purchaser A's prior approval;
5.1 agree any material amendments to any existing Coal Purchase
Contracts or Coal Sale Contracts including the diversion or delay of
deliveries (as shown in the indicative delivery schedule provided to
Purchaser A by EFPL on 21 September 2001), whether firm or optional;
and
5.2 will not enter into any material new coal contracts,
in respect of the period after the Completion Date.
6 OPERATIONS
6.1 EFPL and Purchaser A, acting in good faith, shall use all reasonable
endeavours to agree (by the Completion Date) the terms of a services
agreement in respect of the provision by EFPL to Purchaser A of a
transitional commercial operations service on a commercial arms
length basis. EFPL and Purchaser A shall use reasonable endeavours
to determine the scope of such services in good faith as soon as is
reasonably practicable following the date of this Agreement. It is
contemplated (without commitment on the part of EFPL) that such
services would include, without limitation:
6.1.1 providing Purchaser A with advice on the processes involved
inthe trading, scheduling and despatch of the output of the
Power Station including balancing mechanism activity; and
6.1.2 scheduling the Power Station to meet the contract position
provided by Purchaser A from time to time, submitting Final
Physical Notifications (as such term is defined in the
Balancing and Settlement Code) in respect of the Power
Station, and trading on a short term basis outside normal
office working hours,
and provided that Purchaser A agrees that any such agreement will
also contain usual commercial terms including payment terms (which
are fair and reasonable in all the circumstances) and indemnities in
favour of and which are acceptable to EFPL, but agreed to by
Purchaser A, for any losses or liability incurred by EFPL in
connection with the performance of the services.
- 174 -
SCHEDULE 18
OPERATING PERMITS
PART 1
OPERATING PERMITS, ETC
In this Schedule 18, where there may be any doubt as to which Purchaser is the
"relevant Purchaser" this issue shall be determined by notice to EFPL from the
two Purchasers setting out which of them is the "relevant Purchaser" as regards
the matter in question.
1 In this Schedule, "Operating Permit" means any permit, consent,
licence, certificate, authorisation or approval required for the
running of the Power Station and associated and ancillary works
(including lagoons) and shall include:
(i) any permit issued pursuant to Part I of the Environmental
Protection ▇▇▇ ▇▇▇▇ or the Pollution Prevention Control ▇▇▇
▇▇▇▇;
(ii) any water abstraction licence;
(iii) any waste management licence;
(iv) any water discharge licence;
(v) any licence or certificate pursuant to the Radioactive
Substance ▇▇▇ ▇▇▇▇; and
(vi) any petroleum licence.
2 EFPL shall until the Completion Date keep any Operating Permit in
full force and effect and shall, to the extent that each Operating
Permit is capable of assignment and/or transfer, and, to the extent
required in order to effect such assignment or transfer, assign
and/or transfer to the relevant Purchaser such Operating Permit. If
the transfer or assignment has not taken place by the Completion
Date, EFPL shall, to the extent permissible, hold the Operating
Permit for the benefit of the relevant Purchaser until it is
transferred or assigned or until it is no longer required for the
running of the Power Station or associated or ancillary works.
3 To the extent that any Operating Permit cannot be assigned or
transferred to the relevant Purchaser, EFPL shall, to the extent
permissible, hold the benefit thereof for the relevant Purchaser
pending the relevant party obtaining a new permit in replacement
therefor. In respect of such permits the relevant Purchaser shall
use its best endeavours to obtain its own Operating Permit as soon
as reasonably practicable.
4 In relation to each Operating Permit and in relation to any
variation or any application EFPL makes as the result of the
assignment and/or transfer of any Operating Permit each party shall
use its best endeavours to provide promptly, at its own cost and
expense (and after the Completion Date at the cost and expense of
the relevant Purchaser), to the other party such information and
assistance (including expert or other appropriate personnel) as that
other party shall from time to time reasonably request and shall
consult and co-operate with the other party (in each case) as
required from time to time for the purpose of enabling the parties:
(i) to comply with the terms of the relevant permit (and any Act
of Parliament relating thereto);
(ii) to agree how to perform, satisfy or comply with any
obligation or liability under a permit (or any Act of
Parliament relating thereto) or any notice, order,
requisition or direction which may be served or made by the
Competent Authority in respect of the permit which requires
- 175 -
the consultation and co-operation of the parties for its
performance, satisfactory compliance; and
(iii) to obtain such new permits or, insofar as the same are
capable of assignment or transfer, effect the transfer or
assignment of Operating Permits to the extent necessary for
the proper performance and functioning of the Power Station.
5 Each of EFPL and the relevant Purchaser shall, upon the happening of
any occurrence or upon the receipt of any invoice, order,
requisition, direction or other thing which may be relevant to or
capable of affecting another party's interest in an Operating Permit
promptly, at its own cost and expense, deliver full particulars
(including, where available, a copy thereof) to each of (as the case
may be) EFPL and the relevant Purchaser.
6 In relation to any application outstanding for a relevant Operating
Permit, which shall include any application outstanding for a
consent under Section 36 of the Electricity ▇▇▇ ▇▇▇▇ and any
planning application, EFPL and the relevant Purchaser shall make a
joint application to the relevant Competent Authority for the
relevant Purchaser to be substituted as applicant. Where the
relevant Purchaser is not substituted as Applicant as soon as
reasonably practicable after the Completion Date, EFPL shall,
subject to appropriate indemnification as to its costs and expenses,
at the direction of the relevant Purchaser, pursue the application
to determination.
7 In the case of an Operating Permit which is held by EFPL after the
Completion Date, the relevant Purchaser shall indemnify EFPL for all
Liabilities resulting from EFPL being the holder of the relevant
Operating Permit which accrue after the Completion Date.
PART 2
OPERATOR B LIMITS
For the avoidance of doubt, after Completion EFPL shall not claim any of the
sulphur dioxide B - limits ascribed to it in the Integrated Pollution Control
Consent.
- 176 -
SCHEDULE 19
RELEVANT EMPLOYEES
SURNAME INITIALS TITLE JOB TITLE PENSION
FINANCE
▇▇▇▇▇ A MISS BUSINESS FINANCIAL MANAGER *
▇▇▇▇▇▇▇ NM MRS FINANCIAL ASSISTANT *
BOOTH C MISS FINANCE TEAM MEMBER *
▇▇▇▇ J MRS FINANCE TEAM MEMBER
YOUNG N MR FINANCE TEAM MEMBER *
`
PROCUREMENT
BENTLEY K MR PROCUREMENT MANAGER *
▇▇▇▇▇ D MR PROCUREMENT INVENTORY CONTROLLER *
▇▇▇▇▇▇▇ ▇▇ MR SENIOR BUYER *
▇▇▇▇▇ ▇▇ MR BUYER *
▇▇▇▇▇▇ ▇▇ MR BUYER *
▇▇▇▇▇▇▇▇▇▇▇ J MR BUYER *
SAFETY
▇▇▇▇▇▇▇ P MS SAFETY HEALTH & ENVIRONMENT MANAGER *
▇▇▇▇▇▇▇ ▇▇ MR SAFETY & ENG'G CO-ORD. *
▇▇▇▇▇ P MR SAFETY, HEALTH & ENV ADVISOR *
HUMAN RESOURCES
▇▇▇▇▇▇ L MRS HUMAN RESOURCES TEAM MANAGER *
▇▇▇▇ H MISS HUMAN RESOURCES OFFICER *
▇▇▇▇▇▇ K MRS ASSISTANT HUMAN RESOURCES OFFICER *
CONDLIFF H MRS OCCUPATIONAL HEALTH NURSE *
▇▇▇▇▇▇▇▇▇▇ D MRS HUMAN RESOURCES ASSISTANT *
SUPPORT TEAM MANAGER
- 177 -
SURNAME INITIALS TITLE JOB TITLE PENSION
▇▇▇▇▇ S MR SUPPORT SERVICES TEAM MANAGER *
BOOTH A MR PLANT SERVICES ENGINEER *
MONTSERRAT D MR TECHNICAL SUPPORT ENGINEER *
▇▇▇▇▇▇▇ I MR TECHNICIAN SUPPORT ENGINEER *
▇▇▇▇▇▇▇▇ M MR MAINTENANCE CONTROLLER *
▇▇▇▇▇▇ J MR MAINTENANCE CONTROLLER *
▇▇▇▇▇ A MR TECHNICIAN *
▇▇▇▇▇▇▇ A MR TECHNICIAN *
▇▇▇▇▇▇ A MR TECHNICIAN *
PERFORMANCE ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇ MR PERFORMANCE ENGINEER *
▇▇▇▇▇▇ ▇▇ MR ASSISTANT PERFORMANCE ENGR *
FRENCH J MR PERFORMANCE TECHNICIAN *
HALL K ▇▇ ▇▇▇▇▇ OPERATOR (GD) *
▇▇▇▇▇ G MR CRAFTSMAN PF SAMPLER ANALYST *
▇▇▇▇▇▇ ▇▇ MR FUEL AND TECH RECORDS OFFICER *
BOILER MAINT
GEE M MR BOILER TEAM MANAGER *
▇▇▇▇▇▇ ▇▇ MR BOILER TECHNICAL ENGINEER *
▇▇▇▇▇▇▇▇▇ AN MR TECHNICAL SUPPORT ENGINEER *
▇▇▇▇▇▇ ▇▇ MR TECHNICAL SUPPORT ENGINEER *
▇▇▇▇▇▇ ▇▇ MR MAINTENANCE CONTROLLER *
▇▇▇▇▇▇ C MR MAINTENANCE CONTROLLER *
▇▇▇▇▇▇▇▇▇▇ W MR MAINTENANCE CONTROLLER *
▇▇▇▇▇▇ ▇▇ MR MAINTENANCE CONTROLLER *
▇▇▇▇▇ ▇▇ MR TECHNICIAN *
▇▇▇▇▇ H MR TECHNICIAN *
ROSE SS MR TECHNICIAN *
HOOK PE MR TECHNICIAN *
BRAIN PR MR TECHNICIAN *
- 178 -
SURNAME INITIALS TITLE JOB TITLE PENSION
AGAR L MR TECHNICIAN *
▇▇▇▇▇▇ ▇▇ MR TECHNICIAN *
▇▇▇▇▇▇ S MR BOILER PROJECT ENGINEER *
HINDE N MR GRADUATE ENGINEER *
TURBINE MAINT
KILFORD R MR TURBINE TEAM MANAGER *
NOBLE A MR TECHNICAL SUPPORT ENGINEER *
▇▇▇▇▇▇ ▇▇ MR TECHNICAL SUPPORT ENGINEER *
▇▇▇▇▇▇ ▇▇ MR TECHNICAL SUPPORT ENGINEER *
▇▇▇▇▇▇▇▇ J MR MAINTENANCE CONTROLLER *
▇▇▇▇▇ R MR MAINTENANCE CONTROLLER *
▇▇▇▇▇▇▇ WO MR MAINTENANCE CONTROLLER *
▇▇▇▇▇▇ G MR MAINTENANCE CONTROLLER *
▇▇▇▇▇▇▇▇ M MR MAINTENANCE CONTROLLER *
STRONG W MR TECHNICIAN *
▇▇▇▇▇▇▇▇▇▇ ▇▇ MR TECHNICIAN *
▇▇▇▇▇▇▇ AM MR TECHNICIAN *
TANKARD M MR TECHNICIAN *
▇▇▇▇ AR MR TECHNICIAN *
SYCAMORE JR MR TECHNICIAN *
▇▇▇▇▇▇▇▇ ▇▇ MR TECHNICIAN *
VALENTINE K MR TECHNICIAN *
▇▇▇▇▇▇▇▇ D MR TECHNICIAN *
WAINMAN NM MR TECHNICIAN *
▇▇▇▇▇▇ M MR TURBINE INDUSTRIAL PLACEMENT -
AIR & BYPRODUCTS
HARDY D MR AIR AND BYPRODUCTS TEAM MANAGER *
▇▇▇▇▇▇▇ K MR TECHNICAL SUPPORT ENGINEER *
▇▇▇▇▇▇▇▇▇▇ DE MR TECHNICAL SUPPORT ENGINEER *
FRANCE K MR MAINTENANCE CONTROLLER *
▇▇▇▇▇ P MR MAINTENANCE CONTROLLER *
- 179 -
SURNAME INITIALS TITLE JOB TITLE PENSION
▇▇▇▇▇▇▇ J MR TECHNICIAN *
▇▇▇▇▇▇▇ J MR TECHNICIAN *
▇▇▇▇▇▇ ▇▇ MR TECHNICIAN *
▇▇▇▇▇▇ G MR TECHNICIAN *
STONES IW MR TECHNICIAN *
WAINMAN E MR TECHNICIAN *
▇▇▇▇▇▇▇▇ ▇▇ MR TECHNICIAN *
SISSONS T MR TECHNICIAN *
▇▇▇▇▇▇▇▇▇▇ E MR TECHNICIAN *
▇▇▇▇▇▇▇ C MR TECHNICIAN *
CONTROL & ELECTRICAL SERVICES
▇▇▇▇▇▇▇ ▇▇ MR CONTROL & MAJOR ELECTRICAL TEAM MANAGER *
▇▇▇▇▇▇▇ ▇▇ MR TECHNICAL SUPPORT ENGINEER *
▇▇▇▇▇▇ C MR TECHNICAL SUPPORT ENGINEER *
▇▇▇▇▇▇▇ T MR TECHNICIAN *
▇▇▇▇▇▇▇▇▇ B MR TECHNICIAN *
▇▇▇▇▇▇ M MR GRADUATE ENGINEER *
▇▇▇▇▇▇ ▇▇ MR TECHNICIAN *
PRODUCTION TRADING
▇▇▇▇▇▇ NC MR PRODUCTION TRADING MANAGER *
LABORATORY
▇▇▇▇▇▇ ▇▇ MR ENV. SERVICES ENGR. *
▇▇▇▇▇▇▇ ▇▇ MR LABORATORY & ENV. TECHNICIAN *
KHAN N MISS CHEMIST *
FUEL AND DUST OPERATIONS
▇▇▇▇▇▇ M MR PLANT OPERATIONS SUPERVISOR *
▇▇▇▇▇▇ EL MR OPERATING TECHNICIAN *
- 180 -
SURNAME INITIALS TITLE JOB TITLE PENSION
▇▇▇▇▇▇ D MR OPERATING TECHNICIAN *
BEAUMONT M MR OPERATING TECHNICIAN *
▇▇▇▇▇▇ ▇▇ MR OPERATING TECHNICIAN *
▇▇▇▇▇ AM MR OPERATING TECHNICIAN *
▇▇▇▇▇▇ ▇▇ MR COAL PLANT CONTROL OPERATOR *
DOY D MR COAL PLANT CONTROL OPERATOR *
TELFORD W MR COAL PLANT CONTROL OPERATOR *
MACKENZIE J MR COAL PLANT CONTROL OPERATOR *
▇▇▇▇▇▇ ▇▇ MR COAL PLANT CONTROL OPERATOR *
▇▇▇▇▇▇ D ▇▇ ▇▇▇▇▇ OPERATOR (GD) -
▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ OPERATOR (GD) *
▇▇▇▇▇▇ P ▇▇ ▇▇▇▇▇ OPERATOR (GD) *
FELLOWS KM ▇▇ ▇▇▇▇▇ OPERATOR (GD) *
FROST AK ▇▇ ▇▇▇▇▇ OPERATOR (GD) *
▇▇▇▇▇▇▇▇ A ▇▇ ▇▇▇▇▇ OPERATOR (GD) *
▇▇▇▇ P ▇▇ ▇▇▇▇▇ OPERATOR (GD) *
▇▇▇▇▇▇▇ F ▇▇ ▇▇▇▇▇ OPERATOR (GD) *
HIRST S ▇▇ ▇▇▇▇▇ OPERATOR (GD) *
▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ OPERATOR (GD) *
▇▇▇▇▇▇▇ D ▇▇ ▇▇▇▇▇ OPERATOR (GD) *
▇▇▇▇▇▇ R ▇▇ ▇▇▇▇▇ OPERATOR (GD) *
▇▇▇▇ R ▇▇ ▇▇▇▇▇ OPERATOR (GD) *
▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ OPERATOR (GD) *
▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ OPERATOR (GD) *
DOUGAL IR ▇▇ ▇▇▇▇▇ OPERATOR (GD) *
▇▇▇▇▇▇ D ▇▇ ▇▇▇▇▇ OPERATOR (GD) *
▇▇▇▇▇▇▇ C ▇▇ ▇▇▇▇▇ OPERATOR (GD) *
▇▇▇▇▇▇▇ M ▇▇ ▇▇▇▇▇ OPERATOR (GD) *
▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ OPERATOR (GD) *
FUEL & SECONDARY PRODUCTS TASK AREA
DUSTING
BONES MG MR OPERATING TECHNICIAN *
- 181 -
SURNAME INITIALS TITLE JOB TITLE PENSION
▇▇▇▇▇▇▇ M ▇▇ ▇▇▇▇▇ TECHNICIAN (GD) *
▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ OPERATOR (GD) *
▇▇▇▇▇▇▇▇▇ P ▇▇ ▇▇▇▇▇ OPERATOR (GD) *
PONSONBY RGG ▇▇ ▇▇▇▇▇ OPERATOR (GD) *
TEESDALE S ▇▇ ▇▇▇▇▇ OPERATOR (GD) *
PRODUCTION TEAM - A SHIFT
▇▇▇▇▇ G MR PRODUCTION SHIFT MANAGER *
▇▇▇▇▇▇ N MR ASSISTANT SHIFT MANAGER *
▇▇▇▇▇▇▇▇▇ ▇▇ MR PRODUCTION SHIFT CONTROLLER *
▇▇▇▇▇▇ G MR PRODUCTION SHIFT TECHNICIAN *
ROLLS BW MR PRODUCTION SHIFT TECHNICIAN *
▇▇▇▇▇▇ ▇▇ MR PRODUCTION SHIFT TECHNICIAN *
▇▇▇▇▇▇ G MR PRODUCTION SHIFT TECHNICIAN *
▇▇▇▇▇ N MR PRODUCTION SHIFT TECHNICIAN *
▇▇▇▇▇▇ K MR PRODUCTION SHIFT TECHNICIAN *
JEWITT S MR PRODUCTION SHIFT TECHNICIAN *
▇▇▇▇▇▇ ▇▇ MR PRODUCTION SHIFT TECHNICIAN *
BATTYE D MR PRODUCTION SHIFT TECHNICIAN *
PERFECT CJ MR PRODUCTION SHIFT TECHNICIAN *
▇▇▇▇▇▇▇ C MR PRODUCTION SHIFT TECHNICIAN *
▇▇▇▇▇▇▇▇ D MR ACCREDITED TRAINEE *
PRODUCTION TEAM - B SHIFT
BARNSLEY R MR PRDUCTION SHIFT MANAGER *
PYCOCK IR MR ASSISTANT SHIFT MANAGER *
PICKLES AB MR ASSISTANT SHIFT MANAGER *
▇▇▇▇▇▇▇▇▇ DA MR PRODUCTION SHIFT CONTROLLER *
LUMB K MR PRODUCTION SHIFT TECHNICIAN *
▇▇▇▇▇ D MR PRODUCTION SHIFT TECHNICIAN *
▇▇▇▇▇▇▇▇▇▇ ▇▇ MR PRODUCTION SHIFT TECHNICIAN *
- 182 -
SURNAME INITIALS TITLE JOB TITLE PENSION
▇▇▇▇▇▇ ▇▇ MR PRODUCTION SHIFT TECHNICIAN *
WILDERS J MR PRODUCTION SHIFT TECHNICIAN *
▇▇▇▇▇▇▇▇ AD MR PRODUCTION SHIFT TECHNICIAN *
▇▇▇▇▇▇ K MR PRODUCTION SHIFT TECHNICIAN *
▇▇▇▇▇▇▇▇▇ AD MR PRODUCTION SHIFT TECHNICIAN *
▇▇▇▇▇▇▇▇▇▇ ▇▇ MR PRODUCTION SHIFT TECHNICIAN *
BAKE D MR PRODUCTION SHIFT TECHNICIAN *
▇▇▇▇▇ T MR PRODUCTION SHIFT TECHNICIAN *
▇▇▇▇▇▇ M MR ACCREDITED TRAINEE *
TOTAL
PRODUCTION TEAM - C SHIFT
▇▇▇▇▇▇▇ ▇▇ MR PRODUCTION SHIFT MANAGER *
▇▇▇▇▇▇▇ J MR ASSISTANT SHIFT MANAGER *
FEARNLEY J MR PRODUCTION SHIFT CONTROLLER *
▇▇▇▇▇▇ L MR PRODUCTION SHIFT TECHNICIAN *
HEELEY A MR PRODUCTION SHIFT TECHNICIAN *
HYDE D MR PRODUCTION SHIFT TECHNICIAN *
▇▇▇▇▇▇ I MR PRODUCTION SHIFT TECHNICIAN *
▇▇▇▇▇▇ G MR PRODUCTION SHIFT TECHNICIAN *
BADDELEY A MR PRODUCTION SHIFT TECHNICIAN *
▇▇▇▇ S MR PRODUCTION SHIFT TECHNICIAN *
▇▇▇▇▇▇▇ ▇▇ MR PRODUCTION SHIFT TECHNICIAN *
PRICE DT MR PRODUCTION SHIFT TECHNICIAN *
▇▇▇▇▇ ▇▇ MR PRODUCTION SHIFT TECHNICIAN *
SCOLTOCK NM MR PRODUCTION SHIFT TECHNICIAN *
▇▇▇▇▇▇▇ D MR ACCREDITED TRAINEE *
PRODUCTION TEAM - D SHIFT
TILL MT MR TECHNICAL SERVICES MGR *
▇▇▇▇▇ W MR ASSISTANT SHIFT MANAGER *
- 183 -
SURNAME INITIALS TITLE JOB TITLE PENSION
▇▇▇▇▇▇ DR MR PRODUCTION SHIFT CONTROLLER *
▇▇▇▇▇▇ ▇▇ MR PRODUCTION SHIFT TECHNICIAN *
HUNTER C MR PRODUCTION SHIFT TECHNICIAN *
LONGBOTTOM I MR PRODUCTION SHIFT TECHNICIAN *
▇▇▇▇▇▇ ▇▇ MR PRODUCTION SHIFT TECHNICIAN *
▇▇▇▇▇▇▇ A MR PRODUCTION SHIFT TECHNICIAN *
BRUNYEE P MR PRODUCTION SHIFT TECHNICIAN *
BOOTH K MR PRODUCTION SHIFT TECHNICIAN *
▇▇▇▇▇▇▇▇▇ ▇▇ MR PRODUCTION SHIFT TECHNICIAN *
GRACE J MR PRODUCTION SHIFT TECHNICIAN *
▇▇▇▇▇▇▇▇▇ ▇▇ MR PRODUCTION SHIFT TECHNICIAN *
▇▇▇▇▇ ▇▇ MR PRODUCTION SHIFT TECHNICIAN *
ALLSOPP D MR TRAINEE OPERATOR *
PRODUCTION TEAM - E SHIFT
VAINES K MR PRODUCTION SHIFT MANAGER *
▇▇▇▇▇ ▇▇ MR ASSISTANT SHIFT MANAGER *
AKID RA MR PRODUCTION SHIFT CONTROLLER *
▇▇▇▇▇▇ ▇▇ MR PRODUCTION SHIFT TECHNICIAN *
▇▇▇▇▇▇ M MR PRODUCTION SHIFT TECHNICIAN *
▇▇▇▇▇▇ ▇▇ MR PRODUCTION SHIFT TECHNICIAN *
▇▇▇▇▇▇▇▇ S MR PRODUCTION SHIFT TECHNICIAN *
▇▇▇▇▇▇ R MR PRODUCTION SHIFT TECHNICIAN *
BURDEN C MR PRODUCTION SHIFT TECHNICIAN *
▇▇▇▇▇▇ ▇▇ MR PRODUCTION SHIFT TECHNICIAN *
▇▇▇▇▇▇▇▇ BE MR PRODUCTION SHIFT TECHNICIAN *
▇▇▇▇▇▇▇▇ ▇▇ MR PRODUCTION SHIFT TECHNICIAN *
▇▇▇▇▇▇ N MR PRODUCTION SHIFT TECHNICIAN *
HOOD S MR PRODUCTION SHIFT TECHNICIAN *
▇▇▇▇▇▇▇▇ ▇▇▇ MR ACCREDITED TRAINEE *
PRODUCTION DAY TEAM
WITHE DA MR PRODUCTION SHIFT MANAGER *
- 184 -
SURNAME INITIALS TITLE JOB TITLE PENSION
▇▇▇▇▇ R MR PRODUCTION SHIFT MANAGER *
▇▇▇▇▇▇▇ ▇▇ MR PRODUCTION DAY CO-ORDINATOR *
WATER TREATMENT PLANT
▇▇▇▇▇▇▇▇▇ P MR WTP TECHNICIAN *
▇▇▇▇▇▇ MD MR WTP TECHNICIAN *
▇▇▇▇▇▇ M MR WTP TECHNICIAN *
▇▇▇▇▇▇▇ ▇▇ MR WTP TECHNICIAN *
GUIDES
▇▇▇▇▇▇ K GUIDE -
▇▇▇▇▇▇ ▇▇ GUIDE -
TOTAL
EME STAFF TRANSFERRED
ALEXANDER G MR MANAGER FUELES GPPP
▇▇▇▇▇▇▇▇ M MR DIRECTOR FUELS GPPP
GREEN A MR ASSOCIATE DESK TOP ANALYST GPPP
RABONE S MR MANAGER FUELS *
EXECUTIVE
▇▇▇▇ ▇▇ MISS PERSONAL ASSISTANT *
▇▇▇▇ R MR STATION MANAGER *
▇▇▇▇▇▇▇▇▇ D MR PRODUCTION MANAGER *
▇▇▇▇▇▇▇▇▇ P MR ENGINEERING MANAGER *
- 185 -
SCHEDULE 20
EDISON MISSION ENERGY GUARANTEE
- 186 -
LINKLATERS
& ALLIANCE
-------------------------------------------------------------------------------
Dated
EDISON MISSION ENERGY
and
AEP ENERGY SERVICES UK GENERATION LIMITED
and
AEPR GLOBAL HOLLAND HOLDING B.V.
DEED OF GUARANTEE
- relating to -
the sale and purchase of the business carried on at
Ferrybridge "C" Power Station, Knottingley, West Yorkshire
LINKLATERS
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Telephone: (▇▇-▇▇) ▇▇▇▇ ▇▇▇▇
Facsimile: (▇▇-▇▇) ▇▇▇▇ ▇▇▇▇
Ref: STRS/ROES
GUARANTEE
THIS DEED is made on [o] 2001
BETWEEN:
(1) EDISON MISSION ENERGY registered in California and whose registered
office is at ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America (the GUARANTOR); and
(2) AEP ENERGY SERVICES UK GENERATION LIMITED registered in England and
Wales with registered number 4277342 and whose registered office is at
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇ ▇▇▇▇▇), ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (PURCHASER A);
and
(3) AEPR GLOBAL HOLLAND HOLDING B.V. registered in The Netherlands and
whose registered office is at 548 ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ (PURCHASER B).
WHEREAS:
(A) Under the terms of a business sale agreement dated on or about the date
of this Deed (SALE OF BUSINESS AGREEMENT) Purchaser A has acquired the
whole of the Business as a going concern except the Property and such
right, title and interest as EFPL has in the Property Agreements, which
have been acquired by Purchaser B.
(B) EFPL is a wholly owned subsidiary of the Guarantor.
(C) The Guarantor has agreed to guarantee the performance by EFPL of
certain of its obligations under the Sale of Business Agreement in
accordance with the terms of this Deed.
IT IS AGREED as follows:
1 INTERPRETATION
In this Deed the headings shall not affect its interpretation and,
unless the context otherwise requires, capitalised expressions in the
Sale of Business Agreement have the same meaning and the provisions in
this Clause 1 apply.
1.1 DEFINITIONS
GUARANTEED OBLIGATIONS means the obligations of EFPL to make any
payments to the Purchasers under the Sale of Business Agreement;
1.2 SUBORDINATE LEGISLATION
Any reference to a statutory provision shall include any subordinate
legislation made from time to time under that provision.
1.3 MODIFICATION ETC. OF STATUTES
Except to the extent that any statutory provision made or enacted after
the date of this Deed would create or increase any liability of the
Guarantor under this Deed, any reference to a statutory provision:
1.3.1 shall include such provision as from time to time modified or
re-enacted or consolidated whether before or after the date of
this Deed so far as such modification, re-enactment or
consolidation applies or is capable of applying to any
transactions entered into under this Deed on or prior to
Completion; and
- 188 -
1.3.2 (so far as liability under such provisions may exist or can
arise) shall include also any past statutory provision (as from
time to time modified, re-enacted or consolidated) which such
provision has directly or indirectly replaced.
1.4 INTERPRETATION ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ shall apply to this Deed in the same way as
it applies to an enactment.
1.5 REFERENCES
References to Clauses are to Clauses of this Deed.
1.6 SINGULAR/PLURAL
References in this Deed (including the definitions in Clause 1.1) to
the singular include the plural and vice versa.
2 DEED AND INDEMNITY
2.1 DEED AND INDEMNITY
In consideration of the Purchasers entering into the Sale of Business
Agreement, the Guarantor hereby unconditionally and irrevocably
guarantees to the Purchasers the proper and punctual performance and
observance by EFPL of the Guaranteed Obligations and agrees to
indemnify the Purchasers against all reasonable losses, liabilities,
costs, expenses, actions, proceedings, and claims which that particular
Purchaser may suffer through or arising from any breach by EFPL of the
Guaranteed Obligations to the extent of any limit on the liability of
EFPL in the Sale of Business Agreement.
2.2 CAP ON LIABILITY
Notwithstanding anything to the contrary contained in this Deed the
aggregate amount covered by the guarantee and indemnity set out in
Clause 2.1 shall not exceed (pound)100,000,000.
2.3 DEED AND INDEMNITY ARE UNCONDITIONAL
The Guarantor's liability under this Clause 2 shall remain in full
force and effect notwithstanding any act, omission, neglect, event or
any matter whatsoever (whether or not known to the Purchasers, EFPL or
the Guarantor). Nothing shall impair or discharge the Guarantor's
liability or obligations under this Clause 2 and this shall apply,
without limitation, in relation to:
2.3.1 anything which would have discharged the Guarantor (wholly or
in part) whether as surety, co-obligor or otherwise or which
would have afforded the Guarantor any legal or equitable
defence;
2.3.2 the existence or validity of any other security taken by either
Purchaser in relation to the Sale of Business Agreement or any
enforcement of or failure to enforce or the release of any such
security;
2.3.3 any amendment to or variation of the Sale of Business Agreement
PROVIDED ALWAYS that the consent of the Guarantor is obtained
for any such amendment or variation;
2.3.4 any release or, or granting of time or any other indulgence to,
EFPL or any other person;
2.3.5 any winding up, dissolution, reconstruction, arrangement or
reorganisation, legal limitation, disability, incapacity or
lack of corporate power or authority or other circumstances of,
or any change in the constitution or corporate identity or loss
of corporate identity by, EFPL or any other person (or any act
taken by either Purchaser in relation to any such event);
- 189 -
2.3.6 any other circumstances which might render void or
unenforceable the obligations, commitments and undertakings of
EFPL under the Sale of Business Agreement, or which might
affect the Purchasers' ability to recover amounts from EFPL; or
2.3.7 any defence or counterclaim which EFPL may be able to assert
against either Purchaser.
2.4 EFPL'S DEFAULT
If and whenever EFPL defaults for any reason whatsoever in the
performance of any Guaranteed Obligation, the Guarantor shall within
10 Business Days of receiving notice of the default perform (or procure
performance of) and satisfy (or procure the satisfaction of) the
Guaranteed Obligation in regard to which such default has been made in
the manner prescribed by the Sale of Business Agreement and so that
each Purchaser shall be put in the same position as it would have been
in if the Guaranteed Obligation had been duly performed and satisfied
by EFPL.
2.5 CONTINUING DEED
2.5.1 This Deed is to be a continuing Deed and accordingly is to
remain in force until all the Guaranteed Obligations have been
performed or satisfied.
2.5.2 This Deed is in addition to and without prejudice to and not in
substitution for any rights or security which the Purchasers
may now or subsequently have or hold for the performance and
observance of the Guaranteed Obligations.
3 GUARANTOR REPRESENTATIONS AND WARRANTIES
3.1 The Guarantor represents and warrants that:
3.1.1 it is a company duly incorporated and validly existing under
the laws of the State of California;
3.1.2 it has the requisite power and authority to enter into and
perform this Deed, which when executed will constitute valid
and binding obligations of the Guarantor, in accordance with
its terms;
3.1.3 the execution and delivery of, and the performance by it of its
obligations under, this Deed does not:
(i) result in a breach of any provision of its memorandum
or articles of association; or
(ii) result in a breach of any agreement, licence or other
instrument or of any order, judgement or decree of any
court, governmental agency or regulatory body to which
it is a party or by which it is bound;
3.1.4 all corporate action required by it validly and duly to
authorise the execution and delivery of, and to exercise its
rights and perform its obligations under, this Deed has been
duly taken; and
3.1.5 as at the date of execution of this Guarantee the Guarantor is
not insolvent or the subject of any (a) bankruptcy proceedings
within the meaning of Chapter 11 of the US Bankruptcy Code; or
(b) any similar proceedings of equivalent materiality.
4 OTHER PROVISIONS
4.1 APPOINTMENT OF PROCESS AGENTS
4.1.1 The Guarantor hereby irrevocably appoints Edison Mission Energy
Limited of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ as
its agents for the service of process in
- 190 -
England in relation to any matter arising out of this Deed,
service upon whom shall be deemed completed whether or not
forwarded to, or received by, the Guarantor.
4.1.2 The Guarantor shall inform the Purchasers, in writing, of any
change in the address of its process agents within five
Business Days of the Guarantor becoming aware of such change.
Nothing contained in this Deed shall affect the right to serve process
in any other manner permitted by law or the right to bring proceedings
in any other jurisdiction for the purposes of the enforcement or
execution of any judgement or other settlement in any other courts.
4.2 DISPUTE RESOLUTION
Any Dispute arising under this Deed shall be dealt with in accordance
with clause 16 of the Sale of Business Agreement as if that clause was
set out in this Deed.
4.3 RELEASE, INDULGENCE, ETC.
Any Liability to any party under this Deed may in whole or in part be
released, compounded or compromised or time or indulgence given by that
party in its absolute discretion without in any way prejudicing or
affecting its rights against other parties under the same or a like
Liability.
4.4 ANNOUNCEMENTS AND CONFIDENTIALITY
4.4.1 The Guarantor undertakes to keep confidential and not directly
or indirectly to disclose to any third party (without the prior
written consent of the Purchasers):
(i) the terms of this Deed; or
(ii) any information disclosed to it relating to the
activities of the other parties.
4.4.2 The obligations contained in Clause 4.4.1 shall not apply if
and to the extent that:
(i) any information is now in, or subsequently enters the
public domain (other than as a consequence of
unauthorised disclosure by the Guarantor or any third
party);
(ii) any information disclosed is at the date of disclosure
already otherwise lawfully in the possession of the
Guarantor;
(iii) the disclosure of any information is required by law,
any regulatory authority or any stock exchange whether
in the United Kingdom or elsewhere or is to a Taxation
Authority in connection with the Taxation affairs of
the disclosing party; or
(iv) the disclosure is made to consultants of and
professional advisers to the Guarantor, provided that
the Guarantor obtains an undertaking from such third
party on terms no less restrictive than the terms set
out in this Clause 4.4 and the Guarantor shall take all
steps reasonably required by the other party to enforce
such undertaking.
4.5 THIRD PARTY RIGHTS
A person who is not a party to this Deed has no right under the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of
this Deed.
4.6 SUCCESSORS AND ASSIGNS
4.6.1 This Deed is personal to the parties to it. Accordingly,
neither party may, without the prior written consent of the
other party, assign the benefit of all or any of the other
party's obligations under this Deed, nor any benefit arising
under or out of this Deed, nor shall the
- 191 -
Purchasers be entitled to make any claim against the Guarantor
in respect of any Loss which it does not suffer in its own
capacity as beneficial owner of the Business.
4.6.2 If Purchaser A sells all or some of the Business to a purchaser
or if Purchaser B sells all or some of its interests in the
property to a purchaser, and, in connection with that sale,
gives any warranties, representations, covenants, indemnities,
undertakings and other assurances to such purchaser, the
relevant Purchaser agrees that it will not be entitled to make
any claim against the Guarantor in consequence of any claim
made by such purchaser against the relevant Purchaser in
respect of such warranties, representations, covenants,
indemnities, undertakings and assurances.
4.7 VARIATION ETC.
No variation of this Deed shall be effective unless in writing and
signed by or on behalf of each of the parties to this Deed.
4.8 COSTS
The Guarantor shall bear all legal, accountancy and other costs and
expenses incurred by it in connection with this Deed. The Purchasers
shall bear all such costs and expenses incurred by them.
4.9 WITHHOLDINGS AND DEDUCTIONS
4.9.1 All sums payable under this Deed by the Guarantor shall be paid
free and clear of all deductions or withholdings whatsoever
save only as provided in this Deed or as may be required by law
and without abatement or set-off (whether equitable or
otherwise).
4.9.2 If any deductions or withholdings to any sums payable by the
Guarantor under this Deed are required by law, the Guarantor
shall (except in the case of payments of interest) be obliged
to pay the Purchasers such sums as will, after such deduction
or withholding has been made, leave the Purchasers with the
same amounts as they would have been entitled to receive in the
absence of any such requirement to make a deduction or
withholding.
4.9.3 If the Purchasers (or either of them) receive a credit for or
refund of any Taxation or other monies payable by it or similar
benefit by reason of any deduction or withholding for or on
account of Taxation or any other matter then it shall reimburse
to the Guarantor such part of such additional payments paid to
it pursuant to Clause 4.9.1 or Clause 4.9.2 as the relevant
Purchaser certifies to the Guarantor will leave it (after such
reimbursement) in no better or worse position than it would
have been if the Guarantor had not been required to make such
deduction or withholding.
4.10 METHOD OF PAYMENT
Wherever in this Deed provision is made for payment by one party to
another, such payment shall be effected by crediting the account
specified in the Payment Account Details of the party entitled to
payment by way of CHAPS on or before the due date for payment unless
the payee by notice to the payer, not later than three Business Days
prior to the due date for payment, elects to be paid by banker's draft
drawn on any international bank reasonably acceptable to the payee and
having an office in London. Payment of such sum shall be a good
discharge to the payer of its obligation to make such payment.
- 192 -
4.11 NOTICES
4.11.1 Any notice or other communication requiring to be given or
served under or in connection with this Deed shall be in
writing and shall be sufficiently given or served if delivered
or sent to the contact details of each party as notified by
them from time to time to the other.
4.11.2 Any such notice or other communication shall be delivered by
hand or sent by courier, fax or prepaid first class post. If
sent by:
(i) hand or courier, such notice or communication shall
conclusively be deemed to have been given or served:
(a) at the time of despatch, in case of service in
the United Kingdom; or
(b) on the following Business Day, in the case of
international service;
(ii) fax, such notice or communication shall be deemed to
have been given or served at the time of despatch
provided a suitable confirmation of such delivery is
received by the sender of such fax and a copy of the
fax containing such notice or communication (together
with such confirmation) is sent by post as soon as
practicable afterward;
(iii) post, such notice or communication shall conclusively
be deemed to have been received:
(a) two Business Days from the time of posting, in
the case of inland mail in the United Kingdom;
or
(b) four Business Days from the time of posting, in
the case of international mail.
4.12 SEVERANCE
If at any time any term or provision of this Deed is or becomes
illegal, invalid or unenforceable, in whole or in part, under the law
of any jurisdiction or any enactment or rule of law, such term or
provision or part shall to that extent be deemed not to form part of
this Deed but the legality, validity or enforceability of any other
term or provision of this Deed (including under the law of any other
jurisdiction) shall not in any way be affected or impaired.
4.13 ENTIRE AGREEMENT
This Deed and the Sale of Business Agreement contain the whole
agreement between the parties relating to their subject matter at the
date of this Deed to the exclusion of any terms implied by law which
may be excluded by contract.
4.14 COUNTERPARTS
This Deed may be executed in any number of counterparts each of which
shall be deemed an original, but all the counterparts shall together
constitute one and the same instrument.
4.15 GOVERNING LAW
This Deed shall be governed by and construed in accordance with English
law.
- 193 -
EXECUTED as a deed by the duly authorised representatives of the parties on the
date set out on page one of this Deed:
EXECUTED as a Deed for and )
on behalf of EDISON MISSION ENERGY )
by: )
Name
Title
EXECUTED as a Deed for and )
on behalf of AEP ENERGY SERVICES UK )
GENERATION LIMITED )
acting by: )
Director
Director/Secretary
EXECUTED as a Deed for and )
on behalf of AEPR GLOBAL HOLLAND )
HOLDING B.V. )
acting by: )
Director
Director/Secretary
- 194 -
SCHEDULE 21
EDISON MISSION ENERGY LEGAL OPINION
- 195 -
[ ]
RE:
Ladies and Gentlemen:
I am in-house counsel to Edison Mission Energy, a Californian corporation (the
COMPANY), in connection with the execution and delivery of, and the consummation
of the transactions contemplated by, the Guarantee, dated as of [ ] (the
GUARANTEE) among the Company and [ ].
In rendering the opinions expressed below, I have examined originals or copies,
certified or otherwise identified to my satisfaction, of the Guarantee. In
addition, I have examined originals or copies, certified or otherwise identified
to my satisfaction, of such records, agreements, instruments and other
documents, and have made such other investigations as I have deemed necessary
for the purposes of this opinion. In examining the documents described above, I
have assumed the genuineness of all signatures, other than those of the Company,
the legal capacity of natural persons, the authenticity of all documents
submitted to me as originals and the conformity to the originals of all
documents submitted to me as copies. I have assumed the due authorisation,
execution and delivery of the Guarantee by all parties thereto other than the
Company.
Based upon and subject to the foregoing it is my opinion that:
1 The Company (a) is a corporation duly organised, validly existing and
in good standing under the laws of California, (b) is duly qualified to
do business as a foreign corporation in each jurisdiction in which the
nature of its business requires it to be so qualified, (c) has full
corporate power and authority to own, lease and purchase its properties
and assets, and to conduct its business as now conducted, and (d) has
the corporate power and authority to execute and deliver the Guarantee.
2 The Guarantee (a) has been duly authorised by all requisite corporate
and, if necessary, stockholder action of the Company, (b) has been duly
executed and delivered by the Company.
3 The execution and delivery by the Company of the Guarantee will not (i)
violate: (A) any provision of the articles of organisation or by-laws
of the Company, (B) any law, statute, rule or regulation or any order
of any government authority applicable to the Company or its
properties, or (ii) be in conflict with, result in a breach of or
constitute (alone or with notice or lapse of time or both) a default
under, or give rise to any right to accelerate or to require the
prepayment, repurchase or redemption of any obligation under any
document to which the Company is a party, except for such violations,
conflicts or defaults as to which waiver or consents have been obtained
or which, in the aggregate, would not affect the ability of the Company
to consummate the transactions contemplated by the Guarantee.
The foregoing opinions are subject to the following additional qualifications:
A. I express no opinion as to the validity, enforceability or legal effect
of the Guarantee under English law.
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B. The opinions expressed herein with respect to the existence and good
standing of the Company are based solely upon good standing certificates
of recent date from the Secretary of State of the State of California.
C. The opinions expressed herein are limited to the laws of the State of
California and the federal laws of the United States of America.
This opinion is being delivered to you in connection with the Guarantee, and may
not be relied upon for any other purpose or by any other person. Without my
prior written consent, this opinion may not be quoted in whole or in part or
otherwise used or referred to in connection with any other transactions and may
not be furnished to or filed with any governmental agency or other person or
entity. The opinions expressed herein are rendered as of the date hereof. I do
not undertake to advise you of matters that may come to my attention subsequent
to the date hereof and that may affect the opinions expressed herein, including
without limitation future changes in applicable law. This letter is my opinion
as to certain legal conclusions as specifically set forth herein and is not and
shall not be deemed to be a representation or opinion as to any factual matters.
Very truly yours,
Counsel
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SCHEDULE 22
IT SUPPORT AGREEMENT
The IT Support Agreement will incorporate, at least, terms to the following
effect:
1 Subject to Clause 3 of this Schedule ▇▇, ▇▇▇▇ shall use its reasonable
endeavours to provide such services in respect of information
technology (including software support) and Computer Equipment at the
Power Station to Purchaser A as are necessary to ensure that such
information technology (including software support) and Computer
Equipment at the Power Station operate as effectively after the
Completion Date as they operated immediately before the Completion Date
(the IT SUPPORT SERVICES).
2 The parties will negotiate in good faith to agree the specific services
which will comprise the IT Support Services.
3 Notwithstanding Clause 1 of this Schedule, but subject to any other
agreement between the parties (including the Technical Support
Agreement) EFPL shall not be required, after the Completion Date, to
provide any services in respect of information technology (including
software support) and Computer Equipment that Purchaser A could
reasonably supply itself, or which it could reasonably engage a third
party to provide, even if such service was being provided by EFPL
immediately prior to the Completion Date.
4 Purchaser A shall pay, compensate and fully indemnify EFPL (on an
after-tax basis) for all time, labour costs (including employees of
EFPL employees or of any member of EFPL's Group), expenses, materials,
components, equipment, costs and charges of any nature which are paid,
suffered incurred by EFPL, or any member of EFPL's Group, their agents,
employees or contractors in carrying-out any and all aspects of the IT
Support Services upon receipt of a valid invoice from EFPL from time to
time together with any supporting time sheets and invoices which
Purchaser A reasonably requests (IT SUPPORT INVOICE). Purchaser A shall
pay to EFPL such sums as are stated in the relevant IT Support Invoice
within 20 days of the date of the IT Support Invoice.
5 Any amount that is properly payable to EFPL pursuant to the IT Support
Agreement and which remains unpaid after the date when the payment was
due shall bear interest thereafter, such interest to accrue from day to
day at the rate of 2% above the prevailing base lending rate published
from time to time by the National Westminster Bank PLC from (and
including) the date on which the amount is due until (but excluding)
the date upon which the amount due is actually received.
6 The Purchasers shall indemnify and hold EFPL, and any members of the
EFPL Group and its and their officers, directors, agents and employees,
harmless from and against all claims, actions, expenses, losses,
liabilities, damages, fines, penalties, costs and demands arising
directly out of or directly concerning the IT Support Services. Without
limiting the foregoing, the Purchasers acknowledge that the above
indemnity shall apply to any claim, action, cost, expense, loss,
liability, damage, fine, penalty or demand brought or caused by any of
its licensees, employees, agents or sub-contractors against EFPL or its
employees or agents arising directly from the IT Support Services. EFPL
acknowledges that the above indemnity shall not apply where such claim,
action, cost, expense, loss, liability, damage, fine, penalty or demand
arises as a result of gross negligence on the part of EFPL or its
officers, directors, or employees.
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7 For the avoidance of doubt, nothing in Clause 4.3 of the Agreement
shall require EFPL to provide human, technical or management resources
which exceed the resources deployed for the benefit of the Power
Station prior to the signing of this Agreement.
8 Purchaser A will notify EFPL of any applicable security, health and
safety requirements of which it is, or becomes, aware and EFPL agrees
to comply with such requirements.
9 The IT Support Agreement shall commence on the Completion Date and
continue until the earliest of:
o IT Finalisation is achieved;
o the expiration of 2 months from the Completion Date; or
o EFPL vacates the Data Centre.
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EXECUTED as an agreement by the duly authorised representatives of the parties
on the date set out on page one of this Agreement:
SIGNED by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ )
on behalf of EDISON FIRST POWER LIMITED )
in the presence of: )
/s/ Rosamund Stock
SIGNED by /s/ ▇. ▇▇▇▇▇ )
on behalf of AEP ENERGY SERVICES )
UK GENERATION LIMITED )
in the presence of: )
/s/ Morn's ▇▇▇▇▇▇▇▇▇▇
SIGNED by /s/ ▇. ▇▇▇▇▇ )
on behalf of AEPR GLOBAL HOLLAND )
HOLDING B.V. )
in the presence of: )
/s/ Morn's ▇▇▇▇▇▇▇▇▇▇
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SIGNED by /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ )
on behalf of AMERICAN ELECTRIC )
POWER COMPANY, INC. )
in the presence of: )
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