Exhibit 4.8
This instrument was prepared by, and
after recording, please return to:
Xxxx Xxxxxxx, Esq.
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
LEASEHOLD DEED TO SECURE DEBT, ASSIGNMENT
OF RENTS AND LEASES AND SECURITY AGREEMENT
by
TENASKA GEORGIA PARTNERS, L.P.
(as "Grantor")
-to-
THE CHASE MANHATTAN BANK, AS COLLATERAL AGENT
(as "Grantee")
Dated as of: November 10,1999
THIS INSTRUMENT IS A "CONSTRUCTION MORTGAGE"
AS THAT TERM IS DEFINED IN ARTICLE 9, SECTION 313(1)(C)
OF THE UNIFORM COMMERCIAL CODE, TITLE 11 OF THE
CODE OF GEORGIA, AND SECURES AN OBLIGATION INCURRED
FOR THE CONSTRUCTION OF AN IMPROVEMENT UPON LAND.
NOTE TO GEORGIA TAX COMMISSIONER: THIS INSTRUMENT SECURES A BOND
ISSUE AND LETTERS OF CREDIT REIMBURSEMENT AGREEMENTS. THEREFORE,
THIS INSTRUMENT IS NOT SUBJECT TO INTANGIBLE RECORDING TAX PURSUANT
TO CHAPTER 560-11-8-.14(D) OF THE RULES OF THE DEPARTMENT OF REVENUE,
PROPERTY TAX DIVISION.
LEASEHOLD DEED TO SECURE DEBT, ASSIGNMENT OF RENTS AND
LEASES AND SECURITY AGREEMENT
THIS LEASEHOLD DEED TO SECURE DEBT, ASSIGNMENT OF RENTS AND LEASES AND
SECURITY AGREEMENT (as the same may from time to time be extended, consolidated,
modified, restated and renewed, this "SECURITY DEED") made and delivered as of
this 10th day of November, 1999, by TENASKA GEORGIA PARTNERS, L.P., a Delaware
limited partnership having an address at 0000 Xxxxx 000xx Xxxxxx, Xxxxx 000,
Xxxxx, Xxxxxxxx 00000-0000 (together with its permitted successors and assigns,
the "GRANTOR"), to THE CHASE MANHATTAN BANK a bank organized and existing under
the laws of the State of New York and having an address at 000 Xxxx 00xx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000, not individually, but solely in its
capacity as Collateral Agent under the Collateral Agency Agreement (as
hereinafter defined) for the benefit of the Senior Parties (together with its
permitted successors and assigns, the "GRANTEE").
W I T N E S S E T H:
WHEREAS, pursuant to the terms of that certain Lease dated as of
November 1, 1999 (the "LEASE") between Development Authority of Heard County
("LESSOR") and Grantor, as lessee, Grantor is the holder of (i) a leasehold
estate (the "SITE LEASEHOLD ESTATE") affecting those certain pieces or parcels
of land which are more particularly described on EXHIBIT A annexed hereto
(collectively, the "SITE"), and (ii) the Project Easements (as hereinafter
defined). The Lease was delivered to the Clerk of the Superior Court of Heard
County (the "RECORDER'S OFFICE") for recording prior to the recordation of this
Security Deed;
WHEREAS, pursuant to the terms of that certain Ground Lease dated as of
November 10, 1999 (the "CONSTRUCTION LEASE") between Tenaska, Inc. ("TENASKA"),
as lessor, and Grantor, as lessee, Grantor is the holder of a leasehold estate
(the "CONSTRUCTION LEASEHOLD ESTATE") affecting that certain piece or parcel of
land which is more particularly described on EXHIBIT B annexed hereto (the
"LAY-DOWN SITE"). A memorandum of the Construction Lease was delivered to the
Recorder's Office for recording prior to the recordation of this Security Deed;
WHEREAS, Grantor will obtain funds to finance a portion of the cost of
the development, construction and equipping of a 936 megawatt natural gas-fired
(with oil as the backup fuel) electric power generation facility, consisting of
6 F-class simple cycle combustion engines on the Site (the "PROJECT") through
the issuance, from time to time, of certain securities (the "SECURITIES") issued
pursuant to the Indenture (as hereinafter defined);
WHEREAS, in connection with the commencement of commercial operation of
the Project, Grantor is required to deliver the Debt Service Reserve Letter of
Credit (the "DSR LETTER OF CREDIT") and The Toronto Dominion Bank ("TTDB"), as
issuing bank, has agreed to issue the DSR Letter of Credit subject to the terms
and conditions contained in the Debt Service Reserve Letter of Credit and
Reimbursement Agreement, dated as of November 10, 1999 (as amended, supplemented
or modified and in effect from time to time, THE "DSR LOC REIMBURSEMENT
AGREEMENT"), among each of the banks and financial institutions parties thereto
and TTDB, as
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issuing bank and as agent for such banks and financial institutions
(in such capacity as agent, and together with its successors and assigns, the
"DSR LOC Provider");
WHEREAS, in connection with the Grantor's obligations under the Power
Purchase Agreement (as defined in the Common Agreement hereafter referred to),
the Grantor may deliver the PPA Letter of Credit (the "PPA LOC") and The Toronto
Dominion Bank, as issuing bank, has agreed to issue the PPA LOC subject to the
terms and conditions contained in the PPA Letter of Credit and Reimbursement
Agreement, dated as of November 10, 1999 (as amended, supplemented or modified
and in effect from time to time, the "PPA LOC REIMBURSEMENT AGREEMENT"), among
each of the banks and financial institutions parties thereto and TTDB, as
issuing bank and as agent for such banks and financial institutions (in such
capacity as agent, and together with its successors and assigns, the "PPA LOC
PROVIDER");
WHEREAS, Grantor, the Collateral Agent and the Senior Parties entered
into a Collateral Agency and Intercreditor Agreement dated as of November 1,
1999 (the "COLLATERAL AGENCY AGREEMENT") to set forth the rights of Grantor and
the Senior Parties as to the Collateral;
WHEREAS, an Agreement as to Certain Undertakings, Common
Representations, Warranties, Covenants and Other Terms dated as of November 1,
1999 (the "COMMON AGREEMENT") has been entered into among (as defined in the
Common Agreement) Grantor, the Collateral Agent and the Senior Parties, which
Agreement sets forth certain representations, warranties and covenants of the
Grantor relating to the Project;
WHEREAS, it has been agreed that Grantor's obligations under the
Indenture, the Common Agreement, the DSR LOC Reimbursement Agreement, the PPA
LOC Reimbursement Agreement, and all other debt constituting Senior Debt (as
defined in the Common Agreement) none of which other Senior Debt is presently
evidenced by a note and all future modifications, extensions and renewals of
such obligations, including without limitation the payment of the indebtedness
evidenced by the Securities (such obligations collectively, the "SECURED
OBLIGATIONS"), shall be secured by, inter alia, a deed to secure debt,
assignment of rents and leases and security agreement by Grantor of the
Collateral (as hereinafter defined).
NOW, THEREFORE, in consideration of the premises set forth above, and
for other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged and FOR THE PURPOSE OF SECURING the payment and performance
of the Secured Obligations, which Secured Obligations may increase, decrease and
increase again, from time to time, Grantor and Grantee hereby agree as follows:
G R A N T I N G C L A U S E S:
In order to secure the Secured Obligations, including without limitation
the payment by Grantor of the indebtedness evidenced by the Securities, in the
aggregate principal amount of up to Two Hundred Seventy-five Million and 00/100
Dollars ($275,000,000.00) lawful money of the United States (the unpaid balance
of which, if not sooner paid, will be due and payable on February 1, 2030), and
any and all sums, amounts and expenses incurred hereunder and under the
Indenture, the DSR LOC Reimbursement Agreement and the PPA LOC Reimbursement
Agreement by Grantee according to the terms hereof or thereof and all future
modifications,
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extensions and renewals of such obligations, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Grantor does hereby grant, bargain, sell, warrant, alien, remise, assign,
transfer, set over, deliver, confirm and convey unto Grantee, its successors and
assigns upon the terms and conditions of this Security Deed, with power of sale
and right of entry as provided hereinbelow, all of the right, title and interest
of Grantor in and to the following property described in Granting Clauses (a)
through (l) inclusive (all of which is hereinafter collectively referred to as
the "COLLATERAL" or the "MORTGAGED PROPERTY") and Grantor covenants that it
shall pay and perform the Secured Obligations when due in accordance with the
provisions of the appropriate Financing Documents:
(a) THE LEASEHOLD ESTATE: (i) the Site Leasehold Estate in the
Site and the Facility, created under the Lease and all other, further or
additional estates, rights, title or interests which may at any time be acquired
by Grantor by reason of amendments, modifications, supplements, extensions and
renewals of the Lease, and (ii) the Construction Leasehold Estate in the
Lay-down Site created under the Construction Lease and all other, further or
additional estates, rights, title or interest which may at any time be acquired
by Grantor by reason of amendments, modifications, supplements, extensions and
renewals of the Construction Lease;
(b) THE EASEMENTS: (i) that certain easement granted pursuant to
the terms of that certain Access and Utility Easement Agreement dated as of
November 10, 1999, between Tenaska and Grantor (the "TENASKA ACCESS EASEMENT")
affecting those certain pieces or parcels of land which are more particularly
described on EXHIBIT C annexed hereto (the "TENASKA EASEMENT PREMISES"), which
Tenaska Access Easement was subsequently assigned by Grantor to Lessor pursuant
to the Deed and thereafter demised by Lessor to Grantor pursuant to the terms of
the Lease. The Tenaska Access Easement was delivered to the Recorder's Office
for recording immediately prior to the recordation of this Security Deed; (ii)
those certain easements granted pursuant to the terms of those certain easement
agreements set forth on EXHIBIT D annexed hereto (collectively, the "PIPELINE
EASEMENTS") affecting those certain pieces or parcels of land which are more
particularly described on EXHIBIT E annexed hereto (the "PIPELINE EASEMENT
PREMISES"; the Tenaska Easement Premises and the Pipeline Easement Premises
collectively, the "EASEMENT PREMISES"),which Pipeline Easements were
subsequently assigned by Grantor to Lessor pursuant to the Deed and thereafter
demised by Lessor to Grantor pursuant to the terms of the Lease; (iii) that
certain easement granted pursuant to that certain Easement (Access and
Utilities) dated as of November 10, 1999, between Xxxxxx Xxxxxxx Xxxxx and Xxxxx
Xxxx Xxxxx and Grantor (the "XXXXX EASEMENT") affecting those certain pieces or
parcels of land which are more particularly described on EXHIBIT F annexed
hereto (the "XXXXX EASEMENT PREMISES"), which Xxxxx Easement was subsequently
assigned by Grantor to Lessor pursuant to the Deed and thereafter demised by
Lessor to Grantor pursuant to the Lease, which Xxxxx Easement was delivered to
the Recorder's Office for recording prior to the recordation of this Security
Deed; and (iv) all other easements, rights-of-way, gores of land, streets, ways,
alleys, passages, sewer rights, water courses, water rights and powers, mineral
rights, ditches, ditch rights, reservoirs and reservoir rights, and all
privileges, tenements, hereditaments and appurtenances whatsoever, of any nature
whatsoever, in any way belonging, relating or appertaining to the Site or the
Facility, or which hereafter shall in any way belong, relate or be appurtenant
thereto (said easements, rights and privileges described in this paragraph (b),
hereinafter referred to, collectively, as the "EASEMENTS");
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(c) TOGETHER WITH: subject to the provisions of this Security
Deed, all right, title and interest of Grantor in and to all awards or payments,
including interest thereon, and the right to receive the same, which may be made
with respect to the Mortgaged Property or any part thereof, from the exercise of
the right of eminent domain, either temporary or permanent (including any
transfer made in lieu of the exercise of said right) or for any changes to the
grades of streets or as a result of any other damage to the Mortgaged Property
or any part thereof;
(d) TOGETHER WITH: all of the following property of Grantor: all
contractual and other rights of the Grantor under and pursuant to the Lease and
the Construction Lease, to the extent not otherwise included in the foregoing
clauses, including, without limitation, in the case of the Lease, (i) any and
all rights to succeed to the ownership of the Project (and any interests
therein), (ii) any and all rights of the Grantor to receive amounts or proceeds
in respect of the foreclosure sale or other exercise of remedies with respect to
the Project (and any interests therein), whether or not any option to purchase
the Project or such interest shall have been exercised, and any security
interests and liens on such amounts or proceeds, and (iii) any and all options
of the Grantor to purchase the DAHC's right, title and interest in and to the
Project, and including, without limiting the generality of the foregoing, all
rights granted to or held by the Grantor in Articles X, XI and XII of the Lease;
(e) TOGETHER WITH: subject to the provisions of the Collateral
Agency Agreement, the Common Agreement and the Indenture and this Security Deed,
all right, title and interest of Grantor in and to all insurance or other
proceeds of, and any unearned premiums on, any insurance policies required to be
maintained by Grantor under the Indenture and/or the Lease, including, without
limitation, the right, subject to the terms of the Indenture and this Security
Deed, to receive and apply the proceeds of any insurance, judgments or
settlements made in lieu thereof;
(f) TOGETHER WITH: subject to the terms of the Collateral Agency
Agreement, the Common Agreement and the Indenture, all right, title and interest
of Grantor in and to all "general intangibles", "accounts" and "proceeds",
together with the replacements and substitutes thereof and profits therefrom (as
such terms are defined in the Uniform Commercial Code (as hereinafter defined)),
with respect to which Grantee shall have, in addition to all rights and remedies
provided in ARTICLE V hereof, all of the rights and remedies of a "secured
party" under the Uniform Commercial Code other than any right, title and
interest of Grantor in and to any account created under the Indenture or the
Collateral Agency Agreement;
(g) TOGETHER WITH: subject in all respects to the provisions of
ARTICLE IV hereof, all right, title and interest of Grantor in, to and under any
and all Real Property Leases (as hereinafter defined) now or hereafter entered
into, including without limitation, all right, title and interest of Grantor to
receive the rents, issues and profits of the Mortgaged Property thereunder,
including without limitation Project Revenues (as defined in the Common
Agreement) (collectively, "INCOME") together with all books and records which
contain payments made under the Real Property Leases;
(h) TOGETHER WITH: all of Grantor's right, title and interest in
and to all plans and specifications prepared for construction or operation of
the Facility or other development of the Collateral (including all amendments,
modifications, supplements, general
5
conditions and addenda thereof or thereto) and all studies, data and drawings
(including without limitation architectural, engineering, mechanical and
electrical drawings) related thereto, and all contracts and agreements of
Grantor relating to the aforesaid plans and specifications or to the aforesaid
studies, data and drawings or to the construction or operation of the Facility;
(i) TOGETHER WITH: to the extent permitted by Legal Requirements
(as hereinafter defined), all of Grantor's right, title and interest in and to
all present and future Permits (as hereinafter defined); PROVIDED, that any of
the Permits which by their terms or by operation of Law would become void,
voidable, terminable or revocable or would constitute a breach or default
thereunder if pledged or assigned hereunder or if a security interest therein
were granted hereunder are expressly excepted and excluded from the lien and
term of this Security Deed to the extent necessary to avoid such voidness,
voidability, terminability or revocability;
(j) TOGETHER WITH: all of Grantor's right, title and interest in
and to all development, construction management and maintenance contracts,
including, but not limited to, (i) the Project Documents (as defined in the
Common Agreement), (ii) that certain Electric Substation Site Option Agreement
dated as of November 10, 1999 between Grantor and Tenaska with respect to up to
eight (8) acres of that certain real property identified and described as
"Parcel A-2" on EXHIBIT C annexed hereto and (iii) warranties, indemnities,
undertakings and guarantees of contractors, subcontractors, materialmen, vendors
and suppliers relating to the Facility;
(k) TOGETHER WITH: to the extent permitted by applicable law, all
of Grantor's rights and remedies at any time arising under or pursuant to
Section 365(h) of the United States Bankruptcy Code, including, without
limitation, all of Grantor's rights to remain in possession of the Collateral;
and
(l) TOGETHER WITH: all and singular the tenements, hereditaments
and appurtenances belonging to the Mortgaged Property or any part thereof hereby
mortgaged or intended so to be or in anywise appertaining thereto (including,
but not limited to, all income, rents and profits arising therefrom), all
streets, alleys, passages, ways, water courses, all other rights, liberties and
privileges of whatsoever kind or character, the reversions and remainders, and
all the estate, right, title, interest, property, possession, claim and demand
whatsoever, as well as at law and equity, of Grantor in and to all of the
foregoing or any or every part thereof.
TO HAVE AND TO HOLD the Mortgaged Property and all parts, rights,
members and appurtenances thereof, to the use, benefit and behoof of Grantee,
and its successors and assigns, forever; and Grantor covenants that Grantor is
lawfully seized and possessed of the Mortgaged Property as aforesaid and has
good right to convey the same that the same is unencumbered except for those
matters expressly set forth in EXHIBIT G attached hereto and by this reference
made a part hereof, and that Grantor does warrant and will forever defend the
title thereto against the claims of all persons whomsoever, except as to those
matters set forth in said EXHIBIT G attached hereto. This conveyance is intended
to operate and is to be construed as a deed passing title to the Mortgaged
Property to Grantee and is made under those provisions of the existing laws of
the State of Georgia relating to deeds to secure debt, and not as a mortgage,
and is given to secure the Secured Obligations.
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ARTICLE I
CERTAIN DEFINITIONS
Section 1.1. Capitalized terms not otherwise defined in this Security
Deed shall have the meaning given to such terms in the Common Agreement. For
purposes of this Security Deed, the following terms shall have the following
meanings, unless the context of this Security Deed requires otherwise:
(a) "Adjusted Base Rate" means the interest rate which is the
higher of (x) the Federal Funds Rate plus .5% and (y) the Reference Rate.
(b) "Additional Collateral" has the meaning provided in SECTION
5.1.
(c) "Affected Property" has the meaning provided in SECTION 2.5.
(d) "Business Day" means any day other than a Saturday, Sunday or
other day on which banks in New York, New York are authorized or required by law
or executive order to remain closed or a day on which the Corporate Trust Office
of the Trustee is closed for business.
(e) "Collateral" has the meaning provided in the Granting
Clauses.
(f) "Collateral Agency Agreement" has the meaning provided in the
Recitals.
(g) "Deed" shall mean that certain Limited Warranty Deed between
Tenaska Georgia Partners, L.P., as grantor, to Development Authority of Heard
County, as grantee, dated as of November 10, 1999 and delivered to the
Recorder's Office for recording immediately prior to the recordation of the
Lease.
(h) "Easement Facilities" means all pipes, valves, conduits,
pumps, lines, processors, transformers, works, facilities, equipment, devices,
buildings and improvements of every kind and nature located on or within any
Easement Premises.
(i) "Easements" has the meaning provided in the Granting Clauses.
(j) "Environmental Liabilities and Costs" means all liabilities,
obligations, losses, damages (whether actual, consequential or punitive), costs
and expenses (including, without limitation, all reasonable fees, disbursements
and expenses of counsel, experts and consultants), fines, penalties and
sanctions, whether based on or in contract, tort, implied or express warranty,
strict liability or criminal or civil statute (including, without limitation,
any of the foregoing arising under any Environmental Law, Permit, or order or
agreement with any Governmental Authority or other Person), and which relate to
any environmental, health or safety condition, or a Release or threatened
Release.
(k) "Environmental Lien" means any lien in favor of any
Governmental Authority for Environmental Liabilities and Costs.
(l) "Equipment" has the meaning provided in clause (n) below.
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(m) "Event of Default" means any of the events or circumstances
described as such in ARTICLE VI hereof.
(n) "Facility" means (i) all buildings, structures and
improvements of every nature whatsoever presently or hereafter located, erected
or placed upon the Site or the Easement Premises comprising the Project and
leased by Lessor to Grantor pursuant to the terms of the Lease, and all
extensions, additions, improvements, betterments, renewals, substitutions and
replacements of or to any of the foregoing (collectively, the "Improvements")
and (ii) all machinery, appliances, apparatus, equipment, fittings, furniture,
fixtures, interior improvements, decorations, piping, conduits, chattels,
articles of personal property and other property of every kind and nature
whatsoever owned by Lessor and now or hereafter leased to Grantor pursuant to
the terms of the Lease, located on the Site, the Lay-down Site, the
Improvements, the Easement Premises or any appurtenances thereof, and used in
connection with the present or future operation and occupancy of the Project,
together with any and all extensions, additions, improvements, betterments,
renewals, substitutions and replacements to any of the foregoing, and all of the
right, title and interest of Grantor in and to any such personal property or
fixtures which, to the fullest extent permitted by law, shall be conclusively
deemed fixtures and a part of the real property encumbered hereby (collectively,
the "EQUIPMENT"; the Improvements and said Equipment being herein referred to,
collectively, as the "FACILITY");
(o) "Federal Funds Rate" means, for any period, a fluctuating
interest rate PER ANNUM equal for each day during such period to the weighted
average of the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York or, if such rate is not so published for
any day that is a Business Day, the average of the quotations for such day on
such transactions received by The Chase Manhattan Bank from federal funds
brokers of recognized standing selected by it.
(p) "Grantee" means the Grantee herein named or, at any given
time, the holder or holders of this Security Deed, and its or their respective
heirs, executors, administrators, successors and assigns.
(q) "Grantor" means the Grantor herein named, any subsequent
owner or owners of the Mortgaged Property, and its or their respective heirs,
executors, administrators, successors and permitted assigns.
(r) "Impositions" means all duties, taxes, assessments, dues,
charges, fees, excises, levies, license and permit fees, impositions, water
rates, sewer rents and other charges, ordinary or extraordinary, whether
foreseen or unforeseen, of any kind whatsoever, (i) now or hereafter levied or
assessed or imposed against or upon or in respect of the Mortgaged Property, or
(ii) which now is or may be levied or assessed against the Income by virtue of
any present or future Legal Requirement, as well as all income taxes,
assessments and other governmental charges levied and imposed by any
Governmental Authority upon or against Grantor or in respect of the Mortgaged
Property or any part thereof, to the extent the same is in lieu of or in
substitution of the items described in clause (i). Taxes shall not include any
taxes imposed on
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the net income, gross receipts or any franchise taxes of Grantee, except as
provided in the Indenture.
(s) "Improvements" has the meaning provided in clause (n) above.
(t) "Income" has the meaning provided in the Granting Clauses.
(u) "Indemnitee" has the meaning provided in SECTION 2.11.
(v) "Indenture" means the Indenture of Trust, dated as of
November 1, 1999 between Grantor and The Chase Manhattan Bank, as Trustee.
(w) "Legal Requirement(s)" means all present and future laws,
ordinances, orders, judgments, rules, regulations and requirements of any
Governmental Authority or arbitrator applicable to the Grantor or the Mortgaged
Property, including, without limitation, Environmental Laws, the Employee
Retirement Income Security Act of 1974 (as amended from time to time), zoning
and subdivision laws and ordinances and building codes, restrictive covenants,
and development orders, which at any time are or may be applicable to the
Mortgaged Property or any part thereof, including, without limitation, the
Americans With Disabilities Act (42 U.S.C. ss.12101 ET SEQ.), as amended, and
the regulations promulgated thereunder.
(x) "Mortgaged Property" has the meaning provided in the Granting
Clauses.
(y) "Permit" means any permit, approval, authorization, license,
consent, variance or permission required from or by a Governmental Authority for
the use, operation, maintenance and restoration of the Mortgaged Property or any
part thereof in accordance with all Legal Requirements, including, without
limitation, a certificate of occupancy.
(z) "Permitted Liens" has the meaning provided in the Common
Agreement.
(aa) "Project Easements" means, collectively, the Tenaska Access
Easement and the Pipeline Easements.
(bb) "Real Property Leases" means any lease, sublease, rental
agreement, occupancy agreement, license, franchise or concession agreement or
any other form of occupancy or use agreement, however denominated, written or
oral, affecting the Mortgaged Property, or any part thereof, including, without
limitation, the Project Documents now or hereafter entered into and all
modifications, amendments, renewals, extensions, replacements, guarantees and
other agreements affecting the same.
(cc) "Reference Rate" means the variable rate of interest PER
ANNUM officially announced or published by The Chase Manhattan Bank from time to
time as its "reference rate," such rate being set by The Chase Manhattan Bank as
a general reference rate of interest, taking into account such factors as The
Chase Manhattan Bank may deem appropriate, it being understood that many of The
Chase Manhattan Bank's commercial or other loans are priced in relation to such
rate, that it is not necessarily the lowest or best rate actually charged to any
customer and that Grantor may make various commercial or other loans at rates of
interest having no relationship to such rate. Each change in the Reference Rate
shall be effective as of
9
the opening of business on the date announced as the effective date of the
change in such "reference rate."
(dd) "Release" means any release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge, dispersal, leaching or
migration into the indoor or outdoor environment or into or out of any property,
including, without limitation, the movement of Hazardous Materials through or in
the air, soil, surface water, ground water or property or as may be otherwise
defined under Environmental Laws.
(ee) "Remedial Action" means any and all actions required by any
Environmental Law or voluntarily undertaken to (i) clean up, remove, treat or in
any other way address Hazardous Materials in the indoor or outdoor environment,
(ii) prevent the Release or threatened Release or minimize the further Release
of Hazardous Materials so that they do not migrate or endanger or threaten to
endanger public health or welfare or the indoor or outdoor environment or (iii)
perform pre-remedial studies and investigations and post-remedial monitoring and
care.
(ff) "Required Senior Parties" has the meaning provided in the
Common Agreement.
(gg) "Secured Obligations" has the meaning provided in the
Granting Clauses.
(hh) "Security Deed" means this document, as the same may be
amended, modified, supplemented, assigned by Grantee, extended, renewed,
restated and in effect from time to time.
(ii) "Senior Parties" has the meaning provided in the Common
Agreement.
(jj) "Site" has the meaning provided in the Granting Clauses.
(kk) "State" means the State of Georgia.
(ll) "Tenant(s)" means all of the parties to, and Persons
obligated to Grantor under, any Real Property Lease.
(mm) "Trigger Event" has the meaning provided in the Common
Agreement.
(nn) "Uniform Commercial Code" means the Uniform Commercial Code
as in effect from time to time in the State.
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF GRANTOR
Grantor represents and warrants to Grantee as follows:
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Section 2.1. PAYMENT AND PERFORMANCE OF SECURED OBLIGATIONS. The maximum
principal indebtedness secured by this Security Deed is Two Hundred Seventy-five
Million and 00/100 Dollars ($275,000,000.00), provided, however, that such
limitation shall not limit the security of this Security Deed with respect to
future advances. This Security Deed secures future advances. All future advances
under the Securities, this Security Deed, the Indenture and the other Financing
Documents shall have the same priority as if the future advance was made on the
date that this Security Deed was recorded. Grantor hereby acknowledges and
agrees that the Secured Obligations include, and that this Security Deed is
given to secure, advances that may be made by Grantee, the PPA LOC Provider, the
DSR LOC Provider and any other Senior Party to Grantor and obligations to
Grantee that may be incurred by Grantor after the execution of this Security
Deed ("FUTURE ADVANCES") and that this Security Deed shall secure all future
advances of every kind and whenever occurring, including, without limitation,
interest on the principal indebtedness, the payment of taxes, assessments,
maintenance charges, insurance premiums, costs incurred for the protection of
the Mortgaged Property and the lien of this Security Deed, expenses incurred by
the Grantee by reason of default by the Grantor, and advances made to enable
completion of the Improvements.
Section 2.2. WARRANTY OF TITLE, ETC. Grantor represents and warrants
that:
(a) (i) it is the sole and lawful owner of the Site Leasehold Estate,
(ii) it has a good and valid leasehold estate in and to the Site and the
Lay-down Site, (iii) it is lawfully possessed of the Easements, (iv) Grantor has
good and valid rights of access to the Site for the operation of the Facility,
(v) the Grantor is the sole and lawful owner of the Easement Facilities, (vi)
its Site Leasehold Estate and Construction Leasehold Estate and its interest in
the Facility and Easements are free and clear of all liens, charges and
encumbrances of every kind and character, other than the Permitted Liens, (vii)
it is not required to obtain the consent of any third-party which has not been
obtained prior to encumbering and conveying the Mortgaged Property as provided
herein, (viii) this Security Deed is and will remain a valid and enforceable
first lien on the Mortgaged Property, subject only to the Permitted Liens, (ix)
it has not previously assigned the Income or any of its other rights in and to
the Mortgaged Property, (x) there are no offsets or defenses to this Security
Deed or to the Secured Obligations, and (xi) that there are no unpaid claims of
mechanics, materialmen or contractors that may result in the entry of a lien on
the Mortgaged Property;
(b) the Facility is or will be situated on the Site and certain of the
Easement Premises and the use thereof is or will be in full compliance in all
material respects with all Legal Requirements; and
(c) the Grantor has all easements and rights necessary for Grantor's
construction and operation of the Facility in a manner which is consistent with
the Common Agreement, the Indenture and the Transaction Documents.
Section 2.3. MORTGAGED PROPERTY IS FREE FROM DAMAGE. Grantor represents
and warrants that the Mortgaged Property is free from material damage caused by
fire, explosion, accident or any other casualty (whether or not covered by
insurance) and there are no condemnation or similar proceedings pending or, to
the best of Grantor's knowledge, threatened which affect the Mortgaged Property.
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Section 2.4. UTILITIES. Grantor represents and warrants that the
Facility is served by, or will be served by, and have, or will have, the benefit
of all utilities, services, facilities, easements and rights required for its
operation of the Facility in accordance with the Common Agreement, the Indenture
and the Transaction Documents.
Section 2.5. ENVIRONMENTAL INDEMNIFICATION. (a) Grantor agrees to
defend, indemnify and hold harmless Grantee and its respective co-trustees and
affiliates, and the directors, officers, employees, consultants and advisers and
agents of any of the foregoing (each of the foregoing being an "INDEMNITEE")
from and against any and all claims, damages, liabilities, obligations, losses,
penalties, actions, judgments, suits, costs, disbursements and expenses of any
kind or nature (including, without limitation, reasonable fees and disbursements
of one firm of counsel to all such Indemnitees) which may be imposed on,
incurred by or asserted against any such Indemnitee in connection with or
arising out of any costs or liabilities incurred in connection with any matter
affecting the Affected Property (as defined below) pursuant to any Environmental
Law, or any Release or use, storage, treatment, transportation , disposal or
handling of any Hazardous Materials on, from, under or affecting all or any part
of the Affected Property, including, without limitation, (i) all Environmental
Liabilities and Costs arising from or connected with the Affected Property, (ii)
damages (whether actual, consequential or punitive) arising from any personal
injury (including wrongful death) or property damage (real or personal) alleged
to have resulted from any Release of Hazardous Materials on, upon or into all or
any part of the Affected Property, (iii) any costs and liabilities incurred in
connection with the investigation, removal, cleanup and/or remediation of any
Hazardous Material present upon all or any part of the Affected Property, (iv)
to the extent required by law, additional costs to treat or to take necessary
precautions to protect against the release or migration of Hazardous Materials
on, from, under or affecting the Mortgaged Property into the air, any body of
surface or subsurface water or any surrounding areas, and (v) any costs or
liabilities incurred in connection with any Environmental Lien (except, with
respect to any of the foregoing, to the extent the same results from the gross
negligence or willful misconduct of any Indemnitee) (the Mortgaged Property and
any surrounding areas to the extent affected by a Release from the Mortgaged
Property are hereinafter collectively referred to as the "AFFECTED PROPERTY").
The indemnity contained in this SECTION 2.5 shall not be limited, impaired or
terminated by (1) any extensions of time for performance under any of the
Financing Documents, (2) any sale or assignment of this Security Deed, (3) any
sale or transfer of all or any part of the Mortgaged Property, (4) any
foreclosure of this Security Deed or deed to the Mortgaged Property in lieu of
foreclosure, or exercise of any other remedies under this Security Deed, (5) the
satisfaction, release or termination of this Security Deed, (6) the release or
substitution in whole or in part of any other security for the Secured
Obligations or (7) Grantee's participating in the management of, or taking
possession of, or title to, the Mortgaged Property or any part thereof whether
by foreclosure or otherwise, to the extent any such matters set forth in this
SECTION 2.5(A) arose prior to Grantee's taking possession of, or title to, the
Mortgaged Property or any portion thereof.
(b) Grantee agrees that, in the event any investigation,
litigation or proceeding alleging matters of the nature set forth in paragraph
(a) above is asserted or threatened in writing or instituted against it or any
other Indemnitee, or any remedial, removal or response action is requested of it
or any of its officers, directors, agents and employees, for which any
Indemnitee is entitled to an indemnity or defense hereunder, such Indemnitee
shall promptly notify Grantor in writing after obtaining any notice of the
foregoing, provided that a failure to so notify Grantor
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in writing after obtaining any notice of the foregoing shall not relieve Grantor
of any liability hereunder unless such failure prejudices Grantor's ability to
defend against such action or proceeding or take other necessary or appropriate
action to remedial or mitigate the liability involved. Notwithstanding anything
to the contrary in this SECTION 2.5, if Grantor has actual knowledge of any of
the foregoing, independent of Indemnitee's notice, Grantor shall in no event be
relieved of any obligation under this SECTION 2.5. In the event that any
Indemnitee requests Grantor to defend against such investigation, litigation or
proceeding or requested remedial, removal or response action, Grantor shall
promptly do so, and such Indemnitee shall have the right to have legal counsel
of its choice participate in such defense. No action taken by legal counsel
chosen by such Indemnitee in defending against any such investigation,
litigation or proceeding or requested remedial, removal or response action shall
vitiate or in any way impair Grantor's obligation hereunder to otherwise
indemnify and hold harmless such Indemnitee.
(c) Grantee shall give Grantor reasonable prior notice of any
settlement, compromise or similar disposition by Grantee of any investigation,
litigation or proceeding as to which Grantor has an obligation to defend and
Grantee will not settle, compromise or effect a similar disposition of any
matter unless such settlement, compromise or disposition (i) includes an
unconditional release of the Grantor from all liability relating thereto and
(ii) does not include a statement as to, or an admission of fault, culpability
or failure to act, by or on behalf of Grantor.
(d) The obligations of Grantor under this SECTION 2.5 shall
survive the repayment and performance of the Secured Obligations and the
cancellation of this Security Deed.
Section 2.6. TRANSFER OR ENCUMBRANCE OF THE MORTGAGED PROPERTY. Except
to the extent permitted the Common Agreement, no part of the Mortgaged Property
shall be terminated, sold, transferred, leased, assigned, licensed, disposed of
or conveyed or, except for Permitted Liens, further encumbered, mortgaged or
hypothecated, whether voluntarily or involuntarily, directly or indirectly, or
by operation of law or otherwise, without the prior written consent of Grantee
in each instance. To the extent any new real property or real property interest
(referred to herein as the "new property") is acquired by Grantor, Grantor shall
(i) execute and deliver a deed to secure debt in the form and substance of this
Security Deed and all other documents necessary to create a first lien on the
new property in favor of Grantee, (ii) deliver to Grantee title insurance
insuring the new deed to secure debt free and clear of all Liens other than
Permitted Liens, (iii) deliver to Grantee a survey of the new property prepared
by a registered land surveyor and complying with the minimum detail requirements
adopted by the American Land Title Association and the American Congress on
Surveying and Mapping, and (iv) deliver to Grantee an opinion of Grantor's
counsel, in customary form and substance and reasonably acceptable to Grantee.
All costs and expenses incurred by Grantor and Grantee by virtue of the
foregoing, including, but not limited to, title insurance premiums, recording
fees, mortgage and other taxes, survey costs and Grantee's attorneys' fees and
disbursements, shall be paid by Grantor on demand.
Section 2.7. AFTER-ACQUIRED PROPERTY. All right, title and interest of
Grantor in and to all improvements, betterments, renewals, substitutes and
replacements of, and all additions, accessions and appurtenances to, the
Mortgaged Property hereafter acquired, constructed,
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assembled or placed by the Grantor on the Site, the Facility, the Easement
Premises and the Easement Facilities, and all conversions of the security
constituted thereby, immediately upon such acquisition, construction, assembly,
placement or conversion, as the case may be, and in each such case without any
further mortgage, conveyance or assignment or other act of Grantor, shall become
subject to the lien of this Security Deed as fully and completely, and with the
same effect, as though now owned by Grantor and incorporated in the Granting
Clauses hereof.
Section 2.8. FURTHER ASSURANCES. Grantor shall, at Grantor's sole cost
and expense, and at the request of Grantee, do, execute, acknowledge and deliver
all further acts, mortgages, assignments, notices of assignment, transfers and
assurances as Grantee shall from time to time reasonably require (i) for filing,
registering or recording this Security Deed and all UCC financing and
continuation statements delivered in connection with the Secured Obligations;
(ii) for better assuring, assigning, transferring and confirming unto Grantee
the Mortgaged Property or such property which Grantor may be or may hereafter
become bound to convey, mortgage or assign to Grantee, including, without
limitation, amendments and supplements to this Security Deed and UCC financing
and continuation statements, the filing or recordation of which are, in the
determination of Grantee, necessary or appropriate to create, perfect or
maintain the existence or perfected status of any security interest granted
pursuant to this Security Deed or any other Financing Document; and (iii) for
carrying out the intention or facilitating the performance of the terms of this
Security Deed or any other Financing Document. Grantee is hereby authorized to
file such UCC Financing Statements and Continuation Statements as it may deem
necessary or appropriate to evidence, maintain, perfect and continue the
security interest granted by this Security Deed without notice to or the
signature or consent of the Grantor.
Section 2.9. LITIGATION. Grantor shall promptly furnish to Grantee
written notice of, and copies of any documents or papers requested by Grantee
relating to, any actions, suits or proceedings pending, or to the knowledge of
Grantor threatened, against and, which could have a Material Adverse Effect on
Grantor or all or any portion of the Mortgaged Property.
Section 2.10. REPRESENTATIONS. All representations and warranties
contained in this ARTICLE II are made as of the date of this Security Deed.
ARTICLE III
CONDEMNATION
Section 3.1. Grantor, immediately upon obtaining knowledge of the
institution of any proceedings for the condemnation of the Mortgaged Property or
any portion thereof, shall notify Grantee of the pendency of such proceedings.
Grantee, at its election and in its discretion, may participate in any such
proceedings and Grantor from time to time shall deliver to Grantee all
instruments requested by it to permit such participation. All awards from a
condemnation (or other taking or purchase in lieu thereof) of the Mortgaged
Property or any portion thereof shall be deposited and applied in accordance
with the Collateral Agency Agreement.
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ARTICLE IV
LEASES AND INCOME;
ASSIGNMENT AS FURTHER SECURITY
Section 4.1. ASSIGNMENT, RIGHTS OF GRANTEE. Grantor hereby collaterally
assigns, transfers and sets over to Grantee, as further security for the Secured
Obligations, all of Grantor's right, title and interest in and to all Real
Property Leases and Income. The foregoing assignment shall be fully operative
and create, and is intended and shall be construed to create, an absolute
assignment for security purposes without any further action on the part of
either party. Grantee hereby gives Grantor a revocable license to collect the
Income and to retain, use and enjoy the same and to exercise the rights granted
herein. The license herein granted may be revoked by Grantee by written notice
to Grantor upon the occurrence and during the continuation of any Event of
Default.
Section 4.2. GRANTOR'S RIGHTS AND REMEDIES. Upon the occurrence and
during the continuance of any Event of Default under this Security Deed or any
other Financing Document, Grantee shall have all the rights, remedies and
benefits granted to it under this Security Deed with respect to the Real
Property Leases and Income. If a Trigger Event shall have occurred and be
continuing and Grantee shall have received the written request from the Required
Senior Parties pursuant to Section 5.2(b) of the Collateral Agency Agreement,
and in addition to the right to collect, use and apply Income as more fully
described below, and whether or not a foreclosure has or shall have been
instituted, Grantee shall have the unqualified and absolute right to enter upon
and take possession of, and manage and operate, any part of or all of the
Mortgaged Property and to carry on the business and exercise the rights and
powers of Grantor with respect to the Mortgaged Property. If a Trigger Event
shall have occurred and be continuing and Grantee shall have received the
written request from the Required Senior Parties required pursuant to Section
5.2(b) of the Collateral Agency Agreement, Grantee shall also have the
unqualified and absolute right, whether or not Grantee takes possession of the
Mortgaged Property, to receive the Income and to use and apply the Income in
accordance with the terms of the Collateral Agency Agreement provided that
Grantee shall first have the right to apply the Income to (i) the operation and
maintenance of the Mortgaged Property and (ii) the payment of the Secured
Obligations until the same have been repaid in full. Grantee shall not, if in
fact it chooses to exercise any or all of the rights given to Grantee pursuant
to this ARTICLE 4 (collectively, the "Rights"), be liable to Grantor for any act
done or anything omitted to be done by it in good faith in connection with the
management or operation of the Mortgaged Property, except for the consequences
of its own gross negligence or willful misconduct.
Section 4.3. POWER OF ATTORNEY. Grantor hereby irrevocably constitutes
and appoints Grantee (acting itself or by its agents, servants or attorneys, or
by such officers or agents as it may appoint, or by a court-appointed receiver)
its true and lawful attorney and agent, coupled with an interest, to undertake
and execute, if a Trigger Event shall have occurred and be continuing and
Grantee shall have received the written request from the Required Senior Parties
pursuant to Section 5.2(b) of the Collateral Agency Agreement, any or all of the
Rights with the same force and effect as if undertaken or executed by Grantor.
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Section 4.4. UNTIL AND UNLESS LICENSE REVOKED. Until and unless the
license granted in SECTION 4.1 is so revoked, Grantor agrees to collect and
receive the Income and to apply the Income in accordance with the Collateral
Agency Agreement or otherwise to the payment of the Secured Obligations, and all
expenses that Grantor may be authorized to make under this Security Deed or the
other Financing Documents. In no event shall the execution and delivery of this
Security Deed or the exercise by Grantee (if Grantee so chooses) of any of the
Rights, release Grantor from any of its obligations under any of the Real
Property Leases or be deemed to be a waiver by Grantee or its successors and
assigns of the right to enforce the Secured Obligations in strict accordance
with the terms of this Security Deed or the other Financing Documents.
Section 4.5. NO FURTHER ASSIGNMENT. Grantor covenants that so long as
any of the Secured Obligations shall remain unpaid, Grantor will make no
assignment, pledge or other disposition of, nor encumber, any of the Real
Property Leases or the Income except as permitted under the terms of the Common
Agreement and the Collateral Agency Agreement.
Section 4.6. NOTICE TO TENANTS. Grantor, for the benefit of Grantee and
each Tenant, hereby covenants and agrees that a notice in writing by Grantee to
Tenants advising them that Grantor has suffered an Event of Default hereunder
and requesting that all future payments of rent, additional rent or other
charges under the Real Property Leases be made to Grantee (or its agent) or to
accept performance by Grantee of Grantor's obligations under the Real Property
Leases, as the case may be, shall be construed as conclusive authority to such
Tenants that such payments are to be made to Grantee (or its agent) or such
performance is to be accepted from Grantee (or its agent). Such Tenants shall be
fully released and protected by Grantor in making such payments to or accepting
such performance from Grantee (or its agent); and Grantor hereby waives any
claims against such Tenants and irrevocably constitutes and appoints Grantee the
attorney-in-fact and agent of Grantor, coupled with an interest, for the purpose
of endorsing the consent of Grantor on any such notice.
Section 4.7. ATTORNMENT BY TENANTS. In the event that Grantee or its
designee acquires the Mortgaged Property pursuant to exercise of power of sale
or foreclosure, or pursuant to a deed in lieu of foreclosure, each party under a
Real Property Lease shall, at the option of Grantee, attorn to any Person in the
place of Grantor under the applicable Real Property Lease without change in the
terms or other provisions thereof. To the extent permitted by applicable Legal
Requirements, such Person shall not be (i) liable for any act or omission of any
Person preceding such Person under such Real Property Lease (including Grantor),
(ii) subject to any offsets or defenses against any Person preceding such Person
(including Grantor), or (iii) bound by (a) any payment of rent or additional
rent made more than one month in advance of its due date, (b) any obligation to
make any payment to, or to undertake or complete any construction for, such
Tenant, or (c) any amendment or modification of any such Real Property Lease
made without Grantee's consent and which, pursuant to the Financing Documents,
required Grantee's consent. Each party to a Real Property Lease shall, upon
request of Grantee or such Person, execute and deliver instruments confirming
such attornment, but Grantor shall have no liability if such party fails to do
so.
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ARTICLE V
SECURITY AGREEMENT
Section 5.1. THIS SECURITY DEED A SECURITY AGREEMENT; FILINGS. This
Security Deed constitutes both a deed to secure debt and a "security agreement"
within the meaning of the Uniform Commercial Code. Grantor (as Debtor) hereby
grants to Grantee (as Creditor and Secured Party) a security interest in all of
Grantor's right, title and interest in and to (i) so much of the Equipment or
any other part of the Mortgaged Property as is considered or as shall be
determined to be personal property or "fixtures" (as defined in the Uniform
Commercial Code) and not real estate, together with all replacements thereof,
substitutions therefor or additions thereto, and (ii) all general intangibles
and accounts in any way relating to the Mortgaged Property (said Equipment,
personal property, fixtures, general intangibles and accounts being sometimes
hereinafter referred to as the "ADDITIONAL COLLATERAL"), subject only to
Permitted Liens, Grantor and Grantee acknowledge and agree that all references
in this Security Deed to Collateral shall include, but shall not be limited to,
the Additional Collateral. Grantor shall execute any and all such documents,
including without limitation financing statements pursuant to the Uniform
Commercial Code ("FINANCING STATEMENTS"), as Grantee may reasonably request, to
preserve and maintain the priority of the lien created hereby on property which
may constitute or be deemed to be Additional Collateral, and shall pay to
Grantee on demand any reasonable expenses incurred by Grantee in connection with
the preparation, execution and filing of any such documents. Grantor shall, at
its sole cost and expense, execute and file all Financing Statements and
refilings and continuations of filings previously executed by Grantor as Grantee
reasonably deems necessary or advisable to create, preserve and protect said
lien; and Grantor hereby authorizes and empowers Grantee as its attorney-in-fact
to execute any such Financing Statements or filings, on Grantee's behalf, if
Grantor should fail to do so. The foregoing power of attorney is irrevocable and
is coupled with an interest.
Section 5.2. RIGHT TO PROCEED AGAINST ADDITIONAL COLLATERAL UPON THE
OCCURRENCE OF AND DURING CONTINUATION OF EVENT OF DEFAULT. If a Trigger Event
shall have occurred and be continuing and Grantee shall have received the
written request from the Required Senior Parties pursuant to SECTION 5.2(B) of
the Collateral Agency Agreement, in addition to any other rights and remedies
which it may have, Grantee shall have and may exercise immediately and without
demand, any and all rights and remedies granted to a secured party upon default
under the Uniform Commercial Code, including, without limiting the generality of
the foregoing, the right to take possession of the Additional Collateral or any
part thereof and sell the same at one or more public or private sales, and to
take such other measures as Grantee may deem necessary for the care, protection
and preservation of the Additional Collateral. The parties agree that, in the
event Grantee shall elect to proceed with respect to the Additional Collateral
separately from the other Mortgaged Property unless a greater period shall then
be mandated by the Uniform Commercial Code, ten (10) days' notice of the sale of
the Additional Collateral shall be reasonable notice. Grantee's reasonable
expenses of retaking, holding, preparing for sale, selling and the like,
including, but not limited to, reasonable, actual attorneys' fees and other
legal expenses, shall be assessed against Grantor, added to the Secured
Obligations and secured by the lien of this Security Deed. Grantor agrees that
it will not remove or permit to be removed from the Mortgaged Property any of
the Additional Collateral without the prior written consent of Grantee except as
hereinabove provided or as permitted by the Common Agreement. The
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proceeds of any disposition of the Additional Collateral, or any part thereof,
shall be applied by Grantee in accordance with the terms of the Collateral
Agency Agreement.
Section 5.3. REPLACEMENTS, ETC. All replacements, renewals, accessions,
attachments and additions to the Additional Collateral shall be and become
immediately subject to the security interest of this Security Deed and the
provisions of this ARTICLE V. Grantor warrants and represents that the
Additional Collateral now is, and covenants to ensure that all replacements
thereof, substitutions therefor or additions thereto will be, free and clear of
liens, encumbrances or security interests of others except Permitted Liens.
ARTICLE VI
DEFAULTS
Section 6.1. The term "EVENT OF DEFAULT", as used in this Security Deed,
shall mean the occurrence of and continuation of a Trigger Event.
ARTICLE VII
REMEDIES
Section 7.1. GRANTEE'S POWER OF ENFORCEMENT. If a Trigger Event shall
have occurred and be continuing and Grantee shall have received the written
request from the Required Senior Parties required pursuant to SECTION 5.2(B) of
the Collateral Agency Agreement, Grantee may and in accordance with the
procedures prescribed, and to the extent permitted, by applicable law, either
with or without entry or taking possession as hereinabove provided or otherwise,
and without regard to whether or not the Secured Obligations shall be due and
without prejudice to any other right of Grantee, proceed by any appropriate
action or proceeding: (i) to institute proceedings for the complete or partial
foreclosure of this Security Deed and to sell, at one or more sales as an
entirety or in separate lots or parcels, the Mortgaged Property, as hereinafter
provided or pursuant to law, (ii) to sell for cash or upon credit the Mortgaged
Property or any part thereof and all estate, claim, demand, right, title and
interest of Grantor therein and rights of redemption thereof, at one (1) or more
sales, in its entirety or in portions, at such time and place, upon such terms
and after such notice thereof as may be required or permitted by law or in the
absence of any such requirements, as Grantee (acting in accordance with an
opinion of counsel upon which Grantee may conclusively rely) may deem
appropriate, and in the foreclosure sale, of less than all of the Mortgaged
Property, this Security Deed shall continue as a lien on the remaining portion
of the Mortgaged Property, (iii) to split this Security Deed into two (2) or
more deeds to secure debt and to institute proceedings for the complete or
partial foreclosure of any one or more of such deeds to secure debt, with such
unforeclosed deeds to secure debt remaining a lien on the Mortgaged Property and
to sell, at one or more sales as an entirety or in separate lots or parcels, the
Mortgaged Property, as hereinafter provided or pursuant to law, subject to such
deeds to secure debt which were not foreclosed, (iv) to cumulatively pursue any
other remedy now or hereafter available to it in equity, at law, by virtue of
statute or otherwise, (v) to exercise in respect of any part or parts of the
Additional Collateral, all of the rights and remedies available to a secured
party upon default under the applicable provisions of the
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Uniform Commercial Code in effect in the State, and (vi) to enforce any and all
remedies of the Grantor under the Project Contracts.
Section 7.2. ENTRY; RECEIVERSHIP. If a Trigger Event shall have occurred
and be continuing and Grantee shall have received the written request from the
Required Senior Parties pursuant to SECTION 5.2(B) of the Collateral Agency
Agreement, Grantee may and in accordance with the procedures prescribed, and to
the extent permitted, by applicable law, either with or without entry or taking
possession as hereinabove provided or otherwise, and without regard to whether
or not the Secured Obligations shall be due and without prejudice to any other
right of Grantee, proceed by any appropriate action or proceeding to enter into
possession of the Mortgaged Property, with or without legal action, and by
force, if necessary, lease the same and collect all rents and profits therefrom
and, after deducting all costs of collection and administration expense, apply
the net rents and profits to the payment of taxes, water and sewer rents,
charges and claims, insurance premiums, assessments and all other carrying
charges (including, without limitation, agents' compensation and fees and costs
of counsel and receivers) and to the maintenance, repair or restoration of the
Mortgaged Property, or on account and in reduction of the principal or interest,
or principal and interest, hereby secured, in such order and amounts as Grantee,
in Grantee's sole discretion, may elect and have a receiver appointed to enter
into possession of the Mortgaged Property, collect the rents and profits
therefrom, and apply the same as provided for herein. Grantee shall be liable to
account only for rents and profits actually received. Notwithstanding the
foregoing, if a Trigger Event shall have occurred and be continuing and Grantee
shall have received the written request from the Required Senior Parties
required pursuant to SECTION 5.2(B) of the Collateral Agency Agreement, and in
the event of threatened waste to any part of the Mortgaged Property (but not
actual waste), Grantee shall provide notice to Grantor of its intention to
appoint a receiver and shall permit Grantor a reasonable period of time to
eliminate the threatened waste prior to the appointment of a receiver.
Section 7.3. FORECLOSURE BY POWER OF SALE. If a Trigger Event shall have
occurred and be continuing and Grantee shall have received the written request
from the Required Senior Parties required pursuant to SECTION 5.2(B) of the
Collateral Agency Agreement, Grantee may, with or without taking possession,
sell the Mortgaged Property as a whole, or any parcel thereof separately, at
public sale or sales, before the court house doors in the county in which the
Mortgaged Property or any part thereof is situated, to the highest bidder for
cash, first giving notice of the time, place and terms of such sale or sales by
advertising once a week for the four consecutive weeks immediately preceding
such sale (but without regard to the number of days intervening between the date
of publication of the first advertisement and the date of sale) in the newspaper
published in such county, or in the paper in which the Sheriff of the County
wherein the Mortgaged Property, or any part thereof, lies, publishes his
advertisements, all other notice being hereby waived by Grantor. This power
shall not be exhausted until the Secured Obligations have been satisfied, and
one or more sales may be held hereunder. The Grantee, its agents,
representatives, successors or assigns may bid and purchase at any sale and
shall be entitled to apply all or a part of the Secured Obligations secured by
this Security Deed as a credit against the purchase price; and may execute and
deliver to the purchaser or purchasers at any sale a sufficient conveyance of
the Mortgaged Property sold in fee simple or such other estate, if any, as
stated hereinbefore, with full warranties of title, Grantor hereby constitutes
and appoints Grantee, or any agent or attorney of Grantee, the agent and
attorney-in-fact of Grantor to make
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such sale and conveyance, which conveyance shall be effectual to bar all equity
of redemption, homestead, dower and all other exemptions of Grantor (all of
which are hereby expressly waived) and shall thereby divest the Grantor of all
right, title or equity that Grantor may have in and to the Mortgaged Property
and shall vest the same in the purchaser or purchasers at such sale or sales.
Grantee shall collect the proceeds of such sale, and after reserving therefrom
the entire debt secured hereby (and reasonable attorneys' fees) and all costs
and expenses of such sale, shall pay any surplus to Grantor, or such other party
entitled to the surplus, all as provided by applicable Legal Requirements. The
aforesaid power of sale and agency hereby granted are coupled with an interest
and are irrevocable by death or dissolution, or otherwise, and are in addition
to any and all other remedies that Grantor may have hereunder, at law or in
equity. All of the acts and doings of said attorney-in-fact are hereby ratified
and confirmed, and any recitals in said conveyance as to the facts essential to
a valid sale shall be binding upon Grantor.
Section 7.4. WAIVER OF GRANTOR'S RIGHTS. BY EXECUTION OF THIS SECURITY
DEED AND BY INITIALING THIS SECTION 7.4, GRANTOR EXPRESSLY ACKNOWLEDGES THE
RIGHT TO ACCELERATE THE INDEBTEDNESS AND THE POWER OF ATTORNEY GIVEN HEREIN TO
GRANTEE TO SELL THE MORTGAGED PROPERTY IN ACCORDANCE WITH THE PROVISIONS HEREOF
BY NON-JUDICIAL. FORECLOSURE UPON THE OCCURRENCE OF AN EVENT OF DEFAULT WITHOUT
ANY JUDICIAL HEARING AND WITHOUT ANY NOTICE. GRANTOR HEREBY EXPRESSLY WAIVES ANY
RIGHT GRANTOR MAY HAVE UNDER THE CONSTITUTION OF THE STATE OF GEORGIA OR THE
CONSTITUTION OF THE UNITED STATES OF AMERICA TO NOTICE OR TO A JUDICIAL HEARING
PRIOR TO THE EXERCISE OF ANY RIGHT OR REMEDY PROVIDED BY THIS SECURITY DEED TO
GRANTEE AND GRANTOR WAIVES THE RIGHTS, IF ANY, TO SET ASIDE OR INVALIDATE ANY
SALE DULY CONSUMMATED IN ACCORDANCE WITH THE PROVISIONS OF THIS SECURITY DEED ON
THE GROUND (IF SUCH BE THE CASE) THAT THE SALE WAS CONSUMMATED WITHOUT A PRIOR
JUDICIAL HEARING. ALL WAIVERS BY GRANTOR IN THIS PARAGRAPH HAVE BEEN MADE
VOLUNTARILY, INTELLIGENTLY AND KNOWINGLY, AFTER GRANTOR HAS BEEN FIRST INFORMED
BY COUNSEL OF GRANTOR'S OWN CHOOSING AS TO POSSIBLE ALTERNATIVE RIGHTS, AND HAVE
BEEN MADE AS AN INTENTIONAL RELINQUISHMENT AND ABANDONMENT OF A KNOWN RIGHT AND
PRIVILEGE.
GRANTOR'S INITIALS: /S/ MFL
Section 7.5. GRANTEE'S RIGHT TO ENTER, TO OPERATE MORTGAGED PROPERTY AND
APPLY INCOME.
(a) If a Trigger Event shall have occurred and be continuing and Grantee
shall have received the written request from the Required Senior Parties
required pursuant to SECTION 5.2(B) of the Collateral Agency Agreement, Grantor
upon demand of Grantee, shall forthwith surrender to Grantee the actual
possession of the Mortgaged Property, and if and to the extent permitted by law,
Grantee itself, or by such officers or agents as it may appoint, or by a
court-appointed receiver, may, without assuming liability for the performance of
any obligations of Grantor, enter and take possession of all the Mortgaged
Property and may exclude Grantor
20
and its agents and employees wholly therefrom and have unencumbered access to
the books, papers and accounts of Grantor.
(b) If a Trigger Event shall have occurred and be continuing and
Grantee shall have received the written request from the Required Senior Parties
required pursuant to SECTION 5.2(B) of the Collateral Agency Agreement, and if
Grantor shall for any reason fail to surrender or deliver the Mortgaged Property
or any part thereof after Grantee's demand therefor, Grantee may seek to obtain
a writ, judgment or decree conferring on Grantee the right to immediate
possession or requiring Grantor to deliver immediate possession of all or any
part of the Mortgaged Property to Grantee. Grantor shall pay to Grantee, upon
demand, all reasonable costs and expenses of obtaining such judgment or decree
and reasonable compensation to Grantee, its attorneys and agents, and all such
costs, expenses and compensation shall, until paid, be Secured Obligations
secured by the lien of this Security Deed.
(c) Upon every such entry upon or taking of possession, Grantee
shall have the right, at the expense of Grantor, to operate, manage and control
the Mortgaged Property and to carry on the business thereof in the name of
Grantor or otherwise as Grantee shall deem best and otherwise to exercise all or
any of the Rights described in ARTICLE IV, as it shall deem best, and to make
all such repairs, replacements, alterations, additions or improvements to the
Mortgaged Property or any part thereof as Grantee may deem proper.
Section 7.6. LEASES. Grantee is authorized to foreclose this Security
Deed in accordance with the terms of this Security Deed subject or not subject,
as Grantee may elect, to the rights of any Tenants and the election to not
foreclose subject to any such Tenants and to foreclose their rights will not be,
nor be asserted by Grantor to be, a defense to any proceedings instituted by
Grantee to collect the sums secured hereby or to collect any deficiency
remaining unpaid after the foreclosure sale of the Mortgaged Property.
Section 7.7. FORECLOSURE; PROCEEDS OF SALE. At any foreclosure sale,
Grantee may bid for and acquire the Mortgaged Property or any part thereof (and
in lieu of paying cash therefor may make settlement for the purchase price by
crediting against the Secured Obligations then outstanding the net sales price
after deducting therefrom the expenses of the sale and the costs of the auction
and any other sums which Grantee is authorized to deduct under this Security
Deed) and, upon compliance with the terms of sale, may hold, retain and possess
and dispose of such property in its own absolute right without further
accountability. The proceeds of such sale shall be applied in accordance with
the Collateral Agency Agreement.
Section 7.8. WAIVER OF APPRAISEMENT, VALUATION, STAY, EXTENSION AND
REDEMPTION LAWS. Grantor agrees, to the fullest extent that it may lawfully do
so, that in the event of any Event of Default on its part hereunder, neither
Grantor nor anyone claiming through or under Grantor shall or will claim, insist
upon or plead or in any way take advantage of, and hereby waives, any
appraisement, valuation, stay, marshalling of assets, extension, homestead or
similar exemption, redemption or moratorium law now or hereafter in force and
effect.
Section 7.9. RECEIVER. If a Trigger Event shall have occurred and be
continuing and Grantee shall have received the written request from the Required
Senior Parties required
21
pursuant to SECTION 5.2(B) of the Collateral Agency Agreement, Grantee, without
regard to the value or adequacy of any security for the Secured Obligations and
without regard for the solvency of the Grantor, shall be entitled as a matter of
right if it so elects, without notice to Grantor except as provided below, to
the appointment of a receiver to enter upon and take possession of the Mortgaged
Property and to collect all Income and apply the same in accordance with the
Indenture and this Security Deed. Grantor agrees to, and does consent to, the
appointment of a receiver in the circumstance described in the preceding
sentence. Notwithstanding the foregoing, if a Trigger Event shall have occurred
and be continuing and Grantee shall have received the written request from the
Required Senior Parties required pursuant to SECTION 5.2(B) of the Collateral
Agency Agreement, and in the event of threatened waste to any part of the
Mortgaged Property (but not actual waste),Grantee shall provide notice to
Grantor of its intention to appoint a receiver and shall permit Grantor a
reasonable period of time to eliminate the threatened waste prior to the
appointment of a receiver. The expenses, including receiver's fees, reasonable
attorneys' fees, costs and agent's compensation, incurred pursuant to the powers
herein contained shall be Secured Obligations secured by the lien of this
Security Deed. The right to enter and take possession of and to operate, manage
and control the Mortgaged Property and to collect all Income, whether by a
receiver or otherwise, shall be cumulative of any other right or remedy
hereunder or afforded by law and may be exercised concurrently therewith or
independently thereof. Grantee shall be liable to account only for such Income
as is actually received by Grantee, whether received pursuant to this SECTION
7.9, SECTION 7.2 or SECTION 7.3 hereof.
Section 7.10. LEGAL EXPENSES OF GRANTEE. Grantor shall pay to Grantee,
on demand, all costs, charges and expenses (including reasonable attorneys' fees
and disbursements) actually incurred or paid at any time by Grantee (i) because
of the failure of Grantor to pay, perform or observe any of the Secured
Obligations or (ii) in any litigation to prosecute or defend the title, rights
and lien created by this Security Deed (including an action to foreclose this
Security Deed or otherwise enforce Grantee's remedies hereunder), together with
interest on each such payment made by Grantee at the Adjusted Base Rate plus
three percent (3%) from the date each such payment is made and, to the extent
permitted by law, all such sums and the interest thereon shall be Secured
Obligations secured by the lien of this Security Deed.
Section 7.11. DELAY OR OMISSION. No delay or omission of Grantee in
exercising any right, power or remedy accruing upon any Event of Default shall
exhaust or impair any such right, power or remedy or shall be construed to waive
any such Event of Default or to constitute acquiescence therein. Every right,
power and remedy given to Grantee may be exercised from time to time and as
often as may be deemed expedient by Grantee.
Section 7.12. NO WAIVER OF ONE DEFAULT TO AFFECT ANOTHER. No waiver of
any Event of Default hereunder shall extend to or affect any subsequent or any
other Event of Default then existing, or impair any rights, powers or remedies
consequent thereon.
Section 7.13. NO MERGER. It is the intention of the parties hereto that
if Grantee shall at any time hereafter acquire title to all or any portion of
the Mortgaged Property, then, and until the Secured Obligations have been paid
and performed in full, the interest of Grantee under this Security Deed shall
not merge or become merged in or with the estate and interest of Grantee as the
holder and owner of title to the Mortgaged Property or any part thereof and
that, until such
22
payment in full, the estate of Grantee in the Mortgaged Property and the
interest of Grantee under this Mortgage shall be deemed separate and apart and
shall continue in full force and effect to the same extent as if Grantee had not
acquired title to the Mortgaged Property or any part thereof.
Section 7.14. GRANTEE'S RIGHTS TO PERFORM GRANTOR'S COVENANTS. If a
Trigger Event shall have occurred and be continuing and Grantee shall have
received the written request from the Required Senior Parties required pursuant
to SECTION 5.2(B) of the Collateral Agency Agreement, then, without limiting any
other provision of this Security Deed, and without waiving or releasing Grantor
from any Secured Obligation or default hereunder, Grantee (or any receiver of
the Mortgaged Property) may (but shall not be obligated to), in order to
preserve its interest in the Mortgaged Property, and upon not less than two (2)
days' prior written notice to Grantor, except in case of an emergency, make any
such payment or perform any other act or take any appropriate action (including,
without limitation, entry on the Mortgaged Property and performance of work
thereat) as Grantee, in its reasonable discretion, may deem necessary, and all
payments made and costs and expenses incurred or paid by Grantee in correction
therewith shall become due and payable immediately. The amounts so incurred or
paid by Grantee, together with interest thereon at the Adjusted Base Rate plus
three percent (3%) from the date incurred until paid by Grantor, shall be added
to the Secured Obligations and secured by the lien of this Security Deed.
Grantee is hereby empowered to enter and to authorize others to enter upon the
Mortgaged Property or any part thereof for the purpose of performing or
observing any such defaulted covenant, condition or term, without thereby
becoming liable to Grantor or any person in possession holding under Grantor.
Section 7.15. GRANTEE'S RIGHT TO SPECIFIC PERFORMANCE. If a Trigger
Event shall have occurred and be continuing and Grantee shall have received the
written request from the Required Senior Parties required pursuant to SECTION
5.2(B) of the Collateral Agency Agreement, then, without limiting any other
provisions of this Security Deed, and without waiving or releasing Grantor from
any Secured Obligations or default hereunder, Grantee may (but shall not be
obligated to), in order to protect its interest in the Mortgaged Property,
commence an action for specific performance to cause Grantor to comply with any
of the covenants contained in this Security or any other Financing Document.
Section 7.16. REMEDIES CUMULATIVE. No right, power or remedy conferred
upon or reserved to Grantee by this Security Deed is exclusive of any other
right, power or remedy, but each and every such right, power and remedy shall be
cumulative and concurrent and shall be in addition to any other right, power and
remedy given hereunder, or now or hereafter existing at law, in equity or by
statute.
Section 7.17. RIGHT TO RELEASE.
(a) Grantee at all times shall have the right to release any part of the
Mortgaged Property now or hereafter covered by this instrument or any other
security Grantee now has or may hereafter have securing payment of all or any
part of the Secured Obligations, without releasing any other part of the
Mortgaged Property or other security, without impairing the Secured Obligations
or any rights to any deficiency, and without affecting the lien,
23
assignment of rents and security interest of this instrument as to the part or
parts thereof not so released.
(b) In the event that Grantor elects to exercise the rights
granted to it pursuant to Section 5.2(e)(ii) of the Common Agreement to sell,
transfer, assign, hypothecate, pledge, lease sublease or otherwise dispose of
(in one transaction or in a series of transactions) any of the Mortgaged
Property, including without limitation, any portion of the Mortgaged Property
which is subject to the Electric Interconnection Agreement (as defined in the
Common Agreement), Grantee shall release such portion of the Mortgaged Property.
ARTICLE VIII
PROVISIONS OF GENERAL APPLICATION
Section 8.1. MODIFICATIONS. No change, amendment, modification,
cancellation or discharge of this Security Deed, or any part hereof, shall be
valid unless in writing, dated and signed by the party against whom enforcement
of such change, amendment, modification, cancellation or discharge is sought.
Section 8.2. JUDICIAL PROCEEDINGS; WAIVER OF JURY TRIAL. Any judicial
proceeding brought against any party with respect to this Security Deed shall be
brought in any court of competent jurisdiction in Heard County, Georgia and, by
execution and delivery of this Security Deed, each party (i) accepts, generally
and unconditionally, the nonexclusive jurisdiction of such courts and any
related appellate court and irrevocably agrees to be bound by any judgment
rendered thereby in connection with any such claim and (ii) irrevocably waives,
to the greatest extent permitted by applicable law, any objection it may now or
hereafter have as to the venue of any such proceeding brought in such a court or
that such a court is an inconvenient forum. Nothing herein shall affect the
right of Grantor or Grantee to serve process in any other manner permitted by
law or shall limit the right of Grantor or Grantee in the courts of any other
jurisdiction.
Section 8.3. SATURDAY, SUNDAY OR NON-BUSINESS DAY. If the date for the
performance of any term, provision or condition (monetary or otherwise) under
the Financing Documents or this Security Deed shall happen to fall on a
Saturday, Sunday or non-Business Day, the date for the performance of such term,
provision or condition shall be extended to the next succeeding Business Day
immediately thereafter occurring, with interest at the rate provided in the
respective Financing Document on the outstanding principal balance to such next
succeeding Business Day if such term, provision or condition shall result in the
extension of any monetary payment due to Grantee.
Section 8.4. USE OF THE WORD "HEREIN". The words "herein," "hereof,"
"hereinafter," "hereunder" and other words of similar import refer to this
Security Deed as a whole and not to any particular Article, Section, subsection
or other subdivision of this Security Deed unless specifically noted otherwise
in this Security Deed.
24
Section 8.5. MONIES. All references to monies in this Security, the
Indenture or any of the Financing Documents, or the equivalent thereof, shall be
deemed to mean lawful monies of the United States of America.
Section 8.6. NO PARTNERSHIP OR JOINT VENTURE. Nothing herein, nor the
acts of the parties hereto, shall be deemed or construed to create a partnership
or joint venture between Grantor and Grantee.
Section 8.7. STAMP OR OTHER TAX. Should any stamp tax, intangible tax,
recording tax or other tax (excluding income, franchise, gross receipts or
similar taxes with respect to Grantee) now or hereafter become payable with
respect to this Security Deed, or their execution or delivery, Grantor will pay
the same prior to the due date thereof and hold Grantee harmless from all costs
arising from same (including, without limitation, costs arising from Grantor's
failure to timely pay same).
Section 8.8. ASSIGNMENT OF FINANCING DOCUMENTS: COVENANTS RUN WITH LAND.
The covenants, terms, conditions and agreements contained in this Security Deed
shall run with the land and bind Grantor, the heirs, executors, administrators,
principals, legal representatives, successors and assigns of Grantor and each
person constituting Grantor and all subsequent owners, encumbrances and Tenants
of the Mortgaged Property, or any part thereof, and shall inure to the benefit
of Grantee its successors and assigns and all subsequent beneficial owners of
this Security Deed.
Section 8.9. RIGHTS OF THIRD-PARTIES. Grantee makes no representations
and assumes no obligations concerning the quality of the construction of the
Mortgaged Property or the absence therefrom of any defects. In this regard,
Grantor agrees to and shall indemnify Grantee from any liability, claim or
losses resulting from the condition of the Mortgaged Property, whether related
to the quality of construction or otherwise and whether arising during or after
the term of the Collateral Agency Agreement. This paragraph shall survive the
payment and performance of the Secured Obligations and shall continue in full
force and effect so long as the possibility of any liability, claim or loss
exists.
Section 8.10. NO AGENCY. Grantee is not the agent or representative of
Grantor, and Grantor is not the agent or representative of Grantee, and nothing
in this Mortgage shall be construed to make Grantee liable to anyone for goods
delivered or services performed by them upon the Mortgaged Property or for debts
or claims accruing to them against Grantor. Nothing herein shall be construed to
create a contractual relationship between Grantee and anyone supplying labor or
materials to the Mortgaged Property.
Section 8.11. CONFLICTS AND INCONSISTENCIES/EFFECT OF COLLATERAL AGENCY
AGREEMENT.
In the event of a conflict between any provision of the Collateral
Agency Agreement and this Mortgage, the Collateral Agency Agreement shall
control, except that this Security Deed shall control with respect to (i) the
conveyance of security title and the imposition of the lien hereof, (ii) the
governing law applicable to this Security Deed as set forth in SECTION 8.17
hereof, and (iii) the exercise of the remedies hereunder including, without
limitation, the power of sale contained in SECTION 7.3 hereof and the rights
under SECTION 5.2 hereof. To the
25
extent the Collateral Agency Agreement expressly permits any acts or conditions
prohibited hereunder (or which result in an Event of Default) or which are
expressly excluded from any prohibitions thereunder, such acts or conditions
shall be allowed without resulting in an Event of Default.
Section 8.12. NOTICES AND DELIVERIES; MANNER OF DELIVERY; EFFECTIVENESS.
8.12.1. MANNER OF DELIVERY. All notices, communications and
materials (including all information) to be given or delivered pursuant to this
Security Deed shall be in writing (which shall include telex and telecopy
transmissions).
8.12.2. ADDRESSES. All notices, communications and materials to
be given or delivered pursuant to this Security Deed shall be given or delivered
at the following respective addresses and telecopier and telephone numbers and
to the attention of the following individuals or departments:
if to Grantor, to it at:
Tenaska Georgia Partners, L.P.
0000 X. 000xx Xxxxxx, Xxxxx 000
Xxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Telecopier/Telephone No.: 000-000-0000/000-000-0000
if to Grantee, to it at:
The Chase Manhattan Bank
Capital Markets Fiduciary Services
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx,
International & Project Finance Service Delivery
Telecopier/Telephone No.: 000-000-0000/000-000-0000
or at such other address or telecopier or telephone number or to the attention
of such other individual or department as the party to which such information
pertains may hereafter specify for the purpose in a notice specifically
captioned "Notice of Change of Address" given to (i) if the party to which such
information pertains is the Grantor, the Grantee, and (ii) if the party to which
such information pertains is the Grantee, the Grantor.
8.12.3. EFFECTIVENESS. Each notice and communication and any
material given or delivered under this Mortgage shall be deemed so given or
delivered (i) if sent by certified mail, postage prepaid, return receipt
requested, on the third Business Day after such notice, communication or
material, addressed as above provided, is delivered to a United States post
26
office and a receipt therefor is issued thereby, (ii) if sent by any other means
of physical delivery, when such notice, communication or material is delivered
to the appropriate address as above provided, and (iii) if sent by telecopier,
when such notice, communication or material is transmitted to the appropriate
telecopier number as above provided and is received at such number.
8.12.4. REASONABLE NOTICE. Any requirement under applicable law
of reasonable notice by the Grantee to the Grantor of any event in connection
with, or in any way related to, this Security Deed or the exercise by the
Grantee of any of its rights hereunder or thereunder shall be met if notice of
such event is given to the Grantor in the manner prescribed above at least ten
(10) days before (i) the date of such event or (ii) the date after which such
event will occur.
Section 8.13. CAPTIONS. The captions and the table of contents herein
are inserted only for convenience and reference, and in no way define, limit,
enlarge or describe the scope or intent of this Security Deed or the
construction of any provision hereof. References herein to Articles, Sections,
subsections, paragraphs and subparagraphs are to those of this Security Deed
unless another document is specified.
Section 8.14. GENDER AND NUMBER. Wherever the context of this Security
Deed so requires, the masculine gender includes the feminine or neuter, and the
singular number or word includes the plural, and vice versa.
Section 8.15. SEVERABILITY. If any provision of this Security Deed or
the application thereof to any Person or circumstance shall to any extent be
invalid or unenforceable, the remainder of this Security Deed, or the
application of such provision to Persons or circumstances other than those as to
which it is invalid or unenforceable, shall not be affected thereby, and each
provision of this Security Deed shall be valid and enforceable to the fullest
extent permitted by law.
Section 8.16. FILING OF SECURITY DEED, ETC. Grantor forthwith upon the
execution and delivery of this Security Deed and thereafter, from time to time,
will cause this Security Deed, and each instrument of further assurance to be
filed, registered or recorded in such manner and in such places as may be
required by any present or future law in order to publish notice of, and to
fully protect the priority of, the lien hereof and the interest of Grantee in
the Mortgaged Property. Grantor will pay all filing, registration or recording
fees, and all expenses incident to the preparation, execution and acknowledgment
of this Security Deed, any instrument of further assurance, any mortgage
supplemental hereto, any security instrument with respect to the Mortgaged
Property and any instrument of further assurance, any amendment or restatement
hereof, and any satisfaction or assignment of this Security Deed, and Grantor
will pay all Federal, state, county and municipal taxes, duties, imposts,
assessments and charges arising out of or in connection with the execution,
delivery and recording of this Security Deed, any mortgage supplemental hereto,
any amendment or restatement of this Security Deed, any security instrument with
respect to the Mortgaged Property or any instrument of further assurance.
Grantor shall hold harmless and indemnify Grantee, its successors and assigns,
against any liability incurred by reason of the imposition of any tax on the
making, delivery and recording of this Security Deed.
27
Section 8.17. CONTROLLING LAW. This Security Deed shall be governed by,
and construed and enforced in accordance with the law of the State.
Section 8.18. NON-RECOURSE LIABILITY. Satisfaction of the Secured
Obligations shall be had solely from the Collateral. Notwithstanding any
provision to the contrary in the Transaction Documents, there shall be no
recourse against any Affiliates, stockholders, officers, directors,
representatives or employees of Grantor, other than Grantor (each a
"NON-RECOURSE PARTY"), for any payment due hereunder or under any other
Financing Document or Security Document from the Grantor or for the performance
of any obligation of such Non-Recourse Party, or breach of any representation or
warranty made by such Non-Recourse Party hereunder or thereunder. The sole
recourse of the Grantee and the Senior Parties hereunder or under any other
Transaction Document or for the performance of any obligation of Grantor, or
breach of any representation or warranty made hereunder or thereunder by
Grantor, shall be against Grantor and its assets, it being expressly understood
by the Senior Parties that such obligations of Grantor are obligations solely of
Grantor and that no such personal liability shall attach to, or be incurred by
any Non-Recourse Party; PROVIDED, that nothing contained in this SECTION 8.18
shall (i) impair in respect of Grantor the validity of any of the Financing
Documents, prevent the taking of any action permitted by law against Grantor or
any of its Affiliates, or in any way affect or impair the rights of the Agent
and Senior Parties to take any action permitted by law, in either case to
realize upon the Collateral, (ii) be deemed to release Grantor or any of its
Affiliates, or any past, present or future shareholder, partner, officer,
employee, director or agent of any thereof, from liability for its fraudulent
actions, fraudulent misrepresentations, gross negligence or willful misconduct
or (iii) limit or affect the obligations and liabilities of any Non-Recourse
Party in accordance with the terms of any other Transaction Document creating
such obligations and liabilities to which such Non-Recourse Party is a party.
Section 8.19. FUTURE ADVANCES. In the event Grantee, DSR LOC Provider,
the PPA LOC Provider and/or any other Senior Party makes future advances to
Grantor, such future advances, with interest thereon, shall be secured by this
Security Deed, unless the parties shall agree otherwise in writing. If any of
such future advances should be applied to the payment of any existing debt owed
by the Grantor, Grantee shall be subrogated to the rights of the party to whom
such payment is made.
Section 8.20. SECURITY AND PRIORITY OF ADVANCES. This Security Deed
secures, and the Secured Obligations include, future advances. Advances may be
made by Grantee, DSR LOC Provider, the PPA LOC Provider and/or any other Senior
Party and indebtedness may be incurred from time to time hereafter, but each
such advance or indebtedness shall be secured hereby as if made on the date
hereof.
Section 8.21. CANCELLATION OF SECURITY DEED. If all of the Secured
Obligations are paid and all of the covenants, warranties, undertakings and
agreements made in this Security Deed are kept and performed and all obligations
of Grantee, the DSR LOC Provider, the PPA LOC Provider and any other Senior
Party for future advances have been terminated, then, and in that event only,
this Security Deed shall be cancelled by Grantee in due form at Grantor's cost.
Without limitation, all provisions herein for indemnity of Grantee shall survive
discharge of the Secured Obligations
28
IN WITNESS WHEREOF, this Security Deed has been duly executed by Grantor
the day and year first above written.
Signed, sealed GRANTOR:
and delivered by Grantor
this 10th day of November, TENASKA GEORGIA PARTNERS, L.P.
1999 in the presence
of the following witnesses: By: Tenaska Georgia, Inc.
Managing General Partner
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President of Finance &
Treasurer
/s/ Xxxx X. Xxxxx
---------------------------------
Unofficial Witness
Name: Xxxx X. Xxxxx
Address: 000 Xxxx 00xx Xx.
Xxx. 00X
Xxx Xxxx, XX 00000
/s/ Xxxxx Xxxx
---------------------------------
Notary Public
My Commission Expires:
Xxxxx Xxxx
Notary Public, State of New York
No. 00-0000000
Qualified in Kings County
Commission Expires Oct. 13, 2000
NOTARIAL SEAL
29
EXHIBIT "A"
THE SITE
TRACT A1
ALL THAT TRACT OR PARCEL OF LAND SITUATE, LYING AND BEING IN LAND LOTS
236 & 237 OF THE THIRD LAND DISTRICT OF HEARD COUNTY GEORGIA, AND BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE WESTERLY RIGHT OF WAY LINE OF XXX
XXXXXXXX ROAD (80 FOOT WIDTH) WITH THE SOUTHERLY RIGHT OF WAY LINE OF XXXXXX
XXXXX ROAD (PRESCRIPTIVE RIGHT OF WAY 40 FEET, MORE OR LESS, IN WIDTH), SAID
POINT BEING THE POINT OF REFERENCE; THENCE ALONG THE SOUTHERLY MARGIN OF XXXXXX
XXXXX ROAD SOUTH 74 DEGREES 00 MINUTES 18 SECONDS WEST FOR A DISTANCE OF 877.40
FEET TO A METAL FENCE POST FLUSH WITH THE GROUND;
THENCE South 72 degrees 48 minutes 00 seconds West for a distance of
405.46 feet to a 12 INCH WOOD POST;
THENCE North 88 degrees 37 minutes 10 seconds West for a distance of
252.91 feet to a 1/2 INCH REBAR SET ON THE WESTERLY LINE OF A GEORGIA POWER
COMPANY RIGHT OF WAY (150 FOOT WIDTH), SAID POINT BEING THE POINT OF BEGINNING
FOR THE HEREIN DESCRIBED PARCEL OF LAND.
THENCE along said westerly line of a Georgia Power Company Right of Way
South 05 degrees 00 minutes 38 seconds East for a distance of 1982.75 feet to a
1/2 INCH REBAR SET ON THE NORTHERLY LIMITS OF THE WETLANDS OF HILLY MILL CREEK;
THENCE along said westerly line of a Georgia Power Company Right of Way
South 05 degrees 00 minutes 38 seconds East for a distance of 191.17 feet to a
POINT IN THE CENTERLINE OF HILLY MILL CREEK;
THENCE along the centerline of Hilly Mill Creek to the Northwest, more
or less, North 46 degrees 21 minutes 20 seconds West for a distance of 66.26
feet to a POINT IN THE CENTERLINE OF THE CREEK;
THENCE North 78 degrees 13 minutes 26 seconds West for a distance of
274.76 feet to a POINT IN THE CENTERLINE OF THE CREEK;
THENCE North 53 degrees 56 minutes 11 seconds West for a distance of
188.31 feet to a POINT IN THE CENTERLINE OF THE CREEK;
THENCE North 26 degrees 05 minutes 05 seconds West for a distance of
142.40 feet to a POINT IN THE CENTERLINE OF THE CREEK;
30
THENCE North 74 degrees 59 minutes 42 seconds West for a distance of
170.99 feet to a POINT IN THE CENTERLINE OF TEE CREEK;
THENCE North 53 degrees 11 minutes 27 seconds West for a distance of
280.96 feet to a POINT IN THE CENTERLINE OF THE CREEK;
THENCE North 65 degrees 46 minutes 02 seconds West for a distance of
101.90 feet to a POINT IN THE CENTERLINE OF THE CREEK;
THENCE South 56 degrees 23 minutes 59 seconds West for a distance of
162.95 feet to a POINT IN THE CENTERLINE OF THE CREEK;
THENCE North 80 degrees 36 minutes 29 seconds West for a distance of
406.05 feet to a POINT IN THE CENTERLINE OF THE CREEK;
THENCE North 29 degrees 13 minutes 39 seconds West for a distance of
496.12 feet to a POINT OF INTERSECTION OF HILLY MILL CREEK AND AN UNNAMED CREEK;
THENCE along the centerline of the unnamed creek to the Northeast, more
or less, North 68 degrees 03 minutes 13 seconds East for a distance of 336.28
feet to a POINT IN THE CENTERLINE OF THE CREEK;
THENCE North 65 degrees 29 minutes 52 seconds East for a distance of
296.07 feet to a POINT IN THE CENTERLINE OF THE CREEK;
THENCE North 54 degrees 43 minutes 02 seconds East for a distance of
67.68 feet to a POINT IN THE CENTERLINE OF THE CREEK;
THENCE North 17 degrees 17 minutes 28 seconds East for a distance of
228.26 feet to a POINT IN THE CENTERLINE OF THE CREEK;
THENCE North 23 degrees 21 minutes 46 seconds East for a distance of
241.49 feet to a POINT IN THE CENTERLINE OF THE CREEK;
THENCE North 07 degrees 17 minutes 08 seconds East for a distance of
71.42 feet to a POINT IN THE CENTERLINE OF THE CREEK;
THENCE North 79 degrees 26 minutes 44 seconds East for a distance of
307.88 feet to a POINT IN THE CENTERLINE OF THE CREEK;
THENCE North 48 degrees 14 minutes 55 seconds East for a distance of
157.63 feet to a POINT IN THE CENTERLINE OF THE CREEK;
THENCE North 27 degrees 04 minutes 19 seconds East for a distance of
111.97 feet to a POINT IN THE CENTERLINE OF THE CREEK;
THENCE North 55 degrees 09 minutes 32 seconds East for a distance of
128.35 feet to a POINT IN THE CENTERLINE OF THE CREEK;
31
THENCE North 08 degrees 06 minutes 45 seconds East for a distance of
34.61 feet to a point;
THENCE South 88 degrees 37 minutes 10 seconds East for a distance of
212.86 feet to a 1/2 inch rebar set on the Westerly line of a GEORGIA POWER
COMPANY TRANSMISSION LINE RIGHT OF WAY (150 FOOT WIDTH); Said point being the
POINT OF BEGINNING.
Said property contains 46.13 acres, and is that same tract or parcel of
land shown as Tract AI on that certain ALTA/ACSM Title Survey, entitled Heard
County Power Generation Site for Tenaska, Inc., Tenaska Georgia, Inc., Tenaska
Georgia I, LP, Tenaska Georgia Partners, LP, Fidelity National Title Insurance
Company of New York, Xxxxxxx Title Guaranty Company, Heard County Development
Authority & The Chase Manhattan Bank as Trustee and Collateral Agent, prepared
by Xxxxxxxxx, Xxxxxxx & Associate, Inc., bearing the seal and certification of
Xxxxx X. Xxxxxxxx, Xx. Registered Land Surveyor No. 2558, dated March 19, 1999,
last revised November 4, 1999, and recorded in Plat Book 10, Pages 176 - 188, in
the Office of the Clerk of the Superior Court of Heard County, Georgia, which
recorded Survey is incorporated herein by reference.
TRACT B
ALL THAT TRACT OR PARCEL OF LAND SITUATE, LYING AND BEING IN LAND LOTS
236 & 237 OF THE THIRD LAND DISTRICT OF HEARD COUNTY GEORGIA, AND BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE WESTERLY RIGHT OF WAY LINE OF XXX
XXXXXXXX ROAD (80 FOOT WIDTH) WITH THE SOUTHERLY RIGHT OF WAY LINE OF XXXXXX
XXXXX ROAD (PRESCRIPTIVE RIGHT OF WAY 40 FEET, MORE OR LESS, IN WIDTH), SAID
POINT BEING THE POINT OF REFERENCE; THENCE ALONG THE SOUTHERLY MARGIN OF XXXXXX
XXXXX ROAD SOUTH 74 DEGREES 00 MINUTES 18 SECONDS WEST FOR A DISTANCE OF 877.40
FEET TO A METAL FENCE POST FLUSH WITH THE GROUND;
THENCE South 01 degrees 19 minutes 00 seconds West for a distance of
902.40 feet to a STEEL FENCE POST;
THENCE South 01 degrees 36 minutes 50 seconds East for a distance of
321.00 feet to a 1" PIPE;
THENCE South 00 degrees 28 minutes 16 seconds West for a distance of
802.62 feet to a 1" PIPE;
THENCE South 00 degrees 43 minutes 57 seconds West for a distance of
291.17 feet to a POINT IN THE CENTERLINE OF HILLY MILL CREEK;
THENCE along the centerline of Hilly Mill Creek to the Northwest, more
or less, North 60 degrees 42 minutes 09 seconds West for a distance of 97.17
feet to a POINT IN THE CENTERLINE OF THE CREEK;
32
THENCE South 21 degrees 03 minutes 44 seconds West for a distance of
136.80 feet to a POINT IN THE CENTERLINE OF THE CREEK;
THENCE North 73 degrees 18 minutes 03 seconds West for a distance of
223.86 feet to a POINT AT THE CENTERLINE OF A GEORGIA POWER COMPANY TRANSMISSION
LINE RIGHT OF WAY (150 FOOT WIDTH);
THENCE North 73 degrees 18 minutes 03 seconds West for a distance of
36.90 feet to a POINT IN THE CENTERLINE OF THE CREEK;
THENCE North 46 degrees 21 minutes 20 seconds West for a distance of
127.90 feet to a POINT IN THE CENTERLINE OF THE CREEK;
THENCE North 78 degrees 13 minutes 26 seconds West for a distance of
274.76 feet to a POINT IN THE CENTERLINE OF THE CREEK;
THENCE North 53 degrees 56 minutes 11 seconds West for a distance of
188.31 feet to a POINT IN THE CENTERLINE OF THE CREEK;
THENCE North 26 degrees 05 minutes 05 seconds West for a distance of
142.40 feet to a POINT IN THE CENTERLINE OF THE CREEK;
THENCE North 74 degrees 59 minutes 42 seconds West for a distance of
170.99 feet to a POINT IN THE CENTERLINE OF THE CREEK;
THENCE North 53 degrees 11 minutes 27 seconds West for a distance of
280.96 feet to a POINT IN THE CENTERLINE OF THE CREEK;
THENCE North 65 degrees 46 minutes 02 seconds West for a distance of
101.90 feet to a POINT IN THE CENTERLINE OF THE CREEK;
THENCE South 56 degrees 23 minutes 59 seconds West for a distance of
162.95 feet to a POINT IN THE CENTERLINE OF THE CREEK;
THENCE North 80 degrees 36 minutes 29 seconds West for a distance of
406.05 feet to a POINT IN THE CENTERLINE OF THE CREEK;
THENCE North 29 degrees 13 minutes 39 seconds West for a distance of
496.12 feet to a POINT OF INTERSECTION OF HILLY MILL CREEK AND AN UNNAMED CREEK
FROM THE NORTHEAST;
THENCE South 78 degrees 47 minutes 46 seconds West for a distance of
360.23 feet to a point on the Southern limits of the wetlands of Hilly Mill
Creek, Said point being the POINT OF BEGINNING for the herein described parcel
of land;
THENCE along said wetlands limits to the Southeast, more or less, South
53 degrees 54 minutes 27 seconds East for a distance of 76.08 feet to a point;
33
THENCE South 45 degrees 43 minutes 13 seconds East for a distance of
63.42 feet to a point;
THENCE South 37 degrees 54 minutes 40 seconds East for a distance of
63.14 feet to a point;
THENCE South 12 degrees 38 minutes 55 seconds West for a distance of
96.50 feet to a point;
THENCE South 31 degrees 53 minutes 23 seconds West for a distance of
54.60 feet to a point;
THENCE South 41 degrees 48 minutes 24 seconds West for a distance of
62.60 feet to a point;
THENCE South 08 degrees 50 minutes 54 seconds West for a distance of
30.89 feet to a point;
THENCE South 73 degrees 19 minutes 07 seconds East for a distance of
59.72 feet to a point;
THENCE North 74 degrees 25 minutes 30 seconds East for a distance of
60.24 feet to a point;
THENCE North 47 degrees 07 minutes 32 seconds East for a distance of
33.85 feet to a point;
THENCE North 03 degrees 16 minutes 22 seconds East for a distance of
30.45 feet to a point;
THENCE South 61 degrees 11 minutes 13 seconds East for a distance of
29.26 feet to a point;
THENCE South 43 degrees 42 minutes 16 seconds East for a distance of
44.52 feet to a point;
THENCE South 49 degrees 16 minutes 16 seconds East for a distance of
57.00 feet to a point;
THENCE South 30 degrees 34 minutes 48 seconds East for a distance of
65.93 feet to a point;
THENCE South 24 degrees 24 minutes 28 seconds East for a distance of
47.19 feet to a point;
THENCE South 21 degrees 50 minutes 49 seconds East for a distance of
58.28 feet to a point;
34
THENCE South 24 degrees 09 minutes 26 seconds East for a distance of
79.36 feet to a point;
THENCE South 27 degrees 37 minutes 37 seconds East for a distance of
52.90 feet to a point;
THENCE South 45 degrees 45 minutes 34 seconds East for a distance of
37.07 feet to a point;
THENCE North 35 degrees 31 minutes 29 seconds East for a distance of
32.07 feet to a point;
THENCE South 37 degrees 21 minutes 56 seconds East for a distance of
38.13 feet to a point;
THENCE South 15 degrees 07 minutes 14 seconds East for a distance of
55.08 feet to a point;
THENCE South 49 degrees 21 minutes 23 seconds East for a distance of
41.61 feet to a point;
THENCE South 10 degrees 21 Minutes 54 seconds East for a distance of
66.83 feet to a point;
THENCE South 28 degrees 17 minutes 29 seconds West for a distance of
51.89 feet to a point;
THENCE South 04 degrees 18 minutes 43 seconds West for a distance of
78.67 feet to a point;
THENCE South 06 degrees 56 minutes 49 seconds West for a distance of
56.79 feet to a point;
THENCE South 07 degrees 48 minutes 12 seconds West for a distance of
48.18 feet to a point;
THENCE South 35 degrees 36 minutes 30 seconds West for a distance of
63.01 feet to a point;
THENCE South 03 degrees 06 minutes 41 seconds West for a distance of
49.25 feet to a point;
THENCE leaving said wetlands limits, North 65 degrees 01 minutes 43
seconds West for a distance of 98.87 feet to a point;
THENCE North 11 degrees 02 minutes 41 seconds East for a distance of
230.45 feet to a point;
35
THENCE North 11 degrees 13 minutes 13 seconds West for a distance of
121.54 feet to a point;
THENCE North 38 degrees 58 minutes 52 seconds West for a distance of
121.90 feet to a point;
THENCE North 23 degrees 10 minutes 22 seconds West for a distance of
116.83 feet to a point;
THENCE North 27 degrees 01 minutes 41 seconds West for a distance of
102.77 feet to a point;
THENCE North 44 degrees 31 minutes 22 seconds West for a distance of
55.85 feet to a point;
THENCE South 70 degrees 40 minutes 56 seconds West for a distance of
73.31 feet to a point;
THENCE South 71 degrees 22 minutes 08 seconds West for a distance of
120.59 feet to a point;
THENCE North 27 degrees 11 minutes 02 seconds West for a distance of
173.06 feet to a point;
THENCE North 06 degrees 27 minutes 30 seconds East for a distance of
58.98 feet to a point;
THENCE North 40 degrees 46 minutes 01 seconds East for a distance of
132.31 feet to a point;
THENCE North 01 degrees 41 minutes 21 seconds West for a distance of
32.15 feet to a point;
THENCE North 42 degrees 40 minutes 25 seconds West for a distance of
132.37 feet to a point;
THENCE North 47 degrees 57 minutes 38 seconds East for a distance of
97.57 feet to the POINT OF BEGINNING.
Said property contains 3.84 acres more or less and is that same tract or parcel
of land shown as Tract B on that certain ALTA/ACSM Title Survey, entitled Heard
County Power Generation Site for Tenaska, Inc., Tenaska Georgia, Inc., Tenaska
Georgia I, LP, Tenaska Georgia Partners, LP, Fidelity National Title Insurance
Company of New York, Xxxxxxx Title Guaranty Company, Heard County Development
Authority & The Chase Manhattan Bank as Trustee and Collateral Agent, prepared
by Xxxxxxxxx, Xxxxxxx & Associate, Inc., bearing the seal and certification of
Xxxxx X. Xxxxxxxx, Xx. Registered Land Surveyor No. 2558, dated March 19, 1999,
last revised November 4, 1999, and recorded in Plat Book 10, Pages 176 - 188, in
the Office of the Clerk of
36
the Superior Court of Heard County, Georgia, which recorded Survey is
incorporated herein by reference.
TRACT C
ALL THAT TRACT OR PARCEL OF LAND SITUATE, LYING AND BEING IN LAND LOT
236 OF THE THIRD LAND DISTRICT OF HEARD COUNTY GEORGIA, AND BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE WESTERLY RIGHT OF WAY LINE OF XXX
XXXXXXXX ROAD (80 FOOT WIDTH) WITH THE SOUTHERLY RIGHT OF WAY LINE OF XXXXXX
XXXXX ROAD (PRESCRIPTIVE RIGHT OF WAY 40 FEET, MORE OR LESS, IN WIDTH), SAID
POINT BEING THE POINT OF REFERENCE; THENCE ALONG THE SOUTHERLY MARGIN OF XXXXXX
XXXXX ROAD SOUTH 74 DEGREES 00 MINUTES 18 SECONDS WEST FOR A DISTANCE OF 877.40
FEET TO A METAL FENCE POST FLUSH WITH THE GROUND;
THENCE South 01 degrees 19 minutes 00 seconds West for a distance of
902.40 feet to a STEEL FENCE POST;
THENCE South 01 degrees 36 minutes 50 seconds East for a distance of
321.00 feet to a 1" PIPE;
THENCE South 00 degrees 28 minutes 16 seconds West for a distance of
802.62 feet to a 1" PIPE;
THENCE South 00 degrees 43 minutes 57 seconds West for a distance of
291.17 feet to a POINT IN THE CENTERLINE OF HILLY MILL CREEK;
THENCE South 01 degrees 18 minutes 40 seconds West for a distance of
32.38 feet to a point;
THENCE South 02 degrees 18 minutes 34 seconds West for a distance of
978.06 feet to a point on the Southerly limits of the Wetlands of Hilly Mill
Creek, said point being the POINT OF BEGINNING for the herein described parcel
of land.
THENCE South 02 degrees 18 minutes 34 seconds West for a distance of
84.64 feet to a 3/4" PIPE;
THENCE South 01 degrees 21 minutes 15 seconds West for a distance of
12.03 feet to a point;
THENCE North 72 degrees 59 minutes 23 seconds West for a distance of
97.41 feet to a point;
THENCE North 28 degrees 40 minutes 02 seconds West for a distance of
114.55 feet to a point;
37
THENCE North 62 degrees 08 minutes 04 seconds West for a distance of
184.99 feet to a point;
THENCE North 63 degrees 50 minutes 09 seconds West for a distance of
166.92 feet to a point;
THENCE North 64 degrees 00 minutes 12 seconds West for a distance of
173.39 feet to a point;
THENCE North 87 degrees 49 minutes 10 seconds West for a distance of
111.55 feet to a point;
THENCE North 66 degrees 04 minutes 51 seconds West for a distance of
158.94 feet to a point;
THENCE North 66 degrees 19 minutes 50 seconds West for a distance of
121.59 feet to a point;
THENCE North 53 degrees 03 minutes 38 seconds West for a distance of
186.45 feet to a point;
THENCE North 44 degrees 18 minutes 22 seconds West for a distance of
163.48 feet to a point;
THENCE North 56 degrees 31 minutes 54 seconds West for a distance of
127.08 feet to a point;
THENCE North 49 degrees 42 minutes 26 seconds West for a distance of
110.80 feet to a point;
THENCE South 63 degrees 26 minutes 27 seconds West for a distance of
73.93 feet to a point;
THENCE South 34 degrees 43 minutes 18 seconds West for a distance of
155.58 feet to a point;
THENCE North 65 degrees 01 minutes 43 seconds West for a distance of
125.76 feet to a point on the Southerly Wetland limits of Hilly Mill Creek;
THENCE along said Wetland Limits to the Southeast, more or Less, North
19 degrees 07 minutes 29 seconds East for a distance of 19.11 feet to a point;
THENCE North 11 degrees 12 minutes 10 seconds East for a distance of
55.36 feet to a point;
THENCE North 59 degrees 47 minutes 00 seconds East for a distance of
61.82 feet to a point;
38
THENCE North 46 degrees 30 minutes 17 seconds East for a distance of
108.43 feet to a point;
THENCE North 51 degrees 07 minutes 59 seconds East for a distance of
99.18 feet to a point;
THENCE North 78 degrees 57 minutes 49 seconds East for a distance of
32.52 feet to a point;
THENCE South 66 degrees 51 minutes 15 seconds East for a distance of
88.50 feet to a point;
THENCE South 51 degrees 09 minutes 25 seconds East for a distance of
75.29 feet to a point;
THENCE South 42 degrees 38 minutes 23 seconds East for a distance of
82.73 feet to a point;
THENCE South 66 degrees 04 minutes 46 seconds East for a distance of
88.97 feet to a point;
THENCE South 32 degrees 53 minutes 29 seconds East for a distance of
60.69 feet to a point;
THENCE South 62 degrees 19 minutes 25 seconds East for a distance of
64.45 feet to a point;
THENCE South 34 degrees 53 minutes 35 seconds East for a distance of
38.63 feet to a point;
THENCE South 36 degrees 35 minutes 41 seconds East for a distance of
74.06 feet to a point;
THENCE South 55 degrees 19 minutes 31 seconds East for a distance of
73.40 feet to a point;
THENCE South 57 degrees 46 minutes 00 seconds East for a distance of
45.12 feet to a point;
THENCE North 39 degrees 42 minutes 35 seconds East for a distance of
48.51 feet to a point;
THENCE South 26 degrees 49 minutes 36 seconds East for a distance of
66.09 feet to a point;
THENCE South 63 degrees 22 minutes 19 seconds East for a distance of
81.30 feet to a point;
39
THENCE South 60 degrees 12 minutes 05 seconds East for a distance of
47. 1 5 feet to a point;
THENCE North 76 degrees 42 minutes 50 seconds East for a distance of
37.29 feet to a point;
THENCE South 67 degrees 38 minutes 47 seconds East for a distance of
104.31 feet to a point;
THENCE South 58 degrees 01 minutes 02 seconds East for a distance of
94.01 feet to a point;
THENCE South 73 degrees 39 minutes 40 seconds East for a distance of
90.45 feet to a point;
THENCE South 46 degrees 08 minutes 36 seconds East for a distance of
73.29 feet to a point;
THENCE South 68 degrees 34 minutes 52 seconds East for a distance of
80.1 1 feet to a point;
THENCE South 72 degrees 11 minutes 52 seconds East for a distance of
174.98 feet to a point;
THENCE South 74 degrees 05 minutes 22 seconds East for a distance of
25.78 feet to a point;
THENCE South 51 degrees 26 minutes 02 seconds East for a distance of
43.79 feet to a point;
THENCE South 09 degrees 58 minutes 33 seconds East for a distance of
54.59 feet to a point;
THENCE South 45 degrees 04 minutes 30 seconds East for a distance of
50.75 feet to a point;
THENCE South 55 degrees 48 minutes 09 seconds East for a distance of
59.24 feet to the POINT OF BEGINNING.
Said property contains 5.13 acres more or less and is that same tract
or parcel of land shown as Tract C on that certain ALTA/ACSM Title Survey,
entitled Heard County Power Generation Site for Tenaska, Inc., Tenaska Georgia,
Inc., Tenaska Georgia I, LP, Tenaska Georgia Partners, LP, Fidelity National
Title Insurance Company of New York, Xxxxxxx Title Guaranty Company, Heard
County Development Authority & The Chase Manhattan Bank as Trustee and
Collateral Agent, prepared by Xxxxxxxxx, Xxxxxxx & Associate, Inc., bearing the
seal and certification of Xxxxx X. Xxxxxxxx, Xx. Registered Land Surveyor No.
2558, dated March 19, 1999, last revised November 4, 1999, and recorded in Plat
Book 10, Pages 176 - 188, in the
40
Office of the Clerk of the Superior Court of Heard County, Georgia, which
recorded Survey is incorporated herein by reference.
[LEGAL DESCRIPTION CONTINUED ON NEXT PAGE]
TRACT D
ALL THAT TRACT OR PARCEL OF LAND SITUATE, LYING AND BEING IN LAND LOTS
236 & 237 OF THE THIRD LAND DISTRICT OF HEARD COUNTY GEORGIA, AND BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE WESTERLY RIGHT OF WAY LINE OF XXX
XXXXXXXX ROAD (80 FOOT WIDTH) WITH THE SOUTHERLY RIGHT OF WAY LINE OF XXXXXX
XXXXX ROAD (PRESCRIPTIVE RIGHT OF WAY 40 FEET, MORE OR LESS, IN WIDTH), SAID
POINT BEING THE POINT OF REFERENCE; THENCE ALONG THE SOUTHERLY MARGIN OF XXXXXX
XXXXX ROAD SOUTH 74 DEGREES 00 MINUTES 18 SECONDS WEST FOR A DISTANCE OF 877.40
FEET TO A METAL FENCE POST FLUSH WITH THE GROUND;
THENCE South 01 degrees 19 minutes 00 seconds West for a distance of
902.40 feet to a STEEL FENCE POST;
THENCE South 01 degrees 36 minutes 50 seconds East for a distance of
321.00 feet to a 1" PIPE;
THENCE South 00 degrees 28 minutes 16 seconds West for a distance of
802.62 feet to a 1" PIPE;
THENCE South 00 degrees 43 minutes 57 seconds West for a distance of
291.17 feet to a POINT IN THE CENTERLINE OF HILLY MILL CREEK; SAID POINT BEING
THE POINT OF BEGINNING FOR THE HEREIN DESCRIBED PARCEL OF LAND.
THENCE along the centerline of Hilly Mill Creek to the Northwest, more
or less, North 60 degrees 42 minutes 09 seconds West for a distance of 97.17
feet to a POINT IN THE CENTERLINE OF THE CREEK;
THENCE South 21 degrees 03 minutes 44 seconds West for a distance of
136.80 feet to a POINT IN THE CENTERLINE OF THE CREEK;
THENCE North 73 degrees 18 minutes 03 seconds West for a distance of
223.86 feet to a POINT AT THE CENTERLINE OF A GEORGIA POWER COMPANY TRANSMISSION
LINE RIGHT OF WAY (150 FOOT WIDTH);
THENCE North 73 degrees 18 minutes 03 seconds West for a distance of
36.90 feet to a POINT IN THE CENTERLINE OF THE CREEK;
THENCE North 46 degrees 21 minutes 20 seconds West for a distance of
127.90 feet to a POINT IN THE CENTERLINE OF THE CREEK;
41
THENCE North 78 degrees 13 minutes 26 seconds West for a distance of
274.76 feet to a POINT IN THE CENTERLINE OF THE CREEK;
THENCE North 53 degrees 56 minutes 11 seconds West for a distance of
188.31 feet to a POINT IN THE CENTERLINE OF THE CREEK;
THENCE North 26 degrees 05 minutes 05 seconds West for a distance of
142.40 feet to a POINT IN THE CENTERLINE OF THE CREEK;
THENCE North 74 degrees 59 minutes 42 seconds West for a distance of
170.99 feet to a POINT IN THE CENTERLINE OF THE CREEK;
THENCE North 53 degrees 11 minutes 27 seconds West for a distance of
280.96 feet to a POINT IN THE CENTERLINE OF THE CREEK;
THENCE North 65 degrees 46 minutes 02 seconds West for a distance of
101.90 feet to a POINT IN THE CENTERLINE OF THE CREEK;
THENCE South 56 degrees 23 minutes 59 seconds West for a distance of
162.95 feet to a POINT IN THE CENTERLINE OF THE CREEK;
THENCE North 80 degrees 36 minutes 29 seconds West for a distance of
406.05 feet to a POINT IN THE CENTERLINE OF THE CREEK;
THENCE North 29 degrees 13 minutes 39 seconds West for a distance of
496.12 feet to a POINT OF INTERSECTION OF HILLY MILL CREEK AND AN UNNAMED CREEK
FROM THE NORTHEAST;
THENCE South 78 degrees 47 minutes 46 seconds West for a Distance of
360.23 feet to a point on the Southern limits of the wetlands of Hilly Mill
Creek;
THENCE along said wetlands limits to the Southeast, more or less, South
53 degrees 54 minutes 27 seconds East for a distance of 76.08 feet to a point;
THENCE South 45 degrees 43 minutes 13 seconds East for a distance of
63.42 feet to a point;
THENCE South 37 degrees 54 minutes 40 seconds East for a distance of
63.14 feet to a point;
THENCE South 12 degrees 38 minutes 55 seconds West for a distance of
96.50 feet to a point;
THENCE South 31 degrees 53 minutes 23 seconds West for a distance of
54.60 feet to a point;
THENCE South 41 degrees 48 minutes 24 seconds West for a distance of
62.60 feet to a point;
42
THENCE South 08 degrees 50 minutes 54 seconds West for a distance of
30.89 feet to a point;
THENCE South 73 degrees 19 minutes 07 seconds East for a distance of
59.72 feet to a point;
THENCE North 74 degrees 25 minutes 30 seconds East for a distance of
60.24 feet to a point;
THENCE North 47 degrees 07 minutes 32 seconds East for a distance of
33.85 feet to a point;
THENCE North 03 degrees 16 minutes 22 seconds East for a distance of
30.45 feet to a point;
THENCE South 61 degrees 11 minutes 13 seconds East for a distance of
29.26 feet to a point;
THENCE South 43 degrees 42 minutes 16 seconds East for a distance of
44.52 feet to a point;
THENCE South 49 degrees 16 minutes 16 seconds East for a distance of
57.00 feet to a point;
THENCE South 30 degrees 34 minutes 48 seconds East for a distance of
65.93 feet to a point;
THENCE South 24 degrees 24 minutes 28 seconds East for a distance of
47.19 feet to a point;
THENCE South 21 degrees 50 minutes 49 seconds East for a distance of
58.28 feet to a point;
THENCE South 24 degrees 09 minutes 26 seconds East for a distance of
79.36 feet to a point;
THENCE South 27 degrees 37 minutes 37 seconds East for a distance of
52.90 feet to a point;
THENCE South 45 degrees 45 minutes 34 seconds East for a distance of
37.07 feet to a point;
THENCE North 35 degrees 31 minutes 29 seconds East for a distance of
32.07 feet to a point;
THENCE South 37 degrees 21 minutes 56 seconds East for a distance of
38.13 feet to a point;
43
THENCE South 15 degrees 07 minutes 14 seconds East for a distance of
55.08 feet to a point;
THENCE South 49 degrees 21 minutes 23 seconds East for a distance of
41.61 feet to a point;
THENCE South 10 degrees 21 minutes 54 seconds East for a distance of
66.83 feet to a point;
THENCE South 28 degrees 17 minutes 29 seconds West for a distance of
51.89 feet to a point;
THENCE South 04 degrees 18 minutes 43 seconds West for a distance of
78.67 feet to a point;
THENCE South 06 degrees 56 minutes 49 seconds West for a distance of
56.79 feet to a point;
THENCE South 07 degrees 48 minutes 12 seconds West for a distance of
48.18 feet to a point;
THENCE South 35 degrees 36 minutes 30 seconds West for a distance of
63.01 feet to a point;
THENCE South 03 degrees 06 minutes 41 seconds West for a distance of
49.25 feet to a point;
THENCE across an unnamed creek and wetlands area which intersects from
the Southwest, South 65 degrees 01 minutes 43 seconds East for a distance of
394.79 feet to a point;
THENCE continuing along said wetlands limit, North 19 degrees 07
minutes 29 seconds East for a distance of 19.11 feet to a point;
THENCE North 11 degrees 12 minutes 10 seconds East for a distance of
55.36 feet to a point;
THENCE North 59 degrees 47 minutes 00 seconds East for a distance of
61.82 feet to a point;
THENCE North 46 degrees 30 minutes 17 seconds East for a distance of
108.43 feet to a point;
THENCE North 51 degrees 07 minutes 59 seconds East for a distance of
99.18 feet to a point;
THENCE North 78 degrees 57 minutes 49 seconds East for a distance of
32.52 feet to a point;
44
THENCE South 66 degrees 51 minutes 15 seconds East for a distance of
88.50 feet to a point;
THENCE South 51 degrees 09 minutes 25 seconds East for a distance of
75.29 feet to a point;
THENCE South 42 degrees 38 minutes 23 seconds East for a distance of
82.73 feet to a point;
THENCE South 66 degrees 04 minutes 46 seconds East for a distance of
88.97 feet to a point;
THENCE South 32 degrees 53 minutes 29 seconds East for a distance of
60.69 feet to a point;
THENCE South 62 degrees 19 minutes 25 seconds East for a distance of
64.45 feet to a point;
THENCE South 34 degrees 53 minutes 35 seconds East for a distance of
38.63 feet to a point;
THENCE South 36 degrees 35 minutes 41 seconds East for a distance of
74.06 feet to a point;
THENCE South 55 degrees 19 minutes 31 seconds East for a distance of
73.40 feet to a point;
THENCE South 57 degrees 46 minutes 00 seconds East for a distance of
45.12 feet to a point;
THENCE North 39 degrees 42 minutes 35 seconds East for a distance of
48.51 feet to a point;
THENCE South 26 degrees 49 minutes 36 seconds East for a distance of
66.09 feet to a point;
THENCE South 63 degrees 22 minutes 19 seconds East for a distance of
81.30 feet to a point;
THENCE South 60 degrees 12 minutes 05 seconds East for a distance of
47.15 feet to a point;
THENCE North 76 degrees 42 minutes 50 seconds East for a distance of
37.29 feet to a point;
THENCE South 67 degrees 38 minutes 47 seconds East for a distance of
104.31 feet to a point;
45
THENCE South 58 degrees 01 minutes 02 seconds East for a distance of
94.01 feet to a point;
THENCE South 73 degrees 39 minutes 40 seconds East for a distance of
90.45 feet to a point;
THENCE South 46 degrees 08 minutes 36 seconds East for a distance of
73.29 feet to a point;
THENCE South 68 degrees 34 minutes 52 seconds East for a distance of
80.11 feet to a point;
THENCE South 72 degrees 11 minutes 52 seconds East for a distance of
174.98 feet to a point;
THENCE South 74 degrees 05 minutes 22 seconds East for a distance of
25.78 feet to a point;
THENCE South 51 degrees 26 minutes 02 seconds East for a distance of
43.79 feet to a point;
THENCE South 09 degrees 58 minutes 33 seconds East for a distance of
54.59 feet to a point;
THENCE South 45 degrees 04 minutes 30 seconds East for a distance of
50.75 feet to a point;
THENCE South 55 degrees 48 minutes 09 seconds East for a distance of
59.24 feet to a point;
THENCE North 02 degrees 18 minutes 34 seconds East for a distance of
978.06 feet to a point;
THENCE North 01 degrees 18 minutes 40 seconds East for a distance of
32.38 feet to the POINT OF BEGINNING.
Said property contains 43.03 acres more or less and is that same tract
or parcel of land shown as Tract D on that certain ALTA/ACSM Title Survey,
entitled Heard County Power Generation Site for Tenaska, Inc., Tenaska Georgia,
Inc., Tenaska Georgia I, LP, Tenaska Georgia Partners, LP, Fidelity National
Title Insurance Company of New York, Xxxxxxx Title Guaranty Company, Heard
County Development Authority & The Chase Manhattan Bank as Trustee and
Collateral Agent, prepared by Xxxxxxxxx, Xxxxxxx & Associate, Inc., bearing the
seal and certification of Xxxxx X. Xxxxxxxx, Xx. Registered Land Surveyor No.
2558, dated March 19, 1999, last revised November 4, 1999, and recorded in Plat
Book 10, Pages 176 - 188, in the Office of the Clerk of the Superior Court of
Heard County, Georgia, which recorded Survey is incorporated herein by
reference.
46
TRACT G
ALL THAT TRACT OR PARCEL OF LAND SITUATE, LYING AND BEING IN LAND LOT
236 OF THE THIRD LAND DISTRICT OF HEARD COUNTY GEORGIA, AND BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE WESTERLY RIGHT OF WAY LINE OF XXX
XXXXXXXX ROAD (80 FOOT WIDTH) WITH THE SOUTHERLY RIGHT OF WAY LINE OF XXXXXX
XXXXX ROAD (PRESCRIPTIVE RIGHT OF WAY 40 FEET, MORE OR LESS, IN WIDTH), SAID
POINT BEING THE POINT OF REFERENCE; THENCE ALONG THE SOUTHERLY MARGIN OF XXXXXX
XXXXX ROAD SOUTH 74 DEGREES 00 MINUTES 18 SECONDS WEST FOR A DISTANCE OF 877.40
FEET TO A METAL FENCE POST FLUSH WITH THE GROUND;
THENCE South 01 degrees 19 minutes 00 seconds West for a distance of
902.40 feet to a STEEL FENCE POST;
THENCE South 01 degrees 36 minutes 50 seconds East for a distance of
321.00 feet to a 1" PIPE;
THENCE South 00 degrees 28 minutes 16 seconds West for a distance of
802.62 feet to a 1" PIPE;
THENCE South 00 degrees 43 minutes 57 seconds West for a distance of
291.17 feet to a POINT IN THE CENTERLINE OF HILLY MILL CREEK;
THENCE South 01 degrees 18 minutes 40 seconds West for a distance of
32.38 feet to a point;
THENCE South 02 degrees 18 minutes 34 seconds West for a distance of
978.06 feet to a point on the Southerly limits of the Wetlands of Hilly Mill
Creek;
THENCE South 02 degrees 18 minutes 34 seconds West for a distance of
84.64 feet to a 3/4 inch pipe;
THENCE South 01 degrees 21 minutes 15 seconds West for a distance of
12.03 feet to a point;
THENCE South 01 degrees 21 minutes 15 seconds West for a distance of
140.19 feet to a Painted Rock;
THENCE North 88 degrees 57 minutes 38 seconds West for a distance of
1520.84 feet to a point, said point being the POINT OF BEGINNING for the herein
described parcel of land;
THENCE North 88 degrees 57 minutes 38 seconds West for a distance of
177.75 feet to point;
47
THENCE North 03 degrees 30 minutes 04 seconds West for a distance of
82.45 feet to a point;
THENCE North 45 degrees 03 minutes 01 seconds East for a distance of
639.20 feet to a point;
THENCE North 19 degrees 13 minutes 55 seconds East for a distance of
52.57 feet to a point;
THENCE North 70 degrees 46 minutes 05 seconds West for a distance of
175.00 feet to a point;
THENCE North 19 degrees 13 minutes 55 seconds East for a distance of
150.00 feet to a point;
THENCE South 70 degrees 46 minutes 05 seconds East for a distance of
175.00 feet to a point;
THENCE North 19 degrees 13 minutes 55 seconds East for a distance of
25.93 feet to a point;
THENCE South 44 degrees 18 minutes 22 seconds East for a distance of
63.80 feet to a point;
THENCE South 53 degrees 03 minutes 38 seconds East for a distance of
18.78 feet to a point;
THENCE South 19 degrees 13 minutes 55 seconds West for a distance of
211.55 feet to a point;
THENCE South 45 degrees 03 minutes 01 seconds West for a distance of
11.80 feet to a point;
THENCE along a curve to the right having a radius of 3600.00 feet, a
central angle of 09 degrees 21 minutes 08 seconds, an Arc length of 587.61 feet,
and subtended by a chord bearing South 33 degrees 47 minutes 14 seconds West for
a distance of 586.96 feet to the POINT OF BEGINNING.
Said property contains 3.16 acres more or less and is that same tract
or parcel of land shown as Tract G on that certain ALTA/ACSM Title Survey,
entitled Heard County Power Generation Site for Tenaska, Inc., Tenaska Georgia,
Inc., Tenaska Georgia I, LP, Tenaska Georgia Partners, LP, Fidelity National
Title Insurance Company of New York, Xxxxxxx Title Guaranty Company, Heard
County Development Authority & The Chase Manhattan Bank as Trustee and
Collateral Agent, prepared by Xxxxxxxxx, Xxxxxxx & Associate, Inc., bearing the
seal and certification of Xxxxx X. Xxxxxxxx, Xx. Registered Land Surveyor No.
2558, dated March 19, 1999, last revised November 4, 1999, and recorded in Plat
Book 10, Pages 176 - 188, in the Office of the Clerk of the Superior Court of
Heard County, Georgia, which recorded Survey is incorporated herein by
reference.
48
EXHIBIT "B"
LAY-DOWN SITE
TRACT H
ALL THAT TRACT OR PARCEL OF LAND SITUATE, LYING AND BEING IN LAND LOT
206 OF THE THIRD LAND DISTRICT OF HEARD COUNTY GEORGIA, AND BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT A 1/2 INCH REBAR SET AT THE POINT WHERE THE WEST LINE OF
LAND LOT 206 INTERSECTS THE SOUTH RIGHT OF WAY LINE OF XXXXXX XXXXX ROAD
(PRESCRIPTIVE RIGHT OF WAY, 40 FEET, MORE OF LESS, IN WIDTH), SAID POINT BEING
THE POINT OF REFERENCE; THENCE NORTH 01 DEGREE 30 MINUTES 06 SECONDS EAST FOR A
DISTANCE OF 40.01 FEET TO A POINT WHERE SAID WEST LINE OF LAND LOT 206
INTERSECTS THE NORTH RIGHT OF WAY LINE OF XXXXXX XXXXX ROAD, SAID POINT BEING
THE POINT BEGINNING FOR THE HEREIN DESCRIBED PARCEL OF LAND.
Thence along said west line of Land Xxx 000 Xxxxx 00 degree 27 minutes
40 seconds East for a distance of 800.22 feet to a Painted Rock at the Northwest
xxxxx of said Land Lot 206;
Thence along the North line of Land Xxx 000 Xxxxx 00 degrees 14 minutes
11 seconds East for a distance of 821.44 feet to a 1/2 inch rebar set on the
West Right of Way line of Xxx Xxxxxxxx Road (80 foot width);
Thence along said western right of way line of Xxx Xxxxxxxx Road, along
a curve to the left having a radius of 2021.86 feet, a central angle of 16
degrees 46 minutes 53 seconds, an Arc length of 592.18 feet, and subtended by a
chord bearing South 00 degrees 33 minutes 16 seconds East for a chord distance
of 590.07 feet to a 1/2 inch rebar set at the point where said western right of
way line of Xxx Xxxxxxxx Road intersects the North right of way line of Xxxxxx
Xxxxx Road;
Thence along said northern right of way line of Xxxxxx Xxxxx Road South
78 degrees 31 minutes 36 seconds West for a chord distance of 146.61 feet to a
point;
Thence along a curve to the left having a radius of 4280.10 feet, a
central angle of 05 degrees 04 minutes 37 seconds, an Arc length of 379.26 feet,
and subtended by a chord bearing South 75 degrees 59 minutes 18 seconds West for
a distance of 379.13 feet to a point;
Thence South 73 degrees 26 minutes 59 seconds West for a distance of
265.34 feet to a point;
Thence along a curve to the right having a radius of 159.33 feet, a
central angle of 29 degrees 41 minutes 14 seconds, an Arc length of 82.56 feet,
and subtended by a chord bearing South 88 degrees 17 minutes 36 seconds West for
a chord distance of 81.64 feet to a point, said point being the POINT OF
BEGINNING.
49
Said property contains 13.13 acres more or less and is that same tract
or parcel of land shown as Tract H on that certain ALTA/ACSM Title Survey,
entitled Heard County Power Generation Site for Tenaska, Inc., Tenaska Georgia,
Inc., Tenaska Georgia I, LP, Tenaska Georgia Partners, LP, Fidelity National
Title Insurance Company of New York, Xxxxxxx Title Guaranty Company, Heard
County Development Authority & The Chase Manhattan Bank as Trustee and
Collateral Agent, prepared by Xxxxxxxxx, Xxxxxxx & Associate, Inc., bearing the
seal and certification of Xxxxx X. Xxxxxxxx, Xx. Registered Land Surveyor No.
2558, dated March 19, 1999, last revised November 4, 1999, and recorded in Plat
Book 10, Pages 176 - 188, in the Office of the Clerk of the Superior Court of
Heard County, Georgia, which recorded Survey is incorporated herein by
reference.
LESS AND EXCEPT:
ALL THAT TRACT OR PARCEL OF LAND SITUATE, LYING AND BEING IN LAND XXX
000 XX XXX XXXXX XXXX XXXXXXXX XX XXXXX XXXXXX XXXXXXX, DEEDED FROM TENASKA
GEORGIA PARTNERS, L.P., AS GRANTOR, TO HEARD COUNTY, AS GRANTEE, PURSUANT TO
THAT CERTAIN RURAL POST ROADS RIGHT OF WAY DEED DATED JULY 1, 1999, RECORDED IN
DEED BOOK 197, PAGE 618, HEARD COUNTY, GEORGIA RECORDS.
00
XXXXXXX "X"
XXXXXXX EASEMENT PREMISES
TRACT A2
ALL THAT TRACT OR PARCEL OF LAND SITUATE, LYING AND BEING IN LAND LOTS
236 & 237 OF THE THIRD LAND DISTRICT OF HEARD COUNTY GEORGIA, AND BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE WESTERLY RIGHT OF WAY LINE OF XXX
XXXXXXXX ROAD (80 FOOT WIDTH) WITH THE SOUTHERLY RIGHT OF WAY LINE OF XXXXXX
XXXXX ROAD (PRESCRIPTIVE RIGHT OF WAY 40 FEET, MORE OR LESS, IN WIDTH), SAID
POINT BEING THE POINT OF REFERENCE; THENCE ALONG THE SOUTHERLY MARGIN OF XXXXXX
XXXXX ROAD SOUTH 74 DEGREES 00 MINUTES 18 SECONDS WEST FOR A DISTANCE OF 877.40
FEET TO A METAL FENCE POST FLUSH WITH THE GROUND, SAID POINT BEING THE POINT OF
BEGINNING FOR THE HEREIN DESCRIBED PARCEL OF LAND.
THENCE South 01 degrees 19 minutes 00 seconds West for a distance of
902.40 feet to a STEEL FENCE POST;
THENCE South 01 degrees 36 minutes 50 seconds East for a distance of
321.00 feet to a 1" PIPE;
THENCE South 00 degrees 28 minutes 16 seconds West for a distance of
802.62 feet to a 1" PIPE;
THENCE South 00 degrees 43 minutes 57 seconds West for a distance of
291.17 feet to a POINT IN THE CENTERLINE OF HILLY MILL CREEK;
THENCE along the centerline of Hilly Mill Creek to the Northwest, more
or less, North 60 degrees 42 minutes 09 seconds West for a distance of 97.17
feet to a POINT IN THE CENTERLINE OF THE CREEK;
THENCE South 21 degrees 03 minutes 44 seconds West for a distance of
136.80 feet to a POINT IN THE CENTERLINE OF THE CREEK;
THENCE North 73 degrees 18 minutes 03 seconds West for a distance of
223.86 feet to a POINT AT THE CENTERLINE OF A GEORGIA POWER COMPANY TRANSMISSION
LINE RIGHT OF WAY (150 FOOT WIDTH);
THENCE North 73 degrees 18 minutes 03 seconds West for a distance of
36.90 feet to a POINT IN THE CENTERLINE OF THE CREEK;
51
THENCE North 46 degrees 21 minutes 20 seconds West for a distance of
61.64 feet to a POINT ON THE WESTERLY LIMIT OF A GEORGIA POWER COMPANY
TRANSMISSION LINE RIGHT OF WAY (150 FOOT WIDTH);
THENCE along said westerly limit of a Georgia Power Company Right of
Way North 05 degrees 00 minutes 38 seconds West for a distance of 191.17 feet to
a 1/2 INCH REBAR SET AT THE NORTHERLY LIMITS OF THE WETLANDS OF HILLY MILL
CREEK;
THENCE along said westerly limit of a Georgia Power Company Right of
Way North 05 degrees 00 minutes 38 seconds West for a distance of 1982.75 feet
to a 1/2 INCH REBAR SET;
THENCE South 88 degrees 37 minutes 10 seconds East for a distance of
252.91 feet to a 12 INCH WOOD POST;
THENCE North 72 degrees 48 minutes 00 seconds East for a distance of
405.46 feet to the POINT OF BEGINNING.
Said property contains 27.41 acres, more or less, and is that same
tract or parcel of land shown as Tract A2 on that certain ALTA/ACSM Title
Survey, entitled Heard County Power Generation Site for Tenaska, Inc., Tenaska
Georgia, Inc., Tenaska Georgia I, LP, Tenaska Georgia Partners, LP, Fidelity
National Title Insurance Company of New York, Xxxxxxx Title Guaranty Company,
Heard County Development Authority & The Chase Manhattan Bank as Trustee and
Collateral Agent, prepared by Xxxxxxxxx, Xxxxxxx & Associate, Inc., bearing the
seal and certification of Xxxxx X. Xxxxxxxx, Xx. Registered Land Surveyor No.
2558, dated March 19, 1999, last revised November 4, 1999, and recorded in Plat
Book 10, Pages 176 - 188, in the Office of the Clerk of the Superior Court of
Heard County, Georgia, which recorded Survey is incorporated herein by
reference.
TRACT E2
ALL THAT TRACT OR PARCEL OF LAND SITUATE, LYING AND BEING IN LAND LOT
237 OF THE THIRD LAND DISTRICT OF HEARD COUNTY GEORGIA, AND BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE WESTERLY RIGHT OF WAY LINE OF XXX
XXXXXXXX ROAD (80 FOOT WIDTH) WITH THE SOUTHERLY RIGHT OF WAY LINE OF XXXXXX
XXXXX ROAD (PRESCRIPTIVE RIGHT OF WAY 40 FEET, MORE OR LESS, IN WIDTH), SAID
POINT BEING THE POINT OF REFERENCE; THENCE ALONG THE SOUTHERLY MARGIN OF XXXXXX
XXXXX ROAD SOUTH 74 DEGREES 00 MINUTES 18 SECONDS WEST FOR A DISTANCE OF 877.40
FEET TO A METAL FENCE POST FLUSH WITH THE GROUND, SAID POINT BEING THE POINT OF
BEGINNING FOR THE HEREIN DESCRIBED PARCEL OF LAND.
THENCE South 72 degrees 48 minutes 00 seconds East for a distance of
405.46 feet to a point;
52
THENCE North 88 degrees 37 minutes 10 seconds West for a distance of
252.91 feet to a 1/2 inch rebar set on the westerly line of a Georgia Power
Company Easement (150 foot width);
THENCE North 05 degrees 00 minutes 38 seconds West for a distance of
456.22 feet to a point on said westerly line of a Georgia Power Company Easement
and on the southerly right of way line of Xxxxxx Xxxxx Road;
THENCE along said right of way line in an easterly direction, along a
curve to the right having a radius of 668.28 feet and an arc length of 237.56
feet and being subtended by a chord bearing South 71 degrees 01 minutes 39
seconds East for a distance of 236.31 feet to a point;
THENCE South 60 degrees 47 minutes 40 seconds East for a distance of
454.84 feet to a point;
THENCE along a curve to the left having a radius of 199.33 feet and an
arc length of 64.11 feet and being subtended by a chord bearing South 70 degrees
00 minutes 28 seconds East for a distance of 63.83 feet to a 1/2 inch rebar set;
THENCE South 01 degrees 19 minutes 00 seconds West for a distance of
20.09 feet to the POINT OF BEGINNING.
Said property contains 4.13 acres, more or less, and is that same tract
or parcel of land shown as Tract E2 on that certain ALTA/ACSM Title Survey,
entitled Heard County Power Generation Site for Tenaska, Inc., Tenaska Georgia,
Inc., Tenaska Georgia I, LP, Tenaska Georgia Partners, LP, Fidelity National
Title Insurance Company of New York, Xxxxxxx Title Guaranty Company, Heard
County Development Authority & The Chase Manhattan Bank as Trustee and
Collateral Agent, prepared by Xxxxxxxxx, Xxxxxxx & Associate, Inc., bearing the
seal and certification of Xxxxx X. Xxxxxxxx, Xx. Registered Land Surveyor No.
2558, dated March 19, 1999, last revised November 4, 1999, and recorded in Plat
Book 10, Pages 176 - 188, in the Office of the Clerk of the Superior Court of
Heard County, Georgia, which recorded Survey is incorporated herein by
reference.
LESS AND EXCEPT:
ALL THAT TRACT OR PARCEL OF LAND SITUATE, LYING AND BEING IN LAND XXX
000 XX XXX XXXXX XXXX XXXXXXXX XX XXXXX XXXXXX XXXXXXX, DEEDED FROM TENASKA,
INC., A DELAWARE CORPORATION, AND TENASKA GEORGIA, INC., A DELAWARE CORPORATION,
AS GRANTORS, TO HEARD COUNTY, AS GRANTEE, PURSUANT TO THAT CERTAIN RURAL POST
ROADS RIGHT OF WAY DEED DATED NOVEMBER 10, 1999, FILED FOR RECORD NOVEMBER
10,1999 AT 4:06.M., RECORDED IN DEED BOOK 201, PAGE 628. HEARD COUNTY, GEORGIA
RECORDS.
53
EXHIBIT "D"
PIPELINE EASEMENTS
(A) That certain Construction Easement Agreement by and between Inland
Paperboard and Packaging, Inc., a Delaware corporation, Tenaska, Inc.,
a Delaware corporation, and Tenaska Georgia Partners, L.P., a Delaware
limited partnership, dated October 8, 1999, filed for record October
11, 1999 at 2:51 p.m., recorded in Deed Book 201, Page 107, Heard
County, Georgia Records.
(B) That certain Access Easement Agreement by and between Inland Paperboard
and Packaging, Inc., a Delaware corporation, Tenaska, Inc., a Delaware
corporation, and Tenaska Georgia Partners, L.P., a Delaware limited
partnership, dated October 8, 1999, filed for record October 11, 1999
at 2:54 p.m., recorded in Deed Book 201, Page 120, aforesaid Records.
(C) That certain Perpetual Right of Way and Easement Agreement from Xxxxxxx
X. Xxxxxxx, as Executor of the Last Will and Testament of Xxx Xxx
Xxxxxxx, to Tenaska Georgia Partners, L.P., a Delaware limited
partnership, dated November 10, 1999, filed for record November 10,
1999 at 4 :14.m., recorded in Deed Book 201, Page 705, aforesaid
Records, as affected by that certain Non-Interference and
Cross-Indemnity Agreement by and between Tenaska, Inc., a Delaware
corporation, and Tenaska Georgia Partners, L.P., a Delaware limited
partnership, dated November 10, 1999, filed for record November 10,
1999 at 4:22.m., recorded in Deed Book 201, Page 792, aforesaid
Records.
(D) That certain Natural Gas Pipeline Right of Way from Great Northern
Nekoosa Corporation, a Maine corporation, to Tenaska Georgia Partners,
L.P., a Delaware limited partnership, dated November 10, 1999, filed
for record November 10, 1999 at 4:16.m., recorded in Deed Book 201,
Page 743, aforesaid Records, as affected by that certain
Non-Interference and Cross-Indemnity Agreement by and between Tenaska,
Inc., a Delaware corporation, and Tenaska Georgia Partners, L.P., a
Delaware limited partnership, dated November 10, 1999, filed for record
November 10, 1999 at 4:22.m., recorded in Deed Book 201, Page 792,
aforesaid Records.
(E) That certain Access and Utility Easement Agreement from Tenaska, Inc.,
a Delaware corporation to Tenaska Georgia Partners, L.P., a Delaware
limited partnership, dated November 10, 1999, filed for record November
10, 1999 at 4:10.m., recorded in Deed Book 201, Page 666, aforesaid
Records.
54
EXHIBIT "E"
PIPELINE EASEMENT PREMISES
EASEMENT AREA 2 - PERMANENT GAS PIPELINE EASEMENT
ALL THAT TRACT OR PARCEL OF LAND SITUATE, LYING AND BEING IN LAND XXX
000 & 000 XX XXX XXXXX XXXX XXXXXXXX XX XXXXX XXXXXX GEORGIA, AND BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT A ONE INCH PIPE MARKING THE XXXXXXXXX XXXXXX XX XXXX XXX
000, XXXX XXXXX BEING THE POINT OF REFERENCE;
THENCE South 00 degrees 43 minutes 57 seconds West for a distance of
291.17 feet to a POINT IN THE CENTERLINE OF HILLY MILL CREEK;
THENCE South 01 degrees 18 minutes 40 seconds West for a distance of
32.38 feet to a point;
THENCE South 02 degrees 18 minutes 34 seconds West for a distance of
978.06 feet to a point on the Southerly limits of the wetlands of Hilly Mill
Creek;
THENCE South 02 degrees 18 minutes 34 seconds West for a distance of
84.64 feet to a 3/4 inch pipe;
THENCE South 01 degrees 21 minutes 15 seconds West for a distance of
12.03 feet to a point;
THENCE South 01 degrees 21 minutes 15 seconds West for a distance of
140.19 feet to a Painted Rock;
THENCE North 88 degrees 57 minutes 38 seconds West for a distance of
1520.84 feet to a point;
THENCE North 88 degrees 57 minutes 38 seconds West for a distance of
102.52 feet to a point, said point being the POINT OF BEGINNING for the herein
described parcel of land.
THENCE South 03 degrees 30 minutes 04 seconds East for a distance of
259.73 feet to a point;
THENCE South 02 degrees 23 minutes 46 seconds East for a distance of
460.14 feet to a point;
THENCE South 12 degrees 00 minutes 21 seconds East for a distance of
166.15 feet to a point;
55
THENCE South 43 degrees 38 minutes 25 seconds West for a distance of
309.02 feet to a point;
THENCE South 30 degrees 02 minutes 25 seconds West for a distance of
413.84 feet to a point;
THENCE South 13 degrees 19 minutes 59 seconds East for a distance of
1031.86 feet to a point;
THENCE South 01 degrees 08 minutes 53 seconds East for a distance of
266.31 feet to a point;
THENCE South 48 degrees 28 minutes 27 seconds West for a distance of
389.03 feet to a point;
THENCE South 13 degrees 57 minutes 28 seconds West for a distance of
235.43 feet to a point;
THENCE South 01 degrees 34 minutes 09 seconds East for a distance of
636.83 feet to a point;
THENCE South 20 degrees 37 minutes 20 seconds East for a distance of
13.96 feet to a point;
THENCE South 75 degrees 41 minutes 17 seconds West for a distance of
50.30 feet to a point;
THENCE North 20 degrees 37 minutes 20 seconds West for a distance of
16.82 feet to a point;
THENCE North 01 degrees 34 minutes 09 seconds West for a distance of
652.03 feet to a point;
THENCE North 13 degrees 57 minutes 28 seconds East for a distance of
257.78 feet to a point;
THENCE North 48 degrees 28 minutes 27 seconds East for a distance of
381.45 feet to a point;
THENCE North 01 degrees 08 minutes 53 seconds West for a distance of
237.86 feet to a point;
THENCE North 13 degrees 19 minutes 59 seconds West for a distance of
1046.41 feet to a point;
THENCE North 30 degrees 02 minutes 25 seconds East for a distance of
439.69 feet to a point;
56
THENCE North 43 degrees 38 minutes 25 seconds East for a distance of
288.60 feet to a point;
THENCE North 12 degrees 00 minutes 21 seconds West for a distance of
143.97 feet to a point;
THENCE North 02 degrees 23 minutes 46 seconds West for a distance of
463.86 feet to a point;
THENCE North 03 degrees 30 minutes 04 seconds West for a distance of
263.22 feet to a point;
THENCE South 88 degrees 57 minutes 38 seconds East for a distance of
50.16 feet to the POINT OF BEGINNING.
Said property contains 4.81 acres more or less and is that same tract
or parcel of land shown as Easement Area 2 on that certain ALTA/ACSM Title
Survey, entitled Heard County Power Generation Site for Tenaska, Inc., Tenaska
Georgia, Inc., Tenaska Georgia I, LP, Tenaska Georgia Partners, LP, Fidelity
National Title Insurance Company of New York, Xxxxxxx Title Guaranty Company,
Heard County Development Authority & The Chase Manhattan Bank as Trustee and
Collateral Agent, prepared by Xxxxxxxxx, Xxxxxxx & Associate, Inc., bearing the
seal and certification of Xxxxx X. Xxxxxxxx, Xx. Registered Land Surveyor No.
2558, dated March 19, 1999, last revised November 4, 1999, and recorded in Plat
Book 10, Pages 176 - 188, in the Office of the Clerk of the Superior Court of
Heard County, Georgia, which recorded Survey is incorporated herein by
reference.
EASEMENT AREA 3 - TEMPORARY WORKSPACE
ALL THAT TRACT OR PARCEL OF LAND SITUATE, LYING AND BEING IN LAND LOTS
236 OF THE THIRD LAND DISTRICT OF HEARD COUNTY GEORGIA, AND BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE WESTERLY RIGHT OF WAY LINE OF XXX
XXXXXXXX ROAD (80 FOOT WIDTH) WITH THE SOUTHERLY RIGHT OF WAY LINE OF XXXXXX
XXXXX ROAD (PRESCRIPTIVE RIGHT OF WAY 40 FEET, MORE OR LESS, IN WIDTH), SAID
POINT BEING THE POINT OF REFERENCE; THENCE ALONG THE SOUTHERLY MARGIN OF XXXXXX
XXXXX ROAD SOUTH 74 DEGREES 00 MINUTES 18 SECONDS WEST FOR A DISTANCE OF 877.40
FEET TO A METAL FENCE POST FLUSH WITH THE GROUND;
THENCE South 01 degrees 19 minutes 00 seconds West for a distance of
902.40 feet to a STEEL FENCE POST;
THENCE South 01 degrees 36 minutes 50 seconds East for a distance of
321.00 feet to a 1" PIPE;
57
THENCE South 00 degrees 28 minutes 16 seconds West for a distance of
802.62 feet to a 1" PIPE;
THENCE South 00 degrees 43 minutes 57 seconds West for a distance of
291.17 feet to a POINT IN THE CENTERLINE OF HILLY MILL CREEK;
THENCE South 01 degrees 18 minutes 40 seconds West for a distance of
32.38 feet to a point;
THENCE South 02 degrees 18 minutes 34 seconds West for a distance of
978.06 feet to a point on the Southerly limits of the Wetlands of Hilly Mill
Creek;
THENCE South 02 degrees 18 minutes 34 seconds West for a distance of
84.64 feet to a 3/4 inch pipe;
THENCE South 01 degrees 21 minutes 15 seconds West for a distance of
12.03 feet to a point;
THENCE South 01 degrees 21 minutes 15 seconds West for a distance of
140.19 feet to a Painted Rock;
THENCE North 88 degrees 57 minutes 38 seconds West for a distance of
1520.84 feet to a point, said point being the POINT OF BEGINNING for the herein
described parcel of land.
THENCE along a curve to the right having a radius of 3600.00 feet and
an arc length of 149.43 feet, being subtended by a chord of South 39 degrees 39
minutes 09 seconds West for a distance of 149.42 feet to a point;
THENCE North 03 degrees 30 minutes 04 seconds West for a distance of
117.12 feet to a point;
THENCE South 88 degrees 57 minutes 38 seconds East for a distance of
102.52 feet to the POINT OF BEGINNING.
Said property contains 0.14 acre more or less and is that same tract or
parcel of land shown as Easement Area 3 on that certain ALTA/ACSM Title Survey,
entitled Heard County Power Generation Site for Tenaska, Inc., Tenaska Georgia,
Inc., Tenaska Georgia I, LP, Tenaska Georgia Partners, LP, Fidelity National
Title Insurance Company of New York, Xxxxxxx Title Guaranty Company, Heard
County Development Authority & The Chase Manhattan Bank as Trustee and
Collateral Agent, prepared by Xxxxxxxxx, Xxxxxxx & Associate, Inc., bearing the
seal and certification of Xxxxx X. Xxxxxxxx, Xx. Registered Land Surveyor No.
2558, dated March 19, 1999, last revised November 4, 1999, and recorded in Plat
Book 10, Pages 176 - 188, in the Office of the Clerk of the Superior Court of
Heard County, Georgia, which recorded Survey is incorporated herein by
reference.
58
EASEMENT AREA 4 - TEMPORARY WORKSPACE
ALL THAT TRACT OR PARCEL OF LAND SITUATE, LYING AND BEING IN LAND LOT
236 OF THE THIRD LAND DISTRICT OF HEARD COUNTY GEORGIA, AND BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT A ONE INCH PIPE MARKING THE XXXXXXXXX XXXXXX XX XXXX XXX
000, XXXX XXXXX BEING THE POINT OF REFERENCE;
THENCE South 00 degrees 43 minutes 57 seconds West for a distance of
291.17 feet to a POINT IN THE CENTERLINE OF HILLY MILL CREEK;
THENCE South 01 degrees 18 minutes 40 seconds West for a distance of
32.38 feet to a point;
THENCE South 02 degrees 18 minutes 34 seconds West for a distance of
978.06 feet to a point on the Southerly limits of the Wetlands of Hilly Mill
Creek;
THENCE South 02 degrees 18 minutes 34 seconds West for a distance of
84.64 feet to a 3/4 inch pipe;
THENCE South 01 degrees 21 minutes 15 seconds West for a distance of
12.03 feet to a point;
THENCE South 01 degrees 21 minutes 15 seconds West for a distance of
140.19 feet to a Painted Rock;
THENCE North 88 degrees 57 minutes 38 Seconds West for a distance of
1520.84 feet to a point;
THENCE North 88 degrees 57 minutes 38 Seconds West for a distance of
102.52 feet to a point;
THENCE North 88 degrees 57 minutes 38 Seconds West for a distance of
50.16 feet to a point, said point being the POINT OF BEGINNING for the herein
described parcel of land.
THENCE North 88 degrees 57 minutes 38 Seconds West for a distance of
25.08 feet to a point;
THENCE South 03 degrees 30 minutes 04 seconds East for a distance of
92.32 feet to a point;
THENCE along a curve to the right having a radius of 3525.00 feet and
an arc length of 369.76 feet, being subtended by a chord of South 44 degrees 20
minutes 28 seconds West for a distance of 369.59 feet to a point;
THENCE South 42 degrees 39 minutes 13 seconds East for a distance of
75.00 feet to a point;
59
THENCE along a curve to the left having a radius of 3600.00 feet and an
arc length of 302.97 feet, being subtended by a chord of North 44 degrees 56
minutes 07 seconds East for a distance of 302.89 feet to a point;
THENCE South 03 degrees 30 minutes 04 seconds East for a distance of
67.37 feet to a point;
THENCE South 02 degrees 23 minutes 46 seconds East for a distance of
431.14 feet to a point;
THENCE North 46 degrees 21 minutes 35 seconds West for a distance of
115.41 feet to a point;
THENCE South 43 degrees 38 minutes 25 seconds West for a distance of
100.00 feet to a point;
THENCE South 46 degrees 21 minutes 35 seconds East for a distance of
275.00 feet to a point;
THENCE North 43 degrees 38 minutes 25 seconds East for a distance of
14.21 feet to a point;
THENCE North 12 degrees 00 minutes 21 seconds West for a distance of
143.97 feet to a point;
THENCE North 02 degrees 23 minutes 46 seconds West for a distance of
463.86 feet to a point;
THENCE North 03 degrees 30 minutes 04 seconds West for a distance of
263.22 feet to the POINT OF BEGINNING.
Said property contains 1.38 acres more or less and is that same tract
or parcel of land shown as Easement Area 4 on that certain ALTA/ACSM Title
Survey, entitled Heard County Power Generation Site for Tenaska, Inc., Tenaska
Georgia, Inc., Tenaska Georgia I, LP, Tenaska Georgia Partners, LP, Fidelity
National Title Insurance Company of New York, Xxxxxxx Title Guaranty Company,
Heard County Development Authority & The Chase Manhattan Bank as Trustee and
Collateral Agent, prepared by Xxxxxxxxx, Xxxxxxx & Associate, Inc., bearing the
seal and certification of Xxxxx X. Xxxxxxxx, Xx. Registered Land Surveyor No.
2558, dated March 19, 1999, last revised November 4, 1999, and recorded in Plat
Book 10, Pages 176 - 188, in the Office of the Clerk of the Superior Court of
Heard County, Georgia, which recorded Survey is incorporated herein by
reference.
EASEMENT AREA 5 - TEMPORARY WORKSPACE
ALL THAT TRACT OR PARCEL OF LAND SITUATE, LYING AND BEING IN LAND LOT
236 OF THE THIRD LAND DISTRICT OF HEARD COUNTY GEORGIA, AND BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
60
COMMENCING AT A ONE INCH PIPE MARKING THE XXXXXXXXX XXXXXX XX XXXX XXX
000, XXXX XXXXX BEING THE POINT OF REFERENCE;
THENCE South 00 degrees 43 minutes 57 seconds West for a distance of
291.17 feet to a POINT IN THE CENTERLINE OF HILLY MILL CREEK;
THENCE South 01 degrees 18 minutes 40 seconds West for a distance of
32.38 feet to a point;
THENCE South 02 degrees 18 minutes 34 seconds West for a distance of
978.06 feet to a point on the Southerly limits of the Wetlands of Hilly Mill
Creek;
THENCE South 02 degrees 18 minutes 34 seconds West for a distance of
84.64 feet to a 3/4 inch pipe;
THENCE South 01 degrees 21 minutes 15 seconds West for a distance of
12.03 feet to a point;
THENCE South 01 degrees 21 minutes 15 seconds West for a distance of
140.19 feet to a Painted Rock;
THENCE North 88 degrees 57 minutes 38 Seconds West for a distance of
1520.84 feet to a point;
THENCE North 88 degrees 57 minutes 38 Seconds West for a distance of
102.52 feet to a point;
THENCE North 88 degrees 57 minutes 38 Seconds West for a distance of
50.16 feet to a point;
THENCE South 03 degrees 30 minutes 04 seconds East for a distance of
263.22 feet to a point;
THENCE South 02 degrees 23 minutes 46 seconds East for a distance of
463.86 feet to a point;
THENCE South 12 degrees 00 minutes 21 seconds East for a distance of
143.97 feet to a point;
THENCE South 43 degrees 38 minutes 25 seconds West for a distance of
175.27 feet to a point, said point being the POINT OF BEGINNING for the herein
described parcel of land.
THENCE North 46 degrees 21 minutes 35 seconds West for a distance of
225.00 feet to a point;
THENCE South 43 degrees 38 minutes 25 seconds West for a distance of
100.00 feet to a point;
61
THENCE South 46 degrees 21 minutes 35 seconds East for a distance of
221.78 feet to a point;
THENCE South 30 degrees 02 minutes 25 seconds West for a distance of
13.71 feet to a point;
THENCE North 43 degrees 38 minutes 25 seconds East for a distance of
113.33 feet to the POINT OF BEGINNING.
Said property contains 0.52 acres more or less and is that same tract
or parcel of land shown as Easement Area 5 on that certain ALTA/ACSM Title
Survey, entitled Heard County Power Generation Site for Tenaska, Inc., Tenaska
Georgia, Inc., Tenaska Georgia I, LP, Tenaska Georgia Partners, LP, Fidelity
National Title Insurance Company of New York, Xxxxxxx Title Guaranty Company,
Heard County Development Authority & The Chase Manhattan Bank as Trustee and
Collateral Agent, prepared by Xxxxxxxxx, Xxxxxxx & Associate, Inc., bearing the
seal and certification of Xxxxx X. Xxxxxxxx, Xx. Registered Land Surveyor No.
2558, dated March 19, 1999, last revised November 4, 1999, and recorded in Plat
Book 10, Pages 176 - 188, in the Office of the Clerk of the Superior Court of
Heard County, Georgia, which recorded Survey is incorporated herein by
reference.
EASEMENT AREA 6 - TEMPORARY WORKSPACE
ALL THAT TRACT OR PARCEL OF LAND SITUATE, LYING AND BEING IN LAND XXX
000 & 000 XX XXX XXXXX XXXX XXXXXXXX XX XXXXX XXXXXX GEORGIA, AND BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT A ONE INCH PIPE MARKING THE XXXXXXXXX XXXXXX XX XXXX XXX
000, XXXX XXXXX BEING THE POINT OF REFERENCE;
THENCE South 00 degrees 43 minutes 57 seconds West for a distance of
291.17 feet to a POINT IN THE CENTERLINE OF HILLY MILL CREEK;
THENCE South 01 degrees 18 minutes 40 seconds West for a distance of
32.38 feet to a point;
THENCE South 02 degrees 18 minutes 34 seconds West for a distance of
978.06 feet to a point on the Southerly limits of the Wetlands of Hilly Mill
Creek;
THENCE South 02 degrees 18 minutes 34 seconds West for a distance of
84.64 feet to a 3/4 inch pipe;
THENCE South 01 degrees 21 minutes 15 seconds West for a distance of
12.03 feet to a point;
THENCE South 01 degrees 21 minutes 15 seconds West for a distance of
140.19 feet to a Painted Rock;
62
THENCE North 88 degrees 57 minutes 38 Seconds West for a distance of
1520.84 feet to a point;
THENCE North 88 degrees 57 minutes 38 Seconds West for a distance of
102.52 feet to a point;
THENCE South 03 degrees 30 minutes 04 seconds East for a distance of
259.73 feet to a point;
THENCE South 02 degrees 23 minutes 46 seconds East for a distance of
460.14 feet to a point;
THENCE South 12 degrees 00 minutes 21 seconds East for a distance of
166.15 feet to a point;
THENCE South 43 degrees 38 minutes 25 seconds West for a distance of
202.70 feet to a point, said point being the POINT OF BEGINNING for the herein
described parcel of land.
THENCE South 43 degrees 38 minutes 25 seconds West for a distance of
106.32 feet to a point;
THENCE South 30 degrees 02 minutes 25 seconds West for a distance of
413.84 feet to a point;
THENCE South 13 degrees 19 minutes 59 seconds East for a distance of
1031.86 feet to a point;
THENCE South 01 degrees 08 minutes 53 seconds East for a distance of
266.31 feet to a point;
THENCE South 48 degrees 28 minutes 27 seconds West for a distance of
213.81 feet to a point;
THENCE South 41 degrees 31 minutes 33 seconds East for a distance of
225.00 feet to a point;
THENCE North 48 degrees 28 minutes 27 seconds East for a distance of
100.00 feet to a point;
THENCE North 41 degrees 31 minutes 33 seconds West for a distance of
200.00 feet to a point;
THENCE North 48 degrees 28 minutes 27 seconds East for a distance of
125.37 feet to a point;
THENCE North 01 degrees 08 minutes 53 seconds West for a distance of
280.53 feet to a point;
63
THENCE North 13 degrees 19 minutes 59 seconds West for a distance of
1024.59 feet to a point;
THENCE North 30 degrees 02 minutes 25 seconds East for a distance of
507.24 feet to the POINT OF BEGINNING.
Said property contains 1.60 acres more or less and is that same tract
or parcel of land shown as Easement Area 6 on that certain ALTA/ACSM Title
Survey, entitled Heard County Power Generation Site for Tenaska, Inc., Tenaska
Georgia, Inc., Tenaska Georgia I, LP, Tenaska Georgia Partners, LP, Fidelity
National Title Insurance Company of New York, Xxxxxxx Title Guaranty Company,
Heard County Development Authority & The Chase Manhattan Bank as Trustee and
Collateral Agent, prepared by Xxxxxxxxx, Xxxxxxx & Associate, Inc., bearing the
seal and certification of Xxxxx X. Xxxxxxxx, Xx. Registered Land Surveyor No.
2558, dated March 19, 1999, last revised November 4, 1999, and recorded in Plat
Book 10, Pages 176 - 188, in the Office of the Clerk of the Superior Court of
Heard County, Georgia, which recorded Survey is incorporated herein by
reference.
EASEMENT AREA 7 - TEMPORARY WORKSPACE
ALL THAT TRACT OR PARCEL OF LAND SITUATE, LYING AND BEING IN LAND LOT
235 OF THE THIRD LAND DISTRICT OF HEARD COUNTY GEORGIA, AND BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT A ONE INCH PIPE MARKING THE XXXXXXXXX XXXXXX XX XXXX XXX
000, XXXX XXXXX BEING THE POINT OF REFERENCE;
THENCE South 00 degrees 43 minutes 57 seconds West for a distance of
291.17 feet to a POINT IN THE CENTERLINE OF HILLY MILL CREEK;
THENCE South 01 degrees 18 minutes 40 seconds West for a distance of
32.38 feet to a point;
THENCE South 02 degrees 18 minutes 34 seconds West for a distance of
978.06 feet to a point on the Southerly limits of the Wetlands of Hilly Mill
Creek;
THENCE South 02 degrees 18 minutes 34 seconds West for a distance of
84.64 feet to a 3/4 inch pipe;
THENCE South 01 degrees 21 minutes 15 seconds West for a distance of
12.03 feet to a point;
THENCE South 01 degrees 21 minutes 15 seconds West for a distance of
140.19 feet to a Painted Rock;
THENCE North 88 degrees 57 minutes 38 Seconds West for a distance of
1520.84 feet to a point;
64
THENCE North 88 degrees 57 minutes 38 Seconds West for a distance of
102.52 feet to a point;
THENCE South 03 degrees 30 minutes 04 seconds East for a distance of
259.73 feet to a point;
THENCE South 02 degrees 23 minutes 46 seconds East for a distance of
460.14 feet to a point;
THENCE South 12 degrees 00 minutes 21 seconds East for a distance of
166.15 feet to a point;
THENCE South 43 degrees 38 minutes 25 seconds West for a distance of
309.02 feet to a point;
THENCE South 30 degrees 02 minutes 25 seconds West for a distance of
413.84 feet to a point;
THENCE South 13 degrees 19 minutes 59 seconds East for a distance of
1031.86 feet to a point;
THENCE South 01 degrees 08 minutes 53 seconds East for a distance of
266.31 feet to a point;
THENCE South 48 degrees 28 minutes 27 seconds West for a distance of
297.81 feet to a point, said point being the POINT OF BEGINNING for the herein
described parcel of land.
THENCE South 48 degrees 28 minutes 27 seconds West for a distance of
91.22 feet to a point;
THENCE South 13 degrees 57 minutes 28 seconds West for a distance of
235.43 feet to a point;
THENCE South 01 degrees 34 minutes 09 seconds East for a distance of
636.83 feet to a point;
THENCE South 20 degrees 37 minutes 20 seconds East for a distance of
13.96 feet to a point;
THENCE North 75 degrees 41 minutes 17 seconds East for a distance of
25.15 feet to a point;
THENCE North 20 degrees 37 minutes 20 seconds West for a distance of
12.53 feet to a point;
THENCE North 01 degrees 34 minutes 09 seconds West for a distance of
629.22 feet to a point;
65
THENCE North 13 degrees 57 minutes 28 seconds East for a distance of
204.18 feet to a point;
THENCE South 41 degrees 31 minutes 33 seconds East for a distance of
188.62 feet to a point;
THENCE North 48 degrees 28 minutes 27 seconds East for a distance of
100.00 feet to a point;
THENCE North 41 degrees 31 minutes 33 seconds West for a distance of
225.00 feet to the POINT OF BEGINNING.
Said property contains 1.01 acres more or less and is that same tract
or parcel of land shown as Easement Area 7 on that certain ALTA/ACSM Title
Survey, entitled Heard County Power Generation Site for Tenaska, Inc., Tenaska
Georgia, Inc., Tenaska Georgia I, LP, Tenaska Georgia Partners, LP, Fidelity
National Title Insurance Company of New York, Xxxxxxx Title Guaranty Company,
Heard County Development Authority & The Chase Manhattan Bank as Trustee and
Collateral Agent, prepared by Xxxxxxxxx, Xxxxxxx & Associate, Inc., bearing the
seal and certification of Xxxxx X. Xxxxxxxx, Xx. Registered Land Surveyor No.
2558, dated March 19, 1999, last revised November 4, 1999, and recorded in Plat
Book 10, Pages 176 - 188, in the Office of the Clerk of the Superior Court of
Heard County, Georgia, which recorded Survey is incorporated herein by
reference.
EASEMENT AREA 9 - TEMPORARY WORKSPACE
ALL THAT TRACT OR PARCEL OF LAND SITUATE, LYING AND BEING IN LAND LOT
236 OF THE THIRD LAND DISTRICT OF HEARD COUNTY GEORGIA, AND BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE WESTERLY RIGHT OF WAY LINE OF XXX
XXXXXXXX ROAD (80 FOOT WIDTH) WITH THE SOUTHERLY RIGHT OF WAY LINE OF XXXXXX
XXXXX ROAD (PRESCRIPTIVE RIGHT OF WAY 40 FEET, MORE OR LESS, IN WIDTH), SAID
POINT BEING THE POINT OF REFERENCE; THENCE ALONG THE SOUTHERLY MARGIN OF XXXXXX
XXXXX ROAD SOUTH 74 DEGREES 00 MINUTES 18 SECONDS WEST FOR A DISTANCE OF 877.40
FEET TO A METAL FENCE POST FLUSH WITH THE GROUND;
THENCE South 01 degrees 19 minutes 00 seconds West for a distance of
902.40 feet to a STEEL FENCE POST;
THENCE South 01 degrees 36 minutes 50 seconds East for a distance of
321.00 feet to a 1" PIPE;
THENCE South 00 degrees 28 minutes 16 seconds West for a distance of
802.62 feet to a 1" PIPE;
66
THENCE South 00 degrees 43 minutes 57 seconds West for a distance of
291.17 feet to a POINT IN THE CENTERLINE OF HILLY MILL CREEK;
THENCE South 01 degrees 18 minutes 40 seconds West for a distance of
32.38 feet to a point;
THENCE South 02 degrees 18 minutes 34 seconds West for a distance of
978.06 feet to a point on the Southerly limits of the Wetlands of Hilly Mill
Creek;
THENCE South 02 degrees 18 minutes 34 seconds West for a distance of
84.64 feet to a 3/4 inch pipe;
THENCE South 01 degrees 21 minutes 15 seconds West for a distance of
12.03 feet to a point;
THENCE South 01 degrees 21 minutes 15 seconds West for a distance of
140.19 feet to a Painted Rock;
THENCE North 88 degrees 57 minutes 38 Seconds West for a distance of
1520.84 feet to a point, said point being the POINT OF BEGINNING for the herein
described parcel of land.
THENCE South 88 degrees 57 minutes 38 seconds East for a distance of
124.94 feet to a point;
THENCE along a curve to the left having a radius of 3700.00 feet and an
arc length of 513.91 feet, being subtended by a chord bearing North 33 degrees
18 minutes 31 seconds East for a distance of 513.50 feet to a point;
THENCE North 45 degrees 03 minutes 01 seconds East for a distance of
20.82 feet to a point;
THENCE North 19 degrees 13 minutes 55 seconds East for a distance of
202.54 feet to a point;
THENCE North 53 degrees 03 minutes 38 seconds West for a distance of
104.97 feet to a point;
THENCE South 19 degrees 13 minutes 55 seconds West for a distance of
211.55 feet to a point;
THENCE South 45 degrees 03 minutes 01 seconds West for a distance of
11.80 feet to a point;
THENCE along a curve to the right having a radius of 3600.00 feet and
an arc length of 587.61 feet, being subtended by a chord bearing South 33
degrees 47 minutes 14 seconds West for a distance of 586.96 feet to a point,
said point being the POINT OF BEGINNING.
67
Said property contains 1.78 acres more or less and is that same tract
or parcel of land shown as Easement Area 9 on that certain ALTA/ACSM Title
Survey, entitled Heard County Power Generation Site for Tenaska, Inc., Tenaska
Georgia, Inc., Tenaska Georgia I, LP, Tenaska Georgia Partners, LP, Fidelity
National Title Insurance Company of New York, Xxxxxxx Title Guaranty Company,
Heard County Development Authority & The Chase Manhattan Bank as Trustee and
Collateral Agent, prepared by Xxxxxxxxx, Xxxxxxx & Associate, Inc., bearing the
seal and certification of Xxxxx X. Xxxxxxxx, Xx. Registered Land Surveyor No.
2558, dated March 19, 1999, last revised November 4, 1999, and recorded in Plat
Book 10, Pages 176 - 188, in the Office of the Clerk of the Superior Court of
Heard County, Georgia, which recorded Survey is incorporated herein by
reference.
XXXXXXXX XXXX 00 -TEMPORARY WORKSPACE
ALL THAT TRACT OR PARCEL OF LAND SITUATE, LYING AND BEING IN LAND LOT
236 OF THE THIRD LAND DISTRICT OF HEARD COUNTY GEORGIA, AND BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE WESTERLY RIGHT OF WAY LINE OF XXX
XXXXXXXX ROAD (80 FOOT WIDTH) WITH THE SOUTHERLY RIGHT OF WAY LINE OF XXXXXX
XXXXX ROAD (PRESCRIPTIVE RIGHT OF WAY 40 FEET, MORE OR LESS, IN WIDTH), SAID
POINT BEING THE POINT OF REFERENCE; THENCE ALONG THE SOUTHERLY MARGIN OF XXXXXX
XXXXX ROAD SOUTH 74 DEGREES 00 MINUTES 18 SECONDS WEST FOR A DISTANCE OF 877.40
FEET TO A METAL FENCE POST FLUSH WITH THE GROUND;
THENCE South 01 degrees 19 minutes 00 seconds West for a distance of
902.40 feet to a STEEL FENCE POST;
THENCE South 01 degrees 36 minutes 50 seconds East for a distance of
321.00 feet to a 1" PIPE;
THENCE South 00 degrees 28 minutes 16 seconds West for a distance of
802.62 feet to a 1" PIPE;
THENCE South 00 degrees 43 minutes 57 seconds West for a distance of
291.17 feet to a POINT IN THE CENTERLINE OF HILLY MILL CREEK;
THENCE South 01 degrees 18 minutes 40 seconds West for a distance of
32.38 feet to a point;
THENCE South 02 degrees 18 minutes 34 seconds West for a distance of
978.06 feet to a point on the Southerly limits of the Wetlands of Hilly Mill
Creek;
THENCE South 02 degrees 18 minutes 34 seconds West for a distance of
84.64 feet to a 3/4 inch pipe;
68
THENCE South 01 degrees 21 minutes 15 seconds West for a distance of
12.03 feet to a point;
THENCE South 01 degrees 21 minutes 15 seconds West for a distance of
140.19 feet to a Painted Rock;
THENCE North 88 degrees 57 minutes 38 Seconds West for a distance of
1520.84 feet to a point;
THENCE North 88 degrees 57 minutes 38 Seconds West for a distance of
102.52 feet to a point;
THENCE North 88 degrees 57 minutes 38 Seconds West for a distance of
50.16 feet to a point;
THENCE North 88 degrees 57 minutes 38 Seconds West for a distance of
25.08 feet to a point, said point being the POINT OF BEGINNING for the herein
described parcel of land.
THENCE North 03 degrees 30 minutes 04 seconds West for a distance of
82.45 feet to a point;
THENCE North 45 degrees 03 minutes 01 seconds East for a distance of
639.20 feet to a point;
THENCE North 19 degrees 13 minutes 55 seconds East for a distance of
52.57 feet to a point;
THENCE North 70 degrees 46 minutes 05 seconds West for a distance of
175.00 feet to a point;
THENCE North 19 degrees 13 minutes 55 seconds East for a distance of
150.00 feet to a point;
THENCE South 70 degrees 46 minutes 05 seconds East for a distance of
175.00 feet to a point;
THENCE North 19 degrees 13 minutes 55 seconds East for a distance of
25.93 feet to a point;
THENCE North 44 degrees 18 minutes 22 seconds West for a distance of
99.68 feet to a point;
THENCE North 56 degrees 31 minutes 54 seconds West for a distance of
120.58 feet to a point;
THENCE North 70 degrees 46 minutes 05 seconds West for a distance of
68.89 feet to a point;
69
THENCE South 19 degrees 13 minutes 55 seconds West for a distance of
350.00 feet to a point;
THENCE South 70 degrees 46 minutes 05 seconds East for a distance of
140.96 feet to a point;
THENCE South 45 degrees 03 minutes 01 seconds West for a distance of
583.23 feet to a point;
THENCE South 03 degrees 30 minutes 04 seconds East for a distance of
119.61 feet to a point;
THENCE South 88 degrees 57 minutes 38 seconds East for a distance of
100.31 feet to a point, said point being the POINT OF BEGINNING.
Said property contains 3.02 acres more or less and is that same tract
or parcel of land shown as Xxxxxxxx Xxxx 00 on that certain ALTA/ACSM Title
Survey, entitled Heard County Power Generation Site for Tenaska, Inc., Tenaska
Georgia, Inc., Tenaska Georgia I, LP, Tenaska Georgia Partners, LP, Fidelity
National Title Insurance Company of New York, Xxxxxxx Title Guaranty Company,
Heard County Development Authority & The Chase Manhattan Bank as Trustee and
Collateral Agent, prepared by Xxxxxxxxx, Xxxxxxx & Associate, Inc., bearing the
seal and certification of Xxxxx X. Xxxxxxxx, Xx. Registered Land Surveyor No.
2558, dated March 19, 1999, last revised November 4, 1999, and recorded in Plat
Book 10, Pages 176 - 188, in the Office of the Clerk of the Superior Court of
Heard County, Georgia. which recorded Survey is incorporated herein by
reference.
XXXXXXXX XXXX 00 - XXXXXXXXX XXXXXX
ALL THAT TRACT OR PARCEL OF LAND SITUATE, LYING AND BEING IN LAND LOT
236 OF THE THIRD LAND DISTRICT OF HEARD COUNTY GEORGIA, AND BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT A ONE INCH PIPE MARKING THE XXXXXXXXX XXXXXX XX XXXX XXX
000, XXXX XXXXX BEING THE POINT OF REFERENCE;
THENCE South 00 degrees 43 minutes 57 seconds West for a distance of
291.17 feet to a POINT IN THE CENTERLINE OF HILLY MILL CREEK;
THENCE South 01 degrees 18 minutes 40 seconds West for a distance of
32.38 feet to a point;
THENCE South 02 degrees 18 minutes 34 seconds West for a distance of
978.06 feet to a point on the Southerly limits of the Wetlands of Hilly Mill
Creek;
THENCE South 02 degrees 18 minutes 34 seconds West for a distance of
84.64 feet to a 3/4 inch pipe;
70
THENCE South 01 degrees 21 minutes 15 seconds West for a distance of
12.03 feet to a point;
THENCE South 01 degrees 21 minutes 15 seconds West for a distance of
140.19 feet to a Painted Rock;
THENCE North 88 degrees 57 minutes 38 Seconds West for a distance of
1502.56 feet to a point;
THENCE South 03 degrees 25 minutes 19 seconds West for a distance of
556.81 feet to a 3/4 inch pipe;
THENCE South 00 degrees 55 minutes 19 seconds West for a distance of
434.31 feet to a 3/4 inch pipe, said point being the POINT OF BEGINNING for the
herein described parcel of land.
THENCE South 00 degrees 29 minutes 20 seconds East for a distance of
30.01 feet to a point;
THENCE North 89 degrees 13 minutes 51 seconds West for a distance of
16.78 feet to a point;
THENCE North 32 degrees 43 minutes 50 seconds West for a distance of
70.24 feet to a point;
THENCE North 08 degrees 02 minutes 18 seconds West for a distance of
31.43 feet to a point;
THENCE North 43 degrees 38 minutes 25 seconds East for a distance of
69.56 feet to a point;
THENCE South 89 degrees 04 minutes 41 seconds East for a distance of
12.67 feet to a point;
THENCE South 00 degrees 55 minutes 19 seconds West for a distance of
110.58 feet to the POINT OF BEGINNING.
Said property contains 0.13 acre more or less and is that same tract or
parcel of land shown as Xxxxxxxx Xxxx 00 on that certain ALTA/ACSM Title Survey,
entitled Heard County Power Generation Site for Tenaska, Inc., Tenaska Georgia,
Inc., Tenaska Georgia I, LP, Tenaska Georgia Partners, LP, Fidelity National
Title Insurance Company of New York, Xxxxxxx Title Guaranty Company, Heard
County Development Authority & The Chase Manhattan Bank as Trustee and
Collateral Agent, prepared by Xxxxxxxxx, Xxxxxxx & Associate, Inc., bearing the
seal and certification of Xxxxx X. Xxxxxxxx, Xx. Registered Land Surveyor No.
2558, dated March 19, 1999, last revised November 4, 1999, and recorded in Plat
Book 10, Pages 176 - 188, in the Office of the Clerk of the Superior Court of
Heard County, Georgia, which recorded Survey is incorporated herein by
reference.
71
EXHIBIT "F"
PARCEL X-00
XXXXXXXX XXXX 00 - PERMANENT ACCESS - XXX 000, XXXXXX XXXXX XXXXXXX
ALL THAT TRACT OR PARCEL OF LAND SITUATE, LYING AND BEING IN LAND LOT
236 OF THE THIRD LAND DISTRICT OF HEARD COUNTY GEORGIA, AND BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE WESTERLY RIGHT OF WAY LINE OF XXX
XXXXXXXX ROAD (80 FOOT WIDTH) WITH THE SOUTHERLY RIGHT OF WAY LINE OF XXXXXX
XXXXX ROAD (PRESCRIPTIVE RIGHT OF WAY 40 FEET, MORE OR LESS, IN WIDTH), SAID
POINT BEING THE POINT OF REFERENCE; THENCE ALONG THE SOUTHERLY MARGIN OF XXXXXX
XXXXX ROAD SOUTH 74 DEGREES 00 MINUTES 18 SECONDS WEST FOR A DISTANCE OF 877.40
FEET TO A METAL FENCE POST FLUSH WITH THE GROUND;
THENCE South 01 degrees 19 minutes 00 seconds West for a distance of
902.40 feet to a STEEL FENCE POST;
THENCE South 01 degrees 36 minutes 50 seconds East for a distance of
321.00 feet to a PIPE;
THENCE South 00 degrees 28 minutes 16 seconds West for a distance of
802.62 feet to a 1" PIPE;
THENCE South 00 degrees 43 minutes 57 seconds West for a distance of
291.17 feet to a POINT IN THE CENTERLINE OF HILLY MILL CREEK;
THENCE South 01 degrees 18 minutes 40 seconds West for a distance of
32.38 feet to a point;
THENCE South 02 degrees 18 minutes 34 seconds West for a distance of
978.06 feet to a point on the Southerly limits of the Wetlands of Hilly Mill
Creek;
THENCE South 02 degrees 18 minutes 34 seconds West for a distance of
84.64 feet to a 3/4 inch pipe;
THENCE South 01 degrees 21 minutes 15 seconds West for a distance of
12.03 feet to a point;
THENCE South 01 degrees 21 minutes 15 seconds West for a distance of
140.19 feet to a Painted Rock;
72
THENCE North 88 degrees 57 minutes 38 Seconds West for a distance of
1502.56 feet to a point;
THENCE South 03 degrees 25 minutes 19 seconds West for a distance of
556.81 feet to a 3/4 inch pipe;
THENCE South 00 degrees 55 minutes 19 seconds West for a distance of
434.31 feet to a 3/4 inch pipe, said point being the POINT OF BEGINNING for the
herein described parcel of land.
THENCE South 89 degrees 13 minutes 51 seconds East for a distance of
615.65 feet to a 3/4 inch pipe on the westerly right of way line of Dogwood Road
(60' Width);
THENCE along said right xx xxx xxxx Xxxxx 00 degrees 15 minutes 41
seconds East for a distance of 34.31 feet to a point;
THENCE North 89 degrees 13 minutes 51 seconds West for a distance of
631.64 feet to a point;
THENCE North 00 degrees 29 minutes 20 seconds West for a distance of
30.01 feet to the POINT OF BEGINNING.
Said property contains 0.43 acre more or less and is that same tract or
parcel of land shown as Xxxxxxxx Xxxx 00 on that certain ALTA/ACSM Title Survey,
entitled Heard County Power Generation Site for Tenaska, Inc., Tenaska Georgia,
Inc., Tenaska Georgia I, LP, Tenaska Georgia Partners, LP, Fidelity National
Title Insurance Company of New York, Xxxxxxx Title Guaranty Company, Heard
County Development Authority & The Chase Manhattan Bank as Trustee and
Collateral Agent, prepared by Xxxxxxxxx, Xxxxxxx & Associate, Inc., bearing the
seal and certification of Xxxxx X. Xxxxxxxx, Xx. Registered Land Surveyor No.
2558, dated March 19, 1999, last revised November 4, 1999, and recorded in Plat
Book 10, Pages 176 - 188, in the Office of the Clerk of the Superior Court of
Heard County, Georgia, which recorded Survey is incorporated herein by
reference.
73
EXHIBIT "G"
PERMITTED ENCUMBRANCES
1. All taxes for the year 1999 and subsequent years, not yet due and payable.
2. Riparian Rights incident to the Property.
3. Right-of-Way Deed Plant Xxxxxxx-Xxxxxxx Transmission Line from Xxxxxxx
Xxxxx Company, a Delaware Corporation, to Georgia Power Company, a Georgia
Corporation, dated August 7, 1974, filed for record September 14, 1974 at
8:30 a.m., recorded in Deed Book 75, Page 438, Records of Heard County,
Georgia.
4. Terms and conditions contained in that certain Easement Agreement by and
between Xxxxxx X. Xxxxx and Tenaska, Inc., a Delaware corporation, dated
May 7, 1998, filed for record May 7, 1998 at 1:54 p.m., recorded in Deed
Book 184, Page 578, aforesaid Records.
5. Terms and conditions contained in that certain Construction Easement
Agreement by and between Inland Paperboard and Packaging, Inc., a Delaware
corporation, Tenaska, Inc., a Delaware corporation, and Tenaska Georgia
Partners, L.P., a Delaware limited partnership, dated October 8, 1999,
filed for record October 11, 1999 at 2:51 p.m., recorded in Deed Book 201,
Page 107, aforesaid Records.
6. Terms and conditions contained in that certain Access Easement Agreement by
and between Inland Paperboard and Packaging, Inc., a Delaware corporation,
Tenaska, Inc., a Delaware corporation, and Tenaska Georgia Partners, L.P.,
a Delaware limited partnership, dated October 8, 1999, filed for record
October 11, 1999 at 2:54 p.m., recorded in Deed Book 201, Page 120,
aforesaid Records.
7. Terms and conditions contained in that certain Access and Utility Easement
Agreement from Tenaska, Inc., a Delaware corporation to Tenaska Georgia
Partners, L.P., a Delaware limited partnership, dated November 10, 1999,
filed for record November 10, 1999 at 4:10.m., recorded in Deed Book 201,
Page 666, aforesaid Records.
8. Terms and conditions of that certain Perpetual Right of Way and Easement
Agreement from Xxxxxxx X. Xxxxxxx, as Executor of the Last Will and
Testament of Xxx Xxx Xxxxxxx, to Tenaska Georgia Partners, L.P., a Delaware
limited partnership, dated November 10, 1999, filed for record November 10,
1999 at 4:14.m., recorded in Deed Book 201, Page 705, aforesaid Records,
and the terms and conditions of that certain Non-Interference and
Cross-Indemnity Agreement by and between Tenaska, Inc., a Delaware
corporation, and Tenaska Georgia Partners, L.P., a Delaware limited
partnership, dated November 10, 1999, filed for record November 10, 1999 at
4:22.m., recorded in Deed Book 201, Page 792, aforesaid Records.
9. Terms and conditions of that certain Natural Gas Pipeline Right of Way from
Great Northern Nekoosa Corporation, a Maine corporation, to Tenaska Georgia
Partners, L.P.,
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a Delaware limited partnership, dated November 10, 1999, filed for record
November 10, 1999 at 4:16.m., recorded in Deed Book 201, Page 743,
aforesaid Records, and the terms and conditions of that certain
Non-Interference and Cross-Indemnity Agreement by and between Tenaska,
Inc., a Delaware corporation, and Tenaska Georgia Partners, L.P., a
Delaware limited partnership, dated November 10, 1999, filed for record
November 10, 1999 at 4:22.m., recorded in Deed Book 201, Page 792,
aforesaid Records.
10. Terms and conditions of that certain Easement Agreement from Xxxxxx Xxxxxxx
Xxxxx and Xxxxx Xxxx Xxxxx, to Tenaska Georgia Partners, L.P., a Delaware
limited partnership, dated November 10, 1999, filed for record November 10,
1999 at 4:19.m., recorded in Deed Book 201, Page 786, aforesaid Records.
11. Easement Agreement by and between Tenaska, Inc., a Delaware corporation,
and Inland Paperboard and Packaging, Inc., a Delaware corporation, dated
October 8, 1999, filed for record October 11, 1999 at 2:54 p.m., recorded
in Deed Book 201, Page 125, aforesaid Records.
12. Memorandum of Right of First Refusal and Right To Repurchase Agreement by
and between Xxxxx X. Xxxxxx (formerly known as Xxxxx Xxxxxxx Xxxxx
Arrighton), and Tenaska Georgia Partners, L.P., a Delaware limited
partnership, dated August 26, 1998, filed for record September 1, 1998 at
1:21 p.m., recorded in Deed Book 188, Page 339, aforesaid Records.
12. Memorandum of Right of First Refusal Agreement by and between Tenaska,
Inc., a Delaware corporation, and Inland Paperboard and Packaging, Inc., a
Delaware corporation, dated October 8, 1999, filed for record October 11,
1999 at 3:15 p.m., recorded in Deed Book 201, Page 131, aforesaid Records.
13. Perpetual Right-of-Way and Easement Agreement from Tenaska Georgia
Partners, L.P., a Delaware limited partnership, to Tenaska, Inc., a
Delaware corporation, dated November 10, 1999, filed for record November
10, 1999 at 4:08.m., recorded in Deed Book 201, Page 653, aforesaid
Records.
14. Restricted Covenant from Tenaska Georgia Partners, L.P., a Delaware limited
partnership, dated November 10, 1999, filed for record November 10, 1999 at
4:12.m., recorded in Deed Book 201, Page 678, aforesaid Records.
15. Those matters disclosed by that certain ALTA/ACSM Title Survey, entitled
Heard County Power Generation Site for Tenaska, Inc., Tenaska Georgia,
Inc., Tenaska Georgia I, LP, Tenaska Georgia Partners, LP, Fidelity
National Title Insurance Company of New York, Xxxxxxx Title Guaranty
Company, Heard County Development Authority & The Chase Manhattan Bank as
Trustee and Collateral Agent, prepared by Xxxxxxxxx, Xxxxxxx & Associate,
Inc., bearing the seal and certification of Xxxxx X. Xxxxxxxx, Xx.
Registered Land Surveyor No. 2558, dated March 19, 1999, last revised
November 4, 1999, and recorded in Plat Book 10, Pages 176 - 188, in the
Office of the Clerk of the Superior Court of Heard County, Georgia, which
recorded Survey is incorporated herein by reference.
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16. Right of Way Deeds, in favor of Heard County, a political subdivision of
the State of Georgia, as follows:
(a) from Xxxxx Xxxxx, et al., dated June 12, 1963, recorded in Deed Book
55, Page 494, Records of Heard County, Georgia;
(b) from Xxxxx Xxxxx, et al., dated June 12, 1963, filed for record
October 29, 1963, recorded in Deed Book 55, Page 495, aforesaid
Records; and
(c) from Xxx Xxxxx, et al., dated June 15, 1963, filed for record October
29, 1963, recorded in Deed Book 55, Page 496, aforesaid Records.
17. That certain Indenture of Trust by and between the Development Authority of
Heard County, a public corporation of the State of Georgia, as issuer, and
The Chase Manhattan Bank, as trustee, a state banking corporation duly
organized and existing under and by virtue of the laws of the State of New
York, as trustee, dated November 10, 1999, filed for record November 10,
1999 at 4:36.m., recorded in Deed Book 202, Page 86, aforesaid Records.
18. Terms and conditions contained in that certain Lease Agreement by and
between the Development Authority of Heard County, a public corporation of
the State of Georgia, as lessor, and Tenaska Georgia Partners, L.P., a
Delaware limited partnership, as lessee, dated November 10, 1999, filed for
record November 10, 1999 at 4:34.m., recorded in Deed Book 202, Page 1,
aforesaid Records.
19. Terms and conditions contained in that certain Ground Lease by and between
Tenaska, Inc., a Delaware corporation, as lessor, and Tenaska Georgia
Partners, L.P., a Delaware limited partnership, as lessee, dated November
10, 1999, as evidenced by that certain Short Form Ground Lease Agreement by
and between Tenaska, Inc., a Delaware corporation, as lessor, and Tenaska
Georgia Partners, L.P., a Delaware limited partnership, as lessee, dated
November 10, 1999, filed for record November 10, 1999 at 4:33.m., recorded
in Deed Book 201, Page 820, aforesaid Records.
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