Exhibit 10.12
GROUND LEASE
BY AND BETWEEN
TENASKA, INC.
"LESSOR"
AND
TENASKA GEORGIA PARTNERS, L.P.
"LESSEE"
NOVEMBER 10, 1999
GROUND LEASE
THIS GROUND LEASE (the "Lease") is made and entered into as of November
10, 1999, (the "Effective Date") by and between TENASKA, INC., a Delaware
corporation ("Lessor"), and TENASKA GEORGIA PARTNERS, L.P., a Delaware limited
partnership ("Lessee").
RECITALS
A. Lessor owns that certain real property located in Heard County,
State of Georgia, which consists of approximately 13.13 acres of unimproved land
which is more particularly described in EXHIBIT "A" attached hereto (the
"Property").
B. Lessee desires to lease the Property for the purpose of constructing
a laydown area in connection with the construction of a power generation
facility on and/or adjacent to the Property;
NOW, THEREFORE, in consideration of the rents to be paid hereunder,
covenants and conditions contained herein, the parties hereby agree as follows:
ARTICLE 1. BASIC LEASE INFORMATION
The following is a summary of basic lease information. Each term or
item in this Article I shall be deemed to incorporate all of the provisions set
forth below pertaining to such term or item and to the extent there is any
conflict between the provisions of this Article I and any more specific
provision of this Lease, the more specific provision shall control.
Lessor: Tenaska, Inc.
Address of Lessor: 0000 Xxxxx 000xx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxxx 00000
Attn: Law and Contract Administration Departments
Lessee: Tenaska Georgia Partners, L.P.
Address of Lessee: 0000 Xxxxx 000xx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxxx 00000
Attn: Law and Contract Administration Departments
Commencement Date: Effective Date
Expiration Date: December 31, 2002
Term: Effective Date - December 31, 2002
Base Rent: $13,130.00 per year, payable in equal monthly
installments of $1,094.17 per month.
ARTICLE 2. LEASE OF PROPERTY
2.1 PROPERTY. Lessor hereby leases the Property to Lessee, Lessee
hereby hires the Property from Lessor, on the term and conditions set forth in
this Lease.
ARTICLE 3. ACCEPTANCE OF PROPERTY
Except as otherwise specifically provided in this Lease, Lessee hereby
agrees to take the Property in its existing condition and acknowledges that in
entering into this Lease, Lessee does not rely on, and Lessor does not make, any
express or implied representations or warranties as to any matters including,
without limitation, the suitability of the soil or subsoil, any characteristics
of the Property or improvements thereon, the suitability of the Property for
Lessee's intended use, the economic feasibility of the business Lessee intends
to conduct on the Property, title to the Property, or any other matter. Lessee
hereby leases the Property subject to all matters of record, including, without
limitation the Permitted Title Encumbrances identified on EXHIBIT "B" attached
hereto and made a part hereof.
ARTICLE 4. TERM
4.1 INITIAL TERM. The term of this Lease (the "Term") shall be for the
period stated in the Basic Lease Information, commencing on the Commencement
Date and expiring on the Expiration Date (as identified pursuant to Section
5.1), unless terminated earlier or extended as hereinafter provided. Regardless
of the length of the term of this Lease, both Lessor and Lessee agree that an
estate in land, and not a usufruct, is hereby created by this Lease.
ARTICLE 5. BASE RENT
5.1 RENT COMMENCEMENT. Rent shall commence on the Effective Date (the
"Rent Commencement Date").
5.2 BASE RENT. Commencing upon the Rent Commencement Date and
continuing throughout the Term, Lessee shall pay Base Rent to Lessor, at
Lessor's address stated in the Basic Lease Information, in equal monthly
payments of $1,094.17, without prior notice, demand, abatement or set off. Base
Rent shall be paid on the first day of each calendar month, in advance, without
deduction or offset. If the Rent Commencement Date or the Expiration Date occur
on other than the first day of a month, the installment of Base Rent due for
such partial month shall be prorated based on a 30-day month.
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5.3 LATE PAYMENT. If Lessee fails to pay any installment of Base Rent
or any Additional Rental (as defined in Article 6) within ten (10) days after
notice of non-receipt from Lessor, such unpaid amounts shall be subject to a
late payment charge equal to five percent (5%) of the unpaid amounts in each
instance. The late payment charge has been agreed upon by Lessor and Lessee
after negotiation, as a reasonable estimate of the additional administrative
costs and detriment that will be incurred by Lessor as a result of any such
failure by Lessee, the actual costs thereof being extremely difficult if not
impossible to determine.
ARTICLE 6. ADDITIONAL RENTAL
Each and every sum payable to Lessor pursuant to this Lease (other than
Base Rent), each and every sum Lessee pays to any third party pursuant to this
Lease, and each and every sum which Lessor pays to any third party to cure a
default of Lessee shall be additional rent ("Additional Rental"). Lessor shall
be entitled to the same rights and remedies with respect to recovery of
Additional Rental as it shall be with respect to Base Rent. Base Rent and
Additional Rental are collectively referred to herein as "Rent".
ARTICLE 7. NET LEASE; NO COUNTERCLAIM OR ABATEMENT
7.1 NET LEASE. The Base Rent and Additional Rental due to Lessor
hereunder shall be absolutely net to Lessor and shall be paid without assertion
of any counterclaim, setoff, deduction or defense and without abatement,
suspension, deferment or reduction. Except as expressly provided to the contrary
in this Lease, Lessor will not be required to make any expenditure, incur any
obligation, or incur any liability of any kind in connection with this Lease or
the ownership, construction, maintenance, operation or repair of the Property.
7.2 INDEPENDENT COVENANTS. The obligations of Lessee hereunder shall be
separate and independent covenants and agreements. Each agreement of Lessee
shall be both a covenant and a condition. Lessee hereby waives, to the full
extent permitted by applicable law, all rights now or hereafter conferred by
statute to quit, terminate or surrender this Lease or the Property or any part
thereof, or to any abatement, suspension, deferment, diminution or reduction of
any Rent hereunder.
ARTICLE 8. USE AND OPERATION OF PROPERTY
The Property shall be used as a laydown area in connection with the
construction of a power generation facility on a separate tract of land in the
vicinity of the Property, or any other lawful use permitted by applicable zoning
and land use restrictions.
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ARTICLE 9. IMPROVEMENTS AND ACTIVITIES UPON THE PROPERTY
9.1 IMPROVEMENTS AND ACTIVITIES. Lessee is permitted to construct the
following improvements and engage in the following activities on the Property:
(i) to grade and lay down aggregate on the Property;
(ii) to construct roads and access ways on the Property;
(ii) to construct security fencing and gates around the boundary of
the Property;
(iii) to construct temporary parking and temporary storage areas;
(iv) to construct temporary warehouses and construction equipment
maintenance areas, both of which may have concrete slab
floors;
(v) to construct and/or install temporary office facilities;
(vi) to receive and unload permanent materials and consumable
supplies;
(vii) to store permanent materials and consumable supplies in the
temporary warehouse structures and on aggregate surfaced
storage areas;
(viii) to fabricate and assemble permanent materials;
(ix) to receive, assemble, disassemble, maintain and store
construction equipment;
(x) to construct temporary structures for brass-in and brass-out
of workers;
(xi) to construct or install temporary restroom facilities for
workers;
(xii) installation of holding tanks to hold waste water discharged
from temporary office facilities, and for the installation of
temporary sanitary sewer lines needed to discharge waste water
into any available sanitary sewer system; and
(xiii) installation of temporary utility pipes and lines (both
underground and overhead).
9.2 All costs of design, engineering, permitting and construction of
any Improvements to the Property shall be at Lessee's sole cost and expense.
9.3 PERMITS AND APPROVAL. Lessee shall be solely responsible at its
sole cost and expense for obtaining the approval of any necessary governmental
agency with jurisdiction over the Property for any general plan approval or
amendment, rezoning, variance, conditional use permit, building, electrical and
plumbing permits, environmental impact analysis and mitigations imposed thereby,
or other governmental action necessary to permit the construction and
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operation of the laydown area in accordance with this Lease. Any fees or other
assessments imposed as part of the approval process shall be paid by Lessee.
9.4 INSURANCE REQUIREMENTS. Before commencing to perform any of the
activities permitted by Section 9.1 hereof and before any building materials
have been delivered to the Property by Lessee or under Lessee's authority,
Lessee shall procure or cause to be procured the insurance coverage described
below in the limits hereinafter provided, and shall provide Lessor with
certificates of such insurance:
(i) Comprehensive liability insurance covering Lessee, Lessor and each
contractor and subcontractor engaged in any work on the Property, which
insurance may be effected by endorsement if obtainable, on the policy required
to be carried pursuant to Article 18, covering Lessor and Lessee, and in a
liability amount not less than Twenty Million Dollars ($20,000,000) under
Lessee's Comprehensive Liability Insurance Policy and Umbrella Liability
Insurance Policy. Such coverage may be provided on a "claims made" basis.
All insurance required pursuant to this Section 9.5 shall meet the
requirements of Section 18.6.
9.5 GENERAL CONSTRUCTION REQUIREMENTS. All construction and other work
shall be done in a good and workmanlike manner and consistent with all existing
and future applicable local, state and federal statutes, rules, regulations,
codes (including, without limitation, zoning and building codes), ordinances,
permits, orders and other applicable law, and all amendments and modifications
thereto (collectively "Applicable Laws").
ARTICLE 10. ARBITRATION OF DISPUTES.
In any instance where this Lease provides for the arbitration of
disputes, such disputes shall be resolved through arbitration to be conducted in
accordance with the commercial arbitration rules of the American Arbitration
Association then in effect as supplemented by the terms of this Agreement.
Discovery shall be available to the parties in such arbitration proceedings as
prescribed by law for civil actions in the state courts having jurisdiction over
disputes, including without limitation subpoenas requiring attendance of
witnesses, subpoenas duces tecum for the production of books, records, documents
and other evidence, interrogatories and depositions. All arbitration proceedings
shall be held in Omaha, Nebraska before one neutral arbitrator having at least
five years' real estate experience. The arbitrator shall be selected by mutual
agreement of Lessor and Lessee, or, if the parties are unable to agree on an
arbitrator within thirty (30) days after arbitration is first requested either
party shall have the right to petition any court with jurisdiction to appoint an
arbitrator. The non-prevailing party shall bear all costs and expenses of the
arbitration, including without limitation the prevailing party's reasonable
attorneys' fees and costs as provided in Section 34.6. The arbitrator shall have
no power to alter or modify any of the terms of this Lease and the arbitrators
jurisdiction shall be limited accordingly. Judgment upon the award may be
entered in any court having jurisdiction.
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ARTICLE 11. MECHANICS' AND OTHER LIENS
11.1 NO LIENS. Lessee covenants and agrees to keep all of the Property
and every part thereof and all improvements thereon free and clear of and from
any and all mechanics', material supplier's and other liens for work or labor
done, services performed, materials, appliances, or power contributed, used or
furnished to be used in or about the Property for or in connection with any
operations of Lessee, any improvements that Lessee may make or permit or cause
to be made, or any work or construction by, for or permitted by Lessee on or
about the Property, and at all times promptly and fully to pay and discharge any
and all claims upon which any such lien may or could be based, and to save and
hold Lessor and all of the Property and the improvements thereon free and
harmless of and from any and all such liens and claims of liens and suits or
other proceedings pertaining thereto.
11.2 RIGHT TO CONTEST LIENS. Lessee shall have the right to contest, in
good faith, the amount or validity of any lien of the nature described in
Section 11.1 above, provided that Lessee shall give Lessor written notice of
Lessee's intention to do so within ten (10) days after the recording of such
lien, and provided further, that Lessee shall, at its expense, defend itself and
Lessor against the same and shall pay and satisfy any adverse judgment that may
be rendered thereon before the enforcement thereof against the Property. In
addition, at the request of Lessor, Lessee shall procure and record the bond as
required by Applicable Law for purposes of freeing the Property from the effect
of such lien or claim or action thereof. Lessee shall pay all reasonable
attorneys' fees, consultants fees, travel expenses, and other costs incurred by
Lessor in connection with any such contest.
11.3 NO EFFECT ON LESSOR'S INTERESTS. No mechanics' or material
suppliers' liens or other liens of any character whatsoever created or suffered
by Lessee shall in any way, or to any extent, affect the interests, right or
title of Lessor in and to the Property.
11.4 LESSOR'S RIGHT TO CAUSE RELEASE OF LIENS. If Lessee shall not
within ten (10) days following the imposition of any such lien which is not
being contested by Lessee in accordance with Section 11.2 cause the lien to be
released of record by payment or posting of a proper bond, Lessor shall have the
right but not the obligation to cause the same to be released by such means as
Lessor shall deem appropriate and the amount paid by Lessor together with all
expenses incurred by Lessor in connection therewith (including without
limitation reasonable attorneys' fees and expenses), plus interest at eighteen
percent (18%) per annum or the maximum rate allowed by law, whichever is less,
from the date of payment by Lessor, shall be Additional Rental, immediately due
and payable by Lessee to Lessor upon demand.
ARTICLE 12. OWNERSHIP OF IMPROVEMENTS
All improvements constructed, installed or placed by Lessee on the
Property shall be the property of Lessee during the Term. Prior to expiration of
the Term, and within sixty (60) days after any earlier termination of this Lease
if terminated pursuant to any provision hereof, Lessee shall have the right to
remove, at Lessee's sole cost and expense, any improvements originally installed
on the Property at Lessee's expense, provided that all work to remove such
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improvements is performed in compliance with Applicable Laws, and the Property
left in compliance with Applicable Laws, free of any liens. Upon expiration of
this Lease, or on the date sixty (60) days after any earlier termination of this
Lease, all of Lessee's right, title and interest in the improvements shall cease
and terminate and title to the improvements shall immediately vest in Lessor.
Lessee shall surrender the Property to Lessor as provided in Article 25. No
further deed or other instrument shall be necessary to confirm the vesting in
Lessor of title to the improvements.
ARTICLE 13. MAINTENANCE AND REPAIRS; NO WASTE
13.1 MAINTENANCE AND REPAIRS. During the Term, Lessee shall, at its own
cost and expense and without any cost or expense to Lessor, keep and maintain
the Property in good condition and repair and shall allow no nuisances to exist
or be maintained thereon. Lessee shall promptly make all repairs, replacements
and alterations (whether structural or nonstructural, foreseen or unforeseen or
ordinary or extraordinary) necessary to maintain the Property in good condition
and in compliance with all Applicable Laws.
13.2 NO WASTE. Lessee shall not commit or permit waste upon the
Property, other than the removal of trees and clearing and grading of the
Property as Lessee determines is needed in order for Lessee to conduct its
business operations on the Property.
13.3 NO LESSOR OBLIGATIONS. Lessor shall not be obligated to make to
the Property any repairs, replacements or renewals of any kind, nature or
description whatsoever and Lessee hereby expressly waives any right to terminate
this Lease and any right to make repairs at Lessor's expense under Applicable
Laws, if any, or any amendments thereof or any similar law, statute or ordinance
now or hereafter in effect.
ARTICLE 14. UTILITIES AND SERVICES
Lessee shall be solely responsible for, shall make all arrangements
for, and shall pay for all utilities and services furnished to or used at the
Property including without limitation, gas, electricity, other power, water,
telephone, cable and other communication services, security services, sewage,
sewage service fees, trash collection, and any taxes or impositions thereon.
Lessee shall maintain, repair and replace all such utility services located on
or connected to the Property at no cost or expense to Lessor.
ARTICLE 15. [Intentionally Deleted]
ARTICLE 16. COMPLIANCE WITH LAWS; INSURANCE REQUIREMENTS
16.1 COMPLIANCE WITH APPLICABLE LAWS. Lessee, at Lessee's sole cost and
expense, shall comply with all Applicable Laws related to the use or occupancy
of the Property by Lessee.
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16.2 COMPLIANCE WITH INSURANCE REQUIREMENTS. Lessee shall not do
anything, or permit anything to be done, in or about the Property that would,
(i) invalidate or be in conflict with the provisions of any fire or other
insurance policies covering the Property or any property located therein.
ARTICLE 17. HAZARDOUS SUBSTANCES
17.1 LESSEE'S ENVIRONMENTAL COVENANT AND INDEMNIFICATION. Lessee shall
not handle, store, manufacture, treat, release, dispose of, or cause or permit
to be brought upon the Property any Hazardous Substances on or in the Property,
except in the ordinary course of Lessee's business, and shall not discharge any
Hazardous Substances onto the land or any surface water or ground water at or
near the Property, except in compliance with Applicable Laws. Lessee shall
indemnify, defend and hold harmless Lessor from and against any and all claims,
demands, actions, suits, orders, proceedings, judgments, injunctions,
liabilities, losses, liens, costs, expenses, (including reasonable attorneys'
fees and fees of other experts and consultants), and damages, of any kind or
nature, threatened, made, brought or entered against Lessor or any of its
officers, directors, agents or employees, to the extent arising out of Hazardous
Substances in, on or under the Property that directly resulted from the
activities of Lessee or any of its agents or employees on the Property.
17.2 ENVIRONMENTAL NOTICES. Lessor and Lessee shall each immediately
advise the other in writing of (a) any and all governmental agency regulatory
proceedings or enforcement actions instituted or threatened which presently
require or could require investigation, mitigation, clean-up, alteration or
abatement of conditions at the Property, and (b) all claims made or threatened
by any party against either party or the Property relating to damage,
contribution, cost recovery, compensation, loss or injury resulting from any
Hazardous Substance.
17.3 DEFINITIONS. For purposes of this Article 17, "Hazardous
Substances" shall mean any substance which is (i) designated, defined,
classified or regulated as a hazardous substance, hazardous material, hazardous
waste, pollutant or contaminant under any Environmental Law, as currently in
effect or as hereafter amended or enacted, (ii) a petroleum hydrocarbon
including crude oil or any fraction thereof and all petroleum products, (iii)
PCBs, (iv) asbestos, (v) flammable, explosive, toxic, or otherwise regulated
pursuant to Environmental Laws, or (vi) infectious, (vii) radioactive, (viii)
carcinogenic, or (ix) a reproductive toxic. "Environmental Law(s)" shall mean
the comprehensive Environmental Response, Compensation and Liability Act of
1980, 42 U.S.C. 9601, ET. SEQ., the Resource Conservation and Recovery Act of
1979, 42 U.S.C. sections 6901 ET. SEQ., the Hazardous Materials Transportation
Act, 49 U.S.C. Sections 1801 ET. SEQ., the Clean Water Act, 33 U.S.C. Sections
1251 ET. SEQ., as said laws have been supplemented or amended to date, the
regulations promulgated pursuant to said laws and any other federal, state or
local law, statute, rule, regulation, ordinance, decree, order, permit, license,
approval or authorization which regulates or proscribes the use, storage,
disposal, presence, cleanup, transportation or release or threatened release
into the environment of Hazardous Substances or pertaining to the protection of
human health and safety of the environment.
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ARTICLE 18. IMPOSITIONS; INSURANCE
18.1 IMPOSITIONS. As Additional Rental hereunder, Lessee covenants and
agrees to bear, discharge and pay to the relevant authority or entity, in lawful
money of the United States, without offset or deduction, as the same become due,
before delinquency, all real estate taxes, assessments, rates, charges, license
fees, municipal liens, levies, excises or imposts, whether general or special,
or ordinary or extraordinary, including all governmental charges that may be
levied, assessed, charged or imposed or may be or become a lien or charge upon
the Property or any part thereof; or upon the use or occupancy of the Property;
upon any buildings or improvements that are or are hereafter placed, built or
newly constructed upon the Property; or upon the leasehold of Lessee or upon the
estate hereby created; commencing as of the Rent Commencement Date and
continuing throughout the Term. If at any time during the Term, under any
Applicable Laws, any tax is levied or assessed against Lessor directly, in
substitution in whole or in part for the above-described real property taxes,
Lessee covenants and agrees to pay and discharge such tax. All of the foregoing
taxes, assessments and other charges are herein referred to as "Impositions".
Impositions shall not include franchise, transfer, inheritance or estate taxes
imposed upon or assessed against the Property, or taxes computed based on the
net income of Lessor.
18.2 RIGHT TO CONTEST. Lessee shall have the right to contest, by
appropriate proceedings, the amount or validity, in whole or in part, of any
Imposition. Lessor shall have no obligation to join in any such proceedings.
Lessee shall indemnify and defend Lessor against and save Lessor harmless, in
accordance with Article 19, from and against any and all claims, demands,
liabilities, losses, liens, damages, penalties, costs and expenses, including,
without limitation, reasonable attorneys' fees and expenses, of any kind or
nature, arising from or in connection with any such proceedings.
18.3 PRORATION. Any Imposition relating to a fiscal period of any
taxing authority, only a part of which period is included within the Term, shall
be prorated as between Lessor and Lessee so that Lessor shall pay the portion
thereof attributable to any period prior to the commencement of and subsequent
to the lapse of the Term, and Lessee shall pay the portion thereof attributable
to any period during the Term.
18.4 ASSESSMENT PROCEEDINGS. If at any time during the Term any
governmental authority shall undertake to create an improvement or special
assessment district the proposed boundaries of which shall include the Property,
Lessee shall be entitled to appear in any proceeding relating thereto and to
exercise all rights of a landowner to have the Property excluded from the
proposed improvement or special assessment district or to determine the degree
of benefit to the Property resulting therefrom. The party receiving any notice
or other information relating to the proposed creation of any improvement or
special assessment district, the proposed boundaries of which include the
Property, shall promptly advise the other party in writing of such receipt.
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18.5 REQUIRED INSURANCE. At all times during the Term and at its sole
cost and expense, Lessee shall obtain and keep in force for the benefit of
Lessee and Lessor the following insurance:
(a) PROPERTY INSURANCE. Upon the construction of any insurable
improvements to the Property, property insurance covering all risks, fire and
other perils, in an amount equal to the Full Insurable Replacement Value, as
defined below. Such policy shall specify that proceeds shall be payable whether
or not any improvements are actually rebuilt. Each such policy shall include an
endorsement protecting the named and additional insureds against becoming a
co-insured under the policy. "Full Insurable Replacement Value" means 100% of
the actual costs to replace the improvements (without deduction for depreciation
but with standard exclusions such as foundations, excavations, paving and
landscaping, as applicable to specific perils), including the costs of
demolition and debris removal and including materials and equipment not in place
but in transit to or delivered to the Property.
(b) COMPREHENSIVE GENERAL LIABILITY. Comprehensive general liability
through one or more primary and umbrella liability policies against claims
including but not limited to, bodily injury and property damage occurring on the
Property or the streets, curbs or sidewalks adjoining the Property, with such
limits as may be commercially reasonable from time to time, but in any event not
less than Ten Million Dollars ($10,000,000), combined single limit and annual
aggregate for the Property, which Lessee shall increase as necessary during the
Term to maintain adequate coverage over time which is comparable to the
requirements in effect as of the execution of this Lease. Such insurance shall
insure the performance by Lessee of the indemnity agreements contained in this
Lease.
(c) OTHER. All other insurance that Lessee is required to maintain
under Applicable Laws.
18.6 POLICY FORM AND GENERAL.
(a) All of the insurance policies required under this Lease, including
without limitation, under the provisions of Article 9 and this Article 18, and
all renewals thereof shall be issued by one or more companies of recognized
responsibility, authorized to do business in Georgia with an A. M. Best rating
of A XII or higher and which are otherwise reasonably acceptable to Lessor. All
property and liability insurance hereunder shall name Lessor and its officers as
additional insureds. All insurance of Lessee shall be primary coverage.
(b) Each policy of property insurance and all other policies of
insurance on the improvements or Property which shall be obtained by Lessee,
whether required by the provisions of this Lease or not, shall be made expressly
subject to the provisions of this Article 18 and shall provide that Lessee's
insurers shall waive any right of subordination against Lessor. All policies
provided for herein expressly shall provide that such policies shall not be
cancelled, terminated or altered without thirty (30) days' prior written notice
to Lessor. A certificate of the policy executed by the insurance company
evidencing that the required insurance coverage is in full force and effect,
shall be deposited with Lessor, shall be maintained throughout the Term, and
shall be renewed not less than thirty (30) days before the expiration of the
term of the policy.
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ARTICLE 19. INDEMNITY
19.1 LESSEE'S INDEMNITY. Lessee shall indemnify, protect, defend and
save and hold harmless Lessor and the Property from and against any and all
claims, demands, liabilities, losses, liens, costs, actions, causes of action,
suits, costs, expenses (including, without limitation, reasonable attorneys'
fees and fees of other experts and consultants) and damages, of any kind or
nature, to the extent arising out of or in connection with (i) any default by
Lessee in the observance or performance of any of the terms, covenants or
conditions of this Lease on Lessee's part to be performed by Lessee or by any
other person or entity claiming under Lessee, (ii) the conduct or management of
any work or thing done in or on the Property, (iii) any actual or alleged acts,
omissions, negligence or willful misconduct, in, on or about the Property, of
Lessee or its subtenants, licensees, contractors or subcontractors, or any other
their respective agents, employees, servants, invitees, visitors, contractors or
subcontractors, or (iv) the use or occupancy of the Property by Lessee or its
subtenants, licensees, contractors or subcontractors, or any other their
respective agents, employees, servants, invitees, visitors, contractors or
subcontractors, and (v) any accident or other occurrence on or about the
Property; except to the extent that any of the foregoing are caused by or result
solely from the gross negligence or willful misconduct of Lessor or any of
Lessor's agents or employees. In case any claim, action or proceeding be
brought, made or initiated against Lessor relating to any of the above described
events, omissions, occurrences, or conditions, Lessee, upon notice from Lessor,
shall at its sole cost and expense resist, or defend such claim, action or
proceeding by attorneys reasonably approved by Lessor.
ARTICLE 20. APPROPRIATION, DAMAGE OR DESTRUCTION
20.1 NO TERMINATION. No Appropriation (as defined below), nor any loss
or damage by fire or other cause resulting in either partial or total
destruction of the Property, the improvements or any other property on the
Property shall operate to terminate this Lease, except as expressly set forth in
Section 20.6 below with respect to an Appropriation of the Property. Lessee
shall have no rights to terminate this Lease in the case of any total or partial
fire, loss, casualty, damage or destruction of the Property. Unless this Lease
is terminated pursuant to and in accordance with this Article 20, and except as
expressly provided in Section 20.3 below with respect to reduction of Rent in
the event of a partial Appropriation, no such Appropriation, loss or damage
shall relieve or discharge Lessee from the payment of Rent or from the
performance and observance of any of the agreements, covenants and conditions
herein contained, on the part of Lessee to be performed and observed. For the
purpose of this Lease, "Appropriation" shall mean any taking by exercise of
right of condemnation (direct or inverse) or eminent domain, or requisitioning
by military or other public authority for any purpose arising out of a temporary
emergency or other temporary circumstance, or sale under threat of condemnation.
20.2 EVALUATION OF EFFECT OF APPROPRIATION. Upon any Appropriation of
less than the entire Property, Lessee shall promptly undertake to determine the
effect of such Appropriation on the remaining portion of the Property and the
function of the Property and, if this Lease is not
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terminated pursuant to and in accordance with this Article 20, the cost and time
to make any repairs and Alterations to the remaining portion of the Property
necessary in order for the Property to be restored to an economically viable
whole capable of operation in accordance with this Lease no later than ninety
(90) days after the occurrence of the Appropriation.
20.3 PARTIAL APPROPRIATION; AMENDMENT; DUTY TO RESTORE. If less than
the entire Property is subject to an Appropriation and this Lease is not
terminated pursuant to and in accordance with this Article 20, this Lease shall
be deemed terminated as to the part so Appropriated as of the date of
Appropriation and shall be deemed amended, effective as of the effective date of
such Appropriation, such that the definition of the "Property" shall include
only that portion of the land that is not subject to such Appropriation. Lessee,
as promptly as practicable and with all due diligence, shall cause the repair or
reconstruction of or the making of Alterations as necessary to restore the
Property to a fully functioning whole with all facilities necessary to operate
the Property in accordance with this Lease.
20.4 DAMAGE OR DESTRUCTION; DUTY TO RESTORE. If the Property or any
portion thereof are damaged or destroyed at any time during the Term, Lessee, as
promptly as practicable and with all due diligence, shall cause the repair and
reconstruction of the Property and all improvements thereon to a condition
substantially equal to or better than their condition immediately prior to such
damage or destruction.
20.5 PERFORMANCE OR REPAIRS, RESTORATION AND ALTERATIONS. All repairs,
restoration and alterations shall be performed in accordance with the provisions
of Article 9 of this Lease. Subject to Section 20.6, all insurance proceeds and
all awards received by or payable to any party with respect to such damage or
Appropriation, less actual costs and expenses incurred in connection with the
collection thereof, shall be applied to the costs of repair, restoration and
alterations of the Property in accordance with the provisions of this Article 20
and Article 9 hereof. Lessee shall pay any amount by which the award or
insurance proceeds received as a result of such damage or Appropriation, less
the costs and expenses incurred in connection with the collection thereof, are
insufficient to pay the entire cost of such repair, restoration or Alterations.
20.6 OPTION TO TERMINATE UPON APPROPRIATION. If during the Term the
entire Property or such substantial portion thereof shall be Appropriated such
that such Appropriation makes the continued operation of the remaining portion
of the Property for the purposes permitted hereunder economically unfeasible,
then Lessee shall have the option to terminate this Lease.
20.7 TERMINATION; LESSEE'S OBLIGATION TO RESTORE; ARBITRATION. Lessee
may exercise any option to terminate pursuant to Section 20.6 above by giving
written notice to Lessor, within thirty (30) days after the Appropriation, as
the case may be. If Lessee elects to terminate this Lease pursuant to this
Article 20, Lessee shall surrender the Property to Lessor in accordance with the
provisions of Article 25. All awards with respect to Lessee's interests and all
awards for severance damages and all proceeds of insurance payable with respect
to such Appropriation, after payment of costs and expenses of collection
thereof, shall first be applied to the costs of such demolition, and then, to
the extent of any remaining insurance proceeds, to the
12
cost of the repair and restoration of any improvements Lessor elects to retain
on the Property. The balance, if any, of such awards or insurance proceeds,
shall be distributed as provided in Section 20.10. Should Lessor and Lessee for
any reason disagree as to whether the conditions provided in Section 20.6 to
Lessee's rights to elect to terminate this Lease have occurred, the matter shall
be determined by arbitration pursuant to Article 10 hereof.
20.8 DETERMINATION OF AWARD. The amount of the award due to Lessor and
Lessee as a result of Appropriation shall be separately determined by the court
having jurisdiction of such proceedings based on the following: Lessor shall be
entitled to that portion of the award attributable to the residual value of the
fee interest in the Property (or portion thereof subject to Appropriation, in
case of a partial Appropriation) subject to this Lease; Lessee shall be entitled
to that portion of the award attributable to the value of Lessee's leasehold
interest in the Property (or portion thereof subject to Appropriation, in case
of a partial Appropriation) and to the value of Lessee's interest in any
improvements and any alterations made to the Property (or portion thereof
subject to Appropriation, in case of a partial Appropriation), as determined by
the court.
20.9 EXCESS PROCEEDS AND AWARDS FOR LESSEE'S INTERESTS. If the total
award made in connection with any Appropriation for Lessee's interests, and for
severance damages to both Lessee and Lessee's interests, exceeds the amount
necessary to repair, restore or construct Alterations as required under this
Article 20, or if there are proceeds of insurance in excess of that required to
repair or restore the Property as required under this Article 20, upon receipt
by Lessor of satisfactory evidence that the work of repair, restoration and
construction required under this Article 20 has been fully completed and paid
for in accordance with the provisions of Article 9 and the last day for filing
any mechanic's or materialmen's liens has passed without the filing of any, or
if any such lien has been released, any remaining proceeds of insurance shall be
paid to Lessee.
20.10 RIGHT TO PARTICIPATE IN SETTLEMENT. Lessor and Lessee shall both
have the right to participate in the settlement or compromise of any insurance
proceeds and awards. If in any Appropriation the court does not make the
allocation of awards referred to in Section 20.9 and the parties cannot agree
upon such allocations, such allocations shall be determined by arbitration
pursuant to Article 10 hereof.
ARTICLE 21. ASSIGNMENT
21.1 LESSOR'S CONSENT REQUIRED. Except with respect to a Permitted
Transfer (as defined below), Lessee shall not, either voluntarily or
involuntarily, or by operation of law, assign this Lease or any interest
therein, and shall not sublet the Property or any part thereof, without the
written consent of Lessor first had and obtained, which consent shall not be
unreasonably withheld. Notwithstanding the foregoing, Lessee shall have the
right to assign this Lease without Lessor's prior written consent but upon prior
notice to Lessor to (a) any entity resulting from a merger or consolidation with
Lessee, (b) any entity purchasing or succeeding to substantially all of the
assets of Lessee, or (c) any corporation which controls, is controlled by, or is
under common control with Lessee (collectively, "Permitted Transfers") provided
(i) such assignee assumes in writing all of Lessee's obligations under this
Lease prior to or concurrently
13
with such assignment, and (ii) no such assignment shall release or relieve
Lessee of any duties, obligations or liabilities under the Lease.
21.2 NOTICE OF INTENT TO ASSIGN. If Lessee desires at any time to
assign this Lease to a nonaffiliated entity or person or to sublet the Property
or any portion thereof (other than pursuant to a Permitted Transfer), it shall
notify Lessor of its desire to do so and shall submit in writing to Lessor: (a)
the name of the proposed sublessee or assignee; (b) the nature of the proposed
sublessee or assignee's business to be carried on in the Property; (c) a
complete copy of the proposed sublease or assignment and (d) such operational
and financial information as is reasonably necessary for Lessor to adequately
evaluate the acceptability of the proposed sublease or assignment within
fourteen (14) days after Lessor's receipt of the information specified above,
Lessor shall by written notice to Lessee elect to (i) consent to the sublease or
assignment upon the proposed terms and conditions, or (ii) refuse to give its
consent. If Lessor disapproves of any proposed assignment or sublease, Lessor's
response must explain the reasons for such disapproval. If Lessor does not
respond within said 14 day period, Lessor shall be deemed to have consented to
the proposed assignment or sublease.
21.3 UNAUTHORIZED ASSIGNMENTS VOID; NO WAIVER. Any assignment or
sublease without the prior written consent of Lessor (if required) shall be
void, and shall, at the option of Lessor constitute a default under this Lease.
Lessor's waiver or consent to any assignment or sublease shall not relieve
Lessee from any obligation under the Lease, or constitute a waiver or consent
with respect to subsequent or different subleases or assignments, unless the
consent shall expressly so provide. The acceptance of Rent by Lessor from any
other person shall not be deemed to be a waiver of any provision of this Article
21. Lessor's consent to any assignment or sublease shall in no way relieve
Lessee of its duties, obligations or liabilities under this Lease.
ARTICLE 22. LESSOR'S RIGHT OF INSPECTION
Lessor shall be entitled, at all reasonable times and upon reasonable
notice during regular business hours to go upon and into the Property for the
purposes of inspecting the performance by Lessee of the terms, covenants,
agreements and conditions of this Lease.
ARTICLE 23. EVENT OF DEFAULT AND LESSOR'S REMEDIES
23.1 EVENTS OF DEFAULT. The occurrence of any of the following shall be
an "Event of Default" on the part of Lessee hereunder:
(a) Failure to pay Rent at the times or in the manner herein provided,
when such failure shall continue for a period of ten (10) days after written
notice thereof from Lessor to Lessee. No such notice shall be deemed a
forfeiture or a termination of this Lease unless Lessor expressly so elects in
such notice; or
(b) Failure to perform any non-monetary provision of this Lease when
such failure shall continue for a period of thirty (30) days, or such other
period as is expressly set forth
14
herein, after written notice thereof from Lessor to Lessee; provided that if the
nature of the default is such that it will reasonably take more than thirty (30)
days to cure, Lessee shall not be in default so long as it promptly commences
and diligently prosecutes such cure to completion. No notice of default shall be
deemed a forfeiture or a termination of this Lease unless Lessor expressly so
elects in such notice.
23.2 LESSOR'S REMEDIES. Upon the occurrence of an Event of Default,
Lessor shall have the following rights and remedies:
(a) The right to terminate this Lease, in which event Lessee shall
immediately surrender possession of the Property in accordance with Article 25,
and pay to Lessor all Rent and other charges and amounts due from Lessee
hereunder to the date of termination;
(b) Lessor may continue this Lease in effect and enforce all of its
rights and remedies under this Lease, including the right to recover Rent as it
becomes due, for so long as Lessor does not terminate Lessee's right to
possession. Acts of maintenance or preservation, efforts to relet the Property
or the appointment of a receiver upon Lessor's initiative to protect its
interest under this Lease shall not constitute a termination of Lessee's right
to possession.
23.3 RIGHTS CUMULATIVE. The various rights and remedies reserved to
Lessor herein shall be cumulative and shall be in addition to every other right
or remedy provided for in this Lease or now or hereafter existing at law or in
equity and the exercise of the rights or remedies provided for in this Lease or
now or hereafter existing at law or in equity shall not preclude the
simultaneous or later exercise by Lessor of any or all other rights and
remedies.
ARTICLE 24. LESSOR'S RIGHT TO CURE DEFAULTS
If Lessee shall fail or neglect to do or perform any act or thing
herein provided by it to be done or performed and such failure shall not be
cured within any applicable grace period provided in Article 23, then Lessor
shall have the right, but shall have no obligation, to pay any Imposition
payable by Lessee hereunder, discharge any lien, take out, pay for and maintain
any insurance required under Article 18, or do or perform or cause to be done or
performed any such other act or thing (entering upon the Property for such
purposes, if Lessor shall so elect), and Lessor shall not be or be held liable
or in any way responsible for any loss, disturbance, inconvenience, annoyance or
damage resulting to Lessee on account thereof, and Lessee shall repay to Lessor
upon demand the entire reasonable cost and expense thereof . All amounts payable
by Lessee to Lessor under any of the provisions of this Lease, if not paid when
the same become due as in this Lease provided, shall bear interest at eighteen
percent (18%) per annum or the maximum rate allowed by law, whichever is less.
ARTICLE 25. SURRENDER OF THE PROPERTY
Upon the termination of this Lease, whether at the expiration of the
Term as stated in Article 4 hereof or prior thereto pursuant to any provision
hereof, Lessee shall surrender to
15
Lessor the Property in good order and repair, reasonable wear and tear excepted,
and free and clear of all liens and encumbrances. Upon any termination of this
Lease, all improvements shall automatically and without further act by Lessor or
Lessee become the property of Lessor, free and clear of any claim or interest
therein on the part of Lessee or anyone claiming under Lessee, and without
payment therefor by Lessor, provided that Lessee may remove any equipment,
fixtures or other personal property of Lessee. Upon or at any time after the
Expiration Date, if requested by Lessor, Lessee shall, without charge to Lessor,
promptly execute, acknowledge and deliver to Lessor a good and sufficient
quitclaim deed and xxxx of sale of all of Lessee's right, title, and interest in
and to the Property and the improvements thereon. Lessee hereby irrevocably
appoints Lessor as its lawful attorney in fact to execute and deliver for, on
behalf of and in the name of Lessee, any such deed, xxxx of sale, or other
instrument referred to in this Article 25 or otherwise, required to document the
transfer or reversion to Lessor of such interests of Lessee, and Lessee and
Lessor agree that such power of attorney shall be a power coupled with an
interest. Any personal property of Lessee that remains on the Property after the
Expiration Date may, at the option of Lessor, be deemed to have been abandoned
by Lessee and may either be retained by Lessor as its property or disposed of,
without accountability, in such manner as Lessor may determine in its sole
discretion,
ARTICLE 26. SIGNS
During the term Lessee shall be allowed to install and maintain any and
all signs on Property Lessee desires to install, provided that (i) all signs
shall comply with Applicable Law, (ii) Lessee shall be obligated to remove all
such signage at the expiration or earlier termination of the Term, and (iii) all
such signage shall be subject to Lessor's prior written approval, such approval
not to be unreasonably withheld, conditioned or delayed.
ARTICLE 27. NO WAIVER BY LESSOR
No failure by Lessor to insist upon the strict performance of any term,
covenant, agreement, provision, condition or limitation of this Lease or to
exercise any right or remedy upon a breach thereof, and no acceptance by Lessor
of full or partial Rent during the continuance of any such breach shall
constitute a waiver of any such breach or of such term, covenant, agreement,
provision, condition or limitation. No term, covenant, agreement, provision,
condition or limitation of this Lease and no breach thereof may be waived,
altered or modified except by a written instrument executed by Lessor. No waiver
of any breach shall affect or alter this Lease but each and every term,
covenant, agreement, provision, condition and limitation of this Lease shall
continue in full force and effect with respect to any other then existing or
subsequent breach.
ARTICLE 28. NO PARTNERSHIP
It is expressly understood that neither Lessee nor Lessor is or
becomes, in any way or for any purpose, a partner of the other in the conduct of
its business, or otherwise, or joint venturer
16
or a member of a joint enterprise with the other, or agent of the other by
reason of this Lease or otherwise.
ARTICLE 29. SUBORDINATION AND ATTORNMENT
29.1 ATTORNMENT. In the event of a foreclosure proceeding or the
exercise of the power of sale under any mortgage or deed of trust, Lessee will,
if requested, attorn to the purchaser and recognize the purchaser as Lessor
under this Lease. However, Lessee's obligation to attorn to the purchaser will
be conditioned on Lessee's receipt of a nondisturbance agreement.
29.2 SUBORDINATION. This Lease is subject and subordinate to all the
liens of all mortgages and deeds of trust that now or later affect the Property
or Lessor's interest therein, and to all subdivision maps of the Property that
are now or may become of record, and all other matters of record as of the
Effective Date, all without the necessity of Lessee's executing further
instruments to effect the subordination. Notwithstanding such subordination,
Lessee's right to quiet possession of the Property shall not be disturbed if
Lessee is not in default of its obligation under this Lease beyond any
applicable cure period. If requested, Lessee will execute whatever documentation
may be required to further effect the provision of this Section 29.2, provided
that any subordination shall be conditioned on Lessee's receipt of a
nondisturbance agreement.
ARTICLE 30. NOTICES
Any notice, consent or other communication required or permitted under
this Lease shall be in writing and shall be delivered by hand, sent by air
courier, sent by prepaid registered or certified mail with return receipt
requested, and shall be deemed to have been given on the earliest of (i)
receipt, (ii) one business day after delivery to an air courier for overnight
expedited delivery service, or (iii) five (5) business days after the date
deposited in the United States mail, registered or certified, with postage
prepaid and return receipt requested (provided that such return receipt must
indicate receipt at the address specified). All notices shall be addressed as
appropriate to the addresses set forth in Article I (or to such other or further
addresses as the parties may desire by notice given in accordance with this
section).
ARTICLE 31. HOLDING OVER
This Lease shall terminate upon the Expiration Date and any holding
over by Lessee after the Expiration Date shall not constitute a renewal of this
Lease or give Lessee any rights hereunder or in or to the Property.
17
ARTICLE 32. MEMORANDUM OR SHORT FORM OF LEASE
This Lease shall not be recorded. However, at the request of either
party, the parties hereto shall execute and acknowledge a memorandum or short
form hereof in recordable form that Lessor shall file for recording in the
Official Records of Heard County, Georgia.
ARTICLE 33. ESTOPPEL CERTIFICATE
Within ten (10) days after request by either party, the other party to
this Lease shall deliver an estoppel certificate duly executed (and
acknowledged, if required by any lender) in substantially the form of the
attached EXHIBIT "C" (or as otherwise reasonably requested by a lender or
purchaser) to any proposed lender, purchaser, or to the requesting party.
ARTICLE 34. GENERAL PROVISIONS
34.1 SEVERABILITY. In case any one or more of the provisions of this
Lease shall for any reason be held to be invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not affect
any other provision of this Lease, and this Lease shall be construed as if such
invalid, illegal or unenforceable provisions had not been contained herein.
34.2 TIME OF THE ESSENCE. Time is hereby expressly declared to be of
the essence of this Lease and of each and every term, covenant, agreement,
condition and provision hereof.
34.3 HEADINGS. Article, Section and subsection headings in this Lease
are for convenience only and are not to be construed as a part of this Lease or
in any way limiting or amplifying the provisions hereof.
34.4 LEASE CONSTRUED AS A WHOLE. The language in all parts of this
Lease shall in all cases be construed as a whole according to its fair meaning
and not strictly for or against either Lessor or Lessee. The parties acknowledge
that each party and its counsel have reviewed this Lease and participated in its
drafting and therefore that the rule of construction that any ambiguities are to
be resolved against the drafting party shall not be employed nor applied in the
interpretation of this Lease. No prior draft of this Lease shall be admissible
as evidence of the parties' intent.
34.5 MEANING OF TERMS. Whenever the context so requires, the neuter
gender shall include the masculine and the feminine, and the singular shall
include the plural, and vice versa. Any reference to a specific sum of money,
shall mean that amount of lawful money of the United States of America.
34.6 ATTORNEYS' FEES. In the event of any action or proceeding at law
or in equity between Lessor and Lessee to enforce or interpret any provision of
this Lease or to protect or establish any right or remedy of either party
hereunder, the party not prevailing in such action or proceeding shall pay to
the prevailing party all costs and expenses, including without limitation,
reasonable attorneys' fees and expenses, incurred therein by such prevailing
party and if such
18
prevailing party shall recover judgment in any such action or proceeding, such
costs, expenses and attorneys' fees shall be included in and as a part of such
judgment.
34.7 GEORGIA LAW; FORUM. The laws of the State of Georgia other than
those laws denominated choice of law rules which would require the application
of the laws of another forum, shall govern the validity, construction and effect
of this Lease.
34.8 BINDING AGREEMENT. Subject to the provisions of Article 21 of this
Lease, the terms, covenants and agreements contained in this Lease shall bind
and inure to the benefit of the parties hereto and their respective successors
and assigns.
34.9 ENTIRE AGREEMENT. This instrument, together with the exhibits
hereto, all of which are incorporated herein by reference, constitutes the
entire agreement between Lessor and Lessee with respect to the subject matter
hereof and supersedes all prior offers and negotiations, oral and written. This
Lease may not be amended or modified in any respect whatsoever except by an
instrument in writing signed by Lessor and Lessee.
34.10 QUIET ENJOYMENT. Lessor agrees that Lessee, upon paying Rent and
all other sums due hereunder and upon keeping and observing all of the
covenants, agreements and provisions of this Lease on its part to be observed
and kept, shall lawfully and quietly hold, occupy and enjoy the Property during
the Term without hindrance or molestation by anyone claiming by, through, or
under Lessor.
34.11 BROKER'S COMMISSION. Each party warrants that they have no
agreement with any broker, and each party shall indemnify the other for any fees
or commissions claimed by any broker or agent alleging an agreement or
commitment with such party.
34.12 ESTATE FOR YEARS. It is the intent of Lessor and Lessee that this
Lease shall grant and convey to Lessee and Estate for Years expiring on December
31, 2002, and not a usafruct. Lessee shall be permitted to grant its lenders and
any holder of security interest in power generation facility being constructed
by Lessee on Lessee's land in Land Lots 236 and 237 of the 3rd Land District of
Heard County, Georgia (all of the foregoing being hereinafter collectively
referred to as "Lenders"), a leasehold deed to secure debt encumbering the
Estate for Years conveyed to Lessee hereunder.
34.13 RESTRICTIONS ON ASSIGNMENTS AND TRANSFERS BY LESSOR. Lessor
agrees that Lessor will not voluntarily encumber, convey, assign or grant any
rights in the Property without the prior written consent of Lessee and any
Lenders, such consent by Lessee and any Lenders not to be unreasonably withheld,
conditioned or delayed.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease under
seal by proper persons thereunto duly authorized as of the date first above
written.
[SIGNATURES BEGIN ON NEXT PAGE]
19
LESSOR:
TENASKA, INC., a Delaware
corporation
By: /S/ (SEAL)
----------------------------
Print Name: Xxxxx X. Xxxxxx
Title: Vice President
[CORPORATE SEAL]
[SIGNATURES CONTINUED ON NEXT PAGE]
20
LESSEE:
TENASKA GEORGIA PARTNERS, L.P.,
a Delaware limited partnership
By: Tenaska Georgia, Inc., a Delaware
corporation, its General Partner
By: /S/ (SEAL)
-------------------------------------------
Print Name: Xxxxxxx X. Xxxxxx
Title: Vice President of Finance & Treasurer
[CORPORATE SEAL]
21
EXHIBIT "A"
LEGAL DESCRIPTION
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
corner 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 2 inch rebar set on the West
Right of Way line of Xxx Xxxxxxxx Road (80 foot width);
Thence along said 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 distance of 590.07
feet to a 1/2 inch rebar set at the point where said 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 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 distance of 81.64 feet to a
point, said point being the POINT OF BEGINNING.
Said property contains 13.13 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 , 1999.
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.
2
EXHIBIT "B"
PERMITTED TITLE ENCUMBRANCES
1. All real property ad valorem taxes for the year 1999 and subsequent years.
2. 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.
3. Any applicable zoning ordinances and governmental rules and regulations
4. All matters not of record which would be disclosed by an accurate survey or
inspection of the Substation Site.
5. All matter shown or disclosed 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 , 1999.
EXHIBIT "C"
ESTOPPEL CERTIFICATE
TO: (Lender/Addressee)
----------------------------------------------------
----------------------------------------------------
----------------------------------------------------
----------------------------------------------------
RE: Ground Lease dated as of ________________________________ (the "Lease")
by and between Tenaska, Inc. ("Lessor") and Tenaska Georgia Partners, L.P.
("Lessee")
The undersigned is the Lessor/Lessee of certain real property more
particularly identified in the Lease. In consideration of the payment by
Lender/Addressee of $10.00 and other good and valuable consideration to
Lessor/Lessee, the receipt and legal sufficiency of which is hereby
acknowledged, the undersigned hereby certifies the following information with
respect to the Lease (including any amendments to or modifications of the same),
and agrees that you may rely upon the same:
1. The Lease is in full force and effect and has not been modified or
amended except as specifically set forth below.
2. The undersigned asserts no claim of default against the other party
to the Lease, or (in the case of Lessor) offset or defense against the payment
of rent or other charges payable by the Lessee, and asserts no other claim under
the Lease. To the best of the undersigned's knowledge and belief, there is no
default by the other party under the Lease.
3. All fixed minimum rental has been paid to the end of the current
calendar month, which is __________________________________ by and between
Tenaska, Inc. ("Lessor") and Tenaska Georgia Partners, L.P. ("Lessee") paid more
than one month in advance of its due date.
4. The Property is 13.13 acres of improved real property on which is
located
------------------------------------------------------------------------.
5. Dates of any amendments or modifications:
---------------------------
-------------------------------------------------------------------------------.
6. Current annual fixed minimum rental:
-------------------------------
-------------------------------------------------------------------------------.
7. Lease termination date:
---------------------------------------------
-------------------------------------------------------------------------------.
8. The Lease contains no first right of refusal, option to expand, or
option to terminate, except as follows:
----------------------------------------
-------------------------------------------------------------------------------.
9. The undersigned is not in default under the Lease and has no claim
of default against the other party to the Lease.
10. The Lessee is in occupancy of the Property and has not assigned the
Lease, in whole or in part, nor sublet any portion of the Property, except as
follows:
------------------------------------------------------------------------
------------------------------------------------------------------------------ .
--------------------------------------------------------------------------------
-------------------------------------------------------------------------------.
11. The Lessee is required to pay real property taxes, insurance, and
all utilities used in and upon the leased Property and is responsible for all
repairs and maintenance to the leased Property and all improvements.
Dated: , 19 .
---------------------- ------ -----------
Very truly yours,
------------------------------------------,
a
------------------------------------------
By
------------------------------------------
Its
------------------------------------------
2
