Exhibit 10.21
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AFTER RECORDING, PLEASE RETURN TO:
XXXXXX X. XXXXXX, ESQ.
LONG XXXXXXXX & XXXXXX LLP
SUITE 5300
000 XXXXXXXXX XXXXXX
XXXXXXX, XXXXXXX 00000
PLEASE CROSS REFERENCE TO:
(I) PERPETUAL RIGHT-OF-WAY AND
EASEMENT AGREEMENT RECORDED AT DEED
BOOK 195, PAGE 599, HEARD COUNTY,
GEORGIA RECORDS, AS AMENDED BY
AMENDMENT TO PERPETUAL RIGHT-OF-WAY
AND EASEMENT AGREEMENT RECORDED AT
DEED BOOK 200, PAGE 199, AFORESAID
RECORDS, AS FURTHER AMENDED BY
SECOND AMENDMENT TO PERPETUAL
RIGHT-OF-WAY AND EASEMENT AGREEMENT
TO BE RECORDED CONTEMPORANEOUSLY
HEREWITH IN AFORESAID RECORDS;
(II) NATURAL GAS PIPELINE RIGHT-OF-
WAY RECORDED AT DEED BOOK 200, PAGE
136,AFORESAID RECORDS, AS AMENDED
BY AMENDMENT TO NATURAL GAS PIPELINE
RIGHT-OF-WAY AND CONSENT AGREEMENT
TO BE RECORDED CONTEMPORANEOUSLY
HEREWITH IN AFORESAID RECORDS;
(III) PERPETUAL RIGHT-OF-WAY AND
EASEMENT AGREEMENT BY XXXXXXX X.
XXXXXXX, AS EXECUTOR OF THE LAST
WILL AND TESTAMENT OF XXX XXX
XXXXXXX AND TO BE RECORDED
CONTEMPORANEOUSLY HEREWITH IN
AFORESAID RECORDS; AND
(IV) NATURAL GAS PIPELINE
RIGHT-OF-WAY BY GREAT NORTHERN
NEKOOSA CORPORATION AND TENASKA
GEORGIA PARTNERS, L.P. AND TO BE
RECORDED CONTEMPORANEOUSLY HEREWITH
IN AFORESAID RECORDS.
NON-INTERFERENCE AND CROSS-INDEMNITY AGREEMENT
(TENASKA, INC./TENASKA GEORGIA PARTNERS, L.P.)
THIS NON-INTERFERENCE AGREEMENT AND CROSS-INDEMNITY (herein called this
"Agreement") executed as of this 10th day of November, 1999 by TENASKA, INC., a
Delaware corporation (herein called "Tenaska, Inc.") and TENASKA GEORGIA
PARTNERS, L.P., a Delaware limited partnership (herein called "TGP");
W I T N E S S E T H; That:
WHEREAS, Tenaska, Inc. entered into (i) with Xxxxxxx X. Xxxxxxx, as
Executor of Last Will and Testament of Xxx Xxx Xxxxxxx (herein called "Xxxxxxx")
that certain Perpetual Right-of-Way and Easement Agreement recorded at Deed Book
195, Page 599, Heard County, Georgia records, as amended by Amendment to
Perpetual Right-of-Way and Easement Agreement recorded at Deed Book 200, Page
199, aforesaid records, as further amended by Second Amendment to Perpetual
Right-of-Way and Easement Agreement and recorded contemporaneously herewith in
aforesaid records (herein, as amended, called the "Tenaska, Inc. Xxxxxxx
Easement"), and (ii) with Great Northern Nakoosa Corporation, a Maine
corporation (herein called "GNNC") that certain Natural Gas Pipeline
Right-of-Way recorded at Deed Book 200, Page 136, aforesaid records, as amended
by Amendment to Natural Gas Pipeline Right-of-Way and Consent Agreement recorded
contemporaneously herewith in aforesaid records (herein, as amended, called the
"Tenaska, Inc. GNNC Easement"; the Tenaska, Inc. Xxxxxxx Easement and the
Tenaska, Inc. GNNC Easement are sometimes herein collectively called the
"Tenaska, Inc. Easements");
WHEREAS, TGP entered into (i) with Xxxxxxx that certain Perpetual
Right-of-Way and Easement Agreement and recorded contemporaneously herewith in
aforesaid records (herein called the "TGP Xxxxxxx Easement"), and (ii) with GNNC
that certain Natural Gas Pipeline Right-of-Way to be recorded contemporaneously
herewith in aforesaid records (herein called the "TGP GNNC Easement"; the TGP
Xxxxxxx Easement and the TGP GNNC Easement are sometimes herein collectively
called the "TGP Easements"; the Tenaska, Inc. GNNC Easement and the TGP GNNC
Easement are sometimes herein collectively called the "GNNC Easements");
WHEREAS, the Tenaska, Inc. Easements and the TGP Easements provide for
certain rights, privileges, duties, obligations and easements for each of
Tenaska, Inc. and TGP, respectively;
WHEREAS, Tenaska, Inc. and TGP desire for TGP's exercise of TGP's
rights, privileges, duties, obligations and easements under the TGP Easements
not to be interfered with by Tenaska, Inc.'s exercise of said rights,
privileges, duties, obligations and easements;
WHEREAS, Tenaska, Inc. and TGP desire to clarify certain arrangements
under the indemnities contained in the GNNC Easements;
NOW, THEREFORE, for and in consideration of $10.00, in hand paid by TGP
to Tenaska, Inc., the mutual premises contained herein, and other valuable
consideration, the receipt and sufficiency of each of which is hereby
acknowledged, the parties hereby agree as follows:
1. NO INTERFERENCE. Notwithstanding anything to the contrary in the
Tenaska, Inc. Easements, the rights, privileges, and easements of Tenaska, Inc.
under the Tenaska, Inc. Easements are subject to the prior and superior rights,
privileges, and easements of TGP under the TGP Easements. Tenaska, Inc. shall
exercise Tenaska, Inc.'s rights, privileges and easements under the Tenaska,
Inc. Easements so as not to conflict, interfere, hamper or deny in any fashion
TGP's rights, privileges, and easements under the TGP Easements. Tenaska, Inc.
shall cooperate in good faith with TGP in exercising Tenaska, Inc.'s rights,
privileges, and easements under the Tenaska, Inc. Easements in order to affect
the same.
2. CROSS-INDEMNITY. Tenaska, Inc. and TGP acknowledge that the GNNC
Easements provide for certain indemnities by Tenaska, Inc. and TGP,
respectively. Subject to the last sentence of this Section 2, (i) Tenaska, Inc.
shall indemnify and hold harmless TGP from and against any and all claims,
costs, damages, expenses and losses arising out of or relating to the exercise
by Tenaska, Inc. of Tenaska, Inc.'s rights, privileges, duties, obligations and
easements under the Tenaska, Inc. GNNC Easement, and (ii) TGP shall indemnify
and hold harmless Tenaska, Inc. from and against any and all claims, costs,
damages, expenses and losses arising out of or relating to the exercise by TGP
of TGP's rights, privileges, duties, obligations and easements under the TGP
GNNC Easement. Notwithstanding the foregoing of this Section 2, should a claim
be made against either party under an indemnity under one or both of the GNNC
Easements, as the case may be, then the other party shall indemnify and hold
harmless the party
against whom the claim was made only to the proportionate extent that such claim
is the result of the acts or omissions of said other party.
3. NO AMENDMENT. No party shall amend this Agreement without the prior
written consent of all holders of a security interest or security title in the
Power Plant Property (as defined in the TGP Easements). For purposes of this
Section 3, the consent of The Development Authority of Heard County (herein
called "DAHC") is required for so long as DAHC owns any portion of the Power
Plant Property.
4. NO PARTNERSHIP OR JOINT VENTURE. This Agreement does not create an
association, partnership, joint venture or a principal and agency relationship
between Tenaska, Inc. and TGP.
5. NO OBLIGATION TO ENFORCE. Neither Tenaska, Inc. nor TGP is obligated
to take any action to enforce the terms of this Agreement or to exercise any of
the rights, or privileges of Tenaska, Inc. or TGP hereunder.
6. NO THIRD PARTY BENEFICIARIES. Except as set forth in Section 3 of
this Agreement, no provision of this Agreement may be construed to create any
rights or benefits in any person or entity other than Tenaska, Inc. and TGP.
7. CUMULATIVE RIGHTS; NO WAIVER. Except as otherwise expressly set
forth in this Agreement, all rights, powers and privileges conferred hereunder
upon the parties are cumulative but not restricted to those given by law. No
failure of any party to exercise any power given such party hereunder or to
insist upon strict compliance by any other party to its obligations hereunder,
and no custom or practice of the parties in variance with the terms hereof,
constitutes a waiver of any party's right to demand exact compliance with the
terms hereof.
8. CONSTRUCTION. This Agreement must be construed and interpreted under
the laws of the State of Georgia. The captions of each Article, Section and
paragraph of this Agreement and the particular pronouns used herein, whether
masculine, feminine, or neuter, singular or plural, are intended only to be used
as a convenience in reference and must not be construed to limit or change the
meaning of the language of this Agreement taken by paragraph or as a whole. If
any term, covenant, or condition of this Agreement or the application thereof to
any person or circumstance is, to any extent, invalid or unenforceable, the
remainder of this Agreement or the application of such terms, covenants, and
conditions to persons or circumstances other than those as to which it is held
invalid or unenforceable, will not be affected thereby and each term, covenant,
or condition of this Agreement will be valid and be enforced to the fullest
extent permitted by law.
9. DURATION. The provisions of this Agreement are perpetual, binding
upon Tenaska, Inc. and TGP, and run with and bind title to the property of
Tenaska, Inc. and TGP, each to the same extent as provided in the Tenaska, Inc.
Easements and the TGP Easements.
10. NO REVERTER. No covenant or restriction herein is intended to be or
will be construed as a condition subsequent, a conditional limitation, or as
creating the possibility of reverter.
11. NO MERGER. There is no merger of the rights and privileges created
hereby with the fee estate of Tenaska, Inc. or TGP, respectively, by reason of
the fact that any single owner may hereafter own or hold all or a portion of the
property subject to or benefited by the Tenaska, Inc. Easements or the TGP
Easements, as the case may be, and no such merger will occur until Tenaska,
Inc., TGP, and all persons or entities required for execution of an amendment
under Section 4 execute a written statement or instrument affecting such merger
and duly record the same.
[SIGNATURES BEGIN ON NEXT PAGE]
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
under seal as of the day and year first above written.
TENASKA, INC.:
Signed, sealed and delivered TENASKA, INC., a Delaware corporation
in the presence of: Georgia corporation
/S/ By: /S/
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Official Witness Name: Xxxxx X. Xxxxxx
Title: Vice President
/S/
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Notary Public
Attest:/S/
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My commission expires: Name: Xxxx X. Xxxxx
Title: Vice President
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(NOTARIAL SEAL) [CORPORATE SEAL]
TGP:
Signed, sealed and delivered TENASKA GEORGIA PARTNERS, L.P., a
in the presence of: Delaware limited partnership
/S/ By: Tenaska Georgia, Inc., a Delaware
--------------------------- corporation
Official Witness
/S/ By: /S/
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Notary Public Name: Xxxxxxx X. Xxxxxx
Title: Vice President of Finance &
Treasurer
Attest:/S/
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My commission expires: Name: Xxxxxxx X. Xxxxxx
Title: Assistant Secretary/Assistant
Treasurer
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(NOTARIAL SEAL) [CORPORATE SEAL]
RENONINTERFERENCE&CROSSINDEMNITYAGREEMENT
