Exhibit 10.1
X. X. XXXXXX COMPANY.
GUARANTY OF OBLIGATION
This Guaranty is made by X. X. Xxxxxx Company, a Delaware corporation
("Guarantor"), in favor of Tenaska Georgia Partners, L.P., a Delaware limited
partnership ("Owner") with respect to that certain Engineering, Procurement and
Construction Agreement dated the 15th day of September, 1999, between Tenaska
Georgia I, L.P., a Delaware limited partnership ("Tenaska") and Xxxxxx
Construction Corporation, a Delaware corporation ("Contractor") for the
construction of the Tenaska Georgia Generation Station in Heard County, Georgia,
as amended, supplemented or otherwise modified from time to time, (hereinafter
called the "EPC Agreement"). Tenaska, having assigned the EPC Agreement to
Owner, effective November 10, 1999, and such assignment having been consented to
by Contractor, now requires this Guaranty, as provided in the EPC Agreement.
Contractor is an affiliate of Guarantor. Guarantor will derive direct and
indirect benefit from the making of the Guaranty.
NOW, THEREFORE, for good and valuable consideration, Guarantor hereby covenants
and agrees as follows:
1. Guarantor hereby unconditionally guarantees the full and timely
performance by Contractor of all of its obligations under the EPC
Agreement, as it from time to time may be amended, and hereby
undertakes that if Contractor shall in any respect fail to perform and
observe all of the terms, provisions, conditions, and stipulations of
the EPC Agreement, Guarantor warrants the faithful performance of all
of such terms and conditions and will fully indemnify and keep
indemnified Owner against all claims, losses, damages, costs and
expenses whatsoever which Owner may incur by reason of Contractor's
failure to perform and observe any of the terms, provisions,
conditions, and stipulations of the EPC Agreement and in addition
against all claims, losses, damages, costs and expenses which Owner may
incur by reason of Contractor's breach of any other duty to Owner,
(collectively the "Guaranteed Obligations"). THE OBLIGATIONS OF
GUARANTOR HEREUNDER SHALL NOT BE REDUCED, LIMITED OR TERMINATED, NOR
SHALL THE GUARANTOR BE DISCHARGED FROM ANY THEREOF, FOR ANY REASON
WHATSOEVER (other than, the payment, observance and performance of the
Guaranteed Obligations and other than as provided in Section 9 of this
Guaranty), including (and whether or not the same shall have occurred
or failed to occur once or more than once and whether or not Guarantor
shall have received notice thereof):
(a) (i) any increase in, (ii) any extension of the time of
payment, observance or performance of, (iii) any other
amendment or modification of any of the other terms and
provisions of, (iv) any release, composition or settlement
(whether by way of acceptance of a plan of reorganization or
otherwise) of, (v) any subordination (whether present or
future or contractual or otherwise) of, or (vi) any discharge,
disallowance, invalidity, illegality, voidness or other
unenforceability of, the Guaranteed Obligations;
(b) (i) any failure to obtain, (ii) any release, composition or
settlement of, (iii) any amendment or modification of any of
the terms and provisions of, (iv) any subordination of, or (v)
any discharge, disallowance, invalidity, illegality, voidness
or other enforceability of, any other guaranties of the
Guaranteed Obligations;
(c) any termination of or change in any relationship between
Guarantor and Contractor, including any such termination or
change resulting from a change in the ownership of Guarantor
or from the cessation of any commercial relationship between
Guarantor and Contractor;
(d) any exercise of, or any election not or failure to exercise,
delay in the exercise of, waiver of, or forbearance or other
indulgence with respect to, any right, remedy or power
available to Owner, including (i) any election not or failure
to exercise any right of set-off, recoupment or counterclaim,
and (ii) any election of remedies effected by Owner, and
(e) ANY OTHER ACT OR FAILURE TO ACT OR ANY OTHER EVENT OR
CIRCUMSTANCE THAT (i) VARIES THE RISK OF GUARANTOR HEREUNDER
OR (ii) BUT FOR THE PROVISIONS HEREOF, WOULD, AS A MATTER OF
STATUTE OR RULE OF LAW OR EQUITY, OPERATE TO REDUCE, LIMIT OR
TERMINATE THE OBLIGATIONS OF THE GUARANTOR HEREUNDER OR
DISCHARGE GUARANTOR FROM ANY THEREOF.
2. Guarantor represents and warrants to Owner and Owner's successors and
assigns that:
(a) Guarantor is duly organized and validly existing as a Delaware
corporation;
(b) Guarantor directly or indirectly owns all of the issued and
outstanding shares of the capital stock of Contractor;
(c) Guarantor is authorized and has all necessary power and
authority, corporate and other, to execute and deliver this
Guaranty and to perform the obligations of Guarantor,
including all obligations of Contractor pursuant to the EPC
Agreement, this Guaranty reasonably may be expected to benefit
directly or indirectly, Guarantor, and this Guaranty has been
duly executed and delivered by Guarantor and is the valid,
binding, and enforceable contract of Guarantor, and;
(d) The execution and delivery of this Guaranty by Guarantor and
its performance of its obligations under the Guaranty, do not
(and, to the best of Guarantor's knowledge, will not) conflict
with any law, rule or regulation, or any agreement,
instrument, indenture, deed or any other restriction, to which
Guarantor is subject or a party, or accelerate or affect any
of its obligations under any thereof.
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3. Guarantor shall cause Contractor to duly and timely perform all of the
Guaranteed Obligations including the obligations of Contractor under
the EPC Agreement, as it may from time to time be amended.
4. The obligations of Guarantor hereunder include, without limitation, all
liabilities for liquidated or similar damages and warranty obligations
of Contractor.
5. Owner may enforce against Guarantor any and all of the rights of Owner
under this Guaranty without having instituted or completed any legal,
arbitration or other proceedings against Contractor.
6. This Guaranty shall be governed by and construed according to the laws
of the State of Texas. Guarantor designates Xxxxxx Construction
Corporation, a Delaware corporation, as agent for service of process in
any action by Owner under this Guaranty, submits to personal
jurisdiction in the State of Texas and further agrees that the
non-exclusive venue for any such action may be Texas.
7. Guarantor waives: (a) any requirement, and any right to require, that
any right or power be exercised or any action be taken against the
Contractor, or any other guarantor or any collateral for the Guaranteed
Obligations; (b) (i) notice of acceptance of and intention to rely on
this Agreement, and (ii) all other notices that may be required by
Applicable Law or otherwise to preserve any rights against Guarantor
under this Agreement, including any notice of default, demand,
dishonor, presentment and protest; and, (c) diligence.
8. Guarantor shall not assert any right to set off against claims by Owner
hereunder other than claims which Contractor has a right to set off
under the EPC Agreement.
9. Notwithstanding any other provision to the contrary set forth herein,
Guarantor retains the right to assert any and all claims, defenses and
limitations of liability possessed by Contractor under the terms of the
EPC Agreement (including without limitation, Section 14.2 of the EPC
Agreement, but excluding any defense based upon absence of binding
effect of the EPC Agreement) or arising from the parties' performance
or failure to perform thereunder.
10. Guarantor's obligations hereunder (a) are absolute and unconditional,
(b) subject to Section 9 above, are unlimited in amount, (c) constitute
a guaranty of payment and performance and not a guaranty of collection,
(d) are as primary obligor and not as a surety only (e) shall be a
continuing guaranty of all present and future Guaranteed Obligations
and (f) shall be irrevocable.
11. This Guaranty may be assigned by Owner to Owner's lenders for the
project and shall inure to the benefit of such assignee(s).
12. Notice to Guarantor shall be to:
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X.X. Xxxxxx Company
527 Xxxxxxx (78221-1738)
X.X. Xxx 000000
Xxx Xxxxxxx, XX 00000-0000
Attn: X.X. Xxxx
Telefax: (000) 000-0000
Telephone: (000)000-0000
With a copy to:
Xxxxxx X. Xxxxxxxx, Xx.
General Counsel
000 X. Xx. Xxxx'x Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Telefax: (000) 000-0000
Telephone: (000)000-0000
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be executed
and delivered to Owner in the name and on behalf of Guarantor by one of its
officers who is duly authorized to do so, for the benefit of Owner, as of this
22nd day of October, 1999.
Guarantor
X. X. Xxxxxx Company
By: /S/________________________
(Name)
VICE PRESIDENT
------------------------
(Title)
ATTEST:
By: /S/________________________
Title: Assistant Secretary
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CERTIFIED COPY OF RESOLUTION
"RESOLVED: X. X. Xxxxxx Company ("Guarantor") is authorized to provide
a Guaranty of the obligations of Xxxxxx Construction Corporation, a Delaware
corporation ("Contractor"), to Tenaska Georgia Partners, L.P., a Delaware
limited partnership ("Owner") in connection with the agreement between Tenaska
Georgia I, L.P., a Delaware limited partnership, and Contractor for the
construction of the Tenaska Georgia Generation Station in Heard County, Georgia,
which agreement has subsequently been assigned to Owner with the consent of
Contractor. Guarantor states and acknowledges that such Guaranty reasonably may
be expected to benefit, directly or indirectly, Guarantor."
***********
I, Xxxxxx X. Xxxxxxxx, Xx., certify that I am the Secretary of X. X.
Xxxxxx Company, a Delaware corporation.
I certify that:
(1) The resolution quoted above was adopted on September 13, 1999
by Unanimous Written Consent of the Executive Committee of the
Board of Directors.
(2) This action of the Executive Committee of this corporation may
be taken without a meeting if all of the members of the
Executive Committee consent in writing.
(3) The signed Consent has been filed in the minute book of the
corporation.
(4) I have compared the resolution quoted above with the
resolution in the minute book and verify that the language is
identical.
(5) The resolution has not been revoked or amended and is now in
full force and effect.
SIGNED AND SEALED on behalf of the corporation October 22, 1999.
[SEAL] ______________________________
Xxxxxx X. Xxxxxxxx, Xx.
Secretary
ZACHRYGUARANTY
