Perpetual Right-of-way And Easement Agreement

Exhibit 10.17


AFTER RECORDING, RETURN TO:
Steven K. Bender, Esquire
Long Aldridge & Norman LLP
Suite 5300
303 Peachtree Street
Atlanta, Georgia 30308


PERPETUAL RIGHT-OF-WAY AND EASEMENT AGREEMENT


FOR AND IN CONSIDERATION OF THE SUM OF TEN DOLLARS in hand paid and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged CHARLES L. GOODSON, AS EXECUTOR OF THE LAST WILL AND TESTAMENT OF ORA LEE GOODSON ("Grantor"), whose address is 4 BROOKSIDE DRIVE, NEWNAN, GA 30263, has irrevocably granted, bargained, sold, and conveyed, and by these presents does hereby grant, bargain, sell, and convey unto TENASKA GEORGIA PARTNERS, L.P., a Delaware limited partnership, its successors and assigns ("Grantee") whose address is 1044 North 115th Street, Omaha, Nebraska 68154-4446, the perpetual and nonexclusive right and easement on, under, over and through the real property more specifically described in EXHIBIT "A" attached hereto and incorporated herein by reference (the "Property") for purposes of (i) surveying, clearing, excavating, laying, constructing, testing, operating, inspecting, maintaining, protecting, repairing, replacing, removing and altering a pipeline or pipelines together with all necessary and appropriate appurtenances, machinery, apparatus, equipment, fixtures, improvements and facilities related thereto (hereinafter collectively referred to as the "pipeline") which are capable of transporting natural gas along and through a route through the portion of the Property described as the "Perpetual Easement Area" in EXHIBIT "B" attached hereto and incorporated herein by reference (the "Perpetual Easement Area"); (ii) transporting natural gas through such pipeline; (iii) installing and maintaining signs along the Perpetual Easement Area identifying the area as the location of an underground pipeline; (iv) cutting, clearing, removing and disposing of, from time to time, all trees, shrubs, and other vegetation in the Perpetual Easement Area, and to remove and dispose of all obstructions, as Grantee may deem necessary for the safe operation and maintenance of the pipeline; (v) for as long as such pipeline and related structures are being used for such purposes, the right of ingress and egress through the Property at convenient points for the carrying out of all such purposes; and (vi) such other rights as may be necessary or convenient for the enjoyment of the privileges provided by this Perpetual Right-of-Way and Easement Agreement ("Easement Agreement").


Further, Grantor does hereby irrevocably grant and convey unto Grantee a temporary nonexclusive right and easement consisting of the easement area identified and described on EXHIBIT "C" (the "Temporary Easement Area"), said Temporary Easement Area shall be for the purpose and a term so long as necessary to clear, excavate, lay and construct the aforementioned pipeline and do all things reasonably necessary and incident to the initial construction of the pipeline, and as needed in connection with any later maintenance, repair, replacement, removal or alteration of the pipeline. Grantee shall be permitted to clear the Temporary Easement Area of trees, shrubs and other vegetation so as to permit use of the Temporary Easement Area for the foregoing purposes.


Grantor covenants to use the Property for purposes compatible with such rights as granted to Grantee in or permitted by this Easement Agreement and shall not construct or permit any buildings, structures, fences, trees, hedges or other obstructions to be erected or placed upon the Property, or to change the grade of the Property, or create or permit any condition whereby standing water would accumulate on the Perpetual Easement Area, nor to otherwise interfere in or to knowingly permit any other person to interfere with Grantee's use and enjoyment of rights granted under this Easement Agreement.


Grantee shall repair or replace in a good and workmanlike manner all fences and drain systems disturbed or cut during the construction, maintenance or operation of the pipeline laid hereunder; and, if not replaced, Grantee agrees to pay or cause to be paid to the Grantor and the Grantor's tenants, if any, of the Property at the time of the completion of the construction heretofore, according to the respective interests, the reasonable value of any damages to crops, livestock, timber and improvements that are sustained by reason of Grantee exercising the right herein granted. Grantee shall not materially interfere with the use of said premises for normal farming operations as employed at the time of construction of such pipeline, except in the exercise of the rights permitted hereunder. Grantee shall bury the pipeline at depths consistent with industry standards.


Grantee shall upon completion of the laying of the pipeline, as soon as reasonably possible, fully restore and level the surface of the Property to substantially the same condition existing prior to construction of the pipeline.


The rights and obligations hereunder shall be assignable by Grantee, and subsequent assigns of Grantee, without the prior written consent of Grantor. Any assignment by Grantee or subsequent assignment of Grantee, of its rights and obligations hereunder shall completely relieve assignor of any such obligation for further liability. The easements set forth in this Easement Agreement shall be for the use, benefit and enjoyment of Grantee, its designated successors, successors-in-title (including, without limitation The Development Authority of Heard County ["DAHC"] as successor-in-title to the property of Grantee identified and described in Exhibit "D" attached hereto and made a part hereof [hereinafter referred to as the "Power Plant Property"]), grantees and assigns, and their respective agents, employees, servants, tenants (including, without limitation, Tenaska Georgia Partners, L.P. as a tenant leasing the Power Plant Property from DAHC), subtenants, licensees, permitees, invitees, contractors, subcontractors, lenders and any other party holding a collateral interest in the Power Plant Property. This Agreement and the easements, rights, and privileges created hereby shall be binding upon and inure to the benefit of Grantee and Grantor and their respective designated (to the extent necessary under the last two sentences of this paragraph) successors, successors-in-title (including, without limitation the DAHC as successor-in-title to the Power Plant Property), grantees, assignees, and their respective tenants (including, without limitation, Tenaska Georgia Partners, L.P. as a tenant leasing the Power Plant Property from DAHC), subtenants, licensees, permitees, lenders and any other party holding a collateral interest in the Power Plant Property. All of the easements, rights and privileges, set forth herein shall touch, concern, burden and run with the title to the Perpetual Easement Area, Temporary Easement Area and Property, as the servient tenement, and shall be appurtenant to, touch, concern and run with the title to any lands now or


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hereafter owned by Grantee, its designated successors, successors-in-title (including, without limitation the DAHC as successor-in-title to the Power Plant Property), grantees and assigns, in Land Lots 206, 207, 236 and/or 237 of the 3rd Land District, Heard County, Georgia, including, without limitation, the Power Plant Property, collectively the dominant tenement. Any conveyance of said dominant tenement, or any part thereof, to any lender or any other party holding a collateral interest in the Power Plant Property (whether by foreclosure, deed in lieu of foreclosure or otherwise) shall also convey the rights, privileges, duties and obligations contained in this Easement Agreement, regardless of whether or not specific mention is made of this Easement Agreement and regardless of whether or not a specific conveyance is made of, or subject to, the easements, rights, privileges, duties and obligations contained herein. Any conveyance of said dominant tenement, or any part thereof, to any person or entity, other than a lender or a party holding a collateral interest in the Power Plant Property, shall only convey the rights, privileges, duties and obligations contained in this Easement Agreement if specific mention is made of this Easement Agreement or if a specific conveyance is made of, or subject to, the easements, rights, privileges, duties and obligations contained herein.


The interpretation, construction and performance of this agreement shall be governed by the laws of the State of Georgia. Time is of the essence of this Easement Agreement. Grantor covenants with Grantee that Grantor is the fee simple owner of record of the Property, is lawfully seized and possessed of the Property, and has a good and lawful right to convey the Property, any part thereof and easements and other rights granted herein, and the Property is free from all encumbrances, other than (a) those shown of record in the Heard County, Georgia records as of the date hereof, and (b) that certain Perpetual Right-of-Way and Easement Agreement dated April 28, 1999, granted by Grantor to Tenaska, Inc., a Delaware corporation, recorded at Deed Book 195, Pages 599-612 of said records, as amended by that certain Amendment to Perpetual Right-of-Way and Easement Agreement dated September 12, 1999, recorded at Deed Book 200, Pages 199-212 of said records, and that certain Second Amendment to Perpetual Right-of-Way and Easement Agreement and Consent Agreement dated ______________, 1999, both such amendments granted by Grantor to Tenaska, Inc., and that Grantor will forever warrant and defend title thereto against the lawful claims of all persons whomsoever claiming by, through or under Grantor.


Grantee hereby authorizes Grantor the right to access the described Property for ingress and egress purposes in compliance with the standards described in this Easement Agreement.


[SIGNATURES BEGIN ON NEXT PAGE]


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IN WITNESS WHEREOF, this instrument is executed under seal on this 1st day of November, 1999.


GRANTOR:


Signed, sealed and delivered CHARLES L. GOODSON, in the presence of: AS EXECUTOR OF THE LAST WILL AND
TESTAMENT OF ORA LEE GOODSON


/S/________________________________


Witness By: /S/________________________(SEAL)
Charles L. Goodson, Executor for
Ora Lee Goodson Estate


/S/_________________________________ Notary Public My Commission Expires:______________


(NOTARY SEAL)


RE GOODSON PERPETUAL RIGHT OF WAY & EASEMENT AGREEMENT


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EXHIBIT "A"


LEGAL DESCRIPTION OF PROPERTY


ALL THAT TRACT OR PARCEL OF LAND SITUATE, LYING AND BEING IN LAND LOT 235 AND 236 OF THE THIRD LAND DISTRICT OF HEARD COUNTY GEORGIA, AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:


That tract of land containing 170 acres, more or less, in the Third Land District of originally Coweta, now Heard County, Georgia and being 100 acres, more or less, of Land Lot 235; 50 acres, more or less, of Land Lot 236 and 20 acres, more or less, of Land Lot 234; and being bounded now or formerly on the North by C.P. Stephens; on the East by Powers lands; on the South by Goodson lands; on the West by Ashley, Shackleford and Hendrick lands. Said Tract known as the Watt Orr place, described in deed from Mrs. Dovie L. Orr, et. al. to Goodson Bros., recorded in Deed Book 34, Page 483, Heard County records.


RE GOODSON PERPETUAL RIGHT OF WAY & EASEMENT AGREEMENT EXHA


EXHIBIT B
LEGAL DESCRIPTION


EASEMENT AREA 2 - PERMANENT GAS PIPELINE EASEMENT


ALL THAT TRACT OR PARCEL OF LAND SITUATE, LYING AND BEING IN LAND LOT 235 & 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 NORTHEAST CORNER OF LAND LOT 236, SAID POINT BEING THE POINT OF REFERENCE;


THENCE South 00 degrees 43 minutes 57 seconds West for a distance of 291.17 feet to an 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 : 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;


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;


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.


LEGAL DESCRIPTION


EASEMENT AREA 11 -- PERMANENT ACCESS


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 NORTHEAST CORNER OF LAND LOT 236, SAID POINT 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 : inch pipe;


THENCE South 01 degrees 21 minutes 15 seconds West for a distance of 12.03 feet;


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 : inch pipe;


THENCE South 00 degrees 55 minutes 19 seconds West for a distance of 434.31 feet to a : 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.


RE GOODSON PERPETUAL RIGHT OF WAY & EASEMENT AGREEMENT EXHB


EXHIBIT C
LEGAL DESCRIPTION


EASEMENT AREA 3 - 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 NORTHEAST CORNER OF LAND LOT 236, SAID POINT BEING THE POINT OF REFERENCE;


THENCE South 00 degrees 43 minutes 57 seconds West for a distance of 291.17 feet to an 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 : inch pipe;


THENCE South 01 degrees 21 minutes 15 seconds West for a distance of 12.03 feet;


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 acres more or less.


LEGAL DESCRIPTION


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 NORTHEAST CORNER OF LAND LOT 236, SAID POINT 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 : inch pipe;


THENCE South 01 degrees 21 minutes 15 seconds West for a distance of 12.03 feet;


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;


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.


LEGAL DESCRIPTION


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:


COMMENCING AT A ONE INCH PIPE MARKING THE NORTHEAST CORNER OF LAND LOT 236, SAID POINT BEING THE POINT OF REFERENCE;
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