Exhibit 4.7
TENASKA GEORGIA PARTNERS, L.P.
$275,000,000 9.50% SENIOR SECURED BONDS DUE 2030
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
November 10, 1999
Xxxxxxx, Xxxxx & Co.,
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
TD Securities (USA) Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Tenaska Georgia Partners, L.P., a Delaware limited partnership (the
"Partnership"), proposes to issue and sell to the Initial Purchasers (as defined
herein) upon the terms set forth in the Purchase Agreement (as defined herein)
its $275,000,000 9.50% Senior Secured Bonds Due 2030. As an inducement to the
Initial Purchasers to enter into the Purchase Agreement and in satisfaction of a
condition to the obligations of the Initial Purchasers thereunder, the
Partnership agrees with the Initial Purchasers for the benefit of holders (as
defined herein) from time to time of the Registrable Securities (as defined
herein) as follows:
1. CERTAIN DEFINITIONS. For purposes of this Exchange and Registration
Rights Agreement, the following terms shall have the following respective
meanings:
"BASE INTEREST" shall mean the interest that would otherwise
accrue on the Securities under the terms thereof and the Indenture,
without giving effect to the provisions of this Agreement.
The term "BROKER-DEALER" shall mean any broker or dealer
registered with the Commission under the Exchange Act.
"CLOSING DATE" shall mean the date on which the Securities are
initially issued.
"COMMISSION" shall mean the United States Securities and
Exchange Commission, or any other federal agency at the time
administering the Exchange Act or the Securities Act, whichever is the
relevant statute for the particular purpose.
"EFFECTIVE TIME," in the case of (i) an Exchange Registration,
shall mean the time and date as of which the Commission declares the
Exchange Registration Statement effective or as of which the Exchange
Registration Statement otherwise becomes effective and (ii) a Shelf
Registration, shall mean the time and date as of which the Commission
declares the Shelf Registration Statement effective or as of which the
Shelf Registration Statement otherwise becomes effective.
"ELECTING HOLDER" shall mean any holder of Registrable
Securities that has returned a completed and signed Notice and
Questionnaire to the Partnership in accordance with Section 3(d)(ii) or
3(d)(iii).
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
or any successor thereto, as the same shall be amended from time to
time.
"EXCHANGE OFFER" shall have the meaning assigned thereto in
Section 2(a)
"EXCHANGE REGISTRATION" shall have the meaning assigned
thereto in Section 3(c).
"EXCHANGE REGISTRATION STATEMENT" shall have the meaning
assigned thereto in Section 2(a).
"EXCHANGE SECURITIES" shall have the meaning assigned thereto
in Section 2(a) hereof.
The term "HOLDER" shall mean each of the Initial Purchasers
and other persons who acquire Registrable Securities from time to time
(including any successors or assigns), in each case for so long as such
person owns any Registrable Securities.
"INDENTURE" shall mean the Trust Indenture, dated as of
November 1, 1999, between the Partnership, The Chase Manhattan Bank, as
Depositary Bank and The Chase Manhattan Bank, as Trustee, as the same
shall be amended from time to time.
"NOTICE AND QUESTIONNAIRE" means a Notice of Registration
Statement and Selling Security holder Questionnaire substantially in
the form of Exhibit A hereto.
The term "PERSON" shall mean a corporation, association,
partnership, organization, business, individual, government or
political subdivision thereof or governmental agency.
"PURCHASE AGREEMENT" shall mean the Purchase Agreement, dated
November 3, 1999, between the Initial Purchasers and the Partnership
relating to the Securities.
"INITIAL PURCHASERS" shall mean the Initial Purchasers named
in Schedule I to the Purchase Agreement.
"REGISTRABLE SECURITIES" shall mean the Securities; PROVIDED,
HOWEVER, that a Security shall cease to be a Registrable Security when
(i) in the circumstances contemplated by Section 2(a), the Security has
been exchanged for an Exchange Security in an Exchange Offer as
contemplated in Section 2(a) (PROVIDED that any Exchange Security that,
pursuant to the last two sentences of Section 2(a), is included in a
prospectus for use in connection with resales by broker-dealers shall
be deemed to be a Registrable Security with respect to Sections 5, 6
and 9 until resale of such Registrable Security has been effected
within the 180-day period referred to in Section 2(a)), (ii) in the
circumstances contemplated by Section 2(b) hereof, a Shelf Registration
Statement registering such Security under the Securities Act has been
declared or becomes effective and such Security has been sold or
otherwise transferred by the holder thereof pursuant to and in a manner
contemplated by such effective Shelf Registration Statement; (iii) such
Security is sold pursuant to Rule 144 under circumstances in which any
legend borne by such Security relating to restrictions on
transferability thereof, under the Securities Act or otherwise, is
removed by the Partnership or pursuant to the Indenture; (iv) such
Security is eligible to be sold pursuant to paragraph (k) of Rule 144;
or (v) such Security shall cease to be outstanding.
"REGISTRATION DEFAULT" shall have the meaning assigned thereto
in Section 2(c).
"REGISTRATION EXPENSES" shall have the meaning assigned
thereto in Section 4.
"RESALE PERIOD" shall have the meaning assigned thereto in
Section 2(a). .
"RESTRICTED HOLDER" shall mean (i) a holder that is an
affiliate of the Partnership within the meaning of Rule 405, (ii) a
holder who acquires Exchange Securities outside the ordinary course of
such holder's business, (iii) a holder who has arrangements or
understandings with any person to participate in the Exchange Offer for
the purpose of distributing Exchange Securities and (iv) a holder that
is a broker-dealer, but only with respect to Exchange Securities
received by such broker-dealer pursuant to an Exchange Offer in
exchange for Registrable Securities acquired by the broker-dealer
directly from the Partnership.
"RULE 144," "RULE 405" AND "RULE 415" shall mean, in each
case, such rule promulgated under the Securities Act (or any successor
provision), as the same shall be amended from time to time.
"SECURITIES" shall mean, collectively, the $275,000,000 9.50%
Senior Secured Bonds Due 2030 of the Partnership to be issued and sold
to the Initial Purchasers, and securities issued in exchange therefor
or in lieu thereof pursuant to the Indenture.
"SECURITIES ACT" shall mean the Securities Act of 1933, or any
successor thereto, as the same shall be amended from time to time.
"SHELF REGISTRATION" shall have the meaning assigned thereto
in Section 2(b).
"SHELF REGISTRATION STATEMENT" shall have the meaning assigned
thereto in Section 2(b).
"SPECIAL INTEREST" shall have the meaning assigned thereto in
Section 2(c).
"TRUST INDENTURE ACT" shall mean the Trust Indenture Act of
1939, or any successor thereto, and the rules, regulations and forms
promulgated thereunder, all as the same shall be amended from time to
time.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Exchange and Registration Rights Agreement, and the words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Exchange and
Registration Rights Agreement as a whole and not to any particular Section or
other subdivision.
2. REGISTRATION UNDER THE SECURITIES ACT.
(a) Except as set forth in Section 2(b), the Partnership
agrees to file under the Securities Act, as soon as practicable, but no
later than 150 days after the Closing Date, a registration statement
relating to an offer to exchange (such registration statement, the
"Exchange Registration Statement", and such offer, the "Exchange
Offer") any and all of the Securities for a like aggregate principal
amount of debt securities issued by the Partnership which debt
securities are substantially identical to the Securities (and are
entitled to the benefits of a trust indenture which is substantially
identical to the Indenture or is the Indenture and which has been
qualified under the Trust Indenture Act), except that they have been
registered pursuant to an effective registration statement under the
Securities Act and do not contain provisions for the additional
interest contemplated in Section 2(c) (such new debt securities
hereinafter called "Exchange Securities"). The Partnership agrees to
use its reasonable best efforts to cause
the Exchange Registration Statement to become effective under the
Securities Act as soon as practicable, but no later than 270 days after
the Closing Date. The Exchange Offer will be registered under the
Securities Act on the appropriate form and will comply with all
applicable tender offer rules and regulations under the Exchange Act.
The Partnership further agrees to use its reasonable best efforts to
commence and complete the Exchange Offer promptly, but no later than 45
days after such registration statement has become effective, hold the
Exchange Offer open for at least 20 business days and exchange Exchange
Securities for all Registrable Securities that have been properly
tendered and not withdrawn on or prior to the expiration of the
Exchange Offer. The Exchange Offer will be deemed to have been
"completed" only if the debt securities received by holders other than
Restricted Holders in the Exchange Offer for Registrable Securities
are, upon receipt, transferable by each such holder without restriction
under the Securities Act and the Exchange Act and without material
restrictions under the blue sky or securities laws of a substantial
majority of the States of the United States of America, which shall be
deemed to have occurred upon the Partnership having exchanged, pursuant
to the Exchange Offer, Exchange Securities for all Registrable
Securities that have been properly tendered and not withdrawn before
the expiration of the Exchange Offer, which shall be on a date that is
at least 20 business days following the commencement of the Exchange
Offer. The Partnership agrees (x) to include in the Exchange
Registration Statement a prospectus for use in any resales by any
holder of Exchange Securities that is a broker-dealer and (y) to keep
such Exchange Registration Statement effective for a period (the
"Resale Period") beginning when Exchange Securities are first issued in
the Exchange Offer and ending upon the earlier of the expiration of the
180th day after the Exchange Offer has been completed or such time as
such broker-dealers no longer own any Registrable Securities. With
respect to such Exchange Registration Statement, such holders shall
have the benefit of the rights of indemnification and contribution set
forth in Sections 6(a), (c), (d) and (e).
(b) If (i) on or prior to the time the Exchange Offer is
completed existing Commission interpretations are changed such that the
debt securities received by holders other than Restricted Holders in
the Exchange Offer for Registrable Securities are not or would not be,
upon receipt, transferable by each such holder without restriction
under the Securities Act, (ii) the Exchange Offer has not been
completed within 315 days following the Closing Date or (iii) the
Exchange Offer is not available to any holder of the
Securities, the Partnership agrees to, in lieu of (or, in the case of
clause (iii), in addition to) conducting the Exchange Offer
contemplated by Section 2(a), file under the Securities Act as soon as
practicable, but no later than 30 days after the time such obligation
to file arises, a "shelf" registration statement providing for the
registration of, and the sale on a continuous or delayed basis by the
holders of, all of the Registrable Securities, pursuant to Rule 415 or
any similar rule that may be adopted by the Commission (such filing,
the "Shelf Registration" and such registration statement, the "Shelf
Registration Statement"). The Partnership agrees to use its reasonable
best efforts (x) to cause the Shelf Registration Statement to become or
be declared effective no later than 120 days after such Shelf
Registration Statement is filed and to keep such Shelf Registration
Statement continuously effective for a period ending on the earlier of
the second anniversary of the Effective Time or such time as there are
no longer any Registrable Securities outstanding (or such shorter
period as may be prescribed by paragraph (k) of Rule 144), PROVIDED,
HOWEVER, that no holder shall be entitled to be named as a selling
security holder in the Shelf Registration Statement or to use the
prospectus forming a part thereof for resales of Registrable Securities
unless such holder is an Electing Holder, and (y) after the Effective
Time of the Shelf Registration Statement, promptly upon the request of
any holder of Registrable Securities that is not then an Electing
Holder, to take any action reasonably necessary to enable such holder
to use the prospectus forming a part thereof for resales of Registrable
Securities, including, without limitation, any action necessary to
identify such holder as a selling security holder in the Shelf
Registration Statement, PROVIDED, HOWEVER, that nothing in this clause
(y) shall relieve any such holder of the obligation to return a
completed and signed Notice and Questionnaire to the Partnership in
accordance with Section 3(d)(iii). The Partnership further agrees to
supplement or make amendments to the Shelf Registration Statement, as
and when required by the rules, regulations or instructions applicable
to the registration form used by the Partnership for such Shelf
Registration Statement or by the Securities Act or rules and
regulations thereunder for shelf registration, and the Partnership
agrees to furnish to each Electing Holder copies of any such supplement
or amendment prior to its being used or promptly following its filing
with the Commission.
(c) In the event that (i) the Partnership has not filed the
Exchange Registration Statement or Shelf Registration Statement on or
before the date on which such registration statement is required to be
filed pursuant to
Section 2(a) or 2(b), respectively, (ii) such Exchange Registration
Statement or Shelf Registration Statement has not become effective or
been declared effective by the Commission on or before the date on
which such registration statement is required to become or be declared
effective pursuant to Section 2(a) or 2(b), respectively, or (iii) the
Exchange Offer has not been completed within 45 days after the initial
effective date of the Exchange Registration Statement relating to the
Exchange Offer (if the Exchange Offer is then required to be made) or
(iv) any Exchange Registration Statement or Shelf Registration
Statement required by Section 2(a) or 2(b) is filed and declared
effective but shall thereafter either be withdrawn by the Partnership
or shall become subject to an effective stop order issued pursuant to
Section 8(d) of the Securities Act suspending the effectiveness of such
registration statement (except as specifically permitted herein)
without being succeeded immediately by an additional registration
statement filed and declared effective (each such event referred to in
clauses (i) through (iv), a "Registration Default", then, as liquidated
damages for such Registration Default, subject to the provisions of
Section 9(b), special interest ("Special Interest"), in addition to the
Base Interest, shall accrue on the Securities that are then not
transferable without restriction under the Securities Act from the date
of such Registration Default to the applicable date set forth in the
next sentence at a per annum rate of 0.50%; PROVIDED, HOWEVER, that
Special Interest on the Bonds may not exceed in the aggregate 0.50% per
annum. Special Interest on the Bonds shall cease to accrue (A) in the
case of clause (i) above, upon the filing of the Exchange Registration
Statement or Shelf Registration Statement, (B) in the case of clause
(ii) above upon the effectiveness of the Exchange Offer Registration
Statements or Shelf Registration Statement, (C) in the case of clause
(iii) above, upon the completion of the Exchange Offer and (D) upon the
expiration of two years (or such shorter period as may be prescribed by
paragraph (k) of Rule 144) commencing on the date of the initial
issuance of the Bonds.
(d) The Partnership shall take all actions necessary or
advisable to be taken by it to ensure that the transactions
contemplated herein are effected as so contemplated.
(e) Any reference herein to a registration statement as of any
time shall be deemed to include any document incorporated, or deemed to
be incorporated, therein by reference as of such time and any reference
herein to any post-effective amendment to a registration statement as
of any time shall
be deemed to include any document incorporated, or deemed to be
incorporated, therein by reference as of such time.
3. REGISTRATION PROCEDURES.
If the Partnership files a registration statement pursuant to Section
2(a) or Section 2(b), the following provisions shall apply:
(a) At or before the Effective Time of the Exchange Offer or
the Shelf Registration, as the case may be, the Partnership shall
qualify the Indenture under the Trust Indenture Act of 1939.
(b) In the event that such qualification would require the
appointment of a new trustee under the Indenture, the Partnership shall
appoint a new trustee thereunder pursuant to the applicable provisions
of the Indenture.
(c) In connection with the Partnership's obligations with
respect to the registration of Exchange Securities as contemplated by
Section 2(a) (the "Exchange Registration"), if applicable, the
Partnership shall, as soon as practicable (or as otherwise specified):
(i) prepare and file with the Commission, as soon as
practicable but no later than 150 days after the Closing Date,
an Exchange Registration Statement on any form which may be
utilized by the Partnership and which shall permit the
Exchange Offer and resales of Exchange Securities by
broker-dealers during the Resale Period to be effected as
contemplated by Section 2(a), and use its best efforts to
cause such Exchange Registration Statement to become effective
as soon as practicable thereafter, but no later than 270 days
after the Closing Date;
(ii) as soon as practicable prepare and file with the
Commission such amendments and supplements to such Exchange
Registration Statement and the prospectus included therein as
may be necessary to effect and maintain the effectiveness of
such Exchange Registration Statement for the periods and
purposes contemplated in Section 2(a) and as may be required
by the applicable rules and
regulations of the Commission and the instructions applicable
to the form of such Exchange Registration Statement, and
promptly provide each broker-dealer holding Exchange
Securities with such number of copies of the prospectus
included therein (as then amended or supplemented), in
conformity in all material respects with the requirements of
the Securities Act and the Trust Indenture Act and the rules
and regulations of the Commission thereunder, as such
broker-dealer reasonably may request prior to the expiration
of the Resale Period, for use in connection with resales of
Exchange Securities;
(iii) promptly notify each broker-dealer that has
requested or received copies of the prospectus included in
such registration statement, and confirm such advice in
writing, (A) when such Exchange Registration Statement or the
prospectus included therein or any prospectus amendment or
supplement or post-effective amendment has been filed, and,
with respect to such Exchange Registration Statement or any
post-effective amendment, when the same has become effective,
(B) of any comments by the Commission and by the blue sky or
securities commissioner or regulator of any state with respect
thereto or any request by the Commission for amendments or
supplements to such Exchange Registration Statement or
prospectus or for additional information, (C) of the issuance
by the Commission of any stop order suspending the
effectiveness of such Exchange Registration Statement or the
initiation or threatening of any proceedings for that purpose,
(D) if at any time the representations and warranties of the
Partnership contemplated by Section 5 cease to be true and
correct in all material respects, (E) of the receipt by the
Partnership of any notification with respect to the suspension
of the qualification of the Exchange Securities for sale in
any jurisdiction or the initiation or threatening of any
proceeding for such purpose, or (F) at any time during the
Resale Period when a prospectus is required to be delivered
under the Securities Act, that such Exchange Registration
Statement, prospectus, prospectus amendment or supplement or
post-effective amendment does not conform in all material
respects to the applicable requirements of the Securities Act
and the Trust Indenture Act and the rules and regulations of
the Commission thereunder or contains an untrue statement of a
material fact or omits to state any material fact
necessary to make the statements therein not misleading in
light of the circumstances then existing;
(iv) in the event that the Partnership would be
required, pursuant to Section 3(c)(iii)(F), to notify any
broker-dealers holding Exchange Securities, without delay
prepare and furnish to each such holder a reasonable number of
copies of a prospectus supplemented or amended so that, as
thereafter delivered to Purchaser of such Exchange Securities
during the Resale Period, such prospectus shall conform in all
material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder and shall not contain
an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein not
misleading in light of the circumstances then existing;
(v) use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of such
Exchange Registration Statement or any post-effective
amendment thereto at the earliest practicable date;
(vi) use its reasonable best efforts to (A) register
or qualify the Exchange Securities under the securities laws
or blue sky laws of such jurisdictions as are contemplated by
Section 2(a) no later than the commencement of the Exchange
Offer, (B) keep such registrations or qualifications in effect
and comply with such laws so as to permit the continuance of
offers, sales and dealings therein in such jurisdictions until
the expiration of the Resale Period and (C) take any and all
other actions as may be reasonably necessary or advisable to
enable each broker-dealer holding Exchange Securities to
consummate the disposition thereof in such jurisdictions;
PROVIDED, HOWEVER, that the Partnership shall not be required
for any such purpose to (1) qualify as a foreign partnership
in any jurisdiction wherein it would not otherwise be required
to qualify but for the requirements of this Section 3(c)(vi),
(2) consent to general service of process in any such
jurisdiction or (3) make any changes to its partnership
agreement or other organizational documents or any agreement
between it and its partners;
(vii) use its reasonable best efforts to obtain the
consent or approval of each governmental agency or authority,
whether federal, state or local, which may be required to
effect the Exchange Registration, the Exchange Offer and the
offering and sale of Exchange Securities by broker-dealers
during the Resale Period;
(viii) provide a CUSIP number for all Exchange
Securities, not later than the applicable Effective Time;
(ix) comply with all applicable rules and regulations
of the Commission, and make generally available to its
security holders as soon as practicable but no later than
eighteen months after the effective date of such Exchange
Registration Statement, an earning statement of the
Partnership and its subsidiaries complying with Section 11(a)
of the Securities Act (including, at the option of the
Partnership, Rule 158 thereunder).
(d) In connection with the Partnership's obligations with
respect to the Shelf Registration, if applicable, the Partnership
shall, as soon as practicable (or as otherwise specified):
(i) prepare and file with the Commission, as soon as
practicable but in any case within the time periods specified
in Section 2(b), a Shelf Registration Statement on any form
which may be utilized by the Partnership and which shall
register all of the Registrable Securities for resale by the
holders thereof in accordance with such method or methods of
disposition as may be specified by such of the holders as,
from time to time, may be Electing Holders and use its
reasonable best efforts to cause such Shelf Registration
Statement to become effective as soon as practicable but in
any case within the time periods specified in Section 2(b);
(ii) not less than 30 calendar days prior to the
Effective Time of the Shelf Registration Statement, mail the
Notice and Questionnaire to the holders of Registrable
Securities; no holder shall be entitled to be named as a
selling security holder in the Shelf Registration Statement as
of the Effective Time, and no holder shall be entitled to use
the prospectus forming a part thereof for resales of
Registrable Securities at any time, unless such holder has
returned a completed and signed Notice and Questionnaire to
the Partnership by the deadline for response set forth
therein; PROVIDED, HOWEVER, holders of Registrable Securities
shall have at least 28 calendar days from the date on which
the Notice and Questionnaire is first mailed to such holders
to return a completed and signed Notice and Questionnaire to
the Partnership;
(iii) after the Effective Time of the Shelf
Registration Statement, upon the request of any holder of
Registrable Securities that is not then an Electing Holder,
promptly send a Notice and Questionnaire to such holder;
PROVIDED that the Partnership shall not be required to take
any action to name such holder as a selling security holder in
the Shelf Registration Statement or to enable such holder to
use the prospectus forming a part thereof for resales of
Registrable Securities until such holder has returned a
completed and signed Notice and Questionnaire to the
Partnership;
(iv) as soon as practicable prepare and file with the
Commission such amendments and supplements to such Shelf
Registration Statement and the prospectus included therein as
may be necessary to effect and maintain the effectiveness of
such Shelf Registration Statement for the period specified in
Section 2(b) hereof and as may be required by the applicable
rules and regulations of the Commission and the instructions
applicable to the form of such Shelf Registration Statement,
and furnish to the Electing Holders copies of any such
supplement or amendment simultaneously with or prior to its
being used or filed with the Commission;
(v) comply with the provisions of the Securities Act
with respect to the disposition of all of the Registrable
Securities covered by such Shelf Registration Statement in
accordance with the intended methods of disposition by the
Electing Holders provided for in such Shelf Registration
Statement;
(vi) provide (A) the Electing Holders, (B) the
underwriters (which term, for purposes of this Exchange and
Registration Rights Agreement, shall include a person deemed
to be
an underwriter within the meaning of Section 2(a)(11) of the
Securities Act), if any, thereof, (C) any sales or placement
agent therefor, (D) counsel for any such underwriter or agent
and (E) not more than one counsel for all the Electing Holders
the opportunity to participate in the preparation of such
Shelf Registration Statement, each prospectus included therein
or filed with the Commission and each amendment or supplement
thereto;
(vii) for a reasonable period prior to the filing of
such Shelf Registration Statement, and throughout the period
specified in Section 2(b), make available at reasonable times
at the Partnership's principal place of business or such other
reasonable place for inspection by the persons referred to in
Section 3(d)(vi) who shall certify to the Partnership that
they have a current intention to sell the Registrable
Securities pursuant to the Shelf Registration such financial
and other information and books and records of the
Partnership, and cause the officers, employees, counsel and
independent certified public accountants of the Partnership to
respond to such inquiries, as shall be reasonably necessary,
in the judgment of the respective counsel referred to in such
Section, to conduct a reasonable investigation within the
meaning of Section 11 of the Securities Act; PROVIDED,
HOWEVER, that each such party shall be required to maintain in
confidence and not to disclose to any other person any
information or records reasonably designated by the
Partnership as being confidential, until such time as (A) such
information becomes a matter of public record (whether by
virtue of its inclusion in such registration statement or
otherwise), (B) such person shall be required so to disclose
such information pursuant to a subpoena or order of any court
or other governmental agency or body having jurisdiction over
the matter (subject to the requirements of such order, and
only after such person shall have given the Partnership prompt
prior written notice of such requirement), or (C) such
information is required to be set forth in such Shelf
Registration Statement or the prospectus included therein or
in an amendment to such Shelf Registration Statement or an
amendment or supplement to such prospectus in order that such
Shelf Registration Statement, prospectus, amendment or
supplement, as the case may be, complies with applicable
requirements of the federal securities laws and the rules and
regulations of the Commission and does not contain an
untrue statement of a material fact or omit to state therein a
material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the
circumstances then existing;
(viii) promptly notify each of the Electing Holders,
any sales or placement agent therefor and any underwriter
thereof (which notification may be made through any managing
underwriter that is a representative of such underwriter for
such purpose) and confirm such advice in writing, (A) when
such Shelf Registration Statement or the prospectus included
therein or any prospectus amendment or supplement or
post-effective amendment has been filed, and, with respect to
such Shelf Registration Statement or any post-effective
amendment, when the same has become effective, (B) of any
comments by the Commission and by the blue sky or securities
commissioner or regulator of any state with respect thereto or
any request by the Commission for amendments or supplements to
such Shelf Registration Statement or prospectus or for
additional information, (C) of the issuance by the Commission
of any stop order suspending the effectiveness of such Shelf
Registration Statement or the initiation or threatening of any
proceedings for that purpose, (D) if at any time the
representations and warranties of the Partnership contemplated
by Section 3(d)(xvii) or Section 5 cease to be true and
correct in all material respects, (E) of the receipt by the
Partnership of any notification with respect to the suspension
of the qualification of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any
proceeding for such purpose, or (F) if at any time when a
prospectus is required to be delivered under the Securities
Act, that such Shelf Registration Statement, prospectus,
prospectus amendment or supplement or post-effective amendment
does not conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission thereunder or
contains an untrue statement of a material fact or omits to
state any material fact necessary to make the statements
therein not misleading in light of the circumstances then
existing;
(ix) use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of such
registration statement or any post-effective amendment thereto
at the earliest practicable date;
(x) if requested by any managing underwriter or
underwriters, any placement or sales agent or any Electing
Holder, promptly incorporate in a prospectus supplement or
post-effective amendment such information as is required by
the applicable rules and regulations of the Commission and as
such managing underwriter or underwriters, such agent or such
Electing Holder specifies should be included therein relating
to the terms of the sale of such Registrable Securities,
including information with respect to the principal amount of
Registrable Securities being sold by such Electing Holder or
agent or to any underwriters, the name and description of such
Electing Holder, agent or underwriter, the offering price of
such Registrable Securities and any discount, commission or
other compensation payable in respect thereof, the purchase
price being paid therefor by such underwriters and with
respect to any other terms of the offering of the Registrable
Securities to be sold by such Electing Holder or agent or to
such underwriters; and make all required filings of such
prospectus supplement or post-effective amendment promptly
after notification of the matters to be incorporated in such
prospectus supplement or post-effective amendment;
(xi) furnish to each Electing Holder, each placement
or sales agent, if any, therefor, each underwriter, if any,
thereof and the respective counsel referred to in Section
3(d)(vi) an executed copy (or, in the case of an Electing
Holder, a conformed copy) of such Shelf Registration
Statement, each such amendment and supplement thereto (in each
case including all exhibits thereto (in the case of an
Electing Holder of Registrable Securities, upon request) and
documents incorporated by reference therein) and such number
of copies of such Shelf Registration Statement (excluding
exhibits thereto and documents incorporated by reference
therein unless specifically so requested by such Electing
Holder, agent or underwriter, as the case may be) and of the
prospectus included in such Shelf Registration Statement
(including each preliminary prospectus and any summary
prospectus), in conformity in all material respects with the
applicable requirements of the Securities
Act and the Trust Indenture Act and the rules and regulations
of the Commission thereunder, and such other documents, as
such Electing Holder, agent, if any, and underwriter, if any,
may reasonably request in order to facilitate the offering and
disposition of the Registrable Securities owned by such
Electing Holder, offered or sold by such agent or underwritten
by such underwriter and to permit such Electing Holder, agent
and underwriter to satisfy the prospectus delivery
requirements of the Securities Act; and the Partnership hereby
consents to the use of such prospectus (including such
preliminary and summary prospectus) and any amendment or
supplement thereto by each such Electing Holder and by any
such agent and underwriter, in each case in the form most
recently provided to such person by the Partnership, in
connection with the offering and sale of the Registrable
Securities covered by the prospectus (including such
preliminary and summary prospectus) or any supplement or
amendment thereto;
(xii) use its reasonable best efforts to (A) register
or qualify the Registrable Securities to be included in such
Shelf Registration Statement under such securities laws or
blue sky laws of such jurisdictions as any Electing Holder and
each placement or sales agent, if any, therefor and
underwriter, if any, thereof shall reasonably request, (B)
keep such registrations or qualifications in effect and comply
with such laws so as to permit the continuance of offers,
sales and dealings therein in such jurisdictions during the
period the Shelf Registration is required to remain effective
under Section 2(b) above and for so long as may be necessary
to enable any such Electing Holder, agent or underwriter to
complete its distribution of Securities pursuant to such Shelf
Registration Statement and (C) take any and all other actions
as may be reasonably necessary or advisable to enable each
such Electing Holder, agent, if any, and underwriter, if any,
to consummate the disposition in such jurisdictions of such
Registrable Securities; PROVIDED, HOWEVER, that the
Partnership shall not be required for any such purpose to (1)
qualify as a foreign partnership in any jurisdiction wherein
it would not otherwise be required to qualify but for the
requirements of this Section 3(d)(xii), (2) consent to general
service of process in any such jurisdiction or (3) make any
changes to its partnership agreement or other organizational
documents or any agreement between it and its partners;
(xiii) use its reasonable best efforts to obtain the
consent or approval of each governmental agency or authority,
whether federal, state or local, which may be required to
effect the Shelf Registration or the offering or sale in
connection therewith or to enable the selling holder or
holders to offer, or to consummate the disposition of, their
Registrable Securities;
(xiv) unless any Registrable Securities shall be in
book-entry only form, cooperate with the Electing Holders and
the managing underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing
Registrable Securities to be sold, which certificates, if so
required by any securities exchange upon which any Registrable
Securities are listed, shall be penned, lithographed or
engraved, or produced by any combination of such methods, on
steel engraved borders, and which certificates shall not bear
any restrictive legends; and, in the case of an underwritten
offering, enable such Registrable Securities to be in such
denominations and registered in such names as the managing
underwriters may request at least two business days prior to
any sale of the Registrable Securities;
(xv) provide a CUSIP number for all Registrable
Securities, not later than the applicable Effective Time;
(xvi) enter into one or more underwriting agreements,
engagement letters, agency agreements, "best efforts"
underwriting agreements or similar agreements, as appropriate,
including customary provisions relating to indemnification and
contribution, and take such other actions in connection
therewith as any Electing Holders aggregating at least 40% in
aggregate principal amount of the Registrable Securities at
the time outstanding shall request in order to expedite or
facilitate the disposition of such Registrable Securities;
(xvii) whether or not an agreement of the type
referred to in Section 3(d)(xvi) hereof is entered into and
whether or
not any portion of the offering contemplated by the Shelf
Registration is an underwritten offering or is made through a
placement or sales agent or any other entity, (A) make such
representations and warranties to the Electing Holders and the
placement or sales agent, if any, therefor and the
underwriters, if any, thereof in form, substance and scope as
are customarily made in connection with an offering of debt
securities pursuant to any appropriate agreement or to a
registration statement filed on the form applicable to the
Shelf Registration; (B) obtain an opinion of counsel to the
Partnership in customary form and covering such matters, of
the type customarily covered by such an opinion, as the
managing underwriters, if any, or as any Electing Holders of
at least 40% in aggregate principal amount of the Registrable
Securities at the time outstanding may reasonably request,
addressed to such Electing Holder or Electing Holders and the
placement or sales agent, if any, therefor and the
underwriters, if any, thereof and dated the effective date of
such Shelf Registration Statement (and if such Shelf
Registration Statement contemplates an underwritten offering
of a part or all of the Registrable Securities, dated the date
of the closing under the underwriting agreement relating
thereto) (it being agreed that the matters to be covered by
such opinion shall include the due formation and good standing
of the Partnership; the qualification of the Partnership to
transact business as foreign partnership; the due
authorization, execution and delivery of the relevant
agreement of the type referred to in Section 3(d)(xvi); the
due authorization, execution, authentication and issuance, and
the validity and enforceability, of the Securities; the
absence of material legal or governmental proceedings
involving the Partnership; the absence of a breach by the
Partnership of, or a default under, material agreements
binding upon the Partnership; the absence of governmental
approvals required to be obtained in connection with the Shelf
Registration, the offering and sale of the Registrable
Securities, this Exchange and Registration Rights Agreement or
any agreement of the type referred to in Section 3(d)(xvi),
except such approvals as may be required under state
securities or blue sky laws; the material compliance as to
form of such Shelf Registration Statement and any documents
incorporated by reference therein and of the Indenture with
the requirements of the Securities Act and the Trust Indenture
Act and the rules and regulations of the Commission
thereunder, respectively; and, as of the date of the opinion
and of the Shelf Registration Statement or most recent
post-effective amendment thereto, as the case may be, the
absence from such Shelf Registration Statement and the
prospectus included therein, as then amended or supplemented,
and from the documents incorporated by reference therein (in
each case other than the financial statements and other
financial information contained therein) of an untrue
statement of a material fact or the omission to state therein
a material fact necessary to make the statements therein not
misleading (in the case of such documents, in the light of the
circumstances existing at the time that such documents were
filed with the Commission under the Exchange Act)); (C) obtain
a "cold comfort" letter or letters from the independent
certified public accountants of the Partnership addressed to
the selling Electing Holders, the placement or sales agent, if
any, therefor or the underwriters, if any, thereof, dated (i)
the effective date of such Shelf Registration Statement and
(ii) the effective date of any prospectus supplement to the
prospectus included in such Shelf Registration Statement or
post-effective amendment to such Shelf Registration Statement
which includes unaudited or audited financial statements as of
a date or for a period subsequent to that of the latest such
statements included in such prospectus (and, if such Shelf
Registration Statement contemplates an underwritten offering
pursuant to any prospectus supplement to the prospectus
included in such Shelf Registration Statement or
post-effective amendment to such Shelf Registration Statement
which includes unaudited or audited financial statements as of
a date or for a period subsequent to that of the latest such
statements included in such prospectus, dated the date of the
closing under the underwriting agreement relating thereto),
such letter or letters to be in customary form and covering
such matters of the type customarily covered by letters of
such type; (D) deliver such documents and certificates,
including officers' certificates, as may be reasonably
requested by any Electing Holders of at least 40% in aggregate
principal amount of the Registrable Securities at the time
outstanding or the placement or sales agent, if any, therefor
and the managing underwriters, if any, thereof to evidence the
accuracy of the representations and warranties made pursuant
to clause (A) above or those contained in Section 5(a) and the
compliance with or satisfaction of any agreements or
conditions contained in the underwriting agreement or other
agreement entered
into by the Partnership; and (E) undertake such obligations
relating to expense reimbursement, indemnification and
contribution as are provided in Section 6;
(xviii) notify in writing each holder of Registrable
Securities of any proposal by the Partnership to amend or
waive any provision of this Exchange and Registration Rights
Agreement pursuant to Section 9(h) and of any amendment or
waiver effected pursuant thereto, each of which notices shall
contain the text of the amendment or waiver proposed or
effected, as the case may be;
(xix) in the event that any broker-dealer registered
under the Exchange Act shall underwrite any Registrable
Securities or participate as a member of an underwriting
syndicate or selling group or "assist in the distribution"
(within the meaning of the Conduct Rules (the "Conduct Rules)
of the National Association of Securities Dealers, Inc.
("NASD") or any successor thereto, as amended from time to
time) thereof, whether as a holder of such Registrable
Securities or as an underwriter, a placement or sales agent or
a broker or dealer in respect thereof, or otherwise, assist
such broker-dealer in complying with the requirements of such
Conduct Rules, including by (A) if such Conduct Rules shall so
require, engaging a "qualified independent underwriter" (as
defined in such Conduct Rules) to participate in the
preparation of the Shelf Registration Statement relating to
such Registrable Securities, to exercise usual standards of
due diligence in respect thereto and, if any portion of the
offering contemplated by such Shelf Registration Statement is
an underwritten offering or is made through a placement or
sales agent, to recommend the yield of such Registrable
Securities, (B) indemnifying any such qualified independent
underwriter to the extent of the indemnification of
underwriters provided in Section 6 hereof (or to such other
customary extent as may be requested by such underwriter), and
(C) providing such information to such broker-dealer as may be
required in order for such broker-dealer to comply with the
requirements of the Conduct Rules; and
(xx) comply with all applicable rules and regulations
of the Commission, and make generally available to its
security holders as soon as practicable but in any event not
later than eighteen months after the effective date of such
Shelf Registration Statement, an earning statement of the
Partnership and its subsidiaries complying with Section 11(a)
of the Securities Act (including, at the option of the
Partnership, Rule 158 thereunder).
(e) In the event that the Partnership would be required,
pursuant to Section 3(d)(viii)(F), to notify the Electing Holders, the
placement or sales agent, if any, therefor and the managing
underwriters, if any, thereof, the Partnership shall without delay
prepare and furnish to each of the Electing Holders, to each placement
or sales agent, if any, and to each such underwriter, if any, a
reasonable number of copies of a prospectus supplemented or amended so
that, as thereafter delivered to Purchaser of Registrable Securities,
such prospectus shall conform in all material respects to the
applicable requirements of the Securities Act and the Trust Indenture
Act and the rules and regulations of the Commission thereunder and
shall not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the
circumstances then existing. Each Electing Holder agrees that upon
receipt of any notice from the Partnership pursuant to Section
3(d)(viii)(F), such Electing Holder shall forthwith discontinue the
disposition of Registrable Securities pursuant to the Shelf
Registration Statement applicable to such Registrable Securities until
such Electing Holder shall have received copies of such amended or
supplemented prospectus, and if so directed by the Partnership, such
Electing Holder shall deliver to the Partnership (at the Partnership's
expense) all copies, other than permanent file copies, then in such
Electing Holder's possession of the prospectus covering such
Registrable Securities at the time of receipt of such notice.
(f) In the event of a Shelf Registration, in addition to the
information required to be provided by each Electing Holder in its
Notice Questionnaire, the Partnership may require such Electing Holder
to furnish to the Partnership such additional information regarding
such Electing Holder and such Electing Holder's intended method of
distribution of Registrable Securities as may be required in order to
comply with the Securities Act. Each such Electing Holder agrees to
notify the Partnership as promptly as practicable of any inaccuracy or
change in information previously furnished by such Electing Holder to
the Partnership or of the occurrence of any event
in either case as a result of which any prospectus relating to such
Shelf Registration contains or would contain an untrue statement of a
material fact regarding such Electing Holder or such Electing Holder's
intended method of disposition of such Registrable Securities or omits
to state any material fact regarding such Electing Holder or such
Electing Holder's intended method of disposition of such Registrable
Securities required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing, and promptly to furnish to the Partnership any additional
information required to correct and update any previously furnished
information or required so that such prospectus shall not contain, with
respect to such Electing Holder or the disposition of such Registrable
Securities, an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing.
(g) Until the expiration of two years after the Closing Date,
the Partnership will not, and will not permit any of its "affiliates"
(as defined in Rule 144) to, resell any of the Securities that have
been reacquired by any of them except pursuant to an effective
registration statement under the Securities Act.
4. REGISTRATION EXPENSES.
The Partnership agrees to bear and to pay or cause to be paid promptly
all expenses incident to the Partnership's performance of or compliance with
this Exchange and Registration Rights Agreement, including (a) all Commission
and any NASD registration, filing and review fees and expenses including fees
and disbursements of counsel for the placement or sales agent or underwriters in
connection with such registration, filing and review, (b) all fees and expenses
in connection with the qualification of the Securities for offering and sale
under the State securities and blue sky laws referred to in Section 3(d)(xii)
and determination of their eligibility for investment under the laws of such
jurisdictions as any managing underwriters or the Electing Holders may
designate, including the reasonable fees and disbursements of counsel for the
Electing Holders or underwriters in connection with such qualification and
determination, (c) all expenses relating to the preparation, printing,
production, distribution and reproduction of each registration statement
required to be filed hereunder, each prospectus included therein or prepared for
distribution pursuant hereto, each
amendment or supplement to the foregoing, the expenses of preparing the
Securities for delivery and the expenses of printing or producing any
underwriting agreements, agreements among underwriters, selling agreements and
blue sky memoranda and all other documents in connection with the offering, sale
or delivery of Securities to be disposed of (including certificates representing
the Securities), (d) reasonable messenger, telephone and delivery expenses
relating to the offering, sale or delivery of Securities and the preparation of
documents referred in clause (c) above, (e) fees and expenses of the Trustee
under the Indenture, any agent of the Trustee and any counsel for the Trustee
and of any collateral agent or custodian, (f) internal expenses (including all
salaries and expenses of the Partnership's officers and employees performing
legal or accounting duties), (g) fees, disbursements and expenses of counsel and
independent certified public accountants of the Partnership (including the
expenses of any opinions or "cold comfort" letters required by or incident to
such performance and compliance), (h) reasonable fees, disbursements and
expenses of any "qualified independent underwriter" engaged pursuant to Section
3(d)(xix), (i) reasonable fees, disbursements and expenses of one counsel for
the Electing Holders retained in connection with a Shelf Registration, as
selected by the Electing Holders of a majority in aggregate principal amount of
the Registrable Securities held by Electing Holders (which counsel shall be
reasonably satisfactory to the Partnership), (j) any fees charged by securities
rating services for rating the Securities, and (k) fees, expenses and
disbursements of any other persons, including special experts, retained by the
Partnership in connection with such registration (collectively, the
"Registration Expenses"). To the extent that any Registration Expenses are
incurred, assumed or paid by any holder of Registrable Securities or any
placement or sales agent therefor or underwriter thereof, the Partnership shall
reimburse such person for the full amount of the Registration Expenses so
incurred, assumed or paid promptly after receipt of a request therefor.
Notwithstanding the foregoing, the holders of the Registrable Securities being
registered shall pay all agency fees and commissions and underwriting discounts
and commissions attributable to the sale of such Registrable Securities and the
fees and disbursements of any counsel or other advisors or experts retained by
such holders (severally or jointly), other than the counsel and experts
specifically referred to above.
5. REPRESENTATIONS AND WARRANTIES.
The Partnership represents and warrants to, and agrees with, each
Purchaser and each of the holders from time to time of Registrable Securities
that:
(a) Each registration statement covering Registrable
Securities and each prospectus (including any preliminary or summary
prospectus) contained therein or furnished pursuant to Section 3(d) or
Section 3(c) and any further amendments or supplements to any such
registration statement or prospectus, when it becomes effective or is
filed with the Commission, as the case may be, and, in the case of an
underwritten offering of Registrable Securities, at the time of the
closing under the underwriting agreement relating thereto, will conform
in all material respects to the requirements of the Securities Act and
the Trust Indenture Act and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and at all
times subsequent to the Effective Time when a prospectus would be
required to be delivered under the Securities Act, other than from (i)
such time as a notice has been given to holders of Registrable
Securities pursuant to Section 3(d)(viii)(F) or Section 3(c)(iii)(F)
until (ii) such time as the Partnership furnishes an amended or
supplemented prospectus pursuant to Section 3(e) or Section 3(c)(iv)
hereof, each such registration statement, and each prospectus
(including any summary prospectus) contained therein or furnished
pursuant to Section 3(d) or Section 3(c) hereof, as then amended or
supplemented, will conform in all material respects to the requirements
of the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing; PROVIDED,
HOWEVER, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Partnership by a holder of
Registrable Securities expressly for use therein.
(b) Any documents incorporated by reference in any prospectus
referred to in Section 5(a), when they become or became effective or
are or were filed with the Commission, as the case may be, will conform
or conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and none of such
documents will contain or contained an untrue statement of a material
fact or will omit or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; PROVIDED, HOWEVER, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Partnership by a holder of Registrable Securities expressly for
use therein.
(c) The compliance by the Partnership with all of the
provisions of this Exchange and Registration Rights Agreement and the
consummation of the transactions herein contemplated will not conflict
with or result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the
Partnership is a party or by which the Partnership is bound or to which
any of the property or assets of the Partnership is subject, nor will
such action result in any violation of the provisions of the
partnership agreement or other organizational documents of the
Partnership or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Partnership or any of its properties; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the consummation
by the Partnership of the transactions contemplated by this Exchange
and Registration Rights Agreement, except the registration under the
Securities Act of the Securities, qualification of the Indenture under
the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under State
securities or blue sky laws in connection with the offering and
distribution of the Securities.
(d) This Exchange and Registration Rights Agreement has been
duly authorized, executed and delivered by the Partnership.
6. INDEMNIFICATIon.
(a) INDEMNIFICATION BY THE PARTNERSHIP. The Partnership will
indemnify and hold harmless each of the holders of Registrable
Securities included in an Exchange Registration Statement, each of the
Electing Holders of Registrable Securities included in a Shelf
Registration Statement and each person who participates as a placement
or sales agent or as an underwriter in any offering or sale of such
Registrable Securities against any losses, claims, damages or
liabilities, joint or several, to which such holder, agent or
underwriter may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect
thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Exchange
Registration Statement or Shelf Registration Statement, as the case may
be, under which such Registrable Securities were registered under the
Securities Act, or any preliminary, final or summary prospectus
contained therein or furnished by the Partnership to any such holder,
Electing Holder, agent or underwriter, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will
reimburse such holder, such Electing Holder, such agent and such
underwriter for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such action or claim
as such expenses are incurred; PROVIDED, HOWEVER, that the Partnership
shall not be liable to any such person in any such case to the extent
that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in such registration statement, or
preliminary, final or summary prospectus, or amendment or supplement
thereto, in reliance upon and in conformity with written information
furnished to the Partnership by such person expressly for use therein.
(b) INDEMNIFICATION BY THE HOLDERS AND ANY AGENTS AND
UNDERWRITERS. The Partnership may require, as a condition to including
any Registrable Securities in any registration statement filed pursuant
to Section 2(b) hereof and to entering into any underwriting agreement
with respect thereto, that the Partnership shall have received an
undertaking reasonably satisfactory to it from the Electing Holder of
such Registrable Securities and from each underwriter named in any such
underwriting agreement, severally and not jointly, to (i) indemnify and
hold harmless the Partnership and all other holders of Registrable
Securities, against any losses, claims, damages or liabilities to which
the Partnership or such other holders of Registrable Securities may
become subject, under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in such registration statement,
or any preliminary, final or summary prospectus contained therein or
furnished by the Partnership to any such Electing Holder, agent or
underwriter, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to
the Partnership by such Electing Holder or underwriter expressly for
use therein, and (ii) reimburse the Partnership for any legal or other
expenses reasonably incurred by the Partnership in connection with
investigating or defending any such action or claim as such expenses
are incurred; PROVIDED, HOWEVER, that no such Electing Holder shall be
required to undertake liability to any person under this Section 6(b)
for any amounts in excess of the dollar amount of the proceeds to be
received by such Electing Holder from the sale of such Electing
Holder's Registrable Securities pursuant to such registration.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an
indemnified party under subsection (a) or (b) above of written notice
of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against an indemnifying party
pursuant to the indemnification provisions of or contemplated by this
Section 6, notify such indemnifying party in writing of the
commencement of such action; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may
have to any indemnified party otherwise than under the indemnification
provisions of or contemplated by Section 6(a) or 6(b) hereof. In case
any such action shall be brought against any indemnified party and it
shall notify an indemnifying party of the commencement thereof, such
indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to
such indemnified party of its election so to assume the defense
thereof, such indemnifying party shall not be liable to such
indemnified party for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party,
in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or
contribution may be sought
hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such action or
claim and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) CONTRIBUTION. If for any reason the indemnification
provisions contemplated by Section 6(a) or Section 6(b) are unavailable
to or insufficient to hold harmless an indemnified party in respect of
any losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in
connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof),
as well as any other relevant equitable considerations. The relative
fault of such indemnifying party and indemnified party shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The parties hereto agree
that it would not be just and equitable if contributions pursuant to
this Section 6(d) were determined by pro rata allocation (even if the
holders or any agents or underwriters or all of them were treated as
one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to in
this Section 6(d). The amount paid or payable by an indemnified party
as a result of the losses, claims, damages, or liabilities (or actions
in respect thereof) referred to above shall be deemed to include any
legal or other fees or expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 6(d), no holder
shall be required to contribute any amount in excess of the amount by
which the dollar amount of the proceeds received by such holder from
the sale of any Registrable Securities (after deducting any fees,
discounts and commissions applicable thereto) exceeds the amount of any
damages which such holder has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged
omission, and no underwriter shall be required to contribute any amount
in excess of the amount by which the total price at which the
Registrable Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
underwriter has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
holders' and any underwriters' obligations in this Section 6(d) to
contribute shall be several in proportion to the principal amount of
Registrable Securities registered or underwritten, as the case may be,
by them and not joint.
(e) The obligations of the Partnership under this Section 6
shall be in addition to any liability which the Partnership may
otherwise have and shall extend, upon the same terms and conditions, to
each officer, director and partner of each holder, agent and
underwriter and each person, if any, who controls any holder, agent or
underwriter within the meaning of the Securities Act; and the
obligations of the holders and any agents or underwriters contemplated
by this Section 6 shall be in addition to any liability which the
respective holder, agent or underwriter may otherwise have and shall
extend, upon the same terms and conditions, to each partner and
representative of the Partnership and to each person, if any, who
controls the Partnership within the meaning of the Securities Act.
7. UNDERWRITTEN OFFERINGS.
(a) SELECTION OF UNDERWRITERS. If any of the Registrable
Securities covered by the Shelf Registration are to be sold pursuant to
an underwritten offering, the managing underwriter or underwriters
thereof shall be designated by Electing Holders holding at least a
majority in aggregate principal amount of the Registrable Securities to
be included in such offering, provided that such designated managing
underwriter or underwriters is or are reasonably acceptable to the
Partnership.
(b) PARTICIPATION BY HOLDERS. Each holder of Registrable
Securities hereby agrees with each other such holder that no such
holder may participate
in any underwritten offering hereunder unless such holder (i) agrees to
sell such holder's Registrable Securities on the basis provided in any
underwriting arrangements approved by the persons entitled hereunder to
approve such arrangements and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of
such underwriting arrangements.
8. RULE 144.
The Partnership covenants to the holders of Registrable Securities that
to the extent it shall be required to do so under the Exchange Act, the
Partnership shall timely file the reports required to be filed by it under the
Exchange Act or the Securities Act (including the reports under Section 13 and
15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted
by the Commission under the Securities Act) and the rules and regulations
adopted by the Commission thereunder, and shall take such further action as any
holder of Registrable Securities may reasonably request, all to the extent
required from time to time to enable such holder to sell Registrable Securities
without registration under the Securities Act within the limitations of the
exemption provided by Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar or successor rule or regulation
hereafter adopted by the Commission. Upon the request of any holder of
Registrable Securities in connection with that holder's sale pursuant to Rule
144, the Partnership shall deliver to such holder a written statement as to
whether it has complied with such requirements.
9. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Partnership represents,
warrants, covenants and agrees that it has not granted, and shall not
grant, registration rights with respect to Registrable Securities or
any other securities which would be inconsistent with the terms
contained in this Exchange and Registration Rights Agreement.
(b) SPECIFIC PERFORMANCE. The parties hereto acknowledge that
there would be no adequate remedy at law if the Partnership fails to
perform any of its obligations hereunder and that the Initial
Purchasers and the holders from time to time of the Registrable
Securities may be irreparably harmed by any such failure, and
accordingly agree that the Initial Purchasers and such
holders, in addition to any other remedy to which they may be entitled
at law or in equity, shall be entitled to compel specific performance
of the obligations of the Partnership under this Exchange and
Registration Rights Agreement in accordance with the terms and
conditions of this Exchange and Registration Rights Agreement, in any
court of the United States or any State thereof having jurisdiction.
(c) NOTICES. All notices, requests, claims, demands, waivers
and other communications hereunder shall be in writing and shall be
deemed to have been duly given when delivered by hand, if delivered
personally or by courier, or three days after being deposited in the
mail (registered or certified mail, postage prepaid, return receipt
requested) as follows: If to the Partnership, to it at 0000 Xxxxx 000xx
Xxxxxx, Xxxxx 000, Xxxxx, Xxxxxxxx, 00000-0000, and if to a holder, to
the address of such holder set forth in the security register or other
records of the Partnership, or to such other address as the Partnership
or any such holder may have furnished to the other in writing in
accordance herewith, except that notices of change of address shall be
effective only upon receipt.
(d) PARTIES IN INTEREST. All the terms and provisions of this
Exchange and Registration Rights Agreement shall be binding upon, shall
inure to the benefit of and shall be enforceable by the parties hereto
and the holders from time to time of the Registrable Securities and the
respective successors and assigns of the parties hereto and such
holders. In the event that any transferee of any holder of Registrable
Securities shall acquire Registrable Securities, in any manner, whether
by gift, bequest, purchase, operation of law or otherwise, such
transferee shall, without any further writing or action of any kind, be
deemed a beneficiary hereof for all purposes and such Registrable
Securities shall be held subject to all of the terms of this Exchange
and Registration Rights Agreement, and by taking and holding such
Registrable Securities such transferee shall be entitled to receive the
benefits of, and be conclusively deemed to have agreed to be bound by
all of the applicable terms and provisions of this Exchange and
Registration Rights Agreement. If the Partnership shall so request, any
such successor, assign or transferee shall agree in writing to acquire
and hold the Registrable Securities subject to all of the applicable
terms hereof.
(e) SURVIVAL. The respective indemnities, agreements,
representations, warranties and each other provision set forth in this
Exchange and Registration Rights Agreement or made pursuant hereto
shall remain in full force and effect regardless of any investigation
(or statement as to the results thereof) made by or on behalf of any
holder of Registrable Securities, any director, officer or partner of
such holder, any agent or underwriter or any director, officer or
partner thereof, or any controlling person of any of the foregoing, and
shall survive delivery of and payment for the Registrable Securities
pursuant to the Purchase Agreement and the transfer and registration of
Registrable Securities by such holder and the consummation of an
Exchange Offer.
(F) GOVERNING LAW. THIS EXCHANGE AND REGISTRATION RIGHTS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
(g) HEADINGS. The descriptive headings of the several Sections
and paragraphs of this Exchange and Registration Rights Agreement are
inserted for convenience only, do not constitute a part of this
Exchange and Registration Rights Agreement and shall not affect in any
way the meaning or interpretation of this Exchange and Registration
Rights Agreement.
(h) ENTIRE AGREEMENT; AMENDMENTS. This Exchange and
Registration Rights Agreement and the other writings referred to herein
(including the Indenture and the form of Securities) or delivered
pursuant hereto which form a part hereof contain the entire
understanding of the parties with respect to its subject matter. This
Exchange and Registration Rights Agreement supersedes all prior
agreements and understandings between the parties with respect to its
subject matter. This Exchange and Registration Rights Agreement may be
amended and the observance of any term of this Exchange and
Registration Rights Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively) only by
a written instrument duly executed by the Partnership and the holders
of a majority in aggregate principal amount of the Registrable
Securities at the time outstanding. Each holder of any Registrable
Securities at the time or thereafter outstanding shall be bound by any
amendment or waiver effected pursuant to this Section 9(h), whether or
not any notice, writing or marking indicating such amendment or waiver
appears on such Registrable Securities or is delivered to such holder.
(i) INSPECTION. For so long as this Exchange and Registration
Rights Agreement shall be in effect, this Exchange and Registration
Rights Agreement and a complete list of the names and addresses of all
the holders of Registrable Securities shall be made available for
inspection and copying on any business day by any holder of Registrable
Securities for proper purposes only (which shall include any purpose
related to the rights of the holders of Registrable Securities under
the Securities, the Indenture and this Agreement) at the offices of the
Partnership at the address thereof set forth in Section 9(c) and at the
office of the Trustee under the Indenture.
(j) COUNTERPARTS. This agreement may be executed by the
parties in counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together
constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us three counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Initial Purchasers, this letter and such
acceptance hereof shall constitute a binding agreement between each of the
Initial Purchasers and the Partnership. It is understood that your acceptance of
this letter on behalf of each of the Initial Purchasers is pursuant to the
authority set forth in a form of Agreement among Initial Purchasers, the form of
which shall be submitted to the Partnership for examination upon request, but
without warranty on your part as to the authority of the signers thereof.
Very truly yours,
Tenaska Georgia Partners, L.P.
By: Tenaska Georgia, Inc.,
its Managing Partner
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President of Finance
and Treasurer
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.,
for itself as Initial Purchaser and
for TD Securities (USA) Inc. as
Initial Purchaser
By: /s/ Xxxxxxx, Sachs & Co.
-------------------------------
Name:
Title:
EXHIBIT A
TENASKA GEORGIA PARTNERS, L.P.
INSTRUCTION TO DTC PARTICIPANTS
(DATE OF MAILING)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE] *
The Depository Trust Company ("DTC") has identified you as a DTC Participant
through which beneficial interests in the Tenaska Georgia Partners, L.P. (the
"Partnership") 9.50% Senior Secured Bonds Due 2030 (the "Securities") are held.
The Partnership is in the process of registering the Securities under the
Securities Act of 1933 for resale by the beneficial owners thereof. In order to
have their Securities included in the registration statement, beneficial owners
must complete and return the enclosed Notice of Registration Statement and
Selling Security holder Questionnaire.
IT IS IMPORTANT THAT BENEFICIAL OWNERS OF THE SECURITIES RECEIVE A COPY OF THE
ENCLOSED MATERIALS AS SOON AS POSSIBLE as their rights to have the Securities
included in the registration statement depend upon their returning the Notice
and Questionnaire by [DEADLINE FOR RESPONSE]. Please forward a copy of the
enclosed documents to each beneficial owner that holds interests in the
Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact Tenaska Georgia
Partners, L.P., 0000 Xxxxx 000xx Xxxxxx, Xxxxx 000, Xxxxx, Xxxxxxxx, 00000-0000,
Attention: Xxxxxxx X. Xxxxxx (000) 000-0000.
----------
Not less than 28 calendar days from date of mailing.
TENASKA GEORGIA PARTNERS, L.P.
Notice of Registration Statement
and
SELLING SECURITYHOLDER QUESTIONNAIRE
(Date)
Reference is hereby made to the Exchange and Registration Rights Agreement (the
"Exchange and Registration Rights Agreement") between Tenaska Georgia Partners,
L.P. (the "Partnership") and the Initial Purchasers named therein. Pursuant to
the Exchange and Registration Rights Agreement, the Partnership has filed with
the United States Securities and Exchange Commission (the "Commission") a
registration statement on Form [__] (the "Shelf Registration Statement") for the
registration and resale under Rule 415 of the Securities Act of 1933, as amended
(the "Securities Act"), of the Partnership's $275,000,000 9.50% Senior Secured
Bonds Due 2030 (the "Securities"). A copy of the Exchange and Registration
Rights Agreement is attached hereto. All capitalized terms not otherwise defined
herein shall have the meanings ascribed thereto in the Exchange and Registration
Rights Agreement.
Each beneficial owner of Registrable Securities (as defined below) is entitled
to have the Registrable Securities beneficially owned by it included in the
Shelf Registration Statement. In order to have Registrable Securities included
in the Shelf Registration Statement, this Notice of Registration Statement and
Selling Security holder Questionnaire ("Notice and Questionnaire") must be
completed, executed and delivered to the Partnership's counsel at the address
set forth herein for receipt ON OR BEFORE [DEADLINE FOR RESPONSE]. Beneficial
owners of Registrable Securities who do not complete, execute and return this
Notice and Questionnaire by such date (i) will not be named as selling security
holders in the Shelf Registration Statement and (ii) may not use the Prospectus
forming a part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling security holder
in the Shelf Registration Statement and related Prospectus. Accordingly, holders
and beneficial owners of Registrable Securities are advised to consult their own
securities law counsel regarding the consequences of being named or not being
named as a selling security holder in the Shelf Registration Statement and
related Prospectus.
The term "REGISTRABLE SECURITIES" is defined in the Exchange and Registration
Rights Agreement.
2
ELECTION
The undersigned holder (the "Selling Security holder") of Registrable Securities
hereby elects to include in the Shelf Registration Statement the Registrable
Securities beneficially owned by it and listed below in Item (3). The
undersigned, by signing and returning this Notice and Questionnaire, agrees to
be bound with respect to such Registrable Securities by the terms and conditions
of this Notice and Questionnaire and the Exchange and Registration Rights
Agreement, including, without limitation, Section 6 of the Exchange and
Registration Rights Agreement, as if the undersigned Selling Security holder
were an original party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf Registration
Statement, the Selling Security holder will be required to deliver to the
Partnership and Trustee the Notice of Transfer set forth in Appendix A to the
Prospectus and as Exhibit B to the Exchange and Registration Rights Agreement.
The Selling Security holder hereby provides the following information to the
Partnership and represents and warrants that such information is accurate and
complete:
3
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Security holder:
-------------------------------------------------------
(b) Full Legal Name of Registered Holder (if not the same as in
(a) above) of Registrable Securities Listed in Item (3) below:
-------------------------------------------------------
(c) Full Legal Name of DTC Participant (if applicable and if not
the same as (b) above) Through Which Registrable Securities
Listed in Item (3) below are Held:
-------------------------------------------------------
(2) Address for Notices to Selling Security holder:
______________________________
______________________________
______________________________
Telephone: ______________________________
Fax: ______________________________
Contact Person: ______________________________
(3) Beneficial Ownership of Securities:
EXCEPT AS SET FORTH BELOW IN THIS ITEM (3), THE UNDERSIGNED DOES NOT
BENEFICIALLY OWN ANY SECURITIES.
(a) Principal amount of Registrable Securities beneficially owned:
________ CUSIP No(s). of such Registrable Securities: ________
(b) Principal amount of Securities other than Registrable
Securities beneficially owned:
______________________________________________________________
CUSIP No(s). of such other Securities: _______________________
(c) Principal amount of Registrable Securities which the
undersigned wishes to be included in the Shelf Registration
Statement: ___________________________ CUSIP No(s). of such
Registrable Securities to be included in the Shelf
Registration Statement: ________
4
(4) Beneficial Ownership of Other Securities of the Partnership:
EXCEPT AS SET FORTH BELOW IN THIS ITEM (4), THE UNDERSIGNED
SELLING SECURITY HOLDER IS NOT THE BENEFICIAL OR REGISTERED
OWNER OF ANY OTHER SECURITIES OF THE PARTNERSHIP, OTHER THAN
THE SECURITIES LISTED ABOVE IN ITEM (3).
State any exceptions here:
(5) Relationships with the Partnership:
EXCEPT AS SET FORTH BELOW, NEITHER THE SELLING SECURITY HOLDER
NOR ANY OF ITS AFFILIATES, OFFICERS, DIRECTORS OR PRINCIPAL
EQUITY HOLDERS (5% OR MORE) HAS HELD ANY POSITION OR OFFICE OR
HAS HAD ANY OTHER MATERIAL RELATIONSHIP WITH THE PARTNERSHIP
(OR ITS PREDECESSORS OR AFFILIATES) DURING THE PAST THREE
YEARS.
State any exceptions here:
(6) Plan of Distribution:
EXCEPT AS SET FORTH BELOW, THE UNDERSIGNED SELLING SECURITY
HOLDER INTENDS TO DISTRIBUTE THE REGISTRABLE SECURITIES LISTED
ABOVE IN ITEM (3) ONLY AS FOLLOWS (IF AT ALL): SUCH
REGISTRABLE SECURITIES MAY BE SOLD FROM TIME TO TIME DIRECTLY
BY THE UNDERSIGNED SELLING SECURITY HOLDER OR, ALTERNATIVELY,
THROUGH UNDERWRITERS, BROKER-DEALERS OR AGENTS. SUCH
REGISTRABLE SECURITIES MAY BE SOLD IN ONE OR MORE TRANSACTIONS
AT FIXED PRICES, AT PREVAILING MARKET PRICES AT THE TIME OF
SALE, AT VARYING PRICES DETERMINED AT THE TIME OF SALE, OR AT
NEGOTIATED PRICES. SUCH SALES MAY BE EFFECTED IN TRANSACTIONS
(WHICH MAY INVOLVE CROSSES OR BLOCK TRANSACTIONS) (I) ON ANY
NATIONAL SECURITIES EXCHANGE OR QUOTATION SERVICE ON WHICH THE
REGISTERED SECURITIES MAY BE LISTED OR QUOTED AT THE TIME OF
SALE, (II) IN THE OVER-THE-COUNTER MARKET, (III) IN
TRANSACTIONS OTHERWISE THAN ON SUCH EXCHANGES OR SERVICES OR
IN THE OVER-THE-COUNTER MARKET, OR (IV) THROUGH THE WRITING OF
OPTIONS. IN CONNECTION WITH SALES OF THE REGISTRABLE
SECURITIES OR OTHERWISE, THE SELLING SECURITY HOLDER MAY ENTER
INTO HEDGING TRANSACTIONS WITH BROKER-DEALERS, WHICH MAY IN
TURN ENGAGE IN SHORT SALES OF THE REGISTRABLE SECURITIES IN
THE COURSE OF HEDGING THE POSITIONS THEY ASSUME. THE SELLING
SECURITY HOLDER MAY ALSO SELL REGISTRABLE SECURITIES SHORT AND
DELIVER REGISTRABLE SECURITIES TO CLOSE OUT SUCH SHORT
POSITIONS, OR LOAN OR PLEDGE REGISTRABLE SECURITIES TO
BROKER-DEALERS THAT IN TURN MAY SELL SUCH SECURITIES.
State any exceptions here:
5
By signing below, the Selling Security holder acknowledges that it understands
its obligation to comply, and agrees that it will comply, with the provisions of
the Exchange Act and the rules and regulations thereunder, particularly
Regulation M.
In the event that the Selling Security holder transfers all or any portion of
the Registrable Securities listed in Item (3) above after the date on which such
information is provided to the Partnership, the Selling Security holder agrees
to notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Exchange and
Registration Rights Agreement.
By signing below, the Selling Security holder consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Security holder understands that such
information will be relied upon by the Partnership in connection with the
preparation of the Shelf Registration Statement and related Prospectus.
In accordance with the Selling Security holder's obligation under Section 3(d)
of the Exchange and Registration Rights Agreement to provide such information as
may be required by law for inclusion in the Shelf Registration Statement, the
Selling Security holder agrees to promptly notify the Partnership of any
inaccuracies or changes in the information provided herein which may occur
subsequent to the date hereof at any time while the Shelf Registration Statement
remains in effect. All notices hereunder and pursuant to the Exchange and
Registration Rights Agreement shall be made in writing, by hand-delivery,
first-class mail, or air courier guaranteeing overnight delivery as follows:
(i) To the Partnership:
Tenaska Georgia Partners, L.P.
0000 Xxxxx 000xx Xxxxxx
Xxxxx 000
Xxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx
6
(ii) With a copy to:
_________________________
_________________________
_________________________
_________________________
_________________________
Once this Notice and Questionnaire is executed by the Selling Security holder
and received by the Partnership's counsel, the terms of this Notice and
Questionnaire, and the representations and warranties contained herein, shall be
binding on, shall inure to the benefit of and shall be enforceable by the
respective successors, heirs, personal representatives, and assigns of the
Partnership and the Selling Security holder (with respect to the Registrable
Securities beneficially owned by such Selling Security holder and listed in Item
(3) above. This Agreement shall be governed in all respects by the laws of the
State of New York.
7
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by its
duly authorized agent.
Dated: ___________________
________________________________________________________________
Selling Security holder
(Print/type full legal name of beneficial owner of Registrable
Securities)
By: ____________________________________________________________
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [DEADLINE FOR RESPONSE] TO The Partnership'S COUNSEL AT:
_________________________
_________________________
_________________________
_________________________
_________________________
8
EXHIBIT B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
The Chase Manhattan Bank
Tenaska Georgia Partners, L.P.
x/x Xxx Xxxxx Xxxxxxxxx Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Global Trust Services
Attention: Trust Officer
Re: Tenaska Georgia Partners, L.P. (the "Partnership")
9.50% Senior Secured Bonds Due 2030
Dear Sirs:
Please be advised that ________________ has transferred ________________________
aggregate principal amount of the above-referenced Bonds pursuant to an
effective Registration Statement on Form [_____] (File No. 333-_______) filed by
the Partnership.
We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied and that the above-named
beneficial owner of the Bonds is named as a "Selling Holder" in the Prospectus
dated [DATE] or in supplements thereto, and that the aggregate principal amount
of the Bonds transferred are the Bonds listed in such Prospectus opposite such
owner's name.
Dated:
Very truly yours,
______________________________
(Name)
By: ______________________________
(Authorized Signature)
9
