XXXXXX XXXXXX ENERGY PARTNERS, L. P.
Issuer
THE GUARANTORS NAMED HEREIN
as Guarantors
and
U.S. TRUST COMPANY OF TEXAS, N.A.
Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of January 29, 1999
6.30 % Senior Notes Due February 1, 2009
FIRST SUPPLEMENTAL INDENTURE, dated as of January 29, 1999 (herein
called the "First Supplemental Indenture"), between XXXXXX XXXXXX ENERGY
PARTNERS, L. P., a Delaware limited partnership (herein called the
"Partnership"), having its principal office at 0000 XxXxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxx 00000, the Guarantors named herein and U.S. TRUST COMPANY OF
TEXAS, N.A., a banking corporation duly organized and existing under the laws of
the State of New York, as trustee under the Indenture referred to below (herein
called the "Trustee").
RECITALS OF THE PARTNERSHIP
WHEREAS, the Partnership has heretofore executed and delivered to the
Trustee the Indenture, dated as of January 29, 1999 (herein called the
"Indenture"), providing for the issuance from time to time of one or more series
of the Partnership's unsecured senior debentures, notes or other evidences of
indebtedness (herein called the "Securities"); and
WHEREAS, Section 301 of the Indenture provides that various matters with
respect to any series of Securities issued under the Indenture may be
established in an indenture supplemental to the Indenture; and
WHEREAS, Section 901(6) of the Indenture provides that the Partnership,
the Guarantors and the Trustee may enter into indentures supplemental to the
Indenture for the purpose of establishing the form or terms of the Securities of
any series as permitted in Sections 201 and 301 of the Indenture; and
WHEREAS, the Partnership desires to create a series of the Securities in
an aggregate principal amount of up to $250,000,000, which series shall be
designated the 6.30% Senior Notes Due February 1, 2009 (the "Notes"), and all
action on the part of the Partnership necessary to authorize the issuance of the
Notes under the Indenture and this First Supplemental Indenture has been duly
taken; and
WHEREAS, all acts and things necessary to make the Notes, when executed
by the Partnership and completed, authenticated and delivered by the Trustee as
provided in the Indenture and this First Supplemental Indenture, the valid and
binding obligations of the Partnership and to constitute these presents a valid
and binding supplemental indenture and agreement according to its terms, have
been done and performed;
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
That in consideration of the premises and the issuance of the Notes, the
Partnership covenants and agrees with the Trustee, for the equal and
proportionate benefit of all holders of the Notes, as follows:
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ARTICLE I
Relation to Indenture; Definitions
SECTION 1.01 This First Supplemental Indenture constitutes an integral part of
the Indenture.
SECTION 1.02 For all purposes of this First Supplemental Indenture:
(1) Capitalized terms used herein shall have the meanings
specified herein or in the Indenture, as the case may be;
(2) "Make-Whole Premium" with respect to any Note (or portion
thereof) to be redeemed will be equal to the excess, if any, of (i) the sum of
the present values, calculated as of the Redemption Date, of (a) each interest
payment that, but for such redemption, would have been payable on the Note (or
portion thereof) being redeemed on each Interest Payment Date occurring after
the Redemption Date (excluding any accrued interest for the period prior to the
Redemption Date) and (b) the principal amount that, but for such redemption,
would have been payable at the final maturity of the Note (or portion thereof)
being redeemed, over (ii) the principal amount of the Note (or portion thereof)
being redeemed. The present value of interest and principal payments referred to
in clause (i) will be determined in accordance with generally accepted
principles of financial analysis. Such present values will be calculated by
discounting the amount of each payment of interest or principal from the date
that each such payment would have been payable, but for the redemption, to the
Redemption Date at a discount rate equal to the Treasury Yield plus 25 basis
points.
(3) "Treasury Yield" means a rate of interest per annum equal to
the weekly average yield to maturity of United States Treasury Notes that have a
constant maturity that corresponds to the remaining term to maturity of the
Notes, calculated to the nearest 1/12 of a year (the "Remaining Term"). The
Treasury Yield will be determined as of the third business day immediately
preceding the applicable Redemption Date. The weekly average yields of United
States Treasury Notes will be determined by reference to the most recent
statistical release published by the Federal Reserve Bank of New York and
designated "H.15(519) Selected Interest Rates" or any successor release (the
"H.15 Statistical Release"). If the H.15 Statistical Release sets forth a weekly
average yield for United States Treasury Notes having a constant maturity that
is the same as the Remaining Term, then the Treasury Yield will be equal to such
weekly average yield. In all other cases, the Treasury Yield will be calculated
by interpolation, on a straight-line basis, between the weekly average yields on
the United States Treasury Notes that have a constant maturity closest to and
greater than the Remaining Term and the United States Treasury Notes that have a
constant maturity closest to and less than the Remaining Term (in each case as
set forth in the H.15 Statistical Release). Any weekly average yields so
calculated by interpolation will be rounded to the nearest 1/100th of 1%, with
any figure of 1/200% or above being rounded upward. If weekly average yields for
United States Treasury Notes are not available in the H.15 Statistical Release
or otherwise, then the Treasury Yield will
2
be calculated by interpolation of comparable rates selected by the Independent
Investment Banker (as defined below).
(4) All references herein to Articles and Sections, unless
otherwise specified, refer to the corresponding Articles and Sections of this
First Supplemental Indenture; and
(5) The terms "herein", "hereof", "hereunder" and other words of
similar import refer to this First Supplemental Indenture.
ARTICLE II
The Series of Securities
SECTION 2.01 The Title of the Securities.
There shall be a series of Securities designated the "6.30% Senior Notes
due February 1, 2009" (the "Notes"). The Notes shall be executed, authenticated
and delivered in accordance with the provisions of, and shall in all respects be
subject to, the terms, conditions and covenants of the Indenture and this First
Supplemental Indenture (including the form of Note set forth as Exhibit A
hereto).
SECTION 2.02 Limitation on Aggregate Principal Amount
The aggregate principal amount of the Notes shall be limited to
$250,000,000.
SECTION 2.03 Stated Maturity
The Stated Maturity of the Notes shall be February 1, 2009.
SECTION 2.04 Interest and Interest Rates
The rate of interest on each Note shall be 6.30% per annum (at the same
rate per annum on any overdue principal and premium and, to the extent lawful,
on any overdue installment of interest), accruing from January 29, 1999 and
interest shall be payable, semi-annually in arrears, on February 1 and August 1
of each year (each such date, an "Interest Payment Date"), commencing August 1,
1999 to the Persons in whose names the Notes are registered at the close of
business on the immediately preceding January 15 and July 15 respectively,
whether or not such day is a Business Day (each such date, a "Regular Record
Date"). The amount of interest payable for any period shall be computed on the
basis of twelve 30-day months and a 360-day year. The amount of interest payable
for any partial period shall be computed on the basis of a 360-day year of
twelve 30-day months and the days elapsed in any partial month. In the event
that any date on which interest is payable on a Note is not a Business Day, then
a payment of the interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay) with the same force and effect as if made
on the date the payment was originally payable. The interest so payable, and
3
punctually paid or duly provided for, on any Interest Payment Date will be paid
to the Person in whose name such Note (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest. Any such interest not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record Date and
shall either (i) be paid to the Person in whose name such Note (or one or more
Predecessor Securities) is registered at the close of business on the Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice of which shall be given to Holders of the Notes not less than 10
days prior to such Special Record Date, or (ii) be paid at such time in any
other lawful manner not inconsistent with the requirements of any securities
exchange or automated quotation system on which the Notes may be listed or
traded, and upon such notice as may be required by such exchange or automated
quotation system, all as more fully provided in the Indenture.
SECTION 2.05 Place of Payment
The Place of Payment where the Notes may be presented or surrendered for
payment shall initially be the corporate trust office of the Trustee in The City
of New York.
SECTION 2.06 Place of Registration or Exchange; Notices and Demands With
Respect to the Notes
The place where the Holders of the Notes may present the Notes for
registration of transfer or exchange and may make notices and demands to or upon
the Partnership in respect of the Notes shall initially be the corporate trust
office of the Trustee in The City of New York.
SECTION 2.07 Global Securities
The Notes shall initially be issuable in the form of one or more Global
Securities. Such Global Securities shall be deposited with, or on behalf of, The
Depository Trust Company, New York, New York, which shall act as Depositary with
respect to the Notes. Such Global Securities shall bear the legends set forth in
the form of Note attached as Exhibit A hereto.
SECTION 2.08 Form of Notes
The Notes shall be substantially in the form attached as Exhibit A
hereto. The Notes shall be registered in such names, shall be in such amounts
and shall have such other specific terms contemplated in the form of Note
attached hereto as Exhibit A, as shall be communicated by the Partnership to the
Trustee in accordance with the administrative procedures, as in effect from time
to time, established to provide for the issuance of the Notes.
SECTION 2.09 Securities Registrar
The Trustee shall serve as the initial Securities Registrar.
4
SECTION 2.10 Defeasance and Discharge; Covenant Defeasance
Article XIII of the Indenture, including without limitation, Sections
1302 and 1303 thereof, shall apply to the Notes.
SECTION 2.11 Optional Redemption
The Notes will be redeemable, at the option of the Partnership, at any
time in whole, or from time to time in part, upon not less than 30 and not more
than 60 days' notice mailed to each Holder of Notes to be redeemed at the
Holder's address appearing in the Note Register, on any date prior to maturity
at a price equal to (a) 100% of the principal amount thereof plus accrued
interest to the Redemption Date (subject to the right of holders of record on
the relevant Record Date to receive interest due on an Interest Payment Date
that is on or prior to the Redemption Date) and (b) a Make-Whole Premium, if any
(the "Redemption Price"). In no event will the Redemption Price ever be less
than 100% of the principal amount of the Notes plus accrued interest to the
Redemption Date. The Make-Whole Premium will be calculated by an independent
investment banking institution of national standing appointed by the
Partnership; provided, that if the Partnership fails to make such appointment at
least 45 business days prior to the Redemption Date, or if the institution so
appointed is unwilling or unable to make such calculation, such calculation will
be made by Xxxxxxx, Sachs & Co. or, if such firm is unwilling or unable to make
such calculation, by an independent investment banking institution of national
standing appointed by the Trustee (in any such case, an "Independent Investment
Banker").
If less than all of the Notes are to be redeemed, the Trustee will
select the Notes to be redeemed by such method as the Trustee shall deem fair
and appropriate. The Trustee may select for redemption Notes and portions of
Notes in amounts of $1,000 or whole multiples of $1,000.
SECTION 2.12 Sinking Fund Obligations
The Partnership has no obligation to redeem or purchase any Notes
pursuant to any sinking fund or analogous requirement or upon the happening of a
specified event or at the option of a Holder thereof.
ARTICLE III
Miscellaneous
SECTION 3.01 The recitals contained herein shall be taken as the
statements of the Partnership, and the Trustee assumes no responsibility for
their correctness.
The Trustee makes no representations as to the validity or sufficiency
of this First Supplemental Indenture or the proper authorization or the due
execution hereof by the Partnership.
5
SECTION 3.02 Except as expressly supplemented and amended hereby, the
Indenture shall continue in full force and effect in accordance with the
provisions thereof, and the Indenture, as supplemented and amended hereby, is in
all respects hereby ratified and confirmed. This First Supplemental Indenture
and all its provisions shall be deemed a part of the Indenture in the manner and
to the extent herein and therein provided.
SECTION 3.03 This First Supplemental Indenture and the Notes shall be
governed by and construed in accordance with the laws of the State of New York.
SECTION 3.04 This instrument may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
XXXXXX XXXXXX ENERGY
PARTNERS, L.P.
By: Kinder Xxxxxx X.X., Inc.,
Its General Partner
By: /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: Vice President and Chief Financial Officer
U.S. TRUST COMPANY OF TEXAS, N.A.,
As Trustee
By: /s/ Xxxx X. Xxxxxxxxx
---------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
6
GUARANTEES
Each Guarantor (which term includes any successor person under the
Indenture), has fully, unconditionally and absolutely guaranteed, to the extent
set forth in the Indenture and this First Supplemental Indenture and subject to
the provisions in the Indenture and this First Supplemental Indenture, the due
and punctual payment of the principal of, and premium, if any, and interest on
the Notes and all other amounts due and payable under the Indenture, the First
Supplemental Indenture and the Notes by the Partnership.
The obligations of the Guarantors to the Holders of Notes and to the
Trustee pursuant to the Guarantees and the Indenture are expressly set forth in
Article XIV of the Indenture and reference is hereby made to the Indenture for
the precise terms of the Guarantees.
XXXXXX XXXXXX OPERATING L.P. "A"
By: Kinder Xxxxxx X.X., Inc.
By: /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------
Xxxxx X. Xxxxxxxxx, Xx.
Vice President
XXXXXX XXXXXX OPERATING L.P. "B"
By: Kinder Xxxxxx X.X., Inc.
By: /s/ Xxxxx X. Xxxxxxxxx, Xx.
----------------------------
Xxxxx X. Xxxxxxxxx, Xx.
Vice President
XXXXXX XXXXXX OPERATING L.P. "C"
By: Kinder Xxxxxx X.X., Inc.
By: /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------
Xxxxx X. Xxxxxxxxx, Xx.
Vice President
8
XXXXXX XXXXXX OPERATING L.P. "D"
By: Kinder Xxxxxx X.X., Inc.
By: /s/ Xxxxx X. Xxxxxxxxx, Xx.
--------------------------------
Xxxxx X. Xxxxxxxxx, Xx.
Vice President
XXXXXX XXXXXX BULK TERMINALS,
INC.
By: /s/ Xxxxx X. Xxxxxxxxx, Xx.
-----------------------------
Xxxxx X. Xxxxxxxxx, Xx.
Vice President
XXXXXX XXXXXX NATURAL GAS
LIQUIDS CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx, Xx.
-----------------------------
Xxxxx X. Xxxxxxxxx, Xx.
Vice President
XXXXXX XXXXXX CO2, LLC
By: Xxxxxx Xxxxxx Operating L.P. "A"
By: Kinder Xxxxxx X.X., Inc.
By: /s/ Xxxxx X. Xxxxxxxxx, Xx.
------------------------------
Xxxxx X. Xxxxxxxxx, Xx.
Vice President
9
[FORM OF FACE OF NOTE]
[If the Note is a Global Security, insert -- THIS NOTE IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS NOTE MAY NOT
BE TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR NOTES REGISTERED IN THE NAME
OF, ANY PERSON OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH
TRANSFER MAY BE REGISTERED, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE. EVERY NOTE AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER
OF, OR IN EXCHANGE FOR OR IN LIEU OF, THIS NOTE SHALL BE A GLOBAL SECURITY
SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, TO THE PARTNERSHIP OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
XXXXXX XXXXXX ENERGY PARTNERS, L. P.
6.30% SENIOR NOTES DUE FEBRUARY 1, 2009
NO. $
CUSIP No. 000000XX0
XXXXXX XXXXXX ENERGY PARTNERS, L. P., a Delaware limited partnership
(herein called the "Partnership", which term includes any successor Person under
the Indenture hereinafter referred to), for value received, hereby promises to
pay to________, or registered assigns, the principal sum of _________ United
States Dollars on February 1, 2009, and to pay interest thereon from January 29,
1999, or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, semi-annually on February 1 and August 1 in each
year, commencing August 1, 1999, at the rate of 6.30% per annum until Maturity,
and at the same rate per annum on any overdue principal and premium and, to the
extent lawful, on any
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overdue installment of interest. The amount of interest payable for any period
shall be computed on the basis of twelve 30-day months and a 360-day year. The
amount of interest payable for any partial period shall be computed on the basis
of a 360-day year of twelve 30-day months and the days elapsed in any partial
month. In the event that any date on which interest is payable on this Note is
not a Business Day, then a payment of the interest payable on such date will be
made on the next succeeding day which is a Business Day (and without any
interest or other payment in respect of any such delay) with the same force and
effect as if made on the date the payment was originally payable. A "Business
Day" shall mean, when used with respect to any Place of Payment, each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in that Place of Payment are authorized or obligated by law,
executive order or regulation to close. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Note (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the January 15 or July 15 (whether
or not a Business Day), as the case may be, next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record Date and may
either (i) be paid to the Person in whose name this Note (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice of which shall be given to Holders of Notes not less than 10
days prior to such Special Record Date, or (ii) be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
or automated quotation system on which the Notes may be listed or traded, and
upon such notice as may be required by such exchange or automated quotation
system, all as more fully provided in such Indenture.
[If the Note is a Global Security, insert -- Payment of the principal of
and premium, if any, and interest on this Note will be made by transfer of
immediately available funds to a bank account in The City of New York designated
by the Holder in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts.]
[If a Definitive Security, insert--Payment of the principal of (and
premium, if any) and interest on this Security will be made at the office or
agency of the Partnership maintained for that purpose in The City of New York,
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts or at such other
offices or agencies as the Partnership may designate, by United States Dollar
check drawn on, or transfer to a United States Dollar account maintained by the
payee with, a bank in The City of New York (so long as the applicable Paying
Agent has received proper transfer instructions in writing at least five days
prior to the payment date); provided, however, that payment of interest may be
made at the option of the Partnership by United States Dollar check mailed to
the addresses of the Persons entitled thereto as such addresses shall appear in
the Security Register or by transfer to a United States Dollar account
maintained by the payee with a bank in The City of New York (so long as the
applicable Paying Agent has received proper transfer instructions in writing by
the Record Date prior to the applicable Interest Payment Date).]
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Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Note shall
not be entitled to any benefit under the Indenture or be valid or obligatory for
any purpose.
IN WITNESS WHEREOF, the Partnership has caused this instrument to be
duly executed.
Dated:
XXXXXX XXXXXX ENERGY PARTNERS, L. P.
By: Kinder Xxxxxx X.X., Inc.
Its General Partner
By: _______________________
Name:
Title:
Trustee's Certificate and Authorization
This is one of the Notes of the series designated therein referred to in
the within-mentioned Indenture.
U.S. TRUST COMPANY OF TEXAS, N.A.
As Trustee
By:_________________________
Authorized Signatory
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[FORM OF REVERSE OF NOTE]
This Note is one of a duly authorized issue of Securities of the
Partnership (the "Notes"), issued and to be issued in one or more series under
an Indenture dated as of January 29, 1999 (the "Indenture"), among the
Partnership, the Guarantors named therein, and U.S. Trust Company of Texas,
N.A., as Trustee (the "Trustee", which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, obligations, duties and immunities thereunder of the Partnership, the
Guarantors, the Trustee and the Holders of the Notes and of the terms upon which
the Notes are, and are to be, authenticated and delivered. As provided in the
Indenture, the Securities may be issued in one or more series, which different
series may be issued in various aggregate principal amounts, may mature at
different times, may bear interest, if any, at different rates, may be subject
to different redemption provisions, if any, may be subject to different sinking,
purchase or analogous funds, if any, may be subject to different covenants and
Events of Default and may otherwise vary as in the Indenture provided or
permitted. This Note is one of a series of Securities designated on the face
hereof limited in aggregate principal amount to $200,000,000.
The Notes are redeemable, at the option of the Partnership, at any time
in whole or from time to time in part, upon not less than 30 and not more than
60 days' notice mailed to each holder of Notes to be redeemed at the holder's
address appearing in the Note Register, on any date prior to maturity at a price
equal to (a) 100% of the principal amount thereof plus accrued interest to the
Redemption Date (subject to the right of holders of record on the relevant
Record Date to receive interest due on an Interest Payment Date that is on or
prior to the Redemption Date) and (b) a Make-Whole Premium, if any.
"Make-Whole Premium" with respect to any Note (or portion thereof) to be
redeemed will be equal to the excess, if any, of (i) the sum of the present
values, calculated as of the Redemption Date, of (a) each interest payment that,
but for such redemption, would have been payable on the Note (or portion
thereof) being redeemed on each Interest Payment Date occurring after the
Redemption Date (excluding any accrued interest for the period prior to the
Redemption Date) and (b) the principal amount that, but for such redemption,
would have been payable at the final maturity of the Note (or portion thereof)
being redeemed, over (ii) the principal amount of the Note (or portion thereof)
being redeemed. The present value of interest and principal payments referred to
in clause (i) will be determined in accordance with generally accepted
principles of financial analysis. Such present values will be calculated by
discounting the amount of each payment of interest or principal from the date
that each such payment would have been payable, but for the redemption, to the
Redemption Date at a discount rate equal to the Treasury Yield plus 25 basis
points.
"Treasury Yield" means a rate of interest per annum equal to the weekly
average yield to maturity of United States Treasury Notes that have a constant
maturity that corresponds to the remaining term to maturity of the Notes,
calculated to the nearest 1/12 of a year (the "Remaining Term"). The Treasury
Yield will be determined as of the third business day immediately
A-4
preceding the applicable Redemption Date. The weekly average yields of United
States Treasury Notes will be determined by reference to the most recent
statistical release published by the Federal Reserve Bank of New York and
designated "H.15(519) Selected Interest Rates" or any successor release (the
"H.15 Statistical Release"). If the H.15 Statistical Release sets forth a weekly
average yield for United States Treasury Notes having a constant maturity that
is the same as the Remaining Term, then the Treasury Yield will be equal to such
weekly average yield. In all other cases, the Treasury Yield will be calculated
by interpolation, on a straight-line basis, between the weekly average yields on
the United States Treasury Notes that have a constant maturity closest to and
greater than the Remaining Term and the United States Treasury Notes that have a
constant maturity closest to and less than the Remaining Term (in each case as
set forth in the H.15 Statistical Release). Any weekly average yields so
calculated by interpolation will be rounded to the nearest 1/100th of 1%, with
any figure of 1/200% or above being rounded upward. If weekly average yields for
United States Treasury Notes are not available in the H.15 Statistical Release
or otherwise, then the Treasury Yield will be calculated by interpolation of
comparable rates selected by the Independent Investment Banker.
In the event of redemption of this Note in part only, a new Note or
Notes of like tenor for the unredeemed portion hereof will be issued in the name
of the Holder hereof upon the cancellation hereof.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Partnership or the Guarantors and the rights of the Holders of the Notes to be
affected under the Indenture at any time by the Partnership, the Guarantors and
the Trustee with the consent of not less than the Holders of a majority in
aggregate principal amount of the Outstanding Securities of all series to be
affected (voting as one class). The Indenture also contains provisions
permitting the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all affected series (voting as one class), on behalf
of the Holders of all Securities of such series, to waive compliance by the
Partnership and the Guarantors with certain provisions of the Indenture. The
Indenture permits, with certain exceptions as therein provided, the Holders of a
majority in principal amount of Notes then Outstanding to waive past defaults
under the Indenture with respect to the Notes and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Note.
As provided in and subject to the provisions of the Indenture, the
Holder of this Note shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to
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the Notes, the Holders of not less than 25% in principal amount of the Notes at
the time Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity and the Trustee shall not have received from the
Holders of a majority in principal amount of the Notes at the time Outstanding a
direction inconsistent with such request, and shall have failed to institute any
such proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder of
this Note for the enforcement of any payment of principal, premium, if any, or
interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Partnership, which is
absolute and unconditional, to pay the principal of, premium, if any, and
interest on this Note at the times, place(s) and rate, and in the coin or
currency, herein prescribed.
[If the Note is a Global Security, insert -- This Global Note or portion
hereof may not be exchanged for Definitive Securities except in the limited
circumstances provided in the Indenture.
The holders of beneficial interests in this Global Note will not be
entitled to receive physical delivery of Definitive Securities except as
described in the Indenture and will not be considered the Holders thereof for
any purpose under the Indenture.]
[If the Note is a Definitive Security, insert -- As provided in the
Indenture and subject to certain limitations therein set forth, the transfer of
this Note is registerable in the Note Register, upon surrender of this Note for
registration of transfer at the office or agency of the Partnership in The City
of New York or at such other offices or agencies as the Partnership may
designate, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Partnership and the Note Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Notes and of like tenor, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.]
The Notes are issuable only in registered form, without coupons, in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
transferable and exchangeable at the office of the Registrar and any
co-registrar for a like aggregate principal amount of Notes and of like tenor of
a different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of transfer or
exchange, but the Partnership may require payment of a sum sufficient to cover
any transfer tax or other similar governmental charge payable in connection with
certain transfers and exchanges.
Prior to due presentment of this Note for registration of transfer, the
Partnership, the Trustee and any agent of the Partnership or the Trustee may
treat the Person in whose name this
A-6
Note is registered as the owner hereof for all purposes, whether or not this
Note is overdue, and neither the Partnership, the Trustee nor any such agent
shall be affected by notice to the contrary.
Obligations of the Partnership and the Guarantors under the Indenture
and the Securities thereunder, including this Note, are non-recourse to Kinder
Xxxxxx X.X. Inc. (the "General Partner") and its Affiliates (other than the
Partnership and the Guarantors), and payable only out of cash flow and assets of
the Partnership and the Guarantors. The Trustee, and each Holder of a Note by
its acceptance hereof, will be deemed to have agreed in the Indenture that (1)
neither the General Partner nor its assets (nor any of its Affiliates other than
the Partnership or the Guarantors, nor their respective assets) shall be liable
for any of the obligations of the Partnership or the Guarantors under the
Indenture or such Securities, including this Note, and (2) no director, officer,
employee, stockholder or unitholder, as such, of the Partnership, the
Guarantors, the Trustee, the General Partner or any Affiliate of any of the
foregoing entities shall have any personal liability in respect of the
obligations of the Partnership or the Guarantors under the Indenture or such
Securities by reason of his, her or its status.
The Indenture contains provisions that relieve the Partnership and the
Guarantors from the obligation to comply with certain restrictive covenants in
the Indenture and for satisfaction and discharge at any time of the entire
indebtedness upon compliance by the Partnership and the Guarantors with certain
conditions set forth in the Indenture.
The obligations of the Partnership pursuant to the Indenture and the
Securities, including this Note and the repurchase obligations under the
Indenture, will be unconditionally guaranteed, on a senior unsecured basis, by
each Guarantor.
This Note shall be governed by and construed in accordance with the laws
of the State of New York.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
[If the Note is a Definitive Security, insert as a separate page--
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________ (Please Print or
Typewrite Name and Address of Assignee) the within instrument of XXXXXX XXXXXX
ENERGY PARTNERS, L. P. and does hereby irrevocably constitute and appoint
________________________ Attorney to transfer said instrument on the books of
the within-named Partnership with full power of substitution in the premises.
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Please Insert Social Security or
Other Identifying Number of Assignee:
_______________________________________________________________________________
Dated: ______________________ ________________________________ (Signature)
Signature Guarantee:___________________________________________________________
(Participant in a Recognized Signature
Guaranty Medallion Program)
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular, without
alteration or enlargement or any change whatever.]
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