1
EXHIBIT 4.3
UNLESS THIS SECURITY 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 SECURITY 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.
THIS SECURITY 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 SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR
EXCHANGED FOR SECURITIES 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 SECURITY
AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR
OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT TO THE
FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
XXXXXX XXXXXX ENERGY PARTNERS, L.P.
7.40% Senior Note due 2031
No. U.S.$
CUSIP No.
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 CEDE & CO., or registered assigns, the principal sum of
U.S.$_____________ (__________________________ UNITED STATES DOLLARS) on March
15, 2031 and to pay interest thereon from March 12, 2001, or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, semi-annually on March 15 and September 15 in each year, commencing
September 15, 2001, at the rate of 7.40% per annum, until the principal hereof
is paid or made available for payment and at the rate of 7.40% per annum on any
overdue principal and premium and on any overdue installment of interest. The
amount of interest payable for any period shall be computed on the
2
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 Security 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 Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be March 1 or September 1 (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 be
paid to the Person in whose name this Security (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 Securities of this series not less than 10
days prior to such Special Record Date, or 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 Securities of this series 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.
Payment of the principal of (and premium, if any) and any such interest
on this Security will be made by transfer of immediately available funds to a
bank account in The Borough of Manhattan 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.
Reference is hereby made to the further provisions of this Security 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 Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
3
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:
-----------------------------------------
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
FIRST UNION NATIONAL BANK,
As Trustee
By:
-----------------------------------------
Authorized Signatory
4
[Reverse of Security]
This Security is one of a duly authorized issue of securities of the
Partnership (the "Securities"), issued and to be issued in one or more series
under an Indenture dated as of January 2, 2001 (the "Indenture"), between the
Partnership and First Union National Bank, 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, any Guarantors, the Trustee and the Holders of
the Securities and of the terms upon which the Securities 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 Security is a
Book-Entry Security.
The Securities of this series are subject to redemption upon not less
than 30 nor more than 60 days' notice by mail, in whole or in part at any time,
at a redemption price equal to the greater of (1) 100% of the principal amount
of the Securities of such series to be redeemed or (2) the sum of the present
values of the remaining scheduled payments of principal and interest on such
series of Securities (exclusive of interest accrued to the redemption date)
discounted to the redemption date on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Treasury Rate plus 30 basis points,
plus accrued and unpaid interest on the principal amount being redeemed to such
redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to the remaining
term of the series of Securities to be redeemed that would be utilized, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of such series of Securities.
"Comparable Treasury Price" means, with respect to any redemption date
for a series of Securities, the average of two Reference Treasury Dealer
Quotations for such redemption date.
"Quotation Agent" means the Reference Treasury Dealer the Partnership
appoints.
"Reference Treasury Dealer" means each of Xxxxxxx Xxxxx Government
Securities Inc. and Chase Securities Inc. and their respective successors;
provided, however, that if either of the foregoing shall cease to be a primary
U.S. Government securities dealer in New York City (a "Primary Treasury
Dealer"), the Partnership will substitute therefor another Primary Treasury
Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Trustee, of the bid and asked price for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal
5
amount) quoted in writing to the Trustee by such Reference Treasury Dealer at
5:00 p.m., New York City time, on the third Business Day preceding such
redemption date.
"Treasury Rate" means, with respect to any redemption date, (1) the
yield, under the heading which represents the average for the immediately
preceding week, appearing in the most recently published statistical release
designated "H.15 (519)" or any successor publication which is published weekly
by the Board of Governors of the Federal Reserve System and which establishes
yields on actively traded United States Treasury securities adjusted to constant
maturity under the caption "Treasury Constant Maturities," for the maturity
corresponding to the Comparable Treasury Issue (if no maturity is within three
months before or after the maturity date of the series of Securities to be
redeemed, yields for the two published maturities most closely corresponding to
the Comparable Treasury Issue shall be determined, and the Treasury Rate shall
be interpolated or extrapolated from such yields on a straight-line basis,
rounding to the nearest month) or (2) if such release (or any successor release)
is not published during the week preceding the calculation date or does not
contain such yields, the rate per year equal to the semiannual equivalent yield
to maturity of the Comparable Treasury Issue, calculated using a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such redemption date. The Treasury
Rate will be calculated on the third Business Day preceding the redemption date.
In the event of redemption of this Security in part only, a new
Security or Securities of this series and 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 Securities of this series shall
occur and be continuing, the principal of the Securities of this series 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 Securities of
each series 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 Securities of any series then Outstanding to
waive past defaults under the Indenture with respect to such series and their
consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security 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 Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security
6
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 the Securities
of this series, the Holders of not less than 25% in principal amount of the
Securities of this series 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
Securities of this series 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 Security for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall, without the consent of the Holder, alter or impair
the obligation of the Partnership, which is absolute and unconditional, to pay
the principal of and any premium and interest on this Security at the times,
place(s) and rate, and in the coin or currency, herein prescribed, except for
Section 115 of the Indenture (which limits interest to the maximum amount
permissible by law), the provisions of which are incorporated herein by
reference.
This Global Security or portion hereof may not be exchanged for
Definitive Securities of this series except in the limited circumstances
provided in the Indenture.
The holders of beneficial interests in this Global Security 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.
The Securities of this series are issuable only in registered form
without coupons in denominations of U.S.$1,000 and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series 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 tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security 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 Security is registered as the owner hereof
for all purposes, whether or not this Security 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 any Guarantors under the Indenture
and the Securities thereunder, including this Security, are non-recourse to
Kinder Xxxxxx X.X., Inc. (the "General Partner") and its Affiliates (other than
the Partnership and any Guarantors), and payable only out
7
of cash flow and assets of the Partnership and any Guarantors. The Trustee, and
each Holder of a Security 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 any Guarantors, nor their
respective assets) shall be liable for any of the obligations of the Partnership
or any Guarantors under the Indenture or such Securities, including this
Security, and (2) no director, officer, employee, stockholder or unitholder, as
such, of the Partnership, any 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 any Guarantors under the
Indenture or such Securities by reason of his, her or its status.
The Indenture contains provisions that relieve the Partnership and any
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 any Guarantors with certain
conditions set forth in the Indenture.
The obligations of the Partnership pursuant to the Indenture and the
Securities, including the repurchase obligations under the Indenture, will be
unconditionally guaranteed, on a senior unsecured basis, by each Guarantor, if
any.
This Security shall be governed by and construed in accordance with the
laws of the State of New York.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
8
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned sell(s), assign(s) and transfer(s)
this Security to
------------------------------------------------------------------------------
------------------------------------------------------------------------------
(Print or type transferee's name, address, zip code and
social security or taxpayer identification number above)
and irrevocably appoints _____________________ agent to transfer this Security
on the books of the Partnership. The agent may substitute another to act for the
agent.
Please Insert Social Security or
Other Identifying Number of Assignee: _________________________________________
Date: ___________________
Your signature: ______________________________________
NOTICE: The signature(s) on this
assignment must correspond in every
particular with the name(s) of the
registered owner(s) appearing on the
face of the Security.
--------------------------------------
Signature
Signature Guaranteed by:
----------------------------------------
NOTICE: Signature must be guaranteed by
an "eligible guarantor institution"
meeting the requirements of the Trustee,
which requirements will include
membership or participation in STAMP or
such other signature guaranty program as
may be determined by the Trustee in
addition to, or in substitution for,
STAMP, all in accordance with the
Securities Exchange Act of 1934, as
amended.
