Exhibit 4.2
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KANEB PIPE LINE OPERATING PARTNERSHIP, L.P.
Issuer
and
JPMORGAN CHASE BANK
Trustee
THIRD SUPPLEMENTAL INDENTURE
Dated as of May 16, 2003
7.750% SENIOR UNSECURED NOTES DUE 2012
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TABLE OF CONTENTS
Page
ARTICLE 1 Relation to Indenture; Definitions................................................1
Section 1.01. Relation to Indenture....................................................1
Section 1.02. Definitions and References...............................................1
Section 1.03. General References.......................................................2
ARTICLE 2 Co-Obligation of Statia Canada....................................................2
Section 2.01. Co-obligation of Statia Canada...........................................2
Section 2.02. Remedies of the Trustee..................................................2
Section 2.03. Notice to Holders........................................................2
ARTICLE 3 Miscellaneous.....................................................................2
Section 3.01. Certain Trustee Matters..................................................2
Section 3.02. Continued Effect.........................................................2
Section 3.03. Governing Law............................................................3
Section 3.04. Counterparts.............................................................3
THIRD SUPPLEMENTAL INDENTURE, dated and effective as of May 16, 2003 (the
"Third Supplemental Indenture"), between KANEB PIPE LINE OPERATING PARTNERSHIP,
L.P., a Delaware limited partnership (the "Company"), having its principal
office at 0000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxxxxxxx, Xxxxx, XXXXXX XXXXXXXXX
XXXXXX PARTNERSHIP, a general partnership formed under the laws of the province
of Nova Scotia and wholly-owned subsidiary of the Company ("Statia Canada"),
having it's principal office at 0000 Xxxx Xxxxxx Xxxx, Xxxxx Xxxxxx, Xxxx
Xxxxxx, Xxxxxx X0X 0X0, and JPMORGAN CHASE BANK, a New York banking corporation
("JPMorgan"), as trustee under the Indenture referred to below (in such
capacity, the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has heretofore entered into an Indenture, dated as of
February 21, 2002 (the "Original Indenture");
WHEREAS, the Company has heretofore entered into a First Supplemental
Indenture, dated as of February 21, 2002 (the "First Supplemental Indenture"),
with JPMorgan, as trustee, that established a series of Debt Securities issued
under the Indenture designated as the Company's 7.750% Senior Unsecured Notes
due 2012 (the "Notes");
WHEREAS, the Company and Statia Canada has heretofore entered into a Second
Supplemental Indenture, dated as of August 9, 2002 (the "Second Supplemental
Indenture"), with JPMorgan, as trustee, that established Statia Canada as a
co-obligor under the Notes;
WHEREAS, the Company and Statia Canada has provided termination notice to
the Trustee pursuant to the provisions of the Second Supplemental Indenture,
which will terminate Statia Canada's obligations and liabilities under the Notes
as of the 30th day after such notice was provided to the Trustee;
WHEREAS, the Original Indenture and First Supplemental Indenture are
incorporated herein by this reference and the Original Indenture, as
supplemented by the First Supplemental Indenture and this Third Supplemental
Indenture, is herein called the "Indenture";
WHEREAS, under the Original Indenture, changes may be made to the Indenture
which provide additional rights or benefits to the Holders of Debt Securities,
and the terms thereof may be established by a supplemental indenture executed by
the Company and the Trustee;
WHEREAS, the Company and Statia Canada desire that Statia Canada be jointly
and severally liable with the Company for the payment of principal of, and
premium (if any) and interest on, the Notes, but not for the performance or
compliance of any other obligations of the Company under the Indenture;
WHEREAS, all acts and things necessary to make the Notes, the valid and
binding obligations of the Company and Statia Canada and to make this Third
Supplemental Indenture a valid and binding agreement in accordance with the
Original Indenture and First Supplemental Indenture have been done or performed;
NOW, THEREFORE, in consideration of the premises, agreements and
obligations set forth herein and for other good, valuable and reasonably
equivalent consideration, the sufficiency of which is hereby acknowledged, the
parties hereto hereby agree, for the equal and proportionate benefit of all
Holders of the Notes, as follows:
ARTICLE 1 - RELATION TO INDENTURE; DEFINITIONS
Section 1.01. Relation to Indenture.
With respect to the Notes, this Third Supplemental Indenture constitutes an
integral part of the Indenture.
Section 1.02. Definitions and References.
For all purposes of this Third Supplemental Indenture, capitalized terms
used herein and not otherwise defined herein shall have the meanings assigned in
the Original Indenture, as amended by the First Supplemental Indenture.
Section 1.03. General References.
All references in this Third Supplemental Indenture to Articles and
Sections, unless otherwise specified, refer to the corresponding Articles and
Sections of this Third Supplemental Indenture; and the term "herein", "hereof",
"hereunder" and any other word of similar import refers to this Third
Supplemental Indenture.
ARTICLE 2 - CO-OBLIGATION OF STATIA CANADA
Section 2.01. Co-obligation of Statia Canada.
Statia Canada hereby agrees, for the equal and proportionate benefit of the
Holders of the Notes, that it shall be jointly and severally and unconditionally
liable and obligated for the prompt payment when due of any and all principal
of, and premium (if any) and interest on the Notes up to an aggregate amount of
US$28 million, in accordance with the terms of the Notes and the Indenture to
the same extent as the Company is obligated to pay such amounts, without any
kind of joinder of, notice or presentment to, or demand on, the Company;
provided, however, Statia Canada shall, 30 days after the delivery of written
notice to the Trustee, be released from any liability or obligation under the
Notes and the Indenture without any additional action or consent from the
Trustee, any Holder or any other Person, other than for any matured payment
obligation for principal of, or premium or interest on, the Notes in existence
when such notice was given. The undertaking of Statia Canada hereunder is solely
one of payment as herein provided and shall include no other obligation of, or
restriction on, the Company, as any of such obligations or restrictions shall
from time to time exist under the Indenture unless Statia Canada has, by
supplemental indenture, otherwise agreed.
Section 2.02. Remedies of the Trustee.
The Trustee shall not be required to institute any action or proceedings at
law or in equity against Statia Canada for the collection of sums due and unpaid
or enforce the performance of any provision of the Notes against Statia Canada,
or prosecute any such action or proceedings to judgment or decree, unless (i)
such action is requested by Holders of a majority in aggregate principal amount
of the Notes (evidenced as provided in Section 8.01 of the Original Indenture)
and (ii) any Event of Default with respect to the Company shall have occurred
and be continuing.
Section 2.03. Notice to Holders.
Statia Canada shall within 30 days of the date hereof, provide notice to
the Holders of the co-obligation created hereby in accordance with the terms of
Section 1.07 of the Original Indenture.
ARTICLE 3 - MISCELLANEOUS
Section 3.01. Certain Trustee Matters.
The recitals contained herein shall be taken as the statements of the
Company and Statia Canada, and the Trustee assumes no responsibility for their
correctness.
The Trustee makes no representations as to the validity or sufficiency of
this Third Supplemental Indenture or the Notes or the proper authorization or
the due execution hereof or thereof by the Company and Statia Canada.
Section 3.02. Continued Effect.
Except as expressly supplemented and amended hereby, the Original Indenture
and First Supplemental Indenture shall continue in full force and effect in
accordance with the provisions thereof, and the Original Indenture and First
Supplemental Indenture, as supplemented and amended hereby, is in all respects
hereby ratified and confirmed. This Third Supplemental Indenture and all its
provisions shall be deemed a part of the Original Indenture in the manner and to
the extent herein and therein provided.
Section 3.03. Governing Law.
This Third 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. Counterparts.
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.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and delivered, all as of the day and year first
above written.
KANEB PIPE LINE OPERATING
PARTNERSHIP, L.P.
By: Kaneb Pipe Line Company LLC,
Its General Partner
By: /s/ X. X. XXXXXXX
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Name: X. X. Xxxxxxx
Title: Chairman and Chief Executive Officer
Statia Terminals Canada Partnership,
By: Statia Terminals Canada, Incorporated ,
Its General Partner
By: /s/ XXXX X. XXXXXXXX
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Name: Xxxx X. Xxxxxxxxx
Title: President
JPMORGAN CHASE BANK
as Trustee
By: /s/XXXXX XXXXX
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Name: Xxxxx Xxxxx
Title: Vice President and Trust Officer
