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EXHIBIT 4.1
AMERICAN COMMERCIAL LINES LLC
AND
ACL FINANCE CORP.
AND EACH OF THE GUARANTORS PARTY HERETO
9 1/2% SENIOR NOTES DUE 2015
----------------------------
INDENTURE
Dated as of February 11, 2005
-----------------------------
WILMINGTON TRUST COMPANY
Trustee
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<PAGE>
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
<S> <C>
310 (a)(1)............................. 7.10
(a)(2)............................. 7.10
(a)(3)............................. N.A.
(a)(4)............................. N.A.
(a)(5)............................. 7.10
(b)................................ 7.10
(c)................................ N.A.
311 (a)................................ 7.11
(b)................................ 7.11
(c)................................ N.A.
312 (a)................................ 2.05
(b)................................ 12.03
(c)................................ 12.03
313 (a)................................ 7.06
(b)(1)............................. N.A.
(b)(2)............................. 7.06; 7.07
(c)................................ 7.06; 12.02
(d)................................ 7.06
314 (a)................................ 4.03;12.02; 12.05
(b)................................ N.A.
(c)(1)............................. 12.04
(c)(2)............................. 12.04
(c)(3)............................. N.A.
(d)................................ N.A.
(e)................................ 12.05
(f)................................ N.A.
315 (a)................................ 7.01
(b)................................ 7.05; 12.02
(c)................................ 7.01
(d)................................ 7.01
(e)................................ 6.11
316 (a) (last sentence)................ 2.09
(a)(1)(A).......................... 6.05
(a)(1)(B).......................... 6.04
(a)(2)............................. N.A.
(b)................................ 6.07
(c)................................ 2.12
317 (a)(1)............................. 6.08
(a)(2)............................. 6.09
(b)................................ 2.04
318 (a)................................ 12.01
(b)................................ N.A.
(c)................................ 12.01
</TABLE>
N.A. means not applicable.
* This Cross Reference Table is not part of the Indenture.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01
Definitions....................................................................
1
Section 1.02 Other
Definitions..............................................................
22
Section 1.03 Incorporation by Reference of Trust Indenture
Act.............................. 23
Section 1.04 Rules of
Construction..........................................................
23
ARTICLE 2
THE NOTES
Section 2.01 Form and
Dating................................................................
24
Section 2.02 Execution and
Authentication...................................................
25
Section 2.03 Registrar and Paying
Agent..................................................... 25
Section 2.04 Paying Agent to Hold Money in
Trust............................................ 26
Section 2.05 Holder
Lists...................................................................
26
Section 2.06 Transfer and
Exchange..........................................................
26
Section 2.07 Replacement
Notes..............................................................
38
Section 2.08 Outstanding
Notes..............................................................
38
Section 2.09 Treasury
Notes.................................................................
38
Section 2.10 Temporary
Notes................................................................
39
Section 2.11
Cancellation...................................................................
39
Section 2.12 Defaulted
Interest.............................................................
39
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to
Trustee.............................................................
39
Section 3.02 Selection of Notes to Be Redeemed or
Purchased................................. 40
Section 3.03 Notice of
Redemption...........................................................
40
Section 3.04 Effect of Notice of
Redemption................................................. 41
Section 3.05 Deposit of Redemption or Purchase
Price........................................ 41
Section 3.06 Notes Redeemed or Purchased in
Part............................................ 41
Section 3.07 Optional
Redemption............................................................
41
Section 3.08 Mandatory
Redemption...........................................................
42
Section 3.09 Offer to Purchase by Application of Excess
Proceeds............................ 42
ARTICLE 4
COVENANTS
Section 4.01 Payment of
Notes...............................................................
44
Section 4.02 Maintenance of Office or
Agency................................................ 44
Section 4.03
Reports........................................................................
45
Section 4.04 Compliance
Certificate.........................................................
46
Section 4.05
Taxes..........................................................................
46
Section 4.06 Stay, Extension and Usury
Laws................................................. 46
Section 4.07 Restricted
Payments............................................................
47
Section 4.08 Dividend and Other Payment Restrictions Affecting
Subsidiaries................. 49
Section 4.09 Incurrence of Indebtedness and Issuance of
Preferred Stock..................... 50
Section 4.10 Asset
Sales....................................................................
54
</TABLE>
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<TABLE>
<S> <C>
Section 4.11 Transactions with
Affiliates...................................................
55
Section 4.12
Liens..........................................................................
57
Section 4.13 Business
Activities............................................................
57
Section 4.14 Corporate
Existence............................................................
57
Section 4.15 Offer to Repurchase Upon Change of
Control..................................... 57
Section 4.16 Limitation on Sale and Leaseback
Transactions.................................. 59
Section 4.17 Restrictions on activities of ACL
Finance...................................... 59
Section 4.18 Payments for
Consent...........................................................
59
Section 4.19 Additional Note
Guarantees.....................................................
59
Section 4.20 Designation of Restricted and Unrestricted
Subsidiaries........................ 60
ARTICLE 5
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of
Assets....................................... 60
Section 5.02 Successor Corporation
Substituted.............................................. 62
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of
Default..............................................................
62
Section 6.02
Acceleration...................................................................
63
Section 6.03 Other
Remedies.................................................................
64
Section 6.04 Waiver of Past
Defaults........................................................
64
Section 6.05 Control by
Majority............................................................
65
Section 6.06 Limitation on
Suits............................................................
65
Section 6.07 Rights of Holders of Notes to Receive
Payment.................................. 65
Section 6.08 Collection Suit by
Trustee..................................................... 65
Section 6.09 Trustee May File Proofs of
Claim............................................... 66
Section 6.10
Priorities.....................................................................
66
Section 6.11 Undertaking for
Costs..........................................................
66
ARTICLE 7
TRUSTEE
Section 7.01 Duties of
Trustee..............................................................
67
Section 7.02 Rights of
Trustee..............................................................
68
Section 7.03 Individual Rights of
Trustee................................................... 68
Section 7.04 Trustee's
Disclaimer...........................................................
68
Section 7.05 Notice of
Defaults.............................................................
69
Section 7.06 Reports by Trustee to Holders of the
Notes..................................... 69
Section 7.07 Compensation and
Indemnity.....................................................
69
Section 7.08 Replacement of
Trustee.........................................................
70
Section 7.09 Successor Trustee by Merger,
etc............................................... 71
Section 7.10 Eligibility;
Disqualification..................................................
71
Section 7.11 Preferential Collection of Claims Against
Issuers.............................. 71
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant
Defeasance....................... 71
Section 8.02 Legal Defeasance and
Discharge................................................. 71
Section 8.03 Covenant
Defeasance............................................................
72
Section 8.04 Conditions to Legal or Covenant
Defeasance..................................... 72
</TABLE>
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<TABLE>
<S> <C>
Section 8.05 Deposited Money and Government Securities to be
Held in Trust; Other
Miscellaneous
Provisions.....................................................................
74
Section 8.06 Repayment to
Issuers..........................................................
74
Section 8.07
Reinstatement.................................................................
74
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of
Notes........................................... 75
Section 9.02 With Consent of Holders of
Notes.............................................. 75
Section 9.03 Compliance with Trust Indenture
Act........................................... 77
Section 9.04 Revocation and Effect of
Consents............................................. 77
Section 9.05 Notation on or Exchange of
Notes.............................................. 77
Section 9.06 Trustee to Sign Amendments,
etc............................................... 77
ARTICLE 10
NOTE GUARANTEES
Section 10.01
Guarantee.....................................................................
78
Section 10.02 Limitation on Guarantor
Liability............................................. 78
Section 10.03 Execution and Delivery of Note
Guarantee...................................... 79
Section 10.04. Guarantors May Consolidate, etc., on Certain
Terms............................ 79
Section 10.05.
Releases......................................................................
80
ARTICLE 11
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and
Discharge....................................................
81
Section 11.02 Application of Trust
Money.................................................... 81
ARTICLE 12
MISCELLANEOUS
Section 12.01 Trust Indenture Act
Controls.................................................. 82
Section 12.02
Notices.......................................................................
82
Section 12.03 Communication by Holders of Notes with Other
Holders of Notes................. 83
Section 12.04 Certificate and Opinion as to Conditions
Precedent............................ 83
Section 12.05 Statements Required in Certificate or
Opinion................................. 83
Section 12.06 Rules by Trustee and
Agents................................................... 84
Section 12.07 No Personal Liability of Directors, Officers,
Employees, Stockholders and
Members.......................................................................
84
Section 12.08 Governing
Law.................................................................
84
Section 12.09 No Adverse Interpretation of Other
Agreements................................. 84
Section 12.10
Successors....................................................................
84
Section 12.11
Severability..................................................................
85
Section 12.12 Counterpart
Originals.........................................................
85
Section 12.13 Table of Contents, Headings,
etc.............................................. 85
</TABLE>
EXHIBITS
<TABLE>
<S> <C>
Exhibit A1 FORM OF NOTE
Exhibit A2 FORM OF REGULATION S TEMPORARY GLOBAL NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
</TABLE>
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<TABLE>
<S> <C>
Exhibit D FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL
ACCREDITED INVESTOR
Exhibit E FORM OF NOTATION OF GUARANTEE
Exhibit F FORM OF SUPPLEMENTAL INDENTURE
</TABLE>
iv
<PAGE>
INDENTURE dated as of February 11, 2005 among American
Commercial Lines
LLC, a Delaware limited liability company, ACL Finance Corp., a
Delaware
corporation (collectively, "the Issuers"), the Guarantors (as
defined) and
Wilmington Trust Company, as Trustee.
The Issuers, the Guarantors and the Trustee agree as follows for
the
benefit of each other and for the equal and ratable benefit of
the Holders (as
defined) of the 9 1/2% Senior Notes due 2015 (the "Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions.
"144A Global Note" means a Global Note substantially in the form
of
Exhibit A1 hereto bearing the Global Note Legend and the Private
Placement
Legend and deposited with or on behalf of, and registered in the
name of, the
Depositary or its nominee that will be issued in a denomination
equal to the
outstanding principal amount of the Notes sold in reliance on
Rule 144A.
"Acquired Debt" means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time such
other
Person is merged with or into or became a Subsidiary of such
specified
Person, whether or not such Indebtedness is incurred in
connection with,
or in contemplation of, such other Person merging with or into,
or
becoming a Restricted Subsidiary of, such specified Person;
and
(2) Indebtedness secured by a Lien encumbering any asset
acquired by
such specified Person.
"ACL Finance" means ACL Finance Corp. until a successor replaces
it
pursuant to the applicable provisions hereof and, thereafter,
means the
successor and, for purposes of any provision contained herein
and required by
the TIA, each other obligor on the indenture securities.
"Additional Notes" means additional Notes (other than the
Initial Notes)
issued under this Indenture in accordance with Sections 2.02 and
4.09 hereof, as
part of the same series as the Initial Notes.
"Affiliate" of any specified Person means any other Person
directly or
indirectly controlling or controlled by or under direct or
indirect common
control with such specified Person. For purposes of this
definition, "control,"
as used with respect to any Person, means the possession,
directly or
indirectly, of the power to direct or cause the direction of the
management or
policies of such Person, whether through the ownership of voting
securities, by
agreement or otherwise; provided that beneficial ownership of
10% or more of the
Voting Stock of a Person will be deemed to be control. For
purposes of this
definition, the terms "controlling," "controlled by" and "under
common control
with" have correlative meanings. No Person (other than American
Barge or any
Subsidiary of American Barge) in whom a Receivables Subsidiary
makes an
Investment in connection with a Qualified Receivables
Transaction shall be
deemed to be an Affiliate of American Barge or any of its
Subsidiaries solely by
reason of such Investment.
"Agent" means any Registrar, co-registrar, Paying Agent or
additional
paying agent.
"American Barge" means American Barge Line Company, the
Company's indirect
parent.
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"Applicable Procedures" means, with respect to any transfer or
exchange of
or for beneficial interests in any Global Note, the rules and
procedures of the
Depositary, Euroclear and Clearstream that apply to such
transfer or exchange.
"Asset Sale" means:
(1) the sale, lease, conveyance or other disposition of any
assets
or rights; provided that the sale, lease, conveyance or other
disposition
of all or substantially all of the assets of American Barge and
its
Restricted Subsidiaries taken as a whole will be governed by
Section 4.15
hereof and/or the provisions of Section 5.01 hereof and not by
the
provisions of Section 4.10 hereof; and
(2) the issuance of Equity Interests in any of American
Barge's
Restricted Subsidiaries or the sale of Equity Interests in any
of its
Subsidiaries.
Notwithstanding the preceding, none of the following items will
be deemed
to be an Asset Sale:
(1) any single transaction or series of related transactions
that
involves assets having a Fair Market Value of less than
$2,000,000;
(2) a transfer of assets between or among the Issuers and/or
the
Guarantors;
(3) an issuance of Equity Interests by a Restricted Subsidiary
of
American Barge to an Issuer or a Guarantor;
(4) the sale or lease of products, services or accounts
receivable
in the ordinary course of business (including any sale by
Jeffboat of
Vessels or Related Assets in a Jeffboat Transaction) and any
sale or other
disposition of damaged, worn-out or obsolete assets in the
ordinary course
of business;
(5) the sale or other disposition of cash or Cash
Equivalents;
(6) a Restricted Payment that does not violate Section 4.07
hereof
or a Permitted Investment;
(7) sales of accounts receivable and related assets of the
type
specified in the definition of "Qualified Receivables
Transaction" to a
Receivables Subsidiary for the Fair Market Value thereof,
including cash
in an amount at least equal to 80% of the book value thereof as
determined
in accordance with GAAP, it being understood that, for the
purposes of
this clause (7), Notes received in exchange for the transfer of
accounts
receivable and related assets will be deemed cash if the
Receivables
Subsidiary or other payor is required to repay said Notes as
soon as
practicable from available cash collections less amounts
required to be
established as reserves pursuant to contractual agreements with
entities
that are not Affiliates of the Issuers entered into as part of a
Qualified
Receivables Transaction; and
(8) transfers of accounts receivable and related assets of the
type
specified in the definition of "Qualified Receivables
Transaction" (or a
fractional undivided interest therein) by a Receivables
Subsidiary in a
Qualified Receivables Transaction.
"Attributable Debt" in respect of a sale and leaseback
transaction means,
at the time of determination, the present value of the
obligation of the lessee
for net rental payments during the remaining term of the lease
included in such
sale and leaseback transaction including any period for
2
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which such lease has been extended or may, at the option of the
lessor, be
extended. Such present value shall be calculated using a
discount rate equal to
the rate of interest implicit in such transaction, determined in
accordance with
GAAP; provided, however, that if such sale and leaseback
transaction results in
a Capital Lease Obligation, the amount of Indebtedness
represented thereby will
be determined in accordance with the definition of "Capital
Lease Obligation."
"Bankruptcy Law" means Title 11, U.S. Code or any similar
federal or state
law for the relief of debtors.
"Beneficial Owner" has the meaning assigned to such term in Rule
13d-3 and
Rule 13d-5 under the Exchange Act, except that in calculating
the beneficial
ownership of any particular "person" (as that term is used in
Section 13(d)(3)
of the Exchange Act), such "person" will be deemed to have
beneficial ownership
of all securities that such "person" has the right to acquire by
conversion or
exercise of other securities, whether such right is currently
exercisable or is
exercisable only after the passage of time. The terms
"Beneficially Owns" and
"Beneficially Owned" have a corresponding meaning.
"Board of Directors" means:
(1) with respect to a corporation, the board of directors of
the
corporation or any committee thereof duly authorized to act on
behalf of
such board;
(2) with respect to a partnership, the Board of Directors of
the
general partner of the partnership;
(3) with respect to a limited liability company, the managing
member
or members or any controlling committee of managing members
thereof; and
(4) with respect to any other Person, the board or committee of
such
Person serving a similar function.
"Bonds Guaranteed by MARAD" means the Indebtedness of Vessel
Leasing LLC
guaranteed by the United States Maritime Administration
outstanding as of
February 11, 2005, in an amount not to exceed $33,900,000.
"Broker-Dealer" means a "Participating Broker-Dealer" as such
term is
defined in the Registration Rights Agreement.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination
is to be
made, the amount of the liability in respect of a capital lease
that would at
that time be required to be capitalized on a balance sheet
prepared in
accordance with GAAP, and the Stated Maturity thereof shall be
the date of the
last payment of rent or any other amount due under such lease
prior to the first
date upon which such lease may be prepaid by the lessee without
payment of a
penalty.
"Capital Stock" means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and
all
shares, interests, participations, rights or other equivalents
(however
designated) of corporate stock;
3
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(3) in the case of a partnership or limited liability
company,
partnership interests (whether general or limited) or
membership
interests; and
(4) any other interest or participation that confers on a Person
the
right to receive a share of the profits and losses of, or
distributions of
assets of, the issuing Person, but excluding from all of the
foregoing any
debt securities convertible into Capital Stock, whether or not
such debt
securities include any right of participation with Capital
Stock.
"Cash Equivalents" means:
(1) United States dollars;
(2) securities issued or directly and fully guaranteed or
insured by
the United States government or any agency or instrumentality of
the
United States government (provided that the full faith and
credit of the
United States is pledged in support of those securities) having
maturities
of not more than six months from the date of acquisition;
(3) certificates of deposit and eurodollar time deposits
with
maturities of six months or less from the date of acquisition,
bankers'
acceptances with maturities not exceeding six months and
overnight bank
deposits, in each case, with any lender party to the Credit
Agreement or
with any domestic commercial bank having capital and surplus in
excess of
$500,000,000 and a Thomson Bank Watch Rating of "B" or
better;
(4) repurchase obligations with a term of not more than seven
days
for underlying securities of the types described in clauses (2)
and (3)
above entered into with any financial institution meeting
the
qualifications specified in clause (3) above;
(5) commercial paper having one of the two highest ratings
obtainable from Moody's Investors Service, Inc. or Standard
& Poor's
Rating Services and, in each case, maturing within six months
after the
date of acquisition; and
(6) money market funds at least 95% of the assets of which
constitute Cash Equivalents of the kinds described in clauses
(1) through
(5) of this definition.
"Change of Control" means the occurrence of any of the
following:
(1) the direct or indirect sale, lease, transfer, conveyance
or
other disposition (other than by way of merger or
consolidation), in one
or a series of related transactions, of all or substantially all
of the
properties or assets of Parent and its Subsidiaries taken as a
whole to
any "person" (as that term is used in Section 13(d) of the
Exchange Act)
other than HY I or any Related Party of HY I;
(2) the adoption of a plan relating to the liquidation or
dissolution of any of the Company, American Barge or Parent;
(3) the consummation of any transaction (including, without
limitation, any merger or consolidation), the result of which is
that any
"person" (as defined above), other than HY I or any of its
Related
Parties, becomes the Beneficial Owner, directly or indirectly,
of more
than 50% of the Voting Stock of Parent, measured by voting power
rather
than number of shares;
4
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(4) the first day on which Parent ceases to own, directly or
indirectly, 100% of the outstanding Equity Interests of American
Barge or
the Company; or
(5) the first day on which the Company ceases to own 100% of
the
outstanding Equity Interests of the ACL Finance.
"Clearstream" means Clearstream Banking, S.A.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral Documents" means, collectively, the Security
Agreement and the
Pledge Agreement, each as in effect on February 11, 2005, and as
amended,
amended and restated, modified, renewed, replaced or
restructured from time to
time and the Mortgages and the Fleet Mortgages, each as in
effect on February
11, 2005, and any additional Mortgages or Fleet Mortgages
created from time to
time, and as amended, amended and restated, modified, renewed or
replaced from
time to time.
"Company" means American Commercial Lines LLC until a successor
replaces
it pursuant to the applicable provisions hereof and, thereafter,
means the
successor and, for purposes of any provision contained herein
and required by
the TIA, each other obligor on the indenture securities.
"Consolidated Cash Flow" means, with respect to any specified
Person for
any period, the Consolidated Net Income of such Person for such
period plus,
without duplication:
(1) an amount equal to any extraordinary loss plus any net
loss
realized by such Person or any of its Restricted Subsidiaries
in
connection with an Asset Sale, to the extent such losses were
deducted in
computing such Consolidated Net Income; plus
(2) provision for taxes based on income or profits of such
Person
and its Restricted Subsidiaries for such period, to the extent
that such
provision for taxes was deducted in computing such Consolidated
Net
Income; plus
(3) the Fixed Charges of such Person and its Restricted
Subsidiaries
for such period, to the extent that such Fixed Charges were
deducted in
computing such Consolidated Net Income; plus
(4) depreciation, amortization (including amortization of
intangibles but excluding amortization of prepaid cash expenses
that were
paid in a prior period) and other non-cash expenses (excluding
any such
non-cash expense to the extent that it represents an accrual of
or reserve
for cash expenses in any future period or amortization of a
prepaid cash
expense that was paid in a prior period) of such Person and its
Restricted
Subsidiaries for such period to the extent that such
depreciation,
amortization and other non-cash expenses were deducted in
computing such
Consolidated Net Income; minus
(5) non-cash items increasing such Consolidated Net Income for
such
period, other than the accrual of revenue in the ordinary course
of
business,
in each case, on a consolidated basis and determined in
accordance with
GAAP.
Notwithstanding the preceding, the provision for taxes based on
the income
or profits of, and the depreciation and amortization and other
non-cash expenses
of, a Restricted Subsidiary of American Barge will be added to
Consolidated Net
Income to compute Consolidated Cash Flow of American Barge only
to the extent
that a corresponding amount would be permitted at the date of
determination to
be
5
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dividended to American Barge by such Restricted Subsidiary
without prior
governmental approval (that has not been obtained), and without
direct or
indirect restriction pursuant to the terms of its charter and
all agreements,
instruments, judgments, decrees, orders, statutes, rules and
governmental
regulations applicable to that Restricted Subsidiary or its
stockholders.
"Consolidated Net Income" means, with respect to any specified
Person for
any period, the aggregate of the Net Income of such Person and
its
Restricted Subsidiaries for such period, on a consolidated
basis,
determined in accordance with GAAP; provided that:
(1) the Net Income (but not loss) of any Person that is not
a
Restricted Subsidiary or that is accounted for by the equity
method of
accounting will be included only to the extent of the amount of
dividends
or similar distributions paid in cash to the specified Person or
a
Restricted Subsidiary of the Person;
(2) the Net Income of any Restricted Subsidiary will be excluded
to
the extent that the declaration or payment of dividends or
similar
distributions by that Restricted Subsidiary of that Net Income
is not at
the date of determination permitted without any prior
governmental
approval (that has not been obtained) or, directly or
indirectly, by
operation of the terms of its charter or any agreement,
instrument,
judgment, decree, order, statute, rule or governmental
regulation
applicable to that Restricted Subsidiary or its
stockholders;
(3) the cumulative effect of a change in accounting principles
will
be excluded; and
(4) notwithstanding clause (1) above, the Net Income of any
Unrestricted Subsidiary will be excluded, whether or not
distributed to
the specified Person or one of its Subsidiaries.
"Corporate Trust Office of the Trustee" will be at the address
of the
Trustee specified in Section 12.02 hereof or such other address
as to which the
Trustee may give notice to the Company.
"Credit Agreement" means that certain Amended and Restated Loan
Agreement,
dated as of February 11, 2005, by and among the Issuers, the
Guarantors, Parent
and Bank of America, N.A., as Administrative Agent and
Collateral Agent, UBS
Securities LLC, as Syndication Agent and the other agents and
lenders party
thereto, providing for up to $250,000,000 of borrowings,
including any related
notes, Guarantees, collateral documents, instruments and
agreements executed in
connection therewith, and, in each case, as amended, restated,
modified,
renewed, refunded, replaced (whether upon or after termination
or otherwise) or
refinanced (including by means of sales of debt securities to
institutional
investors) in whole or in part from time to time.
"Credit Facilities" means, one or more debt facilities
(including, without
limitation, the Credit Agreement) or commercial paper
facilities, in each case
with banks or other institutional lenders providing for
revolving credit loans,
term loans, receivables financing (including through the sale of
receivables to
such lenders or to special purpose entities formed to borrow
from such lenders
against such receivables) or letters of credit, in each case, as
amended,
restated, modified, renewed, refunded, replaced (whether upon or
after
termination or otherwise) or refinanced (including by means of
sales of debt
securities to institutional investors) in whole or in part from
time to time.
"Custodian" means the Trustee, as custodian with respect to the
Notes in
global form, or any successor entity thereto.
"Default" means any event that is, or with the passage of time
or the
giving of notice or both would be, an Event of Default.
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"Definitive Note" means a certificated Note registered in the
name of the
Holder thereof and issued in accordance with Section 2.06
hereof, substantially
in the form of Exhibit A1 hereto except that such Note shall not
bear the Global
Note Legend and shall not have the "Schedule of Exchanges of
Interests in the
Global Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or issued
in whole
or in part in global form, the Person specified in Section 2.03
hereof as the
Depositary with respect to the Notes, and any and all successors
thereto
appointed as depositary hereunder and having become such
pursuant to the
applicable provision of this Indenture.
"Disqualified Stock" means any Capital Stock that, by its terms
(or by the
terms of any security into which it is convertible, or for which
it is
exchangeable, in each case, at the option of the holder of the
Capital Stock),
or upon the happening of any event, matures or is mandatorily
redeemable,
pursuant to a sinking fund obligation or otherwise, or
redeemable at the option
of the holder of the Capital Stock, in whole or in part, on or
prior to the date
that is 91 days after the date on which the Notes mature.
Notwithstanding the
preceding sentence, any Capital Stock that would constitute
Disqualified Stock
solely because the holders of the Capital Stock have the right
to require
American Barge to repurchase such Capital Stock upon the
occurrence of a change
of control or an asset sale will not constitute Disqualified
Stock if the terms
of such Capital Stock provide that American Barge may not
repurchase or redeem
any such Capital Stock pursuant to such provisions unless such
repurchase or
redemption complies with Section 4.07 hereof. The amount of
Disqualified Stock
deemed to be outstanding at any time for purposes of this
Indenture will be the
maximum amount that American Barge and its Restricted
Subsidiaries may become
obligated to pay upon the maturity of, or pursuant to any
mandatory redemption
provisions of, such Disqualified Stock, exclusive of accrued
dividends.
"Domestic Subsidiary" means any Restricted Subsidiary of
American Barge
that was formed under the laws of the United States or any state
of the United
States or the District of Columbia or that guarantees or
otherwise provides
direct credit support for any Indebtedness of American
Barge.
"Equity Interests" means Capital Stock and all warrants, options
or other
rights to acquire Capital Stock (but excluding any debt security
that is
convertible into, or exchangeable for, Capital Stock).
"Equity Offering" means a public or private offer and sale of
Capital
Stock (other than Disqualified Stock) of Parent or the Company
(other than a
registration statement on Form S-8 or otherwise relating to
equity securities
issuable under any employee benefit plan of Parent or the
Company); provided
that with respect to any Equity Offering by Parent, Parent
contributes the net
cash proceeds from such Equity Offering to the Company.
"Euroclear" means Euroclear Bank, S.A./N.V., as operator of the
Euroclear
system.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Notes" means the Notes issued in the Exchange Offer
pursuant to
Section 2.06(f) hereof.
"Exchange Offer" has the meaning set forth in the Registration
Rights
Agreement.
"Exchange Offer Registration Statement" has the meaning set
forth in the
Registration Rights Agreement.
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<PAGE>
"Existing Indebtedness" means up to $36,500,000 in aggregate
principal
amount of Indebtedness of American Barge and its Subsidiaries
(other than
Indebtedness under the Credit Agreement) in existence on
February 11, 2005,
until such amounts are repaid.
"Fair Market Value" means (i) the value that would be paid by a
willing
buyer to an unaffiliated willing seller in a transaction not
involving distress
or necessity of either party, determined in good faith by the
Board of Directors
of Parent (unless otherwise provided in this Indenture) or (ii)
in the case of
an Asset Sale pursuant to the NRG Agreements, the value
determined in accordance
with the NRG Agreements.
"Fixed Charge Coverage Ratio" means with respect to any
specified Person
for any period, the ratio of the Consolidated Cash Flow of such
Person for such
period to the Fixed Charges of such Person for such period. In
the event that
the specified Person or any of its Restricted Subsidiaries
incurs, assumes,
guarantees, repays, repurchases, redeems, defeases or otherwise
discharges any
Indebtedness (other than ordinary working capital borrowings) or
issues,
repurchases or redeems preferred equity subsequent to the
commencement of the
period for which the Fixed Charge Coverage Ratio is being
calculated and on or
prior to the date on which the event for which the calculation
of the Fixed
Charge Coverage Ratio is made (the "Calculation Date"), then the
Fixed Charge
Coverage Ratio will be calculated giving pro forma effect to
such incurrence,
assumption, Guarantee, repayment, repurchase, redemption,
defeasance or other
discharge of Indebtedness, or such issuance, repurchase or
redemption of
preferred equity, and the use of the proceeds therefrom, as if
the same had
occurred at the beginning of the applicable four-quarter
reference period.
In addition, for purposes of calculating the Fixed Charge
Coverage Ratio:
(1) acquisitions that have been made by the specified Person or
any
of its Restricted Subsidiaries, including through mergers or
consolidations, or any Person or any of its Restricted
Subsidiaries
acquired by the specified Person or any of its Restricted
Subsidiaries,
and including any related financing transactions and including
increases
in ownership of Restricted Subsidiaries, during the four-quarter
reference
period or subsequent to such reference period and on or prior to
the
Calculation Date will be given pro forma effect (in accordance
with
Regulation S-X under the Securities Act) as if they had occurred
on the
first day of the four-quarter reference period;
(2) the Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP, and
operations or
businesses (and ownership interests therein) disposed of prior
to the
Calculation Date, will be excluded;
(3) the Fixed Charges attributable to discontinued operations,
as
determined in accordance with GAAP, and operations or businesses
(and
ownership interests therein) disposed of prior to the
Calculation Date,
will be excluded, but only to the extent that the obligations
giving rise
to such Fixed Charges will not be obligations of the specified
Person or
any of its Restricted Subsidiaries following the Calculation
Date;
(4) any Person that is a Restricted Subsidiary on the
Calculation
Date will be deemed to have been a Restricted Subsidiary at all
times
during such four-quarter period;
(5) any Person that is not a Restricted Subsidiary on the
Calculation Date will be deemed not to have been a Restricted
Subsidiary
at any time during such four-quarter period; and
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<PAGE>
(6) if any Indebtedness bears a floating rate of interest,
the
interest expense on such Indebtedness will be calculated as if
the rate in
effect on the Calculation Date had been the applicable rate for
the entire
period (taking into account any Hedging Obligation applicable to
such
Indebtedness if such Hedging Obligation has a remaining term as
at the
Calculation Date in excess of 12 months).
"Fixed Charges" means, with respect to any specified Person for
any
period, the sum, without duplication, of:
(1) the consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or
accrued,
including, without limitation, amortization of debt issuance
costs and
original issue discount, non-cash interest payments, the
interest
component of any deferred payment obligations, the interest
component of
all payments associated with Capital Lease Obligations, imputed
interest
with respect to Attributable Debt, commissions, discounts and
other fees
and charges incurred in respect of letter of credit or bankers'
acceptance
financings, and net of the effect of all payments made or
received
pursuant to Hedging Obligations in respect of interest rates;
plus
(2) the consolidated interest expense of such Person and its
Restricted Subsidiaries that was capitalized during such period;
plus
(3) any interest on Indebtedness of another Person that is
guaranteed by such Person or one of its Restricted Subsidiaries
or secured
by a Lien on assets of such Person or one of its Restricted
Subsidiaries,
whether or not such Guarantee or Lien is called upon; plus
(4) the product of (a) all dividends, whether paid or accrued
and
whether or not in cash, on any series of preferred equity of
such Person
or any of its Restricted Subsidiaries, other than dividends on
Equity
Interests payable solely in Equity Interests of American Barge
(other than
Disqualified Stock) or to American Barge or a Restricted
Subsidiary of
American Barge, times (b) a fraction, the numerator of which is
one and
the denominator of which is one minus the then current combined
federal,
state and local statutory tax rate of such Person, expressed as
a decimal,
in each case, determined on a consolidated basis in accordance
with GAAP.
"Fleet Mortgages" means the Fleet Mortgages, dated as of
February 11,
2005, among each of the Company, Houston Fleet LLC and Louisiana
Dock Company
LLC, respectively, and Bank of America, N.A., as agent, as
amended, amended and
restated or otherwise modified from time to time, and any other
fleet mortgage
executed by Parent, an Issuer or a Guarantor in favor of an
agent under the
Credit Agreement.
"Foreign Subsidiary" means any Restricted Subsidiary of American
Barge
that is not a Domestic Subsidiary.
"GAAP" means generally accepted accounting principles set forth
in the
opinions and pronouncements of the Accounting Principles Board
of the American
Institute of Certified Public Accountants and statements and
pronouncements of
the Financial Accounting Standards Board or in such other
statements by such
other entity as have been approved by a significant segment of
the accounting
profession, which are in effect from time to time.
"General Maritime Law" means the law related to maritime issues
as
developed and enforced by the Federal Courts of the United
States sitting as
maritime courts (as provided for in the United States
Constitution) and codified
by certain United States Federal statutes.
9
<PAGE>
"Global Note Legend" means the legend set forth in Section
2.06(g)(2)
hereof, which is required to be placed on all Global Notes
issued under this
Indenture.
"Global Notes" means, individually and collectively, each of
the
Restricted Global Notes and the Unrestricted Global Notes
deposited with or on
behalf of and registered in the name of the Depository or its
nominee,
substantially in the form of Exhibit A1 hereto and that bears
the Global Note
Legend and that has the "Schedule of Exchanges of Interests in
the Global Note"
attached thereto, issued in accordance with Section 2.01,
2.06(b)(3),
2.06(b)(4), 2.06(d)(2) or 2.06(f) hereof.
"Government Securities" means direct obligations of, or
obligations
guaranteed by, the United States of America, and the payment for
which the
United States pledges its full faith and credit.
"Guarantee" means a guarantee other than by endorsement of
negotiable
instruments for collection in the ordinary course of business,
direct or
indirect, in any manner including, without limitation, by way of
a pledge of
assets or through letters of credit or reimbursement agreements
in respect
thereof, of all or any part of any Indebtedness (whether arising
by virtue of
partnership arrangements, or by agreements to keep-well, to
purchase assets,
goods, securities or services, to take or pay or to maintain
financial statement
conditions or otherwise).
"Guarantors" means each of:
(1) American Barge; and
(2) any other Subsidiary of American Barge (other than the
Issuers)
that executes a Note Guarantee in accordance with the provisions
of this
Indenture,
and their respective successors and assigns, in each case, until
the Note
Guarantee of such Person has been released in accordance with
the provisions of
this Indenture.
"Hedging Obligations" means, with respect to any specified
Person, the
obligations of such Person under:
(1) interest rate swap agreements (whether from fixed to
floating or
from floating to fixed), interest rate cap agreements and
interest rate
collar agreements;
(2) other agreements or arrangements designed to manage
interest
rates or interest rate risk; and
(3) other agreements or arrangements designed to protect such
Person
against fluctuations in currency exchange rates or commodity
prices,
including, but not limited to, fuel prices.
"Holder" means a Person in whose name a Note is registered.
"HY I" means HY I Investments, L.L.C. and its Affiliates.
"Indebtedness" means, with respect to any specified Person,
any
indebtedness of such Person (excluding accrued expenses and
trade payables),
whether or not contingent:
(1) in respect of borrowed money;
(2) evidenced by bonds, notes, debentures or similar instruments
or
letters of credit (or reimbursement agreements in respect
thereof);
10
<PAGE>
(3) in respect of banker's acceptances;
(4) representing Capital Lease Obligations or Attributable Debt
in
respect of sale and leaseback transactions;
(5) representing the balance deferred and unpaid of the
purchase
price of any property or services due more than six months after
such
property is acquired or such services are completed; or
(6) representing any Hedging Obligations,
if and to the extent any of the preceding items (other than
letters of credit,
Attributable Debt and Hedging Obligations) would appear as a
liability upon a
balance sheet of the specified Person prepared in accordance
with GAAP. In
addition, the term "Indebtedness" includes all Indebtedness of
others secured by
a Lien on any asset of the specified Person (whether or not such
Indebtedness is
assumed by the specified Person) and, to the extent not
otherwise included, the
Guarantee by the specified Person of any Indebtedness of any
other Person.
"Indenture" means this Indenture, as amended or supplemented
from time to
time.
"Indirect Participant" means a Person who holds a beneficial
interest in a
Global Note through a Participant.
"Initial Purchaser" means each of UBS Securities LLC, Banc of
America
Securities LLC and Merrill Lynch, Pierce, Fenner & Smith
Incorporated.
"Institutional Accredited Investor" means an institution that is
an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or
(7) under the
Securities Act, who are not also QIBs.
"Investments" means, with respect to any Person, all direct or
indirect
investments by such Person in other Persons (including
Affiliates) in the forms
of loans (including Guarantees or other obligations), advances
or capital
contributions (excluding commission, travel and similar advances
to officers and
employees made in the ordinary course of business), purchases or
other
acquisitions for consideration of Indebtedness, Equity Interests
or other
securities, together with all items that are or would be
classified as
investments on a balance sheet prepared in accordance with GAAP.
If American
Barge or any Subsidiary of American Barge sells or otherwise
disposes of any
Equity Interests of any direct or indirect Subsidiary of
American Barge such
that, after giving effect to any such sale or disposition, such
Person is no
longer a Subsidiary of American Barge, American Barge will be
deemed to have
made an Investment on the date of any such sale or disposition
equal to the Fair
Market Value of American Barge's Investments in such Subsidiary
that were not
sold or disposed of in an amount determined as provided in the
final paragraph
of Section 4.07 hereof. The acquisition by American Barge or any
Subsidiary of
American Barge of a Person that holds an Investment in a third
Person will be
deemed to be an Investment by American Barge or such Subsidiary
in such third
Person in an amount equal to the Fair Market Value of the
Investments held by
the acquired Person in such third Person in an amount determined
as provided in
the final paragraph of Section 4.07 hereof. Except as otherwise
provided in this
Indenture, the amount of an Investment will be determined at the
time the
Investment is made and without giving effect to subsequent
changes in value.
"Issuer" means each of the Company and ACL Finance Corp.
"Jeffboat Transaction" means a sale by Jeffboat LLC of Vessels
and Related
Assets
11
<PAGE>
manufactured by Jeffboat LLC to an Affiliate of any Issuer or
Guarantor (other
than another Issuer or Guarantor) that is controlled directly or
indirectly by
Parent, which Vessels or Related Assets are then chartered back
to, or otherwise
operated by (pursuant to an operating or similar agreement), one
of the Issuers
or Guarantors.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking
institutions in the City of New York or at a place of payment
are authorized by
law, regulation or executive order to remain closed. If a
payment date is a
Legal Holiday at a place of payment, payment may be made at that
place on the
next succeeding day that is not a Legal Holiday, and no interest
shall accrue on
such payment for the intervening period.
"Letter of Transmittal" means the letter of transmittal to be
prepared by
the Issuers and sent to all Holders of the Notes for use by such
Holders in
connection with the Exchange Offer.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge,
charge, security interest or encumbrance of any kind in respect
of such asset,
whether or not filed, recorded or otherwise perfected under
applicable law,
including any conditional sale or other title retention
agreement, any lease in
the nature thereof, any option or other agreement to sell or
give a security
interest in and, except in connection with any Qualified
Receivables
Transaction, any filing of or agreement to give any financing
statement under
the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction.
"Liquidated Damages" means all liquidated damages then owing
pursuant to
the Registration Rights Agreement.
"Management Committee" means (i) for so long as the Company is a
limited
liability company, the Board of Managers of the Company and (ii)
otherwise the
Board of Directors of the Company.
"Maritime Lien" has the meaning assigned to such term in the
Plan of
Reorganization securing Indebtedness in an amount not to exceed
$17,000,000.
"Mortgages" means the mortgages, deeds of trust, leasehold
mortgages and
security documents from time to time executed by Parent, an
Issuer or a
Guarantor in favor of an agent under the Credit Agreement.
"Net Income" means, with respect to any specified Person, the
net income
(loss) of such Person, determined in accordance with GAAP and
before any
reduction in respect of preferred equity dividends, excluding,
however:
(1) any gain (but not loss), together with any related provision
for
taxes on such gain (but not loss), realized in connection with:
(a) any
Asset Sale; or (b) the disposition of any securities by such
Person or any
of its Restricted Subsidiaries or the extinguishment of any
Indebtedness
of such Person or any of its Restricted Subsidiaries; and
(2) any extraordinary gain (but not loss), together with any
related
provision for taxes on such extraordinary gain (but not
loss).
"Net Proceeds" means the aggregate cash proceeds received by
American
Barge or any of its Restricted Subsidiaries in respect of any
Asset Sale
(including, without limitation, any cash received upon the sale
or other
disposition of any non-cash consideration received in any Asset
Sale), net of
the direct costs relating to such Asset Sale, including, without
limitation,
legal, accounting and investment banking fees, and sales
commissions, and any
relocation expenses incurred as a result of the Asset Sale,
taxes paid or
payable as a result of the Asset Sale, in each case, after
taking into account
any available tax credits or
12
<PAGE>
deductions and any tax sharing arrangements, and amounts
required to be applied
to the repayment of Indebtedness, other than Indebtedness
secured by a Lien on
the asset or assets that were the subject of such Asset Sale and
any reserve for
adjustment in respect of the sale price of such asset or assets
established in
accordance with GAAP.
"Non-Recourse Debt" means Indebtedness:
(1) as to which neither American Barge nor any of its
Restricted
Subsidiaries (a) provides credit support of any kind (including
any
undertaking, agreement or instrument that would constitute
Indebtedness),
(b) is directly or indirectly liable as a guarantor or
otherwise, or (c)
constitutes the lender;
(2) no default with respect to which (including any rights that
the
holders of the Indebtedness may have to take enforcement action
against an
Unrestricted Subsidiary) would permit upon notice, lapse of time
or both
any holder of any other Indebtedness of American Barge or any of
its
Restricted Subsidiaries to declare a default on such other
Indebtedness or
cause the payment of the Indebtedness to be accelerated or
payable prior
to its Stated Maturity; and
(3) as to which the lenders have been notified in writing that
they
will not have any recourse to the stock or assets of American
Barge or any
of its Restricted Subsidiaries.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Note Guarantee" means the Guarantee by each Guarantor of the
Issuers'
obligations under this Indenture and the Notes, executed
pursuant to the
provisions of this Indenture.
"Notes" has the meaning assigned to it in the preamble to this
Indenture.
The Initial Notes and the Additional Notes shall be treated as a
single class
for all purposes under this Indenture, and unless the context
otherwise
requires, all references to the Notes shall include the Initial
Notes and any
Additional Notes.
"NRG Agreements" means, collectively, (a) the Coal
Transportation
Agreement pursuant to which The Burlington Northern and Santa Fe
Railway Company
and American Commercial Terminals LLC will transport certain
tonnages of coal
from the Powder River Basin mines in Wyoming and the Decker and
Spring Creek
mines in Montana to the Big Cajun No. II steam-electric
generating plant and
coal unloading dock of Louisiana Generating LLC; (b) the
Security Side Letter
Agreement among the Company, American Commercial Terminals LLC,
American
Commercial Barge Lines LLC, Louisiana Generating LLC and NRG New
Roads Holdings
LLC; (c) the Lease between American Commercial Terminals LLC and
NRG New Roads
Holdings LLC covering the Hall Street Terminal; (d) the Terminal
Option
Agreement between American Commercial Terminals LLC and NRG New
Roads Holdings
LLC; (e) the Barge and Tug Option Agreement between the Company
and NRG New
Roads Holdings LLC; (f) the Deed of Trust granted by American
Commercial
Terminals LLC to Louisiana Generating LLC and NRG New Roads
Holdings LLC in
respect of the Hall Street Terminal; (g) the Conditional
Assignments and
Assumptions of Lease, between American Commercial Terminals LLC
and NRG New
Roads Holdings LLC with respect to leased properties comprising
a portion of the
Hall Street Terminal; (h) the Conditional Assignment of Inter
Carrier Agreement
between American Commercial Terminals LLC and NRG New Roads
Holdings LLC; and
(i) the Operations Side Letter Agreement between American
Commercial Terminals
LLC and Louisiana Generating LLC, each dated as of December 10,
2004, as amended
from time to time.
13
<PAGE>
"Obligations" means any principal, interest, penalties,
fees,
indemnifications, reimbursements (including, without limitation,
reimbursements
in respect of letters of credit), damages and other liabilities
payable under
the documentation governing any Indebtedness including, without
limitation, any
Qualified Receivables Transaction.
"Officer" means, with respect to any Person, the Chairman of the
Board,
the Chief Executive Officer, the President, the Chief Operating
Officer, the
Chief Financial Officer, the Treasurer, any Assistant Treasurer,
the Controller,
the Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf of
the
Company by two Officers of the Company, one of whom must be the
principal
executive officer, the principal financial officer, the
treasurer or the
principal accounting officer of the Company, that meets the
requirements of
Section 12.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably
acceptable to the Trustee, that meets the requirements of
Section 12.05 hereof.
The counsel may be an employee of or counsel to the Company, any
Subsidiary of
the Company or the Trustee.
"Parent" means American Commercial Lines Inc., and not any of
its
Subsidiaries.
"Participant" means, with respect to the Depositary, Euroclear
or
Clearstream, a Person who has an account with the Depositary,
Euroclear or
Clearstream, respectively (and, with respect to DTC, shall
include Euroclear and
Clearstream).
"Permitted Business" means the business of American Barge and
its
Subsidiaries as existing on February 11, 2005, and any other
businesses that are
the same, similar or reasonably related, ancillary or
complementary thereto and
reasonable extensions thereof, including any Qualified
Receivables Transaction.
"Permitted Investments" means:
(1) any Investment in either of the Issuers, American Barge or
in a
Restricted Subsidiary of American Barge that is a Guarantor;
(2) any Investment in Cash Equivalents;
(3) any Investment by American Barge or any Restricted
Subsidiary of
American Barge in a Person, if as a result of such
Investment:
(a) such Person becomes a Restricted Subsidiary of American
Barge and a Guarantor; or
(b) such Person is merged, consolidated or amalgamated with
or
into, or transfers or conveys substantially all of its assets
to, or is
liquidated into, American Barge or a Restricted Subsidiary of
American
Barge that is a Guarantor;
(4) any Investment made as a result of the receipt of
non-cash
consideration from an Asset Sale that was made pursuant to and
in
compliance with Section 4.10 hereof;
(5) any acquisition of assets or Capital Stock solely in
exchange
for the issuance of Equity Interests (other than Disqualified
Stock) of
the Company or American Barge;
14
<PAGE>
(6) any Investments received in compromise or resolution of
(A)
obligations of trade creditors or customers that were incurred
in the
ordinary course of business of American Barge or any of its
Restricted
Subsidiaries, including pursuant to any plan of reorganization
or similar
arrangement upon the bankruptcy or insolvency of any trade
creditor or
customer; or (B) litigation, arbitration or other disputes with
Persons
who are not Affiliates;
(7) Investments represented by Hedging Obligations;
(8) loans or advances to employees made in the ordinary course
of
business of American Barge or any Restricted Subsidiary of
American Barge
in an aggregate principal amount not to exceed $500,000 at any
one time
outstanding;
(9) repurchases of the Notes;
(10) the acquisition by a Receivables Subsidiary in connection
with
a Qualified Receivables Transaction of Equity Interests of a
trust or
other Person established by such Receivables Subsidiary to
effect such
Qualified Receivables Transaction; and any other Investment by
American
Barge or a Subsidiary of American Barge in a Receivables
Subsidiary or any
Investment by a Receivables Subsidiary in any other Person in
connection
with a Qualified Receivables Transaction provided, that such
other
Investment is in the form of a note or other instrument that
the
Receivables Subsidiary or other Person is required to repay as
soon as
practicable from available cash collections less amounts
required to be
established as reserves pursuant to contractual agreements with
entities
that are not Affiliates of American Barge entered into as part
of a
Qualified Receivables Transaction; and
(11) other Investments in any Person other than an Affiliate
of
American Barge having an aggregate Fair Market Value (measured
on the date
each such Investment was made and without giving effect to
subsequent
changes in value), when taken together with all other
Investments made
pursuant to this clause (11) that are at the time outstanding
not to
exceed $10,000,000.
"Permitted Liens" means:
(1) Liens on assets of either of the Issuers or any
Guarantor
securing Indebtedness and other Obligations under Credit
Facilities that
was permitted by the terms of this Indenture to be incurred
and/or
securing Hedging Obligations related thereto and/or other
obligations
secured by the Collateral Documents;
(2) Liens in favor of the Issuers or the Guarantors;
(3) Liens on property of a Person existing at the time such
Person
is merged with or into or consolidated with American Barge or
any
Subsidiary of American Barge; provided that such Liens were in
existence
prior to the contemplation of such merger or consolidation and
do not
extend to any assets other than those of the Person merged into
or
consolidated with American Barge or the Subsidiary;
(4) Liens on property (including Capital Stock) existing at the
time
of acquisition of the property by American Barge or any
Subsidiary of
American Barge; provided that such Liens were in existence prior
to, such
acquisition, and not incurred in contemplation of, such
acquisition;
15
<PAGE>
(5) Liens to secure the performance of statutory obligations,
surety
or appeal bonds, performance bonds or other obligations of a
like nature
incurred in the ordinary course of business;
(6) Liens to secure Indebtedness (including Capital Lease
Obligations) permitted by Section 4.09(b)(4) hereof covering
only the
assets acquired with or financed by such Indebtedness;
(7) Liens existing on the date of this Indenture;
(8) Liens for taxes, assessments or governmental charges or
claims
that are not yet delinquent or that are being contested in good
faith by
appropriate proceedings promptly instituted and diligently
concluded;
provided that any reserve or other appropriate provision as is
required in
conformity with GAAP has been made therefor;
(9) Liens imposed by law, such as carriers', warehousemen's,
landlord's and mechanics' Liens, in each case, incurred in the
ordinary
course of business;
(10) survey exceptions, easements or reservations of, or rights
of
others for, licenses, rights-of-way, sewers, electric lines,
telegraph and
telephone lines and other similar purposes, or zoning or
other
restrictions as to the use of real property that were not
incurred in
connection with Indebtedness and that do not in the aggregate
materially
adversely affect the value of said properties or materially
impair their
use in the operation of the business of such Person;
(11) Liens created for the benefit of (or to secure) the Notes
(or
the Note Guarantees);
(12) Liens to secure any Permitted Refinancing Indebtedness
permitted to be incurred under this Indenture; provided,
however, that:
(a) the new Lien shall be limited to all or part of the same
property and assets that secured or, under the written
agreements pursuant to which the original Lien arose, could
secure the original Lien (plus improvements and accessions
to,
such property or proceeds or distributions thereof); and
(b) the Indebtedness secured by the new Lien is not
increased
to any amount greater than the sum of (x) the outstanding
principal amount, or, if greater, committed amount, of the
Permitted Refinancing Indebtedness and (y) an amount
necessary
to pay any fees and expenses, including premiums, related to
such renewal, refunding, refinancing, replacement,
defeasance
or discharge;
(13) Liens arising from Uniform Commercial Code financing
statements
filings or other applicable similar filings regarding operating
leases and
vessel charters entered into by American Barge and its
Restricted
Subsidiaries in the ordinary course of business;
(14) Liens incurred in the ordinary course of business of
American
Barge or any Restricted Subsidiary of American Barge arising
from: the
provision of necessaries to any Vessel pursuant to General
Maritime Law of
the United States and 46 U.S.C. Section 31301 et. seq.,
including but not
limited to Vessel chartering, drydocking, maintenance,
repair,
refurbishment or replacement, the furnishing of supplies and
fuel, payment
of fuel user taxes and insurance premiums, boat stores and
provisions,
telephone charges, groceries and food stocks, rigging and rope,
fleeting,
shifting, towing, port charges, cover handling, barge cleaning,
tankering
and gas
16
<PAGE>
freeing services, to Vessels and Related Assets, repairs and
improvements
to Vessels and Related Assets, personal injury, and/or death
occurring on
a Vessel, claims for property damage and/or cargo loss or damage
and
crews' wages, each known as maritime liens;
(15) Maritime Liens and Tort Liens;
(16) Liens which secure the Bonds Guaranteed by MARAD;
(17) Liens resulting from arrangements among the stockholders
of
Foreign Subsidiaries which limit or restrict the transfer of
Equity
Interests of such Foreign Subsidiaries by those stockholders to
third
parties;
(18) Liens for salvage and general average;
(19) Liens on assets of American Barge or any Restricted
Subsidiary
of American Barge incurred in connection with a Qualified
Receivables
Transaction;
(20) Liens under the NRG Agreements; and
(21) Liens incurred in the ordinary course of business of
American
Barge or any Subsidiary of American Barge with respect to
obligations that
do not exceed $15,000,000 at any one time outstanding.
"Permitted Payments to Parent" means, without duplication as to
amounts,
payments to the Parent to permit the Parent to pay reasonable
accounting, legal
and administrative expenses of the Parent when due, in an
aggregate amount not
to exceed $1,500,000 per annum.
"Permitted Refinancing Indebtedness" means any Indebtedness of
American
Barge or any of its Restricted Subsidiaries issued in exchange
for, or the net
proceeds of which are used to renew, refund, refinance, replace,
defease or
discharge other Indebtedness of American Barge or any of its
Restricted
Subsidiaries (other than intercompany Indebtedness); provided
that:
(1) the principal amount (or accreted value, if applicable) of
such
Permitted Refinancing Indebtedness does not exceed the principal
amount
(or accreted value, if applicable) of the Indebtedness renewed,
refunded,
refinanced, replaced, defeased or discharged (plus all accrued
interest on
the Indebtedness and the amount of all fees and expenses,
including
premiums, incurred in connection therewith);
(2) such Permitted Refinancing Indebtedness has a final
maturity
date later than the final maturity date of, and has a Weighted
Average
Life to Maturity equal to or greater than the Weighted Average
Life to
Maturity of, the Indebtedness being renewed, refunded,
refinanced,
replaced, defeased or discharged;
(3) if the Indebtedness being renewed, refunded, refinanced,
replaced, defeased or discharged is subordinated in right of
payment to
the Notes, such Permitted Refinancing Indebtedness has a final
maturity
date later than the final maturity date of, and is subordinated
in right
of payment to, the Notes on terms at least as favorable to the
Holders of
Notes as those contained in the documentation governing the
Indebtedness
being renewed, refunded, refinanced, replaced, defeased or
discharged; and
17
<PAGE>
(4) such Indebtedness is incurred either by American Barge or by
the
Restricted Subsidiary who is the obligor on the Indebtedness
being
renewed, refunded, refinanced, replaced, defeased or
discharged.
"Person" means any individual, corporation, partnership, joint
venture,
association, joint-stock company, trust, unincorporated
organization, limited
liability company or government or other entity.
"Plan of Reorganization" means the First Amended and Restated
Joint Plan
of Reorganization of American Commercial Lines LLC and
Affiliated Debtors
confirmed by order of the United States Bankruptcy Court for the
Southern
District of Indiana on December 30, 2004.
"Pledge Agreement" means the Pledge Agreement, dated as of
February 11,
2005, among the Issuers, the Guarantors, Parent and Bank of
America, N.A., as
agent, as amended, amended and restated or otherwise modified
from time to time.
"Private Placement Legend" means the legend set forth in
Section
2.06(g)(1) hereof to be placed on all Notes issued under this
Indenture except
where otherwise permitted by the provisions of this
Indenture.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Qualified Receivables Transaction" means any transaction or
series of
transactions entered into by American Barge or any of its
Subsidiaries pursuant
to which American Barge or any of its Subsidiaries sells,
conveys or otherwise
transfers to (i) a Receivables Subsidiary (in the case of a
transfer by American
Barge or any of its Subsidiaries) and (ii) any other Person (in
the case of a
transfer by a Receivables Subsidiary), or grants a security
interest in, any
accounts receivable (whether now existing or arising in the
future) of American
Barge or any of its Subsidiaries, and any assets related thereto
including,
without limitation, all collateral securing such accounts
receivable, all
contracts and all guarantees or other obligations in respect of
such accounts
receivable, proceeds of such accounts receivable and other
assets which are
customarily transferred or in respect of which security
interests are
customarily granted in connection with asset securitization
transactions
involving accounts receivable.
"Receivables Subsidiary" means a Subsidiary of American Barge
which
engages in no activities other than in connection with the
financing of accounts
receivable and which is designated by the Management Committee,
at the direction
of the Board of Directors of Parent (as provided below) as a
Receivables
Subsidiary (a) no portion of the Indebtedness or any other
Obligations
(contingent or otherwise) of which (i) is guaranteed by American
Barge or any
Subsidiary of American Barge (excluding guarantees of
Obligations (other than
the principal of, and interest on, Indebtedness) pursuant to
representations,
warranties, covenants and indemnities entered into in the
ordinary course of
business in connection with a Qualified Receivables
Transaction), (ii) is
recourse to or obligates American Barge or any Restricted
Subsidiary of American
Barge in any way other than pursuant to representations,
warranties, covenants
and indemnities entered into in the ordinary course of business
in connection
with a Qualified Receivables Transaction or (iii) subjects any
property or asset
of American Barge or any Subsidiary of American Barge (other
than accounts
receivable and related assets as provided in the definition of
"Qualified
Receivables Transaction"), directly or indirectly, contingently
or otherwise, to
the satisfaction thereof, other than pursuant to
representations, warranties,
covenants and indemnities entered into in the ordinary course of
business in
connection with a Qualified Receivables Transaction, (b) with
which neither
American Barge nor any Subsidiary of American Barge has any
material contract,
agreement, arrangement or understanding other than on terms no
less favorable to
American Barge or such Subsidiary than those that might be
obtained at the time
from Persons who are not Affiliates of American Barge, other
than fees payable
in the ordinary course of business in connection with
servicing
17
<PAGE>
accounts receivable and (c) with which neither American Barge
nor any Subsidiary
of American Barge has any obligation to maintain or preserve
such Subsidiary's
financial condition or cause such Subsidiary to achieve certain
levels of
operating results. Any such designation by the Management
Committee will be
evidenced to the Trustee by filing with the Trustee a certified
copy of the
resolution of the Management Committee giving effect to such
designation and an
Officers' Certificate certifying that such designation complied
with the
foregoing conditions.
"Registration Rights Agreement" means the Registration Rights
Agreement,
dated as of February 11, 2005, among the Issuers, the Guarantors
and the other
parties named on the signature pages thereof, as such agreement
may be amended,
modified or supplemented from time to time and, with respect to
any Additional
Notes, one or more registration rights agreements among the
Issuers, the
Guarantors and the other parties thereto, as such agreement(s)
may be amended,
modified or supplemented from time to time, relating to rights
given by the
Company to the purchasers of Additional Notes to register such
Additional Notes
under the Securities Act.
"Regulation S" means Regulation S promulgated under the
Securities Act.
"Regulation S Global Note" means a Regulation S Temporary Global
Note or
Regulation S Permanent Global Note, as appropriate.
"Regulation S Permanent Global Note" means a permanent Global
Note in the
form of Exhibit A1 hereto bearing the Global Note Legend and the
Private
Placement Legend and deposited with or on behalf of and
registered in the name
of the Depositary or its nominee, issued in a denomination equal
to the
outstanding principal amount of the Regulation S Temporary
Global Note upon
expiration of the Restricted Period.
"Regulation S Temporary Global Note" means a temporary Global
Note in the
form of Exhibit A2 hereto deposited with or on behalf of and
registered in the
name of the Depositary or its nominee, issued in a denomination
equal to the
outstanding principal amount of the Notes initially sold in
reliance on Rule 903
of Regulation S.
"Related Asset" means, with respect to a Vessel, (i) any
insurance
policies and contracts from time to time in force with respect
to such Vessel,
(ii) the Capital Stock of any Restricted Subsidiary of American
Barge owning
such Vessel and related assets, (iii) any requisition
compensation payable in
respect of any compulsory acquisition thereof, (iv) any earnings
derived from
the use or operation thereof and/or any earnings account with
respect to such
earnings, (v) any charters, operating leases and related
agreements entered into
in respect of such Vessel and any security or guarantee in
respect of the
charterer's or lessee's obligations under such charter, lease or
agreement, (vi)
any cash collateral account established with respect to such
Vessel pursuant to
the financing arrangement with respect thereto, (vii) any
building, conversion
or repair contracts relating to such Vessel and any security or
guarantee in
respect of the builder's obligations under such contract and
(viii) any security
interest in, or agreement or assignment relating to, any of the
foregoing or any
mortgage in respect of such Vessel.
"Related Party" means:
(1) any direct or indirect equity owner, 80% (or more) owned
Subsidiary, or immediate family member (in the case of an
individual) of
HY I; or
(2) any trust, corporation, partnership, limited liability
company
or other entity, the direct or indirect beneficiaries,
stockholders,
partners, members, owners or Persons beneficially holding
19
<PAGE>
an 80% or more controlling interest of which consist of any one
or more of
HY I and/or such other Persons referred to in the immediately
preceding
clause (1).
"Responsible Officer," when used with respect to the Trustee,
means any
officer within the Corporate Trust Administration of the Trustee
(or any
successor group of the Trustee) or any other officer of the
Trustee customarily
performing functions similar to those performed by any of the
above designated
officers and also means, with respect to a particular corporate
trust matter,
any other officer to whom such matter is referred because of his
knowledge of
and familiarity with the particular subject.
"Restricted Definitive Note" means a Definitive Note bearing the
Private
Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private
Placement
Legend.
"Restricted Investment" means an Investment other than a
Permitted
Investment.
"Restricted Period" means the 40-day distribution compliance
period as
defined in Regulation S.
"Restricted Subsidiary" of a Person means any Subsidiary of the
referent
Person that is not an Unrestricted Subsidiary.
"Rule 144" means Rule 144 promulgated under the Securities
Act.
"Rule 144A" means Rule 144A promulgated under the Securities
Act.
"Rule 903" means Rule 903 promulgated under the Securities
Act.
"Rule 904" means Rule 904 promulgated under the Securities
Act.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as
amended.
"Security Agreement" means the Amended and Restated Security
Agreement,
dated as of February 11, 2005, among the Issuers, the
Guarantors, Parent and
Bank of America, N.A., as agent, as amended, amended and
restated or otherwise
modified from time to time.
"Shelf Registration Statement" means the Shelf Registration
Statement as
defined in the Registration Rights Agreement.
"Significant Subsidiary" means any Subsidiary that would be a
"significant
subsidiary" as defined in Article 1, Rule 1-02 of Regulation
S-X, promulgated
pursuant to the Securities Act, as such Regulation is in effect
on the date of
this Indenture.
"Stated Maturity" means, with respect to any installment of
interest or
principal on any series of Indebtedness, the date on which the
payment of
interest or principal was scheduled to be paid in the
documentation governing
such Indebtedness as of the date of this Indenture, and will not
include any
contingent obligations to repay, redeem or repurchase any such
interest or
principal prior to the date originally scheduled for the payment
thereof.
"Subsidiary" means, with respect to any specified Person:
20
<PAGE>
(1) any corporation, association or other business entity of
which
more than 50% of the total voting power of shares of Capital
Stock
entitled (without regard to the occurrence of any contingency
and after
giving effect to any voting agreement or stockholders' agreement
that
effectively transfers voting power) to vote in the election of
directors,
managers or trustees of the corporation, association or other
business
entity is at the time owned or controlled, directly or
indirectly, by that
Person or one or more of the other Subsidiaries of that Person
(or a
combination thereof); and
(2) any partnership (a) the sole general partner or the
managing
general partner of which is such Person or a Subsidiary of such
Person or
(b) the only general partners of which are that Person or one or
more
Subsidiaries of that Person (or any combination thereof).
Solely for purposes of clarification, GMS Venezuela Terminal
Partners LLC, as
such entity is owned and controlled as of the date hereof, shall
not be deemed
to be a "Subsidiary."
"Tangible Assets" means the total consolidated assets, less
goodwill and
intangibles, of American Barge and its Restricted Subsidiaries,
as shown on the
most recent audited balance sheet of American Barge.
"TIA" means the Trust Indenture Act of 1939, as amended (15
U.S.C. Section
77aaa-77bbbb).
"Tort Lien" has the meaning assigned to such term in the Plan
of
Reorganization securing Indebtedness in an amount not to exceed
$1,000,000.
"Trustee" means Wilmington Trust Company until a successor
replaces it in
accordance with the applicable provisions of this Indenture and
thereafter means
the successor serving hereunder.
"Unrestricted Definitive Note" means a Definitive Note that does
not bear
and is not required to bear the Private Placement Legend.
"Unrestricted Global Note" means a Global Note that does not
bear and is
not required to bear the Private Placement Legend.
"Unrestricted Subsidiary" means any Subsidiary of American
Barge, other
than the Company and ACL Finance, that is designated by the
Management
Committee, at the direction of the Board of Directors of Parent,
as an
Unrestricted Subsidiary pursuant to a resolution of the
Management Committee, at
the direction of the Board of Directors of Parent, but only to
the extent that
such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt;
(2) except as permitted by Section 4.11 hereof, is not party to
any
agreement, contract, arrangement or understanding with American
Barge or
any Restricted Subsidiary of American Barge unless the terms of
any such
agreement, contract, arrangement or understanding are no less
favorable to
American Barge or such Restricted Subsidiary than those that
might be
obtained at the time from Persons who are not Affiliates of
American
Barge;
(3) is a Person with respect to which neither American Barge nor
any
of its Restricted Subsidiaries has any direct or indirect
obligation (a)
to subscribe for additional Equity Interests or (b) to maintain
or
preserve such Person's financial condition or to cause such
Person to
achieve any specified levels of operating results; and
21
<PAGE>
(4) has not guaranteed or otherwise directly or indirectly
provided
credit support for any Indebtedness of American Barge or any of
its
Restricted Subsidiaries.
"U.S. Person" means a U.S. Person as defined in Rule 902(k)
promulgated
under the Securities Act.
"Vessel" means one or more shipping vessels whose primary
purpose is the
maritime transportation of cargo or which are otherwise engaged,
used or useful
in any business activities of American Barge and its Restricted
Subsidiaries and
which are owned by and registered (or to be owned by and
registered) in the name
of American Barge or any of its Restricted Subsidiaries or
operated (or to be
operated) by American Barge or any of its Restricted
Subsidiaries pursuant to a
charter or other operating agreement constituting a Capital
Lease Obligation, in
each case together with all related spares, equipment and any
additions or
improvements.
"Voting Stock" of any specified Person as of any date means the
Capital
Stock of such Person that is at the time entitled to vote in the
election of the
Board of Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to
any
Indebtedness at any date, the number of years obtained by
dividing:
(1) the sum of the products obtained by multiplying (a) the
amount
of each then remaining installment, sinking fund, serial
maturity or other
required payments of principal, including payment at final
maturity, in
respect of the Indebtedness, by (b) the number of years
(calculated to the
nearest one-twelfth) that will elapse between such date and the
making of
such payment; by
(2) the then outstanding principal amount of such
Indebtedness.
"Wholly-Owned Restricted Subsidiary" of any specified Person
means a
Subsidiary of such Person all of the outstanding Capital Stock
or other
ownership interests of which (other than directors' qualifying
shares) will at
the time be owned by such Person or by one or more Wholly-Owned
Restricted
Subsidiaries of such Person.
Section 1.02 Other Definitions.
<TABLE>
<CAPTION>
Defined
in
Term Section
---- -------
<S> <C>
"Affiliate Transaction"............ 4.11
"Asset Sale Offer"................. 3.09
"Authentication Order"............. 2.02
"Change of Control Offer".......... 4.15
"Change of Control Payment"........ 4.15
"Change of Control Payment Date"... 4.15
"Covenant Defeasance".............. 8.03
"DTC".............................. 2.03
"Event of Default"................. 6.01
"Excess Proceeds".................. 4.10
"incur"............................ 4.09
"Legal Defeasance"................. 8.02
"Offer Amount"..................... 3.09
</TABLE>
22
<PAGE>
<TABLE>
<CAPTION>
Defined
in
Term Section
---- -------
<S> <C>
"Offer Period"..................... 3.09
"Paying Agent"..................... 2.03
"Payment Default".................. 6.01
"Permitted Debt"................... 4.09
"Purchase Date".................... 3.09
"Registrar"........................ 2.03
"Restricted Payments".............. 4.07
</TABLE>
Section 1.03. Incorporation by Reference of Trust Indenture
Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is
incorporated by reference in and made a part of this
Indenture.
The following TIA terms used in this Indenture have the
following
meanings:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the Notes and the Note Guarantees means the Issuers
and the
Guarantors, respectively, and any successor obligor upon the
Notes and the Note
Guarantees, respectively.
All other terms used in this Indenture that are defined by the
TIA,
defined by TIA reference to another statute or defined by SEC
rule under the TIA
have the meanings so assigned to them.
Section 1.04 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural
include the singular;
(5) "will" shall be interpreted to express a command;
(6) provisions apply to successive events and transactions;
and
(7) references to sections of or rules under the Securities Act
will
be deemed to include substitute, replacement of successor
sections or
rules adopted by the SEC from time to time.
23
<PAGE>
ARTICLE 2
THE NOTES
Section 2.01 Form and Dating.
(a) General. The Notes and the Trustee's certificate of
authentication
will be substantially in the form of Exhibits A1 and A2 hereto.
The Notes may
have notations, legends or endorsements required by law, stock
exchange rule or
usage. Each Note will be dated the date of its authentication.
The Notes shall
be in denominations of $1,000 and integral multiples
thereof.
The terms and provisions contained in the Notes will constitute,
and are
hereby expressly made, a part of this Indenture and the Issuers,
the Guarantors
and the Trustee, by their execution and delivery of this
Indenture, expressly
agree to such terms and provisions and to be bound thereby.
However, to the
extent any provision of any Note conflicts with the express
provisions of this
Indenture, the provisions of this Indenture shall govern and be
controlling.
(b) Global Notes. Notes issued in global form will be
substantially in the
form of Exhibits A1 or A2 hereto (including the Global Note
Legend thereon and
the "Schedule of Exchanges of Interests in the Global Note"
attached thereto).
Notes issued in definitive form will be substantially in the
form of Exhibit A1
hereto (but without the Global Note Legend thereon and without
the "Schedule of
Exchanges of Interests in the Global Note" attached thereto).
Each Global Note
will represent such of the outstanding Notes as will be
specified therein and
each shall provide that it represents the aggregate principal
amount of
outstanding Notes from time to time endorsed thereon and that
the aggregate
principal amount of outstanding Notes represented thereby may
from time to time
be reduced or increased, as appropriate, to reflect exchanges
and redemptions.
Any endorsement of a Global Note to reflect the amount of any
increase or
decrease in the aggregate principal amount of outstanding Notes
represented
thereby will be made by the Trustee or the Custodian, at the
direction of the
Trustee, in accordance with instructions given by the Holder
thereof as required
by Section 2.06 hereof.
(c) Temporary Global Notes. Notes offered and sold in reliance
on
Regulation S will be issued initially in the form of the
Regulation S Temporary
Global Note, which will be deposited on behalf of the purchasers
of the Notes
represented thereby with the Trustee, at its Corporate Trust
Office, as
custodian for the Depositary, and registered in the name of the
Depositary or
the nominee of the Depositary for the accounts of designated
agents holding on
behalf of Euroclear or Clearstream, duly executed by the Company
and
authenticated by the Trustee as hereinafter provided. The
Restricted Period will
be terminated upon the receipt by the Trustee of:
(1) a written certificate from the Depositary, together with
copies
of certificates from Euroclear and Clearstream certifying that
they have
received certification of non-United States beneficial ownership
of 100%
of the aggregate principal amount of the Regulation S Temporary
Global
Note (except to the extent of any beneficial owners thereof who
acquired
an interest therein during the Restricted Period pursuant to
another
exemption from registration under the Securities Act and who
will take
delivery of a beneficial ownership interest in a 144A Global
Note or an
IAI Global Note bearing a Private Placement Legend, all as
contemplated by
Section 2.06(b) hereof); and
(2) an Officers' Certificate from the Company.
Following the termination of the Restricted Period, beneficial
interests
in the Regulation S Temporary Global Note will be exchanged for
beneficial
interests in the Regulation S Permanent Global Note pursuant to
the Applicable
Procedures. Simultaneously with the authentication of the
Regulation S
24
<PAGE>
Permanent Global Note, the Trustee will cancel the Regulation S
Temporary Global
Note. The aggregate principal amount of the Regulation S
Temporary Global Note
and the Regulation S Permanent Global Note may from time to time
be increased or
decreased by adjustments made on the records of the Trustee and
the Depositary
or its nominee, as the case may be, in connection with transfers
of interest as
hereinafter provided.
(d) Euroclear and Clearstream Procedures Applicable. The
provisions of the
"Operating Procedures of the Euroclear System" and "Terms and
Conditions
Governing Use of Euroclear" and the "General Terms and
Conditions of Clearstream
Banking" and "Customer Handbook" of Clearstream will be
applicable to transfers
of beneficial interests in the Regulation S Temporary Global
Note and the
Regulation S Permanent Global Note that are held by Participants
through
Euroclear or Clearstream.
Section 2.02 Execution and Authentication.
At least one Officer must sign the Notes for each of the Issuers
by manual
or facsimile signature.
If an Officer whose signature is on a Note no longer holds that
office at
the time a Note is authenticated, the Note will nevertheless be
valid.
A Note will not be valid until authenticated by the manual
signature of
the Trustee. The signature will be conclusive evidence that the
Note has been
authenticated under this Indenture.
The Trustee will, upon receipt of a written order of the Company
signed by
two Officers (an "Authentication Order"), authenticate Notes for
original issue
that may be validly issued under this Indenture, including any
Additional Notes
up to the aggregate principal amount stated in paragraph 4 of
the Notes. The
aggregate principal amount of Notes outstanding at any time may
not exceed the
aggregate principal amount of Notes authorized for issuance by
the Company
pursuant to one or more Authentication Orders, except as
provided in Section
2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to
the Issuers
to authenticate Notes. An authenticating agent may authenticate
Notes whenever
the Trustee may do so. Each reference in this Indenture to
authentication by the
Trustee includes authentication by such agent. An authenticating
agent has the
same rights as an Agent to deal with Holders or an Affiliate of
the Issuers.
Section 2.03 Registrar and Paying Agent.
The Issuers will maintain an office or agency where Notes may be
presented
for registration of transfer or for exchange ("Registrar") and
an office or
agency where Notes may be presented for payment ("Paying
Agent"). The Registrar
will keep a register of the Notes and of their transfer and
exchange. The
Issuers may appoint one or more co-registrars and one or more
additional paying
agents. The term "Registrar" includes any co-registrar and the
term "Paying
Agent" includes any additional paying agent. The Issuers may
change any Paying
Agent or Registrar without notice to any Holder. The Issuers
will notify the
Trustee in writing of the name and address of any Agent not a
party to this
Indenture. If the Issuers fail to appoint or maintain another
entity as
Registrar or Paying Agent, the Trustee shall act as such. The
Issuers or any of
their Subsidiaries may act as Paying Agent or Registrar.
The Issuers initially appoint The Depository Trust Company
("DTC") to act
as Depositary with respect to the Global Notes.
The Issuers initially appoint the Trustee to act as the
Registrar and
Paying Agent and to act as Custodian with respect to the Global
Notes.
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Section 2.04 Paying Agent to Hold Money in Trust.
The Issuers will require each Paying Agent other than the
Trustee to agree
in writing that the Paying Agent will hold in trust for the
benefit of Holders
or the Trustee all money held by the Paying Agent for the
payment of principal,
premium or Liquidated Damages, if any, or interest on the Notes,
and will notify
the Trustee of any default by the Issuers in making any such
payment. While any
such default continues, the Trustee may require a Paying Agent
to pay all money
held by it to the Trustee. The Issuers at any time may require a
Paying Agent to
pay all money held by it to the Trustee. Upon payment over to
the Trustee, the
Paying Agent (if other than the Issuers or a Subsidiary) will
have no further
liability for the money. If the Issuers or a Subsidiary acts as
Paying Agent, it
will segregate and hold in a separate trust fund for the benefit
of the Holders
all money held by it as Paying Agent. Upon any bankruptcy or
reorganization
proceedings relating to the Issuers, the Trustee will serve as
Paying Agent for
the Notes.
Section 2.05 Holder Lists.
The Trustee will preserve in as current a form as is
reasonably
practicable the most recent list available to it of the names
and addresses of
all Holders and shall otherwise comply with TIA Section. 312(a).
If the Trustee
is not the Registrar, the Issuers will furnish to the Trustee at
least seven
Business Days before each interest payment date and at such
other times as the
Trustee may request in writing, a list in such form and as of
such date as the
Trustee may reasonably require of the names and addresses of the
Holders of
Notes and the Issuers shall otherwise comply with TIA Section
312(a).
Section 2.06 Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not
be
transferred except as a whole by the Depositary to a nominee of
the Depositary,
by a nominee of the Depositary to the Depositary or to another
nominee of the
Depositary, or by the Depositary or any such nominee to a
successor Depositary
or a nominee of such successor Depositary. All Global Notes will
be exchanged by
the Issuers for Definitive Notes if:
(1) the Issuers deliver to the Trustee notice from the
Depositary
that it is unwilling or unable to continue to act as Depositary
or that it
is no longer a clearing agency registered under the Exchange Act
and, in
either case, a successor Depositary is not appointed by the
Issuers within
120 days after the date of such notice from the Depositary;
(2) the Issuers in their sole discretion determine that the
Global
Notes (in whole but not in part) should be exchanged for
Definitive Notes
and deliver a written notice to such effect to the Trustee;
provided that
in no event shall the Regulation S Temporary Global Note be
exchanged by
the Issuers for Definitive Notes prior to (A) the expiration of
the
Restricted Period and (B) the receipt by the Registrar of any
certificates
required pursuant to Rule 903(b)(3)(ii)(B) under the Securities
Act; or
(3) there has occurred and is continuing a Default or Event
of
Default with respect to the Notes.
Upon the occurrence of either of the preceding events in (1) or
(2) above,
Definitive Notes shall be issued in such names as the Depositary
shall instruct
the Trustee. Global Notes also may be exchanged or replaced, in
whole or in
part, as provided in Sections 2.07 and 2.10 hereof. Every Note
authenticated and
delivered in exchange for, or in lieu of, a Global Note or any
portion thereof,
pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof,
shall be
authenticated and delivered in the form of, and shall be, a
Global Note. A
Global Note may not be exchanged for another Note other than as
provided in this
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Section 2.06(a), however, beneficial interests in a Global Note
may be
transferred and exchanged as provided in Section 2.06(b), (c) or
(f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global
Notes. The
transfer and exchange of beneficial interests in the Global
Notes will be
effected through the Depositary, in accordance with the
provisions of this
Indenture and the Applicable Procedures. Beneficial interests in
the Restricted
Global Notes will be subject to restrictions on transfer
comparable to those set
forth herein to the extent required by the Securities Act.
Transfers of
beneficial interests in the Global Notes also will require
compliance with
either subparagraph (1) or (2) below, as applicable, as well as
one or more of
the other following subparagraphs, as applicable:
(1) Transfer of Beneficial Interests in the Same Global
Note.
Beneficial interests in any Restricted Global Note may be
transferred to
Persons who take delivery thereof in the form of a beneficial
interest in
the same Restricted Global Note in accordance with the
transfer
restrictions set forth in the Private Placement Legend;
provided, however,
that prior to the expiration of the Restricted Period, transfers
of
beneficial interests in the Regulation S Temporary Global Note
may not be
made to a U.S. Person or for the account or benefit of a U.S.
Person
(other than an Initial Purchaser). Beneficial interests in
any
Unrestricted Global Note may be transferred to Persons who take
delivery
thereof in the form of a beneficial interest in an Unrestricted
Global
Note. No written orders or instructions shall be required to be
delivered
to the Registrar to effect the transfers described in this
Section
2.06(b)(1).
(2) All Other Transfers and Exchanges of Beneficial Interests
in
Global Notes. In connection with all transfers and exchanges of
beneficial
interests that are not subject to Section 2.06(b)(1) above, the
transferor
of such beneficial interest must deliver to the Registrar
either:
(A) both:
(i) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to credit or
cause to be credited a beneficial interest in another Global
Note in an amount equal to the beneficial interest to be
transferred or exchanged; and
(ii) instructions given in accordance with the
Applicable Procedures containing information regarding the
Participant account to be credited with such increase; or
(B) both:
(i) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to cause to
be
issued a Definitive Note in an amount equal to the
beneficial
interest to be transferred or exchanged; and
(ii) instructions given by the Depositary to the
Registrar containing information regarding the Person in
whose
name such Definitive Note shall be registered to effect the
transfer or exchange referred to in (1) above;
provided that in no event shall Definitive Notes be issued
upon the transfer or exchange of beneficial interests in the
Regulation S Temporary Global Note prior
27
<PAGE>
to (A) the expiration of the Restricted Period and (B) the
receipt by the Registrar of any certificates required
pursuant
to Rule 903 under the Securities Act.
Upon consummation of an Exchange Offer by the Issuers in
accordance with Section
2.06(f) hereof, the requirements of this Section 2.06(b)(2)
shall be deemed to
have been satisfied upon receipt by the Registrar of the
instructions contained
in the Letter of Transmittal delivered by the Holder of such
beneficial
interests in the Restricted Global Notes. Upon satisfaction of
all of the
requirements for transfer or exchange of beneficial interests in
Global Notes
contained in this Indenture and the Notes or otherwise
applicable under the
Securities Act, the Trustee shall adjust the principal amount of
the relevant
Global Note(s) pursuant to Section 2.06(h) hereof.
(3) Transfer of Beneficial Interests to Another Restricted
Global
Note. A beneficial interest in any Restricted Global Note may
be
transferred to a Person who takes delivery thereof in the form
of a
beneficial interest in another Restricted Global Note if the
transfer
complies with the requirements of Section 2.06(b)(2) above and
the
Registrar receives the following:
(A) if the transferee will take delivery in the form of a
beneficial interest in the 144A Global Note, then the
transferor
must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof (or, in the
case of
a transferee that is an Institutional Accredited Investor,
the
certifications in item 3(d) thereof); and
(B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Temporary Global Note or
the
Regulation S Permanent Global Note, then the transferor must
deliver
a certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof.
(4) Transfer and Exchange of Beneficial Interests in a
Restricted
Global Note for Beneficial Interests in an Unrestricted Global
Note. A
beneficial interest in any Restricted Global Note may be
exchanged by any
holder thereof for a beneficial interest in an Unrestricted
Global Note or
transferred to a Person who takes delivery thereof in the form
of a
beneficial interest in an Unrestricted Global Note if the
exchange or
transfer complies with the requirements of Section 2.06(b)(2)
above and:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement
and the holder of the beneficial interest to be transferred, in
the
case of an exchange, or the transferee, in the case of a
transfer,
certifies in the applicable Letter of Transmittal that it is not
(i)
a Broker-Dealer, (ii) a Person participating in the distribution
of
the Exchange Notes or (iii) a Person who is an affiliate (as
defined
in Rule 144) of the Issuers;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to
the Exchange Offer Registration Statement in accordance with
the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a beneficial interest in an
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Unrestricted Global Note, a certificate from such holder in
the form of Exhibit C hereto, including the certifications
in
item (1)(a) thereof; or
(ii) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the
form of a beneficial interest in an Unrestricted Global
Note,
a certificate from such holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the
Registrar so requests or if the Applicable Procedures so
require, an
Opinion of Counsel in form reasonably acceptable to the
Registrar to
the effect that such exchange or transfer is in compliance with
the
Securities Act and that the restrictions on transfer
contained
herein and in the Private Placement Legend are no longer
required in
order to maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or
(D) above
at a time when an Unrestricted Global Note has not yet been
issued, the Issuers
shall issue and, upon receipt of an Authentication Order in
accordance with
Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted
Global Notes in an aggregate principal amount equal to the
aggregate principal
amount of beneficial interests transferred pursuant to
subparagraph (B) or (D)
above.
Beneficial interests in an Unrestricted Global Note cannot be
exchanged
for, or transferred to Persons who take delivery thereof in the
form of, a
beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive
Notes.
(1) Beneficial Interests in Restricted Global Notes to
Restricted
Definitive Notes. If any holder of a beneficial interest in a
Restricted
Global Note proposes to exchange such beneficial interest for a
Restricted
Definitive Note or to transfer such beneficial interest to a
Person who
takes delivery thereof in the form of a Restricted Definitive
Note, then,
upon receipt by the Registrar of the following
documentation:
(A) if the holder of such beneficial interest in a
Restricted
Global Note proposes to exchange such beneficial interest for
a
Restricted Definitive Note, a certificate from such holder in
the
form of Exhibit C hereto, including the certifications in
item
(2)(a) thereof;
(B) if such beneficial interest is being transferred to a
QIB
in accordance with Rule 144A, a certificate to the effect set
forth
in Exhibit B hereto, including the certifications in item
(1)
thereof;
(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with
Rule
903 or Rule 904, a certificate to the effect set forth in
Exhibit B
hereto, including the certifications in item (2) thereof;
(D) if such beneficial interest is being transferred
pursuant
to an exemption from the registration requirements of the
Securities
Act in accordance with Rule 144, a certificate to the effect
set
forth in Exhibit B hereto, including the certifications in
item
(3)(a) thereof;
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<PAGE>
(E) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption
from
the registration requirements of the Securities Act other than
those
listed in subparagraphs (B) through (D) above, a certificate to
the
effect set forth in Exhibit B hereto, including the
certifications,
certificates and Opinion of Counsel required by item (3)
thereof, if
applicable;
(F) if such beneficial interest is being transferred to
American Barge or any of its Subsidiaries, a certificate to
the
effect set forth in Exhibit B hereto, including the
certifications
in item (3)(b) thereof; or
(G) if such beneficial interest is being transferred
pursuant
to an effective registration statement under the Securities Act,
a
certificate to the effect set forth in Exhibit B hereto,
including
the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the
applicable Global
Note to be reduced accordingly pursuant to Section 2.06(h)
hereof, and the
Issuers shall execute and the Trustee shall authenticate and
deliver to the
Person designated in the instructions a Definitive Note in the
appropriate
principal amount. Any Definitive Note issued in exchange for a
beneficial
interest in a Restricted Global Note pursuant to this Section
2.06(c) shall be
registered in such name or names and in such authorized
denomination or
denominations as the holder of such beneficial interest shall
instruct the
Registrar through instructions from the Depositary and the
Participant or
Indirect Participant. The Trustee shall deliver such Definitive
Notes to the
Persons in whose names such Notes are so registered. Any
Definitive Note issued
in exchange for a beneficial interest in a Restricted Global
Note pursuant to
this Section 2.06(c)(1) shall bear the Private Placement Legend
and shall be
subject to all restrictions on transfer contained therein.
(2) Beneficial Interests in Regulation S Temporary Global Note
to
Definitive Notes. Notwithstanding Sections 2.06(c)(1)(A) and (C)
hereof, a
beneficial interest in the Regulation S Temporary Global Note
may not be
exchanged for a Definitive Note or transferred to a Person who
takes
delivery thereof in the form of a Definitive Note prior to (A)
the
expiration of the Restricted Period and (B) the receipt by the
Registrar
of any certificates required pursuant to Rule 903(b)(3)(ii)(B)
under the
Securities Act, except in the case of a transfer pursuant to an
exemption
from the registration requirements of the Securities Act other
than Rule
903 or Rule 904.
(3) Beneficial Interests in Restricted Global Notes to
Unrestricted
Definitive Notes. A holder of a beneficial interest in a
Restricted Global
Note may exchange such beneficial interest for an Unrestricted
Definitive
Note or may transfer such beneficial interest to a Person who
takes
delivery thereof in the form of an Unrestricted Definitive Note
only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement
and the holder of such beneficial interest, in the case of
an
exchange, or the transferee, in the case of a transfer,
certifies in
the applicable Letter of Transmittal that it is not (i) a
Broker-Dealer, (ii) a Person participating in the distribution
of
the Exchange Notes or (iii) a Person who is an affiliate (as
defined
in Rule 144) of the Issuers;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights
Agreement;
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(C) such transfer is effected by a Broker-Dealer pursuant to
the Exchange Offer Registration Statement in accordance with
the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for an Unrestricted Definitive Note, a certificate
from such holder in the form of Exhibit C hereto, including
the certifications in item (1)(b) thereof; or
(ii) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the
form of an Unrestricted Definitive Note, a certificate from
such holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the
Registrar so requests or if the Applicable Procedures so
require, an
Opinion of Counsel in form reasonably acceptable to the
Registrar to
the effect that such exchange or transfer is in compliance with
the
Securities Act and that the restrictions on transfer
contained
herein and in the Private Placement Legend are no longer
required in
order to maintain compliance with the Securities Act.
(4) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any holder of a beneficial
interest in
an Unrestricted Global Note proposes to exchange such beneficial
interest
for a Definitive Note or to transfer such beneficial interest to
a Person
who takes delivery thereof in the form of a Definitive Note,
then, upon
satisfaction of the conditions set forth in Section 2.06(b)(2)
hereof, the
Trustee will cause the aggregate principal amount of the
applicable Global
Note to be reduced accordingly pursuant to Section 2.06(h)
hereof, and the
Issuers will execute and the Trustee will authenticate and
deliver to the
Person designated in the instructions a Definitive Note in the
appropriate
principal amount. Any Definitive Note issued in exchange for a
beneficial
interest pursuant to this Section 2.06(c)(4) will be registered
in such
name or names and in such authorized denomination or
denominations as the
holder of such beneficial interest requests through instructions
to the
Registrar from or through the Depositary and the Participant or
Indirect
Participant. The Trustee will deliver such Definitive Notes to
the Persons
in whose names such Notes are so registered. Any Definitive Note
issued in
exchange for a beneficial interest pursuant to this Section
2.06(c)(4)
will not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial
Interests.
(1) Restricted Definitive Notes to Beneficial Interests in
Restricted Global Notes. If any Holder of a Restricted
Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted
Global Note or to transfer such Restricted Definitive Notes to a
Person
who takes delivery thereof in the form of a beneficial interest
in a
Restricted Global Note, then, upon receipt by the Registrar of
the
following documentation:
(A) if the Holder of such Restricted Definitive Note
proposes
to exchange such Note for a beneficial interest in a
Restricted
Global Note, a certificate from such Holder in the form of
Exhibit C
hereto, including the certifications in item (2)(b) thereof;
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(B) if such Restricted Definitive Note is being transferred
to
a QIB in accordance with Rule 144A, a certificate to the effect
set
forth in Exhibit B hereto, including the certifications in item
(1)
thereof;
(C) if such Restricted Definitive Note is being transferred
to
a Non-U.S. Person in an offshore transaction in accordance with
Rule
903 or Rule 904, a certificate to the effect set forth in
Exhibit B
hereto, including the certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being transferred
pursuant to an exemption from the registration requirements of
the
Securities Act in accordance with Rule 144, a certificate to
the
effect set forth in Exhibit B hereto, including the
certifications
in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being transferred
to
an Institutional Accredited Investor in reliance on an
exemption
from the registration requirements of the Securities Act other
than
those listed in subparagraphs (B) through (D) above, a
certificate
to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by
item
(3) thereof, if applicable;
(F) if such Restricted Definitive Note is being transferred
to
American Barge or any of its Subsidiaries, a certificate to
the
effect set forth in Exhibit B hereto, including the
certifications
in item (3)(b) thereof; or
(G) if such Restricted Definitive Note is being transferred
pursuant to an effective registration statement under the
Securities
Act, a certificate to the effect set forth in Exhibit B
hereto,
including the certifications in item (3)(c) thereof,
the Trustee will cancel the Restricted Definitive Note, increase
or
cause to be increased the aggregate principal amount of, in the
case
of clause (A) above, the appropriate Restricted Global Note, in
the
case of clause (B) above, the 144A Global Note, in the case
of
clause (C) above, the Regulation S Global Note, and in all
other
cases, the IAI Global Note.
(2) Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Definitive
Note may
exchange such Note for a beneficial interest in an Unrestricted
Global
Note or transfer such Restricted Definitive Note to a Person who
takes
delivery thereof in the form of a beneficial interest in an
Unrestricted
Global Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement
and the Holder, in the case of an exchange, or the transferee,
in
the case of a transfer, certifies in the applicable Letter
of
Transmittal that it is not (i) a Broker-Dealer, (ii) a
Person
participating in the distribution of the Exchange Notes or (iii)
a
Person who is an affiliate (as defined in Rule 144) of the
Issuers;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to
the Exchange Offer Registration Statement in accordance with
the
Registration Rights Agreement; or
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(D) the Registrar receives the following:
(i) if the Holder of such Definitive Notes proposes to
exchange such Notes for a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder in
the form of Exhibit C hereto, including the certifications
in
item (1)(c) thereof; or
(ii) if the Holder of such Definitive Notes proposes to
transfer such Notes to a Person who shall take delivery
thereof in the form of a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder in
the form of Exhibit B hereto, including the certifications
in
item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the
Registrar so requests or if the Applicable Procedures so
require, an
Opinion of Counsel in form reasonably acceptable to the
Registrar to
the effect that such exchange or transfer is in compliance with
the
Securities Act and that the restrictions on transfer
contained
herein and in the Private Placement Legend are no longer
required in
order to maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs
in
this Section 2.06(d)(2), the Trustee will cancel the Definitive
Notes and
increase or cause to be increased the aggregate principal amount
of the
Unrestricted Global Note.
(3) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted
Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted
Global
Note or transfer such Definitive Notes to a Person who takes
delivery
thereof in the form of a beneficial interest in an Unrestricted
Global
Note at any time. Upon receipt of a request for such an exchange
or
transfer, the Trustee will cancel the applicable Unrestricted
Definitive
Note and increase or cause to be increased the aggregate
principal amount
of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a
beneficial interest is effected pursuant to subparagraphs
(2)(B), (2)(D)
or (3) above at a time when an Unrestricted Global Note has not
yet been
issued, the Company will issue and, upon receipt of an
Authentication
Order in accordance with Section 2.02 hereof, the Trustee
will
authenticate one or more Unrestricted Global Notes in an
aggregate
principal amount equal to the principal amount of Definitive
Notes so
transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive
Notes. Upon
request by a Holder of Definitive Notes and such Holder's
compliance with the
provisions of this Section 2.06(e), the Registrar will register
the transfer or
exchange of Definitive Notes. Prior to such registration of
transfer or
exchange, the requesting Holder must present or surrender to the
Registrar the
Definitive Notes duly endorsed or accompanied by a written
instruction of
transfer in form satisfactory to the Registrar duly executed by
such Holder or
by its attorney, duly authorized in writing. In addition, the
requesting Holder
must provide any additional certifications, documents and
information, as
applicable, required pursuant to the following provisions of
this Section
2.06(e).
(1) Restricted Definitive Notes to Restricted Definitive Notes.
Any
Restricted Definitive Note may be transferred to and registered
in the
name of Persons who take delivery thereof in the form of a
Restricted
Definitive Note if the Registrar receives the following:
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(A) if the transfer will be made pursuant to Rule 144A, then
the transferor must deliver a certificate in the form of Exhibit
B
hereto, including the certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903 or
Rule
904, then the transferor must deliver a certificate in the form
of
Exhibit B hereto, including the certifications in item (2)
thereof;
and
(C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities
Act,
then the transferor must deliver a certificate in the form
of
Exhibit B hereto, including the certifications, certificates
and
Opinion of Counsel required by item (3) thereof, if
applicable.
(2) Restricted Definitive Notes to Unrestricted Definitive
Notes.
Any Restricted Definitive Note may be exchanged by the Holder
thereof for
an Unrestricted Definitive Note or transferred to a Person or
Persons who
take delivery thereof in the form of an Unrestricted Definitive
Note if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement
and the Holder, in the case of an exchange, or the transferee,
in
the case of a transfer, certifies in the applicable Letter
of
Transmittal that it is not (i) a Broker-Dealer, (ii) a
Person
participating in the distribution of the Exchange Notes or (iii)
a
Person who is an affiliate (as defined in Rule 144) of the
Issuers;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights
Agreement;
(C) any such transfer is effected by a Broker-Dealer
pursuant
to the Exchange Offer Registration Statement in accordance with
the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such Restricted Definitive Notes
proposes to exchange such Notes for an Unrestricted
Definitive
Note, a certificate from such Holder in the form of Exhibit
C
hereto, including the certifications in item (1)(d) thereof;
or
(ii) if the Holder of such Restricted Definitive Notes
proposes to transfer such Notes to a Person who shall take
delivery thereof in the form of an Unrestricted Definitive
Note, a certificate from such Holder in the form of Exhibit
B
hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the
Registrar so requests, an Opinion of Counsel in form
reasonably
acceptable to the Registrar to the effect that such exchange
or
transfer is in compliance with the Securities Act and that
the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
(3) Unrestricted Definitive Notes to Unrestricted Definitive
Notes.
A Holder of Unrestricted Definitive Notes may transfer such
Notes to a
Person who takes delivery thereof in
34
<PAGE>
the form of an Unrestricted Definitive Note. Upon receipt of a
request to
register such a transfer, the Registrar shall register the
Unrestricted
Definitive Notes pursuant to the instructions from the Holder
thereof.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer
in
accordance with the Registration Rights Agreement, the Issuers
will issue and,
upon receipt of an Authentication Order in accordance with
Section 2.02 hereof,
the Trustee will authenticate:
(1) one or more Unrestricted Global Notes in an aggregate
principal
amount equal to the principal amount of the beneficial interests
in the
Restricted Global Notes accepted for exchange in the Exchange
Offer by
Persons that certify in the applicable Letters of Transmittal
that (A)
they are not Broker-Dealers, (B) they are not participating in
a
distribution of the Exchange Notes and (C) they are not
affiliates (as
defined in Rule 144) of the Issuers; and
(2) Unrestricted Definitive Notes in an aggregate principal
amount
equal to the principal amount of the Restricted Definitive Notes
accepted
for exchange in the Exchange Offer by Persons that certify in
the
applicable Letters of Transmittal that (A) they are not
Broker-Dealers,
(B) they are not participating in a distribution of the Exchange
Notes and
(C) they are not affiliates (as defined in Rule 144) of the
Issuers.
Concurrently with the issuance of such Notes, the Trustee will
cause the
aggregate principal amount of the applicable Restricted Global
Notes to be
reduced accordingly, and the Company will execute and the
Trustee will
authenticate and deliver to the Persons designated by the
Holders of Definitive
Notes so accepted Unrestricted Definitive Notes in the
appropriate principal
amount.
(g) Legends. The following legends will appear on the face of
all Global
Notes and Definitive Notes issued under this Indenture unless
specifically
stated otherwise in the applicable provisions of this
Indenture.
(1) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each
Global
Note and each Definitive Note (and all Notes issued in
exchange
therefor or substitution thereof) shall bear the legend in
substantially the following form:
"THE PURCHASER UNDERSTANDS THAT THE NOTES ARE BEING OFFERED IN A
TRANSACTION NOT
INVOLVING ANY PUBLIC OFFERING IN THE U.S. WITHIN THE MEANING OF
THE SECURITIES
ACT, THAT THE NOTES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT AND THAT
(A) THE NOTES MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY
(1)(a) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A
QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (b)
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER THE
SECURITIES ACT,
IF AVAILABLE, (c) OUTSIDE THE U.S. TO A FOREIGN PURCHASER IN A
TRANSACTION
MEETING THE REQUIREMENTS OF REGULATION S UNDER THE SECURITIES
ACT, OR (d) TO AN
`ACCREDITED INVESTOR' WITHIN THE MEANING OF RULE 501(a)(1), (2),
(3) OR (7)
UNDER THE SECURITIES ACT (AN `INSTITUTIONAL ACCREDITED
INVESTOR') THAT IS
PURCHASING AT LEAST $100,000 OF THE NOTES FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT
OF AN INSTITUTIONAL ACCREDITED INVESTOR (AND BASED UPON AN
OPINION OF COUNSEL IF
WE SO REQUEST), (2) TO US OR ANY OF OUR SUBSIDIARIES, OR (3)
UNDER AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN COMPLIANCE WITH
ANY
35
<PAGE>
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE U.S. OR ANY OTHER
APPLICABLE
JURISDICTION AND (B) THE PURCHASER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED
TO, NOTIFY ANY SUBSEQUENT PURCHASER FROM IT OF THE RESALE
RESTRICTIONS SET FORTH
IN (A) ABOVE. IF ANY RESALE OR OTHER TRANSFER OF ANY SENIOR NOTE
IS PROPOSED TO
BE MADE UNDER CLAUSE (A)(1)(d) ABOVE WHILE THESE TRANSFER
RESTRICTIONS ARE IN
FORCE, THEN THE TRANSFEROR SHALL DELIVER A LETTER FROM THE
TRANSFEREE TO THE
ISSUERS AND THE TRUSTEE, AS THE CASE MAY BE, WHICH SHALL
PROVIDE, AMONG OTHER
THINGS, THAT THE TRANSFEREE IS AN INSTITUTIONAL ACCREDITED
INVESTOR AND THAT IT
IS ACQUIRING THE SECURITIES FOR INVESTMENT PURPOSES AND NOT FOR
DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT."
(B) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to subparagraphs (b)(4),
(c)(3),
(c)(4), (d)(2), (d)(3), (e)(2), (e)(3) or (f) of this Section
2.06
(and all Notes issued in exchange therefor or substitution
thereof)
will not bear the Private Placement Legend.
(2) Global Note Legend. Each Global Note will bear a legend
in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT
OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES
EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS
MAY BE REQUIRED
PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE
MAY BE EXCHANGED
IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE
INDENTURE, (3) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION
PURSUANT TO SECTION
2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUERS.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES
IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) ("DTC"), TO THE
ISSUERS OR THEIR
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN
AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
(3) Regulation S Temporary Global Note Legend. The Regulation
S
Temporary Global Note will bear a Legend in substantially the
following
form:
36
<PAGE>
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL
NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR
CERTIFICATED NOTES, ARE AS
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE
HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE
SHALL BE ENTITLED
TO RECEIVE PAYMENT OF INTEREST HEREON."
(h) Cancellation and/or Adjustment of Global Notes. At such time
as all
beneficial interests in a particular Global Note have been
exchanged for
Definitive Notes or a particular Global Note has been redeemed,
repurchased or
canceled in whole and not in part, each such Global Note will be
returned to or
retained and canceled by the Trustee in accordance with Section
2.11 hereof. At
any time prior to such cancellation, if any beneficial interest
in a Global Note
is exchanged for or transferred to a Person who will take
delivery thereof in
the form of a beneficial interest in another Global Note or for
Definitive
Notes, the principal amount of Notes represented by such Global
Note will be
reduced accordingly and an endorsement will be made on such
Global Note by the
Trustee or by the Depositary at the direction of the Trustee to
reflect such
reduction; and if the beneficial interest is being exchanged for
or transferred
to a Person who will take delivery thereof in the form of a
beneficial interest
in another Global Note, such other Global Note will be increased
accordingly and
an endorsement will be made on such Global Note by the Trustee
or by the
Depositary at the direction of the Trustee to reflect such
increase.
(i) General Provisions Relating to Transfers and Exchanges.
(1) To permit registrations of transfers and exchanges, the
Issuers
will execute and the Trustee will authenticate Global Notes and
Definitive
Notes upon receipt of an Authentication Order in accordance with
Section
2.02 hereof or at the Registrar's request.
(2) No service charge will be made to a Holder of a
beneficial
interest in a Global Note or to a Holder of a Definitive Note
for any
registration of transfer or exchange, but the Issuers may
require payment
of a sum sufficient to cover any transfer tax or similar
governmental
charge payable in connection therewith (other than any such
transfer taxes
or similar governmental charge payable upon exchange or transfer
pursuant
to Sections 2.10, 3.06, 3.09, 4.10, 4.15 and 9.05 hereof).
(3) The Registrar will not be required to register the transfer
of
or exchange of any Note selected for redemption in whole or in
part,
except the unredeemed portion of any Note being redeemed in
part.
(4) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or
Definitive Notes
will be the valid obligations of the Issuers, evidencing the
same debt,
and entitled to the same benefits under this Indenture, as the
Global
Notes or Definitive Notes surrendered upon such registration of
transfer
or exchange.
(5) Neither the Registrar nor the Issuers will be required:
(A) to issue, to register the transfer of or to exchange any
Notes during a period beginning at the opening of business 15
days
before the day of any selection of Notes for redemption
under
Section 3.02 hereof and ending at the close of business on the
day
of selection;
(B) to register the transfer of or to exchange any Note
selected for redemption in whole or in part, except the
unredeemed
portion of any Note being redeemed in part; or
37
<PAGE>
(C) to register the transfer of or to exchange a Note
between
a record date and the next succeeding interest payment date.
(6) Prior to due presentment for the registration of a transfer
of
any Note, the Trustee, any Agent and the Issuers may deem and
treat the
Person in whose name any Note is registered as the absolute
owner of such
Note for the purpose of receiving payment of principal of and
interest on
such Notes and for all other purposes, and none of the Trustee,
any Agent
or the Issuers shall be affected by notice to the contrary.
(7) The Trustee will authenticate Global Notes and Definitive
Notes
in accordance with the provisions of Section 2.02 hereof.
(8) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this
Section 2.06 to
effect a registration of transfer or exchange may be submitted
by
facsimile.
Section 2.07 Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the
Issuers and the
Trustee receives evidence to its satisfaction of the
destruction, loss or theft
of any Note, the Issuers will issue and the Trustee, upon
receipt of an
Authentication Order, will authenticate a replacement Note if
the Trustee's
requirements are met. If required by the Trustee or the Issuers,
an indemnity
bond must be supplied by the Holder that is sufficient in the
judgment of the
Trustee and the Issuers to protect the Issuers, the Trustee, any
Agent and any
authenticating agent from any loss that any of them may suffer
if a Note is
replaced. The Issuers may charge for their expenses in replacing
a Note.
Every replacement Note is an additional obligation of the
Issuers and will
be entitled to all of the benefits of this Indenture equally and
proportionately
with all other Notes duly issued hereunder.
Section 2.08 Outstanding Notes.
The Notes outstanding at any time are all the Notes
authenticated by the
Trustee except for those canceled by it, those delivered to it
for cancellation,
those reductions in the interest in a Global Note effected by
the Trustee in
accordance with the provisions hereof, and those described in
this Section 2.08
as not outstanding. Except as set forth in Section 2.09 hereof,
a Note does not
cease to be outstanding because the Issuers or an Affiliate of
the Issuers holds
the Note; however, Notes held by Parent or a Subsidiary of
Parent shall not be
deemed to be outstanding for purposes of Section 3.07(a)
hereof.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases
to be
outstanding unless the Trustee receives proof satisfactory to it
that the
replaced Note is held by a protected purchaser.
If the principal amount of any Note is considered paid under
Section 4.01
hereof, it ceases to be outstanding and interest on it ceases to
accrue.
If the Paying Agent (other than the Issuers, a Subsidiary or an
Affiliate
of any thereof) holds, on a redemption date or maturity date,
money sufficient
to pay Notes payable on that date, then on and after that date
such Notes will
be deemed to be no longer outstanding and will cease to accrue
interest.
Section 2.09 Treasury Notes.
38
<PAGE>
In determining whether the Holders of the required principal
amount of
Notes have concurred in any direction, waiver or consent, Notes
owned by the
Issuers or any Guarantor, or by any Person directly or
indirectly controlling or
controlled by or under direct or indirect common control with
the Issuers or any
Guarantor, will be considered as though not outstanding, except
that for the
purposes of determining whether the Trustee will be protected in
relying on any
such direction, waiver or consent, only Notes that the Trustee
knows are so
owned will be so disregarded.
Section 2.10 Temporary Notes.
Until certificates representing Notes are ready for delivery,
the Issuers
may prepare and the Trustee, upon receipt of an Authentication
Order, will
authenticate temporary Notes. Temporary Notes will be
substantially in the form
of certificated Notes but may have variations that the Issuers
consider
appropriate for temporary Notes and as may be reasonably
acceptable to the
Trustee. Without unreasonable delay, the Issuers will prepare
and the Trustee
will authenticate definitive Notes in exchange for temporary
Notes.
Holders of temporary Notes will be entitled to all of the
benefits of this
Indenture.
Section 2.11 Cancellation.
The Issuers at any time may deliver Notes to the Trustee for
cancellation.
The Registrar and Paying Agent will forward to the Trustee any
Notes surrendered
to them for registration of transfer, exchange or payment. The
Trustee and no
one else will cancel all Notes surrendered for registration of
transfer,
exchange, payment, replacement or cancellation and will destroy
canceled Notes
(subject to the record retention requirement of the Exchange
Act). Certification
of the destruction of all canceled Notes will be delivered to
the Issuers. The
Issuers may not issue new Notes to replace Notes that it has
paid or that have
been delivered to the Trustee for cancellation.
Section 2.12 Defaulted Interest.
If the Issuers default in a payment of interest on the Notes,
the Issuers
will pay the defaulted interest in any lawful manner plus, to
the extent lawful,
interest payable on the defaulted interest, to the Persons who
are Holders on a
subsequent special record date, in each case at the rate
provided in the Notes
and in Section 4.01 hereof. The Issuers will notify the Trustee
in writing of
the amount of defaulted interest proposed to be paid on each
Note and the date
of the proposed payment. The Issuers will fix or cause to be
fixed each such
special record date and payment date; provided that no such
special record date
may be less than 10 days prior to the related payment date for
such defaulted
interest. At least 15 days before the special record date, the
Issuers (or, upon
the written request of the Issuers, the Trustee in the name and
at the expense
of the Issuers) will mail or cause to be mailed to Holders a
notice that states
the special record date, the related payment date and the amount
of such
interest to be paid.
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee.
If the Issuers elect to redeem Notes pursuant to the optional
redemption
provisions of Section 3.07 hereof, it must furnish to the
Trustee, at least 30
days but not more than 60 days before a redemption date, an
Officers'
Certificate setting forth:
(1) the clause of this Indenture pursuant to which the
redemption
shall occur;
39
<PAGE>
(2) the redemption date;
(3) the principal amount of Notes to be redeemed; and
(4) the redemption price.
Section 3.02 Selection of Notes to Be Redeemed or Purchased.
If less than all of the Notes are to be redeemed or purchased in
an offer
to purchase at any time, the Trustee will select Notes for
redemption or
purchase on a pro rata basis except:
(1) if the Notes are listed on any national securities exchange,
in
compliance with the requirements of the principal national
securities
exchange on which the Notes are listed; or
(2) if otherwise required by law.
In the event of partial redemption or purchase by lot, the
particular
Notes to be redeemed or purchased will be selected, unless
otherwise provided
herein, not less than 30 nor more than 60 days prior to the
redemption or
purchase date by the Trustee from the outstanding Notes not
previously called
for redemption or purchase.
The Trustee will promptly notify the Issuers in writing of the
Notes
selected for redemption or purchase and, in the case of any Note
selected for
partial redemption or purchase, the principal amount thereof to
be redeemed or
purchased. Notes and portions of Notes selected will be in
amounts of $1,000 or
whole multiples of $1,000; except that if all of the Notes of a
Holder are to be
redeemed or purchased, the entire outstanding amount of Notes
held by such
Holder, even if not a multiple of $1,000, shall be redeemed or
purchased. Except
as provided in the preceding sentence, provisions of this
Indenture that apply
to Notes called for redemption or purchase also apply to
portions of Notes
called for redemption or purchase.
Section 3.03 Notice of Redemption.
Subject to the provisions of Section 3.09 hereof, at least 30
days but not
more than 60 days before a redemption date, the Issuers will
mail or cause to be
mailed, by first class mail, a notice of redemption to each
Holder whose Notes
are to be redeemed at its registered address, except that
redemption notices may
be mailed more than 60 days prior to a redemption date if the
notice is issued
in connection with a defeasance of the Notes or a satisfaction
and discharge of
this Indenture pursuant to Articles 8 or 11 hereof.
The notice will identify the Notes to be redeemed and will
state:
(1) the redemption date;
(2) the redemption price;
(3) if any Note is being redeemed in part, the portion of
the
principal amount of such Note to be redeemed and that, after
the
redemption date upon surrender of such Note, a new Note or Notes
in
principal amount equal to the unredeemed portion will be issued
upon
cancellation of the original Note;
(4) the name and address of the Paying Agent;
40
<PAGE>
(5) that Notes called for redemption must be surrendered to
the
Paying Agent to collect the redemption price;
(6) that, unless the Issuers default in making such
redemption
payment, interest on Notes called for redemption ceases to
accrue on and
after the redemption date;
(7) the paragraph of the Notes and/or Section of this
Indenture
pursuant to which the Notes called for redemption are being
redeemed; and
(8) that no representation is made as to the correctness or
accuracy
of the CUSIP number, if any, listed in such notice or printed on
the
Notes.
At the Issuers' request, the Trustee will give the notice of
redemption in
the Issuers' name and at its expense; provided, however, that
the Issuers have
delivered to the Trustee, at least 45 days prior to the
redemption date, an
Officers' Certificate requesting that the Trustee give such
notice and setting
forth the information to be stated in such notice as provided in
the preceding
paragraph.
Section 3.04 Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section
3.03
hereof, Notes called for redemption become irrevocably due and
payable on the
redemption date at the redemption price. A notice of redemption
may not be
conditional.
Section 3.05 Deposit of Redemption or Purchase Price.
One Business Day prior to the redemption or purchase date, the
Issuers
will deposit with the Trustee or with the Paying Agent money
sufficient to pay
the redemption or purchase price of and accrued interest and
Liquidated Damages,
if any, on all Notes to be redeemed or purchased on that date.
The Trustee or
the Paying Agent will promptly return to the Issuers any money
deposited with
the Trustee or the Paying Agent by the Issuers in excess of the
amounts
necessary to pay the redemption or purchase price of, and
accrued interest and
Liquidated Damages, if any, on, all Notes to be redeemed or
purchased.
If the Issuers comply with the provisions of the preceding
paragraph, on
and after the redemption or purchase date, interest will cease
to accrue on the
Notes or the portions of Notes called for redemption or
purchase. If a Note is
redeemed or purchased on or after an interest record date but on
or prior to the
related interest payment date, then any accrued and unpaid
interest shall be
paid to the Person in whose name such Note was registered at the
close of
business on such record date. If any Note called for redemption
or purchase is
not so paid upon surrender for redemption or purchase because of
the failure of
the Issuers to comply with the preceding paragraph, interest
shall be paid on
the unpaid principal, from the redemption or purchase date until
such principal
is paid, and to the extent lawful on any interest not paid on
such unpaid
principal, in each case at the rate provided in the Notes and in
Section 4.01
hereof.
Section 3.06 Notes Redeemed or Purchased in Part.
Upon surrender of a Note that is redeemed or purchased in part,
the
Issuers will issue and, upon receipt of an Authentication Order,
the Trustee
will authenticate for the Holder at the expense of the Issuers a
new Note equal
in principal amount to the unredeemed or unpurchased portion of
the Note
surrendered.
Section 3.07 Optional Redemption.
41
<PAGE>
(a) At any time prior to, February 15, 2008, the Issuers may on
any one or
more occasions redeem up to 35% of the aggregate principal
amount of Notes
issued under this Indenture at a redemption price of 109.5% of
the principal
amount, plus accrued and unpaid interest and Liquidated Damages,
if any, to the
redemption date, with the net cash proceeds of one or more
Equity Offerings by
(a) the Company or (b) Parent to the extent the net cash
proceeds thereof are
contributed to the Company or used to purchase from the Company
Capital Stock
(other than Disqualified Stock) of the Company; provided
that:
(1) at least 65% of the aggregate principal amount of Notes
originally issued under this Indenture (excluding Notes held by
Parent and
its Subsidiaries) remains outstanding immediately after the
occurrence of
such redemption; and
(2) the redemption occurs within 45 days of the date of the
closing
of such Equity Offering.
(b) Except pursuant to the preceding paragraph, the Notes will
not be
redeemable at the Issuers' option prior to February 15,
2010.
(c) On or after February 15, 2010, the Issuers may redeem all or
a part of
the Notes upon not less than 30 nor more than 60 days' notice,
at the redemption
prices (expressed as percentages of principal amount) set forth
below plus
accrued and unpaid interest and Liquidated Damages, if any, on
the Notes
redeemed, to the applicable redemption date, if redeemed during
the twelve-month
period beginning on February 15 of the years indicated below,
subject to the
rights of Holders of Notes on the relevant record date to
receive interest on
the relevant interest payment date:
<TABLE>
<CAPTION>
Year Percentage
---- ----------
<S> <C>
2010.................. 104.750%
2011.................. 103.167%
2012.................. 101.583%
2013 and thereafter... 100.000%
</TABLE>
Unless the Issuers default in the payment of the redemption
price,
interest will cease to accrue on the Notes or portions thereof
called for
redemption on the applicable redemption date.
(d) Any redemption pursuant to this Section 3.07 shall be made
pursuant to
the provisions of Sections 3.01 through 3.06 hereof.
Section 3.08 Mandatory Redemption.
The Issuers are not required to make mandatory redemption or
sinking fund
payments with respect to the Notes.
Section 3.09 Offer to Purchase by Application of Excess
Proceeds.
In the event that, pursuant to Section 4.10 hereof, the Issuers
are
required to commence an offer to all Holders to purchase Notes
(an "Asset Sale
Offer"), they will follow the procedures specified below.
The Asset Sale Offer shall be made to all Holders and all
holders of other
Indebtedness that is pari passu with the Notes containing
provisions similar to
those set forth in this Indenture with respect to offers to
purchase or redeem
with the proceeds of sales of assets. The Asset Sale Offer will
remain open for
a period of at least 20 Business Days following its commencement
and not more
than 30 Business
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