EXHIBIT 4.2
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REGISTRATION RIGHTS AGREEMENT
Dated as of February 11, 2005
By and Among
AMERICAN COMMERCIAL LINES LLC
ACL FINANCE CORP.
as Issuers,
THE GUARANTORS LISTED ON THE SIGNATURE PAGES HERETO
and
UBS SECURITIES LLC
BANC OF AMERICA SECURITIES LLC
and
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
as Initial Purchasers
9 1/2% Senior Notes due 2015
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TABLE OF CONTENTS
Page
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1. Definitions.................................................................. 1
2. Exchange Offer............................................................... 4
3. Shelf Registration........................................................... 7
4. Liquidated Damages........................................................... 8
5. Registration Procedures...................................................... 10
6. Registration Expenses........................................................ 18
7. Indemnification.............................................................. 18
8. Rules 144 and 144A........................................................... 21
9. Underwritten Registrations................................................... 22
10. Miscellaneous............................................................... 22
(a) No Inconsistent Agreements.............................................. 22
(b) Adjustments Affecting Registrable Notes................................. 22
(c) Amendments and Waivers.................................................. 22
(d) Notices................................................................. 23
(e) Successors and Assigns.................................................. 24
(f) Counterparts............................................................ 24
(g) Headings................................................................ 24
(h) Governing Law........................................................... 24
(i) Severability............................................................ 24
(j) Securities Held by the Issuers, the Guarantors or their Affiliate....... 25
(k) Third-Party Beneficiaries............................................... 25
(l) Attorneys' Fees......................................................... 25
(m) Entire Agreement........................................................ 25
SIGNATURES...................................................................... S-1
-i-
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is dated as of
February 11, 2005, by and among American Commercial Lines LLC, a Delaware
limited liability company (the "Company"), ACL Finance Corp., a Delaware
corporation ("ACL Finance," and together with the Company, the "Issuers"), and
the guarantors listed on the signature pages attached hereto (each a
"Guarantor," and collectively, the "Guarantors"), on the one hand, and UBS
Securities LLC, Banc of America Securities LLC and Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated (each an "Initial Purchaser," and collectively, the
"Initial Purchasers"), on the other hand.
This Agreement is entered into in connection with the Purchase
Agreement, dated as of February 8, 2005, by and among the Issuers, the
Guarantors and the Initial Purchasers (the "Purchase Agreement"), relating to
the offering of $200 million aggregate principal amount of the Issuers' 9-1/2%
Senior Notes due 2015 (the "Notes"). The execution and delivery of this
Agreement is a condition to the Initial Purchasers' obligation to purchase the
Notes under the Purchase Agreement.
The parties hereby agree as follows:
Section 1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
"ACTION" shall have the meaning set forth in Section 7(c) hereof.
"ADVICE" shall have the meaning set forth in Section 5 hereof.
"AGREEMENT" shall have the meaning set forth in the first
introductory paragraph hereto.
"APPLICABLE PERIOD" shall have the meaning set forth in Section 2(b)
hereof.
"BOARD OF MANAGERS" shall have the meaning set forth in Section 5
hereof.
"BUSINESS DAY" shall mean a day that is not a Legal Holiday.
"COMMISSION" shall mean the Securities and Exchange Commission.
"COMPANY" shall have the meaning set forth in the introductory
paragraph hereto and shall also include the Company's permitted successors and
assigns.
"DAY" shall mean a calendar day.
"DAMAGES PAYMENT DATE" shall have the meaning set forth in Section
4(b) hereof.
"DELAY PERIOD" shall have the meaning set forth in Section 5 hereof.
"EFFECTIVENESS PERIOD" shall have the meaning set forth in Section
3(b) hereof.
"EFFECTIVENESS TARGET DATE" shall have the meaning set forth in
Section 4(a)(ii) hereof.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"EXCHANGE NOTES" shall have the meaning set forth in Section 2(a)
hereof.
"EXCHANGE OFFER" shall have the meaning set forth in Section 2(a)
hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall have the meaning set
forth in Section 2(a) hereof.
"HOLDER" shall mean any holder of a Registrable Note or Registrable
Notes.
"GUARANTORS" shall have the meaning set forth in the introductory
paragraph hereto and shall also include each Guarantor's permitted successors
and assigns.
"INDENTURE" shall mean the Indenture, dated as of February 11, 2005,
by and among the Issuers, the Guarantors and Wilmington Trust Company, as
trustee, pursuant to which the Notes are being issued, as amended or
supplemented from time to time in accordance with the terms thereof.
"INITIAL PURCHASERS" shall have the meaning set forth in the first
introductory paragraph hereof.
"INSPECTORS" shall have the meaning set forth in Section 5(n)
hereof.
"ISSUE DATE" shall mean February 11, 2005, the date of original
issuance of the Notes.
"ISSUERS" shall have the meaning set forth in the introductory
paragraph hereto and shall also include each Issuer's permitted successors and
assigns.
"LEGAL HOLIDAY" shall mean a Saturday, a Sunday or a day on which
banking institutions in New York, New York are required by law, regulation or
executive order to remain closed.
"LIQUIDATED DAMAGES" shall have the meaning set forth in Section
4(a) hereof.
"LOSSES" shall have the meaning set forth in Section 7(a) hereof.
"NASD" shall have the meaning set forth in Section 5(s) hereof.
"NOTES" shall have the meaning set forth in the second introductory
paragraph hereto.
"PARTICIPANT" shall have the meaning set forth in Section 7(a)
hereof.
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"PARTICIPATING BROKER-DEALER" shall have the meaning set forth in
Section 2(b) hereof.
"PERSON" shall mean an individual, corporation, partnership, joint
venture association, joint stock company, trust, unincorporated limited
liability company, government or any agency or political subdivision thereof or
any other entity.
"PRIVATE EXCHANGE" shall have the meaning set forth in Section 2(b)
hereof.
"PRIVATE EXCHANGE NOTES" shall have the meaning set forth in Section
2(b) hereof.
"PROSPECTUS" shall mean the prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act), as amended or supplemented by
any prospectus supplement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
"PURCHASE AGREEMENT" shall have the meaning set forth in the second
introductory paragraph hereof.
"RECORDS" shall have the meaning set forth in Section 5(n) hereof.
"REGISTRABLE NOTES" shall mean each Note upon its original issuance
and at all times subsequent thereto, each Exchange Note as to which Section
2(c)(iii) hereof is applicable upon original issuance and at all times
subsequent thereto and each Private Exchange Note upon original issuance thereof
and at all times subsequent thereto, in each case until (i) a Registration
Statement (other than, with respect to any Exchange Note as to which Section
2(c)(iii) hereof is applicable, the Exchange Offer Registration Statement)
covering such Note, Exchange Note or Private Exchange Note has been declared
effective by the Commission and such Note, Exchange Note or such Private
Exchange Note, as the case may be, has been disposed of in accordance with such
effective Registration Statement, (ii) such Note has been exchanged pursuant to
the Exchange Offer for an Exchange Note or Exchange Notes that may be resold
without restriction under state and federal securities laws (other than due
solely to the status of such holder as an affiliate of the Issuers or any
Guarantor within the meaning of the Securities Act), (iii) such Note, Exchange
Note or Private Exchange Note, as the case may be, ceases to be outstanding for
purposes of the Indenture or (iv) such Note, Exchange Note or Private Exchange
Note has been sold in compliance with Rule 144 or is salable pursuant to Rule
144(k).
"REGISTRATION DEFAULT" shall have the meaning set forth in Section
4(a) hereof.
"REGISTRATION STATEMENT" shall mean any appropriate registration
statement of the Issuers and the Guarantors covering any of the Registrable
Notes filed with the Commission under the Securities Act, and all amendments and
supplements to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
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"REQUESTING PARTICIPATING BROKER-DEALER" shall have the meaning set
forth in Section 2(b) hereof.
"RULE 144" shall mean Rule 144 promulgated under the Securities Act,
as such Rule may be amended from time to time, or any similar rule (other than
Rule 144A) or regulation hereafter adopted by the Commission providing for
offers and sales of securities made in compliance therewith resulting in offers
and sales by subsequent holders that are not affiliates of an issuer of such
securities being free of the registration and prospectus delivery requirements
of the Securities Act.
"RULE 144A" shall mean Rule 144A promulgated under the Securities
Act, as such Rule may be amended from time to time, or any similar rule (other
than Rule 144) or regulation hereafter adopted by the Commission.
"RULE 415" shall mean Rule 415 promulgated under the Securities Act,
as such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"SHELF FILING EVENT" shall have the meaning set forth in Section
2(c) hereof.
"SHELF REGISTRATION" shall have the meaning set forth in Section
3(a) hereof.
"SHELF REGISTRATION STATEMENT" shall mean a Registration Statement
filed in connection with a Shelf Registration.
"TIA" shall mean the Trust Indenture Act of 1939, as amended.
"TRUSTEE" shall mean the trustee under the Indenture and the trustee
(if any) under any indenture governing the Exchange Notes and Private Exchange
Notes.
"UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING" shall mean a
registration in which securities of the Issuers are sold to an underwriter for
reoffering to the public.
Section 2. Exchange Offer
(a) The Issuers and the Guarantors shall (i) file a Registration
Statement (the "Exchange Offer Registration Statement") within 90 days after the
Issue Date with the Commission on an appropriate registration form with respect
to a registered offer (the "Exchange Offer") to exchange any and all of the
Registrable Notes for a like aggregate principal amount of notes (the "Exchange
Notes") that are identical in all material respects to the Notes (except that
the Exchange Notes shall not contain terms with respect to transfer restrictions
or Liquidated Damages upon a Registration Default), (ii) use their reasonable
best efforts to cause the Exchange Offer Registration Statement to be declared
effective under the Securities Act within 180 days after the Issue Date and
(iii) use their reasonable best efforts to consummate the Exchange Offer within
240 days after the Issue Date. Upon the Exchange Offer Registration Statement
being declared effective by the Commission, the Issuers and the Guarantors will
offer
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the Exchange Notes in exchange for surrender of the Notes. The Issuers and the
Guarantors shall keep the Exchange Offer open for not less than 30 days (or
longer if required by applicable law) after the date notice of the Exchange
Offer is mailed to Holders.
Each Holder that participates in the Exchange Offer will be required
to represent to the Issuers and the Guarantors in writing that (i) any Exchange
Notes to be received by it will be acquired in the ordinary course of its
business, (ii) it has no arrangement or understanding with any Person to
participate in the distribution (within the meaning of the Securities Act) of
the Exchange Notes in violation of the provisions of the Securities Act or, if
it is an affiliate, it will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable, (iii) if such
Holder is not a broker-dealer, it is not engaged in, and does not intend to
engage in, a distribution of Exchange Notes, (iv) if such Holder is a
broker-dealer that will receive Exchange Notes for its own account in exchange
for Notes that were acquired as a result of market-making or other trading
activities, it will deliver a prospectus in connection with any resale of such
Exchange Notes and (v) such Holder has full power and authority to transfer the
Notes in exchange for the Exchange Notes and that the Issuers and Guarantors
will acquire good and unencumbered title thereto free and clear of any liens,
restrictions, charges or encumbrances and not subject to any adverse claims.
(b) The Issuers, the Guarantors and the Initial Purchasers
acknowledge that the staff of the Commission has taken the position that any
broker-dealer that elects to exchange Notes that were acquired by such
broker-dealer for its own account as a result of market-making or other trading
activities for Exchange Notes in the Exchange Offer (a "Participating
Broker-Dealer") may be deemed to be an "underwriter" within the meaning of the
Securities Act and must deliver a prospectus meeting the requirements of the
Securities Act in connection with any resale of such Exchange Notes (other than
a resale of an unsold allotment resulting from the original offering of the
Notes).
The Issuers, the Guarantors and the Initial Purchasers also
acknowledge that the staff of the Commission has taken the position that if the
Prospectus contained in the Exchange Offer Registration Statement includes a
plan of distribution containing a statement to the above effect and the means by
which Participating Broker-Dealers may resell the Exchange Notes, without naming
the Participating Broker-Dealers or specifying the amount of Exchange Notes
owned by them, such Prospectus may be delivered by Participating Broker-Dealers
to satisfy their prospectus delivery obligations under the Securities Act in
connection with resales of Exchange Notes for their own accounts, so long as the
Prospectus otherwise meets the requirements of the Securities Act.
In light of the foregoing, if requested by a Participating
Broker-Dealer (a "Requesting Participating Broker-Dealer"), the Issuers and
Guarantors agree to use their reasonable best efforts to keep the Exchange Offer
Registration Statement continuously effective for a period not to exceed 180
days after the date on which the Exchange Registration Statement is declared
effective, or such longer period if extended pursuant to the last paragraph of
Section 5 hereof (such period, the "Applicable Period"), or such earlier date as
all Requesting Participating Broker-Dealers shall have notified the Company in
writing that such Requesting Participating Broker-Dealers have resold all
Exchange Notes acquired in the Exchange Offer. The Issuers and Guarantors shall
include a plan of distribution in such Exchange Offer Registration Statement
that meets the requirements set forth in the preceding paragraph.
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If, prior to consummation of the Exchange Offer, the Initial
Purchasers or any Holder, as the case may be, holds any Notes acquired by it
that have, or that are reasonably likely to be determined to have, the status of
an unsold allotment in an initial distribution, or if any Holder is not entitled
to participate in the Exchange Offer, the Issuers and Guarantors upon the
request of the Initial Purchasers or any such Holder, as the case may be, shall
simultaneously with the delivery of the Exchange Notes in the Exchange Offer,
issue and deliver to the Initial Purchasers or any such Holder, as the case may
be, in exchange (the "Private Exchange") for such Notes held by the Initial
Purchasers or any such Holder, as the case may be, a like principal amount of
notes (the "Private Exchange Notes") of the Issuers and the Guarantors that are
identical in all material respects to the Exchange Notes except that the Private
Exchange Notes may be subject to restrictions on transfer and bear a legend to
such effect. The Private Exchange Notes shall be issued pursuant to the same
indenture as the Exchange Notes and bear the same CUSIP number as the Exchange
Notes.
For each Note surrendered in the Exchange Offer, the Holder will
receive an Exchange Note having a principal amount equal to that of the
surrendered Note. Interest on each Exchange Note and Private Exchange Note
issued pursuant to the Exchange Offer and in the Private Exchange will accrue
from the last interest payment date on which interest was paid on the Notes
surrendered in exchange therefor or, if no interest has been paid on the Notes,
from the Issue Date.
Upon consummation of the Exchange Offer in accordance with this
Section 2, the Issuers and Guarantors shall have no further registration
obligations other than the Issuers' and Guarantors' continuing registration
obligations with respect to (i) Private Exchange Notes, (ii) Exchange Notes held
by Participating Broker-Dealers and (iii) Notes or Exchange Notes as to which
clause (c)(iii) of this Section 2 applies.
In connection with the Exchange Offer, the Issuers and Guarantors
shall:
(1) mail or cause to be mailed to each Holder entitled to
participate in the Exchange Offer a copy of the Prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer
with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to
the close of business, New York time, on the last Business Day on which
the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable
laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer and the
Private Exchange, if any, the Issuers and Guarantors shall:
(1) accept for exchange all Notes validly tendered and not validly
withdrawn by the Holders pursuant to the Exchange Offer and the Private
Exchange, if any;
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(2) deliver or cause to be delivered to the Trustee for
cancellation all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each
such Holder of Notes, Exchange Notes or Private Exchange Notes, as the
case may be, equal in principal amount to the Registrable Notes of such
Holder so accepted for exchange.
The Exchange Offer and the Private Exchange shall not be subject to
any conditions, other than that (i) the Exchange Offer or Private Exchange, as
the case may be, does not violate applicable law or any applicable
interpretation of the staff of the Commission, (ii) no action or proceeding
shall have been instituted or threatened in any court or by any governmental
agency which might materially impair the ability of the Issuers or Guarantors to
proceed with the Exchange Offer or the Private Exchange, and no material adverse
development shall have occurred in any existing action or proceeding with
respect to the Issuers and the Guarantors and (iii) all governmental approvals
shall have been obtained, which approvals the Issuers deem necessary for the
consummation of the Exchange Offer or Private Exchange.
The Exchange Notes and the Private Exchange Notes shall be issued
under (i) the Indenture or (ii) an indenture identical in all material respects
to the Indenture (in either case, with such changes as are necessary to comply
with any requirements of the Commission to effect or maintain the qualification
thereof under the TIA) and which, in either case, has been qualified under the
TIA and shall provide that (a) the Exchange Notes shall not be subject to the
transfer restrictions set forth in the Indenture and (b) the Private Exchange
Notes shall be subject to the transfer restrictions set forth in the Indenture.
The Indenture or such indenture shall provide that the Exchange Notes, the
Private Exchange Notes and the Notes shall vote and consent together on all
matters as one class and that none of the Exchange Notes, the Private Exchange
Notes or the Notes will have the right to vote or consent as a separate class on
any matter.
(c) In the event that (i) any changes in law or the applicable
interpretations of the staff of the Commission do not permit the Issuers and the
Guarantors to effect the Exchange Offer, (ii) for any reason the Exchange Offer
is not consummated within 240 days after the Issue Date, (iii) any Holder, other
than the Initial Purchasers, is prohibited by law or the applicable
interpretations of the staff of the Commission from participating in the
Exchange Offer or does not receive Exchange Notes on the date of the exchange
that may be sold without restriction under state and federal securities laws
(other than due solely to the status of such holder as an affiliate of the
Issuers or any Guarantor within the meaning of the Securities Act) or (iv) an
Initial Purchaser so requests with respect to Notes or Private Exchange Notes
that have, or that are reasonably likely to be determined to have, the status of
unsold allotments in an initial distribution (each such event referred to in
clauses (i) through (iv) of this sentence, a "Shelf Filing Event"), then the
Issuers and Guarantors shall file a Shelf Registration pursuant to Section 3
hereof.
Section 3. Shelf Registration
If at any time a Shelf Filing Event shall occur, then:
(a) Shelf Registration. The Issuers and Guarantors shall file with
the Commission a Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415 covering all of the Registrable Notes not
exchanged in the Exchange Offer, Private Exchange Notes and Exchange
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Notes as to which Section 2(c)(iii) is applicable (the "Shelf Registration").
The Issuers and Guarantors shall use their reasonable best efforts to file with
the Commission the Shelf Registration as promptly as practicable. The Shelf
Registration shall be on Form S-1 or another appropriate form permitting
registration of such Registrable Notes for resale by Holders in the manner or
manners designated by them (including, without limitation, one or more
underwritten offerings). The Issuers and Guarantors shall not permit any
securities other than the Registrable Notes to be included in the Shelf
Registration.
(b) The Issuers and Guarantors shall use their reasonable best
efforts (x) to cause the Shelf Registration to be declared effective under the
Securities Act on or prior to the later of 180 calendar days after the Issue
Date or 90 days after the Shelf Registration is required to be filed with the
Commission and (y) to keep the Shelf Registration continuously effective under
the Securities Act for the period ending on the date which is two years from the
Issue Date, subject to extension pursuant to the penultimate paragraph of
Section 5 hereof (the "Effectiveness Period"), or such shorter period ending
when all Registrable Notes covered by the Shelf Registration have been sold in
the manner set forth and as contemplated in the Shelf Registration; provided,
however, that (i) the Effectiveness Period in respect of the Shelf Registration
shall be extended to the extent required to permit dealers to comply with the
applicable prospectus delivery requirements of Rule 174 under the Securities Act
and as otherwise provided herein and (ii) the Issuers may suspend the
effectiveness of the Shelf Registration Statement by written notice to the
Holders solely as a result of the filing of a post-effective amendment to the
Shelf Registration Statement to incorporate annual audited financial information
with respect to the Issuers where such post-effective amendment is not yet
effective and needs to be declared effective to permit Holders to use the
related Prospectus.
(c) Supplements and Amendments. The Issuers and the Guarantors
agree to supplement or make amendments to the Shelf Registration Statement as
and when required by the rules, regulations or instructions applicable to the
registration form used for such Shelf Registration Statement or by the
Securities Act or rules and regulations thereunder for shelf registration, or if
reasonably requested by the Holders of a majority in aggregate principal amount
of the Registrable Notes covered by such Registration Statement or by any
underwriter of such Registrable Notes.
Section 4. Liquidated Damages
(a) The Issuers, the Guarantors and the Initial Purchasers agree
that the Holders will suffer damages if the Issuers or Guarantors fail to
fulfill their obligations under Section 2 or Section 3 hereof and that it would
not be feasible to ascertain the extent of such damages with precision.
Accordingly, the Issuers and the Guarantors hereby jointly and severally agree
that if:
(i) the Exchange Offer Registration Statement is not filed with
the Commission on or prior to the 90th day following the Issue Date or, if
that day is not a Business Day, the next day that is a Business Day,
(ii) the Exchange Offer Registration Statement is not declared
effective on or prior to the 180th day following the Issue Date or, if
that day is not a Business Day, the next day that is a Business Day (such
date, the "Effectiveness Target Date"),
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(iii) the Exchange Offer is not consummated within 60 days after the
Effectiveness Target Date, or, if that day is not a Business Day, the next
day that is a Business Day; or
(iv) the Shelf Registration Statement is required to be filed but
is not declared effective by the later of 180 calendar days after the
Issue Date or 90 days after the Shelf Registration is required to be filed
with the Commission, or, if either such day is not a Business Day, the
next day that is a Business Day or is declared effective by such date but
thereafter ceases to be effective or usable, except if the Shelf
Registration ceases to be effective or usable as specifically permitted by
the penultimate paragraph of Section 5 hereof
(each such event referred to in clauses (i) through (iv) a "Registration
Default"), liquidated damages in the form of additional cash interest
("Liquidated Damages") will accrue on the affected Notes and the affected
Exchange Notes, as applicable. The rate of Liquidated Damages will be 0.25% per
annum for the first 90-day period immediately following the occurrence of a
Registration Default, increasing by an additional 0.25% per annum with respect
to each subsequent 90-day period up to a maximum amount of additional interest
of 1.0% per annum, from and including the date on which any such Registration
Default shall occur to, but excluding, the earlier of (1) the date on which all
Registration Defaults have been cured or (2) the date on which all the Notes and
Exchange Notes otherwise become freely transferable by Holders other than
affiliates of the Issuers and the Guarantors without further registration under
the Securities Act.
Notwithstanding the foregoing, (1) the amount of Liquidated Damages payable
shall not increase because more than one Registration Default has occurred and
is pending and (2) a Holder of Notes or Exchange Notes who is not entitled to
the benefits of the Shelf Registration Statement (i.e., such Holder has not
elected to include information) shall not be entitled to Liquidated Damages with
respect to a Registration Default that pertains to the Shelf Registration
Statement.
(b) So long as Notes remain outstanding, the Issuers shall notify
the Trustee within five Business Days after each and every date on which an
event occurs in respect of which Liquidated Damages is required to be paid. Any
amounts of Liquidated Damages due pursuant to clauses (a)(i), (a)(ii), (a)(iii)
or (a)(iv) of this Section 4 will be payable in cash semi-annually on each [ ]
and [ ] (each a "Damages Payment Date"), commencing with the first such date
occurring after any such Liquidated Damages commence to accrue, to Holders to
whom regular interest is payable on such Damages Payment Date with respect to
Notes that are Registrable Securities. The amount of Liquidated Damages for
Registrable Notes will be determined by multiplying the applicable rate of
Liquidated Damages by the aggregate principal amount of all such Registrable
Notes outstanding on the Damages Payment Date following such Registration
Default in the case of the first such payment of Liquidated Damages with respect
to a Registration Default (and thereafter at the next succeeding Damages Payment
Date until the cure of such Registration Default), multiplied by a fraction, the
numerator of which is the number of days such Liquidated Damages rate was
applicable during such period (determined on the basis of a 360-day year
comprised of twelve 30-day months and, in the case of a partial month, the
actual number of days elapsed), and the denominator of which is 360.
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Section 5. Registration Procedures
In connection with the filing of any Registration Statement pursuant
to Section 2 or 3 hereof, the Issuers and the Guarantors shall effect such
registrations to permit the sale of the securities covered thereby in accordance
with the intended method or methods of disposition thereof, and pursuant thereto
and in connection with any Registration Statement filed by the Issuers and
Guarantors hereunder, the Issuers and the Guarantors shall:
(a) Prepare and file with the Commission the Registration
Statement or Registration Statements prescribed by Section 2 or 3 hereof,
and use their reasonable best efforts to cause each such Registration
Statement to become effective and remain effective as provided herein;
provided, however, that if (1) such filing is pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period relating thereto, before
filing any Registration Statement or Prospectus or any amendments or
supplements thereto, the Issuers and the Guarantors shall furnish to and
afford the Holders of the Registrable Notes covered by such Registration
Statement or each such Participating Broker-Dealer, as the case may be,
its counsel (if such counsel is known to the Issuers) and the managing
underwriters, if any, a reasonable opportunity to review copies of all
such documents (including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be filed (in each
case at least five Business Days prior to such filing or such later date
as is reasonable under the circumstances). The Issuers and the Guarantors
shall not file any Registration Statement or Prospectus or any amendments
or supplements thereto if the Holders of a majority in aggregate principal
amount of the Registrable Notes covered by such Registration Statement, or
any such Participating Broker-Dealer, as the case may be, its counsel, or
the managing underwriters, if any, shall reasonably object on a timely
basis.
(b) Prepare and file with the Commission such amendments and
post-effective amendments to each Shelf Registration Statement or Exchange
Offer Registration Statement, as the case may be, as may be necessary to
keep such Registration Statement continuously effective for the
Effectiveness Period or the Applicable Period, as the case may be; cause
the related Prospectus to be supplemented by any Prospectus supplement
required by applicable law, and as so supplemented to be filed pursuant to
Rule 424 (or any similar provisions then in force) promulgated under the
Securities Act; and comply with the provisions of the Securities Act and
the Exchange Act applicable to it with respect to the disposition of all
securities covered by such Registration Statement as so amended or in such
Prospectus as so supplemented and with respect to the subsequent resale of
any securities being sold by a Participating Broker-Dealer covered by any
such Prospectus, in each case, in accordance with the intended methods of
distribution set forth in such Registration Statement or Prospectus, as so
amended.
(c) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period relating thereto from
whom the Issuers and
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Guarantors have received written notice that such Broker-Dealer will be a
Participating Broker-Dealer in the applicable Exchange Offer, notify the
selling Holders of Registrable Notes, or each such Participating
Broker-Dealer, as the case may be, their counsel and the managing
underwriters, if any, as promptly as possible, and, if requested by any
such Person, confirm such notice in writing, (i) when a Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and,
with respect to a Registration Statement or any post-effective amendment,
when the same has become effective under the Securities Act (including in
such notice a written statement that any Holder may, upon request, obtain,
at the sole expense of the Issuers, one conformed copy of such
Registration Statement or post-effective amendment including financial
statements and schedules, documents incorporated or deemed to be
incorporated by reference and exhibits), (ii) of the issuance by the
Commission of any stop order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the use of
any preliminary prospectus or the initiation of any proceedings for that
purpose, (iii) if at any time when a Prospectus is required by the
Securities Act to be delivered in connection with sales of the Registrable
Notes or resales of Exchange Notes by Participating Broker-Dealers the
representations and warranties of the Issuers and Guarantors contained in
any agreement (including any underwriting agreement) contemplated by
Section 5(m)(i) hereof cease to be true and correct in all material
respects, (iv) of the receipt by the Issuers or any Guarantor of any
notification with respect to the suspension of the qualification or
exemption from qualification of a Registration Statement or any of the
Registrable Notes or the Exchange Notes for offer or sale in any
jurisdiction, or the initiation or threatening of any proceeding for such
purpose, (v) of the happening of any event, the existence of any condition
or any information becoming known to the Issuers or Guarantors that makes
any statement made in such Registration Statement or related Prospectus or
any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires the making of
any changes in or amendments or supplements to such Registration
Statement, Prospectus or documents so that, in the case of the
Registration Statement, it will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and
that in the case of the Prospectus, it will not contain any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, and
(vi) of the Issuers' determination that a post-effective amendment to a
Registration Statement would be appropriate.
(d) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, use their reasonable
best efforts to prevent the issuance of any order suspending the
effectiveness of a Registration Statement or of any order preventing or
suspending the use of a Prospectus or suspending the qualification (or
exemption from qualification) of any of the Registrable Notes or the
Exchange Notes, as the case may be, for sale in any jurisdiction, and, if
any such order is issued, to use their reasonable best efforts to obtain
the withdrawal of any such order at the earliest practicable moment.
(e) If (1) a Shelf Registration is filed pursuant to Section 3
hereof or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is re-
11
quired to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period and if reasonably requested by the managing underwriter or
underwriters (if any), the Holders of a majority in aggregate principal
amount of the Registrable Notes covered by such Registration Statement or
any Participating Broker-Dealer, as the case may be, (i) promptly
incorporate in such Registration Statement or Prospectus a prospectus
supplement or post-effective amendment such information as the managing
underwriter or underwriters (if any), such Holders or any Participating
Broker-Dealer, as the case may be (based upon advice of counsel),
determine is reasonably necessary to be included therein and (ii) make all
required filings of such prospectus supplement or such post-effective
amendment as soon as practicable after the Issuers have received
notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment; provided, however, that the
Issuers shall not be required to take any action hereunder that would, in
the written opinion of counsel to the Issuers, violate applicable laws.
(f) If (1) a Shelf Registration is filed pursuant to Section 3
hereof or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, furnish to each selling
Holder of Registrable Notes or each such Participating Broker-Dealer, as
the case may be, who so requests, its counsel and each managing
underwriter, if any, at the sole expense of the Issuers, one conformed
copy of the Registration Statement or Registration Statements and each
post-effective amendment thereto, including financial statements and
schedules, and, if requested, all documents incorporated or deemed to be
incorporated therein by reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, deliver to each selling
Holder of Registrable Notes or each such Participating Broker-Dealer, as
the case may be, its respective counsel, and the underwriters, if any, at
the sole expense of the Issuers, as many copies of the Prospectus or
Prospectuses (including each form of preliminary prospectus) and each
amendment or supplement thereto and any documents incorporated by
reference therein as such Persons may reasonably request; and, subject to
the last paragraph of this Section 5, the Issuers and Guarantors hereby
consent to the use of such Prospectus and each amendment or supplement
thereto by each of the selling Holders of Registrable Notes or each such
Participating Broker-Dealer, as the case may be, and the underwriters or
agents, if any, and dealers (if any), in connection with the offering and
sale of the Registrable Notes covered by, or the sale by Participating
Broker-Dealers of the Exchange Notes pursuant to, such Prospectus and any
amendment or supplement thereto.
(h) Prior to any public offering of Registrable Notes or Exchange
Notes or any delivery of a Prospectus contained in the Exchange Offer
Registration Statement by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, use their reasonable
best efforts to register or qualify, and to cooperate with the selling
Holders of Registrable Notes or each such Participating Broker-Dealer, as
the case may be, the managing underwriter or underwriters, if any, and its
respective counsel in connection with the registration or qualification
12
(or exemption from such registration or qualification) of such Registrable
Notes or Exchange Notes, as the case may be, for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States
as any selling Holder, Participating Broker-Dealer, or the managing
underwriter or underwriters reasonably request; provided, however, that
where Exchange Notes or Registrable Notes are offered other than through
an underwritten offering, the Issuers agree to use their reasonable best
efforts to cause the Issuers' counsel to perform Blue Sky investigations
and file registrations and qualifications required to be filed pursuant to
this Section 5(h); keep each such registration or qualification (or
exemption therefrom) effective during the period such Registration
Statement is required to be kept effective and do any and all other acts
or things reasonably necessary or advisable to enable the disposition in
such jurisdictions of such Exchange Notes or Registrable Notes covered by
the applicable Registration Statement; provided, however, that the Issuers
shall not be required to (A) qualify generally to do business in any
jurisdiction where they are not then so qualified, (B) take any action
that would subject them to general service of process in any such
jurisdiction where they are not then so subject or (C) subject themselves
to taxation in excess of a nominal dollar amount in any such jurisdiction
where they are not then so subject.
(i) If a Shelf Registration is filed pursuant to Section 3 hereof,
cooperate with the selling Holders of Registrable Notes and the managing
underwriter or underwriters, if any, to facilitate the timely preparation
and delivery of certificates representing Registrable Notes to be sold,
which certificates shall not bear any restrictive legends and shall be in
a form eligible for deposit with The Depository Trust Company and enable
such Registrable Notes to be in such denominations and registered in such
names as the managing underwriter or underwriters, if any, or selling
Holders may request at least five Business Days prior to any sale of such
Registrable Notes or Exchange Notes.
(j) Use their reasonable best efforts to cause the Registrable
Notes or Exchange Notes covered by any Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be reasonably necessary to enable the seller or sellers
thereof or the underwriter or underwriters, if any, to consummate the
disposition of such Registrable Notes or Exchange Notes, except as may be
required solely as a consequence of the nature of such selling Holder's
business, in which case the Issuers and the Guarantors will cooperate in
all reasonable respects with the filing of such Registration Statement and
the granting of such approvals.
(k) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, upon the occurrence of
any event contemplated by Section 5(c)(v) or 5(c)(vi) hereof, as promptly
as practicable prepare and (subject to Section 5(a) and the penultimate
paragraph of this Section 5) file with the Commission, at the sole expense
of the Issuers, a supplement or post-effective amendment to the
Registration Statement or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by reference,
or file any other required document so that, as thereafter delivered to
the purchasers of the Registrable Notes being sold thereunder or to the
purchasers of the
13
Exchange Notes to whom such Prospectus will be delivered by a
Participating Broker-Dealer, any such Prospectus will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
(l) Prior to the effective date of the first Registration
Statement relating to the Registrable Notes, (i) provide the Trustee with
certificates for the Registrable Notes in a form eligible for deposit with
The Depository Trust Company and (ii) provide a CUSIP number for the
Registrable Notes.
(m) In connection with any underwritten offering of Registrable
Notes pursuant to a Shelf Registration, enter into an underwriting
agreement as is customary in underwritten offerings of debt securities
similar to the Notes and take all such other actions as are reasonably
requested by the managing underwriter or underwriters in order to expedite
or facilitate the registration or the disposition of such Registrable
Notes and, in such connection, (i) make such representations and
warranties to, and covenants with, the underwriters with respect to the
business of the Issuers, the Guarantors and their respective subsidiaries,
as then conducted (including any acquired business, properties or entity,
if applicable), and the Registration Statement, Prospectus and documents,
if any, incorporated or deemed to be incorporated by reference therein, in
each case, as are customarily made by issuers to underwriters in
underwritten offerings of debt securities similar to the Notes, and
confirm the same in writing if and when requested; (ii) use their
reasonable best efforts to obtain the written opinions of counsel to the
Issuers and Guarantors and written updates thereof in form, scope and
substance reasonably satisfactory to the managing underwriter or
underwriters, addressed to the underwriters covering the matters
customarily covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by the managing
underwriter or underwriters; (iii) use their reasonable best efforts to
obtain "cold comfort" letters and updates thereof in form, scope and
substance reasonably satisfactory to the managing underwriter or
underwriters from the independent certified public accountants of the
Issuers and Guarantors (and, if necessary, any other independent certified
public accountants of any subsidiary of the Issuers or Guarantors or of
any business acquired by the Issuers or Guarantors for which financial
statements and financial data are, or are required to be, included or
incorporated by reference in the Registration Statement), addressed to
each of the underwriters, such letters to be in customary form and
covering matters of the type customarily covered in "cold comfort" letters
in connection with underwritten offerings; and (iv) if an underwriting
agreement is entered into, the same shall contain indemnification
provisions and procedures no less favorable than those set forth in
Section 7 hereof (or such other provisions and procedures acceptable to
Holders of a majority in aggregate principal amount of Registrable Notes
covered by such Registration Statement and the managing underwriter or
underwriters or agents) with respect to all parties to be indemnified
pursuant to said Section; provided that the Issuers and Guarantors shall
not be required to provide indemnification to any underwriter --------
selected in accordance with the provisions of Section 9 hereof with
respect to information relating to such underwriter furnished in writing
to the Issuers by or on behalf of such underwriter expressly for inclusion
in such Registration Statement. The above shall be done at each closing
under such underwriting agreement, or as and to the extent required
thereunder.
14
(n) If (1) a Shelf Registration is filed pursuant to Section 3
hereof or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, make available for
inspection by any selling Holder of such Registrable Notes being sold or
each such Participating Broker-Dealer, as the case may be, any underwriter
participating in any such disposition of Registrable Notes, if any, and
any attorney, accountant or other agent retained by any such selling
Holder or each such Participating Broker-Dealer, as the case may be, or
underwriter (collectively, the "Inspectors"), at the offices where
normally kept, during reasonable business hours, all financial and other
records, pertinent corporate documents and instruments of the Issuers, the
Guarantors and their respective subsidiaries (collectively, the "Records")
as shall be reasonably necessary to enable them to exercise any applicable
due diligence responsibilities, and cause the officers, directors and
employees of the Issuers, the Guarantors and their respective subsidiaries
to supply all information reasonably requested by any such Inspector in
connection with such Registration Statement and Prospectus. Each Inspector
shall agree in writing that it will keep the Records confidential and that
it will not disclose, or use in connection with any market transactions in
violation of any applicable securities laws, any Records that the Issuers
determine, in good faith, to be confidential and that they notify the
Inspectors in writing are confidential unless (i) the disclosure of such
Records is necessary to avoid or correct a misstatement or omission in
such Registration Statement or Prospectus, (ii) the release of such
Records is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction, (iii) disclosure of such information is necessary
or advisable in the opinion of counsel for an Inspector in connection with
any action, claim, suit or proceeding, directly or indirectly, involving
or potentially involving such Inspector and arising out of, based upon,
relating to, or involving this Agreement or the Purchase Agreement, or any
transactions contemplated hereby or thereby or arising hereunder or
thereunder, or (iv) the information in such Records has been made
generally available to the public; provided, however, that (i) each
Inspector shall agree to use reasonable best efforts to provide notice to
the Issuers of the potential disclosure of any information by such
Inspector pursuant to clause (i), (ii) or (iii) of this sentence to permit
the Issuers to obtain a protective order (or waive the provisions of this
paragraph (n)) and (ii) each such Inspector shall take such actions as are
reasonably necessary to protect the confidentiality of such information
(if practicable) to the extent such action is otherwise not inconsistent
with, an impairment of or in derogation of the rights and interests of the
Holder or any Inspector.
(o) Provide an indenture trustee for the Registrable Notes or the
Exchange Notes, as the case may be, and cause the Indenture or the trust
indenture provided for in Section 2(a) hereof to be qualified under the
TIA not later than the effective date of the Exchange Offer or the first
Registration Statement relating to the Registrable Notes; and in
connection therewith, cooperate with the trustee under any such indenture
and the Holders of the Registrable Notes or Exchange Notes, as applicable,
to effect such changes to such indenture as may be required for such
indenture to be so qualified in accordance with the terms of the TIA; and
execute, and use their reasonable best efforts to cause such trustee to
execute, all documents as may be required to effect such changes, and all
other forms and documents required to be filed with the Commission to
enable such indenture to be so qualified in a timely manner.
15
(p) Comply with all applicable rules and regulations of the
Commission and make generally available to the Issuers' and the
Guarantors' securityholders earnings statements satisfying the provisions
of Section 11(a) of the Securities Act and Rule 158 thereunder (or any
similar rule promulgated under the Securities Act) no later than 45 days
after the end of any 12-month period (or 90 days after the end of any
12-month period if such period is a fiscal year) (i) commencing at the end
of any fiscal quarter in which Registrable Notes or Exchange Notes are
sold to underwriters in a firm commitment or best efforts underwritten
offering and (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Issuers and
the Guarantors after the effective date of a Registration Statement, which
statements shall cover said 12-month periods consistent with the
requirements of Rule 158.
(q) Upon the request of a Holder, upon consummation of the
Exchange Offer or a Private Exchange, use their reasonable best efforts to
obtain an opinion of counsel to the Issuers and Guarantors, in a form
customary for underwritten transactions, addressed to the Trustee for the
benefit of all Holders of Registrable Notes participating in the Exchange
Offer or the Private Exchange, as the case may be, that the Exchange Notes
or Private Exchange Notes, as the case may be, and the related indenture
constitute legal, valid and binding obligations of the Issuers and the
Guarantors, enforceable against the Issuers and the Guarantors in
accordance with its respective terms, subject to customary exceptions and
qualifications.
(r) If the Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Notes by Holders to the
Issuers (or to such other Person as directed by the Issuers) in exchange
for the Exchange Notes or the Private Exchange Notes, as the case may be,
xxxx, or cause to be marked, on such Registrable Notes that such
Registrable Notes are being cancelled in exchange for the Exchange Notes
or the Private Exchange Notes, as the case may be; provided that in no
event shall such Registrable Notes be marked as paid or otherwise
satisfied.
(s) Cooperate with each seller of Registrable Notes covered by any
Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Notes and their respective counsel in
connection with any filings required to be made with the National
Association of Securities Dealers, Inc. (the "NASD").
(t) Use their reasonable best efforts to take all other steps
reasonably necessary or advisable to effect the registration of the
Exchange Notes and/or Registrable Notes covered by a Registration
Statement contemplated hereby.
The Issuers may require each seller of Registrable Notes or Exchange
Notes as to which any registration is being effected to furnish to the Issuers
such information regarding such seller and the distribution of such Registrable
Notes or Exchange Notes as the Issuers may, from time to time, reasonably
request. The Issuers may exclude from such registration the Registrable Notes of
any seller so long as such seller fails to furnish such information within a
reasonable time after receiving such request and in the event of such an
exclusion, the Issuers shall have no further obligation under this Agreement
(including, without limitation, the obligations under Section 4) with respect to
such seller of such Registrable Notes. Each seller as to which any Shelf
Registration is being effected agrees to furnish promptly to the
16
Issuers all information required to be disclosed in order to make any
information previously furnished to the Issuers by such seller not materially
misleading.
If any such Registration Statement refers to any Holder by name or
otherwise as the holder of any securities of the Issuers or any Guarantor, then
such Holder shall have the right to require (i) the insertion therein of
language, in form and substance reasonably satisfactory to such Holder, to the
effect that the holding by such Holder of such securities is not to be construed
as a recommendation by such Holder of the investment quality of the securities
covered thereby and that such holding does not imply that such Holder will
assist in meeting any future financial requirements of the Issuers or the
Guarantors, or (ii) in the event that such reference to such Holder by name or
otherwise is not required by the Securities Act or any similar federal statute
then in force, the deletion of the reference to such Holder in any amendment or
supplement to the applicable Registration Statement filed or prepared subsequent
to the time that such reference ceases to be required.
Each Holder of Registrable Notes and each Participating
Broker-Dealer agrees by acquisition of such Registrable Notes or Exchange Notes
that, upon actual receipt of any notice from the Issuers (x) of the happening of
any event of the kind described in Section 5(c)(ii), 5(c)(iii), 5(c)(iv), or
5(c)(v) hereof, or (y) that the Board of Managers of the Company (the "Board of
Managers") at the direction of the board of directors of American Commercial
Lines Inc., has resolved that the Issuers have a bona fide business purpose for
doing so, then the Issuers may delay the filing or the effectiveness of the
Exchange Offer Registration Statement or the Shelf Registration Statement (if
not then filed or effective, as applicable) and shall not be required to
maintain the effectiveness thereof or amend or supplement the Exchange Offer
Registration Statement or the Shelf Registration, in all cases, for a period (a
"Delay Period") expiring upon the earlier to occur of (i) in the case of the
immediately preceding clause (x), such Holder's or Participating Broker-Dealer's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 5(k) hereof or until it is advised in writing (the "Advice") by the
Issuers that the use of the applicable Prospectus may be resumed, and has
received copies of any amendments or supplements thereto or (ii) in the case of
the immediately preceding clause (y), the date which is the earlier of (A) the
date on which such business purpose ceases to interfere with the Issuers'
obligations to file or maintain the effectiveness of any such Registration
Statement pursuant to this Agreement or (B) 60 days after the Issuers notify the
Holders of such good faith determination. There shall not be more than 60 days
of Delay Periods during any 12-month period. Each of the Effectiveness Period
and the Applicable Period, if applicable, shall be extended by the number of
days during any Delay Period. Any Delay Period will not alter the obligations of
the Issuers to pay Liquidated Damages under the circumstances set forth in
Section 4 hereof.
In the event of any Delay Period pursuant to clause (y) of the
preceding paragraph, notice shall be given as soon as practicable after the
Board of Managers makes such a determination of the need for a Delay Period and
shall state, to the extent practicable, an estimate of the duration of such
Delay Period and shall advise the recipient thereof of the agreement of such
Holder provided in the next succeeding sentence. Each Holder, by his acceptance
of any Registrable Note, agrees that during any Delay Period, each Holder will
discontinue disposition of such Notes or Exchange Notes covered by such
Registration Statement or Prospectus or Exchange Notes to be sold by such Holder
or Participating Broker-Dealer, as the case may be.
17
Section 6. Registration Expenses
All fees and expenses incident to the performance of or compliance
with this Agreement by the Issuers and the Guarantors (other than any
underwriting discounts or commissions) shall be borne by the Issuers, whether or
not the Exchange Offer Registration Statement or the Shelf Registration is filed
or becomes effective or the Exchange Offer is consummated, including, without
limitation, (i) all registration and filing fees (including, without limitation,
(A) fees with respect to filings required to be made with the NASD in connection
with an underwritten offering and (B) fees and expenses of compliance with state
securities or Blue Sky laws (including, without limitation, reasonable fees and
disbursements of counsel in connection with Blue Sky qualifications of the
Registrable Notes or Exchange Notes and determination of the eligibility of the
Registrable Notes or Exchange Notes for investment under the laws of such
jurisdictions (x) where the holders of Registrable Notes are located, in the
case of an Exchange Offer, or (y) as provided in Section 5(h) hereof, in the
case of a Shelf Registration or in the case of Exchange Notes to be sold by a
Participating Broker-Dealer during the Applicable Period)), (ii) printing
expenses, including, without limitation, expenses of printing certificates for
Registrable Notes or Exchange Notes in a form eligible for deposit with The
Depository Trust Company and of printing prospectuses if the printing of
prospectuses is requested by the managing underwriter or underwriters, if any,
or by the Holders of a majority in aggregate principal amount of the Registrable
Notes included in any Registration Statement or in respect of Exchange Notes to
be sold by any Participating Broker-Dealer during the Applicable Period, as the
case may be, (iii) messenger, telephone and delivery expenses, (iv) fees and
disbursements of counsel for the Issuers and Guarantors and reasonable fees and
disbursements of one special counsel for all of the sellers of Registrable Notes
(exclusive of any counsel retained pursuant to Section 7 hereof), (v) fees and
disbursements of all independent certified public accountants referred to in
Section 5(m)(iii) hereof (including, without limitation, the expenses of any
special audit and "cold comfort" letters required by or incident to such
performance), (vi) Securities Act liability insurance, if the Issuers desire
such insurance, (vii) fees and expenses of all other Persons retained by the
Issuers or Guarantors, (viii) internal expenses of the Issuers and Guarantors
(including, without limitation, all salaries and expenses of officers and
employees of the Issuers and Guarantors performing legal or accounting duties),
(ix) the expense of any annual audit, (x) the fees and expenses incurred in
connection with the listing of the securities to be registered on any securities
exchange, and the obtaining of a rating of the securities, in each case, if
applicable, and (xi) the expenses relating to printing, word processing and
distributing all Registration Statements, underwriting agreements, indentures
and any other documents necessary in order to comply with this Agreement.
Notwithstanding the foregoing or anything to the contrary, each Holder shall pay
all underwriting discounts and commissions of any underwriters with respect to
any Registrable Notes sold by or on behalf of it.
Section 7. Indemnification
(a) Each of the Issuers and Guarantors agree, jointly and
severally, to indemnify and hold harmless each Holder of Registrable Notes and
each Participating Broker-Dealer selling Exchange Notes during the Applicable
Period, each Person, if any, who controls any such Person within the meaning of
Section 15 of the Securities Act or Section 20(a) of the Exchange Act, the
agents, employees, officers and directors of each Holder and each such
Participating Broker-Dealer and the agents, employees, officers and directors of
any such controlling Person (each, a "Participant") from and against any and all
losses, liabilities, claims, damages and expenses (including, but not limited
to, reasonable attorneys' fees
18
and any and all reasonable out-of-pocket expenses actually incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all reasonable amounts paid in
settlement of any claim or litigation (in the manner set forth in clause (c)
below)) (collectively, "Losses") to which they or any of them may become subject
under the Securities Act, the Exchange Act or otherwise insofar as such Losses
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment thereto) or Prospectus (as amended or
supplemented if the Issuers shall have furnished any amendments or supplements
thereto) or any preliminary prospectus, or caused by, arising out of or based
upon any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in the case of
the Prospectus, in the light of the circumstances under which they were made,
not misleading, provided that (i) the foregoing indemnity shall not be available
to any Participant insofar as such Losses are caused by any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with information relating to such Participant furnished to the
Issuers in writing by or on behalf of such Participant expressly for use
therein, and (ii) that the foregoing indemnity with respect to any preliminary
prospectus shall not inure to the benefit of any Participant from whom the
Person asserting such Losses purchased Registrable Notes if (x) it is
established in the related proceeding that such Participant failed to send or
give a copy of the Prospectus (as amended or supplemented if such amendment or
supplement was furnished to such Participant prior to the written confirmation
of such sale) to such Person with or prior to the written confirmation of such
sale, if required by applicable law, and (y) the untrue statement or omission or
alleged untrue statement or omission was completely corrected in the Prospectus
(as amended or supplemented if amended or supplemented as aforesaid) and such
Prospectus does not contain any other untrue statement or omission or alleged
untrue statement or omission that was the subject matter of the related
proceeding. This indemnity agreement will be in addition to any liability that
the Issuers and the Guarantors may otherwise have, including, but not limited
to, liability under this Agreement.
(b) Each Participant agrees, severally and not jointly, to
indemnify and hold harmless the Issuers and the Guarantors, each Person, if any,
who controls an Issuer or a Guarantor within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act, and each of their agents,
employees, officers and directors and the agents, employees, officers and
directors of any such controlling Person from and against any Losses to which
they or any of them may become subject under the Securities Act, the Exchange
Act or otherwise insofar as such Losses (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement (or any amendment thereto)
or Prospectus (as amended or supplemented if the Issuers shall have furnished
any amendments or supplements thereto) or any preliminary prospectus, or caused
by, arising out of or based upon any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in the case of the Prospectus, in the light of the
circumstances under which they were made, not misleading, in each case to the
extent, but only to the extent, that any such Loss arises out of or is based
upon any untrue statement or alleged untrue statement or omission or alleged
omission made in reliance upon and in conformity with information relating to
such Participant furnished in writing to the Issuers by or on behalf of such
Participant expressly for use therein.
(c) Promptly after receipt by an indemnified party under
subsection 7(a) or 7(b) above of notice of the commencement of any action, suit
or proceeding (collectively, an "action"), such indem-
19
nified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the commencement of such action
(but the failure so to notify an indemnifying party shall not relieve such
indemnifying party from any liability that it may have under this Section 7
except to the extent that it has been prejudiced in any material respect by such
failure). In case any such action is brought against any indemnified party, and
it notifies an indemnifying party of the commencement of such action, the
indemnifying party will be entitled to participate in such action, and to the
extent it may elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party, to
assume the defense of such action with counsel satisfactory to such indemnified
party. Notwithstanding the foregoing, the indemnified party or parties shall
have the right to employ its or their own counsel in any such action, but the
reasonable fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless (i) the employment of such counsel shall
have been authorized in writing by the indemnifying parties in connection with
the defense of such action, (ii) the indemnifying parties shall not have
employed counsel to take charge of the defense of such action within a
reasonable time after notice of commencement of the action, or (iii) the named
parties to such action (including any impleaded parties) include such
indemnified party and the indemnifying party or parties (or such indemnifying
parties have assumed the defense of such action), and such indemnified party or
parties shall have reasonably concluded, that there may be defenses available to
it or them that are different from or additional to those available to one or
all of the indemnifying parties (in which case the indemnifying parties shall
not have the right to direct the defense of such action on behalf of the
indemnified party or parties), in any of which events such reasonable fees and
expenses of counsel shall be borne by the indemnifying parties. In no event
shall the indemnifying party be liable for the fees and expenses of more than
one counsel (together with appropriate local counsel) at any time for all
indemnified parties in connection with any one action or separate but
substantially similar or related actions arising in the same jurisdiction out of
the same general allegations or circumstances. Any such separate firm for the
Participants shall be designated in writing by Participants who sold a majority
in interest of Registrable Notes sold by all such Participants and shall be
reasonably acceptable to the Issuers and any such separate firm for the Issuers,
its affiliates, officers, directors, representatives, employees and agents and
such control Person of the Issuers shall be designated in writing by the Issuers
and shall be reasonable acceptable to the Holders. An indemnifying party shall
not be liable for any settlement of any claim or action effected without its
written consent, which consent may not be unreasonably withheld. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) In order to provide for contribution in circumstances in which
the indemnification provided for in this Section 7 is for any reason held to be
unavailable from the indemnifying party, or is insufficient to hold harmless a
party indemnified under this Section 7, each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of such
aggregate Losses (i) in such proportion as is appropriate to reflect the
relative benefits received by each indemnifying party, on the one hand, and each
indemnified party, on the other hand, from the sale of the Notes to the Initial
Purchasers or the resale of the Registrable Notes by such Holder, as applicable,
or (ii) if such allocation is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of each indemnified party, on
the one hand, and
20
each indemnifying party, on the other hand, in connection with the statements or
omissions that resulted in such Losses, as well as any other relevant equitable
considerations. The relative benefits received by the Issuers and the
Guarantors, on the one hand, and each Participant, on the other hand, shall be
deemed to be in the same proportion as (x) the total proceeds from the sale of
the Notes to the Initial Purchasers (net of discounts and commissions but before
deducting expenses) received by the Issuers and the Guarantors are to (y) the
total net profit received by such Participant in connection with the sale of the
Registrable Notes. The relative fault of the parties shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Issuers and Guarantors or such
Participant and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission or alleged
statement or omission.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
or by any other method of allocation that does not take into account the
equitable considerations referred to above. Notwithstanding the provisions of
this Section 7, (i) in no case shall any Participant be required to contribute
any amount in excess of the amount by which the net profit received by such
Participant in connection with the sale of the Registrable Notes exceeds the
amount of any damages that such Participant has otherwise been required to pay
by reason of any untrue or alleged untrue statement or omission or alleged
omission and (ii) no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action against such party in respect of
which a claim for contribution may be made against another party or parties
under this Section 7, notify such party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any obligation it
or they may have under this Section 7 or otherwise, except to the extent that it
has been prejudiced in any material respect by such failure; provided, however,
that no additional notice shall be required with respect to any action for which
notice has been given under this Section 7 for purposes of indemnification.
Anything in this section to the contrary notwithstanding, no party shall be
liable for contribution with respect to any action or claim settled without its
written consent, provided, however, that such written consent was not
unreasonably withheld.
Section 8. Rules 144 and 144A
The Issuers and Guarantors covenant that they will file the reports
required, if any, to be filed by them under the Securities Act and the Exchange
Act and the rules and regulations adopted by the Commission thereunder in a
timely manner in accordance with the requirements of the Securities Act and the
Exchange Act and, if at any time the Issuers are not required to file such
reports, they will, upon the request of any Holder or beneficial owner of
Registrable Notes, make available such information necessary to permit sales
pursuant to Rule 144A under the Securities Act. The Issuers and Guarantors
further covenant that for so long as any Registrable Notes remain outstanding
they will take such further action as any Holder of Registrable Notes may
reasonably request from time to time to enable such Holder to sell Registrable
Notes without registration under the Securities Act within the limitation of the
exemptions provided by (a) Rule 144(k) and Rule 144A under the Securities Act,
as such Rules may be amended from time to time, or (b) any similar rule or
regulation hereafter adopted by the Commission.
21
Section 9. Underwritten Registrations
If any of the Registrable Notes covered by any Shelf Registration
are to be sold in an underwritten offering, the investment banker or investment
bankers and manager or managers that will manage the offering will be selected
by the Holders of a majority in aggregate principal amount of such Registrable
Notes included in such offering and shall be reasonably acceptable to the
Issuers.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder if such Holder does not (a) agree to sell such Holder's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
complete and execute all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
Section 10. Miscellaneous
(a) No Inconsistent Agreements. The Issuers and the Guarantors
have not, as of the date hereof, and shall not have, after the date of this
Agreement, entered into any agreement with respect to any of their securities
that is inconsistent with the rights granted to the Holders of Registrable Notes
in this Agreement or otherwise conflicts with the provisions hereof. The rights
granted to the Holders hereunder do not conflict with and are not inconsistent
with, in any material respect, the rights granted to the holders of any of the
Issuers' and the Guarantors' other issued and outstanding securities under any
such agreements. The Issuers and the Guarantors have not entered and will not
enter into any agreement with respect to any of their securities which will
grant to any Person piggy-back registration rights with respect to any
Registration Statement.
(b) Adjustments Affecting Registrable Notes. The Issuers and the
Guarantors shall not, directly or indirectly, take any action with respect to
the Registrable Notes as a class that would adversely affect the ability of the
Holders of Registrable Notes to include such Registrable Notes in a registration
undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement may
not be amended, modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given except pursuant to a written
agreement duly signed and delivered by (I) the Issuers and the Guarantors and
(II)(A) the Holders of not less than a majority in aggregate principal amount of
the then outstanding Registrable Notes and (B) in circumstances that would
adversely affect the Participating Broker-Dealers, the Participating
Broker-Dealers holding not less than a majority in aggregate principal amount of
the Exchange Notes held by all Participating Broker-Dealers; provided, however,
that Section 7 and this Section 10(c) may not be amended, modified or
supplemented except pursuant to a written agreement duly signed and delivered by
the Issuers and the Guarantors and each Holder and each Participating
Broker-Dealer (including any Person who was a Holder or Participating
Broker-Dealer of Registrable Notes or Exchange Notes, as the case may be,
disposed of pursuant to any Registration Statement) affected by any such
amendment, modification, supplement or waiver. Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect to a matter
that relates exclusively to the rights of Holders of Registrable Notes whose
securities are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect, impair, limit or compromise the rights of other
22
Holders of Registrable Notes may be given by Holders of at least a majority in
aggregate principal amount of the Registrable Notes being sold pursuant to such
Registration Statement.
(d) Notices. All notices and other communications (including,
without limitation, any notices or other communications to the Trustee) provided
for or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or telecopier:
(i) if to a Holder of the Registrable Notes or any Participating
Broker-Dealer, at the most current address of such Holder or Participating
Broker-Dealer, as the case may be, set forth on the records of the
registrar under the Indenture.
(ii) if to the Issuers and Guarantors, at the address as follows:
c/o American Commercial Lines LLC
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Senior Vice President, Law and Administration
With a copy to
Xxxxx & Xxxxxxx
000 X. Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
(iii) if to the Initial Purchasers, at the address as follows:
UBS Securities LLC
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: High Yield Syndicate Department
With a copy at such address to the attention of Legal and
Compliance Department, fax number (000) 000-0000
And a further copy to
Xxxxxx & Xxxxxxx LLP
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx, Esq.
23
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; when receipt is
acknowledged by the recipient's telecopier machine, if telecopied; and on the
next Business Day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address and in the manner specified in such Indenture.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
hereto, the Holders and the Participating Broker-Dealers; provided, however,
that this Agreement shall not inure to the benefit of or be binding upon a
successor or assign of a Holder unless and to the extent such successor or
assign holds Registrable Notes.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK.
(i) Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(j) Securities Held by the Issuers, the Guarantors or their
Respective Affiliates. Whenever the consent or approval of Holders of a
specified percentage of Registrable Notes is required hereunder, Registrable
Notes held by the Issuers, the Guarantors or any of their respective affiliates
(as such term is defined in Rule 405 under the Securities Act) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage.
(k) Third-Party Beneficiaries. Holders and beneficial owners of
Registrable Notes and Participating Broker-Dealers are intended third-party
beneficiaries of this Agreement, and this Agreement may be enforced by such
Persons. No other Person is intended to be, or shall be construed as, a
third-party beneficiary of this Agreement.
24
(l) Attorneys' Fees. As between the parties to this Agreement, in
any action or proceeding brought to enforce any provision of this Agreement, or
where any provision hereof is validly asserted as a defense, the successful
party shall be entitled to recover reasonable attorneys' fees actually incurred
in addition to its costs and expenses and any other available remedy.
(m) Entire Agreement. This Agreement, together with the Purchase
Agreement and the Indenture, is intended by the parties as a final and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein and any and all prior oral or
written agreements, representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between the Holders on the one hand
and the Issuers and Guarantors on the other, or between or among any agents,
representatives, parents, subsidiaries, affiliates, predecessors in interest or
successors in interest with respect to the subject matter hereof and thereof are
merged herein and replaced hereby.
25
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
AMERICAN COMMERCIAL LINES LLC
By: /s/ Xxxx X. Xxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxx
Title: President and Chief Executive Officer
ACL FINANCE CORP.
By: /s/ Xxxx X. Xxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxx
Title: President and Chief Executive Officer
AMERICAN BARGE LINE COMPANY
By: /s/ Xxxx X. Xxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxx
Title: President and Chief Executive Officer
COMMERCIAL BARGE LINE COMPANY
By: /s/ Xxxx X. Xxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxx
Title: President and Chief Executive Officer
LOUISIANA DOCK COMPANY LLC
By: /s/ Xxxx X. Xxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxx
Title: President and Chief Executive Officer
AMERICAN COMMERCIAL TERMINALS LLC
By: /s/ Xxxx X. Xxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxx
Title: President and Chief Executive Officer
AMERICAN COMMERCIAL LOGISTICS LLC
By: /s/ Xxxx X. Xxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxx
Title: President and Chief Executive Officer
AMERICAN COMMERCIAL LINES INTERNATIONAL LLC
By: /s/ Xxxx X. Xxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxx
Title: President and Chief Executive Officer
JEFFBOAT LLC
By: /s/ Xxxx X. Xxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxx
Title: President and Chief Executive Officer
AMERICAN COMMERCIAL BARGE LINE LLC
By: /s/ Xxxx X. Xxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxx
Title: President and Chief Executive Officer
ACBL LIQUID SALES LLC
By: /s/ Xxxx X. Xxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxx
Title: President and Chief Executive Officer
ORINOCO TASA LLC
By: /s/ Xxxx X. Xxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxx
Title: President and Chief Executive Officer
ORINOCO TASV LLC
By: /s/ Xxxx X. Xxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxx
Title: President and Chief Executive Officer
HOUSTON FLEET LLC
By: /s/ Xxxx X. Xxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxx
Title: President and Chief Executive Officer
AMERICAN COMMERCIAL TERMINALS-MEMPHIS LLC
By: /s/ Xxxx X. Xxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxx
Title: President and Chief Executive Officer
LEMONT HARBOR & FLEETING SERVICES LLC
By: /s/ Xxxx X. Xxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxx
Title: President and Chief Executive Officer
UBS SECURITIES LLC
BANC OF AMERICA SECURITIES LLC
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: UBS SECURITIES LLC
By: /s/ Xxxxxxx X. Xxxxxxx XX
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxx XX
Title: Executive Director
By: /s/ Xxxxx [illegible]
---------------------------------------------
Name: Xxxxx [illegible]
Title: Director
