EXHIBIT 4.1
THIS SUPPLEMENTAL INDENTURE, dated as of May 29, 2002 to the Indenture
(herein called the "Indenture"), dated as of June 30, 1998, with respect to the
Issuers' 10 1/4% Senior Notes due 2008 (the "Senior Notes"), is by and among
AMERICAN COMMERCIAL LINES LLC, a Delaware limited liability company (the
"Company"), ACL Capital Corp., a Delaware corporation ("ACL Capital" and
together with the Company, the "Issuers") and The Bank of New York (as successor
trustee to United States Trust Company of New York), as trustee (herein called
the "Trustee").
PRELIMINARY STATEMENT
Capitalized terms used and not otherwise defined herein shall have the
meanings ascribed to them in the Indenture.
Section 9.2 of the Indenture provides that, under certain circumstances, a
supplemental indenture may be entered into by the Issuers and the Trustee with
the written consent of the Holders of at least a majority in aggregate principal
amount of the then outstanding Senior Notes. In accordance with the terms of
Sections 9.2 and 9.6 of the Indenture, the Issuers have, by resolution of the
Board of Managers, authorized this Supplemental Indenture. The Trustee has
determined that this Supplemental Indenture is in form satisfactory to it.
The Issuers have offered their 11 1/4% Senior Notes due January 1, 2008
("New Senior Notes") and their 12% Pay-In-Kind Senior Subordinated Notes due
July 1, 2008 ("New PIK Notes" and together with the New Senior Notes, the "New
Notes"), in exchange for all of the outstanding Senior Notes (the "Exchange
Offer") pursuant to the Offering Memorandum, Solicitation of Releases, Consents
and Acceptances and Disclosure Statement, dated April 15, 2002 (as the same may
be amended, supplemented or otherwise modified from time to time, the "Offering
Memorandum and Disclosure Statement"), and, in connection therewith, the Issuers
solicited consents to proposed amendments to the Indenture. This Supplemental
Indenture evidences the proposed amendments.
All things necessary to make this Supplemental Indenture a valid agreement
of the Issuers and the Trustee and a valid amendment of and supplement to the
Indenture have been performed.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the Senior
Notes issued under the Indenture from and after the date of this Supplemental
Indenture, as follows:
Section 1. Amendments to the Indenture.
1.1 Deletions.
Each of Section 3.9 (Offer To Purchase By Application of Excess
Proceeds); Section 4.3 (Reports), Section 4.5 (Taxes), Section 4.7
(Restricted Payments), Section 4.8 (Dividend and Other Payment
Restrictions Affecting Subsidiaries), Section 4.9 (Incurrence of
Indebtedness and Issuance of Preferred Equity), Section 4.10 (Asset
Sales), Section 4.11 (Transactions With Affiliates), Section 4.12
(Liens), Section 4.14 (Offer To Repurchase Upon Change of Control),
Section 4.15 (Senior Debt; Liens), Section 4.16 (Sales of Accounts
Receivable), Section 4.17 (Sale and Leaseback Transactions), Section
4.18 (Restriction On Preferred Stock of Subsidiaries), Section 4.19
(Restrictions On Activities of ACL Capital), Section 4.20 (Payments
For Consent), Section 4.21 (Additional Subsidiary Guarantees),
Section 4.22 (Restrictions On Business Activities) and Section 8.3
(Covenant Defeasance) of the Indenture
(collectively, together with those portions of the Indenture
referred to in Section 1.2 hereof, the "Designated Provisions") is
hereby deleted in its entirety and replaced with the words
"Intentionally Omitted."
1.2 Amendments to Other Sections.
(a) Notwithstanding any provision in the Indenture to the
contrary, the definition of each capitalized term contained in
the Indenture which occurs only within the Designated
Provisions as in effect prior to the execution of this
Supplemental Indenture, is hereby deleted in its entirety and
from the date hereof shall have no force or effect.
(b) Section 1.1 of the Indenture is hereby amended as follows:
(i) The definition of the term "Disqualified Stock" is
hereby amended and restated as follows:
"'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, at the option of
the holder thereof), 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 thereof, in whole or in part, on or prior to the
date that is 91 days after the date on which the Notes
mature."
(ii) The following terms and definitions are hereby added:
(A) "Junior Securities" means any Qualified Capital
Stock and any Indebtedness of a Subsidiary Guarantor
that is contractually subordinated in right of payment
to all Senior Subsidiary Obligations (and any securities
issued in exchange for or in replacement of Senior
Subsidiary Obligations) at least to the same extent as
the Subsidiary Guarantees are subordinated to the Senior
Subsidiary Obligations pursuant to this Indenture and
has no scheduled installment of principal due, by
redemption, sinking fund payment or otherwise, on or
prior to the stated maturity of the Senior Notes and the
Senior Subordinated Notes."
(B) "Qualified Capital Stock" means any Capital Stock
that is not Disqualified Stock.
(C) "Senior Notes" means the Issuers' senior notes due
January 1, 2008.
(D) "Senior Subordinated Notes" means the Issuers'
senior subordinated notes due July 1, 2008.
(E) "Senior Subsidiary Obligations" means (i) Guarantees
under the Senior Credit Facilities or a New Credit
Facility, (ii) Hedging Obligations, (iii) Guarantees
under the Senior Notes, (iv) Guarantees under the Senior
Subordinated Notes or (v) any other Indebtedness
permitted to be incurred under the terms of this
Indenture, unless the instrument under which such
Indebtedness is
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incurred expressly provides that it is subordinated in
right of payment to the Senior Notes and the Senior
Subordinated Notes.
(c) Section 1.2 of the Indenture is hereby amended by adding the
following terms and cross references:
"Payment Blockage Notice" ................. 10.2.1
"Payment Blockage Period" ................. 10.2.1
"Payment Default" ......................... 10.2.1
(d) Section 4.4 of the Indenture is hereby amended by deleting
subsection (b) thereof.
(e) Section 5.1 of the Indenture is hereby amended by deleting
clauses (iv) and (v).
(f) Section 6.1 of the Indenture is hereby amended by:
(i) Deleting clauses (c), (e), (f), (g), (h) and (i) in
their entirety; and
(ii) Amending and restating Section 6.1(d) as follows:
"(d) failure by the Issuers or any of their Subsidiaries
for 30 days after receipt by the Issuers of Notice from the
Trustee or by the Issuers and the Trustee of notice from the
holders of at least 25% in principal amount of Notes then
outstanding to comply with Sections 4.1, 4.2, 4.4, 4.6 or 4.13
of this Indenture."
(g) Section 6.2 of the Indenture is hereby amended and restated as
follows:
"If any Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of
then outstanding Notes may declare all the Notes to be due and
payable immediately."
(h) Section 7.7 of the Indenture is hereby amended by deleting the
second to last paragraph thereof.
(i) Section 8.3 of the Indenture is hereby deleted in its
entirety:
(j) Section 8.4(d) of the Indenture is hereby amended and restated
as follows:
"no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default
or Event of Default resulting from the incurrence of
Indebtedness all or a portion of the proceeds of which will be
used to defease the Notes pursuant to this Article Eight
concurrently with such incurrence);"
(k) Section 9.2 is hereby amended to remove the references to
Sections 4.10 and 4.14 in the first parenthetical phrase and
to remove the reference to Sections 4.10 and 4.14 in
subsection (b) thereof.
(l) Section 10.2 of the Indenture is hereby amended and restated
in its entirety as follows:
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10.2.1 Ranking of Subsidiary Guarantees.
The Issuers and the Subsidiary Guarantors covenant and
agree, and each Holder of a Note, by his acceptance thereof,
likewise covenants and agrees, that, to the extent and in the
manner hereinafter set forth in this Article 10, the
Indebtedness represented by the Subsidiary Guarantees is
subordinate and junior in right of payment to all Senior
Subsidiary Obligations of the Subsidiary Guarantors.
No Subsidiary Guarantor may make payment (by set-off or
otherwise) on account of any Obligation in respect of the
Notes, including the principal of, premium, if any, or
interest on the Notes, or on account of the redemption
provisions of the Notes (including any repurchases of Notes),
for cash or property (other than Junior Securities):
(a) Upon the maturity of any Senior Subsidiary
Obligations in respect of which it is an obligor or guarantor
whether by lapse of time, acceleration (unless waived) or
otherwise, unless and until all Obligations in respect of such
Senior Subsidiary Obligations are first paid in full in cash
and, in the case of Senior Subsidiary Obligations under any
New Credit Facility, all letters of credit issued under such
New Credit Facility shall either have been terminated or cash
collateralized in accordance with the terms thereof; or
(b) In the event of default in the payment of any Senior
Subsidiary Obligations in respect of which it is an obligor or
guarantor, when such Senior Subsidiary Obligation become due
and payable, whether at maturity or at a date fixed for
prepayment or by declaration or otherwise (a "Payment
Default") unless and until such Payment Default has been cured
or waived or otherwise has ceased to exist or such Senior
Subsidiary Obligations have been paid in full in cash.
Upon (i) the happening of an event of default other than
a Payment Default that permits the holders of Senior
Subsidiary Obligations to declare such Senior Subsidiary
Obligations to be due and payable and (ii) written notice of
such event of default delivered to the Issuers and the Trustee
by the representative under the Senior Credit Facilities, any
New Credit Facility, the Senior Notes, the Senior Subordinated
Notes or the holder of an aggregate of at least $50.0 million
principal amount outstanding of any other Senior Subsidiary
Obligations or their representative (a "Payment Blockage
Notice"), then, unless and until such event of default has
been cured or waived or otherwise has ceased to exist, no
payment (by set off or otherwise) may be made by or on behalf
of any Subsidiary Guarantor, which is an obligor or guarantor
under such Senior Subsidiary Obligation, on account of any
Obligation in respect of the Notes, including the principal
of, premium, if any, or interest on the Notes (including any
repurchase of any of the Notes) or on account of the
redemption provisions of the Notes in any such case other than
payments made with Junior Securities. Notwithstanding the
foregoing, unless the Senior Subsidiary Obligations in respect
of which such event of default exists has been declared due
and payable in its entirety within 179 days after the Payment
Blockage Notice is delivered as set forth above (the "Payment
Blockage Period") (and such declaration has not been rescinded
or waived) at the end of the Payment Blockage Period, the
Subsidiary Guarantors shall be required to pay all sums not
previously paid to the Holders of the Notes during the Payment
Blockage Period due to the foregoing prohibitions and to
resume all other payments as and when due on the Notes.
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Any number of Payment Blockage Notices may be given;
provided, that not more than one Payment Blockage Notice shall
be given within a period of any 360 consecutive days except
that if any Payment Blockage Notice is given by holders of
Senior Subsidiary Obligations other than Senior Subsidiary
Obligations under the Senior Credit Facilities, any New Credit
Facility, the Senior Notes or the Senior Subordinated Notes,
then the representative of the Senior Subsidiary Obligations
under the Senior Credit Facilities, any such New Credit
Facility, the Senior Notes or the Senior Subordinated Notes
may give another Payment Blockage Notice, provided that the
total number of days during which any Payment Blockage Period
or Periods is in effect shall not exceed 179 days during any
360 consecutive day period.
Upon any payment or distribution by or of the assets of
any Subsidiary Guarantor upon any dissolution, winding up,
total or partial liquidation or reorganization of the Issuers
or a Subsidiary Guarantor, whether voluntary or involuntary,
in bankruptcy, insolvency, receivership or a similar
proceeding or upon assignment for the benefit of creditors or
any marshaling of assets or liabilities (i) the holders of all
of such Subsidiary Guarantor's Senior Subsidiary Obligations,
as applicable, will first be entitled to receive payment in
full in cash and all letters of credit issued under the Senior
Credit Facility or any New Credit Facility will either have
been terminated or cash collateralized in accordance with
terms thereof before the Holders are entitled to receive any
payment (other than in the form of Junior Securities) on
account of any Obligation in respect of the Notes, including
the principal of, premium, if any, and interest on the Notes;
and (ii) any payment or distribution by or of the assets of
such Subsidiary Guarantor of any kind or character from any
source, whether in cash, property or securities (other than
Junior Securities) to which the Holders or the Trustee on
behalf of the Holders would be entitled (by set-off or
otherwise), except for the subordination provisions contained
in this Article 10, will be paid by the liquidating trustee or
agent or other Person making such a payment or distribution
directly to the holders of such Senior Subsidiary Obligations
or their representative to the extent necessary to make
payment in full in cash on all such Senior Subsidiary
Obligations remaining unpaid, after giving effect to any
concurrent payment or distribution to the holders of such
Senior Subsidiary Obligations.
In the event that, notwithstanding the foregoing, any
payment or distribution by or of the assets of any Subsidiary
Guarantor (other than Junior Securities) shall be received by
the Trustee or the Holders at a time when such payment or
distribution is prohibited by the foregoing provisions, such
payment or distribution shall be held in trust for the benefit
of the holders of such Senior Subsidiary Obligations, and
shall be immediately paid or delivered by the Trustee or such
Holders, as the case may be, to the holders of such Senior
Subsidiary Obligations remaining unpaid or to their
representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments
evidencing any of such Senior Subsidiary Obligations may have
been issued, ratably according to the aggregate principal
amounts remaining unpaid on account of such Senior Subsidiary
Obligations held or represented by each, for application to
the payment of all such Senior Subsidiary Obligations
remaining unpaid, to the extent necessary to pay all such
Senior Subsidiary Obligations in full in cash after giving
effect to any concurrent payment or distribution to the
holders of such Senior Subsidiary Obligations.
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Senior Subsidiary Obligations shall not be deemed to
have been paid in full unless the holders thereof shall have
received cash, securities or other property equal to the
amount of such Senior Subsidiary Obligations then outstanding.
Upon the payment in full of all Senior Subsidiary Obligations,
the Holders of Notes shall be subrogated to all rights of any
holders of Senior Subsidiary Obligations to receive any
further payments or distributions applicable to the Senior
Subsidiary Obligations until the Senior Subsidiary Obligations
evidenced by the Notes shall have been paid in full, and such
payments or distributions received by such Holders, by reason
of such subrogation, of cash, securities or other property
which otherwise would be paid or distributed to the holders of
Senior Subsidiary Obligations, shall, as between the
Subsidiary Guarantors and their creditors other than the
holders of Senior Subsidiary Obligations, on the one hand, and
such Holders, on the other hand, be deemed to be a payment by
the Issuers on account of Senior Subsidiary Obligations, and
not on account of the Notes.
The provisions of this Section 10.2.1 shall not impair
any rights, interests, remedies or powers of any secured
creditor of the Issuers in respect of any security interest
the creation of which is not prohibited by the provisions of
this Indenture.
The securing of any obligations of the Issuers,
otherwise ranking on a parity with the Notes or ranking junior
to the Notes, shall not be deemed to prevent such obligations
from constituting, respectively, obligations ranking on a
parity with the Notes or ranking junior to the Notes.
10.2.2 Reliance on Certificate of Liquidating Agent; Further
Evidence as to Ownership of Senior Subsidiary Obligations.
Upon any payment or distribution of assets of the
Issuers or any Subsidiary Guarantor, the Trustee and the
Holders shall be entitled to rely upon an order or decree
issued by any court of competent jurisdiction in which such
dissolution or winding-up or liquidation or reorganization
proceedings are pending or upon a certificate of the trustee
in bankruptcy, receiver, assignee for the benefit of creditors
or other Person making such payment or distribution, delivered
to the Trustee or to the Holders, for the purpose of
ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Subsidiary Obligations
and other Indebtedness of the Subsidiary Guarantors, the
amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto
or to this Article 10. In the absence of any such bankruptcy
trustee, receiver, assignee or other Person, the Trustee shall
be entitled to rely upon a written notice by a Person
representing himself to be a holder of Senior Subsidiary
Obligations (or a trustee or representative on behalf of such
holder) as evidence that such Person is a holder of Senior
Subsidiary Obligations (or is such a trustee or
representative). If the Trustee determines, in good faith,
that further evidence is required with respect to the right of
any Person as a holder of Senior Subsidiary Obligations to
participate in any payment or distribution pursuant to this
Article 10, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to
the amount of Senior Subsidiary Obligations held by such
Person, as to the extent to which such Person is entitled to
participate in such payment or distribution, and as to other
facts pertinent to the rights of such Person under this
Article 10, and if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such
payment.
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10.2.3 Application by Trustee of Assets Deposited with It.
Amounts deposited in trust with the Trustee pursuant to
and in accordance with Article 8 shall be for the sole benefit
of Holders of Notes subject thereto and, to the extent
allocated for the payment of such Notes, shall not be subject
to the subordination provisions of this Article 10. Otherwise,
any deposit of assets with the Trustee (whether or not in
trust) for the payment of the principal of or any premium or
interest on any Notes shall be subject to the provisions of
this Article 10; provided, however, if prior to one Business
Day preceding the date on which by the terms of this Indenture
any such assets may become distributable for any purpose
(including, without limitation, the payment of the principal
of or any premium or interest on any Note) the Trustee shall
not have received with respect to such assets the Officers'
Certificate or written notice provided for in Section 10.2.4,
then the Trustee shall have full power and authority to
receive such assets and to apply the same to the purpose for
which they were received.
10.2.4 Trustee Not Charged with Knowledge of Prohibition.
Anything in this Article 10 or elsewhere in this
Indenture contained to the contrary notwithstanding, the
Trustee shall not at any time be charged with knowledge of the
existence of any facts which would prohibit the making of any
payment of moneys to or by Trustee and shall be entitled to
assume conclusively that no such facts exist, unless and until
the Trustee shall have received an Officers' Certificate to
that effect or notice in writing to that effect signed by or
on behalf of the holder or holders, or their representatives,
of Senior Subsidiary Obligations who shall have been certified
by the Issuers or otherwise established to the reasonable
satisfaction of the Trustee to be such holder or holders or
representatives or from any trustee under any indenture
pursuant to which such Senior Subsidiary Obligations shall be
outstanding; provided, however, that, if the Trustee shall not
have received the Officers' Certificate or notice provided for
in this Section 10.2.4 at least one Business Day preceding the
date upon which by the terms hereof any such moneys may become
payable for any purpose (including, without limitation, the
payment of the principal of or any premium or interest on any
Note), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and
authority to receive such moneys and apply the same to the
purpose for which they were received and shall not be affected
by any notice to the contrary which may be received by it
within one Business Day preceding such date. The Issuers shall
give prompt written notice to the Trustee and to each Paying
Agent of any facts which would prohibit any payment of moneys
to or by the Trustee or any Paying Agent, and the Trustee
shall not be charged with knowledge of the curing of any
default or the elimination of any other fact or condition
preventing such payment or distribution unless and until the
Trustee shall have received an Officers' Certificate to such
effect.
10.2.5 Trustee to Effectuate Subordination.
Each Holder of Notes by his acceptance thereof
authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the
subordination as between such Holder and holders of Senior
Subsidiary Obligations as provided in this Section 10.2.5 and
appoints the Trustee its attorney-in-fact for any and all such
purposes, including, in the event of any dissolution,
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winding-up, liquidation or reorganization of the Issuers
(whether in bankruptcy, insolvency or receivership proceedings
or upon an assignment for the benefit of creditors of the
Issuers), the immediate filing of a claim for the unpaid
balance of his Notes in the form required in said proceedings
and cause said claim to be approved. If the Trustee does not
file a proper claim or proof of debt in the form required in
such proceeding prior to 30 days before the expiration of the
time to file such claim or claims, then the holders of the
Senior Subsidiary Obligations or their representative is
hereby authorized to have the right to file and is hereby
authorized to file an appropriate claim for and on behalf of
the Holders of said Notes. Nothing herein contained shall be
deemed to authorize the Trustee or the holders of Senior
Subsidiary Obligations or their representative to authorize or
consent to or accept or adopt on behalf of any Holder of Notes
any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any
Holder thereof, or to authorize the Trustee or the holders of
Senior Subsidiary Obligations or their representative to vote
in respect of the claim of any Holder of Notes in any such
proceeding.
10.2.6 Rights of Trustee as Holder of Senior Subsidiary
Obligation.
The Trustee shall be entitled to all the rights set
forth in this Article 10 with respect to any Senior Subsidiary
Obligations which may at the time be held by it, to the same
extent as any other holder of Senior Subsidiary Obligations
and nothing in this Indenture shall deprive the Trustee of any
of its rights as such holder. Nothing in this Article 10 shall
apply to claims of, or payments to, the Trustee under or
pursuant to Section 7.7.
10.2.7 Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the
Trustee shall have been appointed by the Issuers and be then
acting hereunder, the term "TRUSTEE" as used in this Article
10 shall in such case (unless the context shall otherwise
require) be construed as extending to and including such
Paying Agent within its meaning as fully for all intents and
purposes as if the Paying Agent were named in this Article 10
in addition to or in place of the Trustee; provided, however,
that Sections 10.2.4 and 10.2.6 shall not apply to the Issuers
if they act as Paying Agent.
10.2.8 Subordination Rights Not Impaired by Acts or Omissions
of the Issuers or Subsidiary Guarantors or Holders of Senior
Subsidiary Obligations.
No right of any present or future holders of any Senior
Subsidiary Obligations to enforce subordination as herein
provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the
Issuers or any Subsidiary Guarantor or by any act or failure
to act, in good faith, by any such holder, or by any
noncompliance by the Issuers or any Subsidiary Guarantor with
the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof which any such holder may
have or be otherwise charged with. The holders of Senior
Subsidiary Obligations may, at any time or from time to time
and in their absolute discretion, change the manner, place or
terms of payment, change or extend the time of payment of, or
renew or alter, any such Senior Subsidiary Obligations, or
amend or supplement any instrument pursuant to which any such
Senior Subsidiary Obligations are issued or by which it may be
secured, or release any security therefor,
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or exercise or refrain from exercising any other of their
rights under the Senior Subsidiary Obligation, including,
without limitation, the waiver of default thereunder, all
without notice to or assent from the Holders of the Notes or
the Trustee and without affecting the obligations of the
Issuers, the Subsidiary Guarantors, the Trustee or the Holders
of Notes under this Article 10.
10.2.9 Holders of Senior Subsidiary Obligations.
The Trustee shall not be deemed to owe any fiduciary
duty to the holders of the Senior Subsidiary Obligations, and
shall not be liable to any such holders if it shall mistakenly
pay over or distribute money or assets to Holders of Notes or
the Issuers.
(m) Section 10.4 is hereby amended by deleting the last paragraph
thereof.
(n) Section 10.5 is hereby amended by deleting subsection (c) and
deleting the word "and" at the end of subsection (b) thereof
and replace ";" with ".".
(o) Section 11.2 of the Indenture is hereby amended and restated
by replacing the name and address of the Trustee with the
following:
"The Bank of New York
0 Xxxx Xxxxx, 00xx Xx.
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Corporate Trust Administration"
Section 2. Effectiveness; Termination.
(a) This Supplemental Indenture is entered into pursuant to and consistent
with Section 9.2 of the Indenture, and nothing herein shall constitute an
amendment, supplement or waiver requiring the approval of each Holder pursuant
to clauses (a) through (h) of the last paragraph of Section 9.2.
(b) This Supplemental Indenture shall become effective and binding on the
Issuers, the Subsidiary Guarantors, the Trustee and the Holders of the Senior
Notes upon the execution and delivery by the parties to this Supplemental
Indenture; provided, however, that the provisions of the Indenture referred to
in Section 1 above (such provisions being referred to as the "Amended
Provisions") will remain in effect in the form they existed prior to the
execution of this Supplemental Indenture, the deletions and amendments of the
Amended Provisions will not become operative, and the terms of the Indenture
will not be amended, modified or deleted, in each case unless and until the date
and time, if any (the "Closing Date"), that the Issuers accept for exchange
pursuant to the Exchange Offer the outstanding Senior Notes validly tendered in
exchange for the New Notes. On the Closing Date, the Amended Provisions will
automatically be deleted or modified as contemplated by Section 1 above.
Section 3. Miscellaneous.
(a) On and after the Closing Date, each reference in the Indenture to "the
Indenture," "this Indenture," "hereunder," "hereof" or "herein" shall mean and
be a reference to the Indenture as supplemented by this Supplemental Indenture
unless the context otherwise requires.
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(b) Except as specifically amended above, the Indenture shall remain in
full force and effect and is hereby ratified and confirmed.
(c) This Supplemental Indenture shall be construed and enforced in
accordance with, and interpreted under, the internal laws of the State of New
York, without reference to the conflict of laws provisions thereof.
(d) This Supplemental Indenture may be executed in several counterparts,
all of which together shall constitute one agreement binding on all parties,
notwithstanding that all parties have not signed the same counterpart.
(e) Section titles are for descriptive purposes only and shall not control
or alter the meaning of this Supplemental Indenture as set forth in the text.
(f) The Trustee accepts the trusts created by the Indenture, as
supplemented by this Supplemental Indenture, and agrees to perform the same upon
the terms and conditions of the Indenture, as supplemented by this Supplemental
Indenture.
(g) Each of the Issuers and the Trustee hereby confirms and reaffirms the
Indenture in every particular except as amended by this Supplemental Indenture.
(h) All agreements of the Issuers in this Supplemental Indenture shall
bind its successors and assigns whether so expressed or not. All agreements of
the Trustee in this Supplemental Indenture shall bind its successors and assigns
whether so expressed or not.
(i) In case any provision in this Supplemental Indenture shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
(j) Nothing in this Supplemental Indenture, express or implied, shall give
to any Person, other than the parties hereto and their successors under the
Indenture and the Holders, any benefit or any legal or equitable right, remedy
or claim under the Indenture.
(k) This Supplemental Indenture shall be interpreted to comply in every
respect with the Trust Indenture Act of 1939, as amended (the "TIA"). If any
provision of this Supplemental Indenture limits, qualifies or conflicts with the
duties imposed by the TIA, the imposed duties shall control and remain
obligatory.
IN WITNESS WHEREOF, the Issuers and the Trustee have caused this
Supplemental Indenture to be duly executed by their respective officers
thereunto duly authorized all as of the day and year first written above.
AMERICAN COMMERCIAL LINES LLC
as Co-Issuer
By: /s/ Xxxxxx X. Xxxxx
----------------------------
Its:
----------------------------
ACL CAPITAL CORP.
as Co-Issuer
By: /s/ Xxxxxx X. Xxxxx
----------------------------
Its:
----------------------------
THE BANK OF NEW YORK
As Trustee
By: /s/ Xxxxxxxx X. Xxxxxxxxxxxx
----------------------------
Its: Vice President
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