FORM OF 12 1 / 2
% SENIOR SECURED NOTE
(Face of 12 1 / 2
% Senior Secured Note)
12 1
/ 2 % Senior
Secured Notes due 2017
UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OR TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUIRED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY OR SUCH OTHER REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR’S NOMINEE.
THE SECURITY
(OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION
OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE
SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE
RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE
SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY
THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY (i)(a) TO A PERSON WHO IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A,
(b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144
UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A
NON-U.S. PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
904 UNDER THE SECURITIES ACT, OR (d) IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY
SO REQUESTS), (ii) TO THE COMPANY, OR (iii) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION, AND (B) THE
HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN CLAUSE (A) ABOVE. NO REPRESENTATION
CAN BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY
RULE 144 FOR RESALE OF THE SECURITY EVIDENCED HEREBY.
THIS NOTE IS
ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR PURPOSES OF SECTION 1271 ET
SEQ. OF THE INTERNAL REVENUE CODE. A HOLDER MAY OBTAIN
THE ISSUE
PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE AND YIELD TO
MATURITY FOR SUCH NOTES BY SUBMITTING A WRITTEN REQUEST FOR SUCH
INFORMATION TO THE ISSUER AT THE FOLLOWING ADDRESS: AMERICAN
COMMERCIAL LINES INC., 1701 EAST MARKET STREET, JEFFERSONVILLE,
INDIANA 47310 ATTENTION: CHIEF FINANCIAL OFFICER.
-2-
COMMERCIAL BARGE LINE COMPANY
12 1
/ 2 % SENIOR
SECURED NOTE DUE 2017
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INITIAL NOTES
CUSIP:
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20162U
AA3
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INITIAL NOTES
ISIN:
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US20162UAA34
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Commercial Barge
Line Company promises to pay to Cede & Co. or registered
assigns, the principal sum of [ • ] on July 15,
2017.
Interest Payment
Dates: January 15 and July 15, beginning January 15,
2010
Record Dates:
January 1 and July 1
Reference is made
to further provisions of this Note set forth on the reverse hereof,
which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the
certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this
Note shall not be entitled to any benefits under the Indenture
referred to on the reverse hereof or be valid or obligatory for any
purpose.
-3-
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COMMERCIAL
BARGE LINE COMPANY
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By:
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Name:
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Title:
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TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This is one of the 12 1 / 2
% Senior Secured Notes
referred to in the within-mentioned Indenture:
Dated: July 7, 2009
THE BANK OF NEW
YORK MELLON TRUST
COMPANY, N.A., not in its individual
capacity,
but solely as Trustee
-4-
(Reverse of 12
1 / 2
% Senior Secured Note)
12 1
/ 2 % Senior
Secured Notes due 2017
COMMERCIAL BARGE LINE COMPANY
Capitalized terms
used herein shall have the meanings assigned to them in the
Indenture referred to below unless otherwise indicated.
(a) Commercial
Barge Line Company, a Delaware corporation (the
“Company”), promises to pay interest on the principal
amount of this Note (the “Notes”) at the rate of
12 1
/ 2 % per
annum. The Company will pay interest in United States dollars
(except as otherwise provided herein) semiannually in arrears on
January 15 and July 15, commencing on January 15,
2010 or if any such day is not a Business Day, on the next
succeeding Business Day (each an “Interest Payment
Date”). Interest on the Notes shall accrue from the most
recent date to which interest has been paid or, if no interest has
been paid, from and including July 7, 2009; provided
that if there is no existing Default or Event of Default in the
payment of interest, and if this Note is authenticated between a
record date referred to on the face hereof and the next succeeding
Interest Payment Date (but after July 7, 2009), interest shall
accrue from such next succeeding Interest Payment Date, except in
the case of the original issuance of Notes, in which case interest
shall accrue from the date of authentication. It shall pay interest
(including post-petition interest in any proceeding under any
Bankruptcy Code) on overdue installments of interest (without
regard to any applicable grace period) at the same rate to the
extent lawful. Interest shall be computed on the basis of a 360-day
year comprised of twelve 30-day months. The interest rate on the
Notes will in no event be higher than the maximum rate permitted by
New York law as the same may be modified by United States law of
general application.
(b)
Registration Rights Agreement . The Holder of this Note is
entitled to the benefits of a Registration Rights Agreement dated
as of July 7, 2009 among the Issuer, the Guarantors party
thereto and the Initial Purchasers.
(2)
Method of Payment . The Company will pay interest on the
Notes (except defaulted interest) on the applicable Interest
Payment Date to the Persons who are registered Holders of Notes at
the close of business on the January 1 and July 1 preceding the
Interest Payment Date, even if such Notes are cancelled after such
record date and on or before such Interest Payment Date, except as
provided in Section 2.12 of the Indenture with respect to
defaulted interest. The Notes shall be payable as to principal,
premium and interest at the office or agency of the Company
maintained for such purpose within or without the City and State of
New York, or, at the option of the Company, payment of interest may
be made by check mailed to the Holders at their addresses set forth
in the register of Holders; provided that payment by wire
transfer of immediately available funds shall be required with
respect to principal of, premium, if any, and interest on, all
Global Notes and all other Notes the Holders of which shall have
provided written wire transfer instructions to the Company and the
Paying Agent. Such payment shall be in such coin or currency of the
United States of America as at the time of payment is legal tender
for payment of public and private debts.
Any payments of
principal of and interest on this Note prior to Stated Maturity
shall be binding upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof, whether or not noted hereon. The amount
due and payable at the maturity of this Note shall be payable only
upon presentation and surrender of this Note at an office of the
Trustee or the Trustee’s agent appointed for such
purposes.
(3)
Paying Agent and Registrar . Initially, The Bank of New York
Mellon Trust Company, N.A., the Trustee under the Indenture, shall
act as Paying Agent and Registrar. The Company may change any
Paying Agent or Registrar without notice to any Holder. American
Commercial Lines Inc. or any of its Affiliates may act in any such
capacity.
(4)
Indenture . The Company issued the Notes under an Indenture,
dated as of July 7, 2009 (the “Indenture”), among
the Company, the Guarantors and the Trustee. The terms of the Notes
include those stated in the
-5-
Indenture. To
the extent the provisions of this Note are inconsistent with the
provisions of the Indenture, the Indenture shall govern. The Notes
are subject to all such terms, and Holders are referred to the
Indenture for a statement of such terms. The Notes issued on the
Issue Date are senior secured Obligations of the Company limited to
$200,000,000 in aggregate principal amount, plus amounts, if any,
sufficient to pay premium and interest on outstanding Notes as set
forth in Paragraph 2 hereof. The Indenture permits the
issuance of Additional Notes subject to compliance with certain
conditions.
The payment of
principal and interest on the Notes is unconditionally guaranteed
on a senior basis by the Guarantors.
(5)
Optional Redemption .
(a) The Notes
may be redeemed, in whole or in part, at any time prior to
July 15, 2013, at the option of the Company upon not less than
30 nor more than 60 days’ prior notice mailed by
first-class mail to each Holder’s registered address, at a
Redemption Price equal to 100% of the principal amount of the Notes
redeemed plus the Applicable Premium as of, and accrued and unpaid
interest, if any, to, but not including, the applicable redemption
date (subject to the right of holders of record on the relevant
record date to receive interest due on the relevant interest
payment date).
(b) The Notes
are subject to redemption, at the option of the Company, in whole
or in part, at any time on or after July 15, 2013 upon not
less than 30 nor more than 60 days’ notice mailed by
first-class mail to each Holder’s registered address at the
following Redemption Prices (expressed as percentages of the
principal amount to be redeemed) set forth below, plus accrued and
unpaid interest, if any, to, but not including, the redemption date
(subject to the right of Holders of record on the relevant regular
record date to receive interest due on an interest payment date),
if redeemed during the 12-month period beginning July 15 of
the years indicated:
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Year
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Percentage
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106.250
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%
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103.125
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%
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100
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%
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(c) At any
time, or from time to time, prior to July 15, 2012, the
Company may, with the net proceeds of one or more Qualified Equity
Offerings, redeem up to 35% of the aggregate principal amount of
the outstanding Notes (including Additional Notes) at a Redemption
Price equal to112.50% of the principal amount of thereof, together
with accrued and unpaid interest thereon, if any, to the date of
redemption; provided that at least 65% of the principal
amount of the Notes then outstanding (including Additional Notes)
remains outstanding immediately after the occurrence of any such
redemption (excluding Notes held by American Commercial Lines or
its Subsidiaries) and that any such notice of redemption occurs
within 90 days following the closing of any such Qualified
Equity Offering.
(6)
Mandatory Redemption . Except as set forth under
Sections 4.10, 4.14 and 4.16 of the Indenture, the Company
shall not be required to make mandatory redemption or sinking fund
payments with respect to the Notes.
(7)
Repurchase at Option of Holder .
(a) Upon the
occurrence of certain events, the Company may be required to
commence an Offer to Purchase pursuant to an Asset Sale Offer,
Event of Loss Offer or a Change of Control Offer.
(c) Holders
of the Notes that are the subject of an Offer to Purchase will
receive notice of an Offer to Purchase pursuant to an Asset Sale
Offer, Event of Loss Offer or a Change of Control Offer from the
Company prior to any related Purchase Date and may elect to have
such Notes purchased by completing the form titled “Option of
Holder to Elect Purchase” appearing below.
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(8)
Notice of Redemption . Notice of redemption shall be mailed
at least 30 days but not more than 60 days before the
redemption date to each Holder whose Notes are to be redeemed at
its registered address. Notes in denominations larger than $2,000
may be redeemed in part but only in a minimum amount of $2,000
principal amount (and integral multiples of $1,000 in excess
thereof), unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date, interest ceases to
accrue on the Notes or portions hereof called for
redemption.
(9)
Denominations, Transfer, Exchange . The Notes are in
registered form without coupons in initial denominations of $2,000
and any integral multiple of $1,000 in excess thereof. The transfer
of the Notes may be registered. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and the Company may require a
Holder to pay any taxes and fees required by law or permitted by
the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption,
except for the unredeemed portion of any Note being redeemed in
part. Also, it need not exchange or register the transfer of any
Notes for a period of 15 days before a selection of Notes to
be redeemed or during the period between a record date and the
corresponding Interest Payment Date.
(10)
Persons Deemed Owners . The registered holder of a Note may
be treated as its owner for all purposes.
(11)
Amendment, Supplement and Waiver . Subject to the following
paragraphs, the Indenture and the Notes may be amended or
supplemented with the consent of the Holders of at least a majority
in aggregate principal amount of the then outstanding Notes,
including, without limitation, consents obtained in connection with
a purchase of or tender offer or exchange offer for Notes, and any
existing Default or Event of Default or compliance with any
provision of the Indenture or the Notes may be waived with the
consent of the Holders of a majority in aggregate principal amount
of the then outstanding Notes, including waivers obtained in
connection with a tender offer or exchange offer for the
Notes.
Without the
consent of any Holders, the Company, the Guarantors and the
Trustee, at any time and from time to time, may enter into one or
more indentures supplemental to the Indenture, the Guarantees and
the Security Documents for any of the following
purposes:
(1) to evidence
the succession of another Person to the Company or any Guarantor
and the assumption by any such successor of the covenants of the
Company or such Guarantor in the Indenture, the Guarantees, the
Security Documents and in the Notes;
(2) to add to the
covenants of the Company or the Guarantors for the benefit of the
Holders, or to surrender any right or power herein conferred upon
the Company or the Guarantors;
(3) to add
additional Events of Default;
(4) to provide for
uncertificated Notes in addition to or in place of the certificated
Notes;
(5) to evidence
and provide for the acceptance of appointment under the Indenture
and the Security Documents by a successor Trustee or Collateral
Agent;
(6) to provide for
or confirm the issuance of Additional Notes in accordance with the
terms of the Indenture;
(7) to add to the
Collateral securing the Notes, to add a Guarantor or to release a
Guarantor in accordance with the Indenture;
(8) to cure any
ambiguity, defect, omission, mistake or inconsistency;
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