FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE (“Supplemental Indenture”) is entered into as of
this 6th day of September, 2006 (“Effective Date”), by and among American
Commercial Lines LLC, a Delaware limited liability company, ACL Finance Corp., a Delaware
corporation (collectively, the “Issuers”), the Guarantors (as defined in the Indenture) and
Wilmington Trust Company, as Trustee.
WITNESSETH
WHEREAS, the Issuers, the Guarantors and the Trustee have entered into an Indenture dated as
of February 11, 2005 with respect to the issuance of the 91/2% Senior Notes due 2015 (the
“Indenture”); and
WHEREAS, the Issuers and Guarantors have requested that the Indenture be modified in order to
consummate an Asset Sale with respect to the divestiture of their interests in ACBL de Venezuela
C.A.; and
WHEREAS, the Trustee, with the consent and at the direction of a majority of the Holders of
Notes is authorized, and has agreed, to enter into this Supplemental Indenture.
NOW, THEREFORE, in consideration of these premises and the undertakings of the parties hereto,
the Issuers, Guarantors and the Trustee hereby agree as follows:
1. All capitalized terms used herein not otherwise defined herein have the meanings given to
them in the Indenture.
2. Section 1.01 of the Indenture is amended as of the Effective Date to add the following
defined terms”:
"Venezuela Divestiture” means the sale, transfer, lease or other disposition by
American Barge and/or any of its Restricted Subsidiaries or Subsidiaries (in one
transaction or in a series of transactions) of the Equity Interests, assets or
business operations of any or all of the Venezuela Subsidiaries, as well as any
subsequent or simultaneous disposition or dissolution of the two technical
assistance companies that support these Subsidiaries, and/or the parent entity, ACL
International LLC, including, without limitation, the combination or merger of these
companies into or the sale of all or substantially all of the assets of these
companies to a Subsidiary.
"Venezuela Subsidiaries” means, collectively, ACBL de Venezuela LTD, ACL
International LLC, ACBL de Venezuela CA and GMSV Holdings LLC, together with their
Subsidiaries.
3. Section 4.10 of the Indenture is amended as of the Effective Date by amending, restating
and replacing the first full paragraph and its sub-clauses in their entirety with the following:
American Barge will not, and will not permit any of its Restricted Subsidiaries to,
consummate an Asset Sale unless:
(1) American Barge (or the Restricted Subsidiary, as the case may be) receives
consideration at the time of the Asset Sale at least equal to the Fair Market Value
of the assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 75% of the consideration received in the Asset Sale by American
Barge or such Restricted Subsidiary is in the form of cash. For purposes of this
provision, each of the following will be deemed to be cash:
(A) any liabilities, as shown on American Barge’s most recent
consolidated balance sheet, of American Barge or any Restricted Subsidiary
(other than contingent liabilities and liabilities that are by their terms
subordinated to the Notes or any Note Guarantee) that are assumed by the
transferee of any such assets pursuant to a customary novation agreement
that releases American Barge or such Restricted Subsidiary from further
liability;
(B) any securities, notes or other obligations received by American
Barge or any such Restricted Subsidiary from such transferee that are
contemporaneously, subject to ordinary settlement periods, converted by
American Barge or such Restricted Subsidiary into cash, to the extent of the
cash received in that conversion; and
(C) any stock or assets of the kind referred to in clauses (2) or (4)
of the next paragraph of this Section 4.10.
Notwithstanding the foregoing, the provisions of clauses (2)(A),(2)(B) and (2)(C)
shall not be applicable to all or any portion of a Venezuela Divestiture or any
Asset Sale or Asset Sales relating to all or any portion of a Venezuela Divestiture.
4. Section 4.11 of the Indenture is amended as of the Effective Date by modifying subsections
(b)(8) — (9) and adding new subsection (b)(10) to read as follows:
(8) transactions with customers, clients, suppliers or purchasers or sellers of
goods or services, in each case in the ordinary course of business which are fair to
American Barge or its Restricted Subsidiaries, in the reasonable determination of
the Board of Directors of Parent;
(9) Permitted Payments to Parent; and
(10) all or any portion of a Venezuela Divestiture or any Asset Sale or
Asset Sales relating to all or any portion of a Venezuela Divestiture which
does not violate Section 4.10 hereof.
5. Upon execution and delivery of this Supplemental Indenture, the Indenture shall be modified
and amended in accordance with this Supplemental Indenture, and all the terms and conditions of
both shall be read together as though they constitute one instrument, except that, in case of
conflict, the provisions of this Supplemental Indenture will control. The Indenture, as modified
and amended by this Supplement Indenture, is hereby ratified and confirmed in all respects and
shall bind every holder of Notes. In case of conflict between the terms and conditions contained
in the Notes and those contained in the Indenture, as modified and amended by this Supplemental
Indenture, the provisions of the Indenture, as modified and amended by this Supplemental Indenture,
shall control.
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6. The Issuers and each Guarantor hereby represents and warrants to the Trustee that (a) this
Supplemental Indenture has been duly authorized, executed and delivered by the Issuers or such
Guarantor, as applicable, and constitutes its valid and legally binding obligation, enforceable
against
it in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to or affecting
creditors’ rights and to general equity principles, (b) the execution and delivery of this
Supplemental Indenture (i) does not require any consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court, except such as have been obtained or
made and are in full force and effect as of the date hereof and (ii) will not violate any
applicable law or regulation or the charter, by laws or other organizational documents of the
Issuers or such Guarantor, as applicable, or any order of any governmental agency or body, or
breach or conflict with any material agreement to which the Issuers or such Guarantor, as
applicable, is a party or by which the Issuers or such Guarantor, as applicable, is bound and (c)
no Default or Event of Default under the Indenture exists and is continuing.
7. The Trustee shall not be responsible in any manner whatsoever for or in respect of the
validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals
contained herein, all of which are made solely by the Issuers.
8. In entering into this Supplemental Indenture, the Trustee shall be entitled to the benefit
of every provision of the Indenture relating to the conduct or affecting the liability or affording
protection to the Trustee, whether nor not elsewhere herein so provided.
9. This Supplemental Indenture may be executed in two or more counterparts, each of which
shall constitute an original, but all of which when taken together shall constitute but one
agreement. In the event any party executes and delivers this Supplemental Indenture via facsimile,
such party hereby agrees that for the purposes of enforcement and all applicable statutes, laws and
rules, including, without limitation, the Uniform Commercial Code, rules of evidence and statutes
of fraud: (i) the facsimile signature of such party shall constitute a binding signature of such
party as a symbol and xxxx executed and adopted by such party with a present intention to
authenticate this Supplemental Indenture; (ii) the facsimile of this Supplemental Indenture shall
constitute a writing signed by such party; and (iii) the facsimile of this Supplemental Indenture
shall constitute an original of and best evidence of this Supplemental Indenture.
10. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS
SUPPLEMENTAL INDENTURE, WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE
EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
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IN WITNESS WHEREOF, the Issuers, Guarantors and Trustee, on behalf of the Holders of Notes,
have caused this Supplemental Indenture to be executed as of the date first above written.
| Issuers AMERICAN COMMERCIAL LINES LLC |
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| By: | /s/ Xxxxxxxxxxx X. Black | |||
| Name: | Xxxxxxxxxxx X. Black | |||
| Title: | Senior Vice President & Chief Financial Officer |
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| ACL FINANCE CORP. |
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| By: | /s/ Xxxxxxxxxxx X. Black | |||
| Name: | Xxxxxxxxxxx X. Black | |||
| Title: | Senior Vice President & Chief Financial Officer |
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| Guarantors AMERICAN BARGE LINE COMPANY |
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| By: | /s/ Xxxxxxxxxxx X. Black | |||
| Name: | Xxxxxxxxxxx X. Black | |||
| Title: | Senior Vice President & Chief Financial Officer |
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| COMMERCIAL BARGE LINE COMPANY |
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| By: | /s/ Xxxxxxxxxxx X. Black | |||
| Name: | Xxxxxxxxxxx X. Black | |||
| Title: | Senior Vice President & Chief Financial Officer |
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| LOUISIANA DOCK COMPANY LLC |
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| By: | /s/ Xxxxxxxxxxx X. Black | |||
| Name: | Xxxxxxxxxxx X. Black | |||
| Title: | Senior Vice President & Chief Financial Officer |
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| AMERICAN COMMERCIAL TERMINALS LLC |
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| By: | /s/ Xxxxxxxxxxx X. Black | |||
| Name: | Xxxxxxxxxxx X. Black | |||
| Title: | Senior Vice President & Chief Financial Officer |
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| AMERICAN COMMERCIAL LOGISTICS LLC |
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| By: | /s/ Xxxxxxxxxxx X. Black | |||
| Name: | Xxxxxxxxxxx X. Black | |||
| Title: | Senior Vice President & Chief Financial Officer |
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| AMERICAN COMMERCIAL LINES INTERNATIONAL LLC |
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| By: | /s/ Xxxxxxxxxxx X. Black | |||
| Name: | Xxxxxxxxxxx X. Black | |||
| Title: | Senior Vice President & Chief Financial Officer |
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| JEFFBOAT LLC |
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| By: | /s/ Xxxxxxxxxxx X. Black | |||
| Name: | Xxxxxxxxxxx X. Black | |||
| Title: | Senior Vice President & Chief Financial Officer |
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| AMERICAN COMMERCIAL BARGE LINE LLC |
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| By: | /s/ Xxxxxxxxxxx X. Black | |||
| Name: | Xxxxxxxxxxx X. Black | |||
| Title: | Senior Vice President & Chief Financial Officer |
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| ACBL LIQUID SALES LLC |
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| By: | /s/ Xxxxxxxxxxx X. Black | |||
| Name: | Xxxxxxxxxxx X. Black | |||
| Title: | Senior Vice President & Chief Financial Officer |
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| ORINOCO TASA LLC |
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| By: | /s/ Xxxxxxxxxxx X. Black | |||
| Name: | Xxxxxxxxxxx X. Black | |||
| Title: | Senior Vice President & Chief Financial Officer |
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| ORINOCO TASV LLC |
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| By: | /s/ Xxxxxxxxxxx X. Black | |||
| Name: | Xxxxxxxxxxx X. Black | |||
| Title: | Senior Vice President & Chief Financial Officer |
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| HOUSTON FLEET LLC |
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| By: | /s/ Xxxxxxxxxxx X. Black | |||
| Name: | Xxxxxxxxxxx X. Black | |||
| Title: | Senior Vice President & Chief Financial Officer |
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| AMERICAN COMMERCIAL TERMINALS — MEMPHIS LLC |
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| By: | /s/ Xxxxxxxxxxx X. Black | |||
| Name: | Xxxxxxxxxxx X. Black | |||
| Title: | Senior Vice President & Chief Financial Officer |
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| Trustee WILMINGTON TRUST COMPANY, as Trustee |
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| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Vice President | |||
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