AMENDMENT NO. 1
Exhibit 10.3
AMENDMENT NO. 1
AMENDMENT NO. 1 (this “Amendment”), dated as of September 30, 2004, to that certain Credit Agreement, dated as of July 7, 2004 (the “Credit Agreement”; capitalized terms used herein and not defined herein shall have the meaning set forth in the Credit Agreement), among Horizon Lines, LLC, a Delaware limited liability company, as borrower (“Borrower”), UBS AG, Stamford Branch, as administrative agent (the “Administrative Agent”), the lenders from time to time party thereto (the “Lenders”), and the other parties thereto.
W I T N E S S E T H:
WHEREAS, Section 9.2 of the Credit Agreement permits the Credit Agreement to be amended from time to time;
NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION ONE Amendment. Section 6.14 of the Credit Agreement shall be amended by: (i) replacing the “and” appearing immediately before “(b)” in such Section with a comma and (ii) adding, at the end of the sentence appearing in such Section, the following, “and (c) expenditures made during such fiscal year in respect of a buy-out, acquisition or other purchase of a Chartered Vessel subject to a Chartered Vessel Document that would otherwise be classified as Capital Expenditures shall be deemed not to be Capital Expenditures for such fiscal year solely for the purposes of this Section 6.14”.
SECTION TWO Conditions to Effectiveness. This Amendment shall become effective as of the date (the “Effective Date”) when, and only when the Administrative Agent shall have received counterparts of this Amendment executed by the Borrower and a number of Lenders sufficient to constitute the Required Lenders. The effectiveness of this Amendment (other than Sections Five, Six and Seven hereof) is conditioned upon the accuracy of the representations and warranties set forth in Section Three hereof.
SECTION THREE Representations and Warranties; Covenants. In order to induce the Required Lenders to enter into this Amendment, the Borrower represents and warrants to each of the Lenders that both before and after giving effect to this Amendment: (a) no Default or Event of Default has occurred and is continuing and (b) all of the representations and warranties in the Credit Agreement are true and complete in all material respects on and as of the date hereof as if made on the date hereof (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date).
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SECTION FOUR Reference to and Effect on the Credit Agreement. On and after the Effective Date, each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof” or words of like import referring the Credit Agreement, and each reference in each of the Loan Documents to “the Credit Agreement,” “thereunder,” “thereof” or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement, as amended by this Amendment. The Credit Agreement and each of the other Loan Documents, as specifically amended by this Amendment, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or any Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents.
SECTION FIVE Costs and Expenses. Borrower agrees to pay all reasonable costs and expenses of the Administrative Agent in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any (including, without limitation, the reasonable fees and expenses of Cahill Gordon & Reindel LLP, counsel to the Administrative Agent).
SECTION SIX Execution in Counterparts. This Amendment may be executed in any number of counterparts and by different 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 but one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment by telecopier shall be effective as delivery of a manually executed counterpart of this Amendment.
SECTION SEVEN Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO ANY PROVISIONS THEREOF RELATING TO CONFLICTS OF LAW).
[Signature Pages Follow]
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| HORIZON LINES, LLC, as Borrower | ||
| By: | /s/ Michael T. Avara | |
| Name: | Michael T. Avara | |
| Title: | Treasurer | |
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| HARBOUR TOWN FUNDING LLC, as Lender | ||
| By: | /s/ DIANA M. HIMES | |
| Name: | DIANA M. HIMES | |
| Title: | ASSISTANT VICE PRESIDENT | |
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| ABN AMRO Bank NV, as Lender | ||
| By: | /s/ Angela Noique | |
| Name: | Angela Noique | |
| Title: | Director | |
| By: | /s/ John M. Pastore | |
| Name: | John M. Pastore | |
| Title: | Vice President | |
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| Sankaty Advisors, LLC as Collateral Manager for AVERY POINT CLO, LTD., as Term Lender, as Lender | ||
| By: | /s/ Diane Exter | |
| Name: | Diane Exter | |
| Title: | Managing Director/Portfolio Manager | |
| SANKATY ADVISORS, LLC AS COLLATERAL MANAGER FOR RACE POINT CLO, LIMITED, AS TERM LENDER | ||
| By: | /s/ Diane Exter | |
| Name: | Diane Exter | |
| Title: | Managing Director/Portfolio Manager | |
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| Sankaty Advisors, LLC as Collateral Manager for Race Point II CLO, Limited, as Term Lender, as Lender | ||
| By: | /s/ Diane Exter | |
| Name: | Diane Exter | |
| Title: | Managing Director/Portfolio Manager | |
| SANKATY ADVISORS, LLC AS COLLATERAL MANAGER FOR CASTLE HILL II–INGOTS, LTD., AS TERM LENDER | ||
| By: | /s/ Diane Exter | |
| Name: | Diane Exter | |
| Title: | Managing Director/Portfolio Manager | |
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| AVENUE CLO FUND, LIMITED, as Lender | ||
| By: | /s/ RICHARD D’ADDARIO | |
| Name: | RICHARD D’ADDARIO | |
| Title: | SENIOR PORTFOLIO MANAGER | |
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| SRF 2000, INC., as Lender | ||
| By: | /s/ DIANA M. HIMES | |
| Name: | DIANA M. HIMES | |
| Title: | ASSISTANT VICE PRESIDENT | |
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| Fidelity Advisor Series II: Fidelity Advisor Floating Rate High Income Fund, as Lender | ||
| By: | /s/ John H. Costello | |
| Name: | John H. Costello | |
| Title: | Assistant Treasurer | |
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| Ballyrock CLO II Limited, By: Ballyrock Investment Advisors LLC, as Collateral Manager, as Lender | ||
| By: | /s/ Lisa Rymut | |
| Name: | Lisa Rymut | |
| Title: | Assistant Treasurer | |
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| Ballyrock CDO I Limited, By: Ballyrock Investment Advisors LLC, as Collateral Manager, as Lender | ||
| By: | /s/ Lisa Rymut | |
| Name: | Lisa Rymut | |
| Title: | Assistant Treasurer | |
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| PPM SPYGLASS FUNDING TRUST, as Lender | ||
| By: | /s/ Diana M. Himes | |
| Name: | DIANA M. HIMES | |
| Title: | AUTHORIZED AGENT | |
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| PPM MONARCH BAY FUNDING LLC, as Lender | ||
| By: | /s/ Diana M. Himes | |
| Name: | DIANA M. HIMES | |
| Title: | ASSISTANT VICE PRESIDENT | |
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| HUDSON STRAITS CLO 2004, LTD. By Royal Bank of Canada as Collateral Manager | ||
| By: | /s/ Melissa Marano | |
| Name: | Melissa Marano | |
| Title: | Authorized Signatory | |
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| TRS CALLISTO LLC, as Lender | ||
| By: | /s/ Alice L. Wagner | |
| Name: | Alice L. Wagner | |
| Title: | Vice President | |
| Addison CDO, Limited | ||
| By: | Pacific Investment Management Company LLC, as its Investment Advisor | |
| By: | /s/ Mohan V. Phansalkar | |
| Mohan V. Phansalkar | ||
| Managing Director | ||
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| Jissekikun Funding, Ltd. | ||
| By: | Pacific Investment Management Company LLC, as its Investment Advisor | |
| By: | /s/ Mohan V. Phansalkar | |
| Mohan V. Phansalkar | ||
| Managing Director | ||
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| Loan Funding III LLC | ||
| By: | Pacific Investment Management Company LLC, as its Investment Advisor | |
| By: | /s/ Mohan V. Phansalkar | |
| Mohan V. Phansalkar Managing Director | ||
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| SEQUILS-MAGNUM, LTD. | ||
| By: | Pacific Investment Management Company LLC, as its Investment Advisor | |
| By: | /s/ Mohan V. Phansalkar | |
| Mohan V. Phansalkar | ||
| Managing Director | ||
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| Southport CLO, Limited | ||
| By: | Pacific Investment Management Company LLC, as its Investment Advisor | |
| By: | /s/ Mohan V. Phansalkar | |
| Mohan V. Phansalkar | ||
| Managing Director | ||
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| Waveland – INGOTS, LTD. | ||
| By: | Pacific Investment Management Company LLC, as its Investment Advisor | |
| By: | /s/ Mohan V. Phansalkar | |
| Mohan V. Phansalkar | ||
| Managing Director | ||
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| Wrigley CDO, Ltd. | ||
| By: | Pacific Investment Management Company LLC, as its Investment Advisor | |
| By: | /s/ Mohan V. Phansalkar | |
| Mohan V. Phansalkar | ||
| Managing Director | ||
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| Clydesdale CLO 2004, Ltd., as Lender | ||
| By: | /s/ Elizabeth MacLean | |
| Name: | Elizabeth MacLean | |
| Title: | Director | |
| NOMURA CORPORATE RESEARCH AND ASSET MANAGEMENT INC. AS INVESTMENT ADVISER | ||
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| Clydesdale CLO 2001-1, Ltd., as Lender | ||
| By: | /s/ Elizabeth MacLean | |
| Name: | Elizabeth MacLean | |
| Title: | Director | |
| NOMURA CORPORATE RESEARCH AND ASSET MANAGEMENT INC. AS COLLATERAL MANAGER | ||
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| ARUM CLO 2002-1 LTD., by Columbia Management Advisors, Inc. as Investment Manager, as a Lender | ||
| By: | /s/ MARK PELLETIER | |
| Name: | MARK PELLETIER | |
| Title: | DIRECTOR | |
| Franklin CLO I, Limited, as Lender | ||
| By: | /s/ DAVID ARDINI | |
| Name: | DAVID ARDINI | |
| Title: | VICE PRESIDENT | |
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| Franklin CLO II, Limited, as Lender | ||
| By: | /s/ DAVID ARDINI | |
| Name: | DAVID ARDINI | |
| Title: | VICE PRESIDENT | |
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| Franklin CLO III, Limited, as Lender | ||
| By: | /s/ DAVID ARDINI | |
| Name: | DAVID ARDINI | |
| Title: | VICE PRESIDENT | |
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| FRANKLIN CLO IV, LIMITED, as Lender | ||
| By: | /s/ DAVID ARDINI | |
| Name: | DAVID ARDINI | |
| Title: | VICE PRESIDENT | |
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| FRANKLIN FLOATING RATE DAILY ACCESS FUND, as Lender | ||
| By: | /s/ Richard Hsu | |
| Name: | Richard Hsu | |
| Title: | Vice President | |
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| Franklin Floating Rate Trust, as Lender | ||
| By: | /s/ Richard Hsu | |
| Name: | Richard Hsu | |
| Title: | Vice President | |
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| Franklin Floating Rate Master Series, as Lender | ||
| By: | /s/ Richard Hsu | |
| Name: | Richard Hsu | |
| Title: | Vice President | |
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| SECURITY INCOME FUND-INCOME OPPORTUNITY SERIES, as Lender By: Four Corners Capital Management LLC, as Collateral Manager | ||
| By: | /s/ STEVEN COLUMBARO | |
| Name: | STEVEN COLUMBARO | |
| Title: | Vice President | |
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| FORTRESS PORTFOLIO TRUST, as Lender | ||
| By: Four Corners Capital Management LLC, as Collateral Manager | ||
| By: | /s/ STEVEN COLUMBARO | |
| Name: | STEVEN COLUMBARO | |
| Title: | Vice President | |
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| FIRST TRUST/FOUR CORNERS SENIOR FLOATING RATE INCOME FUND II, as Lender | ||
| By: Four Corners Capital Management LLC, as Collateral Manager | ||
| By: | /s/ STEVEN COLUMBARO | |
| Name: | STEVEN COLUMBARO | |
| Title: | Vice President | |
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| FIRST TRUST/FOUR CORNERS SENIOR FLOATING RATE INCOME FUND, as Lender | ||
| By: Four Corners Capital Management LLC, as Collateral Manager | ||
| By: | /s/ STEVEN COLUMBARO | |
| Name: | STEVEN COLUMBARO | |
| Title: | Vice President | |
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| LaSalle Bank, National Association as Lender | ||
| By: | /s/ Kathleen L. Ross | |
| Name: | Kathleen L. Ross | |
| Title: | Senior Vice President | |
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| TORONTO DOMINION (NEW YORK), INC., as Lender | ||
| By: | /s/ MASOOD VIKREE | |
| Name: | MASOOD VIKREE | |
| Title: | VICE PRESIDENT | |
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| Metropolitan Life Insurance Company, as Lender | ||
| By: | /s/ James A. Winott | |
| Name: | James A. Winott | |
| Title: | Managing Director | |
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| MetLife Bank N.A., as Lender | ||
| By: | /s/ Kenneth A. McIntyre | |
| Name: | Kenneth A. McIntyre | |
| Title: | Commercial Loan Officer | |
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| UBS LOAN FINANCE LLC, as Lender | ||
| By: | /s/ Juan Zuriga | |
| Name: | Juan Zuriga | |
| Title: | Associate Director Banking Products Services, US | |
| By: | /s/ Safloz Sikka | |
| Name: | Safloz Sikka | |
| Title: | Associate Director Banking Products Services, US | |
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| UBS AG, STAMFORD BRANCH, as Lender | ||
| By: | /s/ Juan Zuriga | |
| Name: | Juan Zuriga | |
| Title: | Associate Director Banking Products Services, US | |
| By: | /s/ Safloz Sikka | |
| Name: | Safloz Sikka | |
| Title: | Associate Director Banking Products Services, US | |
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| Dryden V-Leveraged Loan CD( 2003, By Prudential Investment Management, Inc., as Collateral Manager | ||
| By: | /s/ Janet G. Crowe | |
| Name: | Janet G. Crowe | |
| Title: | Vice President | |
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| WhiteHorse I, Ltd, as Lender | ||
| By: | /s/ Ethan M Underwood | |
| Name: | Ethan M Underwood | |
| Title: | Portfolio Manager | |
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| Denali Capital LLC, managing member of DC Funding Partners, portfolio manager for DENALI CAPITAL CLO III, LTD., or an affiliate | ||
| By: | /s/ Kelli C. Marti | |
| Name: | Kelli C. Marti | |
| Title: | VICE PRESIDENT | |
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| Denali Capital LLC, managing member of DC Funding Partners, portfolio manager for DENALI CAPITAL CLO IV, LTD., or an affiliate | ||
| By: | /s/ Kelli C. Marti | |
| Name: | Kelli C. Marti | |
| Title: | Vice President | |
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| Carlyle High Yield Partners II, Ltd. [INSERT NAME OF LENDER], as Lender | ||
| By: | /s/ Linda Pace | |
| Name: | Linda Pace | |
| Title: | Managing Director | |
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| Carlyle High Yield Partners VI, Ltd., as Lender | ||
| By: | /s/ Linda Pace | |
| Name: | Linda Pace | |
| Title: | Managing Director | |
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| General Electric Capital Corporation, as Lender | ||
| By: | /s/ Robert M Kadlick | |
| Name: | Robert Kadlick | |
| Title: | Duly Authorized Signatory | |
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| BUSHNELL CBNA LOAN FUNDING LLC, as Lender | ||
| By: | /s/ JANET HAACK | |
| Name: | JANET HAACK | |
| Title: | AS ATTORNEY-IN-FACT | |
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| FEINGOLD O’KEEFFE CAPITAL LLC, as Lender | ||
| By: | /s/ SCOTT DORSI | |
| Name: | SCOTT DORSI | |
| Title: | PRINCIPAL | |
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| WESTERN ASSET FLOATING RATE HIGH INCOME FUND LLC, as Lender | ||
| By: | /s/ Western Asset Floating Rate High Income Fund LLC | |
| Name: | ||
| Title: | ||
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| New Alliance Global CDO, Limited, as Lender | ||
| By: Alliance Capital Management L.P., as Sub-Advisor | ||
| By: Alliance Capital Management Corporation, as General Partner | ||
| By: | /s/ Sverker Johansson | |
| Name: | Sverker Johansson | |
| Title: | Vice President | |
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| Hewett’s Island CLO II, Ltd. | ||
| By: CypressTree Investment Management Company, Inc., as Portfolio Manager | ||
| /s/ Jeffrey Megar | ||
| Name: | Jeffrey Megar | |
| Title: | Managing Director | |
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| NATIONAL CITY BANK, as Lender | ||
| By: | /s/ Theresa Marie Smith | |
| Name: | Theresa Marie Smith | |
| Title: | Senior Vice President | |
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| LCM I Limited Partnership | ||
| By: | Lyon Capital Management LLC, as Collateral Manager, as Lender | |
| By: | /s/ Farboud Tavangar | |
| Name: | Farboud Tavangar | |
| Title: | LYON CAPITAL MANAGEMENT LLC | |
| Senior Portfolio Manager | ||
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| STANFIELD MODENA CLO, LTD. | ||
| By: | Stanfield Capital Partners LLC as its Asset Manager as Lender | |
| By: | /s/ Christopher E. Jansen | |
| Name: | Christopher E. Jansen | |
| Title: | Managing Partner | |
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| Landmark IV CDO, Limited as Lender | ||
| By: | /s/ Alex Baldwin | |
| Name: | Alex Baldwin | |
| Title: | Authorized Signatory | |
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| PROTECTIVE LIFE INSURANCE COMPANY, as Lender | ||
| By: | /s/ Diane S. Griswold | |
| Name: | Diane S. Griswold | |
| Title: | AVP | |
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| GOLDMAN SACHS CREDIT PARTNERS L.P., as Lender | ||
| By: | /s/ Pedro Ramirez | |
| Name: | Pedro Ramirez | |
| Title: | Authorized Signatory | |
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| GOLDMAN SACHS CREDIT PARTNERS L.P., as Lender | ||
| By: | /s/ Elizabeth Fischer | |
| Name: | Elizabeth Fischer | |
| Title: | Authorized Signatory | |
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