AMENDMENT NO. 1

EX-10.3 11 dex103.htm AMENDMENT NO. 1 TO CREDIT AGREEMENT DATED AS OF SEPTEMBER 30, 2004 Amendment No. 1 to Credit Agreement dated as of September 30, 2004

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

 

 

-4-


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

 

 

-4-


AVENUE CLO FUND, LIMITED, as Lender

By:

 

/s/ RICHARD D’ADDARIO


Name:

 

RICHARD D’ADDARIO

Title:

 

SENIOR PORTFOLIO MANAGER

 

 

-4-


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

 

-4-


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

 

-4-


FRANKLIN FLOATING RATE DAILY ACCESS FUND,

as Lender

By:

 

/s/ Richard Hsu


Name:

 

Richard Hsu

Title:

 

Vice President

 

-4-


Franklin Floating Rate Trust,

as Lender

By:

 

/s/ Richard Hsu


Name:

 

Richard Hsu

Title:

 

Vice President

 

-4-


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

 

-4-


FORTRESS PORTFOLIO TRUST, as Lender

By: Four Corners Capital Management

LLC, as Collateral Manager

By:

 

/s/ STEVEN COLUMBARO


Name:

 

STEVEN COLUMBARO

Title:

 

Vice President

 

-4-


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

 

-4-


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

 

-4-


TORONTO DOMINION (NEW YORK), INC.,

as Lender

By:

 

/s/ MASOOD VIKREE


Name:

 

MASOOD VIKREE

Title:

 

VICE PRESIDENT

 

-4-


Metropolitan Life Insurance Company, as Lender

By:

 

/s/ James A. Winott


Name:

 

James A. Winott

Title:

 

Managing Director

 

-4-


MetLife Bank N.A., as Lender

By:

 

/s/ Kenneth A. McIntyre


Name:

 

Kenneth A. McIntyre

Title:

 

Commercial Loan Officer

 

-4-


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

 

-4-


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

 

-4-


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

 

-4-


WhiteHorse I, Ltd, as Lender
By:  

/s/ Ethan M Underwood


Name:   Ethan M Underwood
Title:   Portfolio Manager

 

-4-


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

 

-4-


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

 

-4-


Carlyle High Yield Partners II, Ltd.

[INSERT NAME OF LENDER], as Lender

By:  

/s/ Linda Pace


Name:   Linda Pace
Title:   Managing Director

 

-4-


Carlyle High Yield Partners VI, Ltd., as Lender

By:

 

/s/ Linda Pace


Name:

  Linda Pace

Title:

  Managing Director

 

 

-4-


General Electric Capital Corporation, as Lender

By:

 

/s/ Robert M Kadlick


Name:

 

Robert Kadlick

Title:

 

Duly Authorized Signatory

 

-4-


BUSHNELL CBNA LOAN FUNDING LLC, as Lender

By:

 

/s/ JANET HAACK


Name:

  JANET HAACK

Title:

  AS ATTORNEY-IN-FACT

 

 

-4-


FEINGOLD O’KEEFFE CAPITAL LLC, as Lender

By:

 

/s/ SCOTT DORSI


Name:

 

SCOTT DORSI

Title:

 

PRINCIPAL

 

 

-4-


WESTERN ASSET FLOATING RATE HIGH

INCOME FUND LLC, as Lender

By:

 

/s/ Western Asset Floating Rate High Income Fund LLC


Name:

   

Title:

   

 

-4-


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

 

-4-


Hewett’s Island CLO II, Ltd.

By: CypressTree Investment Management

Company, Inc., as Portfolio Manager

/s/ Jeffrey Megar


Name:

 

Jeffrey Megar

Title:

 

Managing Director

 

-3-


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

 

-4-


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

 

-4-


Landmark IV CDO, Limited as Lender

By:

 

/s/ Alex Baldwin


Name:

 

Alex Baldwin

Title:

 

Authorized Signatory

 

-4-


PROTECTIVE LIFE INSURANCE

COMPANY, as Lender

By:

 

/s/ Diane S. Griswold


Name:

 

Diane S. Griswold

Title:

 

AVP

 

-4-


GOLDMAN SACHS CREDIT PARTNERS L.P., as Lender

By:

 

/s/ Pedro Ramirez


Name:

 

Pedro Ramirez

Title:

 

Authorized Signatory

 

-4-


GOLDMAN SACHS CREDIT PARTNERS

L.P., as Lender

By:

 

/s/ Elizabeth Fischer


Name:

 

Elizabeth Fischer

Title:

 

Authorized Signatory

 

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