THIRD AMENDMENT TO AMENDED AND
RESTATED LOAN AGREEMENT
This THIRD AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
(this "Amendment") is being entered into as of the 31st day of
July, 1994, by and among PETROLEUM HELICOPTERS, INC., a Delaware
corporation (the "Company"), NATIONSBANK OF TEXAS, N.A., a
national banking association ("NationsBank"), WHITNEY NATIONAL
BANK, a national banking association ("Whitney"), FIRST NATIONAL
BANK OF COMMERCE, a national banking association ("FNBC," and
together with NationsBank and Whitney, being hereinafter referred
to collectively as the "Banks"), and NationsBank as agent for the
Banks (in such capacity, the "Agent").
PRELIMINARY STATEMENTS
(1) The Company, the Banks, and the Agent have entered
into that certain Amended and Restated Loan Agreement, originally
made as of January 31, 1986, as amended and restated in its
entirety as of July 9, 1993 and as further amended by that certain
First Amendment to Amended and Restated Loan Agreement, dated as
of October 31, 1993, and that certain Second Amendment to Amended
and Restated Loan Agreement, dated as of April 15, 1994 (such Loan
Agreement, as amended and restated as aforesaid and as the same
may be further amended from time to time, being hereinafter
referred to as the "Loan Agreement"). Terms used herein unless
otherwise defined herein, shall have the meanings set forth in the
Loan Agreement.
(2) The Company, the Banks, and the Agent now wish to
amend the Loan Agreement to provide, among other things, for the
modification of certain covenants and reporting requirements set
forth therein.
NOW, THEREFORE, in consideration of the premises and for
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Company, the Banks, and the
Agent hereby agree as follows:
1. Subsection 7.01(b) of the Loan Agreement is hereby
amended by deleting said subsection in its entirety and replacing
said subsection with the following subsection:
(b) as soon as available after the end of
each of the first three fiscal quarters of the Company,
and in any event within 60 days thereafter, a copy of
(i) a consolidated balance sheet of the Company and the
Consolidated Subsidiaries as of the end of such fiscal
quarter and (ii) consolidated statements of earnings and
cash flows of the Company and the Consolidated
Subsidiaries for such fiscal quarter and (in the case of
the second and third fiscal quarters of the Company) for
the portion of the fiscal year ending with such fiscal
quarter, setting forth, in each case in comparative
form, the figures for the corresponding periods in the
previous fiscal year, all in reasonable detail and
certified as complete and correct, subject to changes
resulting from year-end adjustments, by the principal
financial officer of the Company;
2. Subsection 7.01(c) of the Loan Agreement is hereby
amended by deleting the phrase "within 45 days after the end of
each month" in such subsection and replacing said phrase with the
phrase "within 45 days after the end of each of the first, second,
fourth, fifth, seventh, eighth, tenth and eleventh months of each
fiscal year of the Company".
3. Subsection 7.01(h) of the Loan Agreement is hereby
amended by deleting the phrase "as soon as available after the end
of each fiscal quarter of the Company, and in any event within 60
days after the end of each such fiscal quarter" in such subsection
and replacing said phrase with the phrase "as soon as available
after the end of each fiscal quarter of the Company, and in any
event within 60 days after the end of each of the first three
fiscal quarters of the Company and within 120 days after the end
of the fourth fiscal quarter of the Company".
4. Subsection 7.01(h) of the Loan Agreement is hereby
further amended by deleting the word "and" immediately before
clause (iv) in such subsection and replacing said word with a
comma.
5. Subsection 7.01(h) of the Loan Agreement is hereby
further amended by inserting the following clause (v) immediately
before the semi-colon at the end of such subsection:
and (v) a written confirmation of the make and
model, manufacturer's serial number and United
States registration number of each Aviation
Unit constituting a portion of the Aircraft,
the month and year of purchase of each such
Aviation Unit and the parish (or county) and
state (or, if such Aviation Unit shall at the
time be situated outside the United States,
the country and province) of the current
location of each thereof.
6. Subsection 7.01(j) of the Loan Agreement is hereby
amended by deleting the phrase "within 45 days after the end of
each month" in such subsection and replacing said phrase with the
phrase "within 45 days after the end of each of the first, second,
fourth, fifth, seventh, eighth, tenth and eleventh months of each
fiscal year of the
Company, within 60 days after the end of each of the first three
fiscal quarters of the Company and within 120 days after the end
of each fiscal year of the Company".
7. Section 8.01 of the Loan Agreement is hereby
amended by deleting clauses (b) and (c) in such section and
replacing said clauses with the following clauses (b), (c) and
(d):
(b) $72,000,000 at the end of each fiscal quarter of the
Company during the period from and including July 31,
1993, to and including April 29, 1994, (c) $74,600,000
at the end of the fiscal quarter of the Company ending
April 30, 1994, and (d) at the end of each fiscal
quarter thereafter, an amount equal to the greater of
(i) $74,600,000, or (ii) the sum of $74,600,000 plus 50%
of Consolidated Net Income for the period commencing on
May 1, 1994 and terminating at the end of the fiscal
quarter most recently ended.
8. Section 8.04 of the Loan Agreement is hereby
amended by deleting clauses (b) and (c) in such section and
replacing said clauses with the following clauses (b) and (c):
(b) for any such period of four consecutive fiscal
quarters ending during the period from and including
February 1, 1994, to and including April 30, 1994, 1.20,
and (c) for any such period of four consecutive fiscal
quarters ending on or after May 1, 1994, 1.15.
9. Each reference in the Loan Agreement to "this
Agreement," "hereunder," "hereof," "herein" or words of like
import referring to the Loan Agreement, and each reference in the
Notes, the Security Documents and any other documents or
instruments executed in connection with the Loan Agreement to the
"Loan Agreement," "thereunder," "thereof" or words of like import
referring to the Loan Agreement shall mean and be a reference to
the Loan Agreement as amended hereby.
10. Except as specifically amended or waived by this
Amendment, the Loan Agreement shall remain in full force and
effect and is in all respects hereby ratified and confirmed, and
the execution, delivery and performance of this Amendment shall
not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of the Agent or any Bank under the Loan
Agreement or the Notes and all of the rights and powers created
thereby or thereunder shall be and remain in full force and
effect.
11. The Company hereby represents that (a) after giving
effect to the amendments contemplated herein, the representations
and warranties contained in the Loan Agreement, the Notes, the
Security Documents, and any other documents or instruments
executed in connection with the Loan Agreement (collectively, the
"Loan Documents") are true and correct on and as of the date
hereof as though made on and as of such date, (b) upon the
execution of this Amendment the Company will not be in default in
the due
performance of any covenant on its part in the Loan Documents, and
(c) no Default or Event of Default has occurred and is continuing
or is imminent.
12. The Company acknowledges, confirms, and warrants
that the Security Documents and any other security instruments
executed at any time in connection with the Loan Agreement
continue to secure, inter alia, the payment of all indebtedness at
any time created pursuant to the Loan Agreement, as hereby
amended.
13. The effectiveness of this Amendment is subject to
(i) the Company's delivery to the Agent, for the account of the
Banks, of the following items:
(a) an Officers' Certificate of the Company with
directors' resolutions attached; and
(b) a counterpart of this Amendment executed by
the Company,
and (ii) the delivery to the Agent of counterparts of this
Amendment executed by each of the Banks.
14. The Company agrees to do, execute, acknowledge, and
deliver, all and every such further acts and instruments as the
Agent may request for the better assuring and confirming unto the
Agent and the Banks all and singular the rights granted or
intended to be granted hereby or hereunder.
15. The Company agrees to pay on demand all reasonable
costs and expenses of the Banks in connection with the
preparation, reproduction, execution, and delivery of this
Amendment and the other instruments and documents to be delivered
hereunder (including the reasonable fees and out-of-pocket
expenses of counsel for the Banks, and with respect to advising
each Bank as to its rights and responsibilities under the Loan
Agreement, as hereby amended). In addition, the Company shall pay
any and all stamp and other taxes and fees payable or determined
to be payable in connection with the execution and delivery,
filing, or recording of this Amendment and the other instruments
and documents to be delivered hereunder, and agrees to save each
Bank harmless from and against any and all liabilities with
respect to or resulting from any delay in paying or omission to
pay such taxes or fees.
16. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall
be deemed to be an original and all of which taken together shall
constitute but one and the same instrument; signature pages may be
detached from multiple separate counterparts and attached to a
single counterpart so that all signature pages are physically
attached to the same document.
17. THIS AMENDMENT SHALL BE INTERPRETED AND GOVERNED
BY, AND THE RIGHTS, OBLIGATIONS AND LIABILITIES OF THE PARTIES
HERETO SHALL BE DETERMINED IN ACCORDANCE WITH, THE INTERNAL LAWS
(AS OPPOSED TO CONFLICT OF LAWS PROVISIONS) AND JUDICIAL DECISIONS
OF THE STATE OF TEXAS AND APPLICABLE FEDERAL LAW. This Amendment
shall be binding upon the Company, the Agent and the Banks and
their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this
Third Amendment to Amended and Restated Loan Agreement to be
executed by their respective officers thereunto duly authorized as
of the date first above written.
PETROLEUM HELICOPTERS, INC.
By: __________________
Name: __________________
Title: __________________
NATIONSBANK OF TEXAS, N.A.,
individually and as Agent
By: __________________
Name: __________________
Title: __________________
WHITNEY NATIONAL BANK
By: __________________
Name: __________________
Title: __________________