FIFTH AMENDMENT TO AMENDED AND
RESTATED LOAN AGREEMENT
This FIFTH AMENDMENT TO AMENDED AND RESTATED LOAN
AGREEMENT (this "Amendment") is being entered into as of the 31st
day of October, 1994, by and among PETROLEUM HELICOPTERS, INC., a
Louisiana corporation (successor by merger to 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originally made as of January 31, 1986, as amended and restated in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, that certain Second Amendment to
Amended and Restated Loan Agreement, dated as of April 15, 1994,
that certain Third Amendment to Amended and Restated Loan
Agreement, dated as of July 31, 1994, and that certain Fourth
Amendment and Limited Waiver to Amended and Restated Loan
Agreement, dated as of October 25, 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) In exchange for an advantageous restructuring
of lease arrangements between the Company and Fleet Credit
Corporation, ("Fleet"), Fleet has requested that the Company grant
Fleet a Lien on one Aviation Unit with a value equal to or less
than $950,000 and which does not constitute a portion of the
Aircraft.
(3) The Company, the Banks, and the Agent now wish
to amend the Loan Agreement to provide, among other things, that
the contemplated Lien in favor of Fleet be a Permitted Lien, as
well as to provide for the extension of the Revolving Credit
Termination Date to October 31, 1996, the extension of the
Conversion Date to October 31, 1996, the extension of the Capital
Loan Termination Date to October 31, 2001, and the modification of
the Applicable Prime Rate and the LIBOR Margin.
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. Section 1.01 of the Loan Agreement is hereby
amended by deleting the definition of "Applicable Prime Rate"
therein in its entirety, and replacing said definition with the
following definition:
"Applicable Prime Rate" shall mean in respect of any
Prime Rate Borrowing a fluctuating rate per annum (based on a year
of 365 or 366 days, as the case may be, and actual days elapsed)
equal to the sum of the Prime Rate plus (i) 0.25% per annum for so
long as the Leverage Ratio is greater than 5.25, or (ii) 0% per
annum for so long as the Leverage Ratio less than or equal to 5.25.
2. Section 1.01 of the Loan Agreement is hereby
further amended by deleting the date October 31, 1995 from the
definition of "Conversion Date" therein and replacing said date
with the date October 31, 1996.
3. Section 1.01 of the Loan Agreement is hereby
further amended by deleting the definition of "LIBOR Margin"
therein in its entirety and replacing said definition with the
following definition:
"LIBOR Margin" means a rate per annum equal to (i)
2.50% per annum for so long as the Leverage Ratio is greater than
5.25, (ii) 2.25% per annum for so long as the Leverage Ratio is
greater than 4.75 but less than or equal to 5.25, or (iii) 2.00%
for so long as the Leverage Ratio is less than or equal to 4.75.
4. Section 2.01 of the Loan Agreement is hereby
amended by deleting the date October 31, 2000, in subsection (b)
thereof and replacing said date with the date October 31, 2001.
5. Section 2.02 of the Loan Agreement is hereby
amended by deleting the date October 31, 1995, in subsection (a)
thereof and replacing said date with the date October 31, 1996.
6. Section 8.05 of the Loan Agreement is hereby
amended by (i) deleting the word "and" at the end of subsection (f)
thereof; (ii) deleting the period at the end of subsection (g)
thereof and replacing said period with a semi-colon followed by the
word "and"; and (iii) by adding the following subsection
immediately after subsection (g) therein:
(h) a lien in favor of Fleet Credit Corporation, solely
with respect to a single Aviation Unit to be identified by the
Company to the Agent on or before December 31, 1994, not
constituting a portion of the Aircraft, provided, however,
that the value of said Aviation Unit, including its engine,
shall not exceed $950,000, said value to be determined in the
manner provided herein for the determination of "Appraised
Value," notwithstanding that the subject Aviation Unit does
not constitute a portion of the Aircraft.
7. Exhibit A to the Loan Agreement is hereby
amended by deleting said exhibit in its entirety and replacing said
exhibit with Exhibit A attached hereto.
8. Exhibit B to the Loan Agreement is hereby
amended by deleting said exhibit in its entirety and replacing said
exhibit with Exhibit B attached hereto.
9. Each reference in the Loan Agreement to "this
Agreement", "hereunder", "herein" or words of like import shall
mean and be a reference to the Loan Agreement as amended hereby.
Unless otherwise indicated, terms used in this Amendment have the
same meanings herein as in the Loan Agreement.
10. The Loan Agreement, as hereby amended, is in
all respects ratified and confirmed, 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
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. This Amendment will be effective upon (i) the
Company's delivery to the Agent, for the account of the Banks, of
the following items:
(a) a counterpart of this Amendment executed by the
Company;
(b) opinions of counsel to the Company in form and substance
acceptable to the Banks (it being agreed that such
opinions, insofar as they address the enforceability of
this Amendment or the Notes to be delivered in connection
herewith, may be conditioned upon approval thereof by the
Board of Directors of the Company);
(c) three original Capital Loan Notes, each dated as of the
date hereof, in substantially the form of Exhibit A
attached hereto with the blanks appropriately filled,
payable to the order of the Banks, and the face amount of
each Bank's Ratable Share of the Capital Loan Commitment,
respectively, and each executed by the Company, and
(d) three original Revolving Credit Notes, each dated as of
the date hereof, in substantially the form of Exhibit B
attached hereto with the blanks appropriately filled,
payable to the order of the Banks, and in the face amount
of each Bank's Ratable Share of the Revolving Credit
Commitment, respectively, and each executed by the
Company; and
(ii) the delivery to the Agent of counterparts of this Amendment
executed by each of the Banks, provided, however, that Paragraphs
1, 2, 3, 4, 5, 7 and 8 of this Amendment will become ineffective in
all respects, such ineffectiveness to be retroactive to October 31,
1994, unless the Company delivers to the Agent, for the account of
the Banks, an Officer's Certificate of the Company with directors'
resolutions ratifying this Amendment and the transactions
contemplated by this Amendment attached, in form and substance
acceptable to the Banks, on or before January 15, 1995.
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.
17. This Amendment shall be governed by and
construed in accordance with the laws of the State of Texas and
shall be binding upon the Company, the Agent, and the Banks and
their respective successors and assigns.
18. FINAL AGREEMENT. THIS AMENDMENT, TOGETHER
WITH THE LOAN AGREEMENT, EACH NOTE. THE COLLATERAL MORTGAGE NOTE
(PARTS). EACH SECURITY DOCUMENT AND ALL OTHER DOCUMENTS EXECUTED
IN CONNECTION HEREWITH AND THEREWITH. REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.