SIXTH AMENDMENT TO AMENDED AND
RESTATED LOAN AGREEMENT
This SIXTH AMENDMENT TO AMENDED AND RESTATED LOAN
AGREEMENT (this "Amendment") is being entered into as of the 27th
day of February, 1995, 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into that certain Amended and Restated Loan Agreement, originally
made as of January 31, 1986, as amended and restated in its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, that certain Fourth
Amendment and Limited Waiver to Amended and Restated Loan
Agreement, dated as of October 25, 1994, and that certain Fifth
Amendment to Amended and Restated Loan Agreement, dated as of
October 31, 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, that the
acquisition by the Company of certain of its stock be permitted,
that certain transfers of Aviation Units that comprise portions
of the Aircraft in exchange for other Aviation Units be
permitted, that the acquisition by the Company of 49% of the
Capital Stock of Irish Helicopters, Limited be permitted, and
that a change in the address of the chief executive office of the
Company be reflected, all subject to the terms and conditions set
forth herein.
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. Amendment of Section 1.01 of the Loan Agreement -
"Louisiana UCC-1 Financing Statement". Section 1.01 of the Loan
Agreement is hereby amended by deletiong the definition of
"Louisiana UCC-1 Financing Stattmetement" in its entirety and
replacing said definition with the following definition:
"Louisiana UCC-1 Financing Statement""" shall
mean, collectively, (a) that certain form UCC-1 financing
statement, filed for recordation as of October 3, 1990,
(Original File No. 26-163010) executed by the Company, as
Debtor, an d by the Agent, as Secured Party, for the equal
and ratable benefit of the Banks and recorded with the Clerk
of Court of Jefferson Parish, Louisiana, together with any
and all supplements, modifications or amendments tthereto or
restatements thereof, including, without
limiationlimitation, any UCC-3 Financing Statement Change
Forms executed and filed in connection wtherewith, and; and
(b) that certain form UCC-1 financing statement , filed for
recordation as of October 28, 1994, (Original File No. 36-
88428) executed by the Company, as Debtor, and by the Agent,
as Secured Party, for the equal and ratable benefit of the
Banks and recrorded with the Clerk of Court of Orleans
Parish , Louisiana, together with any and all supplements,
modifications or amendments thereto or restatements thereof,
including, woithout limitation, any UCC-3 Financing
Statement Change Forms executed and filed in connection
therewith.
2. Additional Amendment of Section 1.01 of the Loan
Agreement - "Security Documents". Section 1.01 of the Loan
Agreement is hereby further amended by deleting from the
definition of "Security Documents" the word "and" immediately
preceding the phrase "the Financing Statement (Change Form- -
Amendment)", replacing said word with a comma, and adding the
following phrase immediately preceding the period at the end of
tsaid definition:
"and the Texas UCC-1 Financing Statement"
n . 3. Additional Amendment of Section 1.01 of the Loan
Agreement - New Definitions. Section 1.01 of the Loan Agreement
is amended by adding the following definitions thereto:
"Stock Repurchase" shall have the meaning specified in
Section 8.02(c) hereof.
"Texas UCC-1 financFinancing Statement" shall mean
that certain form UCC-1 financing statement, filed for
recordation as of October 28, 1994, (Original File
No. 94-211465) executed by the Company, as Debtor, and
by the Agent, as Secured Party, for the equal and
ratable benefit of the bBanks and recorded with the
Secretary of State of Texas, together with any and all
supplements, modifications or amendments thereto or
resetatements thereof, including, without
limiationlimitation, any UCC-23 fFinancing Statement
Change Forms executed and filed in connection
therewith;
4. Amendment of Section 5.14 of the Loan Agreement.
Section 5.14 of the Loan Agreement is hereby amended by deleting
said Section in its entirety and replacing said Section with the
following section:
5.14 Registered Office of Company, Etc. The
registered office of the Company (as shown on the
records of the Secretary of State of the State of
Louisiana) and its chief executive office is, from the
date hereof until August 18, 9951995, 5728 Jefferson
Highway, Harahan, Louisiana 70183, and, on and after
August 19, 1995, is 2121 Airline Highway, Suite 400,
Metairie, Louisiana 70001-5979.
5. Amendment of Section 8.01 of the Loan Agreement.
Section 8.01 of the Loan Agreement is hereby amended by deleting
clauses (c) and (d) from said Section in their entirety and
replacing said clauses with the following clauses:
(c) $70,000,000 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) $70,000,000, or (ii) the sum of
$70,000,000 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.
6. Amendment of Section 8.02 of the Loan Agreement.
Section 8.02 of the Loan Agreement is hereby amended by deleting
the word "and" between clauses (a) and (b) of the proviso
thereto, and adding the following clause (c) immediately
preceding the period at the end of said clause (b):
", and (c) on or before March 5, 1995, purchase up to
413,308 shares of the voting stock of the Company from
Offshore Navigation, Inc. at a purchase price not to
exceed $10.50 per share (the "Stock Repurchase")
7. Amendment of Section 8.07 of Loan Agreement.
Section 8.07 of the Loan Agreement is hereby amended by adding,
immediately after the phrase "one or more joint ventures" in
clause (i) of said Section, the phrase ", other than that
described in clause (iii) of this Section 8.07,". Section 8.07
of the Loan Agreement is hereby further amended by deleting the
word "or" immediately preceding clause (ii) of said Section, and
adding the following clause (iii) immediately preceding the
period at the end of said Section:
, or (iii) the investment by the Company in up to 49%
of the capital stock (or comparable equity securities)
of Irish Helicopters, Limited, a corporation organized
under the laws of the Republic of Ireland, the amount
of such investment not to exceed $4,000,000.
8. Amendment of Section 8.14 of the Loan Agreement.
Section 8.14 of the Loan Agreement is hereby amended by adding
the phrase ", or the Stock Repurchase" immediately preceding the
period at the end of said Section.
9. Additional Amendment of the Loan Agreement -
Addition of Section 9.06. The Loan Agreement is hereby further
amended by adding thereto the following Section:
9.06 Aircraft Exchange Transactions.
(a) If the Company determines that it is in the
best interest of the Company to transfer ownership of
one or more Aviation Units that comprise a portion of
the Aircraft in exchange for one or more other Aviation
Units (whether or not the sale price of the Aviation
Unit to be transferred by the Company includes cash in
addition to the Aviation Unit to be received by the
Company in exchange therefor), then upon the delivery
of an Officers' Certificate stating the United States
registration number of the Aviation Unit to be
transferred and the date (which shall not be less than
14 nor more than 90 days from the date of such
Officers' Certificate) that the Company intends to
consummate such transaction, the Company may request
that the Agent, on behalf of the Banks, release the
Aircraft to be transferred from the Security Interest
and the Agent, on behalf of the Banks, within a
reasonable time after such request and in any event on
or before the date on which the Company consummates
such transaction, shall execute all documents
(including all appropriate termination statements and
releases) required to effect such release, provided
that (i) the Company shall provide the Aviation Unit to
be received by it for inclusion in the Security
Interest pursuant to Subsection 9.06(b), and the sum of
the Appraised Value of said Aviation Unit, as reflected
on a certificate of an Independent Appraiser, in form
and substance acceptable to the Agent, plus the amount
of any cash to be received by the Company as additional
consideration for the Aviation Unit being transferred,
shall be greater than or equal to the Appraised Value,
as reflected on a certificate of an Independent
Appraiser, in form and substance acceptable to the
Agent, of the Aviation Unit to be released, (ii) the
Company shall pay to the Agent for the ratable benefit
of the Banks, to be applied in the same manner as
proceeds of a sale under Section 9.03(c)(i), all cash
proceeds, if any, from such sale, upon the Company's
receipt thereof, and (iii) no Default or Event of
Default has occurred and is continuing or would result
from the release of the Aircraft to be transferred by
the Company (except, that, notwithstanding any
provisions of this Agreement to the contrary, the
Company shall not be required to comply with
Subsection 8.16(b) during the period commencing on the
date the Aircraft to be transferred is released and
ending on the date that the requirements set forth in
Subsection 9.06(b) are satisfied), and the Company
shall have delivered to the Agent an Officers'
Certificate to such effect in the form of Exhibit H to
this Agreement.
(b) For each Aviation Unit that the Company
desires to include in the Security Interest as a
substitute for an Aviation Unit to be released pursuant
to Subsection 9.06(a), the Company shall, upon its
acquisition thereof, grant a first priority security
interest in such Aviation Unit to the Banks to secure
the Company's obligations hereunder and under any other
documents executed in connection herewith or
contemplated hereby, whereupon such Aviation Unit shall
constitute a portion of the Collateral subject to the
Security Interest. Without limitation on the
foregoing, within 60 days after the earlier of the
Company's acquiring the Aviation Unit to be subjected
to the Security Interest or the Agent's release of the
Aircraft pursuant to Subsection 9.06(a), the Company
shall (i) file or cause to be filed a proper bill of
sale or bills of sale covering said Aviation Unit (on
FAA Form 8050-2, "Aircraft Bill of Sale", or on any
other appropriate form) in the Aircraft Registry and in
any other public office necessary for full compliance
by the Company with the terms hereof; (ii) cause said
Aviation Unit to be free and clear of all Liens (other
than Permitted Liens), make the appropriate filings,
registrations and recordings (including the filing of
FAA Form 8050-41 and any appropriate termination
statements or releases) necessary to release any
existing Liens of record and otherwise cause said
Aviation Unit to be in full compliance with all the
terms and provisions of this Agreement with the same
effect as if the same were a portion of the original
Aviation Unit described in this Agreement;
(iii) execute and deliver any registration, recordation
or filing documents and any other appropriate security
documentation as the Agent or any Bank through the
Agent may request for the purpose of describing said
Aviation Unit (including all aircraft engines,
airframes, propellers, rotors, appliances, instruments,
mechanisms, equipment (including communications
equipment), parts, apparatus, appurtenances and
accessories) in reasonable detail, and expressly and
specifically subjecting the same to the Security
Interest; (iv) deliver or cause to be delivered to the
Agent and each Bank an opinion of counsel (dated the
date of the filing for recordation in the Aircraft
Registry of the security documentation referred to in
clause (iii) above) to the effect that the Company has
good and marketable title to said Aviation Unit free of
all Liens (other than Permitted Liens) and that said
Aviation Unit has been duly subjected to the Security
Interest and constitutes a portion of the Collateral;
and (v) deliver to the Agent and each Bank an Officers'
Certificate certifying that the Company is in full
compliance with all provisions of this Agreement with
respect to the same.
(c) The Agent shall be absolutely entitled to
rely on the Officers' Certificates, certificates of
Independent Appraisers and opinions of counsel referred
to in Subsections 9.06(a) and (b) for the veracity of
each of the statements made therein absent actual
knowledge to the contrary on the part of the officer of
the Agent executing the documents relating to such
release or addition. The Agent shall not be required
to investigate or verify any statement made in such
Officers' Certificates, certificates of Independent
Appraisers and opinions of counsel and any
investigation that the Agent shall elect to undertake
shall not affect its ability to rely on such Officers'
Certificates, Certificates of Independent Appraisers
and opinions of counsel.
(d) Each of the Banks hereby authorizes the
Agent, upon the delivery of the Officers' Certificate,
certificates of Independent Appraisers and opinion of
counsel required by Subsections 9.06(a) and (b), to
execute and deliver (and, where appropriate, as
determined by the Agent in its sole and independent
discretion, to authorize others to execute and deliver
on its behalf) on behalf of the Banks, all documents
required to effect the release of the Aviation Unit to
be sold and the addition of one or more substitute
Aviation Unit received by the Company in exchange
therefor to the Security Interest.
(e) At no one time shall there be more than three
(3) Aircraft that are the subject of releases from the
Security Interest unless all requirements set forth in
Subsections 9.06(a) and 9.06(b) with respect thereto
and with respect to the Aviation Units to be subjected
to the Security Interest in place thereof have been
satisfied.
10. Additional Amendment of the Loan Agreement -
Addition of Exhibit H. The Loan Agreement is hereby further
amended by adding Exhibit H thereto in the form of Exhibit A to
this Amendment.
11. Amendment odf Financing Statements: The Company,
the Banks and the Agent further agree that (a) the various
financing statements evidencing the Security Interest shall be
amended so that they reflect the change in the address of the
Company's chief executive office, and (b) Exhibit "A" to each of
the Louisiana UCC-1 Financing Statements, and the UCC-1 Financing
Statement the Texas UCC-1 Financing Statement, and the UCC-1
Financing Statement shall be amended as set forth in Exhibit B
hereto in order to more accurately reflect the agreement of the
Company, the Banks and the Agent as to the scope of the Security
Interest in parts, products and proceeds of, and general
intangibles relating to, aircraft.
12. Company's Representations and Warranties. In
order to induce the Agent and the Banks to enter into this
Amendment, 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 and the
Security Documents (collectively, the "Loan Documents")
are true and correct on and as of the date hereof as
though made on and as of such date, except to the
extent such representations and warranties specifically
relate to an earlier date, in which case they were true
and correct 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;
(c) no Default or Event of Default has occurred
and is continuing or is imminent;
(d) the Company has all requisite power and
authority to enter into this Amendment and any and all
documents effecting the Stock Repurchase (the "Stock
Repurchase Documents") and to carry out the
transactions contemplated by, and to perform its
obligations under, the Loan Agreement, as modified by
this Amendment (the "Modified Agreement"), and the
Stock Repurchase Documents; and
(e) the execution and delivery of this Amendment
and the Stock Repurchase Documents and the performance
of the Modified Agreement and the Stock Repurchase
Documents have been duly authorized by all necessary
corporate actions on the part of the Company.
13. Conditions to Effectiveness. This Amendment will
be effective, as of the date first above written, 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; and
(c) 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; and
(ii) the delivery to the Agent of counterparts of this Amendment
executed by each of the Banks.
14. Further Assurances. 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. Reference to and Effect on the Loan Agreement and
the Security Documents; Limitation of Waivers.
(a) On and after the date of this Amendment, 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
Security Documents to the "Loan Agreement", "thereunder",
"thereof" or words of like import referring to the Loan
Agreement shall mean and be a reference to the Modified
Agreement.
(b) Except as specifically amended hereby, the
Loan Agreement and the Security Documents shall remain in
full force and effect and are hereby ratified and confirmed,
and the execution, delivery and performance of this
Amendment shall not, except as expressly provided herein,
operate as a modification of any right, power or remedy of
the Agent or any Bank under the Loan Agreement. Without
limiting the generality of the foregoing, nothing in this
Amendment shall be deemed (a) to constitute a waiver of
compliance by the Company with respect to any other
provision or condition of the Loan Agreement or (b) to
prejudice any right or remedy that the Agent or any Bank may
now have (except to the extent such right or remedy was
based upon existing defaults that will not exist after
giving effect to this Amendment) or may have in the future
under or in connection with the Loan Agreement or any other
instrument referred to therein.
16. Fees and Expenses. 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.
17. Headings. Section headings in this Amendment are
included herein for convenience of reference only and shall not
constitute a part of this Amendment for any other purpose or be
given any substantive effect.
18. Counterparts; Effectiveness. 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. Upon satisfaction of the conditions set forth in
Section 5 hereof, this Amendment shall be deemed effective as of
the date hereof.
19. Governing Law; Binding Agreement. THIS AMENDMENT
SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES, and shall be binding upon the Company, the
Agent, and the Banks and their respective successors and assigns.
20. 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.
[Remainder of page intentionally left blank.]
DAL02:70954.4
IN WITNESS WHEREOF, the parties hereto have caused this
Sixth 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:
FIRST NATIONAL BANK OF
COMMERCE
By:
Name:
Title:
DAL02:70954.4
EXHIBIT A
TO
SIXTH AMENDMENT TO
AMENDED AND RESTATED
LOAN AGREEMENT
EXHIBIT H
OFFICERS' CERTIFICATE
OF PETROLEUM HELICOPTERS, INC.
AS TO AIRCRAFT EXCHANGE TRANSACTION
The undersigned, Carroll W. Suggs and John H. Untereker, the
Chairman of the Board and the Treasurer, respectively, of
Petroleum Helicopters, Inc., a Louisiana corporation (the
"Company"), on our own behalf and on behalf of the Company,
hereby certify as to the matters set forth in the numbered
paragraphs below. The capitalized terms used and not defined
herein are used with the same meaning assigned thereto in that
certain Loan Agreement among the Company and NationsBank of
Texas, N.A. (formerly known as NCNB Texas National Bank and
successor-in-interest to First RepublicBank Houston N.A.),
Whitney National Bank (formerly known Whitney National Bank of
New Orleans), and First National Bank of Commerce, originally
dated January 31, 1986, as amended and restated in its entirety
as of July 9, 1993 (as amended and restated as aforesaid, and as
thereafter amended, the "Loan Agreement").
(3) The Company is currently and will be, immediately after
giving effect to Amendment No. ______ dated ____________,
199__, to the Louisiana Security Agreement (the
"Amendment"), in full compliance with all of the provisions
of the Loan Agreement (except that, pursuant to Subsection
9.06(a) of the Loan Agreement, the Company need not be in
compliance with Subsection 8.16(b) of the Loan Agreement
during a certain period commencing with the effectiveness of
said Amendment).
(4) The helicopters to be released consist of one or more
complete helicopters or other Aviation Units.
(5) The portion of the Aircraft remaining subject to the
Security Interest consist of complete helicopters or other
Aviation Units in the operating condition required by
Section 7.09 of the Loan Agreement to be maintained by the
Company.
(6) There is currently no Default or Event of Default under the
Loan Agreement, no such Default or Event of Default is
imminent and no such Default or Event of Default will be
precipitated or continued by the transactions contemplated
herein. The Company is currently, and immediately after
giving effect to the Amendment will be, in full compliance
with each of the Security Documents.
(7) Upon satisfaction of the requirements set forth in
Subsection 9.06(b) of the Loan Agreement, the Company will
be in compliance with Subsection 8.16(b) of the Loan
Agreement.
IN TESTIMONY WHEREOF, we hereunto set over our hands and
affix the corporate seal of the Company on this __ day of
___________, 199___.
Carroll W. Suggs
Chairman of the Board
John H. Untereker
Treasurer
DAL02:70954.4
EXHIBIT B
TO
SIXTH AMENDMENT TO
AMENDED AND RESTATED
LOAN AGREEMENT
for Financing Statement Amendments]
[to come from Jones, Walker]
1. The parenthetical in paragraph I of Exhibit A of each
of the Texas UCC-1 Financing Statements and the Louisiana UCC-1
Financing Statement shall be amended by deleting the current
texas t thereof in its entirety and replacing said aparenthetical
with the following parenthetical:
"(excluding, however, (a) any of the
foregoing items incorporated or installed in
or attached or apperteaining to any engine-
powered devidce that is used or intended by
to be used for flight in the air but wichhich
is not covered by paragraph II hereof
(collectively, the "excluded aircraft"); and
(b) any of the foregoing items which have
been incoropratedincorporated or installed in
any excluded aircraft but have been
temporarily removed from the excluded
aircraft for the purpose of maintenance or
repairs):"
2. The parenthetical in paragraph 3 of the UCC-1 Financing
Statement shall be amended by deleting the current text thereof
in its entirety and replacing said parenthetical with the
following parenthetical:
"(excluding, however, (a) any of the foregioing items
incorporated or installed in or attached or appertaining to
any engine-powered device that is used or intended to be
used for lflight in the air but which is not subject to a
lien or security interest in favor of the Secured Party
(collectively, the "excluded aircraft"),; and (b) any of the
foregoing items which have been incorporated or installed in
any excluded aircraft buth have been temporarily removed
from the excluded aircraft for the purpose of maintenance or
repairs)" ; and
DAL02:70954.4