SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended: January 31, 1995
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 FOR THE
TRANSITION PERIOD FROM __________ TO __________
Commission file number 0-9827
PETROLEUM HELICOPTERS, INC.
(Exact name of registrant as specified in its charter)
Louisiana 72-0395707
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5728 JEFFERSON HIGHWAY
P. O. BOX 23502
NEW ORLEANS, LOUISIANA 70183
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (504) 733-6790
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15 (d) of the
Securities Exchange Act of 1934 during the preceding 12 months (or
for such shorter period that the registrant was required to file
such reports), and (2) has been subject to such filing requirements
for the past 90 days.
YES X NO
APPLICABLE ONLY TO CORPORATE ISSUERS:
Indicate the number of shares outstanding of each of the Issuer's
classes of common stock, as of the latest practicable date.
Class Outstanding at February 28, 1995
Voting Common Stock 2,864,760
Non-Voting Common Stock 2,200,000
<PAGE>
PART I - FINANCIAL INFORMATION
Item 1. FINANCIAL STATEMENTS
PETROLEUM HELICOPTERS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
In thousands January 31, April 30,
(Current period unaudited) 1995 1994 (1)
_____________ _____________
ASSETS
Current assets:
Cash and cash equivalents $ 1,462 $ 5,570
Accounts receivable - net
of allowance 30,578 27,641
Inventory 26,261 24,850
Prepaid expenses 770 1,446
Refundable income taxes - 196
_______ _______
Total current assets 59,071 59,703
Notes receivable - 290
Investments 1,154 597
Property and equipment:
Cost 200,130 194,810
Less accumulated depreciation (113,067) (109,171)
_______ _______
87,063 85,639
_______ _______
Other assets 100 83
_______ _______
$ 147,388 $ 146,312
======= =======
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable and
accrued expenses $ 17,018 $ 15,740
Accrued vacation pay 4,741 4,687
Income taxes payable 1,090 -
Current portion of long-term debt 6,742 8,704
_______ _______
Total current liabilities 29,591 29,131
Long-term debt 29,254 31,849
Deferred income taxes 10,023 10,023
Other long-term liabilities 4 -
Stockholders' equity:
Voting common stock 273 273
Non-voting common stock 183 183
Additional paid-in capital 11,027 11,027
Retained earnings 67,033 63,826
______ ______
78,516 75,309
_______ _______
$ 147,388 $ 146,312
======= =======
(1)The balance sheet at April 30, 1994 is condensed from
the audited financial statements at that date.
See notes to condensed consolidated financial statements.
PETROLEUM HELICOPTERS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF EARNINGS
Three Months Nine Months
In thousands, except per Ended January 31, Ended January 31,
share amounts 1995 1994 1995 1994
(unaudited)
REVENUES:
Operating revenues $ 42,095 $ 42,384 $ 130,493 $137,660
Gain (loss) on equipment
disposals (183) (152) 773 289
Equity in net earnings
(losses) of investee (9) (1) 72 2
companies _______ _______ _______ _______
41,903 42,231 131,338 137,951
_______ _______ _______ _______
EXPENSES:
Direct expenses 36,964 38,756 115,481 125,476
Selling, general and
administrative expenses 2,700 2,041 7,774 6,838
Interest expense 812 679 2,300 2,009
_______ _______ _______ _______
40,476 41,476 125,555 134,323
_______ _______ _______ _______
Earnings before income
taxes 1,427 755 5,783 3,628
Income taxes 617 343 2,357 1,492
_______ _______ _______ _______
Net earnings $ 810 $ 412 $ 3,426 $ 2,136
======= ======= ======= =======
Net earnings per share $ .15 $ .08 $ .63 $ .39
======= ======= ======= =======
Weighted average common
shares outstanding 5,478 5,478 5,478 5,478
======= ======= ======= =======
Dividends paid per common
share $ .02 $ -0- $ .04 $ -0-
======= ======= ======= =======
See notes to condensed consolidated financial statements.
<PAGE>
PETROLEUM HELICOPTERS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
In thousands Nine Months Ended January 31,
(unaudited) 1995 1994
____ ____
OPERATING ACTIVITIES:
Net earnings $ 3,426 $ 2,136
Depreciation 6,335 6,209
Amortization of deferred credit 16 -0-
Gain on equipment disposals (773) (289)
Equity in net earnings
of investee companies (72) (2)
Changes in operating assets
and liabilities (1,261) 6,006
_______ _______
Net cash provided by operating
activities 7,671 14,060
_______ _______
INVESTING ACTIVITIES:
Purchases of property and
equipment (16,357) (12,652)
Proceeds from equipment disposals 9,354 927
_______ _______
Net cash used by
investing activities (7,003) (11,725)
_______ _______
FINANCING ACTIVITIES:
Proceeds from long-term debt 9,250 30,280
Payments on long-term debt (13,807) (30,382)
Dividends paid (219) -
_______ _______
Net cash used by
financing activities (4,776) (102)
_______ _______
Increase (decrease) in cash
and cash equivalents (4,108) 2,233
Cash and cash equivalents
at beginning of period 5,570 2,309
_______ _______
Cash and cash equivalents
at end of period $ 1,462 $ 4,542
======= =======
See notes to condensed consolidated financial statements.
PETROLEUM HELICOPTERS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
NINE MONTHS ENDED JANUARY 31, 1995 AND 1994
(UNAUDITED)
A. These financial statements, except for the April 30, 1994
condensed consolidated balance sheet, have been prepared
without audit in compliance with the rules and regulations of
the Securities and Exchange Commission. Certain information
and footnote disclosures normally included in the financial
statements have been condensed or omitted pursuant to
such rules and regulations; however, the Company believes that
this information is fairly presented. These condensed
consolidated financial statements should be read in
conjunction with the Company's Annual Report on Form 10-K for
the year ended April 30, 1994 and its accompanying notes and
Management's Discussion and Analysis of Financial Condition
and Results of Operations.
B. In the opinion of management, the accompanying unaudited
condensed consolidated financial statements contain all
adjustments, consisting of only normal, recurring adjustments,
necessary to fairly present the financial results
for the interim periods presented.
C. The Company's financial results, particularly as it relates to
its domestic oil and gas operations, are influenced by
seasonal fluctuations. During the Company's third fiscal
quarter, there are fewer hours of daylight and typically more
days of adverse weather conditions than during the Company's
other fiscal quarters. Consequently, flight hours are
generally lower during this quarter, producing a seasonal
aspect to the Company's business. This typically results in
reduced revenues from operations during those months.
Therefore, the results of operations for interim periods are
not necessarily indicative of the operating results that may
be expected for the full fiscal year.
D. Certain reclassifications have been made to the prior year's
financial statements in order to conform with the
classifications adopted for reporting in fiscal 1995.
<PAGE>
Item 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
The following is a comparison of the third quarter and the
first nine months of the fiscal year ending April 30, 1995 with the
comparable periods of the prior fiscal year.
The Company is engaged in providing helicopter transportation
and related services. The predominant portion of its revenue is
derived from transporting offshore oil and gas production and
drilling workers on a worldwide basis. The Company also performs
helicopter transportation services for a variety of hospital and
medical programs and aircraft maintenance to outside parties.
RESULTS OF OPERATIONS
Third Quarter Fiscal 1995 to Fiscal 1994
Operating revenues decreased $0.3 million, or 1%, to $42.1
million in the third quarter of fiscal 1995 compared to $42.4
million in the prior year period. The overall decrease was
primarily the result of a 1% decrease in flight hours from 48,581
to 47,974. Declines in oil and gas revenues were partially offset
by increases in the Company's aeromedical, international, and third
party maintenance markets.
Domestic oil and gas revenues declined $1.5 million, or 5%,
from $30.7 million in fiscal year 1994 to $29.2 million in the
current period. The decrease was primarily related to the loss of
one contract subsequent to the third quarter of fiscal 1994.
Aeromedical revenues increased $0.6 million, or 11% to $6
million in fiscal 1995 from $5.4 million in the same period of
fiscal 1994. Aeromedical flight hours increased 4% to 3,247 as
compared to 3,130. The increase is due to the addition of 7 new
programs and 11 additional dedicated aircraft during the past 21
months including 1 new contract, involving 2 helicopters, that
commenced during the current quarter.
International oil and gas revenues increased 12% to $3.7
million from $3.3 million. Flight hours in the Company's interna-
tional markets decreased 4% from 4,853 to 4,678. The addition of
two dry lease contracts involving three helicopters and a rate
increase offset the decrease in flight hours.
Other revenues, including maintenance, increased $0.2 million
to $3.2 million from $3 million.
The Company's operating margin improved to 12% for the current
quarter from 9% in the prior year's quarter. Direct operating
costs decreased by $1.8 million or 5% from $38.8 million to $37
million. The decrease was primarily a result of a worker's
compensation "good experience" premium return in the amount of $1.2
million. In addition, spare parts and repairs and maintenance
expense decreased by $0.2 million, or 2%.
Selling, general, and administrative expenses increased $0.7
million to $2.7 million in the current quarter from $2.0 million in
the prior year quarter. The increase is due to a bad debt
provision of $0.4 million, an increase in various legal and
consulting fees of $0.1 million, and an increase in depreciation of
$0.1 million.
Third quarter interest expense increased by $0.1 million to
$0.8 million in fiscal year 1995. The increase was a result of
higher interest rates which was partially offset by lower
outstanding borrowings.
First Nine Months Fiscal 1995 to First Nine Months Fiscal 1994
On a year-to-date basis, the Company's operating revenues
declined 5%, or $7.2 million, from $137.7 million in the prior year
period to $130.5 million. Overall flight hours decreased 5% to
152,867 from 161,545. Revenues derived from the domestic oil and
gas market decreased 11% from $99 million to $88.4 million.
Aeromedical, international helicopter services and technical
services revenues increased a combined 6% from $36.3 million to
$38.4 million and represented 29% of total revenues compared to 26%
for the prior year period.
Equipment disposals improved $0.5 million to $0.8 million in
the current period. The increase is due to the sale of three
additional aircraft during the current period.
The Company's operating margin improved to 12% compared to 9%
for the prior period. Direct operating costs decreased 8% from
$125.5 million to $115.5 million. Direct operating costs decreased
primarily by $3.1 million in repairs and maintenance and spare
parts expense, salaries and benefits of $3 million, cost of sales
of $1.6 million, helicopter rent of $1.4 million, fuel of $0.5
million, and helicopter insurance of $0.5 million. The decreases
were a result of PHI's cost containment programs, a decrease in
flight hours, and improved insurance and safety experience.
Selling, general, and administrative expenses increased $1
million from $6.8 million to $7.8 million. The 15% nine month
period to period increase is due to a bad debt provision of $0.4
million, depreciation of $0.3 million, and a $0.3 million increase
in professional fees primarily relating to the Company's effort to
acquire certain assets of Rocky Mountain Helicopter.
The $0.3 million increase in year-to-date interest expense was
a result of rising interest rates offset by a decrease in average
debt outstanding.
LIQUIDITY AND CAPITAL RESOURCES
Working capital as of the quarter ended January 31, 1995 was
$29.5 million compared to $30.6 million at April 30, 1994, the
Company's fiscal year end. The Company had total long-term debt of
approximately $36 million and helicopter lease commitments of
approximately $69.3 million as of January 31, 1995. Stockholders'
equity rose $3.2 million to $78.5 million at January 31, 1995. The
increase was generated entirely from operating profits net of $0.2
million for dividends paid to shareholders during the nine months
ended January 31,1995.
Cash decreased $4.1 million during the nine month period. Net
cash provided by operations was $7.7 million. Cash aggregating $7
million was used in investing activities, primarily for the
purchase of aircraft, and $4.8 million was used to reduce long-term
debt and the payment of dividends.
Certain covenants contained in the Company's financing
agreement prohibit the Company from incurring debt above the amount
available, $14.8 million and $12.2 million at January 31, 1995,
under its present revolving credit and term loan facilities,
respectively. Other covenants included in the financing agreement
restrict the amount of dividends, capital expenditures, and
investments.
On February 27, 1995, the Company purchased 413,308 shares of
its voting common stock in a privately negotiated transaction from
ONI International, Inc., a company majority owned and controlled by
Carroll W. Suggs, the Chairman, Chief Executive Officer and
majority shareholder of the Company, for an aggregate of $4,339,734
($10.50 per share). Prior to this transaction, these shares
represented approximately 12.6% and 7.5% of the outstanding shares
of the Company's voting common stock and all common stock,
respectively. Immediately following this transaction, the
Company's outstanding capital stock consisted of 2,864,760 shares
of voting common stock and 2,200,000 shares of non-voting common
stock, and an aggregate of 1,334,112 shares of voting common stock
were held as treasury stock. A portion of the funds for this
transaction were provided from the Company's revolving credit
facility. Following the transaction, the Company had available
$11.2 million under this facility.
The Company believes its cash flow from operations in
conjunction with its credit capacity is sufficient to meet its
planned requirements for the forthcoming fiscal year.
RESULTS AT A GLANCE (Unaudited)
The following table provides a summary of critical operating
and financial statistics (thousands of dollars, except per share
amounts, financial ratios, flight hours and general statistics):
OPERATIONS
Nine Months Ended January 31,
1995 1994
_____ _____
Operating revenues $ 130,493 $137,660
Expenses 125,555 134,323
Net earnings 3,426 2,136
Net earnings per share .63 .39
Annualized return on
shareholders' equity 5.9% 3.9%
Total flight hours 152,867 161,545
FINANCIAL SUMMARY January 31, 1995 April 30, 1994
_________________ ______________
Net working capital $ 29,480 $30,572
Net book value of
property and equipment 87,063 85,639
Long-term debt 29,254 31,849
GENERAL STATISTICS January 31, 1995 April 30, 1994
________________ ______________
Helicopters Operated 253 266
Employees 1,651 1,697
<PAGE>
Part II - OTHER INFORMATION
Item 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
3.1 (i) Articles of Incorporation of the Company
(incorporated by reference to Exhibit No. 3.1(i) to
PHI's Report on Form 10-Q for the quarterly period
ended October 31, 1994).
(ii) By-laws of the Company (incorporated by reference to
Exhibit No. 3.1(ii) to PHI's Report on Form 10-Q for
the quarterly period ended October 31, 1994).
10.3 Amended and Restated Loan Agreement originally dated as of
January 31, 1986 Amended and Restated in its entirety as
of July 9, 1993 among Petroleum Helicopters, Inc., Whitney
National Bank, First National Bank of Commerce,
NationsBank of Texas, N.A. as agent (incorporated by
reference to Exhibit No. 10.3 to PHI's Report on Form 10-K
for the fiscal year ended April 30, 1993).
10.4 First Amendment to Amended and Restated Loan Agreement,
dated as of October 31, 1993.
10.5 Second Amendment to Amended and Restated Loan Agreement,
dated as of April 15, 1994.
10.6 Third Amendment to Amended and Restated Loan Agreement,
dated as of July 31, 1994.
10.7 Fourth Amendment and Limited Waiver to Amended and
Restated Loan Agreement, dated as of October 25, 1994.
10.8 Fifth Amendment to Amended and Restated Loan Agreement,
dated as of October 31, 1994.
27 Financial Data Schedule.
(b) Reports on Form 8-K - none
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
Petroleum Helicopters, Inc.
March 7, 1995 By: Carroll W. Suggs /s/
____________________
Carroll W. Suggs
Chairman of the Board,
President and Chief
Executive Officer
March 7, 1995 By: John H. Untereker /s/
_____________________
John H. Untereker
Vice President and
Chief Financial Officer
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION FROM CONDENSED FINANCIAL
STATEMENTS FOR THE PERIOD ENDING JANUARY 31, 1995 AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> APR-30-1995
<PERIOD-END> JAN-31-1995
<CASH> 1,462
<SECURITIES> 0
<RECEIVABLES> 30,578
<ALLOWANCES> 0
<INVENTORY> 26,261
<CURRENT-ASSETS> 59,071
<PP&E> 200,130
<DEPRECIATION> 113,067
<TOTAL-ASSETS> 147,388
<CURRENT-LIABILITIES> 29,591
<BONDS> 0
<COMMON> 456
0
0
<OTHER-SE> 78,060
<TOTAL-LIABILITY-AND-EQUITY> 147,388
<SALES> 130,493
<TOTAL-REVENUES> 131,338
<CGS> 115,481
<TOTAL-COSTS> 123,255
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 2,300
<INCOME-PRETAX> 5,783
<INCOME-TAX> 2,357
<INCOME-CONTINUING> 3,426
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 3,426
<EPS-PRIMARY> .63
<EPS-DILUTED> .63
</TABLE>
FIRST AMENDMENT TO AMENDED AND
RESTATED LOAN AGREEMENT
This FIRST AMENDMENT TO AMENDED AND RESTATED LOAN
AGREEMENT (this "Amendment") is being entered into as of the 31st
day of October, 1993, 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 (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
extension of the Revolving Credit Termination Date to October 31,
1995.
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. Exhibit B to the Loan Agreement is hereby amended
by deleting said exhibit in its entirety and replacing said
exhibit with Exhibit A attached hereto.
2. Section 2.02 of the Loan Agreement is hereby
amended by deleting the date October 31, 1994, in subsection (a)
thereof and replacing said date with the date October 31, 1995.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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 on or before December 21, 1993:
(a) an Officers' Certificate of the Company with
directors' resolutions attached;
(b) a counterpart of this Amendment executed by
the Company;
(c) three original Revolving Credit 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 in the face amount of each Bank's Ratable
Share of the Commitment, respectively, and each
executed by the Company; and
(d) opinions of counsel to the Company 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.
8. 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.
9. 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.
10. 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.
11. 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.
IN WITNESS WHEREOF, the parties hereto have caused
this First 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: ____________________
NATIONAL BANK OF COMMERCE
By: _____________________
Name: _____________________
Title: _____________________
SECOND AMENDMENT TO AMENDED AND
RESTATED LOAN AGREEMENT
This SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
(this "Amendment") is being entered into as of the 15th day of
April, 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 (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
availability of eurodollar market rates of interest.
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 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)
0.5% per annum for so long as the Leverage Ratio is greater
than 5.25, (ii) 0.25% per annum for so long as the Leverage
Ratio is greater than 4.75 but less than or equal to 5.25,
or (iii) 0% for so long as the Leverage Ratio is less than
or equal to 4.75.
2. Section 1.01 of the Loan Agreement is hereby
further amended by deleting the definition of Interest Payment
Date in its entirety and replacing said definition with the
following definition:
"Interest Payment Date" shall have the meaning set
forth in Section 2.04.
3. Section 1.01 of the Loan Agreement is hereby
further amended by substituting the term "Section 2.14" for the
term "Section 2.12" in the definition of "New Permitted Letter of
Credit" in said section.
4. Section 1.01 of the Loan Agreement is hereby
further amended by deleting the definition of Permitted Letter of
Credit in its entirety and replacing said definition with the
following definition:
"Permitted Letters of Credit" means, collectively, the
Existing Permitted Letters of Credit and the New Permitted
Letters of Credit.
5. Section 1.01 of the Loan Agreement is hereby
further amended by deleting the definition of Revolving Credit
Commitment in its entirety and replacing said definition with the
following definition:
"Revolving Credit Commitment" shall mean for each Bank
at any time, that Bank's Ratable Share of $15,000,000, as
such amount may be reduced from time to time pursuant to
Section 2.10, less the amount of such Bank's Ratable Share
of the Permitted Letter of Credit Amount at such time.
6. Section 1.01 of the Loan Agreement is hereby
further amended by adding the following definitions thereto:
"Commitment Fee" means a fee payable by the Company
pursuant to Subsection 2.07(a) in the amount of (i) 0.50%
per annum for so long as the Leverage Ratio is greater than
4.75, or (ii) 0.375% for so long as the Leverage Ratio is
less than or equal to 4.75 (in each case based on a year of
365 or 366 days, as the case may be, and actual days
elapsed) on the daily average unused amount of the
Commitments.
"Issuing Bank" means NationsBank, in its capacity as
issuer of the Permitted Letters of Credit.
"Letter of Credit Reimbursement Agreement" means, with
respect to a Permitted Letter of Credit, such form of
application therefor and form of reimbursement agreement
therefor (whether in a single or several documents, taken
together) as the Issuing Bank may employ in the ordinary
course of business for its own account, whether or not
providing for collateral security, with such modifications
thereto as may be agreed upon by such Issuing Bank and the
account party and as are not materially adverse to the
interests of any Bank or the Agent; provided, however, in
the event of any conflict between the terms of any Letter of
Credit Reimbursement Agreement and this Agreement, the terms
of this Agreement shall control.
"Leverage Ratio" means, for any period of four
consecutive fiscal quarters of the Company, a quotient equal
to (a) the sum of (i) Funded Debt of the Company and the
Consolidated Subsidiaries for such period, and (ii) the
product of (A) eight and (B) Rent Expense for such period,
divided by (b) the sum of (i) Consolidated Net Income (or
Consolidated Net Loss, as the case may be) for such period,
and, (ii) to the extent actually deducted in computing such
Consolidated Net Income (or Consolidated Net Loss), (A)
Consolidated Interest Charges for such period, (B)
depreciation and amortization expense of the Company and the
Consolidated Subsidiaries for such period, (C) tax expense
of the Company and the Consolidated Subsidiaries for such
period, and (D) Rent Expense for such period.
"LIBOR" means, with respect to any Rate Period, a per
annum rate equal to the annual rate of interest determined
by the Agent on the Business Day immediately preceding the
first day of such Rate Period to be the annual rate of
interest at which deposits in Dollars are offered by the
principal office of the Agent to prime banks in the London
interbank market for such Rate Period.
"LIBOR Interest Payment Date" shall have the meaning
set forth in Section 2.04.
"LIBOR Loan" means the outstanding principal amount of
any Loan that, during the Rate Period relating thereto,
bears interest at the lesser of (i) the LIBOR Rate
applicable during such Rate Period, and (ii) the Highest
Lawful Rate in effect from time to time during such Rate
Period.
"LIBOR Margin" means a rate per annum equal to (i)
2.875% per annum for so long as the Leverage Ratio is
greater than 5.25, (ii) 2.625% per annum for so long as the
Leverage Ratio is greater than 4.75 but less than or equal
to 5.25, or (iii) 2.375% for so long as the Leverage Ratio
is less than or equal to 4.75.
"LIBOR Rate" means, with respect to any Rate Period, a
per annum rate equal to the sum of (i) LIBOR for such Rate
Period, (ii) the LIBOR Margin applicable on the Business Day
immediately preceding the first day of such Rate Period, and
(iii) any applicable amount (including, without limitation,
any reserves) of the type referred to in Subsection 2.13(d).
Each determination of the LIBOR Rate made by the Agent in
accordance with the immediately preceding sentence shall be
conclusive except in the case of manifest error.
"Notice of Conversion or Continuation" shall have the
meaning set forth in Subsection 2.12(b).
"Prime Rate Interest Payment Date" shall have the
meaning set forth in Section 2.04.
"Prime Rate Loan" means the outstanding principal
amount of any Loan that bears interest at the lesser of (i)
the Applicable Prime Rate and (ii) the Highest Lawful Rate
in effect from time to time.
"Rate Period" means with respect to any LIBOR Loan, the
period commencing on the date of Borrowing applicable to
such LIBOR Loan under Section 2.2 (or with respect to the
outstanding principal amount of any Loan that is to be
converted to, or continued as, a LIBOR Loan, the date of
such conversion or continuation) and ending 30, 60, 90, 120,
180, 270 or 360 days thereafter, as the Company may specify
in the Borrowing Request or the Notice of Conversion or
Continuation, as the case may be, subject, however, to the
early termination provisions set forth in Subsection
2.13(d).
"Reimbursement Obligations" means the reimbursement or
repayment obligations of the Company to the Issuing Banks
pursuant to this Agreement or the Letter of Credit
Reimbursement Agreements with respect to Permitted Letters
of Credit issued for the account of the Company.
"Rent Expense" means, for any period, all rental
expenses of the Company and the Consolidated Subsidiaries
for such period (other than rental expenses under Capital
Leases), including without limitation, rental expense for
leases of real, personal or intangible property of the
Company and each Consolidated Subsidiary.
7. Subsection 2.01(b) of the Loan Agreement is hereby
amended by deleting clause (ii) thereof in its entirety and
replacing said clause with the following clause:
(ii) the aggregate principal amount of the Capital
Loans outstanding as of such date, which quarterly
installment shall be payable on the last day of each
January, April, July and October of each year,
commencing July 31, 1993 and ending on the first such
date (after the Conversion Date) on which the aggregate
unpaid principal amount of the Capital Loans shall be
paid in full by reason of quarterly installments paid
as aforesaid and any prepayments made pursuant to
Article 3 or otherwise (but in any event no later than
October 31, 2000) (the "Capital Loan Termination
Date").
8. Subsection 2.02(b) of the Loan Agreement is hereby
amended by deleting the phrase "Revolving Credit Commitment" in
such Subsection and replacing said phrase with the phrase
"Ratable Share of $15,000,000".
9. Subsection 2.03(a) of the Loan Agreement is hereby
amended by deleting the second sentence thereof in its entirety
and replacing said sentence with the following sentence:
Each such Notice of Borrowing shall specify (i) the
Borrowing Date, (ii) whether the Loans are to be
Revolving Credit Loans or Capital Loans, (iii) the
total amount of the proposed Loans (which shall be for
not less than $1,000,000 and in an integral multiple of
$250,000), (iv) whether such Loans are to be Prime Rate
Loans or LIBOR Loans, and if such Loans are to be LIBOR
Loans, the Rate Period applicable thereto, and (v) the
amount to be borrowed from each Bank.
10. Subsection 2.04(a) of the Loan Agreement is hereby
amended by deleting said subsection in its entirety and replacing
said subsection with the following subsection:
(a) The Loans shall bear interest prior to
maturity (by acceleration or otherwise) at (i) for the
Loans maintained as Prime Rate Loans at the lesser of
(A) the Applicable Prime Rate and (B) the Highest
Lawful Rate in effect from time to time and (ii) for
the Loans maintained as LIBOR Loans, at the lesser of
(A) the LIBOR Rate applicable during such Rate Period,
and (B) the Highest Lawful Rate in effect from time to
time during such Rate Period. Interest on the Prime
Rate Loans shall be due and payable quarterly on (each
a "Prime Rate Interest Payment Date") the last day of
each January, April, July and October commencing on the
last day of July, 1994, and on each such date
thereafter until the date (after the Conversion Date)
when all principal amounts outstanding under the Notes
shall be paid in full and until the obligation of each
Bank to make Revolving Credit Loans shall be
terminated. Interest on each LIBOR Loan shall be due
and payable on each Prime Rate Interest Payment Date,
and, if not a Prime Rate Interest Payment Date, the
last day of each Rate Period for such LIBOR Loan (each
a "LIBOR Interest Payment Date" and, together with each
Prime Rate Interest Payment Date, an "Interest Payment
Date").
11. Subsection 2.04(c) of the Loan Agreement is hereby
amended by deleting said subsection in its entirety and replacing
said subsection with the following subsection:
(c) (i) If the Applicable Prime Rate, the LIBOR Rate
or the Commitment Fee should become subject to adjustment in
accordance with the definition of the term Applicable Prime
Rate, LIBOR Margin or Commitment Fee, respectively, in
Section 1.01, such adjustment shall:
(A) be made upon receipt by the Banks of the
quarterly financial statements required to be
delivered pursuant to Section 7.01,
(B) be effective as of the first day of the
fiscal quarter of the Company following the fiscal
quarter reported upon in such financial
statements, and
(C) remain effective for each day thereafter
until the first day of the fiscal quarter of the
Company following the failure to meet or the
exceeding of the requirements of the applicable
clause of the definition of the term Applicable
Prime Rate, LIBOR Margin or Commitment Fee, as
applicable, in Section 1.01.
(ii) In the event any such adjustment to the
Applicable Prime Rate, the LIBOR Rate or the Commitment Fee,
respectively, shall result in the amount of interest or fees
paid to any Bank on a previous Interest Payment Date being
more or less than the amount due on such Interest Payment
Date calculated at the adjusted level, the amount of any
overpayment or underpayment, as the case may be, to such
Bank resulting therefrom shall be deducted from or added to,
respectively, the amount of interest or fees due to such
Bank on the next Interest Payment Date succeeding such
adjustment to the Applicable Prime Rate, the LIBOR Rate or
the Commitment Fee, respectively; provided, however that no
deductions or additions shall occur after:
(A) the Revolving Credit Termination Date with
respect to interest or fees paid on any Revolving
Credit Loan,
(B) the Capital Loan Termination Date with
respect to any interest paid on any Capital Loan,
or
(C) the Conversion Date with respect to any fees
paid with respect to the unused portion of the
Capital Loan Commitments, and any adjustment to
the Applicable Prime Rate, the LIBOR Rate or the
Commitment Fee, respectively, that would otherwise
require such deduction or addition after such date
shall be of no effect.
(iii) All adjustments to the Applicable Prime
Rate, the LIBOR Rate or the Commitment Fee, respectively,
provided for in this Subsection 2.04(c) and in the
definition of Applicable Prime Rate, LIBOR Margin and
Commitment Fee, respectively, in Section 1.01 shall be
adequately supported, in the sole but reasonable discretion
of the Banks, by the quarterly financial statements required
to be delivered from the Company to the Banks pursuant to
Section 7.01.
12. Subsection 2.07(a) of the Loan Agreement is hereby
amended by deleting said subsection in its entirety and replacing
said subsection with the following subsection:
(a) The Company agrees to pay to the Agent for
the account of each Bank the Commitment Fee (i) for the
Commitment Fee payable on the unused portion of the
Revolving Credit Commitments, from and including the
date of the most recent such payment preceding April
15, 1994 to and including the Revolving Credit
Termination Date, and (ii) for the Commitment Fee
payable on the unused portion of the Capital Loan
Commitments, from and including the date of the most
recent such payment preceding April 15, 1994, to and
including the Conversion Date. The Commitment Fee
shall be due and payable on each Prime Rate Interest
Payment Date, and shall be computed for the period
commencing with the day on which the Commitment Fee was
last paid to but not including the day the Commitment
Fee is due and payable; provided, however, that all
amounts payable under this Agreement which constitute
interest under applicable law shall not result in the
payment of interest hereunder at a rate in excess of
the Highest Lawful Rate.
13. The Loan Agreement is hereby amended by replacing
the terms "commitment fee" and "commitment fees" with the terms
"Commitment Fee" and "Commitment Fees", respectively, in each
place in which such terms appear in each of Subsections 2.07(b)
and 2.08(a), Section 10.04 and Article 4.
14. Section 2.10 of the Loan Agreement is hereby
amended by deleting the phrase "Revolving Credit Notes" in such
Section and replacing said phrase with the phrase "the Revolving
Credit Notes and the Permitted Letter of Credit Amount".
15. The Loan Agreement is hereby amended by the
deletion therefrom of Section 2.12 in its entirety and the
addition thereto of the following Sections:
2.12 Conversion and Continuation.
(a) With respect to the principal amount of the
Loans outstanding from time to time, subject to the
terms and provisions of this Agreement, the Company
shall have the option, to (a) convert on any Business
Day all or any part of such outstanding principal
amount maintained as a Prime Rate Loan at such time to
a LIBOR Loan; provided, however, that each such LIBOR
Loan shall be in a principal amount greater than or
equal to $1,000,000 or an integral multiple of $500,000
in excess thereof, (b) convert all or any part of such
outstanding principal amount maintained as a LIBOR Loan
to a Prime Rate Loan on the last day of the Rate Period
relating to such LIBOR Loan, or (c) effective as of the
last day of any Rate Period during which the
outstanding principal amount of a Loan is maintained as
a LIBOR Loan, continue all or a portion of such
outstanding principal amount as a LIBOR Loan and the
succeeding Rate Period of each such continued LIBOR
Loan shall commence on the last day of the Rate Period
then ended; provided, however, that each such continued
LIBOR Loan shall be in a principal amount greater than
or equal to $1,000,000 or an integral multiple of
$500,000 in excess thereof. Notwithstanding anything
set forth herein, none of the outstanding principal
amount of the Loans shall be converted to, or continued
as, a LIBOR Loan if (y) the last day of the Rate Period
relating to such LIBOR Loan does not occur on or before
the Revolving Credit Termination Date or the Capital
Loan Termination Date, as applicable, or (z) a Default
or an Event of Default has occurred and is continuing.
(b) In the event the Company shall elect to
convert or continue all or any part of the outstanding
principal amount of a Loan as provided in the
immediately preceding Subsection 2.12(a), the Company
shall deliver a written notice to the Agent (each such
notice, a "Notice of Conversion or Continuation") (y)
with respect to the conversion of all or any part of a
Loan to a LIBOR Loan or the continuation of any LIBOR
Loan, no later than 11:00 a.m., Dallas, Texas time
three Business Days in advance of the proposed
conversion or continuation date, and (z) with respect
to the conversion of all or any part of a LIBOR Loan to
a Prime Rate Loan, no later than 11:00 a.m., Dallas,
Texas time on the Business Day immediately preceding
the proposed conversion date, specifying in each case
(i) the amount of the outstanding principal amount of
each Loan that is to be converted or continued, (ii)
the date of such proposed conversion or continuation,
which date shall be a Business Day, (iii) whether the
proposed conversion is of (A) Prime Rate Loan(s) to
LIBOR Loan(s), or (B) LIBOR Loan(s) to Prime Rate
Loan(s), (iv) in the case of a conversion to, or
continuation of, a LIBOR Loan, the requested Rate
Period, (v) the aggregate principal amount of the Loans
outstanding after giving effect to such conversion or
continuation, and (vi) that no Default or Event of
Default has occurred and is continuing. Each Notice of
Conversion or Continuation shall be irrevocable and the
Company shall be bound to convert or continue in
accordance therewith.
(c) If with respect to all or any part of the
outstanding principal amount of any LIBOR Loan the
Company fails to timely submit a Notice of Conversion
or Continuation, such outstanding principal amount
shall, effective as of the last day of the Rate Period
relating thereto, automatically and without notice of
any kind be converted to a Prime Rate Loan.
2.13 Provisions Relating to LIBOR Loans.
(a) Notwithstanding anything set forth this
Agreement, the Banks shall not be obligated to convert
all or any part of the outstanding principal amount of
any Loan maintained as a LIBOR Loan to a Prime Rate
Loan until the last day of the Rate Period relating to
such LIBOR Loan.
(b) If the Company shall have requested a LIBOR
Loan or requested that all or any part of the
outstanding principal amount of any Loan be converted
to, or continued as, a LIBOR Loan and the Agent in good
faith determines (which determination shall be
conclusive) that extraordinary circumstances make it
impossible or impracticable to ascertain the applicable
LIBOR Rate for the applicable Rate Period, the Agent
shall select, in such manner as the Agent in its sole
but reasonable discretion deems appropriate, an
alternative LIBOR Rate (which shall not in any event
exceed, at any time, the Highest Lawful Rate) and such
alternative LIBOR Rate shall be the applicable LIBOR
Rate for such Rate Period.
(c) Notwithstanding anything set forth in this
Agreement, if at any time the Agent in good faith
determines (which determination shall be final and
conclusive) that the introduction of, or any change in,
any applicable law, rule, regulation or treaty or any
change in the interpretation, application or
administration thereof by any governmental or other
regulatory authority charged with the interpretation,
application or administration thereof shall make it
unlawful for any of the Banks to maintain or fund any
LIBOR Loan, the Agent shall give notice thereof to the
Company and effective as of the date of such notice,
and notwithstanding Subsection 2.13(a), the outstanding
principal amount of such LIBOR Loan shall be converted
to a Prime Rate Loan. Within five (5) Business Days
after any Bank's written notice and demand therefor,
the Company shall pay to such Bank such amount or
amounts (to the extent that such amount or amounts
would not be usurious under applicable Law and to the
extent such amount or amounts have not been included in
the determination of the LIBOR Rate) as may be
necessary to compensate such Bank for any direct or
indirect costs and losses incurred by it under, in
connection with or as a result of such conversion, but
otherwise without penalty. If notice with respect to
any LIBOR Loan has been given by the Agent pursuant to
the foregoing provisions of this Subsection 2.13(c)
then, unless and until the Agent notifies the Company
that the circumstances giving rise to such notice no
longer apply, the Banks shall have no obligation to
make or convert all or any part of the outstanding
principal amount of any Loan into a LIBOR Loan. Any
claim by the Banks for compensation under this
Subsection 2.13(c) shall be accompanied by a
certificate setting forth the computation upon which
such claim is based and such certificate shall be
conclusive and binding for all purposes absent manifest
error.
(d) In the event that any law, regulation, treaty
or directive or any change therein or in the
interpretation, application or administration thereof
or compliance by any Bank with any request or directive
(whether or not having the force of law) from any
central bank or other governmental authority, agency or
instrumentality, does or shall, as a result of, or with
respect to, any LIBOR Loan:
(i) subject such Bank to any tax, duty or
other charge of any kind whatsoever with respect
to this Agreement, any other Loan Document or all
or any part of the outstanding principal amount of
any Loan, or change the basis of taxation of
payments to such Bank of principal, interest or
any other amount payable hereunder or under any
other Loan Document (except for changes in the
rate of any tax presently imposed on such Bank);
(ii) impose, modify or hold applicable any
reserve, special deposit, compulsory loan or
similar requirement against assets held by, or
deposits or other liabilities in or for the
account of, advances or loans by, or other credit
extended by, or any other acquisition of funds by,
any office of such Bank; or
(iii) impose on such Bank any other
condition;
and the result of any of the foregoing is to increase
the cost to such Bank of making, renewing or
maintaining advances or extensions of credit to the
Company or to reduce any amount receivable from the
Company thereunder then, in any such case (and to the
extent not already included in the calculation of the
applicable LIBOR Rate), the Company shall promptly pay
to such Bank, within five (5) Business Days after such
Bank's written notice and demand therefor, any amounts
necessary to compensate such Bank for such additional
cost or reduced amount receivable. Any claim by a Bank
for compensation under this Subsection 2.13(d) shall be
accompanied by a certificate setting forth the
computation upon which such claim is based and such
certificate shall be conclusive and binding for all
purposes absent manifest error. Nothing herein
contained shall be construed or so operate as to
require the Company to pay any interest, fees, costs or
charges that shall cause the interest rate hereunder or
under any other Loan Document to exceed the Highest
Lawful Rate.
(e) In the event any prepayment under Section
3.02 requires the Company to prepay a LIBOR Loan, or
any part thereof, prior to the last day of the Rate
Period relating thereto, within five (5) Business Days
after the Agent's demand therefor the Company shall pay
to the Agent such amount or amounts (to the extent that
such amount or amounts would not be usurious under
applicable Law) as may be necessary to compensate the
Banks for any costs and losses incurred by it under, in
connection with or as a result of such prepayment.
Any claim by the Agent for compensation under this
Subsection 2.13(e) shall be accompanied by a
certificate setting forth the computation upon which
such claim is based and such certificate shall be
conclusive and binding for all purposes absent manifest
error.
(f) The Company may not prepay any LIBOR Loan
before the last day of the Rate Period relating
thereto, except for payments required under Section
3.02.
2.14 Letters of Credit. Subject to the terms
and conditions of this Agreement, the Company may
request that the Issuing Bank issue, from time to time
during the period commencing on June 14, 1994, and
ending on the Business Day immediately prior to the
Revolving Credit Termination Date, for the account of
the Company through such of the Issuing Bank's branches
as it and the Company may jointly agree, one or more
letters of credit in accordance with this Section 2.14
and subject to the provisions of Section 8.16 (each
such letter of credit issued in accordance with this
Section 2.14, being individually referred to as a "New
Permitted Letter of Credit" and collectively referred
to as the "New Permitted Letters of Credit").
Notwithstanding the foregoing, the Issuing Bank shall
not have any obligation to issue any New Permitted
Letter of Credit at any time.
The Company may request issuances of Letters of Credit
only if:
(a) the aggregate undrawn face amount of Letters
of Credit theretofore issued by the Issuing Bank, after
giving effect to all requested but unissued Letters of
Credit, does not exceed any limit imposed by law or
regulation upon the Issuing Bank;
(b) immediately after giving effect to the
issuance of such New Permitted Letter of Credit, the
aggregate Permitted Letter of Credit Amount would not
exceed $5,000,000 and the Revolving Credit Commitment
would not be less than $0;
(c) such New Permitted Letter of Credit has an
expiration date on or before the Business Day
immediately preceding the Revolving Credit Termination
Date;
(d) the Company shall have satisfied in full the
conditions precedent set forth in Section 6.02;
(e) the Company shall have delivered to the
Issuing Bank, at such times and in such manner as the
Issuing Bank may prescribe, a Letter of Credit
application, a Letter of Credit Reimbursement
Agreement, and such other documents and materials as
may be required pursuant to the terms thereof;
(f) the terms of the proposed New Permitted
Letter of Credit shall not be inconsistent with any
term or provision of this Agreement and otherwise shall
be reasonably satisfactory to the Issuing Bank; and
(g) as of the date of issuance of such New
Permitted Letter of Credit, no order, judgment, or
decree of any court, arbitrator, or Governmental
Authority shall purport by its terms to enjoin or
restrain the Issuing Bank from issuing such New
Permitted Letter of Credit, and no law, rule, or
regulation applicable to the Issuing Bank, and no
request or directive (whether or not having the force
of law) from any Governmental Authority having
jurisdiction over the Issuing Bank, shall prohibit or
request that the Issuing Bank refrain from the issuance
of letters of credit generally or the issuance of such
New Permitted Letter of Credit.
2.15 Issuance of Letters of Credit.
(a) The Company shall give the Issuing Bank
written notice in an Officers' Certificate of its
request for the issuance of a New Permitted Letter of
Credit no later than 10:00 a.m. three (3) Business Days
prior to the date such New Permitted Letter of Credit
is requested to be issued. Such notice shall be
irrevocable and shall specify, with respect to such
requested New Permitted Letter of Credit, the face
amount, beneficiary, effective date of issuance, expiry
date (which effective date and expiry date shall be a
Business Day and, with respect to the expiry date,
shall be no later than the Business Day immediately
preceding the Revolving Credit Termination Date), and
the currency in which, and the purpose for which, such
New Permitted Letter of Credit is to be issued. The
Issuing Bank may issue such New Permitted Letter of
Credit on the date requested by the Company, unless (i)
on or before the Business Day prior to such issuance
date, the Issuing Bank shall have received written
notice from any Bank that the conditions precedent to
the Company's request for an issuance of a New
Permitted Letter of Credit as set forth in Section 2.14
have not been met; or (ii) on the requested issuance
date, the officer of the Issuing Bank executing such
New Permitted Letter of Credit has actual knowledge
that such conditions precedent to the Company's request
for an issuance of a New Permitted Letter of Credit as
set forth in Section 2.14 have not been met. If the
Issuing Bank receives written notice, or such officer
has actual knowledge that the conditions precedent to
the Company's request for an issuance of a New
Permitted Letter of Credit have not been met, then the
Issuing Bank shall not issue any New Permitted Letter
of Credit until (a) such notice is withdrawn; (b) the
condition(s) described in such notice have been waived
in accordance with the provisions of this Agreement, or
(c) such officer shall have actual knowledge of the
satisfaction of all conditions precedent having been
met.
(b) The Issuing Bank shall not extend or amend
any New Permitted Letter of Credit unless the
requirements of this Section 2.15 are met as though a
new Permitted Letter of Credit was being requested and
issued.
2.16 Reimbursement Obligations; Duties of
Issuing Bank.
(a) Notwithstanding any provisions to the
contrary in any Letter of Credit Reimbursement
Agreement:
(i) The Company shall reimburse the Issuing
Bank for a drawing under a New Permitted Letter of
Credit issued by the Issuing Bank no later than
the earlier of (A) the time specified in the
related Letter of Credit Reimbursement Agreement;
or (B) One (1) Business Day after the Issuing Bank
has provided notice (which notice may be in
writing or oral, including without limitation oral
notice by telephone) of any payment of such
drawing by the Issuing Bank; and
(ii) The Company's Reimbursement Obligation
with respect to a drawing under a New Permitted
Letter of Credit shall bear interest from the date
of such drawing to the date paid in full at the
Applicable Prime Rate.
(b) No action taken or omitted to be taken by the
Issuing Bank in connection with any New Permitted
Letter of Credit shall (i) result in any liability on
the part of the Issuing Bank to any other Bank, unless
the Issuing Bank's action or omission constitutes
willful misconduct or gross negligence; or (ii) relieve
any Bank of any of its obligations to the Issuing Bank
hereunder, unless the New Permitted Letter of Credit in
question was issued at a time during which a notice,
described in Section 2.15, from such Bank to the
Issuing Bank remained in effect. Each Bank agrees
that, prior to making any payment to a beneficiary with
respect to a drawing under a New Permitted Letter of
Credit, the Issuing Bank shall be responsible only to
confirm that documents required by the terms of such
New Permitted Letter of Credit to be delivered as a
condition precedent to such drawing have been delivered
and that the same appear on their face to conform with
the requirements thereof. Each Bank further agrees
that the Issuing Bank may assume that documents
appearing on their face to be the documents required to
be delivered as a condition precedent to a drawing do
in fact comply.
2.17 Participations.
(a) Immediately upon the issuance by the Issuing
Bank of any New Permitted Letter of Credit in
compliance with the provisions of Section 2.14, and
immediately upon conversion of an Existing Permitted
Letter of Credit of an Issuing Bank to a New Permitted
Letter of Credit pursuant to Section 2.22, each Bank,
other than the Issuing Bank, shall be deemed to have
irrevocably and unconditionally purchased and received
from the Issuing Bank, without recourse or warranty, an
undivided interest and participation to the extent of
such Bank's Ratable Share in such New Permitted Letter
of Credit, including, without limitation, all
obligations of the Company with respect thereto and any
security therefor or guaranty pertaining thereto.
(b) The Issuing Bank shall promptly notify each
other Bank, if the Company fails to reimburse the
Issuing Bank for payments made by the Issuing Bank in
respect of drawings by a beneficiary under a New
Permitted Letter of Credit. Upon such Bank's receipt
of such notice, such Bank shall unconditionally pay to
the Agent, for the account of the Issuing Bank, an
amount equal to such Bank's Ratable Share of the
unreimbursed payment made by the Issuing Bank under the
New Permitted Letter of Credit. Such payment shall be
made by such Bank in the same currency in which the
applicable New Permitted Letter of Credit was
denominated and in same day funds on the day such Bank
receives notice from the Agent that such payment is
owing, if such notice is received by such Bank prior to
10:00 a.m. (Dallas, Texas time) on a Business Day; if
such notice is not received by such time, then such
Bank shall remit its payment on the next Business Day
following the day such notice is received. Any amount
payable by a Bank under this Subsection 2.17(b) which
is not paid when due pursuant to the terms hereof,
shall be payable on demand, together with interest
thereon at the federal funds rate from the date such
payment was due until paid in full. The failure of any
Bank to make any payment owing by it under this
Subsection 2.17(b) shall neither relieve nor increase
the obligation of any other Bank to make any payment
owing by it under this Subsection 2.17(b). The Agent
shall promptly remit to the Issuing Bank all amounts
received by the Agent, for the account of the Issuing
Bank, from each other Bank pursuant to this Subsection
2.17(b).
(c) Whenever the Issuing Bank receives a payment
with respect to a Reimbursement Obligation (including
any interest thereon) for which the Issuing Bank has
received payments from another Bank pursuant to
Subsection 2.17(b), the Issuing Bank shall promptly
remit to each Bank which has funded its participating
interest therein, in the currency and in the kind of
funds so received, an amount equal to such Bank's
Ratable Share thereof. Each such payment shall be made
by the Issuing Bank on the Business Day on which such
Person receives the funds paid to such Person pursuant
to the preceding sentence, if received prior to 10:00
a.m. (Dallas, Texas time) on such Business Day, and
otherwise on the next succeeding Business Day.
(d) The obligations of a Bank under Subsection
2.17(b) to make payments to the Agent for the account
of the Issuing Bank with respect to a New Permitted
Letter of Credit shall be irrevocable, not subject to
any qualification or exception whatsoever, and shall be
made in accordance with, but not subject to, the terms
and conditions of this Agreement under all
circumstances (assuming that the Issuing Bank has
issued such New Permitted Letter of Credit in
compliance with the provisions of Section 2.14),
including, following without limitation, any of the
circumstances:
(i) any lack of validity or enforceability
of this Agreement or any Note or Security
Document;
(ii) the existence of any claim, setoff,
defense, or other right which the Company may have
at any time against a beneficiary named in a New
Permitted Letter of Credit or any transferee of
any New Permitted Letter of Credit (or any person
for whom any such transferee may be acting), the
Agent, any Bank, the Issuing Bank, or any person,
whether in connection with this Agreement, any New
Permitted Letter of Credit, the transactions
contemplated herein, or any unrelated transactions
(including any underlying transactions between the
Company and the beneficiary named in any New
Permitted Letter of Credit);
(iii) any draft, certificate, or any
other document presented under the New Permitted
Letter of Credit proving to be forged, fraudulent,
invalid, or insufficient in any respect or any
statement therein being untrue or inaccurate in
any respect;
(iv) the surrender or impairment of any
security for the performance or observance of any
of the terms of any Loan Document; or
(v) the occurrence of any Default or Event
of Default.
2.18 Payment of Reimbursement Obligations.
(a) The Company agrees to pay to the Issuing Bank
the amount of all Reimbursement Obligations, interest
and other amounts payable to the Issuing Bank under or
in connection with any Permitted Letter of Credit
immediately when due, irrespective of any claim, set-
off, defense, or other right which the Company may have
at any time against the Issuing Bank or any other
person.
(b) In the event any payment by the Company
received by the Issuing Bank with respect to a New
Permitted Letter of Credit and distributed to the Banks
on account of their respective participation is
thereafter set aside, avoided, or recovered from the
Issuing Bank in connection with any bankruptcy,
reorganization, arrangement, insolvency, readjustment
of debt, dissolution or other liquidation law of any
jurisdiction, each Bank which received such
distribution shall, upon demand by the Issuing Bank,
contribute such Bank's Ratable Share of the amount set
aside, avoided, or recovered together with interest at
the rate required to be paid by the Issuing Bank upon
the amount required to be repaid by it.
2.19 EXONERATION. As between the Company,
the Issuing Bank, each other Bank and the Agent, the
Company assumes all risks of the acts and omissions of,
or misuse of the New Permitted Letter of Credit issued
by the Issuing Bank by, the respective beneficiaries of
such New Permitted Letter of Credit. In furtherance
and not in limitation of the foregoing, subject to the
provisions of the New Permitted Letter of Credit
applications, each of the Issuing Bank, the other Banks
and the Agent, in the absence of gross negligence or
intentional misconduct on its part, shall not be
responsible:
(a) for the form, validity, sufficiency,
accuracy, genuineness, or legal effect of any document
submitted by any party in connection with the
application for and issuance of a New Permitted Letter
of Credit, even if it should in fact prove to be in any
or all respects invalid, insufficient, inaccurate,
fraudulent, or forged;
(b) for the validity or sufficiency of any
instrument transferring or assigning or purporting to
transfer or assign a New Permitted Letter of Credit or
the rights or benefits thereunder or proceeds thereof,
in whole or in part, which may prove to be invalid or
ineffective for any reason;
(c) for failure of the beneficiary of a New
Permitted Letter of Credit to comply duly with
conditions required in order to draw upon such New
Permitted Letter of Credit;
(d) for errors, omissions, interruptions, or
delays in transmission or delivery of any messages, by
mail, cable, telegraph, telex, or otherwise, whether or
not they be in cipher;
(e) for errors in interpretation of technical
terms;
(f) for any loss or delay in the transmission or
otherwise of any document required in order to make a
drawing under any New Permitted Letter of Credit or of
the proceeds thereof;
(g) for the misapplication by the beneficiary of
such New Permitted Letter of Credit; or
(h) for any consequences arising from causes
beyond the control of the Agent or any Bank (including
the Issuing Bank) including, without limitation any act
or omission, whether rightful or wrongful, of any
present or future de jure or de facto government or
Governmental Authority.
IN FURTHERANCE AND EXTENSION AND NOT IN LIMITATION
OF THE SPECIFIC PROVISIONS HEREINABOVE SET FORTH, ANY
ACTION TAKEN OR OMITTED BY THE ISSUING BANK UNDER OR IN
CONNECTION WITH THE LETTERS OF CREDIT OR ANY RELATED
CERTIFICATES, IF TAKEN OR OMITTED IN GOOD FAITH AND NOT
CONSTITUTING GROSS NEGLIGENCE OR WILLFUL MISCONDUCT,
SHALL NOT PUT THE AGENT, THE ISSUING BANK OR ANY OTHER
BANK UNDER ANY RESULTING LIABILITY TO THE COMPANY OR
RELIEVE THE COMPANY OF ANY OF ITS OBLIGATIONS HEREUNDER
TO ANY SUCH PERSON.
2.20 Reporting Requirements. In addition to
the reports required by Section 7.01, the Company
shall, no later than the tenth Business Day following
the last day of each month, provide to each Bank
separate schedules for each New Permitted Letter of
Credit, in form and substance satisfactory to the
Agent, showing the date of issue, beneficiary, face
amount, expiration date, and the reference number of
each New Permitted Letter of Credit issued by the
Issuing Bank which was outstanding at any time during
such month and the aggregate amount payable by the
Company during the month pursuant to Section 2.21.
2.21 Compensation for Letters of Credit.
(a) Letter of Credit Fee. The Company agrees to
pay to the Agent, for the account of each Bank, in the
case of each Permitted Letter of Credit, a letter of
credit fee (the "Letter of Credit Fee") payable monthly
in arrears equal to the product of (i) in the case of
New Permitted Letters of Credit issued by NationsBank
hereunder on or after June 14, 1994, two percent (2%),
and (ii) in the case of Existing Permitted Letters of
Credit, the percentage set forth on Schedule II hereto,
of the average amount available to be drawn under such
New Permitted Letter of Credit during the month then
ending multiplied by the actual number of days during
such month on which such New Permitted Letter of Credit
was outstanding, divided by 360. The Company shall
also pay to the Agent, in the event of any extension or
modification of a New Permitted Letter of Credit which
extends the expiration date or increases the maximum
amount available for drawing thereunder an additional
fee calculated and payable on the same basis as that
set forth in the first sentence of this Subsection
2.21(a) with respect to any such extension or
additional amount. Whenever the Issuing Bank receives
a payment from the Company with respect to any fees
incurred in connection with any New Permitted Letter of
Credit issued by the Issuing Bank, the Issuing Bank
shall promptly remit to the Agent, and the Agent shall
promptly remit to each Bank which has funded its
participation in such New Permitted Letter of Credit,
in the currency provided for in such New Permitted
Letter of Credit and in same day funds, an amount equal
to such Bank's Ratable Share of such fees.
(b) Issuing Bank's Charges. The Issuing Bank
shall have the right to receive, solely for its own
account, such amounts as it and the Company may agree,
in writing, to compensate the Issuing Bank with respect
to issuance fees and the Issuing Bank's out-of-pocket
costs of issuing and servicing Letters of Credit.
(c) Increased Capital. If either (i) the
introduction of or any change in or in the
interpretation of any law or regulation, or (ii)
compliance by the Issuing Bank or any other Bank with
any guideline or request from any central bank or other
Governmental Authority (whether or not having the force
of law) affects or would affect the amount of capital
required or expected to be maintained by it or any
corporation controlling it, and the Issuing Bank or
such other Bank determines, on the basis of reasonable
allocations, that the amount of such capital is
increased by or is based upon its issuance or
maintenance of or participation in, the Letters of
Credit then, upon demand by such Bank, the Company
shall immediately pay to the Agent (for the account of
such Bank), from time to time as specified by the
Issuing Bank or such other Bank, additional amounts
sufficient to compensate such Bank therefor. A
certificate as to such amounts submitted to the Company
by such Bank shall, in the absence of manifest error,
be conclusive and binding for all purposes.
2.22 Transitional Provisions. Schedule II
contains a schedule of Existing Permitted Letters of
Credit. As of June 14, 1994 (i) each of the Existing
Permitted Letters of Credit shall be deemed to be
converted into New Permitted Letters of Credit issued
pursuant to Section 2.14, provided that no Letter of
Credit Fee payable under Subsection 2.21(a)(i) shall be
payable solely as a result of such conversion; and (ii)
the face amount of such Existing Permitted Letters of
Credit shall be included in the calculation of the
Permitted Letter of Credit Amount.
16. Section 3.01 of the Loan Agreement is hereby
amended by the addition of the following sentence immediately
prior to the last sentence of said section:
Notwithstanding the foregoing, the Company may not
prepay any LIBOR Loan under this Section 3.01 before
the last day of the Rate Period relating thereto.
17. Subsection 3.02(d) of the Loan Agreement is hereby
amended by deleting the last sentence of said subsection in its
entirety and replacing said sentence with the following sentence:
All prepayments under this Section 3.02 or pursuant to
a Notice of Election shall be without premium or
penalty, except as provided in Subsection 2.13(e).
18. Subsection 7.01(f) of the Loan Agreement is hereby
amended by deleting clause (i) of said subsection in its entirety
and replacing said clause with the following clause:
(i) setting forth computations demonstrating
compliance with the financial covenants contained
herein as of the date of such financial statements
and for the period then ended and setting forth
computations demonstrating the amount of the
Leverage Ratio as of the date of such financial
statements and
19. Section 8.07 of the Loan Agreement is hereby
amended by deleting the last sentence of said section in its
entirety and replacing said sentence with the following sentence:
Notwithstanding the foregoing, this Section 8.07 shall
not prohibit (i) investments by the Company in the
capital stock (or comparable equity or partnership
interests) of one or more joint ventures that are
neither Subsidiaries nor corporations "Controlled" by
the Company within the meaning of the second sentence
of the definition of "Affiliate" in Article 1, provided
that (x) the Company shall not make or suffer to exist
any investment in any such joint venture in which 50%
or more of the capital stock (or comparable equity or
partnership interests) is owned by the Company and (y)
the aggregate book value of all such investments,
together with the book value of all loans and advances
permitted under Subsection 8.18(i), shall not at any
time exceed 3% of the Consolidated Tangible Net Worth
of the Company at such time, or (ii) the 1990 Stock
Purchase Transaction as defined in the Sixth Amendment
to the 1988 Loan Agreement, dated as of October 24,
1990.
20. Section 8.18 of the Loan Agreement is hereby
amended by deleting said section in its entirety and replacing
said section with the following section:
8.18. Loans and Advances to Other
Persons. Make or permit to remain outstanding, or
permit any Subsidiary to make or permit to remain
outstanding, any loan or advance to any person, except
for (i) loans by the Company to joint ventures, and
provided that the aggregate book value of all such
loans and advances, together with the book value of all
investments permitted under Subsection 8.07(i), shall
not at any time exceed 3% of the Consolidated Tangible
Net Worth of the Company at such time, or (ii) travel
advances to employees in the ordinary course of
business and other loans and advances to non-officers
as is normal and customary; provided, however the
aggregate amount of all such travel advances and other
loans and advances permitted under this Subsection
8.18(ii) shall not at any time exceed $200,000.
21. The Loan Agreement is hereby amended by the
addition thereto of the following Section:
9.05 Substitute Aircraft.
(a) If the Company determines that it is in the
best interest of the Company to operate one or more of
the Aircraft outside the United States, then upon the
delivery of an Officers' Certificate stating the United
States registration number and the date (which shall
not be less than 30 nor more than 90 days from the date
of such Officers' Certificate) that the Company intends
to commence operating such Aircraft outside the United
States, the Company may request that the Agent, on
behalf of the Banks, release the Aircraft to be
operated outside the United States from the Security
Interest and the Agent, on behalf of the Banks, within
a reasonable time after such request, shall execute all
documents (including all appropriate termination
statements and releases) required to effect such
release, provided the Company shall, on or before the
date proposed in such Officers' Certificate for such
Aircraft to commence operations outside the United
States, provide substitute Aircraft for inclusion in
the Security Interest pursuant to Subsection 9.05(b),
the Appraised Value of which, as reflected on a
certificate of an Independent Appraiser, in form and
substance acceptable to the Agent, 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 Aircraft to
be released.
(b) For each Aircraft that the Company desires to
include in the Security Interest as a substitute for an
Aircraft to be released pursuant to Subsection 9.05(a),
the Company shall grant a first priority security
interest in such Aircraft to the Banks to secure the
Company's obligations hereunder and under any other
documents executed in connection herewith or
contemplated hereby, whereupon such Aircraft shall
constitute a portion of the Collateral subject to the
Security Interest. Without limitation on the
foregoing, (i) the Company shall file or cause to be
filed a proper bill of sale or bills of sale covering
said Aircraft (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 Aircraft 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 Aircraft 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 Aircraft 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
Aircraft (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 Aircraft free of all
Liens (other than Permitted Liens) and that said
Aircraft 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 9.05(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 9.05(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 Aircraft to be
operated outside the United States and the addition of
one or more substitute Aircraft to the Security
Interest.
22. Section 10.02 of the Loan Agreement is hereby
amended by deleting the phrase "each Bank to issue Permitted
Letters of Credit" in each place in which it appears in said
section and replacing said phrase with the phrase "NationsBank to
issue Permitted Letters of Credit".
23. The Loan Agreement is hereby further amended by
the replacement of Schedule II thereto with the Schedule II
attached hereto as Exhibit A.
24. 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.
25. 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.
26. 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 and that certain Request for
Limited Waiver from the Company to the Agent and the Banks dated
as of January 21, 1994 (the "Waiver Letter"), the Company will
not be in default in the due performance of any covenant on its
part in the Loan Documents, and (c) upon the execution of the
Waiver Letter, no Default or Event of Default has occurred and is
continuing or is imminent.
27. 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.
28. 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 on or before July 21, 1994:
(a) an Officers' Certificate of the Company with
directors' resolutions attached;
(b) a counterpart of this Amendment executed by
the Company; and
(c) a counterpart of the Waiver Letter executed
by the Company,
(ii) the delivery to the Agent of
counterparts of this Amendment and the Waiver
Letter executed by each of the Banks, and (iii)
opinions of counsel to the Company in form and
substance acceptable to the Banks, on or before
July 10, 1994.
29. 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.
30. 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.
31. 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.
32. 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 Second 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.,
By: __________________
Name: __________________
Title: __________________
WHITNEY NATIONAL BANK
By: __________________
Name: __________________
Title: __________________
FIRST NATIONAL BANK OF COMMERCE
By: __________________
Name: __________________
Title: __________________
<PAGE>
SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
Schedule II
Existing Permitted Letters of Credit
Issuance Expiration
LOC# Beneficiary Amount LOC Fee Date Date
Purpose
BG93/021 Comptroller SGD25,000 1.5% p.a. 7/30/93 12/31/94 1994
of Income Tax, Singa-
Singapore pore
income
tax
bond
for PHI
employee
BG94/026 Comptroller SGD43,600 2.0% p.a. 4/12/94 12/31/95 1995
of Income Tax, Singa-
Singapore pore
tax
bond
for PHI
employee
135631 State Bank USD25,000 2.0% p.a. 4/11/94 1/14/95 Bid Bond
of India for
helicopter
contract
135641 Banco de la USD 2.0% p.a. 4/20/94 10/17/94 Bond for
Nacion 1,476,696 disputed
Argentina helicopter
import
duty
135650 Bank of USD25,000 2.0% p.a. 4/29/94 1/14/95 Bid bond
America for
New Delhi helicopter
contract
New Bank of USD75,000 2.0% p.a. 5/13/94 1/23/95 Bid bond
America for 3
New Delhi helicopter
contracts
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: __________________
PETROLEUM HELICOPTERS, INC.
FOURTH AMENDMENT
AND LIMITED WAIVER
TO AMENDED AND RESTATED
LOAN AGREEMENT
This FOURTH AMENDMENT AND LIMITED WAIVER TO AMENDED
AND RESTATED LOAN AGREEMENT (this "Amendment") is dated as of
October 25,1994 and entered into among Petroleum Helicopters, Inc.,
a Delaware corporation (the "Company"), Petroleum Helicopters,
Inc., a Louisiana corporation ("PHI-Louisiana"), 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"),
and is made with reference to 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 and that certain Third Amendment to Amended and Restated
Loan Agreement, dated as of July 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"), among the Company, the Banks and the Agent.
Capitalized terms used herein without definition shall have the
same meanings herein as set forth in the Loan Agreement.
RECITALS
WHEREAS, the Company has requested that (i) the
Banks waive compliance with certain covenants set forth in the Loan
Agreement to permit (a) the Company to enter into and to consummate
the merger contemplated by a certain Merger Agreement, dated as of
August 25, 1994, among the Company and PHI-Louisiana, which
provides for, among other things, the merger of the Company with
and into PHI-Louisiana (such Merger Agreement, the "Merger
Agreement", and the merger contemplated therein, the "Merger"), (b)
Petroleum Helicopter de Bolivia, Incorporated, a Delaware
corporation ("PHB-Delaware"), a subsidiary, to merge with and into
Petroleum Helicopter de Bolivia, Incorporated, a Louisiana
corporation ("PHB-Louisiana") (such merger, the "PHB Merger"), and
(c) International Helicopters Transport, Inc., a Delaware
corporation ("IHT-Delaware"), a subsidiary, to merge with and into
International Helicopters Transport, Inc., a Louisiana corporation
("IHT-Louisiana") (such merger, the "IHT Merger"), and (ii) that
the Banks amend certain references in the Loan Agreement to the
State of the Company's incorporation.
NOW, THEREFORE, in consideration of the premises and
the agreements, provisions and covenants herein contained, the
parties hereto agree as follows:
Section 1. LIMITED WAIVER AND CONSENT.
Subject to the terms and conditions set forth
herein, and in reliance upon the representations and warranties of
the Company herein contained, the Banks hereby (i) consent to (a)
the Merger of the Company with and into PHI-Louisiana pursuant to
the terms and conditions set forth in the Merger Agreement, (b) the
PHB Merger, and (c) the IHT Merger, and (ii) waive compliance, on
and after the date hereof by the Company with the provisions of
Sections 8.09 and 8.14 of the Loan Agreement to the extent and only
to the extent necessary to permit consummation of (a) the Merger of
the Company with and into PHI-Louisiana pursuant to the terms and
conditions set forth in the Merger Agreement,
(b) the PHB Merger, and the IHT Merger.
Section 2. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective
only upon the satisfaction of all of the following conditions
precedent (the date of satisfaction of such conditions being
referred to herein as the "Waiver Effective Date"):
A. The Agent shall have received from PIE-
Louisiana an executed Assumption Agreement in the form of Exhibit
A hereto (the "Assumption Agreement");
B. The Banks shall have received the legal
opinions of one or more counsel to PHI-Louisiana reasonably
acceptable to the Agent, which opinions shall be in form, scope and
substance satisfactory to the Agent, and in forms attached hereto
as Exhibits B, C and D, respectively, to the effect that (i) PHI-
Louisiana is duly incorporated and existing in good standing under
the laws of Louisiana, (ii) the execution, delivery and performance
by PHI-Louisiana of the Assumption Agreement have been duly
authorized by all necessary corporate action and that the
Assumption Agreement is legally binding and enforceable against
PHI-Louisiana in accordance with its terms, (iii) the Merger has
become effective and, by operation of law, all of the property and
assets of the Company are deemed to have been transferred to, and
vested in PHI-Louisiana, and PHI-Louisiana has become responsible
for all of the liabilities and obligations of the Company,
including all Security Interests, Liens and obligations granted or
otherwise undertaken by the Company for the benefit of the Agent
and the Banks under the Loan Agreement, each Note, and the Security
Documents, and such Security Interests, Liens and obligations
continue as valid, enforceable and subsisting Security Interests,
Liens and obligations against PHI-Louisiana to the full extent such
documents were binding upon the Company immediately prior to the
effective time of the Merger, and (iv) except as set forth therein,
no recordings, registrations or filings, and no re-recordations,
re-registrations, re-filings or any other actions, are made
necessary by the Merger in order to preserve and protect the rights
of the Agent and the Banks under the Loan Agreement, each Note, the
Security Documents and the perfection of the Security Interests,
Liens and obligations referred to above;
C. On or before the Waiver Effective Date, the
Agent shall have received a copy of the Merger Agreement, or
certificate in lieu thereof, filed with the Secretary of State of
the State of Louisiana and a copy of a Certificate of Merger issued
by the Secretary of State of the State of Louisiana evidencing that
the Merger has become effective;
D. The Agent shall have received a certificate of
the president or a vice president and of the secretary or an
assistant secretary of the Company certifying, inter alia, (i) true
and correct copies of resolutions adopted by the Board of Directors
of the Company (A) authorizing the execution, delivery and
performance by the Company of this Amendment and the Merger
Agreement, (B) approving the forms of this Amendment and the Merger
Agreement and (C) authorizing officers of the Company to execute
and deliver this Amendment and the Merger Agreement and any related
documents, and (ii) the incumbency and specimen signatures of the
officers of the Company executing any documents on behalf of the
Company;
E. The Agent shall have received a certificate of
the president or a vice president and of the secretary or an
assistant secretary of PHI-Louisiana certifying, inter alia, (i)
true and correct copies of resolutions adopted by the Board of
Directors of PHI-Louisiana (A) authorizing the execution, delivery
and performance by PHI-Louisiana of the Merger Agreement and the
Assumption Agreement, (B) approving the forms of the Merger
Agreement and the Assumption Agreement and (C) authorizing officers
of PHI-Louisiana to execute and deliver the Merger Agreement and
the Assumption Agreement and any related documents, (ii) the
incumbency and specimen signatures of the officers of PHI-Louisiana
executing any documents on behalf of PHI-Louisiana and (iii) the
absence of any proceedings for the dissolution or liquidation of
PHI-Louisiana; and
Section 3. AMENDMENT TO LOAN AGREEMENT
As of the effective date of the Merger, Section 5.01
of the Loan Agreement is hereby amended by deleting the phrase "The
Company is a Delaware corporation" from the second sentence of such
Section and replacing said phrase with the phrase "The Company is
a Louisiana corporation".
Section 4.COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Agent and the Banks to enter into
this Amendment the Company and PHI-Louisiana jointly and severally
represent and warrant to the Agent and the Banks that immediately
prior to the effectiveness of the Merger, and PHI-Louisiana also
represents and warrants to Agent and the Banks that immediately
upon and subsequent to the effectiveness of the Merger, the
following statements are true, correct and complete (as used
hereinafter in this Section 4, the "Company" shall refer to both
Petroleum Helicopters, Inc., a Delaware corporation, and PHI-
Louisiana):
A. Corporate Power and Authority. The Company has
all requisite corporate power and authority to enter into this
Amendment and the Merger Agreement 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 Merger Agreement.
B. Authorization of Agreements. The execution and
delivery of this Amendment and the Merger Agreement and the
performance of the Modified Agreement and the Merger Agreement have
been duly authorized by all necessary corporate action on the part
of the Company.
C. No Conflict. The execution and delivery by the
Company of this Amendment and the Merger Agreement, the performance
by the Company of the Modified Agreement and the consummation by
the Company of the transactions contemplated by the Merger
Agreement do not and will not (i) violate any provision of any law
or any governmental rule or regulation applicable to the Company or
any Subsidiary, the Certificate or Articles of Incorporation or
Bylaws of the Company or any Subsidiary or any order, judgment or
decree of any court or other agency of government binding on the
Company or any Subsidiary, (ii) after giving effect to the waiver
set forth in Section 1 hereof, conflict with, result in a breach of
or constitute (with due notice or lapse of time or both) a default
under, any contractual obligation of the Company or any Subsidiary,
(iii) result in or require the creation or imposition of any Lien
upon any of the properties or assets of the Company or any
Subsidiary, or (iv) require any approval of stockholders or any
approval or consent of any person (as that term is defined in the
Loan Agreement) under any contractual obligation of the Company or
any Subsidiary, except for such approvals or consents which have
been obtained on or before the Waiver Effective Date and disclosed
in writing to the Agent and the Banks.
D. Governmental Consents. The execution and
delivery by the Company of this Amendment and the Merger Agreement
and the performance by the Company of the Modified Agreement and
the Merger Agreement do not and will not require any registration
with, consent or approval of, or notice to, or other action to,
with or by, any federal, state or other governmental authority or
regulatory body.
E. Binding Obligation. This Amendment has been
duly executed and delivered by the Company and the Modified
Agreement is the legally valid and binding obligation of the
Company, enforceable against the Company in accordance with its
terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting
creditors' rights generally or by equitable principles relating to
enforceability.
F. Incorporation of Representations and Warranties
From Loan Agreement. The representations and warranties contained
in Sections 5.01 through 5.17, inclusive, of the Loan Agreement, as
modified hereby, are and will be true, correct and complete in all
material respects on and as of the Waiver Effective Date to the
same extent as though made on and as of that date, except to the
extent such representations and warranties specifically relate to
an earlier date, in which case they were true, correct and complete
in all material respects on and as of such earlier date, and except
as disclosed on Schedule I hereto.
G. Absence of Default. After giving effect to
this Amendment, no event has occurred and is continuing or will
result from the consummation of the transactions contemplated by
this Amendment that would constitute an Event of Default or a
Default. Prior to giving effect to the waivers set forth in
Section 1 above, no event has occurred and is continuing that would
constitute an Event of Default or Default.
Section 5. MISCELLANEOUS
A. Reference to and Effect on the Loan Agreement
and the Security Documents; Limitation of Waivers.
(1) On and after the Waiver Effective
Date, 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.
(2) Except as specifically waived 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 waiver of any
right, power or remedy of the Agent or any Bank under the
Loan Agreement. Without limiting the generality of the
foregoing, the waiver set forth in Section 1 above shall
be limited precisely as written and shall relate only to
the Company's noncompliance with Sections 8.09 and 8.14
of the Loan Agreement to the extent and only to the
extent necessary to permit the Merger of the Company with
and into PHI-Louisiana pursuant to the terms and
conditions of the Merger Agreement, the PHB Merger and
the IHT Merger, and 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.
B. 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). 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.
C. Headings. Section and subsection 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.
D. Applicable Law. This Amendment SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES.
E. 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 an original, but all such
counterparts 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
the satisfaction of the conditions set forth in Section 2, this
Amendment shall be deemed effective as of the date hereof.
F. 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.
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.
