Contract
Exhibit
10.1
AMENDMENT
NO. 1 TO REVOLVING CREDIT, TERM LOAN AND SECURITY
AGREEMENT
This
AMENDMENT NO. 1 TO REVOLVING CREDIT, TERM LOAN AND SECURITY AGREEMENT (the
"Amendment"), dated as of October 1, 2007, is by and among AIR METHODS
CORPORATION, a Delaware corporation, ROCKY MOUNTAIN HOLDINGS, L.L.C., a
Delaware
limited liability company, MERCY AIR SERVICE, INC., a California corporation,
LIFENET, INC., a Missouri corporation, FSS AIRHOLDINGS, INC., a Delaware
corporation, and CJ SYSTEMS AVIATION GROUP, INC., a Pennsylvania corporation,
as
borrowers and debtors (each individually a "Borrower" and collectively,
the
"Borrowers"), KEYBANK NATIONAL ASSOCIATION, a national banking association,
as a
Lender, as lead arranger, sole book runner and administrative agent ("KeyBank"
or "Agent"), LASALLE BANK NATIONAL ASSOCIATION, as a Lender and as syndication
agent, NATIONAL CITY BANK, as a Lender and as documentation agent, and
the other
LENDERS.
RECITALS
A. Pursuant
to a certain Revolving Credit, Term Loan and Security Agreement (as amended,
the
"Loan Agreement"), dated as of September 17, 2007, by and among the Borrowers
(except for FSS Airholdings, Inc. and CJ Systems Aviation Group, Inc. (the
"CJ
Borrowers")) and Lenders, Borrowers incurred certain loans from
Lenders.
B. Borrowers
and Lenders desire to amend the Loan Agreement to add the CJ Borrowers
as
Borrowers under the Loan Agreement, to acknowledge certain new guarantors
of the
Indebtedness under the Loan Agreement, and to make certain other amendments
to
the Loan Agreement as set forth in this Amendment.
C. Any
capitalized terms used but not defined in this Agreement shall have the
meanings
given to such terms in the Loan Agreement.
AGREEMENT
1. CJ
Borrowers. The CJ Borrowers acknowledge and agree that they are each a
Borrower under the Loan Agreement and that all terms and conditions of
the Loan
Agreement relating to a Borrower or the Borrowers are applicable to them
in all
respects in accordance with the terms and conditions of the Loan Agreement
and
this Amendment.
2. Representations
and Warranties; Breaches. Borrowers (including the CJ Borrowers) represent
and warrant as of the date of this Amendment that (a) all representations
and
warranties of the Borrowers set forth in Article VI of the Loan Agreement
are
true and correct in all respects after giving effect to the addition of
the CJ
Borrowers as Borrowers under the Loan Agreement, (b) none of the Borrowers
is,
or is required to be registered as, an “investment
company”
under the Investment Company Act of 1940, and (c) no Event of Default,
or any
event that with the passage of time could become an Event of Default, has
occurred since the date of the Loan Agreement.
3. Schedules.
The Schedules to the Loan Agreement are hereby amended as of the date hereof
by
adding the Schedules set forth on Exhibit A to this Amendment to the
previously-delivered Schedules.
4. Notes.
Pursuant to this Amendment, the outstanding Revolving Notes and Term Notes
are
being replaced with Amended and Restated Promissory Notes (Revolving Credit)
and
Amended and Restated Promissory Notes (Term Loan), which Amended and Restated
Promissory Notes add the CJ Borrowers as makers and update the outstanding
principal amount of the Term Notes, and such notes are the Revolving Notes
and
the Term Notes, respectively, as defined in the Loan
Agreement.
5. Conditions
to Amendment. In addition to all conditions set forth in this Amendment, all
closing conditions set forth in Section 7.1(b) of the Loan Agreement, including
obtaining secretary's certificates from each of the CJ Borrowers and CJ
Critical
Care Transportation Systems, Inc., a Pennsylvania corporation, Special
Jet
Services, Inc., a Pennsylvania corporation, CJ Critical Care Transportation
Systems of Florida, Inc., a Pennsylvania corporation, and CJ Critical Care
Transportation Systems of Kentucky, Inc., a Pennsylvania corporation (the
"CJ
Guarantors") and Guaranty and Security Agreements from each of the CJ
Guarantors.
6. Loan
Agreement. Except as specifically amended herein, all terms and provisions
of the Loan Agreement shall remain in full force and effect.
7. Waiver
of Claims. Borrowers hereby agree that this Amendment
is a reasonable agreement among the parties in connection with the current
facts
and circumstances related to Borrowers' business and is in keeping with
the
tenor of the Loan Agreement, and Borrowers hereby completely and generally
waive, release, remise, acquit and forever discharge the Lenders and their
respective affiliates, present and past officers, directors, agents, attorneys,
predecessors, successors, insurers, parent, subsidiary and sibling corporations
and entities, and assigns (collectively, the "Bank Releasees") of and from
any
and all past and present claims, damages or causes of action arising or
relating
in any way to the actions of the Bank Releasees relating to the Loan Agreement,
this Amendment, the Transaction Documents or any other agreement among
the
parties, which Borrowers ever had or now has against the Bank Releasees,
or any
of them.
8. Miscellaneous.
(a) No
modification, rescission, waiver, release, or amendment of any provision
of this
Amendment shall be made, except by a written agreement signed by Borrowers
and a
duly authorized officer of each Lender.
(b) This
Amendment may be executed in any number of counterparts, and by Lenders
and
Borrowers on separate counterparts, each of which, when so executed and
delivered, shall be an original, but all of which shall together constitute
one
and the same Amendment.
(c) The
provisions of this Amendment are independent of, and separable from, each
other,
and no such provision shall be affected or rendered invalid or unenforceable
by
virtue of the fact that
for any
reason any other such provision may be invalid or unenforceable in whole
or in part. If any provision of this Amendment is prohibited or unenforceable
in
any jurisdiction, such provision shall be ineffective in such jurisdiction
only
to the extent of such prohibition or unenforceability, and such prohibition
or
unenforceability shall not invalidate the balance of such provision to
the
extent it is not prohibited or unenforceable nor render prohibited or
unenforceable such provision in any other jurisdiction.
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(d) The
terms of this Amendment, the Loan Agreement and the Transaction Documents
shall
be cumulative except to the extent that they are specifically inconsistent
with
each other, in which case the terms of this Amendment shall
prevail.
(e) This
Amendment, the Loan Agreement, and the other Transaction Documents constitute
the entire agreement and understanding between the parties hereto with
respect
to the transactions contemplated hereby and supersede all prior negotiations,
understandings, and agreements among such parties with respect to such
transactions, including, without limitation, those expressed in any commitment
letter delivered by Lenders to Borrowers.
(f) THIS
AMENDMENT, AND THE TRANSACTIONS EVIDENCED HEREBY, SHALL BE GOVERNED BY,
AND
CONSTRUED UNDER, THE INTERNAL LAWS OF THE STATE OF COLORADO, WITHOUT REGARD
TO
PRINCIPLES OF CONFLICTS OF LAW, AS THE SAME MAY FROM TIME TO TIME BE IN
EFFECT,
INCLUDING, WITHOUT LIMITATION, THE UNIFORM COMMERCIAL CODE AS IN EFFECT
IN THE
STATE.
(g) BORROWERS
AND LENDERS AGREE THAT ANY ACTION OR PROCEEDING TO ENFORCE, OR ARISING
OUT OF,
THE TRANSACTION DOCUMENTS MAY BE COMMENCED IN ANY STATE OR FEDERAL COURT
OF
COMPETENT JURISDICTION IN THE STATE OF COLORADO, AND BORROWERS WAIVE PERSONAL
SERVICE OF PROCESS AND AGREE THAT A SUMMONS AND COMPLAINT COMMENCING AN
ACTION
OR PROCEEDING IN ANY SUCH COURT SHALL BE PROPERLY SERVED AND SHALL CONFER
PERSONAL JURISDICTION IF SERVED BY REGISTERED OR CERTIFIED MAIL TO BORROWERS,
OR
AS OTHERWISE PROVIDED BY THE LAWS OF THE STATE OR THE UNITED
STATES.
(h) BORROWERS
AND LENDERS HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY
RIGHT TO
TRIAL BY JURY BORROWERS OR LENDERS MAY HAVE IN ANY ACTION OR PROCEEDING,
IN LAW
OR IN EQUITY, IN CONNECTION WITH THE TRANSACTION DOCUMENTS OR THE TRANSACTIONS
RELATED THERETO. BORROWERS REPRESENT AND WARRANT THAT NO REPRESENTATIVE
OR AGENT
OF ANY LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT ANY LENDER
WILL NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THIS RIGHT TO JURY TRIAL WAIVER.
BORROWERS ACKNOWLEDGE THAT THE LENDERS HAVE BEEN INDUCED TO ENTER INTO
THIS
AMENDMENT BY, AMONG OTHER THINGS, THE PROVISIONS OF THIS
PARAGRAPH.
3
(i) ORAL
AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM
ENFORCING REPAYMENT OF A DEBT, INCLUDING
PROMISES TO EXTEND OR RENEW SUCH DEBT, ARE NOT ENFORCEABLE.
TO PROTECT YOU (BORROWERS) AND US (LENDERS) FROM MISUNDERSTANDING OR
DISAPPOINTMENT, ANY AGREEMENTS WE REACH COVERING SUCH MATTERS ARE CONTAINED
IN
THE TRANSACTION DOCUMENTS, WHICH ARE THE COMPLETE AND EXCLUSIVE STATEMENT
OF THE
AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN WRITING TO MODIFY
IT.
[Signature
page follows]
4
IN
WITNESS WHEREOF, the parties have executed this Amendment as of the date
first
above written.
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BORROWERS:
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AIR
METHODS CORPORATION
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By:
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/s/
Xxxxx X. Xxxxxx
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Name:
Xxxxx X. Xxxxxx
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Title:
Chief Financial Officer
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Address:
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0000
Xxxxx Xxxxxx Xxxxxx
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Xxxxxxxxx,
Xxxxxxxx 00000
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Attn:
Xxxxx X. Xxxxxx
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Phone:
000-000-0000
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Facsimile:
000-000-0000
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ROCKY
MOUNTAIN HOLDINGS, L.L.C.
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By: Air
Methods Corporation, its sole member
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By:
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/s/
Xxxxx X. Xxxxxx
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Name:
Xxxxx X. Xxxxxx
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Title:
Chief Financial Officer
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Address:
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0000
Xxxxx Xxxxxx Xxxxxx
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Xxxxxxxxx,
Xxxxxxxx 00000
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Attn:
Xxxxx X. Xxxxxx
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Phone:
000-000-0000
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Facsimile:
000-000-0000
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[Signature
Page to Amendment No. 1]
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MERCY
AIR SERVICE, INC.
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By:
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/s/
Xxxxx X. Xxxxxx
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Name:
Xxxxx X. Xxxxxx
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Title:
Chief Financial Officer
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Address:
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0000
Xxxxx Xxxxxx Xxxxxx
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Xxxxxxxxx,
Xxxxxxxx 00000
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Attn:
Xxxxx X. Xxxxxx
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Phone:
000-000-0000
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Facsimile:
000-000-0000
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LIFENET,
INC.
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By:
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/s/
Xxxxx X. Xxxxxx
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Name:
Xxxxx X. Xxxxxx
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Title:
Chief Financial Officer
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Address:
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0000
Xxxxx Xxxxxx Xxxxxx
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Xxxxxxxxx,
Xxxxxxxx 00000
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Attn:
Xxxxx X. Xxxxxx
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Phone:
000-000-0000
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Facsimile:
000-000-0000
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FSS
AIRHOLDINGS. INC.
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By:
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/s/
Xxxxx X. Xxxxxx
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Name:
Xxxxx X. Xxxxxx
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Title:
Chief Financial Officer
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Address:
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0000
Xxxxx Xxxxxx Xxxxxx
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Xxxxxxxxx,
Xxxxxxxx 00000
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Attn:
Xxxxx X. Xxxxxx
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Phone:
000-000-0000
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Facsimile:
000-000-0000
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[Signature
Page to Amendment No. 1]
| CJ SYSTEMS AVIATION GROUP | |||
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By:
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/s/
Xxxxx X. Xxxxxx
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Name:
Xxxxx X. Xxxxxx
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Title:
Chief Financial Officer
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Address:
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0000
Xxxxx Xxxxxx Xxxxxx
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Xxxxxxxxx,
Xxxxxxxx 00000
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Attn:
Xxxxx X. Xxxxxx
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Phone: 000-000-0000
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| Facsimile: 000-000-0000 | |||
[Signature
Page to Amendment No. 1]
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LENDERS:
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As
Lender and Agent:
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KEYBANK
NATIONAL ASSOCIATION
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By:
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/s/
Xxxxx Xxxxxx
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Name:
Xxxxx Xxxxxx
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Title: Senior
Vice President
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Address:
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0000
Xxxxxxxx, Xxxxx 000
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Xxxxxx,
XX 00000
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Attn:
Xxxxx Xxxxxx
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Phone:
000-000-0000
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Fax:
000-000-0000
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[Signature
Page to Amendment No. 1]
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LASALLE
BANK NATIONAL ASSOCIATION
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By:
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/s/
Xxxxxx Xxxxxx
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Name:
Xxxxxx Xxxxxx
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| Title: Senior Vice President | |||
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Address:
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000
00xx Xxxxxx, Xxxxx 0000
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Xxxxxx,
XX 00000
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Attn:
Xxxxxx Xxxxxx
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Phone;
000-000-0000
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Fax:
000-000-0000
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[Signature
Page to Amendment No. 1]
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NATIONAL
CITY BANK
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By:
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/s/
Xxxx Xxxxxxxx
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Name:
Xxxx Xxxxxxxx
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Title:
Vice President
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Address: 00
Xxxxxxx
Xxxxxx
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Xxxxxxxxxx,
XX 00000
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Attn:
Xxxx Xxxxxxxx
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Phone:
000-000-0000
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Fax:
000-000-0000
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[Signature
Page to Amendment No. 1]
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PNC
BANK, NATIONAL ASSOCIATION
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By:
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/s/
Xxxxxx X. Xxxxxxxxx
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Name:
Xxxxxx X. Xxxxxxxxx
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Title:
Senior Vice President
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Address:
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000
Xxxxx Xxxxxx
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Xxxxxxxxxx,
XX 00000
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Attn:
Xxxxxx X. Xxxxxxxxx
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Phone:
000-000-0000
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Fax:
000-000-0000
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(Signature
Page to Amendment No. 1]
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COLORADO
BUSINESS BANK
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| By: |
/s/
Xxxx Xxxxx
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Name:
Xxxx Xxxxx
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Title:
Senior Vice President
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Address:
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000
00xx Xxxxxx
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Xxxxxx,
XX 00000
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Attn:
Xxxx Xxxxx
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Phone:
000-000-0000
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Fax:
000-000-0000
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[Signature
Page to Amendment No. 1]
