Contract
Exhibit
10.2
FORM
OF GUARANTY AND SECURITY AGREEMENT
This
GUARANTY AND SECURITY AGREEMENT (this "Agreement"), dated as of October 1,
2007,
is by and between [CJ CRITICAL CARE TRANSPORTATION SYSTEMS OF FLORIDA, INC.,
a
Pennsylvania corporation] [CJ CRITICAL CARE TRANSPORTATION SYSTEMS, INC.,
a
Pennsylvania corporation] [CJ CRITICAL CARE TRANSPORTATION SYSTEMS OF KENTUCKY,
INC., a Pennsylvania corporation] [SPECIAL JET SERVICES, INC., a Pennsylvania
corporation] ("Guarantor") and KEYBANK NATIONAL ASSOCIATION, as a Lender
and as
Agent for all the Lenders under the Credit Agreement ("Agent").
W
I T N E S S E T H:
WHEREAS,
FSS Airholdings, Inc. and CJ Systems Aviation Group, Inc. (each a "Borrower"),
are each becoming a Borrower under that certain Revolving Credit, Term Loan
and
Security Agreement dated as of September 17, 2007 by and among Air Methods
Corporation, Rocky Mountain Holdings, L.L.C., Mercy Air Service, Inc., and
LifeNet, Inc., as the initial Borrowers, the Agent, and the Lenders (as defined
therein) (as amended or otherwise modified from time to time, the "Credit
Agreement"), pursuant to which the Lenders have agreed to make certain financial
accommodations available to the Borrowers (capitalized terms used herein
and not
otherwise defined, shall have the meanings given them in the Credit Agreement);
and
WHEREAS,
Guarantor, as an affiliate of the Borrowers, will benefit from the making
of the
financial accommodations pursuant to the Credit Agreement and is willing
to
guaranty the Liabilities (as defined below) on the terms hereinafter set
forth,
and to secure such guaranties by a pledge of their assets, as an inducement
to
the Lenders to enter into the Credit Agreement and make the loans to the
Borrowers as set forth therein.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the parties hereto agree as follows:
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1.
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Guaranty.
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(a) Guarantor
hereby unconditionally, as primary obligor and not merely as surety, guarantees
the full and prompt payment when due, whether by acceleration or otherwise,
and
at all times thereafter, of all obligations (monetary or otherwise) of the
Borrowers to the Lenders, howsoever created, arising or evidenced, whether
direct or indirect, absolute or contingent, now or hereafter existing, or
due or
to become due that arise out of or in connection with the Credit Agreement,
the
Notes (as defined in the Credit Agreement), any other Transaction Document
(as
defined in the Credit Agreement), in each case as the same may be amended,
modified, extended or renewed from time to time (all such obligations being
herein collectively called the "Liabilities"); provided, however, that Guarantor
shall be liable under this Agreement for the maximum amount of such liability
that can be hereby incurred without rendering this Agreement, as it relates
to
Guarantor, voidable under applicable law relating to fraudulent conveyance
or
fraudulent transfer, and not for any greater amount..
(b) Guarantor
agrees that, in the event of the occurrence of any Event of Default (as defined
in the Credit Agreement) and a declaration of acceleration under Section
10.2 of
the Credit Agreement, Guarantor will pay to the Lenders forthwith the full
amount that would be payable hereunder by Guarantor if all Liabilities were
then
due and payable. No payment made upon the Liabilities will discharge
or diminish the continuing liability of Guarantor in connection with any
additional Liabilities.
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2.
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Grant
of Security.
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Guarantor
hereby assigns, mortgages, charges, hypothecates and pledges to the Lenders,
and
grants to the Lenders a security interest in all Guarantor's right, title
and
interest in and to the following (collectively, the "Collateral"):
(a) All
Accounts (other than governmental Accounts that are not legally assignable
by
Guarantor), Inventory, general intangibles, chattel paper, documents, and
instruments, whether or not specifically assigned to a Lender, automotive
equipment, machinery, motor vehicles, furniture and fixtures.
(b) All
guaranties, collateral, liens on, or security interests in, real or personal
property, leases, letter of credit rights and other rights, agreements, and
property securing or relating to payment of accounts.
(c) All
rights to receive the surplus funds, if any, which are payable to Guarantor
following the termination of any pension plan and the satisfaction of all
liabilities or participants and beneficiaries under such pension plan in
accordance with applicable law.
(d) All
trademarks, trademark rights, patents, patent rights, intellectual property
licenses and permits, trade names, trade name rights, and approvals, together
with all income, royalties, damages and payments now and hereafter due and
payable thereunder with respect thereto including, but not limited to, those
set
forth on Schedule A.
(e) Equipment,
whether or not affixed to realty, including Unencumbered Aircraft and equipment
located thereon but excluding any Aircraft that is the subject of a Permitted
Encumbrance.
(f) All
sale, service, performance and equipment lease contracts as to which Guarantor
is lessee, agreements and grants (whether written or oral), and any other
contract (whether written or oral) between Guarantor and third parties (except
for any real property leases, or any equipment leases that do not allow an
assignment of such leases by their terms, neither of which shall be
Collateral).
(g) The
entire goodwill and all product lines of Guarantor's business and other general
intangibles, including, without limitation, know-how, trade secrets, customer
lists, proprietary information, inventions, methods, procedures and formulae
in
connection with the use of and symbolized by the trademarks of
Guarantor.
(h) All
books, records, ledger cards, data processing records, computer software,
and
other property at any time evidencing or relating to the
Collateral.
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(i) All
monies, securities (including a pledge of all stock of any Affiliate owned
by
Guarantor and other property now or hereafter held, or received by, or in
transit to, any Lender from or for Guarantor, and all of Guarantor's investment
property and financial assets (as each is defined in the UCC)), deposit
accounts, credits, and balances with any Lender existing at any
time.
(j) All
parts (other than parts included in the purchase of Aircraft that is the
subject
of a Permitted Encumbrance), accessories, attachments, special tools, additions,
replacements, substitutions, and accessions to or for all of the
foregoing.
(k) All
proceeds and products of all of the foregoing in any form, including, without
limitation, amounts payable under any policies of insurance insuring the
foregoing against loss or damage, and all increases and profits received
from
all of the foregoing.
(l) provided,
however, the Collateral shall not include any rights or interests of Guarantor
under any licenses, leases or other contracts if and to the extent that the
granting of a security interest in such licenses, leases or contracts is
prohibited as a matter of law (as opposed to a contractual prohibition);
provided, further, (i) if any such prohibition is no longer effective, a
security interest therein in favor of Agent shall automatically arise hereunder
without any further action on the part of Guarantor or Agent and (ii) nothing
contained herein shall be deemed to limit, impair or otherwise affect Agent’s
security interest in any rights or interests of Guarantor in or to monies
due or
to become due under any such agreement.
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3.
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Representations
and Warranties.
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Guarantor
hereby represents and warrants to the Lenders that (a) no representations
or
agreements of any kind have been made to Guarantor which would limit or qualify
in any way the terms of this Agreement; (b) this Agreement is executed at
the
Borrowers' request and not at the request of the Lenders; (c) Guarantor has
full
power, right and authority to enter into this Agreement; (d) the provisions
of
this Agreement do not conflict with or result in a default under any agreement
or other instrument binding upon Guarantor and do not result in a violation
of
any law, regulation, court decree or order applicable to Guarantor; (e)
Guarantor has not and will not, without the prior written consent of the
Agent,
sell, lease, assign, encumber, hypothecate, transfer, or otherwise dispose
of
any of the Collateral, except any sale, lease, assignment, encumbrance,
hypothecation, transfer or disposition that is undertaken in accordance with
the
covenants in the Credit Agreement applicable to Borrowers; (f) upon the Agent's
request, Guarantor will provide to the Lenders financial and credit information
consistent with that required under the Credit Agreement, and all such financial
information that currently has been, and all future financial information
that
will be provided to the Lenders is and will be true and correct in all material
respects as of the dates the financial information is provided; (g) no material
adverse change has occurred in Guarantor's financial condition since the
date of
the most recent financial statements provided to the Lenders and no event
has
occurred which may materially adversely affect Guarantor's financial condition;
(h) no litigation, claim, investigation, administrative proceeding or similar
action (including those for unpaid taxes) against Guarantor is pending or
threatened which, if adversely determined, in any case or in the aggregate,
would reasonably be expected to have a Material Adverse Effect or materially
impair the right or ability of Guarantor to carry on its operations
substantially as conducted on the date hereof; and (i) the Lenders have made
no
representation to Guarantor as to the creditworthiness of the
Borrowers.
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4.
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Waivers
and Other Agreements by
Guarantor.
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(a) Guarantor
hereby expressly waives: (i) notice of the existence or creation or
non-payment of all or any of the Liabilities, (ii) presentment, demand, notice
of dishonor, protest, and all other notices whatsoever, (iii) all diligence
in
collection or protection of or realization upon any Liabilities or any security
for or guaranty of any Liabilities, (iv) any obligation of the Lenders to
proceed directly against or exhaust any Collateral held by the Lenders from
the
Borrowers, any other guarantor, or any other person, and (v) any claim or
right
which Guarantor may now have or hereafter acquire against any Borrower or
any
other person or entity that arises from the existence, payment, performance
or
enforcement of the obligations of Guarantor under this Agreement, including
(without limitation) any right of subrogation, reimbursement, restitution,
exoneration, contribution or indemnification.
(b) Guarantor
authorizes the Lenders, without notice or demand and without lessening
Guarantor's liability under this Agreement, from time to time: (i) to
make one or more additional secured or unsecured loans to the Borrowers,
to
lease equipment or other goods to the Borrowers, or otherwise to extend
additional credit to the Borrowers; (ii) to alter, compromise, renew, extend,
accelerate, or otherwise change one or more times the time for payment or
other
terms of the Liabilities or any part of the Liabilities, including increases
and
decreases of the rate of interest on the Liabilities; extensions may be repeated
and may be for longer than the original loan terms; (iii) to take and hold
security for the payment of this Guaranty or the Liabilities, and exchange,
enforce, waive, subordinate, fail or decide not to perfect, and release any
such
security, with or without the substitution of new collateral; (iv) to release,
substitute, agree not to xxx, or deal with any one or more of the Borrowers'
sureties, endorsers, or other guarantors on any terms or in any manner the
Agent
or the Lenders may choose; (v) to determine how, when and what application
of
payments and credits shall be made on the Liabilities; (vi) to apply such
security and direct the order or manner of sale thereof, including without
limitation, any nonjudicial sale permitted by the terms of the controlling
security agreement or deed of trust, as the Agent in its discretion may
determine; (vii) to sell, transfer, assign, or grant participations in all
or
any part of the Liabilities; and (viii) to assign or transfer this Agreement
in
whole or in part.
(c) Guarantor
agrees to pay, indemnify, and hold each Lender harmless from and against,
any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses, or disbursements of any kind or nature
whatsoever (including, without limitation, counsel and special counsel fees
and
disbursements in connection with any litigation, investigation, hearing,
or
other proceeding) with respect, or in any way related, to the existence,
execution, delivery, enforcement, performance, and administration of this
Agreement, the Credit Agreement and any other Transaction Document (all of
the
foregoing, collectively, the "Indemnified Liabilities"), except to the extent
that any of the foregoing arises out of the gross negligence or willful
misconduct of the party being indemnified. The provisions of this
section shall survive repayment of the Indebtedness.
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5.
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Subordination.
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Guarantor
agrees that the indebtedness of the Borrowers to the Lenders, whether now
existing or hereafter created, shall be superior to any claim that Guarantor
may
now have or hereafter acquire against the Borrowers, whether or not the
Borrowers becomes insolvent. Guarantor hereby expressly subordinates
any claim it may have against the Borrowers, upon any account whatsoever,
to any
claim that the Lenders may now or hereafter have against the
Borrowers. In the event of insolvency and consequent liquidation of
the assets of the Borrowers, through bankruptcy, by an assignment for the
benefit of creditors, by voluntary liquidation, or otherwise, the assets
of the
Borrowers applicable to the payment of the claims of both the Lenders and
Guarantor shall be paid to the Lenders and shall be first applied by the
Lenders
to the indebtedness of the Borrowers to the Lenders. Guarantor does
hereby assign to the Lenders all claims which it may have or acquire against
the
Borrowers or against any assignee or trustee in bankruptcy of the Borrowers;
provided however, that such assignment shall be effective only for the purpose
of assuring to the Lenders full payment of all amounts due to the Lenders
by the
Borrowers. If Agent so requests, any notes or credit agreements now
or hereafter evidencing any debts or obligations of the Borrowers to Guarantor
shall be marked with a legend that the same are subject to this Agreement
and
shall be delivered to the Lenders. Guarantor agrees, and the Agent is
hereby authorized, in the name of Guarantor, from time to time to execute
and
file financing statements and continuation statements and to execute such
other
documents and to take such other actions as the Lenders deems necessary or
appropriate to perfect, preserve and enforce its rights under this
Agreement.
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6.
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Termination.
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This
Guaranty shall terminate with respect to any Guarantor upon the dissolution
of
such Guarantor if (i) Guarantor has given Agent thirty (30) days prior written
notice of such proposed dissolution and (ii) the dissolution of such Guarantor
would not reasonably be expected to have a Material Adverse Effect.
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7.
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Miscellaneous.
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(a) No
amendment or waiver of any provision of this Agreement nor consent to any
departure by the Lenders therefrom shall in any event be effective unless
the
same shall be in writing and signed by Guarantor and the Lenders, and then
such
waiver or consent shall be effective only in the specific instance and for
the
specific purpose for which given.
(b) Except
as otherwise provided herein, all notices, consents and other communications
required or permitted to be given hereunder shall be in writing and shall
be
deemed given and received when (i) delivered in person, (ii) deposited with
a
carrier for delivery on the next business day, (iii) deposited in the mail
if
mailed by certified mail, return receipt requested, or (iv) sent by facsimile
transmission with confirmation received to the party to receive such notice
at
the addresses set forth on the signature page hereto.
(c) This
Agreement shall be binding upon Guarantor and its successors, and permitted
assigns, in accordance with the terms hereof and will inure to the benefit
of
the Lenders and all successors and permitted assigns of the
Lenders. This Agreement shall not be assignable by
Guarantor. Guarantor consents to the assignment of all or any portion
of the rights of the Lenders hereunder in connection with any assignment
of the
rights of the Lenders under the Credit Agreement with notice to
Guarantor.
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(d) This
Agreement constitutes the entire agreement between the parties hereto and
supersedes all prior agreements, representations, warranties, statements,
promises, information, arrangements and understandings, whether oral or written,
express or implied, with respect to the subject matter hereof.
(e) The
headings of the various sections of this Agreement are for convenience only
and
are not intended to be construed as confining or limiting in any way the
scope
or intent of the provisions hereof.
(f) The
unenforceability or invalidity of any provision or provisions hereof shall
not
render any other provision or provisions herein contained unenforceable or
invalid and in lieu of each such illegal, invalid or unenforceable provision
there shall be added automatically as a part of this Agreement a provision
as
similar in terms to such illegal, invalid, or unenforceable provision as
may be
possible and be legal, valid, and enforceable.
(g) Guarantor
agrees to pay all expenses (including reasonable attorneys' fees and legal
expenses) paid or incurred by the Lenders in endeavoring to collect the
Liabilities against Guarantor, or any part thereof, in realizing upon or
protecting any collateral for this Agreement, and otherwise in enforcing
this
Agreement against Guarantor.
(h) The
creation or existence from time to time of additional Liabilities to the
Lenders
is hereby authorized, without notice to Guarantor, and shall in no way affect
or
impair the rights of the Lenders or the obligations of Guarantor under this
Agreement, including Guarantor's guaranty of such additional
Liabilities.
(i) This
Agreement may be executed in any number of counterparts and by the different
parties hereto on separate counterparts, and each such counterpart shall
be
deemed to be an original but all such counterparts shall together constitute
one
and the same Agreement. Each of the undersigned agrees to accept and
be bound by facsimile signatures to this Agreement.
(j) ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT, SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE
STATE OF COLORADO OR IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT
OF
COLORADO; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY
COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE LENDERS' OPTION, IN THE
COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE
FOUND. GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE
JURISDICTION OF THE COURTS OF THE STATE OF COLORADO AND OF THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF COLORADO FOR THE PURPOSE OF ANY SUCH
LITIGATION AS SET FORTH ABOVE. GUARANTOR FURTHER IRREVOCABLY CONSENTS
TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, TO THE ADDRESS
OF
THE PERSON SPECIFIED IN, OR PURSUANT TO, THE CREDIT AGREEMENT, OR BY PERSONAL
SERVICE WITHIN OR WITHOUT THE STATE OF COLORADO. GUARANTOR HEREBY
EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW,
ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
SUCH
LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ASSERTING THAT
ANY
SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE
EXTENT THAT GUARANTOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM
JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE
OR
NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR
OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, GUARANTOR HEREBY IRREVOCABLY
WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
AGREEMENT.
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(k) EACH
OF GUARANTOR AND THE LENDERS HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN
ANY
ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT,
ANY
NOTE, ANY OTHER LOAN DOCUMENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR
AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION
HEREWITH OR THEREWITH OR ARISING FROM ANY BANKING RELATIONSHIP EXISTING IN
CONNECTION WITH ANY OF THE FOREGOING, AND AGREES THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
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IN
WITNESS WHEREOF, this Agreement has been duly executed and delivered as of
the
day and year first above written.
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GUARANTOR:
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[CJ
CRITICAL CARE TRANSPORTATION SYSTEMS OF FLORIDA, INC.]
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[CJ
CRITICAL CARE TRANSPORTATION SYSTEMS, INC.]
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[CJ
CRITICAL CARE TRANSPORTATION SYSTEMS OF KENTUCKY, INC.]
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[SPECIAL
JET SERVICES, INC.]
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By:
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Name:
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Xxxxx
X. Xxxxxx
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Title:
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Chief
Financial Officer
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By:
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Name:
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Title:
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Address:
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
Phone: (000)
000-0000
Facsimile: (000)
000-0000
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AGENT:
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KEYBANK
NATIONAL ASSOCIATION
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By:
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Name:
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Xxxxx
Xxxxxx
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Title:
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Senior
Vice President
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Address:
0000
Xxxxxxxx, Xxxxx 000
Xxxxxx,
XX 00000
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