AMENDED AND RESTATED SECURITY AGREEMENT
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NAME & ADDRESS OF DEBTORS:
AIR METHODS CORPORATION
7301 S. Peoria Street
Englewood, CO 80112
MERCY AIR SERVICE, INC.
1670 Miro Way
Rialto, CA 92376
LIFENET, INC.
2207 Scott Avenue
St. Louis, MO 63103
ROCKY MOUNTAIN HOLDINGS, L.L.C.
800 South 3110 West
Provo, UT 84601
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NAME & ADDRESS OF SECURED PARTY:
PNC BANK, NATIONAL ASSOCIATION
Two Tower Center
East Brunswick, NJ 08816
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ABOVE SPACE FOR
FAA USE ONLY
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THIS AMENDED AND RESTATED SECURITY AGREEMENT ("Security Agreement") dated
May 9, 2005 among AIR METHODS CORPORATION, a corporation organized under the
laws of the State of Delaware ("AMC"), ROCKY MOUNTAIN HOLDINGS, L.L.C., a
limited liability company formed under the laws of the State of Delaware
("RMH"), MERCY AIR SERVICE, INC., a corporation organized under the laws of the
State of California ("Mercy"), LIFENET, INC., a corporation formed under the
laws of the State of Missouri (formerly known as Arch Air Medical Service, Inc.)
("LNI") (AMC, RMH, Mercy and LNI, each a "Debtor" and collectively "Debtors")
and PNC BANK, NATIONAL
ASSOCIATION ("PNC"), as agent for Lenders (as defined below) (PNC, in such
capacity, the "Agent" or "Secured Party").
RECITALS
A. Pursuant to that certain Revolving Credit and Security Agreement
dated as of October 16, 2002 (as amended, the "Original Loan Agreement") among
Debtors, Secured Party and the financial institutions described therein
("Lenders"), Secured Party and Lenders agreed to extend credit to Debtors, upon
the terms and conditions set forth therein.
B. In order to induce Secured Party and Lenders to enter into the
Original Loan Agreement, pursuant to a Security Agreement dated October 16, 2002
and recorded by the Federal Aviation Administration on November 25, 2002, as
Conveyance No. E001487 (the "Original Security Agreement"), each Debtor granted,
pledged, assigned and conveyed to Secured Party for its benefit and the ratable
benefit of Lenders a continuing security interest in and to certain Collateral
(as defined in the Original Security Agreement), to secure all of its
Obligations (as defined in the Original Loan Agreement).
C. Pursuant to that certain Amended and Restated Revolving Credit, Term
Loan and Security Agreement dated May 9, 2005 (as amended, supplemented or
otherwise modified from time to time, the "Loan Agreement") among Debtors,
Secured Party and the Lenders described therein, Secured Party and Lenders
agreed to continue to extend credit to Debtors, and increase the maximum amount
of such credit, upon the terms and conditions set forth therein, and Debtors
agreed to provide additional Collateral to Secured Party for its benefit and the
ratable benefit of Lenders.
D. In order to induce Secured Party and Lenders to enter into the Loan
Agreement, Debtor has agreed to amend and restate the Original Security
Agreement and each Debtor does hereby ratify and reaffirm its previous grant,
pledge, assign and convey to Secured Party and hereby further grants, pledges,
assigns and conveys to Secured Party for its benefit and the ratable benefit of
Lenders a continuing security interest in and to the Collateral (as hereinafter
defined), to secure all of its Obligations (as defined in the Loan Agreement).
E. Secured Party and Lenders have conditioned their obligation to enter
into the Loan Agreement upon the execution and delivery of this Security
Agreement by Debtors.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, each Debtor hereby agrees with Secured Party as follows:
Section 1. Definitions. Unless otherwise defined herein, all
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capitalized terms used herein shall have the respective meanings given to such
terms in the Loan Agreement. All terms used herein and defined in the Uniform
Commercial Code as adopted in the State of New York from time to time shall have
the meaning given therein unless otherwise defined herein. To the extent the
definition of any category or type of Collateral is expanded by any amendment,
modification or revision to the Uniform Commercial Code, such expanded
definition will apply automatically as of the date of such amendment,
modification or revision.
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"Aircraft" shall mean (i) an engine-driven fixed-wing aircraft heavier
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than air, that is supported in flight by the dynamic reaction of the air against
its wings or (ii) a rotorcraft that, for its horizontal motion, depends
principally on its engine-driven rotors. Aircraft shall include any item which
is incorporated in, attached to or specifically acquired by a Debtor to be used
only in connection with a specific Aircraft.
"Collateral" shall mean and include:
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(a) all Receivables;
(b) all Equipment (including Unencumbered Aircraft, but
excluding all other Aircraft);
(c) all General Intangibles;
(d) all Inventory;
(e) all Investment Property;
(f) all of each Debtor's right, title and interest in and to
(i) its respective goods and other property including, but not limited to, all
merchandise returned or rejected by Customers, relating to or securing any of
the Receivables; (ii) all of each Debtor's rights as a consignor, a consignee,
an unpaid vendor, mechanic, artisan, or other lienor, including stoppage in
transit, setoff, detinue, replevin, reclamation and repurchase; (iii) all
additional amounts due to any Debtor from any Customer relating to the
Receivables; (iv) other property, including warranty claims, relating to any
goods securing this Agreement; (v) all of each Debtor's contract rights, rights
of payment which have been earned under a contract right, instruments (including
promissory notes), documents, chattel paper (including electronic chattel
paper), warehouse receipts, deposit accounts, letters of credit, and money; (vi)
all commercial tort claims (whether now existing or hereafter arising); (vii) if
and when obtained by any Debtor, all real and personal property of third parties
in which such Debtor has been granted a lien or security interest as security
for the payment or enforcement of Receivables; and (viii) any other goods,
personal property or real property now owned or hereafter acquired in which any
Debtor has expressly granted a security interest or may in the future grant a
security interest to Agent hereunder, or in any amendment or supplement hereto
or thereto, or under any other agreement between Agent and any Debtor;
(g) all of each Debtor's ledger sheets, ledger cards, files,
correspondence, records, books of account, business papers, computers, computer
software (owned by any Debtor or in which it has an interest), computer
programs, tapes, disks and documents relating to (a), (b), (c), (d), (e) or (f)
of this Paragraph; and
(h) all proceeds and products of (a), (b), (c), (d), (e), (f)
and (g) in whatever form, including, but not limited to: cash, deposit accounts
(whether or not comprised solely of proceeds), certificates of deposit,
insurance proceeds (including hazard, flood and credit insurance), negotiable
instruments and other instruments for the payment of money, chattel paper,
security agreements, documents, eminent domain proceeds, condemnation proceeds
and tort claim proceeds.
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provided, however, the Collateral shall not include any rights or interests of
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Debtors under any licenses, leases or other contracts if and to the extent that
(a) the terms of the agreement or agreements creating or evidencing such rights
or interests prohibit such grant and (b) the term prohibiting such grant is
effective as a matter of law and has not been waived or the consent of the
necessary party to the grant to Agent has not been obtained; provided, further,
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(i) if any such prohibition is subsequently lifted, terminated or is otherwise
no longer effective as a matter of law or is waived or the consent of the
necessary party is obtained, a security interest therein in favor of Agent shall
automatically arise hereunder without any further action on the part of Debtors
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 Debtors
in or to monies due or to become due under any such agreement.
"Customer" shall mean and include the account debtor with respect to
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any Receivable and/or the prospective purchaser of goods, services or both with
respect to any contract or contract right, and/or any party who enters into or
proposes to enter into any contract or other arrangement with any Debtor,
pursuant to which such Debtor is to deliver any personal property or perform any
services.
"Equipment" shall mean and include as to each Debtor all of such
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Debtor's goods (other than Inventory) whether now owned or hereafter acquired
and wherever located including, without limitation, all equipment, machinery,
apparatus, motor vehicles, fittings, furniture, furnishings, fixtures, parts,
accessories, "appliances" as defined in Section 40102 (a)(11) of Title 49 of the
United States Code and "spare parts" as defined in Section 40102(a)(38) of Title
49 of the United States Code, which appliances and spare parts are being
maintained by or on behalf of AMC or LNI at their respective locations described
on Schedule 3(e), and all replacements and substitutions therefor or accessions
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thereto.
"General Intangibles" shall mean and include as to each Debtor all of
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such Debtor's general intangibles, whether now owned or hereafter acquired
including, without limitation, all payment intangibles, choses in action, causes
of action, corporate or other business records, inventions, designs, patents,
patent applications, equipment formulations, manufacturing procedures, quality
control procedures, trademarks, service marks, trade secrets, goodwill,
copyrights, design rights, software, computer information, source codes, codes,
records and dates, registrations, licenses, franchises, customer lists, tax
refunds, tax refund claims, computer programs, all claims under guaranties,
security interests or other security held by or granted to such Debtor to secure
payment of any of the Receivables by a Customer (other than to the extent
covered by Receivables) all rights of indemnification and all other intangible
property of every kind and nature (other than Receivables).
"Inventory" shall mean and include as to each Debtor all of such
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Debtor's now owned or hereafter acquired goods, merchandise and other personal
property (other than Aircraft), wherever located, to be furnished under any
consignment arrangement, contract of service or held for sale or lease, all raw
materials, work in process, finished goods and materials and supplies of any
kind, nature or description which are or might be used or consumed in such
Debtor's business or used in selling or furnishing such goods, merchandise and
other personal property, and all documents of title or other documents
representing them.
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"Investment Property" shall mean and include as to each Debtor, all of
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such Debtor's now owned or hereafter acquired securities (whether certificated
or uncertificated), securities entitlements, securities accounts, commodities
contracts and commodities accounts.
"Receivables" shall mean and include, as to each Debtor, all of such
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Debtor's accounts, contract rights, instruments (including those evidencing
indebtedness owed to Debtors by their affiliates), documents, chattel paper
(including electronic chattel paper), general intangibles relating to accounts,
drafts and acceptances, credit card receivables, and all other forms of
obligations owing to such Debtor arising out of or in connection with the sale
or lease of Inventory or the rendition of services, all supporting obligations,
guarantees and other security therefor, whether secured or unsecured, now
existing or hereafter created, and whether or not specifically sold or assigned
to Agent hereunder.
"Unencumbered Aircraft" shall mean all Aircraft described on Schedule
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1 hereto.
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Section 2. Grant of Security Interest. To secure the prompt payment
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and performance to Agent and each Lender of the Obligations, each Debtor hereby
assigns, pledges and grants to Agent for its benefit and for the ratable benefit
of each Lender a continuing security interest in and to all of its Collateral,
whether now owned or existing or hereafter acquired or arising and wheresoever
located.
Section 3. Representations and Warranties. Debtor represents and
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warrants to Secured Party as follows:
(a) The chief place of business of each Debtor and the chief
executive office of each Debtor is set forth on Schedule 3(a) hereto.
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(b) The Collateral is maintained by or on behalf of the Debtors.
(c) Each Debtor owns good and indefeasible title to the Collateral
free and clear of any lien, security interest, lease, option, conditional sales
contract, charge or encumbrance except for the liens and security interests
created by this Security Agreement and Permitted Encumbrances, if any, and has
the sole and unrestricted right to mortgage, encumber and hypothecate the
Collateral in accordance with the terms set forth in this Security Agreement.
(d) This Security Agreement creates valid and enforceable security
interests in the Collateral in favor of Secured Party, securing the payment and
performance of the obligations, and all filings and other actions necessary or
desirable to perfect and protect such security interests have been duly taken.
(e) The Collateral consisting of Inventory will be at all times
located at one of the addresses set forth on Schedule 3(e) hereto; provided that
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the Collateral shall not be removed from such locations without the prior
written consent of Agent except with respect to (i) the sale of Inventory in the
ordinary course of business and (ii) the relocation of Inventory to a location
other than as set forth on Schedule 3(e), provided that (A) the aggregate amount
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of such relocated Inventory shall not exceed at any one time One Hundred
Thousand Dollars ($100,000.00) and (B) within thirty (30) days of such
relocation, such Debtor shall have
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delivered to Agent all filings and taken such other actions necessary or
desirable to perfect and protect its interests in such Inventory.
Section 4. Additional Representations and Warranties. Each of AMC and
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LNI further represents and warrants to Secured Party as follows:
(a) The Equipment is maintained by or on behalf of it at its
locations described on Schedule 3(e) hereto.
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(b) It is an "air carrier" certificated under 49 U.S.C. Section
44705.
Section 5. Released Locations. Inasmuch as Debtors are no longer
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maintaining Equipment at the locations described in Schedule 3(e) attached to
the Original Security Agreement which are not also described in Schedule 3(e)
attached hereto (the "Released Locations"), Secured Party hereby releases from
the terms of the Original Security Agreement all of its interest in any
Equipment currently located at the Released Locations and hereby agrees that the
Released Locations are not covered by this Security Agreement.
Section 6. Remedies. Upon the occurrence of an Event of Default,
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Secured Party may exercise any or all rights and remedies as provided for under
the Loan Agreement.
Section 7. Notices. All notices, requests and other communications
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provided for hereunder shall be in writing and delivered in accordance with the
provisions of the Loan Agreement.
Section 8. Continuing Security Interest. This Security Agreement shall
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create a continuing security interest in the Collateral subject to the terms and
conditions of the Loan Agreement.
Section 9. Governing Law. This Agreement shall be governed by and
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construed in accordance with the laws of the State of New York.
Section 10. Counterparts. This Security Agreement may be executed in
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multiple counterparts, each of which when so executed shall be deemed to be an
original, enforceable against the signatory thereto, and both of which taken
together shall constitute one and the same agreement.
Section 11. Incorporation of the Loan Agreement. The Loan Agreement
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and the terms and provisions thereof are hereby incorporated herein in their
entirety by this reference thereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Security Agreement to be executed as of the date and year first above
written.
AIR METHODS CORPORATION
MERCY AIR SERVICE, INC.
LIFENET, INC.
By: /s/ Aaron Todd
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Name: Aaron Todd
Title: Chief Executive Officer
of each of the foregoing corporations
ROCKY MOUNTAIN HOLDINGS, L.L.C.
By: Air Methods Corporation, its sole member
By: /s/ Aaron Todd
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Name: Aaron Todd
Title: Chief Executive Officer
PNC BANK, NATIONAL ASSOCIATION, as Agent
By: /s/ Patrick McConnell
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Name: Patrick McConnell
Title: Vice President
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SCHEDULE 1 TO AMENDED AND RESTATED SECURITY AGREEMENT
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DESCRIPTION OF UNENCUMBERED AIRCRAFT
[INSERT]
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SCHEDULE 3(a) TO AMENDED AND RESTATED SECURITY AGREEMENT
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CHIEF PLACE OF BUSINESS/CHIEF EXECUTIVE OFFICE
[INSERT]
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SCHEDULE 3(e) TO AMENDED AND RESTATED SECURITY AGREEMENT
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ADDRESSES
[INSERT]
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