Exhibit 10.1
AMENDMENT NO. 1
TO
AMENDED AND RESTATED
REVOLVING CREDIT, TERM LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 1 (this "Amendment") is entered into as of December 15,
2005, by and 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 ("LifeNet") (AMC, RMH, Mercy and LifeNet, each a
"Borrower" and collectively "Borrowers"), the financial institutions which are
party hereto (collectively, the "Lenders" and individually a "Lender") and PNC
BANK, NATIONAL ASSOCIATION ("PNC"), as agent for Lenders (PNC, in such capacity,
"Agent").
BACKGROUND
Borrowers, Agent and Lenders are parties to an Amended and Restated
Revolving Credit, Term Loan and Security Agreement dated as of May 9, 2005 (as
same may from time to time hereafter be amended, restated, supplemented or
otherwise modified from time to time, the "Loan Agreement") pursuant to which
Agent and Lenders provide Borrowers with certain financial accommodations.
Borrowers have requested Agent and Lenders to (a) extend the maturity date
of the Loan Agreement to five (5) years from the closing of this Amendment, (b)
consolidate Term Loan A and Term Loan B and increase the maximum principal sum
of the aggregate Term Loan from $20,000,000 to $25,000,000, and (c) effectuate
certain other modifications to the Loan Agreement. Agent and Lenders are willing
to do so on the terms and conditions hereafter set forth.
NOW, THEREFORE, in consideration of any loan or advance or grant of credit
heretofore or hereafter made to or for the account of Borrowers by Agent and
Lenders, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Definitions. All capitalized terms not otherwise defined herein
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shall have the meanings given to them in the Loan Agreement.
2. Amendments to Loan Agreement. Subject to satisfaction of the
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condition precedent set forth in Section 3 below, the Loan Agreement is hereby
amended as follows:
(a) Section 1.2 of the Loan Agreement is hereby amended by
inserting the following new defined terms in their appropriate alphabetical
order:
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"Amendment No. 1" shall mean Amendment No. 1 to this
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Agreement dated as of December 15, 2005.
"Amendment No. 1 Closing Date" shall mean the date when the
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conditions in Section 3 of Amendment No. 1 have been met to the
satisfaction of Agent.
(b) The defined terms "Aircraft Collateral Value", "Applicable
Margin", "Contract Rate", "Excess Cash Flow", "Fee Letter", "Note", "Revolving
Advances", "Revolving Credit Note", "Senior Debt", and "Senior Debt Payments"
appearing in Section 1.2 of the Loan Agreement are hereby amended and restated
as follows:
"Aircraft Collateral Value" shall mean the value ascribed by
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Agent to each of the Unencumbered Aircraft as of the Closing Date
for purposes of determining the amounts to be loaned hereunder
against such Unencumbered Aircraft, as set forth on Exhibit D, as
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reduced, from time to time, by each such Aircraft's allocable
share of principal payments made by any Borrower with respect to
the Term Loan, in accordance with the formulation set forth on
Exhibit D.
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"Applicable Margin" shall mean, as of the Amendment No. 1
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Closing Date, with respect to Eurodollar Loans consisting of
Revolving Advances, 1.75%. Commencing with the receipt and review
by Agent of Borrowers' quarterly financial statements pursuant to
Section 9.8 hereof for the fiscal quarter ending December 31,
2005, and upon receipt and review by Agent of Borrower's
quarterly financial statements at the end of each fiscal quarter
thereafter, the Applicable Margin shall be adjusted effective
five (5) Business Days following receipt of such statements to
the percentages set forth below, based upon the ratio of Senior
Debt to EBITDA at the end of such fiscal quarter:
Senior Debt to EBITDA Ratio Revolving
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Advances
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Less than 2.00 :1.00 1.75%
Greater than or equal to 2.00 but less 2.00%
than 2.50:1.00
Greater than or equal to 2.50 but less 2.25%
than 3.50:1.00
Greater than or equal to 3.50 but less 2.50%
than 4.00:1.00
Greater than or equal to 4.00:1.00 3.00%
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If any financial statements referred to above are not delivered
within the required time periods then, until so delivered, the
Senior Debt to EBITDA Ratio as at the end of the fiscal period
that would have been covered thereby shall, for the purpose of
this definition, be deemed to be greater than 4.00 to 1.0 and the
Applicable Margin based upon such Senior Debt to EBITDA Ratio
shall become effective as of the due date of such delinquent
financial statements. No reduction in the Applicable Margin shall
occur if an Event of Default has occurred and is continuing at
the time such reduction is scheduled to occur.
"Contract Rate" shall mean, as applicable, the Revolving
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Interest Rate or the Term Loan Rate.
"Excess Cash Flow" for any fiscal period shall mean (a)
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EBITDA of Borrowers on a Consolidated Basis for such fiscal
period minus (b) Unfinanced Capital Expenditures made by
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Borrowers on a Consolidated Basis during such fiscal period minus
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(c) without duplication for sums deducted in clause (b), costs
expended during such fiscal period in connection with new base
openings minus (d) taxes actually paid by Borrowers on a
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Consolidated Basis during such fiscal period minus (e) Senior
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Debt Payments made by Borrowers on a Consolidated Basis during
such fiscal period.
"Fee Letter" shall mean the amended and restated fee letter
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dated December 15, 2005 among Borrowers, PNC Capital Markets LLC
(successor-in-interest to PNCCM) and PNC.
"Note" shall mean, collectively, the Term Note and the
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Revolving Credit Note.
"Revolving Advances" shall mean Advances made other than
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Letters of Credit and the Term Loan.
"Revolving Credit Note" shall mean, collectively, the
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amended and restated notes referred to in Section 2.1(a) hereof,
as same may be further amended and restated from time to time.
"Senior Debt" shall mean and include (a) all Revolving
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Advances hereunder, plus (b) the Term Loan, plus (c) Aircraft
Indebtedness, plus (d) Capitalized Lease Obligations.
"Senior Debt Payments" shall mean and include all cash
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actually expended by any Borrower to make (a) interest payments
on any Advances hereunder, plus (b) principal payments on the
Term Loan, plus (c) payments for all fees, expenses, commissions
and charges set forth herein and with respect to any Advances,
plus (d) payments on Capitalized Lease Obligations, plus (e)
payments with respect to any other Indebtedness for borrowed
money including Aircraft Indebtedness.
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(c) The defined terms "Term Loan A", "Term Loan A Rate", Term Loan
B", "Term Loan B Rate", "Term Loans", "Term Note A", "Term Note B" and "Term
Notes" appearing in Section 1.2 of the Loan Agreement are hereby deleted and the
following new defined terms shall be inserted in their appropriate alphabetical
order:
"Term Loan" or "Term Loans" shall mean the advances made
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pursuant to Section 2.4 hereof.
"Term Loan Rate" shall mean an interest rate per annum equal
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to (a) the sum of the Alternate Base Rate plus two and one-half
percent (2.50%) with respect to Domestic Rate Loans and (b) the
sum of the Eurodollar Rate plus four percent (4.00%) with respect
to Eurodollar Rate Loans.
"Term Note" shall mean, collectively, the promissory notes
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described in Section 2.4.
(d) Section 2.4 of the Loan Agreement is hereby amended and
restated as follows:
2.4 Term Loan. On the Closing Date, (a) "Term Loan A" (as
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such term was defined in the Agreement prior to the Amendment No.
1 Closing Date) in the aggregate amount of $12,000,000 was
advanced to Borrowers and (b) "Term Loan B" (as such term was
defined in the Agreement prior to the Amendment No. 1 Closing
Date) in the aggregate amount of $8,000,000 was advanced to
Borrowers. The outstanding principal balance of Term Loan A as of
the Amendment No. 1 Closing Date is $12,000,000 and the
outstanding principal balance of Term Loan B as of the Amendment
No. 1 Closing Date is $8,000,000. Subject to the terms and
conditions of Amendment No. 1, on the Amendment No. 1 Closing
Date (a) Term Loan A and Term Loan B shall be consolidated and
recast as the "Term Loan" and (b) each Lender, severally and not
jointly, will make an additional Term Loan to Borrowers in the
sum equal to such Lender's Commitment Percentage of $5,000,000,
so that the aggregate principal amount of the Term Loan shall be
$25,000,000. The Term Loan shall be, with respect to principal,
payable in equal consecutive quarterly installments, each in the
sum of $425,000, commencing November 15, 2006 and continuing on
the fifteenth (15th) day of each February, May, August and
November thereafter, until the last day of the Term when the
entire unpaid principal sum of the Term Loan shall be payable in
full, subject to acceleration upon the occurrence of an Event of
Default under this Agreement or termination of this Agreement.
The Term Loan shall be evidenced by one or more secured amended
and restated promissory notes (collectively, the "Term Note") in
substantially the form attached to Amendment No. 1 as Exhibit 2.4
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thereto.
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(e) Section 2.6(a) of the Loan Agreement is hereby amended and
restated as follows:
(a) The Revolving Advances shall be due and payable in
full on the last day of the Term subject to earlier prepayment as
herein provided. The Term Loan shall be due and payable as
provided in Section 2.4 hereof and in the Term Note, subject to
mandatory prepayments as herein provided.
(f) Section 2.20(a) of the Loan Agreement is hereby amended and
restated as follows:
(a) Each borrowing of Revolving Advances shall be
advanced according to the applicable Commitment Percentages of
Lenders. The Term Loan shall be advanced according to the
Commitment Percentages of Lenders.
(g) Section 2.20(b) of the Loan Agreement is hereby amended and
restated as follows:
(b) Each payment (including each prepayment) by any
Borrower on account of the principal of and interest on the
Revolving Advances, shall be applied to the Revolving Advances
pro rata according to the applicable Commitment Percentages of
Lenders. Each payment (including each prepayment) by any Borrower
on account of the principal of and interest on Term Note, shall
be made from or to, or applied to that portion of Term Loan
evidenced by Term Note pro rata according to the Commitment
Percentages of Lenders. Except as expressly provided herein, all
payments (including prepayments) to be made by any Borrower on
account of principal, interest and fees shall be made without set
off or counterclaim and shall be made to Agent on behalf of the
Lenders to the Payment Office, in each case on or prior to 1:00
p.m., in Dollars and in immediately available funds.
(h) The last sentence of Section 2.21(b) of the Loan Agreement is
hereby amended and restated as follows:
Such repayments shall be applied (x) first, to the outstanding
principal installments of the Term Loan in the inverse order of
the maturities thereof and (y) second, to the remaining Advances
in such order as Agent may determine, subject to Borrowers'
ability to reborrow Revolving Advances in accordance with the
terms hereof.
(i) The first sentence of Section 2.21(c) of the Loan Agreement is
hereby amended and restated as follows:
Borrowers shall prepay the outstanding amount of the Advances in
an amount equal to 50% of Excess Cash Flow for each fiscal year
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commencing on or after January 1, 2006, payment in respect of
which shall be made in 2007, payable upon delivery of the
financial statements to Agent referred to in and required by
Section 9.7 for such fiscal year but in any event not later than
ninety (90) days after the end of each such fiscal year, which
amount shall be applied (x) first, to the outstanding principal
installments of the Term Loan in the inverse order of the
maturities thereof, and (y) second, to the remaining Advances in
such order as Agent may determine, subject to Borrowers' ability
to reborrow Revolving Advances in accordance with the terms
hereof.
(j) The second sentence of Section 3.1 of the Loan Agreement is
hereby amended and restated as follows:
Interest charges shall be computed on the actual principal amount
of Advances outstanding during the month at a rate per annum
equal to (i) with respect to Revolving Advances, the applicable
Revolving Interest Rate, (ii) with respect to the Term Loan, the
applicable Term Loan Rate (as applicable, the "Contract Rate").
(k) Section 6.5(c) of the Loan Agreement is hereby amended and
restated as follows:
(c) Leverage Ratio. Commencing with the fiscal quarter
ending June 30, 2005, maintain a ratio of Senior Debt to EBITDA
at the end of each fiscal quarter during each period set forth
below with respect to the four fiscal quarters then ended of not
greater than the ratio set forth below:
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Period Ratio
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07/01/04 - 06/30/05 4.00 to 1.00
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10/01/04 - 09/30/05 3.50 to 1.00
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01/01/05 - 12/31/05 3.25 to 1.00
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01/01/06 and thereafter 3.25 to 1.00
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(l) Section 13.1 of the Loan Agreement is hereby amended and
restated as follows:
13.1 Term. This Agreement, which shall inure to the
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benefit of and shall be binding upon the respective successors
and permitted assigns of each Borrower, Agent and each Lender,
shall continue in full force and effect until December 14, 2010
(the "Term") unless sooner terminated as herein provided.
Borrowers may terminate this Agreement at any time upon sixty
(60) days' prior written notice upon payment in full of the
Obligations. In the event the Obligations are prepaid in full
prior to the
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last day of the Term, Borrowers shall pay to Agent the early
termination fee then required, if any, in accordance with the
terms of the Fee Letter.
3. Conditions of Effectiveness. This Amendment shall become effective
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upon satisfaction of the following conditions precedent, each of which shall be
in form and substance reasonably satisfactory to Agent and its counsel.
(a) Agent shall have received six (6) copies of this Amendment
duly executed by each Borrower and each Lender;
(b) Each Borrower shall have executed and delivered to Agent, for
the benefit of the respective Lenders, a Revolving Credit Note for each Lender
substantially in the form annexed hereto as EXHIBIT 2.1(A);
(c) Each Borrower shall have executed and delivered to Agent, for
the benefit of the respective Lenders, a Term Note for each Lender substantially
in the form annexed hereto as EXHIBIT 2.4;
(d) Agent shall have received four (4) copies of the amended and
restated Fee Letter, duly executed by each Borrower, and Agent shall have
received all fees payable to Agent and Lenders on or prior to the Amendment No.
1 Closing Date under the Loan Agreement (including pursuant to Article III
thereof) and pursuant to the Fee Letter, and reimbursement for all fees and
expenses incurred in connection with this Amendment (including, without
limitation, the legal fees and expenses of counsel to Agent);
(e) Agent shall have received a copy of the resolutions, dated as
of the Amendment No. 1 Closing Date, in form and substance reasonably
satisfactory to Agent, of the Board of Directors or the Members, as the case may
be, of each Borrower authorizing the execution, delivery and performance of this
Amendment, the Term Notes and any related agreements (collectively the
"Documents") certified by the Secretary or an Assistant Secretary of each
Borrower; and such certificate shall state that the resolutions thereby
certified have not been amended, modified, revoked or rescinded as of the date
of such certificate;
(f) Agent shall have received a certificate of the Secretary or an
Assistant Secretary of each Borrower, dated as of the Amendment No. 1 Closing
Date, as to the incumbency and signature of the officers of each Borrower
executing this Amendment, the Revolving Credit Notes, the Term Notes, and any
certificate or other documents to be delivered by it pursuant hereto, together
with evidence of the incumbency of such Secretary or Assistant Secretary;
(g) Agent shall have received (i) a copy of the Articles or
Certificate of Incorporation of AMC, Mercy and LifeNet, and all amendments
thereto, certified by the Secretary of State or other appropriate official of
its jurisdiction of incorporation or formation together with copies of the
By-Laws of AMC, Mercy and LifeNet and all agreements of each of AMC's, Mercy's
and LifeNet's shareholders, if any, certified as accurate and complete by the
Secretary of each Borrower and (ii) a copy of the Certificate of Formation of
RMH, and all amendments thereto, certified by the Secretary of State or other
appropriate official of its jurisdiction of formation, together with copies of
the First Amended and Restated Limited
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Liability Company Agreement of RMH certified as accurate and complete by the
Chief Financial Officer of AMC;
(h) Agent shall have received good standing certificates for each
Borrower dated not more than thirty (30) days prior to the Closing Date, issued
by the Secretary of State or other appropriate official of each Borrower's
jurisdiction of incorporation or formation and each jurisdiction where the
conduct of each Borrower's business activities or the ownership of its
properties necessitates qualification;
(i) Agent shall have received the executed legal opinion of Davis
Graham & Stubbs LLP, in form and substance reasonably satisfactory to Agent
which shall cover such matters incident to the transactions contemplated by this
Amendment, the Term Notes and related agreements as Agent may reasonably require
and each Borrower hereby authorizes and directs such counsel to deliver such
opinions to Agent and Lenders;
(j) Agent shall have received a copy of a fully executed
Commitment Transfer Supplement pursuant to which (x) Keybank N.A. shall have
purchased, as of the Amendment No. 1 Closing Date, a portion of the interests of
Wells Fargo Bank, N.A. in the outstanding Obligations and (y) LaSalle Bank, N.A.
shall have purchased all of the interests of Wells Fargo Bank, N.A. in the
outstanding Obligations not purchased by Keybank N.A. as of the Amendment No. 1
Closing Date, all in accordance with Section 16.3 of the Loan Agreement;
(k) Agent shall have received such other certificates,
instruments, documents, agreements and opinions of counsel as may be reasonably
required by Agent or its counsel relating to the transactions contemplated in
this Amendment.
4. Representations and Warranties. Each Borrower hereby represents and
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warrants as follows:
(a) This Amendment and the Loan Agreement, as amended hereby,
constitute legal, valid and binding obligations of each Borrower and are
enforceable against each Borrower in accordance with their respective terms,
except as such enforceability may be limited by any applicable bankruptcy,
insolvency, moratorium or similar laws affecting creditors' rights generally.
(b) Upon the effectiveness of this Amendment, each Borrower hereby
reaffirms all covenants, representations and warranties made in the Loan
Agreement to the extent the same are not amended hereby and agrees that all such
covenants, representations and warranties shall be deemed to have been remade as
of the effective date of this Amendment.
(c) No Event of Default or Default has occurred and is continuing
or would exist after giving effect to this Amendment.
(d) No Borrower has any defense, counterclaim or offset with
respect to the Loan Agreement.
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5. Effect on the Loan Agreement.
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(a) Upon the effectiveness of Section 2 hereof, each reference in
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the Loan Agreement to "this Agreement," "hereunder," "hereof," "herein" or words
of like import shall mean and be a reference to the Loan Agreement as amended
hereby.
(b) Except as specifically amended herein, the Loan Agreement, and
all other documents, instruments and agreements executed and/or delivered in
connection therewith, shall remain in full force and effect, and are hereby
ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of Agent or Lenders,
nor constitute a waiver of any provision of the Loan Agreement, or any other
documents, instruments or agreements executed and/or delivered under or in
connection therewith.
6. Governing Law. This Amendment shall be binding upon and inure to
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the benefit of the parties hereto and their respective successors and assigns
and shall be governed by and construed in accordance with the internal laws of
the State of New York.
7. Headings. Section headings in this Amendment are included herein
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for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
8. Counterparts; Facsimile. This Amendment may be executed by the
-----------------------
parties hereto in one or more counterparts, each of which shall be deemed an
original and all of which when taken together shall constitute one and the same
agreement. Any signature delivered by a party by facsimile transmission shall be
deemed to be an original signature hereto.
[remainder of page intentionally left blank]
[signature pages follow]
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the day and
year first written above.
AIR METHODS CORPORATION
By: /s/ Trent J. Carman
-----------------------------------
Name: Trent J. Carman
Title: Chief Financial Officer
Address: 7301 South Peoria Street
Englewood, Colorado 80112
ROCKY MOUNTAIN HOLDINGS L.L.C.
By: Air Methods Corporation, its sole member
By: /s/ Trent J. Carman
-----------------------------------
Name: Trent J. Carman
Title: Chief Financial Officer
Address: 7301 South Peoria Street
Englewood, Colorado 80112
MERCY AIR SERVICE, INC.
By: /s/ Trent J. Carman
-----------------------------------
Name: Trent J. Carman
Title: Chief Financial Officer
Address: 1670 Miro Way
Rialto, California 92376
LIFENET, INC.
By: /s/ Trent J. Carman
-----------------------------------
Name: Trent J. Carman
Title: Chief Financial Officer
Address: 2207 Scott Avenue
St. Louis, Missouri 63103
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PNC BANK, NATIONAL ASSOCIATION,
as Lender and as Agent
By: /s/ Patrick McConnell
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Name: Patrick McConnell
Title: Vice President
Address: 70 East 55th Street
New York, New York 10022
Commitment Percentage: 45.454545455%
LASALLE BANK, N.A.
By: /s/ Douglas L. Pogue
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Name: Douglas L. Pogue
Title: First Vice President
Address: 370 Seventeenth Street, Suite 3590
Denver, Colorado 80274
Commitment Percentage: 29.545454545%
KEYBANK, N.A.
By: /s/ Chris Mohler
-----------------------------------
Name: Chris Mohler
Title: Vice President
Address: 1675 Broadway, Suite 500
Denver, Colorado 80274
Commitment Percentage: 25.000000000%
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EXHIBIT 2.1(A)
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FORM OF SECOND AMENDED AND RESTATED REVOLVING CREDIT NOTE
$__________ New York, New York
December __, 2005
This Second Amended and Restated Revolving Credit Note (this "Note") is
executed and delivered under and pursuant to the terms of that certain Amended
and Restated Revolving Credit, Term Loan and Security Agreement dated as of May
9, 2005 (as amended by Amendment No. 1 to Amended and Restated Revolving Credit,
Term Loan and Security Agreement dated as of December __, 2005, and as further
amended, modified, supplemented or restated from time to time, the "Loan
Agreement") by and among Air Methods Corporation, a Delaware corporation, Rocky
Mountain Holdings, L.L.C., a Delaware limited liability company, Mercy Air
Service, Inc., a California corporation, and LifeNet, Inc., a Missouri
corporation (each, a "Borrower" and jointly and severally, the "Borrowers"), PNC
Bank, National Association ("PNC"), the various other financial institutions
named therein or which hereafter become a party thereto (together with PNC,
collectively, the "Lenders") and PNC as agent for the Lenders (PNC, in such
capacity, "Agent"). Capitalized terms not otherwise defined herein shall have
the meanings ascribed thereto in the Loan Agreement.
FOR VALUE RECEIVED, Borrower promises to pay to the order of
______________________, at Agent's offices located at 70 East 55th Street, New
York, New York 10022 or at such other place as the holder hereof may from time
to time designate to Borrower in writing:
(i) the principal sum of ___________ MILLION _______________ THOUSAND
_____________________ DOLLARS and __/100 ($_,___,___.__), or if different from
such amount, the unpaid principal balance of Revolving Advances as may be due
and owing the holder hereof from time to time under the Loan Agreement, payable
in accordance with the provisions of the Loan Agreement, subject to acceleration
upon the occurrence of an Event of Default under the Loan Agreement or earlier
termination of the Loan Agreement pursuant to the terms thereof; and
(ii) interest on the principal amount of this Note from time to time
outstanding, payable at the applicable Revolving Interest Rate in accordance
with the provisions of the Loan Agreement. Upon and after the occurrence of an
Event of Default, and during the continuation thereof, interest shall be payable
at the applicable Default Rate. In no event, however, shall interest hereunder
exceed the maximum interest rate permitted by law.
This Note is one of the Revolving Credit Notes referred to in the Loan
Agreement and is secured, inter alia, by the liens granted pursuant to the Loan
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Agreement and the Other Documents, is entitled to the benefits of the Loan
Agreement and the Other Documents, and is subject to all of the agreements,
terms and conditions therein contained.
This Note is subject to mandatory prepayment and may be voluntarily
prepaid, in whole or in part, on the terms and conditions set forth in the Loan
Agreement.
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If an Event of Default under Section 10.7 of the Loan Agreement shall
occur, then this Note shall immediately become due and payable, without notice,
together with reasonable attorneys' fees if the collection hereof is placed in
the hands of an attorney to obtain or enforce payment hereof. If any other Event
of Default shall occur under the Loan Agreement or any of the Other Documents
which is not cured within any applicable grace period, then this Note may, as
provided in the Loan Agreement, be declared to be immediately due and payable,
without notice, together with reasonable attorneys' fees, if the collection
hereof is placed in the hands of an attorney to obtain or enforce payment
hereof.
This Note, together with those certain Second Amended and Restated
Revolving Credit Notes dated the date hereof issued by Borrowers to ___________
and ________ in the aggregate original principal amounts of $____________ and
$__________, respectively, amends, restates and replaces in its entirety and is
given in substitution for (but not in satisfaction of), (a) that certain Amended
and Restated Revolving Credit Note dated May 9, 2005, executed by Borrowers in
favor of PNC in the original principal sum of $15,909,090.92, (b) that certain
Amended and Restated Revolving Credit Note dated May 9, 2005, executed by
Borrowers in favor of WELLS FARGO BANK, N.A. in the original principal sum of
$11,136,363.63, and (c) that certain Amended and Restated Revolving Credit Note
dated May 9, 2005, executed by Borrowers in favor of KEYBANK, N.A. in the
original principal sum of $7,954,545.45.
This Note shall be governed by and construed in accordance with the laws of
the State of New York.
Borrower expressly waives any presentment, demand, protest, notice of
protest, or notice of any kind except as expressly provided in the Loan
Agreement.
AIR METHODS CORPORATION
MERCY AIR SERVICE, INC.
LIFENET, INC.
By:
-----------------------------------
Name: Trent J. Carman
Title: Chief Financial Officer
of each of the foregoing corporations
ROCKY MOUNTAIN HOLDINGS L.L.C.
By: Air Methods Corporation, its sole member
By:
-----------------------------------
Name: Trent J. Carman
Title: Chief Financial Officer
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STATE OF ____________ )
) ss.
COUNTY OF __________ )
On this _____ day of December, 2005, before me personally came Trent J.
Carman, to me known, who, being by me duly sworn, did depose and say that he is
the Chief Financial Officer of each of Air Methods Corporation, Mercy Air
Service, Inc. and LifeNet, Inc, the corporations described in and which executed
the foregoing instrument; and that he signed his name thereto by order of the
boards of directors of said corporations.
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Notary Public
STATE OF ____________ )
) ss.
COUNTY OF __________ )
On this _____ day of December, 2005, before me personally came Trent J.
Carman, to me known, who, being by me duly sworn, did depose and say that he is
the Chief Financial Officer of Air Methods Corporation, the sole member of Rocky
Mountain Holdings L.L.C., the limited liability company described in and which
executed the foregoing instrument; and that he signed his name thereto by order
of the sole member of said limited liability company.
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Notary Public
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EXHIBIT 2.4
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FORM OF FIRST AMENDED AND RESTATED TERM NOTE
$__________ New York, New York
December __, 2005
This Term Note (this "Note") is executed and delivered under and pursuant
to the terms of that certain Amended and Restated Revolving Credit, Term Loan
and Security Agreement dated as of May 9, 2005 (as amended by Amendment No. 1 to
Amended and Restated Revolving Credit, Term Loan and Security Agreement dated as
of December __, 2005, and as further amended, modified, supplemented or restated
from time to time, the "Loan Agreement") by and among Air Methods Corporation, a
Delaware corporation, Rocky Mountain Holdings, L.L.C., a Delaware limited
liability company, Mercy Air Service, Inc., a California corporation, and
LifeNet, Inc., a Missouri corporation (each, a "Borrower" and jointly and
severally, the "Borrowers"), PNC Bank, National Association ("PNC"), the various
other financial institutions named therein or which hereafter become a party
thereto (together with PNC, collectively, the "Lenders") and PNC as agent for
the Lenders (PNC, in such capacity, "Agent"). Capitalized terms not otherwise
defined herein shall have the meanings ascribed thereto in the Loan Agreement.
FOR VALUE RECEIVED, Borrower promises to pay to the order of
______________________, at Agent's offices located at 70 East 55th Street, New
York, New York 10022 or at such other place as the holder hereof may from time
to time designate to Borrower in writing:
(i) the principal sum of ___________ MILLION _______________ THOUSAND
_____________________ DOLLARS and __/100 ($_,___,___.__), or if different from
such amount, the unpaid principal balance of the Term Loan as may be due and
owing the holder hereof from time to time under the Loan Agreement, payable in
accordance with the provisions of the Loan Agreement, subject to acceleration
upon the occurrence of an Event of Default under the Loan Agreement or earlier
termination of the Loan Agreement pursuant to the terms thereof; and
(ii) interest on the principal amount of this Note from time to time
outstanding, payable at the applicable Term Loan Rate in accordance with the
provisions of the Loan Agreement. Upon and after the occurrence of an Event of
Default, and during the continuation thereof, interest shall be payable at the
applicable Default Rate. In no event, however, shall interest hereunder exceed
the maximum interest rate permitted by law.
This Note is a Term Note referred to in the Loan Agreement and is secured,
inter alia, by the liens granted pursuant to the Loan Agreement and the Other
- ----- ----
Documents, is entitled to the benefits of the Loan Agreement and the Other
Documents, and is subject to all of the agreements, terms and conditions therein
contained.
This Note is subject to mandatory prepayment and may be voluntarily
prepaid, in whole or in part, on the terms and conditions set forth in the Loan
Agreement.
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If an Event of Default under Section 10.7 of the Loan Agreement shall
occur, then this Note shall immediately become due and payable, without notice,
together with reasonable attorneys' fees if the collection hereof is placed in
the hands of an attorney to obtain or enforce payment hereof. If any other Event
of Default shall occur under the Loan Agreement or any of the Other Documents
which is not cured within any applicable grace period, then this Note may, as
provided in the Loan Agreement, be declared to be immediately due and payable,
without notice, together with reasonable attorneys' fees, if the collection
hereof is placed in the hands of an attorney to obtain or enforce payment
hereof.
This Note, together with those certain First Amended and Restated Term
Notes dated the date hereof issued by Borrowers to ___________ and ________ in
the aggregate original principal amounts of $____________ and $__________,
respectively, amends, restates and replaces in its entirety and is given in
substitution for (but not in satisfaction of), (a) that certain Term Note A
dated May 9, 2005, executed by Borrowers in favor of PNC in the original
principal sum of $5,454,545.45, (b) that certain Term Note A dated May 9, 2005,
executed by Borrowers in favor of WELLS FARGO BANK, N.A. in the original
principal sum of $3,818,181.82, (c) that certain Term Note A dated May 9, 2005,
executed by Borrowers in favor of KEYBANK, N.A. in the original principal sum of
$2,727,272.73, (d) that certain Term Note B dated May 9, 2005, executed by
Borrowers in favor of PNC in the original principal sum of $3,636,363.63, (e)
that certain Term Note B dated May 9, 2005, executed by Borrowers in favor of
WELLS FARGO BANK, N.A. in the original principal sum of $2,545,454.55, and (f)
that certain Term Note B dated May 9, 2005, executed by Borrowers in favor of
KEYBANK, N.A. in the original principal sum of $1,818,181.82.
This Note shall be governed by and construed in accordance with the laws of
the State of New York.
Borrower expressly waives any presentment, demand, protest, notice of
protest, or notice of any kind except as expressly provided in the Loan
Agreement.
AIR METHODS CORPORATION
MERCY AIR SERVICE, INC.
LIFENET, INC.
By:
-----------------------------------
Name: Trent J. Carman
Title: Chief Financial Officer
of each of the foregoing corporations
ROCKY MOUNTAIN HOLDINGS L.L.C.
By: Air Methods Corporation, its sole member
By:
-----------------------------------
Name: Trent J. Carman
Title: Chief Financial Officer
16
STATE OF ____________ )
) ss.
COUNTY OF __________ )
On this _____ day of December, 2005, before me personally came Trent J.
Carman, to me known, who, being by me duly sworn, did depose and say that he is
the Chief Financial Officer of each of Air Methods Corporation, Mercy Air
Service, Inc. and LifeNet, Inc, the corporations described in and which executed
the foregoing instrument; and that he signed his name thereto by order of the
boards of directors of said corporations.
-------------------------
Notary Public
STATE OF ____________ )
) ss.
COUNTY OF __________ )
On this _____ day of December, 2005, before me personally came Trent J.
Carman, to me known, who, being by me duly sworn, did depose and say that he is
the Chief Financial Officer of Air Methods Corporation, the sole member of Rocky
Mountain Holdings L.L.C., the limited liability company described in and which
executed the foregoing instrument; and that he signed his name thereto by order
of the sole member of said limited liability company.
-------------------------
Notary Public
17