EXHIBIT 10.6
SECOND AMENDMENT TO LOAN AGREEMENT
THIS SECOND AMENDMENT TO LOAN AGREEMENT is made and entered into as of
the 1st day of March, 1995, by and among HEICO CORPORATION, a Florida
corporation ("Heico"), HEICO AEROSPACE CORPORATION, a Florida corporation, f/k/a
HEICO CORPORATION, a Florida corporation ("Aerospace"; collectively with Heico,
"Borrower"), and SUNBANK/SOUTH FLORIDA, NATIONAL ASSOCIATION ("Lender").
RECITALS
WHEREAS, Borrower and Lender have previously entered into that certain
Loan Agreement dated February 28, 1994, as previously amended by that certain
First Amendment to Loan Agreement and Reaffirmation Agreement dated as of
October 13, 1994 (collectively, the "Loan Agreement"), pursuant to which Heico
obtained extensions of credit of up to Four Million Nine Hundred Ninety Thousand
Dollars ($4,990,000.00) for the purposes specified in the Loan Agreement;
WHEREAS, Borrower and Lender wish to increase and modify the loan from
Lender to Heico, such that the loan shall hereafter consist of a revolving line
of credit in the amount of Seven Million Dollars ($7,000,000.00) (the "Loan"),
which shall be used by Borrower and HEICO-NEWCO, INC., a Florida corporation
("Newco"), to acquire companies engaged in businesses similar to that of
Aerospace or its subsidiaries; shall be used by MEDITEK HEALTH CORPORATION, a
Florida corporation ("Meditek"), to acquire medical centers which are engaged in
any business activity which would not represent a material change from the kind
of business activity currently engaged in by Meditek or its subidiaries; and
shall additionally be used by Borrower, Newco and Meditek for working capital
and other general corporate purposes, subject to the terms and conditions set
forth in the Loan Agreement, as modified herein; and
WHEREAS, Borrower and Lender now wish to modify the Loan Agreement as
hereinafter provided.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in consideration of the loans
or extensions of credit heretofore, now or hereafter made or to be made for the
benefit of Borrower by Lender, the parties do hereby agree as follows:
1. The foregoing recitals are hereby acknowledged to be true
and correct and are incorporated herein by reference.
2. All capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to them in the Loan Agreement.
3. From and after the date hereof, all references in the Loan
Agreement to the Loan shall mean and refer to the Loan (as defined herein).
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4. Subsection 1.2(a) of the Loan Amendment is hereby amended and
restated so that, from and after the date hereof, such Subsection shall read in
its entirety as follows:
(a) "ADVANCE": A disbursement by a Lender of a portion of the
Loan proceeds to be funded to Heico, in accordance with the terms and
provisions of this Agreement, to be utilized as provided in this
Agreement.
5. Subsection 1.2(k) of the Loan Agreement is hereby amended and
restated so that, from and after the date hereof, such Subsection shall read in
its entirety as follows:
(k) "CASH COLLATERAL ACCOUNT": A Yield Restricted Cash
Collateral Account pledged by Aerospace in favor of Lender under the
terms and provisions of the Reimbursement Agreement as security for the
Reimbursement Agreement into which the sum of (i) Sixteen Thousand Five
Hundred ($16,500.00) Dollars (through June 28, 1995) and (ii) Eight
Thousand Two Hundred Fifty ($8,250.00) Dollars (after June 28, 1995)
per month shall be funded, said monthly payments to be funded at the
time of Closing and monthly thereafter, until the earlier of such time
as the sum of One Million Nine Hundred Eighty Thousand ($1,980,000.00)
Dollars has been funded into the Cash Collateral Account or until the
expiration of the Letter of Credit.
6. Subsection 1.2(v) of the Loan Agreement is hereby amended and
restated so that, from and after the date hereof, such Subsection shall read in
its entirety as follows:
(v) "GUARANTOR(S)": Individually and collectively, JET AVION
CORPORATION, a Florida corporation, JET AVION HEAT TREAT CORPORATION, a
Florida corporation, LPI INDUSTRIES CORPORATION, a Florida corporation,
AIRCRAFT TECHNOLOGY, INC., a Florida corporation, MEDITEK, MEDITEK
INDUSTRIES, INC., a Florida corporation, and HEICO-NEWCO, INC., a
Florida corporation, as to the Loan, the Reimbursement Agreement and
all obligations associated therewith, and, in connection with
guaranteeing repayment of the Reimbursement Agreement and all
obligations associated therewith - Heico, and, in connection with
guaranteeing repayment of the Loan and all obligations associated
therewith - Aerospace. All of the above Guarantors shall jointly and
severally guarantee repayment and performance of the Loan, the
Reimbursement Agreement and all obligations of each Borrower to Lender
associated therewith.
7. Subsection 1.2(w) of the Loan Agreement is hereby amended and
restated so that, from and after the date hereof, such Subsection shall read in
its entirety as follows:
(w) "GUARANTYS": Collectively, the Absolute Unconditional and
Continuing Guarantys executed by each Guarantor in favor of Lender, as
modified and/or reaffirmed from time to time, guaranteeing repayment of
the Loan, the Reimbursement Agreement and all obligations of each
Borrower associated therewith.
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8. Subsection 1.2(dd) of the Loan Agreement is hereby amended and
restated so that, from and after the date hereof, such Subsection shall read in
its entirety as follows:
(dd) "MATURITY DATE": As to the Loan, April 30, 1997,
unless extended pursuant to Section 2.6 hereof. As to the Letter of
Credit, five (5) years from the date of the issuance of the Letter of
Credit.
9. Subsection 1.2(ee) of the Loan Agreement is hereby amended and
restated so that, from and after the date hereof, such Subsection shall read in
its entirety as follows:
(ee) "MORTGAGE DOCUMENTS": Collectively, that certain Mortgage
and Security Agreement dated as of the 1st day of March 1988, executed
by Aerospace, formerly known as Heico Corporation, a Florida
corporation, as mortgagor, and Broward County, Florida and NCNB, as
mortgagees, recorded in Official Records Book 15307, Page 520, Broward
County's interest being assigned to Mellon Bank, N.A. by Broward
County, Florida by instrument dated March 1, 1988, and recorded on
March 30, 1988 in Official Records Book 15307, Page 544, as assigned to
Assignee by virtue of Assignment of Mortgage from NCNB dated February
28, 1994, as modified by Mortgage Modification Agreement dated February
28, 1994, and recorded on March 3, 1994 in Official Records Book 21825,
Page 1 (collectively, the "First Mortgage"), together with a Second
Mortgage Deed and Security Agreement dated as of February 28, 1994, in
the amount of Two Million ($2,000,000.00) Dollars executed by Aerospace
in favor of Lender, and recorded on March 3, 1994, in Official Records
Book 21825, Page 12, as modified by Mortgage Modification Agreement
(Second Mortgage) dated as of March 1, 1995 (collectively, the "Second
Mortgage"), both mortgages, as modified, being recorded in the Public
Records of Broward County, Florida and encumbering the property located
at 0000 Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx 00000 (the "Property"), said
Second Mortgage executed as security for Aerospace's Guaranty of the
Loan, together with an Assignment of Rents, Leases and Deposits and
UCC-1 Financing Statements executed in connection therewith.
10. Subsection 1.2(ff) of the Loan Agreement is hereby amended and
restated so that, from and after the date hereof, such Subsection shall read in
its entirety as follows:
(ff) "NOTE": A Consolidation Master Revolving Promissory Note
in the principal amount of Seven Million Dollars ($7,000,000.00) from
Heico to Lender dated June 29, 1995, and any modifications, amendments
or renewals thereof, evidencing the Loan, which Note consolidates (i)
that certain Master Revolving Promissory Note in the principal amount
of Two Million Ten Thousand Dollars ($2,010,000.00) from Heico to
Lender dated June 29, 1995, and (ii) that certain Modification Master
Revolving Promissory Note in the principal amount of Four Million Nine
Hundred Ninety Thousand Dollars ($4,990,000.00) from Heico to Lender
dated June 29, 1995 (which in turn modifies that certain Modification
Master Revolving Promissory Note in the principal amount of Four
Million Nine Hundred Ninety Thousand Dollars ($4,990,000.00) from Heico
to Lender dated October 13, 1994, which modified that certain Master
Revolving
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Promissory Note in the principal amount of Four Million Nine Hundred
Ninety Thousand Dollars ($4,990,000.00) from Heico to Lender dated
February 28, 1994).
11. Subsection 1.2(ll) of the Loan Agreement is hereby amended and
restated so that, from and after the date hereof, such Subsection shall read in
its entirety as follows:
(ll) "SECURITY AGREEMENTS": Security Agreements, as modified
and/or reaffirmed from time to time, from each Borrower and each
Guarantor (other than Meditek and Meditek Industries, Inc.) to Lender
securing the Note, the Loan Agreement and the Guarantys, as applicable,
which shall provide valid first liens (subject to the "Permitted Liens"
as set forth herein) on the personal property identified in the
Security Agreements.
12. The following Subsection 1.2(tt) is hereby added to the Loan
Agreement, effective from and after the date hereof:
(tt) "ELIGIBLE RECEIVABLES": Those accounts receivable of
Aerospace and Newco arising in the normal and ordinary course of
business which are no more than ninety (90) days old, or one hundred
and fifty (150) days old (in the case of accounts receivable with
ninety (90) day terms only), from the original invoice date, according
to the original terms of sale and the payment of which is not in
dispute and in which the Lender has a first priority security interest.
The Lender may treat any account receivable or any portion thereof, as
ineligible: (i) if any warranty contained in this or any related
agreement is breached with respect thereto; (ii) if the customer or
account debtor has filed a petition for bankruptcy or any other
application for relief under the Bankruptcy Act, assigned for the
benefit of creditors, or if any petition or any other application for
relief under the Bankruptcy Act has been filed against the said
customer or account debtor, or if the customer or account debtor has
failed, suspended business, become insolvent, or had or suffered a
receiver or trustee to be appointed for any of its assets or affairs;
(iii) if the customer or account debtor is located outside the United
States; provided, however, that up to ten percent (10%) of Eligible
Receivables may consist of accounts receivable from account debtors
located in Canada; (iv) if more than twenty percent (20%) of the
customer's or account debtor's account receivables are more than one
hundred and twenty (120) days old from the date of the original invoice
representing the account receivable, then all of such customer's or
account debtor's account receivables shall be ineligible; (v) to the
extent any portion of the account receivable represents finance and
service charges due and owing to Aerospace or Newco from said account
debtor; (vi) if the account receivable represents sums due and owing
for work and/or service currently being rendered by Aerospace but not
yet completed by Aerospace; (vii) if the account receivable is due and
owing from an affiliate corporation or related entity of Aerospace or
Newco or represents an intercompany account; (viii) if the account
receivable represents a consignment sale or warranty work; (ix) if the
account receivable represents sums due and owing from an employee of
Aerospace or Newco; (x) if the account receivable represents retainage
under and owing to Aerospace or Newco; (xi) if the account receivable
represents the billing for inventory which has not been delivered to
said account debtor;
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(xii) if the account receivable represents a Xxxx and Hold Invoice for
items which have been billed and are not yet due and payable; or (xiii)
if the Lender believes, in its credit judgement in Lender's reasonable
discretion, that collection of such account receivable is insecure or
that it may not be paid by reason of financial inability to pay or
otherwise or that such account receivable is not suitable for use as
collateral hereunder.
13. The following Subsection 1.2(uu) is hereby added to the Loan
Agreement, effective from and after the date hereof:
(uu) "ELIGIBLE INVENTORY": All inventory of raw materials and
finished goods then owned by Aerospace and Newco and held for sale in
the ordinary course of business as then conducted. However, Eligible
Inventory shall not include any item of inventory that: (i) is not in
good condition or of merchantable quality; (ii) is defective or does
not meet the established specifications of Aerospace or Newco, as
applicable, for its type; (iii) is obsolete or infrequently sold
(unless the subject of a current purchase order); (iv) is held by any
person other than Aerospace, Newco or a party to a bailment agreement
with the Lender (in such form and substance as may be acceptable to the
Lender); (v) is located at any location other than Aerospace's or
Newco's principal place of business; (vi) is located on any leased
premises where the landlord is not a party to a waiver and access
agreement with the Lender (in such form as may be acceptable to the
Lender); (vii) is located at any location outside the United States of
America; (viii) is subject to any prior lien, encumbrance or claim so
that the Lender does not hold a perfected first priority security
interest in the inventory; (ix) is the subject of any financing
statement, lien or other encumbrance other than in favor of the Lender;
or (x) is the subject of any other person's claim of ownership, whether
legal, beneficial or otherwise. Eligible Inventory shall exclude any
inventory on which the Lender, for any reason, does not hold a
perfected security interest subject to no prior liens or claims. In
addition, Lender has the right to deem any inventory as ineligible for
lending purposes if it is not in the Lender's reasonable judgment
adequately documented by Aerospace's books and records.
14. The following Subsection 1.2(vv) is hereby added to the Loan
Agreement, effective from and after the date hereof:
(vv) "THREE YEAR ADVANCE": An Advance of the Loan proceeds
utilized for the acquisition of a medical center which is engaged in
any business activity which would not represent a material change from
the kind of business activity currently engaged in by Meditek or its
subidiaries, or for the acquisition of a company engaged in a business
similar to that of Aerospace or its subsidiaries, and the purchase
agreement for which provides for installment payments of the purchase
price over a period of less than four (4) years.
15. The following Subsection 1.2(ww) is hereby added to the Loan
Agreement, effective from and after the date hereof:
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(ww) "FOUR YEAR ADVANCE": An Advance of the Loan proceeds
utilized for the acquisition of a medical center which is engaged in
any business activity which would not represent a material change from
the kind of business activity currently engaged in by Meditek or its
subidiaries, or for the acquisition of a company engaged in a business
similar to that of Aerospace or its subsidiaries, and the purchase
agreement for which provides for installment payments of the purchase
price over a period of four (4) or more years.
16. From the date hereof through JUNE 29, 1995, Section 2.1 of the Loan
Agreement shall remain as provided in the Loan Agreement. On JUNE 30, 1995,
Section 2.1 of the Loan Agreement shall be amended and restated so that, from
and after such date, such Section shall read in its entirety as follows:
2.1 Provided there does not exist an Event of Default, and no
event with which notice or lapse of time or both would become such an
Event of Default, and does not exist an event which would otherwise
constitute an Event of Default but for the terms and conditions set
forth in Article 14.17 herein, and subject to the terms and provisions
of this Agreement, Lender will under the Note, lend or advance for the
account of Borrower from time to time through the Maturity Date, and
Borrower may borrow, repay and re-borrow, such amounts as may be
required for the purpose of providing acquisition financing to Borrower
or on behalf of Newco to purchase companies engaged in businesses
similar to that of Aerospace or its subsidiaries; to provide
acquisition financing on behalf of Meditek to acquire medical centers
which are not engaged in any business activity which would represent a
material change from the kind of business activity currently engaged in
by Meditek or its subidiaries; and for working capital and other
general corporate purposes of Borrower, Newco and Meditek. Advances
under the Loan will be funded to Borrower. All Advances under the Loan
will be secured by all collateral set forth in the Guarantys, the
Second Mortgage, the Security Agreements, this Agreement and all other
Loan Documents (other than the First Mortgage). Advances shall bear
interest and be repayable as provided in the Note. The aggregate amount
advanced under the Loan outstanding shall not at any time be less than
One Thousand Dollars ($1,000.00) or exceed the lesser of: (i) Seven
Million Dollars ($7,000,000.00); or (ii) the value of Margined Asset
Values (which shall mean the aggregate of (A) eighty percent (80%) of
Eligible Receivables plus (B) fifty percent (50%) of the value of
Eligible Inventory, as determined at the lower of cost or fair market
value plus (C) ninety percent (90%) of the orderly liquidation value of
Aerospace's and Newco's machinery and equipment plus (D) seventy-five
percent (75%) of the appraised value (as determined by the most recent
appraisal delivered to Lender) of the Property less (aa) the current
stated amount of the Letter of Credit plus (bb) the balance in the Cash
Collateral Account). In the event the amount outstanding under the Note
at any time exceeds the permitted amount, said excess shall bear
interest at the rate set forth in the Note and shall be due and payable
in full UPON DEMAND. Borrower shall deliver to Lender within sixty (60)
days after the end of each fiscal quarter, a report in the form
attached hereto as Exhibit "A" (each an "Asset Report") itemizing the
Margined Asset Values at the end of such fiscal quarter, and the
acquisitions made by
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Meditek and/or Aerospace during said fiscal quarter, together with a
Certificate of Complaince and No Default in the form attached hereto as
Exhibit "B" (each a "Compliance Certificate").
17. The following Section 2.5 is hereby added to the Loan
Agreement, effective from and after the date hereof:
2.5 In connection with the Loan, a fee in arrears shall be due
and owing from Borrower to Lender beginning on September 30, 1995, and
on the last day of each fiscal quarter thereafter, in an amount equal
to one-quarter of one percent (0.25%) per annum of the maximum
principal amount of the Loan less the average outstanding principal
balance of the Note, and an additional loan fee shall be due and owing
from Borrower to Lender in an amount equal to one-quarter of one
percent (0.25%) of the amount of each Advance under the Note which is
converted to a term loan, payable at the time such Advance is so
converted.
18. The following Section 2.6 is hereby added to the Loan
Agreement, effective from and after the date hereof:
2.6 On or before April 30 in each year, commencing on April
30, 1996, Lender shall determine, in its sole and absolute discretion,
whether to extend the Maturity Date of the Loan for one (1) additional
year. If Lender elects to make any such extensions of the Maturity
Date, and assuming Borrower elects to accept such extensions, Borrower
shall execute such amendments to the Loan Agreement and other documents
as shall be reasonably required by Lender in connection with each such
extension. Nothing contained herein shall obligate Lender to make any
such extension of the Maturity Date, or obligate Borrower to accept any
such extension.
19. Section 3.1 of the Loan Agreement is hereby amended and restated so
that, from and after the date hereof, such Section shall read in its entirety as
follows:
3.1 Each Advance to the Borrower under the Loan shall be made
by the Lender upon written request of the Borrower stating the date on
which the Advance is to be made (the "Borrowing Date"), the estimated
purpose of the Advance (i.e., for acquisitions or working capital) and
the principal amount of the Advance requested, said Advance Request to
be delivered at least two (2) business days prior to the date of the
Advance. In the event of any disagreement between Borrower and Lender
as to whether an Advance constitutes a working capital advance or an
acquisition advance, the reasonable determination of Lender shall
control and be binding. The above set forth written request forms may
be sent via facsimile, to be immediately followed by delivery of the
original forms to Lender. Borrower shall be entitled to obtain no more
than six (6) Advances during each loan year (i.e., from the first day
of May through the last day of April, and shall not be entitled to
obtain any Advances after the Maturity Date.
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20. Section 3.3 of the Loan Agreement is hereby amended and restated so
that, from and after the date hereof, such Section shall read in its entirety as
follows:
INTENTIONALLY DELETED
21. The first sentence of Article 6 of the Loan Agreement is hereby
amended and restated so that, from and after the date hereof, such sentence
shall read in its entirety as follows:
The proceeds of the Loan shall be used by Borrower and Newco to acquire
companies engaged in businesses similar to that of Aerospace or its
subsidiaries; shall be used by Meditek to acquire medical centers which
are engaged in any business activity which would not represent a
material change from the kind of business activity currently engaged in
by Meditek or its subsidiaries; and shall additionally be used by
Borrower, Newco and Meditek for working capital and other general
corporate purposes.
22. Section 8.19 of the Loan Agreement is hereby amended and restated
so that, from and after the date hereof, such Section shall read in its entirety
as follows:
8.19 In connection with each Advance which is converted to a
term loan under the Loan, Borrower shall provide to Lender such
documentation and information as Lender shall reasonably request in
order for Lender to perform an analysis of the Medical Center or other
acquisition funded with the Advance and/or to evaluate the value of
Margined Asset Values.
23. The following language is hereby added to the end of Section
8.23 of the Loan Agreement, effective from and after the date hereof:
Borrower and Lender specifically acknowledge and agree that Newco shall
be allowed to transfer assets to Meditek or any of its subsidiaries;
provided, however that such transfers shall not exceed One Hundred
Thousand and 00/100 Dollars ($100,000.00) in the aggregate during any
fiscal year of Newco. In addition, Borrower and Lender acknowledge and
agree that Aerospace shall be permitted to transfer certain (but not
substantially all) of its assets to Newco.
24. Section 8.24 of the Loan Agreement is hereby amended and restated
so that, from and after the date hereof, such Section shall read in its entirety
as follows:
8.24 Borrower and the Guarantors on a consolidated basis shall
maintain a minimum tangible net worth of Thirteen Million
($13,000,000.00) Dollars at all times during the term of the Loan.
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25. Section 8.32 of the Loan Agreement is hereby amended and restated
so that, from and after the date hereof, such Section shall read in its entirety
as follows:
8.32 Provided that no Event of Default hereunder has occurred
and is continuing, and no event with which notice or lapse of time or
both would become such an Event of Default, and that Borrower is
otherwise in compliance with the terms and provisions of this
Agreement, additional negotiated debt, lease obligations and guaranties
of Borrower and all Guarantors shall not be limited. However, Borrower
and the Guarantors shall provide notice to Lender of any recourse
obligations, any negotiated debt or guaranties in excess of Two Hundred
Fifty Thousand ($250,000.00) Dollars and in increments of One Hundred
Thousand ($100,000.00) Dollars thereafter.
26. The following language is hereby added to the end of Section
8.35 of the Loan Agreement, effective from and after the date hereof:
Notwithstanding the foregoing, Aerospace shall be permitted to transfer
certain (but not substantially all) of its assets to Newco.
27. Section 8.36 of the Loan Agreement is hereby amended and restated
so that, from and after the date hereof, such Section shall read in its entirety
as follows:
INTENTIONALLY DELETED
28. Section 8.37 of the Loan Agreement is hereby amended and restated
so that, from and after the date hereof, such Section shall read in its entirety
as follows:
8.37 There shall be no subordinate financing of the property
included in the collateral encumbered by the Loan Documents. Borrower
shall, however, be permitted to provide a purchase money security
interest in new equipment purchased by Borrower (it being acknowledged
that for purposes of this Agreement, a purchase money security interest
shall be deemed to include a security interest provided to Eagle
National Bank ("Eagle") in connection with advances effectuated under a
$1,600,000.00 line of credit, which advances reimburse the applicable
borrower for the purchase of a specific piece of new equipment, and,
for which advance Eagle files a UCC-1 Financing Statement encumbering
the particular piece of new equipment financed by Eagle), provided that
Borrower shall provide Lender with not less than thirty (30) days prior
written notice of a purchase of new equipment, which will replace
existing equipment in which Lender has a first priority security
interest.
29. The following Section 8.41 is hereby added to the Loan
Agreement, effective from and after the date hereof:
8.41 Borrower shall at all times maintain a ratio of Total
Funded Debt divided by Earnings Before Interest Expense and Taxes plus
Depreciation and Amortization
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(EBITDA) of less than 4.0 to 1. The foregoing ratio shall be calculated
on an annualized rolling four quarter basis at the end of each fiscal
quarter. For purposes of this section, "Funded Debt" shall mean all
indebtedness for money borrowed, purchase money mortgages, capitalized
leases, conditional sales contracts and similar title retention debt
instruments, including any current maturities of such indebtedness,
which by its terms matures more than one year from the date of any
calculation thereof and/or which is renewable or extendable at the
option of the obligor to a date beyond one year from such date. The
calculation of "Total Funded Debt" shall include (i) all Funded Debt of
the Borrower and its subsidiaries, plus all Funded Debt of other
entities or persons, other than subsidiaries, which has been guaranteed
by the Borrower or any subsidiary or which is supported by a letter of
credit issued for the account of the Borrower or any subsidiary, and
(ii) the redemption amount with respect to any stock of the Borrower or
its subsidiaries required to be redeemed within the next twelve months.
30. The following Section 8.42 is hereby added to the Loan
Agreement, effective from and after the date hereof:
8.42 The Borrower shall at all times maintain a ratio of
Earnings Before Interest Expense and Taxes (EBIT) and Operating Lease
Expense divided by Interest Expense and Operating Lease Expense of
greater than 1.75 to 1. The foregoing ratio shall be calculated on an
annualized rolling four quarter basis at the end of each fiscal
quarter.
31. The following Section 8.43 is hereby added to the Loan
Agreement, effective from and after the date hereof:
8.43 Heico shall at all times maintain a controlling interest
(voting and equity), which also represents an ownership interest of not
less than fifty-one percent (51%), in Meditek.
32. The following Section 8.44 is hereby added to the Loan
Agreement, effective from and after the date hereof:
8.44 Borrower shall provide to Lender on a monthly basis,
within thirty (30) days after the end of each month, a breakdown of the
contribution by each Medical Center to Meditek's gross revenue and net
income.
33. The following Section 8.45 is hereby added to the Loan
Agreement, effective from and after the date hereof:
8.45 Borrower shall provide to Lender an Asset Report within
sixty (60) days (or, upon reasonable notice from lender, within
forty-five (45) days) after the end of each fiscal quarter in each
fiscal year of Borrower.
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34. Heico and Lender acknowledge that subsequent to the execution of
this Amendment, Heico may change the name of its subsidiary, HEICO-Newco, Inc.,
a Florida corporation ("Newco"). Within ten (10) business days after the filing
of Articles of Amendment amending the Articles of Incorporation of Newco to
effectuate such name change, Heico shall provide a filed copy of such Articles
of Amendment to Lender, and shall cause Newco to execute such UCC-3 Statements
of Change, amendments and reaffirmations to security agreements and guaranties,
and such other documents as Lender shall reasonably require to continue
perfection of Lender's security interests and Newco's obligations under all Loan
Documents executed by it. The failure of Heico and Newco to fully comply with
the requirements of this paragraph within thirty (30) days after the date of
filing of the Articles of Amendment for Newco shall be and constitute an Event
of Default under the Loan Agreement.
35. Borrower warrants and represents that all representations and
warranties contained in the Loan Agreement are true and correct on the date
hereof as if made on the date hereof, and that Borrower is not in default on the
date hereof under any of the terms of the Loan Agreement or any of the Loan
Documents to which it is a party.
36. In the event of any inconsistencies between the terms of the Loan
Agreement and the terms of this Amendment, the terms and provisions of this
Amendment shall supersede and control. Except as modified herein, the terms and
provisions of the Loan Agreement are hereby ratified and confirmed in all
respects and shall remain unchanged and in full force and effect from and after
the date hereof.
37. AS A MATERIAL INDUCEMENT FOR LENDER TO AMEND THE LOAN AGREEMENT
PURSUANT TO THIS AMENDMENT, BORROWER COVENANTS WITH AND WARRANTS UNTO LENDER,
AND ITS AFFILIATES AND ASSIGNS, THAT THERE EXIST NO CLAIMS, COUNTERCLAIMS,
DEFENSES, OBJECTIONS, OFFSETS OR CLAIMS OF OFFSETS AGAINST LENDER RELATING IN
ANY WAY TO THE NOTE, THE LOAN AGREEMENT OR OTHER ASSOCIATED LOAN DOCUMENTS,
THROUGH THE DATE HEREOF, OR THE OBLIGATION OF BORROWER TO PAY THE INDEBTEDNESS
TO THE LENDER EVIDENCED BY THE NOTE OR OTHERWISE.
38. AS A MATERIAL INDUCEMENT FOR LENDER TO AMEND THE LOAN AGREEMENT
PURSUANT TO THIS AMENDMENT, BORROWER DOES HEREBY RELEASE, WAIVE, DISCHARGE,
COVENANT NOT TO XXX, ACQUIT, SATISFY AND FOREVER DISCHARGE LENDER, ITS OFFICERS,
DIRECTORS, EMPLOYEES, ATTORNEYS AND AGENTS AND ITS AFFILIATES AND ASSIGNS FROM
ANY AND ALL LIABILITY, CLAIMS, COUNTERCLAIMS, DEFENSES, ACTIONS, CAUSES OF
ACTION, SUITS, CONTROVERSIES, AGREEMENTS, PROMISES AND DEMANDS WHATSOEVER, IN
LAW OR IN EQUITY, WHICH BORROWER EVER HAD, NOW HAS OR WHICH ANY PERSONAL
REPRESENTATIVE, SUCCESSOR, HEIR OR ASSIGN OF BORROWER HEREAFTER CAN, SHALL OR
MAY HAVE AGAINST LENDER, ITS OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS AND
AGENTS, AND ITS AFFILIATES AND ASSIGNS, FOR, UPON OR BY REASON OF ANY MATTER,
CAUSE OR THING
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WHATSOEVER RELATING IN ANY WAY TO THE NOTE, THE LOAN AGREEMENT AND OTHER
ASSOCIATED LOAN DOCUMENTS, THROUGH THE DATE HEREOF. BORROWER FURTHER EXPRESSLY
AGREES THAT THE FOREGOING RELEASE AND WAIVER AGREEMENT IS INTENDED TO BE AS
BROAD AND INCLUSIVE AS IS PERMITTED BY THE LAWS OF THE STATE OF FLORIDA.
39. LENDER AND BORROWER HEREBY MUTUALLY, KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT TO
ANY LITIGATION BASED HEREON OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THE
LOAN AGREEMENT AND ANY AGREEMENT CONTEMPLATED OR TO BE EXECUTED IN CONJUNCTION
THEREWITH, UNDER ANY OF THE LOAN DOCUMENTS, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF ANY PARTY.
BORROWER ACKNOWLEDGES THAT THIS WAIVER OF JURY TRIAL IS A MATERIAL INDUCEMENT TO
LENDER IN ACCEPTING THIS AMENDMENT, AND THAT LENDER WOULD NOT HAVE ACCEPTED THIS
AMENDMENT WITHOUT THIS JURY TRIAL WAIVER. BORROWER ACKNOWLEDGES THAT BORROWER
HAS BEEN REPRESENTED BY AN ATTORNEY OR HAS HAD AN OPPORTUNITY TO CONSULT WITH AN
ATTORNEY REGARDING THIS JURY TRIAL WAIVER, AND UNDERSTANDS THE LEGAL EFFECT OF
THIS JURY TRIAL WAIVER. THE WAIVER CONTAINED HEREIN IS IRREVOCABLE, CONSTITUTES
A KNOWING AND VOLUNTARY WAIVER, AND SHALL BE SUBJECT TO NO EXCEPTIONS. LENDER
HAS IN NO WAY AGREED WITH OR REPRESENTED TO BORROWER OR ANY OTHER PARTY THAT THE
PROVISIONS OF THIS JURY TRIAL WAIVER WILL NOT BE FULLY ENFORCED IN ALL
INSTANCES.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first above written.
Signed, sealed and delivered in BORROWER:
the presence of:
HEICO CORPORATION,
a Florida corporation
______________________________ By: /S/ XXXXXX X. XXXXX
-----------------------------
Its EXECUTIVE VICE PRESIDENT
______________________________
(Corporate Seal)
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HEICO AEROSPACE CORPORATION,
a Florida corporation,
f/k/a HEICO CORPORATION,
a Florida corporation
______________________________ By: /S/ XXXXXX X. XXXXX
------------------------------
Its VICE CHAIRMAN AND TREASURER
______________________________
(Corporate Seal)
LENDER:
SUNBANK/SOUTH FLORIDA,
NATIONAL ASSOCIATION
______________________________ By: /S/ XXXXXX X. XXXXXXX
------------------------------
Its VICE PRESIDENT
______________________________
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