exv10w2



 



Exhibit 10.2



AMENDMENT TO SECURITY AGREEMENT



     THIS AMENDMENT TO SECURITY AGREEMENT (the “Amendment”) dated as of March
12, 2003, is by and between SIEMENS HEARING INSTRUMENTS, INC., a Delaware
corporation (“Lender”), with offices at 10 Constitution Avenue, Piscataway, New
Jersey 08855, and HearUSA, Inc. (formerly known as HEARX LTD.), a Delaware
corporation (“Borrower”), with offices at 1250 Northpoint Parkway, West Palm
Beach, Florida 33407.


Background



     A.     The Lender and Borrower are parties to a Security Agreement dated as of
December 7, 2001 (the “Security Agreement”). Pursuant to the Security
Agreement, the Borrower granted the Lender a security interest in certain
assets of the Borrower, which was perfected pursuant to the filing of UCC
Financing Statements. The Security Agreement was entered into in connection
with certain commercial loan transactions of equal date therewith pursuant to
which Borrower executed and delivered to Lender a Credit Agreement (such
agreement, as it may be further amended, supplemented or otherwise modified
from time to time, being the “Credit Agreement”), pursuant to which Lender
extended certain loans to Borrower in the original principal amount of
$51,875,000.00, which were evidenced by certain promissory notes.


     B.     As of the date of this Amendment, the Lender and Borrower will be
amending the Credit Agreement, to, among other things, provide for the
extension of a new term loan facility in the principal amount of $3,500,000.00,
which will be evidenced by a new Tranche E Note (the “Tranche E Loan”).


     C.     In connection with the execution and delivery of the Tranche E Note and
the simultaneous amendment of various other related documents and agreements,
the parties have agreed to amend, modify and affirm the Security Agreement as
set forth in this Amendment.


     D.     All capitalized terms not otherwise defined herein shall have the
meanings ascribed to such terms in the Security Agreement and the documents
referenced therein.


     NOW, THEREFORE, in consideration of the mutual agreements contained herein
and other good and valuable consideration, the sufficiency and receipt of which
is hereby acknowledged, the parties agree as follows:


     1.     Amendment to Security Agreement.


            The parties agree that the Tranche E Loan is a Secured Obligation as
defined in the Security Agreement, and the Security Agreement shall be amended
and modified as set forth below, effective as of the date hereof:



		
	 	     a.     References throughout the Security Agreement to:




			
	 	i.	Credit Agreement
shall be deemed references to the Credit
Agreement as amended by the Amendment to Credit
Agreement dated as of March 12, 2003;




			
	 	ii.	Secured Obligations
shall also be deemed references to the Tranche E
Loan;




			
	 	iii.	Security Agreement
shall be deemed references to the Security
Agreement as amended by this Amendment; and




			
	 	iv.	Loan Documents shall
be deemed references to the Loan Documents, 



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Exhibit 10.2



			
	 	 	as amended.






     2.     Additions to Security Agreement. The parties hereby agree that the
following provisions shall be added to the Security Agreement, effective as of
the date hereof:


            a.     Addition of Section 10. The following Section 10 shall be inserted in
the Security Agreement:



			
	 	10.	Authorization to File Financing
Statements/ Expanded Definitions. Borrower acknowledges
and represents that it is aware of and familiar with the
recent revisions to Article 9 of the Uniform Commercial
Code (the “Revised Article 9”) including, without
limitation, Section 9-509 and expanded definitions of
Collateral. In accordance with such revisions, Borrower
understands that by signing this Amendment, Borrower is
hereby authorizing the Lender to file financing
statements, together with any amendments, assignments or
continuations, thereof, on its behalf without obtaining
Borrower’s signature on same. In addition, the parties
agree that the description of Collateral set forth in
this Security Agreement is hereby modified to conform
with the expanded definitions of Collateral set forth in
the Revised Article 9.



     3.     Effect of Amendment.


            Except as expressly set forth herein, this Amendment shall not by
duplication or otherwise limit, impair, constitute a waiver of or otherwise
effect the rights and remedies of the parties to the Security Agreement, and
shall not alter, modify, amend or in any way effect any of the terms,
conditions, obligations, covenants or agreements contained in the Security
Agreement, all of which are satisfied and affirmed in all respects and shall
continue in full force and effect. In the event of a conflict between the
terms of this Amendment and the Security Agreement, the terms of this Amendment
shall apply.


     4.     No Waiver.


            Nothing contained herein and no action by the Lender shall be deemed to
constitute a waiver of any default (if any) under the Loan Documents.


     5.     Other Provisions.


            a.     Counterparts.


            This Amendment may be executed in any number of counterparts, each of
which when so executed and delivered shall be an original hereof, and it shall
not be necessary in making proof of this Amendment to produce or account for
more than one counterpart.


            b.     Controlling Law.


            This Amendment is made under, and shall be construed and enforced in
accordance with, the laws of the State of New York without giving effect to the
principles of conflicts of law.


            c.     Interpretation of Amendment.


            The parties hereto acknowledge and agree that this Amendment has been
negotiated at arm’s length and among parties equally sophisticated and
knowledgeable in the matters dealt with in this Amendment. Accordingly, any
rule of law or legal decision that would require interpretation of any
ambiguities in this Amendment against the party that has drafted it is not
applicable and is waived. The


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Exhibit 10.2



provisions of this Amendment shall be
interpreted in a reasonable manner to effect the intent of the parties as set
forth in this Amendment.


            d.     Other Documents.


            The parties agree to execute any and all other documents and to take such
other actions as may be reasonably necessary to carry out the terms of this
Amendment. All such other documents shall be in a form and content acceptable
to the Lender.


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Exhibit 10.2




     IN WITNESS WHEREOF, the parties have executed this Amendment, intending to
be legally bound hereby, as of the date first above written:




	 
	HearUSA, Inc.
	 
	By    /s/ Stephen Hansbrough

Name: Stephen Hansbrough

Title: Chief Executive Officer
	 
	Siemens Hearing Instruments, Inc.
	 
	By:   /s/ John R. Krauter

Name: John R. Krauter

Title: Senior Vice  President, CFO




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