EXHIBIT 10.20.23
Third Amendment to Intercreditor, Agency and Sharing Agreement
dated July 31, 1995
among the Registrant, NBD Bank, Principal Mutual
Life Insurance Company and NBD Bank as Agent
THIRD AMENDMENT TO INTERCREDITOR
AGENCY AND SHARING AGREEMENT
THIS AMENDMENT, dated as of July 31, 1995 (this "Amendment") among Hurco
Companies, Inc. (the "Company"), NBD Bank, a Michigan banking corporation
("NBD"), and Principal Mutual Life Insurance Company, an Iowa corporation ("PML"
and, collectively, with NBD, the Lenders"), and NBD as Agent for the Lenders (in
such capacity, the "Agent").
RECITALS
A. The parties hereto have entered into an Intercreditor, Agency and
Sharing Agreement dated as of March 24, 1994 (as amended, the "Intercreditor
Agreement"), which is in full force and effect.
B. In connection with amending certain credit facilities described in the
Intercreditor Agreement, including entering into a Third Amendment to Credit
Agreement between the Company and NBD, and a Third Amendment to Amended and
Restated Note Agreement between Hurco and PML (such amending documents and all
related documents collectively referred to as the "Amending Documents"), the
Company desires to amend the Intercreditor Agreement as herein provided, and the
Lenders are willing to so amend the Intercreditor Agreement on the terms set
forth herein.
AGREEMENT
Based upon these recitals, the parties agree as follows:
1. AMENDMENT. Upon the Company satisfying the conditions set forth in
Section 3 (the date that this occurs being called the "effective date"), the
Intercreditor Agreement shall be amended as follows:
(A) The definition of "Automatic Termination Date" is amended to read
as follows:
"AUTOMATIC TERMINATION DATE' means November 1, 1996."
2. CONSENT OF LENDERS. Each of the Lenders consents to the other Lender
entering into each of the Amending Documents to which it is a party, contingent
upon all of the Amending Documents being executed by each party thereto and
becoming effective in accordance with their terms. Each of the Lenders and the
Company agrees to take all actions necessary or appropriate to enter into or
cause their respective affiliates to enter into the Amending Documents to which
they are respectively a party.
3. AMENDMENT FEE. The Company shall pay to the Agent for the benefit of the
Lenders an Amendment fee of $25,000 concurrently with executing this Amendment.
The amendment fee will be paid by the Agent to each Lender within one Business
Day of being received in the proportion of 72.1% to NBD, and 27.9% to PML.
4. MISCELLANEOUS. The terms used but not defined herein shall have the
respective meanings ascribed thereto in the Intercreditor Agreement. Except as
expressly amended hereby, the Intercreditor Agreement and all other documents
issued under or with respect thereto are hereby ratified and confirmed by the
Lenders, the Agent, and the Company and shall remain in full force and effect,
and the Company hereby acknowledges that it has no defense, offset or
counterclaim with respect thereto.
5. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Amendment by signing
any such counterpart.
6. EXPENSES. The Company agrees to pay and save the Agent and the Lenders
harmless from liability for all costs and expenses of the Lenders and the Agent
arising in respect of this Amendment, including the reasonable fees and expenses
of Dickinson, Wright, Moon, Van Dusen & Freeman, counsel to the Agent and NBD,
and of counsel to PML, in connection with preparing and reviewing this Amendment
and any related agreements and documents.
7. GOVERNING LAW. This Amendment is a contract made under, and shall be
governed by and construed in accordance with, the laws of the State of Michigan
applicable to contracts made and to be performed entirely within such state and
without giving effect to the choice law principles of such state.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the date first written above.
HURCO COMPANIES, INC.
By: /s/ Roger J. Wolf
-----------------------
Its: Senior Vice President and
Chief Financial Officer
NBD BANK PRINCIPAL MUTUAL LIFE
INSURANCE COMPANY
By: /s/ Bruce Thomson By: /s/ Donald D. Brattebo
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Its: Vice President Its: Second Vice President
Securities Investment
And by: /s/ Nora Everett
Its: Counsel