EXHIBIT 10.42.4
Amendment and Notes Modification Agreement
dated January 31, 1995
between the Registrant and Principal Mutual Life Insurance Company
AMENDMENT AND NOTES MODIFICATION AGREEMENT
THIS AMENDMENT AND NOTES MODIFICATION AGREEMENT ("Amendment") dated as of
January 31, 1995 is entered into between Hurco Companies, Inc., an Indiana
corporation (the "Company"), and Principal Mutual Life Insurance Company (the
"Purchaser").
WITNESSETH:
The Company and the Purchaser have entered into that certain Hurco Companies,
Inc. Amended and Restated Note Agreement dated as of March 24, 1994 (the "Note
Agreement"), and the Company has executed and delivered to the Purchaser the
"Notes" (as defined in the Note Agreement). The Company and the Purchaser agree
to amend the Note Agreement and to modify the Notes on the terms and conditions
hereinafter set forth. Terms defined in the Note Agreement which are used herein
shall have the same meaning set forth in the Note Agreement unless otherwise
specified herein.
1. AMENDMENT. Effective as of January 31, 1995 and subject to the conditions
precedent set forth in paragraph 3 hereof, the Note Agreement is hereby amended
as follows:
1.1 In SECTION 2.1(A), the date "January 31, 1996" is deleted and
is replaced by "February 1, 1996".
1.2 In clause FIRST of the third sentence of SECTION 2.1(B), the
date "January 31, 1996" is deleted and is replaced by "February
1, 1996".
1.3 In the definition of "FORBEARANCE DEFAULT" in SECTION 5.1,
the date "January 31, 1996" is deleted and is replaced by
"February 1, 1996".
1.4 In clauses (i) and (ii) of the definition of "TARGET
INDEBTEDNESS" in SECTION 5.1, the date "January 31, 1996" is
deleted and is replaced by "February 1, 1996".
2. NOTES MODIFICATION. In clause (b) of the fourth paragraph of each of the
Notes, the date "January 31, 1996" is deleted and is replaced by "February 1,
1996".
3. CONDITIONS PRECEDENT. This Amendment shall become effective as of the latest
to occur of the date (i) the Company shall have delivered to the Purchaser
reaffirmations of each of the Subsidiary Guaranties and the Autocon Guaranty
executed in favor of Purchaser, (ii) the Company and NBD execute and deliver
amendments to the NBD Agreement and the NBD Term Loan in the form of EXHIBIT A
attached hereto, and (iii) the Purchaser and NBD execute and deliver an
amendment to the Intercreditor Agreement in the form of EXHIBIT B attached
hereto.
4. REPRESENTATION AND WARRANTY. The Company hereby represents and warrants to
the Purchaser that this Amendment constitutes a legal, valid and binding
obligation of the Company enforceable against the Company in accordance with its
terms.
5. COSTS AND EXPENSES. In accordance with SECTION 11.1 of the Note Agreement,
the Company acknowledges that it is liable to pay all reasonable expenses of
Purchaser, including, without limitation, reasonable charges and disbursements
of special counsel, incurred in connection with the preparation, execution and
delivery of this Amendment.
6. RATIFICATION. Except as specifically amended or modified above, the Note
Agreement and each of the Notes shall remain in full force and effect and are
hereby ratified and confirmed. The execution, delivery and effectiveness of this
Amendment shall neither operate as a waiver of any right, power or remedy of the
Purchaser under the Note Agreement or the Notes nor operate as a waiver of any
provision of the Note Agreement or the Notes except as specifically set forth
herein.
IN WITNESS WHEREOF, the Company and the Purchaser have caused this Amendment to
be executed and delivered by their respective officer or officers thereunto duly
authorized.
HURCO COMPANIES, INC.
By: /S/ROGER J. WOLF
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Title: Senior Vice President
and Chief Financial Officer
PRINCIPAL MUTUAL LIFE INSURANCE COMPANY
By: /S/STEPHEN G. SKRIVANEK
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Title: Counsel
By: /S/CLINT WOODS
-----------------------
Title:Counsel
EXHIBIT A
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT, dated as of January 31, 1995
(this "First Amendment"), between HURCO COMPANIES, INC., an Indiana corporation
(the "Company"), and NBD BANK (formerly known as NBD Bank, N.A.), a Michigan
banking corporation (the "Bank").
RECITALS
A. The parties hereto have entered into a Credit Agreement and Amendment to Term
Loan Agreement, dated as of March 24, 1994 (the "Credit Agreement"), which is in
full force and effect.
B. The Company desires to amend the Credit Agreement as herein provided, and the
Bank is willing to so amend the Credit Agreement on the terms and conditions set
forth herein.
AGREEMENT
Based upon these recitals, the parties agree as follows:
1. AMENDMENT. Upon the Company satisfying the conditions set forth in paragraph
4 (the date that this occurs being called the "effective date"), the Credit
Agreement shall be amended as follows:
(a) The term "Automatic Termination Date" at Section 1.1 of the Credit Agreement
is amended to read as follows:
"'AUTOMATIC TERMINATION DATE' means February 1, 1996."
(b) The term "Guarantor" is added to Section 1.1 following the term "generally
accepted accounting principles" to read as follows:
"'GUARANTOR' means Autocon Technologies, Inc., an Indiana
corporation and wholly-owned Subsidiary of the Company." (c)
Section 7.1(h) is amended by adding the following phrase to
the end of the last sentence of that subsection: "except as
disclosed on Schedule 6.9"
(d) Section 8.1(e) is amended by adding the following phrase to the end of that
subsection (before the semi-colon):
", PROVIDED, HOWEVER, that the occurrence of a Forbearance
Default (as defined in the PML Note Agreement) shall not
constitute an Event of Default"
(e) Exhibit D is amended in its entirety by substituting therefor the form of
Second Amended and Restated NBD Term Note attached hereto as Exhibit D.
2. REFERENCES TO CREDIT AGREEMENT. From and after the effective date of this
First Amendment, references to the Credit Agreement in the Credit Agreement and
all other documents issued under or with respect thereto (as each of the
foregoing is amended hereby or pursuant hereto) shall be deemed to be references
to the Credit Agreement as amended hereby.
3. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to the
Bank that:
(a) (i) The execution, delivery and performance of this First Amendment and all
agreements and documents delivered pursuant hereto by the Company have been duly
authorized by all necessary corporate action and do not and will not violate any
provision of any law, rule, regulation, order, judgment, injunction, or award
presently in effect applying to it, or of its articles of incorporation or
bylaws, or result in a breach of or constitute a default under any material
agreement, lease or instrument to which the Company is a party or by which it or
its properties may be bound or affected; (ii) no authorization, consent,
approval, license, exemption or filing of a registration with any court or
governmental department, agency or instrumentality is or will be necessary to
the valid execution, delivery or performance by the Company of this First
Amendment and all agreements and documents delivered pursuant hereto; and (iii)
this First Amendment and all agreements and documents delivered pursuant hereto
by the Company are the legal, valid and binding obligations of the Company,
enforceable against it in accordance with the terms thereof.
(b) After giving effect to the amendments contained herein, the representations
and warranties contained in Article VI (other than Section 6.5) of the Credit
Agreement are true and correct on and as of the effective date hereof with the
same force and effect as if made on and as of such effective date.
(c) No Event of Default has occurred and is continuing or will exist under the
Credit Agreement as of the effective date hereof.
4. CONDITIONS TO EFFECTIVENESS. This First Amendment shall not become effective
until the Bank has received the following documents and the following conditions
have been satisfied, each in form and substance satisfactory to the Bank:
(a) Copies, certified as of the effective date hereof, of such corporate
documents of the Company as the Bank may request, including articles of
incorporation, bylaws (or certifying as to the continued accuracy of the
articles of incorporation and by-laws previously delivered to the Bank), and
incumbency certificates, and such documents evidencing necessary corporate
action by the Company with respect to this First Amendment and all other
agreements or documents delivered pursuant hereto as the Bank may request;
(b) An Amendment and Notes Modification Agreement of even date herewith between
the Company and Principal Mutual Life Insurance Company ("PML"), in the form and
substance satisfactory to the Bank;
(c) An Amendment to Intercreditor, Agency, and Sharing Agreement of even date
herewith among the Company, the Bank, PML, and the Bank as Agent for the Bank
and PML, in form and substance satisfactory to the Bank;
(d) The Second Amended and Restated NBD Term Note executed and delivered by the
Company in the form attached hereto as Exhibit D;
(e) A Confirmation of Guaranty of even date herewith executed and delivered by
the Guarantor in favor of the Bank; and
(f) Such additional agreements and documents, fully executed by the Company, as
are reasonably requested by the Bank.
5. MISCELLANEOUS. The terms used but not defined herein shall have the
respective meanings ascribed thereto in the Credit Agreement. Except as
expressly amended hereby, the Credit Agreement and all other documents issued
under or with respect thereto are hereby ratified and confirmed by the Bank 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.
6. COUNTERPARTS. This First 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 First Amendment by
signing any such counterpart.
7. EXPENSES. The Company agrees to pay and save the Bank harmless from liability
for all costs and expenses of the Bank arising in respect of this First
Amendment, including the reasonable fees and expenses of Dickinson, Wright,
Moon, Van Dusen & Freeman, counsel to the Bank, in connection with preparing and
reviewing this First Amendment and any related agreements and documents.
8. GOVERNING LAW. This First 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 First Amendment to be
duly executed and delivered as of the date first written above.
HURCO COMPANIES, INC. NBD BANK (formerly known as
NBD Bank, N.A.)
By:/S/ROGER J. WOLF By:/S/ANDREW P. ARTON
---------------------- ------------------------
Roger J. Wolf Andrew P. Arton
Its: Senior Vice President Its: Second Vice President
and Chief Financial Officer
EXHIBIT D
SECOND AMENDED AND RESTATED NBD TERM NOTE
$4,086,203.46 January 31, 1995
Detroit, Michigan
FOR VALUE RECEIVED, HURCO COMPANIES, INC. ("Borrower"), an Indiana corporation,
hereby unconditionally promises to pay to the order of NBD Bank (formerly known
as NBD Bank, N.A.), a Michigan banking corporation (the "Bank"), at the
principal banking office of the Bank in lawful money of the United States of
America and in immediately available funds, the principal sum of Four Million
Eighty-Six Thousand Two Hundred Three and 46/100 Dollars ($4,086,203.46), unless
earlier payment is required, in installments as follows: (i) $1,750,000 payable
on the Automatic Termination Date, and (ii) the remainder payable on the
Maturity Date, when the entire outstanding principal balance of the Term Loan
evidenced hereby, and all accrued interest thereon, shall be due and payable;
and to pay interest on the unpaid principal balance hereof from time to time
outstanding, in like money and funds, for the period from the date hereof until
such Term Loan shall be paid in full, at the rates per annum and on the dates
provided in the Term Loan Agreement referred to below.
The Bank is hereby authorized by the Borrower to record on its books and records
the date, amount and type of each Loan, the applicable interest rate, the amount
of each payment or prepayment of principal thereon, and any other information
required by the Bank, which books and records shall constitute prima facie
evidence of the information so recorded, PROVIDED, HOWEVER, that any failure by
the Bank to record any such information shall not relieve the Borrower of its
obligation to repay the outstanding principal amount of the Term Loan evidenced
hereby, all accrued interest thereon and any amount payable with respect thereto
in accordance with the terms of this Term Note and the Term Loan Agreement.
The Borrower and each endorser or guarantor hereof waives demand, presentment,
protest, diligence, notice of dishonor and any other formality in connection
with this Term Note. Should the indebtedness evidenced by this Term Note or any
part thereof be collected in any proceeding or be placed in the hands of
attorneys for collection, the Borrower agrees to pay, in addition to the
principal, interest and other sums due and payable hereon, all costs of
collecting this Term Note, including attorneys' fees and expenses.
This Term Note evidences a Term Loan made under a Term Loan Agreement dated as
of September 9, 1991, as amended by a Credit Agreement and Amendment to Term
Loan Agreement dated as of March 24, 1994, and as further amended by a First
Amendment to Credit Agreement of even date herewith between the Borrower and the
Bank (as amended, the "Term Loan Agreement"), to which reference is made for a
statement of the circumstances under which this Term Note is subject to
prepayment and under which its due date may be accelerated. Capitalized terms
used but not defined in this Term Note shall have the respective meanings
assigned to them in the Term Loan Agreement.
This Term Note is 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
choice of law principles of such State.
HURCO COMPANIES, INC.
By: /S/ROGER J. WOLF
Its: Senior Vice President
and Chief Financial Officer
EXHIBIT B
AMENDMENT TO INTERCREDITOR,
AGENCY AND SHARING AGREEMENT
THIS AMENDMENT, dated as of January 31, 1995 (this "Amendment"), among
Hurco Companies, Inc. (the "Company"), NBD Bank (formerly known as NBD Bank,
N.A.), 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").
R E C I T A L S
A. The parties hereto have entered into an Intercreditor, Agency and
Sharing Agreement dated as of March 24, 1994 (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 First Amendment to Credit
Agreement between the Company and NBD, a letter agreement among Hurco Europe
Limited, Hurco GmbH Werkzeugmaschinen CIM-Baustein Vertrieb und Service, and
NBD, a Second Amended and Restated NBD Term Note executed by Hurco in favor of
NBD, and an Amendment and Notes Modification 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 and conditions set forth herein.
A G R E E M E N T
Based upon these recitals, the parties agree as follows:
1. AMENDMENT. The definition of "Automatic Termination Date" is amended to
read as follows:
"'AUTOMATIC TERMINATION DATE' means February 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. 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.
4. 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.
5. 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, in
connection with preparing and reviewing this Amendment and any related
agreements and documents.
6. 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
-----------------------
Roger J. Wolf
Its: Senior Vice President
and Chief Financial Officer
NBD BANK (formerly known as PRINCIPAL MUTUAL LIFE
NBD Bank, N.A.) INSURANCE COMPANY
By: /S/ANDREW P. ARTON By: /S/STEPHEN G. SKRIVANEK
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Andrew P. Arton Its: Counsel
Its: Second Vice President
And by: /S/CHRISTOPHER HENDERSON
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Its: Counsel