EXHIBIT 10.20.15
First Amendment to the Credit Agreement
dated January 31, 1995
between the Registrant and NBD Bank (formerly known as NBD Bank, N.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: ___________________
Its: __________________