EXHIBIT 10.20.21
Third Amendment to Credit Agreement
dated July 31, 1995
between the Registrant and NBD Bank
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT, dated as of July 31, 1995 (this
"Third Amendment"), between HURCO COMPANIES, INC., an Indiana corporation (the
"Company"), and NBD BANK, 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, as amended (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" in Section 1.1 of the Credit
Agreement is amended to read as follows: "AUTOMATIC TERMINATION DATE"
means November 1, 1996.
(B) New Sections 7.1(i) and 7.1(l) are added, to read as follows:
(I) MOST FAVORED LENDER. In the event that the Company shall enter
into any modification of the PML Note Agreement or any other contract
or agreement pursuant to which the Company shall have available to it
a credit facility (a "Credit Agreement"),which increases the fees,
expenses, interest rate spreads over prime rate, LIBOR rate, or any
other such base rate or any other charges which are or may be payable
to a lender pursuant to a Credit Agreement (but excluding (I)
reimbursements for actual out-of-pocket expenses of the lender or its
counsel and excluding reasonable commitment fees to obtain, increase,
or extend or renew a credit facility, including lines of credit and
term loan facilities, default rate interest, and reasonable fees and
expenses or costs actually incurred for collection arising out of
default under any Credit Agreement AND (II) ANY INCREASES IN FEES,
EXPENSES, INTEREST RATE SPREADS, BASE RATES OR OTHER CHARGES RESULTING
SOLELY FROM THE OPERATION OF SECTION 6.14 OF THE PML NOTE AGREEMENT OR
ANY COMPARABLE PROVISION OF ANY OTHER CREDIT AGREEMENT) over the
interest rate spreads, fees, charges, and expenses provided for in the
PML Note Agreement or such other Credit Agreement, as applicable,
then, effective as of the date of such increase, the amount of the
increase in the interest rate spread (i.e., the number of basis points
added to the interest rate spread), if any, shall be added to the
interest rate payable to NBD under the Notes issued in connection with
this Agreement, as amended, and as and when the amount representing
the increase of fees, expenses, and/or charges, if any, becomes due
and payable under the Credit Agreement, the Company shall pay to NBD a
comparable amount as a fee. In no event will the fee payable to NBD
pursuant to the foregoing exceed the amount of the corresponding
increase in fee, charge, or expense payable under the modified Credit
Agreement. Failure of the Company to make the payments which become
due and payable under this Section shall constitute an Event of
Default under Section 8.1(a). Upon any increase in the interest rate
to be charged under the Notes pursuant to this Section, the Company
shall execute such amendments to the Notes and this Agreement as NBD
may reasonably request to confirm and evidence the increase in the
interest rate.
(l) COMMON COVENANTS. During the period from May 1, 1996, through
October 31, 1996, the Company agrees to immediately and automatically
grant NBD the same loan covenants, including financial covenants, and
terms it grants PML or any replacement lender therefor during such
period, if such covenants and terms are different in kind or more
restrictive (on the Company) than NBD's existing covenants or terms.
If the Company defaults in the performance of such new covenants or
terms, an Event of Default shall arise under Section 8.1(c).
(C) Section 7.2(c)(iii) is amended by adding the following after the
phrase "second fiscal quarter of fiscal year 1996":
,and $1,500,000 in the aggregate during the fiscal year 1996
(D) Section 7.2(e) is amended by adding the phrase "through July 30,
1996" after the word "thereafter" in the column entitled "Fiscal
Period Ended", and adding the following dates and amounts under the
headings "Fiscal Period Ended" and "Calculated Amount":
FISCAL PERIOD ENDED CALCULATED AMOUNT
July 31, 1996 $6,500,000
October 31, 1996 $7,000,000
(E) Section 7.2(e) is further amended by adding the following to the
end of the subsection:
, provided, however, that in the event there is any capital
contribution or cash infused by shareholders or third parties
to the Company ("Equity Infusion"), then the Calculated
Amounts set forth above for the fiscal period during which the
Equity Infusion is made and each fiscal period thereafter
shall be increased by 85% of the amount of the Equity
Infusion.
(F) Section 7.2(I) is amended by deleting the phrase "at any time
thereafter." and substituting the following:
from November 1, 1994, through July 30, 1996, or to exceed 4.5
to 1.0 from July 31, 1996, through October 30, 1996, or to
exceed 4.0 to 1.0 on October 31, 1996, or at any time
thereafter, provided, however, that in the event there is one
or more Equity Infusions which aggregate at least $3,000,000,
then the Company shall not permit such ratio to exceed 3.55 to
1.0 on July 31, 1996, or at any time thereafter.
(G) Section 7.2(m) is amended by adding the following at the end of
that subsection:
, or (iv) if the aggregate purchase price and other
acquisition costs of all such Capital Expenditures made by the
Company or any of its Subsidiaries during the third and fourth
fiscal quarters of fiscal year 1996, when combined with all
other Capital Expenditures made during that fiscal year, would
exceed $1,750,000
2. REFERENCES TO CREDIT AGREEMENT. From and after the effective date of
this Third 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 Third
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 Third Amendment and all
agreements and documents delivered pursuant hereto; and (iii) this
Third 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 Third 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 Third
Amendment and all other agreements or documents delivered pursuant
hereto as the Bank may request;
(b) A Third Amendment to Amended and Restated Note Agreement of even
date herewith between the Company and Principal Mutual Life Insurance
Company ("PML"), in form and substance satisfactory to the Bank;
(c) A Third 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) A Confirmation of Guaranty of even date herewith executed and
delivered by the Guarantor in favor of the Bank;
(e) A Fourth Amendment to European Facility of even date hereweith
among Hurco Europe, Hurco GmbH and the Bank, together with a
Confirmation of Guaranty of even date herewith executed by the Company
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 Third 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 Third 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
Third 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 Third Amendment and any related agreements and
documents.
8. GOVERNING LAW. This Third 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 Third Amendment to
be duly executed and delivered as of the date first written above.
HURCO COMPANIES, INC. NBD BANK
By: /s/ Roger J. Wolf By: /s/ Bruce Thomson
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Its: Sr. Vice President & CFO Its: Vice President