Exhibit 10.17
THE FIRST AMENDMENT TO THE
AMENDED AND RESTATED CREDIT AGREEMENT AND
AMENDMENT TO REIMBURSEMENT AGREEMENT,
Between the Registrant and NBD Bank, N.A. and NBD Bank
dated September 29, 1998
FIRST AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
AND AMENDMENT TO REIMBURSEMENT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT AND
AMENDMENT TO REIMBURSEMENT AGREEMENT dated as of September 29, 1998 (this
"Amendment"), among HURCO COMPANIES, INC., an Indiana corporation (the
"Company"), NBD BANK, N.A., a national banking association ("NBD"), and NBD
BANK, a Michigan banking corporation ("NBD Michigan" and, collectively with NBD,
the "Banks").
RECITALS
A. The parties hereto have entered into an Amended and Restated Credit
Agreement and Amendment to Reimbursement Agreement dated as of September 8,
1997, 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 condition 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 definition of the term "Commitment" is amended and
restated, to read as follows:
"Commitment" means the commitment of the Bank to make
Revolving Credit Loans and Letters of Credit Advances pursuant to
Section 2.1, in amounts not exceeding an aggregate principal amount
outstanding of $20,000,000, as such amount may be reduced from time to
time pursuant to Section 2.2.
(b) Section 2.1(c) is amended and restated, to read as follows:
(c) Limitation on Amount of Revolving Credit Advances.
Notwithstanding anything in this Agreement to the contrary, (i) the
aggregate principal amount of the Revolving Credit Advances made by the
Bank at any time outstanding shall not exceed the amount of the
Commitment as of the date any such Advance is made, provided, however,
that the aggregate principal amount of Letter of Credit Advances
outstanding at any time shall not exceed $15,000,000; and (ii) the
aggregate principal amount of the Revolving Credit Advances, plus the
principal amount of loans made to Hurco Europe and Hurco GmbH under the
European Facility, outstanding at any time shall not exceed the amount
of $20,000,000.
2. References to Credit Agreement. From and after the effective date of
this 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 Banks that:
(a) (i) The execution, delivery and performance of this
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 (including
without limitation any credit facility with Principal Mutual Life Insurance
Company); (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 Amendment and all agreements and documents
delivered pursuant hereto; and (iii) this 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 IV (other than Section
4.6) 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 the 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 Amendment shall not become
effective until the Banks have received the following documents and the
following conditions have been satisfied, each in form and substance
satisfactory to the Banks:
(a) Copies, certified as of the effective date hereof, of such
corporate documents of the Company and the Guarantors as the Banks 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 Banks), and incumbency certificates, and such documents evidencing necessary
corporate action by the Company and the Guarantors with respect to this
Amendment and all other agreements or documents delivered pursuant hereto as the
Banks may request;
(b) A letter agreement regarding the First Amendment to
European Facility of even date herewith among Hurco Europe, Hurco GmbH, and The
First National Bank of Chicago ("First Chicago"), in form and substance
satisfactory to the Banks;
(c) A Confirmation of Subsidiary Guaranty of even date
herewith executed by the Guarantors in favor of the Banks and First Chicago, in
form and substance satisfactory to the Banks; and
(d) Such additional agreements and documents, fully
executed by the Company, as are reasonably requested by the Banks.
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 Banks 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 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.
7. Expenses. The Company agrees to pay and save the Banks harmless from
liability for all costs and expenses of the Banks arising in respect of this
Amendment, including the reasonable fees and expenses of Dickinson Wright PLLC,
counsel to the Banks, in connection with preparing and reviewing this Amendment
and any related agreements and documents.
8. 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 Indiana
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. NBD BANK, N.A.
By: ________________________ By: __________________________
Its: ___________________ Its: __________________
NBD BANK
By: ________________________
Its: ___________________
DETROIT 15275-5 373192