EXHIBIT 10.20.25
Fourth Amendment to Intercreditor, Agency and Sharing Agreement
dated December 22, 1995
among the Registrant, NBD Bank, Principal Mutual
Life Insurance Company and NBD Bank as Agent
FOURTH AMENDMENT TO INTERCREDITOR,
AGENCY AND SHARING AGREEMENT
THIS AMENDMENT, dated as of December 22, 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").
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 (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 Fourth Amendment to
Credit Agreement between the Company and NBD (such amending document 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. 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:
2. (a) Section 3.2(b) of the Intercreditor Agreement shall be
amended to read as follows:
"(b) Next, but only out of the proceeds of the Cash Collateral
Account, to pay (i) interest and letter of credit commissions
then owed to NBD under or with respect to Authorization
Letters of Credit or that portion of any New Facility Loans
drawn to reimburse NBD for draws under Authorization Letters
of Credit, (ii) the principal balance then owed NBD under the
Authorization Note or that portion of any New Facility Loans
drawn to reimburse NBD for draws under Authorization Letters
of Credit, and (iii) amounts to be deposited in the NBD Cash
Collateral Account equal to the face amount of all undrawn
Authorization Letters of Credit, any such deposit not being
treated as a payment for purposes of the sharing obligations
of the Lenders under this Agreement, provided, however, that
the sum of all amounts paid under subsections (ii) and (iii)
above shall not exceed $2,000,000, and, provided, further,
that no amounts shall be paid under this subsection (b) with
respect to (A) any Authorization Letter of Credit issued with
an expiry date beyond June 30, 1996, or whose expiry date is
extended beyond June 30, 1996, without the other Lender's
prior written consent, and (B) any Authorization Letter of
Credit issued following NBD receiving written notice from the
other Lender or the Company of, or otherwise becoming aware
of, the existence of an Event of Default, except for
Authorization Letters of Credit issued following such receipt
for which the other Lender has delivered to NBD its waiver of
this requirement that those Authorization Letters of Credit be
excluded from coverage under this subsection (b) (the Lender
may withdraw its waiver as to any Authorization Letters of
Credit not yet made by delivering written notice of its
withdrawal to NBD)."
(b) The definition of "Interim Exposure Percentage" in
Section 4.1 is amended to read as follows:
"'Interim Exposure Percentage'" means, for NBD, the
percentage obtained by dividing (a) the sum of the outstanding
principal amount of the Amended Term Note, plus the face
amount of the IRB L/C, plus the lesser of (i) the aggregate
amount of the Borrowing Base as of the last Borrowing Base
Certificate, and (ii) the face amount of the Authorization
Letters of Credit plus the aggregate amount (not to exceed
$27,000,000) of the New Facility Commitment plus the Amended
European Facility, all as of the date of calculation, by (b)
the sum of the amount calculated under subsection (a) above
plus the outstanding principal amount of the Amended PML Notes
as of the date of calculation. For PML, the term "Interim
Exposure Percentage" means the percentage obtained by dividing
the outstanding principal amount of the Amended PML Notes as
of the date of calculation by the amount calculated under
subsection (b) above."
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 & Xxxxxxx, counsel to
the Agent and NBD, and Sidley & Austin, counsel to PML, 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/XXXXX X. XXXX
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Xxxxx X. Xxxx
Its: Senior Vice President and
Chief Financial Officer
NBD BANK PRINCIPAL MUTUAL LIFE
INSURANCE COMPANY
By: /S/XXXXX X. XXXXXXX By: /S/XXXXXXX X. XXXXXXXX
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Xxxxx X. Xxxxxxx Its: Second Vice President
Its: Vice President
And by: /S/XXXX X. XXXXXXXXXX
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Its: Counsel
