EXHIBIT 10.20.20
Second Amendment to Intercreditor, Agency and Sharing Agreement
dated May 31, 1995
among the Registrant, NBD Bank, Principal Mutual
Life Insurance Company and NBD Bank as Agent
SECOND AMENDMENT TO INTERCREDITOR,
AGENCY AND SHARING AGREEMENT
THIS AMENDMENT, dated as of May 31, 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 Second Amendment to Credit
Agreement between the Company and NBD, a Third Amended and Restated NBD Term
Note executed by Hurco in favor of NBD, and an Amendment to Amended and Restated
Note 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. 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) The definitions of "Automatic Termination Date", "Interim Exposure
Percentage", and "Outstanding Facilities", and Subsection (a) of "Final Exposure
Percentage", each in Section 4.1, are amended to read as follows:
"'AUTOMATIC TERMINATION DATE' means May 1, 1996."
"'FINAL EXPOSURE PERCENTAGE' means, for each Lender, the
percentage obtained as follows:
(a) a preliminary exposure percentage shall be calculated
for each Lender by dividing that Lender's portion of the
principal amount of the Credit Obligations outstanding on the
Termination Date by the total principal amount of the Credit
Obligations outstanding on the Termination Date. For purposes of
the above calculation, there shall be subtracted from the
principal amount of the Credit Obligations:
(i) in the case of PML, any payments applied by it
pursuant to Section 3.1 on make-whole premiums;
(ii) in the case of NBD, any amounts held by it in the
NBD Cash Collateral Account in respect of Letters of Credit
(as defined in the New Facility), and the face amount of any
outstanding Authorization Letters of Credit;
(iii) in the case of NBD, amounts that exceed the
maximum limitations contained in Section 2.1(b) of the New
Facility, PROVIDED, HOWEVER, that the full amount of
Advances that were within the Borrowing Base when made shall
be included in the calculation, irrespective of a subsequent
decline in the Borrowing Base; and
(iv) in the case of NBD, amounts loaned by it following
receipt of written notice from the other Lender or the
Company of, or otherwise becoming aware of, the existence of
an Event of Default, except for Advances made during any
period following such receipt for which the other Lender has
delivered to NBD its waiver of this requirement that those
Advances be subtracted in calculating NBD's Final Exposure
Percentage (the Lender may withdraw its waiver as to any
Advances not yet made by delivering written notice of its
withdrawal to NBD)."
"'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 and the Authorization Letters of Credit, plus the lesser of
(i) the aggregate amount of the Borrowing Base as of the last
Borrowing Base Certificate, and (ii) 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."
"'OUTSTANDING FACILITIES' means, collectively, the New Facility,
the New Facility Note, the Authorization Letters of Credit, the
Authorization Note, the NBD Term Loan Agreement as amended by the
New Facility, the Amended Term Note, the Amended European
Facility, the Reimbursement Agreement, the IRB L/C, the Hurco
Guaranty, the Amended PML Note Agreement, the Amended PML Notes,
and the Autocon Guaranties."
(B) The following definitions of "Authorization Letters of Credit" and
"Cash Collateral Account" added to Section 4.1 in appropriate alphabetical
order, to read as follows:
"'AUTHORIZATION LETTERS OF CREDIT' means the Authorization
Letters of Credit as defined in the Credit Agreement and
Amendment to Term Loan Agreement dated as of March 24, 1994,
between NBD and the Company, as amended, which may be issued by
NBD in a face amount not to exceed $2,000,000, which amount may
not be increased without the prior written consent of PML."
"'CASH COLLATERAL ACCOUNT' means the Cash Collateral Account
referred to in Section 3.4(b)."
(C) Section 3.2 is amended by redesignating subsections (b), (c), and (d)
thereof as subsections (c), (d), and (e), respectively, and adding new
subsection (b), 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 January 31,
1996, or whose expiry date is extended beyond January 31, 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)."
(D) Section 3.3(b) is amended to add the phrase "other than under Section
3.2(b)" to the second sentence, after the phrase "deposited in the NBD Cash
Collateral Account", and by adding the following sentence after the second
sentence:
"To the extent that an Authorization Letter of Credit then
outstanding shall not have been drawn upon at the date of its
expiry, the amount not drawn upon which has been deposited in the
NBD Cash Collateral Account under Section 3.2(b) shall be paid to
the Agent for application under this Section 3.3(b) or otherwise
shared in accordance with the Final Exposure Percentages of the
Lenders."
(E) Section 3.4(b) is amended by deleting the phrase "in accordance with
their respective Final Exposure Percentages" and substituting therefor the
phrase "in accordance with Section 3.2".
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. AMENDMENT FEE. The Company shall pay to the Agent for the benefit of the
Lenders an amendment fee of $25,000 concurrently with executing this Amendment,
and $25,000 on August 1, 1995. The amendment fee will be paid by the Agent to
each Lender within one Business Day of being received in the proportion of 72.1%
to NBD, and 27.9% to PML.
4. 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.
5. 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.
6. 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.
7. 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/XXXXXX X. XXXXX By: /S/XXX X. XXXXXXXX
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Xxxxxx X. Xxxxx Its: Assistant Director-
Its: Second Vice President Securities Investment
And by: /S/XXXX X. XXXXXXX
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Its: Counsel
