EXHIBIT 10.40
SECOND AMENDMENT TO SECOND RESTATED AND AMENDED
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LOAN AGREEMENT
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THIS SECOND AMENDMENT TO SECOND RESTATED AND AMENDED LOAN AGREEMENT
(hereinafter called this "Amendment") is entered into as of April 1, 1995, among
VISUAL NUMERICS, INC., a Texas corporation formerly known as IMSL, Inc. (the
"Company"), VISUAL NUMERICS, INC. OF COLORADO, a California corporation formerly
known as IMSL Acquisition Corp., Inc. ("VNIC"), VISUAL NUMERICS, INC. (EUROPE),
a Texas corporation ("VNIE"), and FIRST INTERSTATE BANK OF TEXAS, N.A., (the
"Bank"). Each of XXXXXXX X. XXXXXXX (the "Guarantor") and XXXXXXXX X. XXXXXXX
joins in the execution hereof for the purpose of acknowledging to the amendments
and other provisions hereof and agreeing to such amendments and other provisions
applicable to Xxxxxxx X. Xxxxxxx and Xxxxxxxx X. Xxxxxxx, respectively.
W I T N E S S E T H:
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WHEREAS, the Company, VNIC and the Bank entered into a Second Restated and
Amended Loan Agreement dated as of December 16, 1992 (hereinafter called the
"Second Restated and Amended Agreement"), whereby, upon the terms and conditions
therein stated, the Bank agreed to make available to the Company a credit
facility upon the terms and conditions set forth in the Agreement; and
WHEREAS, as of February 28, 1994 the Company, VNIC, VNIE, and the Bank
entered into a First Amendment to Second Restated and Amended Loan Agreement
(the "First Amendment" and, together with the Second Restated and Amended
Agreement, the "Agreement"); and
WHEREAS, the Company, the Corporate Guarantors and the Guarantor have
requested the Bank to amend certain covenants of the Company and the Corporate
Guarantors; and
WHEREAS, subject to and upon the terms and conditions hereinafter stated,
the Bank is willing to do so;
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained, the parties to this Amendment hereby agree as
follows:
SECTION 1. Terms Defined in Agreement. As used in this Amendment, except
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as may otherwise be provided herein, all capitalized terms which are defined in
the Agreement shall have the same meaning herein as therein, all of such terms
and their definitions being incorporated herein by reference.
SECTION 2. Amendments to Agreement. Subject to the conditions precedent
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set forth in Section 3 hereof, the Agreement is hereby amended as follows:
(a) The definition of "Line of Credit Commitment" found in Section
1.2 of the Agreement is hereby deleted from the Agreement and the following
definition of "Line of Credit Commitment" is substituted in lieu thereof:
"Line of Credit Commitment means $2,000,000, as such amounts may
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otherwise be reduced from time to time pursuant to the terms of this
Agreement."
(b) The definition of "Loan Formula" found in Section 1.2 of the
Agreement is hereby deleted from the Agreement and the following definition of
"Loan Formula" is substituted in lieu thereof:
"Loan Formula means at any time the amount equal to the then
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current sum of (i) 80% of the Eligible Accounts of the Company and IAC
directed to the Account, plus (ii) an amount equal to the lesser of
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(a) 40% of the Eligible Government Receivables of the Company and IAC
directed to the Account, or (b) $200,000, plus (iii) $500,000 so long
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as the Limited Guaranty executed by the Guarantor is secured by a
first priority perfected security interest in certificated stock in
accordance with Section 3.10 hereof."
(c) The definition of "Revolving Note" found in Section 1.2 of the
Agreement is hereby deleted from the Agreement and the following definition of
"Revolving Note" is substituted in lieu thereof:
"Revolving Note means the promissory note issued by the Company
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pursuant to Section 3.3 hereof as the same may be renewed, rearranged,
modified, increased or extended at any time, from time to time, which
note was given in modification, rearrangement, and increase of, but
not in novation or discharge of, that certain revolving note dated
February 28, 1994, executed by the Company and payable to the order of
the Bank in the original principal amount of $1,900,000.00, which note
was given in renewal, modification, rearrangement and extension of,
but not in novation or discharge of, that certain revolving note dated
December 16, 1992, executed by the Company and payable to the order of
the Bank in the original principal amount of $2,000,000."
(d) The definition of "Notes" found in Section 1.2 of the Agreement
is hereby deleted from the Agreement and the following definition of "Notes" is
substituted in lieu thereof:
"Notes means the Revolving Note."
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(e) The definitions of "Term Note A" and "Term Note B" found in
Section 1.2 of the Agreement are hereby deleted from the Agreement.
(f) The second paragraph of Section 3.3 of the Agreement relating to
when the principal of and interest to accrue on the Revolving Note shall be due
and payable is hereby deleted therefrom and the following paragraph is
substituted in lieu thereof:
"The principal of and interest to accrue on the Revolving Note shall
be due and payable as follows:
Interest to accrue on the Revolving Note shall be due and payable
monthly as it accrues, with the first installment to be due and
payable on March 31, 1995, and with a like installment of all accrued
but unpaid interest to be due and payable on or before the last day of
each succeeding calendar month thereafter until the principal amount
of the Revolving Note is paid in full; and the outstanding principal
amount of the Revolving Note shall be due and payable in full on or
before the Termination Date."
(g) Sections 3.1 and 3.2 of the Agreement are hereby deleted
therefrom and the following Sections 3.1 and 3.2 are substituted in lieu
thereof:
"Section 3.1 [This Section 3.1 is intentionally omitted.]"
"Section 3.2 [This Section 3.2 is intentionally omitted.]"
(h) Section 3.7 of the Agreement is hereby deleted therefrom and the
following Section 3.7 is substituted in lieu thereof:
"Section 3.7. Fees. For and in consideration of the Bank's agreement to
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provide the credit facility hereunder, the Company shall pay to the
Bank a commitment fee of one-fourth of one percent (1/4%) per annum on
the difference between (i) the Line of Credit Commitment and (ii) the
average daily outstanding principal amount of loans under the Line of
Credit computed from date hereof to, but excluding, the Termination
Date, which fee shall be calculated for each calendar quarter
quarterly in arrears beginning March 31, 1995 and paid within thirty
days after the end of each such calendar quarter, with the last
payment being due and payable on the Termination Date."
(i) Sections 5.1(g) through 5.1(i) of the Agreement are hereby
deleted therefrom and the following Sections 5.1(g) through 5.1(i) are
substituted in lieu thereof:
"(g) As soon as available, but in any event, within 30 days after
the end of each month (unless and until the Bank notifies the Borrower
that the following must be provided to the Bank more quickly, for
different periods, or on a more
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frequent basis), a monthly listing and agings of accounts receivable
and accounts payable of the Company and the Corporate Guarantors as of
the last day of such month, together with a Loan Formula Certificate,
setting forth the computation of the Loan Formula as of the date
thereof, (A) certified by a proper accounting officer of the Company
and the Corporate Guarantors, (B) containing a certificate of a proper
financial officer of the Company and the Corporate Guarantors stating
that a review of the activities of the Company and the Corporate
Guarantors during the period covered by such certificate has been made
under his supervision with a view to determining whether the Company
has kept, observed, performed and fulfilled all of its obligations
under this Agreement, the Notes, the Security Instruments and the
other Loan Documents, and that, to the best of his knowledge, during
such period, it has kept, observed, performed and fulfilled each and
every covenant in this Agreement, the Notes, the Security Instruments
and the other Loan Documents, and is not at the time in default under
any of the same, or if it shall have been or shall be in default,
specifying the same;"
(h) [This Section 5.1(h) is intentionally omitted.]
(i) [This Section 5.1(i) is intentionally omitted.]
(j) Section 5.25 of the Agreement is hereby deleted therefrom and the
following Section 5.25 is substituted in lieu thereof:
"Section 5.25 Cash Collateral Account. Notwithstanding any
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provision herein or in the other Loan Documents to the contrary, each
of the Company and the Corporate Guarantors agrees to direct all
customers and licensees to send all sales remittance checks and
license and royalty payments and proceeds to a post office box (the
"Lockbox") designated by the Bank for collection and deposit in, and
to deposit all cash generated by cash sales and cash prepayments at
time of purchase by the Company's and the Corporate Guarantors'
customers, and all proceeds (the "Proceeds") of accounts, accounts
receivable, license agreements, royalty agreements, and credit card
sales received by it into a cash collateral account (the "Account")
designated by the Bank and from which only officers of the Bank can
withdraw funds, all in accordance with the Lockbox Agreement. In
addition, each of the Company and the Corporate Guarantors shall
transfer to the Account, on a daily basis, by wire transfer of federal
funds, all balances in deposit accounts maintained at banks and other
depositories (other than the Bank) representing Proceeds of cash
sales, and shall direct all Proceeds of Credit Card Receivables
directly to the Account. The Proceeds shall be deposited promptly
(i.e., on the date received if received prior to 2:00 P.M.) and on the
next Business Day if received after 2:00 P.M. in the Account upon the
receipt thereof by the Company and the Corporate Guarantors in the
form received (with any endorsements necessary for collection). So
long as no Event of Default has occurred, the balances in the
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Account as of 10:30 a.m. on each Business Day shall be deposited by
the Bank in the Company's operating account at the Bank. Upon the
occurrence of an Event of Default and thereafter, all collected
balances in the Account shall be applied by the Bank to reduce the
outstanding Obligations of the Company to the Bank. As used with
respect to the Account, the term "collected balances" shall mean the
amounts in the Account shown as of 8:00 a.m. on a Business Day as
collected from deposit systems from the previous Business Day plus the
amounts in the Account deemed to be collected as of 10:30 a.m. in the
same Business Day's deposits to the Account. Upon the occurrence of
any Event of Default and thereafter, the application of such collected
balances by the Bank shall be as follows: first, to the payment of any
and all fees, costs and expenses, including reasonable attorneys' fees
and professional fees and expenses incurred by the Bank, second to the
balance of interest and/or principal (as determined by the Bank in its
sole discretion) remaining unpaid on the Revolving Note."
(k) The address for notices, requests and demands with respect to the
Bank set forth in Section 8.8 of the Agreement is hereby amended to read as
follows:
"If to the Bank, to First Interstate Bank of
Texas, N.A.
0000 Xxxxxxxxx
Xxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxxx Xxxxxxx
Vice President
Telephone: (000) 000-0000
Telecopier: (000) 000-0000"
(l) Exhibits A and F to the Agreement are deleted therefrom and
Exhibits A and F attached hereto are substituted in lieu thereof.
SECTION 3. Conditions of Effectiveness. As a condition precedent to the
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effectiveness of this Amendment and the Bank's agreements and obligations
hereunder, the Company, the Corporate Guarantors, the Guarantor and Xxxxxxxx X.
Xxxxxxx, as applicable, shall have taken the following actions and delivered to
the Bank the following documents and instruments, in form and substance
satisfactory to the Bank:
(a) The Company, the Corporate Guarantors, the Guarantor and Xxxxxxxx
X. Xxxxxxx shall have duly executed and delivered this Amendment, such other
Loan Documents, and such evidence of filings, acknowledgements or acceptances of
any such documents, as the Bank may reasonably request or require, all duly
executed and delivered by all parties thereto.
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(b) The Company shall have delivered to the Bank certificates of the
Secretary or Assistant Secretary of each of the Company and the Corporate
Guarantors setting forth resolutions of its Board of Directors in form and
substance reasonably satisfactory to the Bank with respect to this Amendment.
(c) The Company shall have paid all accrued and unpaid legal fees and
expenses referred to in Section 8.7 of the Agreement and Section 7 hereof to the
extent invoices for such fees and expenses have been delivered to the Company.
(d) The Company shall have delivered evidence satisfactory to the
Bank that as of the Closing Date the Bank has a first priority perfected Lien on
the Collateral and that there exist no Liens (other than Permitted Liens) on any
property (real or personal) of the Company or the Corporate Guarantors.
(e) Such other evidence as the Bank may reasonably request to
establish the consummation of the transactions contemplated hereby, the taking
of all proceedings in connection herewith and compliance with the conditions set
forth in this Amendment.
SECTION 4. Representations, Warranties and Covenants of the Company and
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the Corporate Guarantors. Each of the Company and the Corporate Guarantors
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represents and warrants to the Bank, with full knowledge that the Bank is
relying on the following representations and warranties in executing this
Amendment, as follows:
(a) Each of the Company and the Corporate Guarantors has corporate
power and authority to execute, deliver and perform this Amendment, and all
corporate action on the part of the Company and the Corporate Guarantors
requisite for the due execution, delivery and performance of this Amendment has
been duly and effectively taken.
(b) The Agreement as amended by this Amendment and the Loan
Documents and each and every other document executed and delivered in connection
with this Amendment to which the Company, the Corporate Guarantors or any of
their respective Subsidiaries is a party constitute the legal, valid and binding
obligations of the Company, the Corporate Guarantors and any of their respective
Subsidiaries to the extent it is a party thereto, enforceable against such
Person in accordance with their respective terms.
(c) This Amendment does not and will not violate any provisions of
the articles or certificate of incorporation or bylaws of the Company or the
Corporate Guarantors, or any contract, agreement, instrument or requirement of
any Governmental Authority to which the Company or the Corporate Guarantors is
subject. Neither the Company's nor the Corporate Guarantors' execution of this
Amendment will result in the creation or imposition of any lien upon any
properties of the Company or the Corporate Guarantors, other than those
permitted by the Agreement and this Amendment.
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(d) Neither the Company's nor the Corporate Guarantors' execution,
delivery and performance of this Amendment requires the consent or approval of
any other Person, including, without limitation, any Governmental Authority.
(e) The quarterly unaudited consolidated balance sheet of the
Company and its Subsidiaries as of December 31, 1994 the related consolidated
statements of earnings, capital accounts, and cash flows of the Company for the
quarter then ended and the consolidated balance sheet and related consolidated
statements of earnings, capital accounts and cash flows for the period
commencing the first day of the fiscal year and ending on the last day of such
quarter which have been furnished to the Bank, fairly present the financial
condition of the Company and its Subsidiaries as at such date and the results of
the operations of the Company and its Subsidiaries for the periods ended on such
date, all in accordance with GAAP applied on a consistent basis, and since
December 31, 1994 there has been no material adverse change in such condition or
operations.
(f) Each of the Company and the Corporate Guarantors has performed
and complied with all agreements and conditions contained in the Agreement
required to be performed or complied with by the Company and the Corporate
Guarantors prior to or at the time of delivery of this Amendment.
(g) No Default or Event of Default exists.
(h) Nothing in this Section 4 of this Amendment is intended to amend
any of the representations or warranties contained in the Agreement or of the
Loan Documents to which the Company, the Corporate Guarantors or any of their
respective Subsidiaries is a party. Each of the Company and the Corporate
Guarantors represents and warrants that all of the representations and
warranties contained in the Agreement and all instruments and documents executed
pursuant thereto or contemplated thereby are true and correct in all material
respects on and as of this date, except (i) such representations that relate
solely to an earlier date and that were true and correct on such earlier date,
and (ii) the breach or inaccuracy of representations and warranties about which
the Bank has been notified in writing prior to the date of this Amendment.
SECTION 5. Reference to and Effect on the Agreement.
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(a) Upon the effectiveness of Sections 1 and 2 hereof, on and after
the date hereof, each reference in the Agreement to "this Agreement",
"hereunder", "hereof", "herein", or words of like import, shall mean and be a
reference to the Agreement as amended hereby.
(b) Except as specifically amended by this Amendment, the Agreement
shall remain in full force and effect and is hereby ratified and confirmed.
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SECTION 6. Defaults and Events of Default. Each of the Company, the
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Corporate Guarantors, the Guarantor and Xxxxxxxx X. Xxxxxxx agrees that no Event
of Default and no Default has been waived or remedied by the execution of this
Amendment by the Bank, and any such Default or Event of Default heretofore
arising and currently continuing shall continue after the execution and delivery
hereof.
SECTION 7. Cost, Expenses and Taxes. The Company agrees to pay on demand
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all reasonable costs and expenses of the Bank in connection with the
preparation, reproduction, execution and delivery of this Amendment and the
other instruments and documents to be delivered hereunder, including reasonable
attorneys' fees and out-of-pocket expenses of the Bank. In addition, the
Company shall pay any and all stamp and other taxes and fees payable or
determined to be payable in connection with the execution and delivery, filing
or recording of this Amendment and the other instruments and documents to be
delivered hereunder, and agrees to save the Bank harmless from and against any
and all liabilities with respect to or resulting from any delay in paying or
omission to pay such taxes or fees.
SECTION 8. Extent of Amendments. Except as otherwise expressly provided
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herein, the Agreement and the other Loan Documents are not amended, modified or
affected by this Amendment. Each of the Company and the Corporate Guarantor
ratifies and confirms that (i) except as expressly amended hereby, all of the
terms, conditions, covenants, representations, warranties and all other
provisions of the Agreement remain in full force and effect, (ii) each of the
other Loan Documents are and remain in full force and effect in accordance with
their respective terms, and (iii) the Collateral is unimpaired by this
Amendment.
SECTION 9. Grant and Affirmation of Security Interest.
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(a) Each of the Guarantor and Xxxxxxxx X. Xxxxxxx hereby grants a
security interest in the Collateral to secure payment and performance of the
Guaranteed Obligations and all documents and instruments executed in connection
therewith and, each of the Guarantor and Xxxxxxxx X. Xxxxxxx hereby confirms and
agrees that any and all liens, security interests and other security or
Collateral now or hereafter held by the Bank as security for payment and
performance of the Guaranteed Obligations hereby are renewed, extended and
carried forth to secure payment and performance of all of the Guaranteed
Obligations. The Security Instruments executed by the Guarantor and Xxxxxxxx X.
Xxxxxxx are and remain legal, valid and binding obligations of the parties
thereto, enforceable in accordance with their respective terms.
(b) Each of the Company and the Corporate Guarantors hereby grants a
security interest in the Collateral to secure payment and performance of the
Notes, and the obligations described in the Agreement and all documents and
instruments executed in connection therewith and, each of the Company and the
Corporate Guarantors hereby confirms and agrees that any and all liens, security
interests and other security or Collateral now or hereafter held by the Bank as
security for payment and performance of the Obligations hereby are renewed,
extended and carried forth to secure payment and performance of all of the
Obligations. The Security Instruments
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executed by the Company and the Corporate Guarantors are and remain legal, valid
and binding obligations of the parties thereto, enforceable in accordance with
their respective terms.
SECTION 10. Guaranties.
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(a) VNIC hereby consents to and accepts the terms and conditions of
this Amendment, agrees to be bound by the terms and conditions hereof and
ratifies and confirms that its Guaranty, executed and delivered to the Bank on
December 16, 1992, guaranteeing payment of the Obligations, is and remains in
full force and effect and secures payment of, among other things, the Notes.
(b) VNIE hereby consents to and accepts the terms and conditions of
this Amendment, agrees to be bound by the terms and conditions hereof and
ratifies and confirms that its Guaranty, executed and delivered to the Bank on
February 28, 1995, guaranteeing payment of the Obligations, is and remains in
full force and effect and secures payment of, among other things, the Notes.
(c) Guarantor hereby consents to and accepts the terms and conditions
of this Amendment, agrees to be bound by the terms and conditions hereof and
ratifies and confirms that his Restated and Amended Limited Guaranty Agreement,
executed and delivered to the Bank on February 26, 1994, guaranteeing payment of
the Obligations, is and remains in full force and effect and secures payment of,
among other things, the Notes.
SECTION 11. Execution and Counterparts. This Amendment may be executed in
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any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument. Delivery of an executed counterpart of the signature page of
this Amendment by facsimile shall be equally as effective as delivery of a
manually executed counterpart of this Amendment.
SECTION 12. Severability. In the event any one or more provisions
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contained in the Agreement or this Amendment should be held to be invalid,
illegal or unenforceable in any respect, the validity, enforceability and
legality of the remaining provisions contained herein and therein shall not be
affected in any way or impaired thereby and shall be enforceable in accordance
with their respective terms.
SECTION 13. Governing Law. This Amendment shall be governed by and
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construed in accordance with the laws of the State of Texas.
SECTION 14. Headings. Section headings in this Amendment are included
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herein for convenience and reference only and shall not constitute a part of
this Amendment for any other purpose.
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SECTION 15. Arbitration Program. The parties agree to be bound by the
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terms and provisions of the current Arbitration Program of the Bank which is
incorporated by reference herein and is acknowledged as received by the parties
pursuant to which any and all disputes arising hereunder, under the Agreement,
under any of the other Loan Documents, or under any of the documents and
instruments contemplated thereby, or pertaining hereto or thereto, shall be
resolved by mandatory binding arbitration upon the request of any party.
Section 16. Waivers and Release of Claims. As additional consideration to
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the execution, delivery, and performance of this Amendment by the parties hereto
and to induce the Bank to enter into this Amendment, each of the Company, the
Corporate Guarantors, Xxxxxxxx X. Xxxxxxx, and the Guarantor represents and
warrants that none of the Company, the Corporate Guarantors, Xxxxxxxx X.
Xxxxxxx, or the Guarantor knows of any facts, events, statuses or conditions
which, either now or with the passage of time or the giving of notice, or both,
constitute or will constitute a basis for any claim or cause of action against
the Bank or any defense, counterclaim or right of setoff to the payment or
performance of any obligations or indebtedness of the Company, the Corporate
Guarantors, Xxxxxxxx X. Xxxxxxx, or the Guarantor to the Bank, and in the event
any such facts, events, statuses or conditions exist or have existed, whether
known or unknown, each of the Company and the Corporate Guarantors for itself,
its subsidiaries, their respective representatives, agents, officers, directors,
employees, shareholders, and successors and assigns, and the Guarantor and
Xxxxxxxx X. Xxxxxxx, for themselves and their heirs and assigns, hereby fully,
finally, completely, generally and forever releases, discharges, acquits, and
relinquishes the Bank and its respective representatives, agents, officers,
directors, employees, shareholders, and successors and assigns, from any and all
claims, actions, demands, and causes of action of whatever kind or character
that may have arisen prior to the execution of this Amendment, whether joint or
several, whether known or unknown, for any and all injuries, harm, damages,
penalties, costs, losses, expenses, attorneys' fees, and/or liability whatsoever
and whenever incurred or suffered by any of them. Notwithstanding any provision
of this Amendment, the Agreement or any other Loan Document, this Section 16
shall remain in full force and effect and shall survive the delivery of the
Notes, this Amendment and the Other Loan Documents and the making, extension,
renewal, modification, amendment or restatement of any thereof.
SECTION 17. NO ORAL AGREEMENTS. THE AGREEMENT (AS AMENDED BY THIS
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AMENDMENT) AND THE OTHER LOAN DOCUMENTS, REPRESENT THE FINAL AGREEMENT BETWEEN
THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized.
COMPANY: BANK:
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VISUAL NUMERICS, INC. FIRST INTERSTATE BANK
OF TEXAS, N.A.
By /s/ Xxxxxxx X. Xxxxx By /s/ Xxxxxxx X. Xxxxxxx
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Name: Name:
Title: Title:
CORPORATE GUARANTORS:
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VISUAL NUMERICS, INC. OF COLORADO
By /s/ Xxxxxxx Xxxxx
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Name:
Title:
VISUAL NUMERICS, INC. (EUROPE)
By /s/ Xxxxxxx X. Xxxxx
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Name:
Title:
GUARANTOR:
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/s/ Xxxxxxx X. Xxxxxxx
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XXXXXXX X. XXXXXXX
/s/ Xxxxxxxx X. Xxxxxxx
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XXXXXXXX X. XXXXXXX
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EXHIBIT A
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LOAN FORMULA CERTIFICATE AND
CERTIFICATE OF NO DEFAULT
VISUAL NUMERICS, INC.
VISUAL NUMERICS, INC. OF COLORADO
VISUAL NUMERICS, INC. (EUROPE)
The undersigned officers of VISUAL NUMERICS, INC., a Texas corporation (the
"Company"), VISUAL NUMERICS, INC. OF COLORADO, a California corporation
("VNIC"), and VISUAL NUMERICS, INC. (EUROPE), a Texas corporation ("VNIE" and
together with VNIC the "Corporate Guarantors"), hereby certify that the
following computation of the Loan Formula as of _______________, 19___ has been
prepared from the books and records of the Company and the Corporate Guarantors
and is true and correct to the best knowledge and belief of such officers:
1. Total Eligible Accounts of the Company and
the Corporate Guarantors pursuant to the
terms of that certain Second Restated and
Amended Loan Agreement dated as of
December 16, 1992, as amended (the
"Agreement"), among the Company, the
Corporate Guarantors and First Interstate
Bank of Texas, N.A. (the "Bank"). (Exhibits
A, B and C attached hereto sets forth the
calculation of Total Eligible Accounts). $______________
2. 80% of Item 1 above. $______________
3. Total Eligible Government Receivables of the
Company and the Corporate Guarantors $______________
4. The lesser of (i) 40% of Item 3 above or (ii)
$200,000 $______________
5. Item 2 above plus Item 4 above plus $500,000. $______________
Exhibit A-1
6. Aggregate amount of principal indebtedness
owing to the Bank pursuant to Section 3.3 of
the Agreement. $______________
7. Excess Availability (Deficiency) (Item 5 above
minus Item 6 above). $______________
The undersigned officers certify further that a review of the activities of
the Company and the Corporate Guarantors has been made to ascertain whether the
Company and the Corporate Guarantors have kept, observed, performed and
fulfilled all of the Company's and the Corporate Guarantors' covenants,
conditions, representations and warranties under the Agreement, the Notes and
the Security Instruments and that, to the best of their knowledge:
(i) during ___________________ through ________________ the
Company and the Corporate Guarantors have kept, observed, performed and
fulfilled each and every covenant, condition, representation and warranty
contained in the Agreement and the Loan Documents and the Company and the
Corporate Guarantors are not in violation of any of the terms and
conditions contained in the Agreement; and
(ii) as of the date hereof, no Default or Event of Default
exists under the Loan Agreement or any of the Loan Documents.
The chief executive office of the Company remains 0000 Xxxxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxx 00000. The Company has not changed its name from Visual
Numerics, Inc., its identity from a corporation or its corporate structure.
The chief executive office of VNIC remains at 0000 Xxxxxxx Xxxx, Xxxxxxx,
Xxxxxxxx 00000. VNIC has not changed its name from Visual Numerics, Inc. of
Colorado, its identity from a corporation or its corporate structure.
The chief executive office of VNIE remains at 0000 Xxxxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxx 00000. VNIE has not changed its name from Visual Numerics, Inc.
(Europe), its identity from a corporation or its corporate structure.
Exhibit A-2
Capitalized terms used herein but not defined herein shall have the meaning
given them in the Agreement.
VISUAL NUMERICS, INC.
By:___________________________________
Authorized Officer
VISUAL NUMERICS, INC. OF COLORADO
By:___________________________________
Authorized Officer
VISUAL NUMERICS, INC. (EUROPE)
By:___________________________________
Authorized Officer
Exhibit A-3
Exhibit A to Loan Formula
Certificate and Certificate of No Default
VISUAL NUMERICS, INC.
CALCULATION OF TOTAL ELIGIBLE RECEIVABLES
Total Accounts Receivable $______________
Less
a. Accounts of account debtors in excess of
10% of the Company's Eligible Accounts. $_____________
b. Contra accounts and other obligations
owed by the Company to account debtors. $_____________
c. Accounts of account debtors having 25%
or more of balances unpaid for more
than 90 days from date of original invoice. $_____________
d. ___________________________________
___________________________________
___________________________________
___________________________________ $_____________
Total Eligible Accounts Receivable $______________
Exhibit A-4
Exhibit B to Loan Formula
Certificate and Certificate of No Default
VISUAL NUMERICS, INC. OF COLORADO
CALCULATION OF TOTAL ELIGIBLE RECEIVABLES
Total Accounts Receivable $_____________
Less
a. Accounts of account debtors in excess of
10% of VNIC's Eligible Accounts. $_____________
b. Contra accounts and other obligations
owed by VNIC to account debtors. $_____________
c. Accounts of account debtors having 25%
or more of balances unpaid for more
than 90 days from date of original invoice. $_____________
d. ___________________________________
___________________________________
___________________________________
___________________________________ $_____________
Total Eligible Accounts Receivable $______________
Exhibit A-5
Exhibit C to Loan Formula
Certificate and Certificate of No Default
VISUAL NUMERICS, INC. (EUROPE)
CALCULATION OF TOTAL ELIGIBLE RECEIVABLES
Total Accounts Receivable $_____________
Less
a. Accounts of account debtors in excess of
10% of VNIE's Eligible Accounts. $_____________
b. Contra accounts and other obligations
owed by VNIE to account debtors. $_____________
c. Accounts of account debtors having 25%
or more of balances unpaid for more
than 90 days from date of original invoice. $_____________
d. ____________________________________
____________________________________
____________________________________
____________________________________ $_____________
Total Eligible Accounts Receivable $______________
Exhibit A-6
REVOLVING CREDIT NOTE
FIRST INTERSTATE BANK OF TEXAS, N.A.
NO.________ Houston, Texas ________________, 1995 $2,000,000.00
FOR VALUE RECEIVED, the undersigned, VISUAL NUMERICS, INC. (formerly IMSL,
INC.), a Texas corporation (herein called "Maker"), promises to pay to the order
of FIRST INTERSTATE BANK OF TEXAS, N.A. (herein called "Payee," which term
herein in every instance shall refer to any owner or holder of this note) the
sum of TWO MILLION AND NO/100 DOLLARS ($2,000,000.00), or so much thereof as may
be advanced and outstanding from time to time hereunder by Payee, together with
interest on the principal hereof from time to time outstanding from the date of
advancement until maturity, at the per annum rate hereinafter stated (computed
on the basis of a year of 360 days and paid for the actual number of days
elapsed), said principal and interest being payable in lawful money of the
United States of America at the banking quarters of First Interstate Bank of
Texas, N.A., First Interstate Bank Plaza, 1000 Louisiana, Houston, Xxxxxx
County, Texas, or at such other place in Xxxxxx County, Texas, as Payee may
designate hereafter in writing to Maker.
This note is issued pursuant to that certain Second Restated and Amended
Loan Agreement dated as of December 16, 1992, by and among Maker, Visual
Numerics, Inc. of Colorado (formerly known as IMSL Acquisition Corp., Inc.), and
Payee, as amended by that certain First Amendment to Second Restated and Amended
Loan Agreement executed as of February 28, 1994 but effective as of December 15,
1993 and that certain Second Amendment to Second Restated and Amended Loan
Agreement dated as of even date herewith (the Second Restated and Amended Loan
Agreement, as amended and as it may hereafter be amended, renewed, supplemented
or restated, is referred to as the "Loan Agreement"), and reference is made
hereby to the Loan Agreement for certain rights as to the prepayment and the
acceleration of the maturity hereof. All capitalized terms used herein but not
defined herein shall have the meaning ascribed to them in the Loan Agreement.
The principal balance hereof advanced and from time to time remaining
unpaid shall bear interest during each day of the term of the loan evidenced
hereby at a variable per annum rate equal to the lesser of (A) a per annum rate
that is equal to the sum (herein called the "Basic
Page 1 of 5 Pages
Rate") of (i) one percent per annum plus (ii) the prime rate of interest (herein
called the "Prime Rate"), being the variable per annum rate of interest most
recently announced by First Interstate Bank of Texas, N.A. (herein sometimes
called the "Bank") as its "prime rate", with the understanding that the Bank's
"prime rate" may be one of several base rates and serves as a basis upon which
effective rates of interest are from time to time calculated for loans making
reference thereto and may not be the lowest of the Bank's base rates, which
Basic Rate shall change when and as the Prime Rate shall change, effective on
the day of such change or (B) the Maximum Rate (herein after defined).
Notwithstanding the foregoing, if at any time the Basic Rate shall exceed the
Maximum Rate and thereafter the Basic Rate shall become less than the Maximum
Rate, the rate of interest payable hereunder shall remain at the Maximum Rate
until Payee shall have received the amount of interest it would have received
otherwise if the interest payable hereunder had not been limited to the Maximum
Rate during the period of time the Basic Rate exceeded the Maximum Rate.
All past due principal and interest of this note, whether due as the result
of acceleration of maturity or otherwise, shall bear interest at the lesser of
(1) a rate that is five percentage points above the Prime Rate as it varies or
(2) the maximum lawful rate of interest permitted by the applicable usury laws,
now or hereafter enacted, which interest rate (herein called the "Maximum Rate")
shall change when and as said laws shall change to the extent permitted by said
laws, effective on the day such change in said laws becomes effective, from the
date the payment thereof shall have become due until the same have been fully
discharged by payment.
The principal and interest of this note are due and payable as follows:
(a) Interest hereon shall be due and payable monthly as it accrues,
with the first installment to be due and payable on March 31, 1995, and a like
installment to be due and payable on the last day of each succeeding calendar
month thereafter until the principal amount of this note is paid in full; and
(b) The outstanding principal amount of this note shall be due and
payable in full on or before the Termination Date.
Until the Termination Date, subject to the terms and conditions of the Loan
Agreement, the undersigned may borrow, pay, prepay in whole or in part and
reborrow hereunder, so long as not more than the aggregate principal amount at
any one time outstanding under this note does not exceed an amount equal to the
lesser of the Line of Credit Commitment or the Loan Formula; it being expressly
contemplated that, by reason of prepayments hereon, there may be times when no
indebtedness is owing hereunder, but, notwithstanding such occurrences, this
note shall remain valid and shall be in full force and effect as to loans or
advances made subsequent to
Page 2 of 5 Pages
such occurrences; and it being understood and agreed that advances and
repayments of principal under this note are not limited to the lesser of the
Line of Credit Commitment or the Loan formula but to a maximum of the lesser of
the Line of Credit Commitment or the Loan Formula at any one time outstanding.
Payee may advance funds pursuant to this note from time to time, and from time
to time the undersigned will make repayments on the principal of this note, so
that no more than the lesser of the Line of Credit Commitment or the Loan
Formula shall be outstanding at any one time. Each advance and each payment of
principal hereunder shall be reflected by a notation made by Payee in its
business records. The aggregate unpaid principal amount of advances reflected by
the notations made in Payee's business records shall be rebuttably presumptive
evidence of the principal amount owing under this note, which amount the
undersigned unconditionally promises to pay to the order of Payee under the
terms hereof.
Maker and any and all sureties, guarantors and endorsers of this note and
all other parties now or hereafter liable hereon, severally waive, to the extent
permitted by applicable law, grace, demand, presentment for payment, protest,
notice of any kind (including, but not limited to, notice of dishonor, notice of
protest, notice of intention to accelerate and notice of acceleration) and
diligence in collecting and bringing suit against any party hereto, and agree
(i) to all extensions and partial payments, with or without notice, before or
after maturity, (ii) to any substitution, exchange or release of any security
now or hereafter given for this note, (iii) to the release of any party
primarily or secondarily liable hereon, and (iv) that it will not be necessary
for Payee, in order to enforce payment of this note, to first institute or
exhaust Payee's remedies against Maker or any other party liable therefor or
against any security for this note.
In the event of default hereunder or under any of the instruments securing
payment hereof and this note is placed in the hands of an attorney for
collection (whether or not suit is filed), or if this note is collected by suit
or legal proceedings or through bankruptcy proceedings, Maker agrees to pay all
reasonable attorneys' fees and all expenses of collection and costs of court.
It is the intention of the parties hereto to comply with applicable usury
laws (now or hereafter enacted); accordingly, notwithstanding any provision to
the contrary in this note, or in any of the documents securing payment hereof or
otherwise relating hereto, in no event shall this note or such documents require
the payment or permit the payment, taking, reserving, charging, or receipt of
interest in excess of the maximum amount permitted by such laws. If any such
excess of interest is contracted for, charged, taken, reserved or received under
this note or under the terms of any of the documents securing payment hereof or
otherwise relating hereto, or in the event the maturity of the indebt edness
evidenced by this note is accelerated in whole or in part, or in the event that
all or part of the principal of or interest on this note shall be prepaid, so
that under any of such circumstances or any other circumstance the amount of
interest contracted
Page 3 of 5 Pages
for, charged, taken, reserved or received under this note or under any of the
instruments securing payment hereof or otherwise relating hereto, on the amount
of principal actually outstanding from time to time under this note shall exceed
the maximum amount of interest permitted by applicable usury laws, then in any
such event (i) the provisions of this paragraph shall govern and control, (ii)
any such excess which may have been collected at final maturity of said
indebtedness shall be applied as a credit against the then unpaid principal
amount hereof and the remainder, if any, shall be refunded to Maker, (iii) with
respect to subparagraph (ii), upon such final maturity, the effective rate of
interest shall be automatically reduced to the maximum lawful rate allowed under
applicable usury laws as now or hereafter construed by the courts having
jurisdiction thereof, and (iv) any such excess which may have been charged but
not paid, taken, reserved or received shall be null and void, and cancelled ab
initio to the extent of such excess. Without limiting the foregoing, all
calculations of the rate of interest contracted for, charged, taken, reserved or
received under this note or under such other documents which are made for the
purpose of determining whether such rate exceeds the maximum lawful rate, shall
be made, to the extent permitted by law, by amortizing, prorating, allocating
and spreading in equal parts during the period of the full stated term of the
loan evidenced hereby, all interest at any time contracted for, charged, taken,
reserved or received from Maker or otherwise by Payee in connection with such
indebtedness.
Except to the extent required by federal law, this note shall be governed
by and construed under the laws of the State of Texas.
Any check, draft, money order or other instrument given in payment of all
or any portion hereof may be accepted by Payee and handled in collection in the
customary manner, but the same shall not constitute payment hereunder or
diminish any rights of Payee except to the extent that actual cash proceeds of
such instrument are unconditionally received by Payee.
Maker and Payee agree that Tex. Rev. Civ. Stat. Xxx art. 0000 Xx. 15 (which
regulates certain revolving loan accounts and revolving tri-party accounts)
shall not apply to any revolving loan accounts created under this note or
maintained in connection therewith.
To the extent that the interest rate laws of the State of Texas are
applicable to this note, the applicable interest rate ceiling is the indicated
(weekly) ceiling determined in accordance with Article 5069-1.04(a)(1) of the
Texas Revised Civil Statutes, as amended, and, to the extent that this note is
deemed an open end account as such term is defined in Article 5069-1.01(f) of
the Texas Revised Civil Statutes, as amended, the Payee retains the right to
modify the interest rate in accordance with applicable law.
Page 4 of 5 Pages
Maker represents and warrants to Payee and to all other owners and holders
of any indebtedness evidenced hereby that all loans evidenced by this note are
for business, commercial, investment or other similar purpose and not primarily
for personal, family, household or agricultural use, as such terms are used or
defined in Texas Revised Civil Statutes, Article 5069-1.04, Texas Credit Code
and Regulation Z promulgated by the Board of Governors of the Federal Reserve
System and under Titles I and V of the Consumer Credit Protection Act.
This note is given in rearrangement, modification, and increase of, but not
in novation or discharge of, that certain promissory note dated February 28,
1994, executed by Maker and payable to the order of Payee in the original
principal amount of $1,900,000, which note was given in partial renewal,
rearrangement, decrease and extension of, but not in novation or discharge of,
that certain promissory note (collectively, the "Prior Notes") dated December
16, 1992, executed by Maker and payable to the order of Payee, in the original
principal amount of $2,000,000. Any and all liens and security interests
securing payment of the Prior Notes are hereby ratified, confirmed, renewed,
extended, rearranged and carried forward to secure payment of this note.
This note is secured and guaranteed as provided in the Loan Agreement and
is entitled to all of the benefits of the Loan Agreement.
VISUAL NUMERICS, INC.
By_______________________________________
Name:
Title:
Page 5 of 5 Pages
