EXHIBIT 10.44
FIRST AMENDMENT TO RESTATED AND
AMENDED LIMITED GUARANTY AGREEMENT
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THIS FIRST AMENDMENT dated as of July 31, 1996 (this "Amendment") to
Restated and Amended Limited Guaranty Agreement dated February 26, 1994 (the
"Guaranty") by XXXXXXX X. XXXXXXX, a resident of Racine, Wisconsin
("Guarantor"), is in favor of XXXXX FARGO BANK (TEXAS), NATIONAL ASSOCIATION
(formerly known as First Interstate Bank of Texas, N.A.), a national banking
association (such bank, together with its successors and assigns herein called
"Bank"). This Amendment is issued in connection with and pursuant to that
certain Fifth Amendment dated July 31, 1996 to a Second Restated and Amended
Loan Agreement (as it may be amended, modified or restated from time to time,
the "Credit Agreement") dated as of December 16, 1992, by and among Visual
Numerics, Inc., a Texas corporation formerly known as "IMSL, Inc." (the
"Borrower"), and the Pledgee. All capitalized terms not otherwise defined in
this Amendment shall have the meaning provided in the Credit Agreement.
NOW, THEREFORE, in consideration of $10, the mutual premises contained
herein and other good and valuable considerations, the receipt and sufficiency
of which are hereby acknowledged, the undersigned, intending to be legally
bound, agree as follows:
Section 1. Amendments. The Guaranty is amended hereby as follows:
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(a) The Guaranty hereby is amended by deleting Section 1 thereof in
its entirety and substituting the following Section 1 in lieu thereof:
"1. Guarantor hereby absolutely and unconditionally guarantees
the prompt and punctual payment and performance when due (whether at its
maturity, by lapse of time, by acceleration or otherwise) of the Guaranteed
Obligations (hereinafter defined).
Continuing Guaranty. This a continuing guaranty applicable to and
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guaranteeing any and all indebtedness, obligations, and liabilities of
every kind and character of Borrower to Bank, whether now existing or
hereafter arising, whether due and owing or to become due and owing,
howsoever created or arising or evidenced, whether joint or several, or
joint and several, whether absolute or contingent, and all renewals,
extensions, increases, and arrangements of such indebtedness, obligations
or liabilities, including any and all amounts owing or which may hereafter
become owing thereon or in connection therewith, including, without
limitation, any and all amounts of principal, interest, attorneys' fees,
costs of collection and other amounts owing thereunder (hereinafter called
the "Guaranteed Obligations").
Limitation. Notwithstanding any other provision of this Guaranty,
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Guarantor's liability respecting the Guaranteed Obligations shall in no
event exceed an aggregate principal amount at any time of One Million Five
Hundred Thousand and No/100 Dollars ($1,500,000.00). Guarantor shall also
be liable for, and unconditionally promises to pay, such additional
amounts, if any, as become due under Sections 10 and 25 hereof."
(b) The Guaranty hereby is further amended by deleting Section 4
thereof in its entirety and substituting the following Section 4 in lieu
thereof:
"4. This is an absolute and unconditional guaranty of payment
and not of collection, by Guarantor, jointly and severally with any
guarantor of the Guaranteed Obligations in each and every particular, and
Guarantor waives any right to require that (a) any action be brought
against Borrower or any other person or entity, (b) Bank enforce its rights
against any other guarantor of the Guaranteed Obligations, (c) Bank proceed
or enforce its fights against or exhaust any security given to secure the
Guaranteed Obligations, (d) Bank have Borrower joined with Guarantor or any
other guarantor of all or part of the Guaranteed Obligations in any suit
arising out of this Guaranty and/or the Guaranteed Obligations, or (e) Bank
pursue any other remedy in Bank's powers whatsoever. Bank shall not be
required to mitigate damages or take any action to reduce, collect or
enforce the Guaranteed Obligations. Guarantor waives any defense arising by
reason of any disability, lack of corporate authority or power, or other
defense of Borrower or any other guarantor of the Guaranteed Obligations,
and shall remain liable hereon regardless of whether Borrower or any other
guarantor be found not liable thereon for any reason. Should Bank seek to
enforce the obligations of Guarantor by action in any court, Guarantor
waives any necessity, substantive or procedural, that a judgment previously
be rendered against Borrower or any other person or entity or that Borrower
or any other person or entity be joined in such cause or that a separate
action be brought against Borrower or any other person or entity. The
obligations of Guarantor hereunder are several from those of Borrower or
any other person or entity (including without limitation any other surety
for Borrower), and are primary obligations concerning which Guarantor is
the principal obligor. All waivers herein contained shall be without
prejudice to Bank at its option to proceed against Borrower or any other
person or entity, whether by separate action or by joinder. All
indebtedness of Borrower to Guarantor, whether now existing or hereafter
arising (including without limitation indebtedness resulting from this
Guaranty) is hereby assigned to Bank to the extent of the amount of this
Guaranty as security for the payment of the Guaranteed Obligations. To the
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extent such indebtedness of Borrower to Guarantor (whether now existing or
hereafter arising) exceeds the amount of this Guaranty, such indebtedness
is hereby subordinated to the Guaranteed Obligations. Notwithstanding any
payment or payments made by Guarantor hereunder or any setoff or
application of funds of Guarantor by Bank, Guarantor shall not be entitled
to be subrogated to any of the rights of Bank against Borrower or any
collateral security or rights of offset held by Bank for the payment of the
Guaranteed Obligations."
Section 2. Representations. Guarantor represents and warrants that all of
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the representations and warranties contained in the Guaranty 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 Bank has been notified in writing
prior to the date of this Amendment.
Section 3. Continued Force and Effect. Guarantor ratifies and confirms
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that, except as specifically amended herein, all of the terms and conditions of
the Guaranty and all documents executed in connection therewith or contemplated
thereby are and remain in full force and effect in accordance with their
respective terms. All of the terms used herein have the same meanings as set out
in the Guaranty, unless amended hereby or unless the context clearly requires
otherwise. References in the Guaranty to the "Agreement," the "Guaranty,"
"hereof," "herein" and words of similar import shall be deemed to be references
to the Guaranty as amended through the date hereof.
Section 4. Severability. In the event any one or more provisions
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contained in the Guaranty 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 5. Expenses. Guarantor agrees to pay all out-of-pocket costs and
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expenses (including reasonable fees and expenses of legal counsel) of Bank in
connection with the operation, administration and enforcement of this Amendment.
Section 6. No Waiver. Guarantor agrees that no Event of Default and no
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Default has been waived or remedied by the execution of this Amendment, and any
such Default or Event of Default heretofore arising and currently continuing
shall continue after the execution and delivery hereof.
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Section 7. Governing Law. This Amendment shall be governed by and
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construed in accordance with the laws of the State of Texas and, to the extent
applicable, by federal law.
Section 8. Counterparts. This Amendment may be executed in any number of
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counterparts and all such counterparts taken together shall be deemed to
constitute one and the same instrument.
Section 9. 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, 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 10. NO ORAL AGREEMENTS. THIS WRITTEN AGREEMENT, THE GUARANTY, THE
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FIFTH AMENDMENT TO SECOND RESTATED AND AMENDED LOAN AGREEMENT, AND THE DOCUMENTS
AND INSTRUMENTS EXECUTED IN CONNECTION HEREWITH AND THEREWITH, 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.
EXECUTED this 31st day of July 1996.
BY /s/ Xxxxxxx X. Xxxxxxx
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XXXXXXX X. XXXXXXX
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XXXXX FARGO BANK (TEXAS), NATIONAL ASSOCIATION
(formerly known as First Interstate Bank of Texas, N.A.)
By:
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Name:
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Title:
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- BANK-
THE STATE OF WISCONSIN (S)
(S)
COUNTY OF RACINE (S)
The foregoing was acknowledged before me on the 31st day of July, 1996, by
Xxxxxxx X. Xxxxxxx.
Notary Public in and for
The State of Wisconsin
THE STATE OF TEXAS (S)
(S)
COUNTY OF XXXXXX (S)
The foregoing was acknowledged before me on the _____________________ day
of July, 1996, by _____________________________________________________________
__________________________________________________________ of XXXXX FARGO
BANK (TEXAS), NATIONAL ASSOCIATION, a national banking association, on behalf of
said association.
Notary Public in and for The State of T E X A S
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ADDENDUM TO FIRST AMENDMENT TO
RESTATED AND AMENDED LIMITED GUARANTY AGREEMENT
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NAME OF GUARANTOR: XXXXXXX X. XXXXXXX
NAME OF BORROWER: VISUAL NUMERICS, INC.
NAME OF BANK: XXXXX FARGO BANK (TEXAS), NATIONAL
ASSOCIATION (formerly known as First Interstate
Bank of Texas, N.A.)
NOTICE TO GUARANTOR
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YOU ARE BEING ASKED TO GUARANTEE THIS DEBT. THINK CAREFULLY BEFORE
YOU DO. THIS IS A CONTINUING GUARANTY, YOU ARE BEING ASKED TO GUARANTEE ALL DEBT
(WHETHER NOW OR IN THE FUTURE) OF THE BORROWER ENTERED INTO WITH THIS BANK
SUBJECT TO THE MONETARY LIMITATIONS SET OUT THEREIN.
IF THE BORROWER DOESN'T PAY THE DEBT, YOU WILL HAVE TO. BE SURE YOU CAN
AFFORD TO PAY IF YOU HAVE TO, AND THAT YOU WANT TO ACCEPT THIS RESPONSIBILITY.
YOU MAY HAVE TO PAY UP TO $1,500,000, PLUS INTEREST, OF THE DEBT IF THE
BORROWER DOES NOT PAY. YOU MAY ALSO HAVE TO PAY ATTORNEY'S FEES, LATE FEES
OR COLLECTION COSTS, WHICH INCREASE THIS AMOUNT.
THE BANK CAN COLLECT THIS DEBT FROM YOU WITHOUT FIRST TRYING TO COLLECT
FROM THE BORROWER. THE BANK CAN USE THE SAME COLLECTION METHODS AGAINST YOU
THAT CAN BE USED AGAINST THE BORROWER, SUCH AS SUING YOU, ETC. IF THIS DEBT
IS EVER IN DEFAULT, THAT FACT MAY BECOME A PART OF YOUR CREDIT RECORD.
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THIS NOTICE IS NOT THE CONTRACT THAT MAKES YOU LIABLE FOR THE DEBT.
/s/ Xxxxxxx X. Xxxxxxx
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XXXXXXX X. XXXXXXX, Guarantor July 31, 1996
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FIRST INTERSTATE BANK
ARBITRATION PROGRAM
(a) Binding Arbitration. Upon the demand of any party, whether made
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before or after the institution of any judicial proceeding, any Dispute (as
defined below) shall be resolved by binding arbitration in accordance with the
terms of this Arbitration Program. A "Dispute' shall include any action,
dispute, claim, or controversy of any kind, whether in contract or in tort.
statutory or common law, legal or equitable, or otherwise, now existing or
hereafter arising between the parties in any way arising out of, pertaining to
or in connection with (1) any agreement. document or instrument to which this
Arbitration Program is attached or in which it is referred to or any related
agreements, documents, or instruments (the 'Documents"), (2) all past, present,
or future loans, notes, instruments, drafts, credits, accounts, deposit
accounts, safe deposit boxes. safekeeping agreements, guarantees, letters of
credit, goods or services, or other transactions, contracts or agreements of any
kind whatsoever, (3) any past. present or future incidents, omissions. acts.
errors. practices, or occurrences causing injury to either party whereby the
other party or its agents, employees or representatives may be liable, in whole
or in part, or (4) any other aspect of the past, present, or future
relationships of the parties including any agency, independent contractor or
employment relationship but excluding claims for workers' compensation and
unemployment benefits ('Relationship"). Any party to this Arbitration Program
may by summary proceedings bring any action in court to compel arbitration of
any Dispute. Any party who fails or refuses to submit to binding arbitration
following a lawful demand by the opposing party shall bear all costs and
expenses incurred by the opposing party in compelling arbitration of any
Dispute. The parties agree that by engaging in activities with or involving each
other as described above, they are participating in transactions involving
interstate commerce. THE PARTIES UNDERSTAND THAT PURSUANT TO THIS ARBITRATION
PROGRAM, DISPUTES SUBMITTED TO ARBITRATION WILL NOT BE DECIDED THROUGH
LITIGATION IN FEDERAL OR STATE COURTS BEFORE A JUDGE OR JURY.
(b) Governing Rules. All Disputes between the parties submitted to
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arbitration shall be resolved by binding arbitration administered by the
American Arbitration Association (the "AAA") in accordance with the Commercial
Arbitration Rules of the AAA, the Federal Arbitration ACT (Title 9 of the United
States Code) and to the extent the foregoing are inapplicable, unenforceable or
invalid, the laws of the State of Texas. In the event of any inconsistency
between this Arbitration Program and such rules and statutes, this Arbitration
Program shall control. Judgment upon any award rendered hereunder may be entered
in any court having jurisdiction; provided, however. that nothing contained
herein shall be deemed to be a waiver by any party that is a bank of the
protections afforded to it under 12 U.S.C. (S)91 or Texas Banking Code art. 342-
609.
(c) No Waiver; Preservation of Remedies; Multiple Parties. No provision
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of, nor the exercise of any rights under, this Arbitration Program shall limit
the right of any party, during any Dispute, to seek, use, and employ ancillary
or preliminary remedies, judicial or otherwise, for the purposes of realizing
upon, preserving, protecting, foreclosing or proceeding under forcible entry and
detainer for possession of any real or personal property, and any such action
shall not be deemed an election of remedies. Such nights shall include, without
limitation. nights and remedies relating to (1) foreclosing against any real or
personal property collateral or other security. (2) exercising self-help
remedies including setoff rights or (3) obtaining provisional or ancillary
remedies such as injunctive relief, sequestration, attachment. garnishment, or
the appointment of a receiver from a court having jurisdiction. Such rights can
be exercised at any time except to the extent such action is contrary to a final
award or decision in any arbitration proceeding. The institution and maintenance
of an action for judicial relief or pursuit of provisional or ancillary remedies
or exercise of self-help remedies shall not constitute a waiver of the right of
any party, including the plaintiff, to submit the Dispute to arbitration, nor
render inapplicable the compulsory arbitration provisions hereof. In Disputes
involving indebtedness or other monetary obligations, each party agrees that the
other party may proceed against all liable persons, jointly or severally, or
against one or more of them, less than all. without impairing
rights against other liable persons. Nor shall a party be required to join the
principal obligor or any other liable persons, such as sureties or guarantors,
in any proceeding against a particular person. A party may release or settle
with one or more liable persons without releasing or impairing rights to proceed
against any persons not so released.
(d) Arbitrator Powers and Qualifications; Awards. Arbitrators are
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empowered to resolve Disputes by summary rulings. Arbitrators shall resolve all
Disputes in accordance with the applicable substantive law Any arbitrator
selected shall be required to be a practicing attorney licensed to practice law
in the State of Texas and shall be required to be experienced and knowledgeable
in the substantive laws applicable to the subject matter of the Dispute. All
statutes of limitation applicable to any Dispute shall apply to any proceeding
in accordance with this Arbitration Program. With respect to a Dispute in which
the claims or amounts in controversy do not exceed $1.000,000, a single
arbitrator shall be chosen and shall resolve the Dispute by rendering an award
not to exceed $1,000,000, including all damages of any kind whatsoever,
including costs, fees and expenses. A Dispute involving claims or amounts in
controversy exceeding $1,000,000, shall be decided by a majority vote of a panel
of three arbitrators (an "Arbitration Panel"), the determination of any two of
the three arbitrators constituting the determination of the Arbitration Panel,
provided, however, that all three Arbitrators on the Arbitration Panel must
actively participate in all hearings and deliberations. Arbitrators, including
any Arbitration Panel, may grant any remedy or relief deemed just and equitable
and within the scope of this Arbitration Program and may also grant such
ancillary relief as is necessary to make effective any award. Arbitrators shall
be empowered to impose sanctions and to take such other actions as they deem
necessary to the same extent a judge could pursuant to the Federal Rules of
Civil Procedure, the Texas Rules of Civil Procedure and applicable law.
Arbitrators and Arbitration Panels shall be required to make specific, written
findings of fact and conclusions of law. The determination of an Arbitrator or
Arbitration Panel shall be binding on all parties and shall not be subject to
further review or appeal except as otherwise allowed by applicable law.
(e) Miscellaneous. To the maximum extent practicable, the AAA, the
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Arbitrator (or the Arbitration Panel, as appropriate) and the parties shall take
any action necessary to require that an arbitration proceeding hereunder shall
be concluded within 180 days of the filing of the Dispute with the AAA.
Arbitration proceedings hereunder shall be conducted in the State of Texas at a
location selected by the Administrator. With respect to any Dispute, each party
agrees that all discovery activities shall be expressly limited to matters
directly relevant to the Dispute and any Arbitrator, Arbitration Panel and the
AAA shall be required to fully enforce this requirement. This Arbitration
Program constitutes the entire agreement of the parties with respect to its
subject matter and supersedes all prior discussions, arrangements, negotiations,
and other communications on dispute resolution. The provisions of this
Arbitration Program shall survive any termination, amendment, or expiration of
the Documents or the Relationship, unless the parties otherwise expressly agree
in writing, To the extent permitted by applicable law, Arbitrators, including
any Arbitration Panel, shall have the power to award recovery of all costs and
fees (including attorneys' fees, administrative fees, and arbitrators' fees) to
the prevailing party. This Arbitration Program may be amended, changed, or
modified only by the express provisions of a writing which specifically refers
to this Arbitration Program and which is signed by all the parties hereto. If
any term, covenant, condition or provision of this Arbitration Program is found
to be unlawful, invalid or unenforceable, such defect shall not affect the
legality, validity or enforceability of the remaining parts of this Arbitration
Program, and all such remaining parts hereof shall be valid and enforceable and
have full force and effect as if the illegal, invalid or unenforceable part had
not been included. Each party agrees to keep all Disputes subject to arbitration
proceedings strictly confidential, except for disclosures of information
required in the ordinary course of business of the parties or by applicable law
or regulation.
