EXHIBIT 10.39
RESTATED AND AMENDED LIMITED GUARANTY AGREEMENT
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THIS RESTATED AND AMENDED LIMITED GUARANTY AGREEMENT (this "Guaranty")
by XXXXXXX X. XXXXXXX, a resident of Racine, Wisconsin ("Guarantor"), is in
favor of FIRST INTERSTATE BANK OF TEXAS, N.A., a national banking association
(such bank, together with its successors and assigns herein called "Bank").
W I T N E S S E T H:
WHEREAS, Bank has extended and will extend credit and financial
accommodations to VISUAL NUMERICS, INC., a Texas corporation ("Borrower"), whose
address is 0000 Xxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx 00000-0000;
NOW, THEREFORE, (i) to induce Bank, at any time from time to time, to
loan monies, with or without security to or for the account of Borrower, (ii) at
the special insistence and request of Bank, and (iii) for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Guarantor hereby agrees as follows:
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 the foregoing sentence, Guarantor's
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liability respecting the Guaranteed Obligations shall in no event exceed an
aggregate amount at any time of One Million and No/100 Dollars ($1,000,000.00).
Guarantor shall also be liable for, and unconditionally promises and agrees to
pay, such additional amounts, if any, as become due under Sections 10 and 25
hereof.
2. Guarantor hereby waives marshalling of assets and liabilities, sale
in inverse order of alienation, notice of acceptance of this Guaranty and of any
indebtedness, obligation or liability to which it applies or may apply, and
waives presentment and demand for payment thereof, notice of dishonor or
nonpayment thereof, notice of intention to accelerate, notice of acceleration,
protest, and notice thereof and all other notices and demands, collection or
instigation of suit or any other action by Bank in collection thereof, including
any notice of default in payment thereof or other notice to, or demand of
payment therefor on, any party. Further, to the extent permitted by applicable
law, Guarantor expressly waives each and every right to which he may be entitled
by virtue of the suretyship law of the State of Texas including without
limitation, any rights he may have pursuant to Rule 31, Texas Rules of Civil
Procedure, Section 17.001, Civil Practice and Remedies Code, and Chapter 34 of
the Texas Business and Commerce Code.
3. Guarantor agrees to pay to Bank its collection costs, including any
additional amount for reasonable attorneys' fees, but in no event to exceed the
maximum amount permitted by law, if the Guaranteed Obligations are not paid by
Guarantor upon demand when due as required herein or if this Guaranty is
enforced by suit or through probate or bankruptcy court or through any judicial
proceedings whatsoever, and should it be necessary to reduce Bank's claim to
judgment, such judgment shall bear interest at the rate of 10% per annum.
4. This limited guaranty 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
rights 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. To the
extent permitted by applicable law, 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
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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. Notwithstanding anything herein to the contrary, Guarantor expressly
waives and releases and shall not be entitled to any "claim" (as such term is
defined in the Bankruptcy Reform Act of 1978, as amended) that Guarantor may
have against Borrower, whether now in existence or hereafter arising out of any
right of reimbursement from Borrower or any right of subrogation to the Bank's
rights against Borrower (including contractual, statutory and equitable rights
of reimbursement, subrogation, contribution and indemnity).
5. Guarantor agrees that suit may be brought against Guarantor and any
other guarantors of the Guaranteed Obligations, jointly and severally, and
against one or more of them, less than all, without impairing the rights of the
Bank, its successors or assigns, against the other guarantors; nor shall Bank be
required to join Borrower or any other guarantor or liable party in a suit
against a particular guarantor; and Bank may release Borrower and/or one or more
guarantor(s) or settle with such persons or entities as Bank deems fit without
releasing or impairing the rights of Bank to demand and collect the balance of
such indebtedness from the other remaining guarantors not so released.
6. Guarantor hereby consents and agrees to each of the following to the
fullest extent permitted by law, and agrees that Guarantor's obligations under
this Guaranty shall not be released, diminished, impaired, reduced or adversely
affected by any of the following, and waives any rights (including without
limitation rights to notice) which Guarantor might otherwise have as a result of
or in connection with any of the following:
(a) Any renewal, extension, modification, decrease, alteration or
rearrangement of all or any part of the Guaranteed Obligations or any instrument
executed in connection therewith, or any contract or understanding between
Borrower and Bank, or any
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other person or entity, pertaining to the Guaranteed Obligations provided such
contract or understanding does not increase the amount of the Guaranteed
Obligations;
(b) Any adjustment, indulgence, forbearance or compromise that might be
granted or given by Bank to Borrower or Guarantor or any person or entity liable
on the Guaranteed Obligation;
(c) The insolvency, bankruptcy arrangement, adjustment, composition,
liquidation, disability, dissolution, death or lack of power of Borrower or
Guarantor or any other person or entity at any time liable for the payment of
all or part of the Guaranteed Obligations; or any dissolution of Borrower, or
any sale, lease or transfer of any or all of the assets of Borrower or
Guarantor, or any changes in the shareholders, partners, or members of Borrower;
or any reorganization of Borrower;
(d) The invalidity, illegality or unenforceability of all or any part
of the Guaranteed Obligations, or any document or agreement executed in
connection with the Guaranteed Obligations, for any reason whatsoever, including
without limitation the fact that the Guaranteed Obligations, or any part
thereof, exceed the amount permitted by law, the act of creating the Guaranteed
Obligations or any part thereof is ultra xxxxx, the officers or representatives
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executing the documents or otherwise creating the Guaranteed Obligations acted
in excess of their authority, the Guaranteed Obligations violate applicable
usury laws, Borrower has valid defenses, claims or offsets (whether at law, in
equity or by agreement) which render the Guaranteed Obligations wholly or
partially uncollectible from Borrower, the creation, performance or repayment of
the Guaranteed Obligations (or the execution, delivery and performance of any
document or instrument representing part of the Guaranteed Obligations, or
executed in connection with the Guaranteed Obligations, or given to secure the
repayment of the Guaranteed Obligations) is illegal, uncollectible, legally
impossible or unenforceable, or the documents or instruments pertaining to the
Guaranteed Obligations have been forged or otherwise are irregular or not
genuine or authentic;
(e) Any full or partial release of the liability of Borrower on the
Guaranteed Obligations or any part thereof, of any co-guarantors, or any other
person or entity now or hereafter liable, whether directly or indirectly,
jointly, severally, or jointly and severally, to pay, perform, guarantee or
assure the payment of the Guaranteed Obligations or any part thereof, it being
recognized, acknowledged and agreed by Guarantor that Guarantor may
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be required to pay the Guaranteed Obligations in full without assistance or
support of any other person or entity, and Guarantor has not been induced to
enter into this Guaranty on the basis of the contemplation, belief,
understanding or agreement that other parties other than Borrower will be liable
to perform the Guaranteed Obligations, or Bank will look to other parties to
perform the Guaranteed Obligations;
(f) The taking or accepting of any other security, collateral or
guaranty, or other assurance of payment, for all or any part of the Guaranteed
Obligations;
(g) Any release, surrender, exchange, subordination, deterioration,
waste, loss or impairment (including without limitation negligent, willful,
unreasonable or unjustifiable impairment) of any collateral, property or
security, at any time existing in connection with, or assuring or securing
payment of, all or any part of the Guaranteed Obligations;
(h) The failure of Bank or any other person or entity to exercise
diligence or reasonable care in the preservation, protection, enforcement, sale
or other handling or treatment of all or any part of such collateral, property
or security;
(i) The fact that any collateral, security, security interest or
lien contemplated or intended to be given, created or granted as security for
the repayment of the Guaranteed Obligations shall not be properly perfected or
created, or shall prove to be unenforceable or subordinate to any other security
interest or lien other than Permitted Lien (as such term is defined in that
certain Second Restated and Amended Loan Agreement dated as of December 16, 1992
among Borrower, IMSL Acquisition Corp., Inc. and the Bank), it being recognized
and agreed by Guarantor that Guarantor that Guarantor is not entering into this
Guaranty in reliance on, or in contemplation of the benefits of, the validity,
enforceability, collectibility or value of any of the collateral for the
Guaranteed Obligations;
(j) Any payment by Borrower to Bank is held to constitute a
preference under the bankruptcy laws, or for any reason Bank is required to
refund such payment or pay such amount to Borrower or someone else;
(k) Any other action taken or omitted to be taken with respect to
the Guaranteed Obligations, or the security and collateral therefor, whether or
not such action or omission prejudices Guarantor or increases the likelihood
that Guarantor
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will be required to pay the Guaranteed Obligations pursuant to the terms hereof;
it being the unambiguous and unequivocal intention of Guarantor that Guarantor
shall be obligated to pay the Guaranteed Obligations when due, notwithstanding
any occurrence, circumstance, event, action, or omission whatsoever, whether
contemplated or uncontemplated, and whether or not otherwise or particularly
described herein, except for the full and final payment and satisfaction of the
Guaranteed Obligations; or
(1) The fact that all or any of the Guaranteed Obligations cease to
exist by operation of law, including without limitation by way of a discharge,
limitation or tolling thereof under applicable bankruptcy laws.
7. In the event any payment by Borrower or any other guarantor of all
or part of the Guaranteed Obligations to Bank is held to be a preference under
the bankruptcy laws, or if for any other reason Bank is required to refund such
payment or pay the amount thereof to any other party, such payment by Borrower
or by such guarantor to Bank shall not constitute a release of Guarantor from
any liability respecting payment of the Guaranteed Obligations, and Guarantor
agrees to pay such amount to Bank upon demand.
8. It is the intention of the parties hereto to comply with applicable
usury laws; accordingly, it is agreed that notwithstanding any provision to the
contrary in the Guaranteed Obligations or in this Guaranty, in any note or other
instrument, or in any documents securing payment thereof or hereof, or otherwise
relating thereto or hereto, no such provision shall require the payment or
permit the collection of interest in excess of the maximum permitted by such
laws. If any excess of interest in such respect is provided for, or shall be
adjudged to be so provided for, then in such event (a) the provisions of this
paragraph shall govern and control, (b) neither Guarantor nor Guarantor's heirs,
successors, or assigns or any other party liable for the payment hereof shall be
obligated to pay the amount of such interest to the extent that it is in excess
of the maximum amount permitted by such laws, (c) any such excess which may have
been collected shall be, at Bank's option, either applied as a credit against
the then unpaid principal amount owing on the Guaranteed Obligations, or
refunded, and (d) the effective rate of interest covered by this Guaranty shall
be automatically subject to reduction to the maximum lawful rate allowed under
applicable usury laws.
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9. This Guaranty is for the benefit of Bank, and for such other persons
and entities as may from time to time become or be the holders of any Guaranteed
Obligations; and this Guaranty shall be transferable and negotiable, with the
same force and effect and to the same extent as the Guaranteed Obligations may
be transferable, it being understood that upon the assignment or transfer by
Bank of any Guaranteed Obligations, the legal holder of such Guaranteed
Obligations shall have all of the rights granted to Bank under this Guaranty.
10. Payment of all amounts hereunder shall be made at the offices of Bank.
All past due indebtedness and obligations of Guarantor hereunder shall bear
interest from the date same become due and payable until same have been
discharged by payment at the lesser of (i) a rate that is five percentage points
above the Prime Rate, as it varies, or (ii) the Maximum Rate, as it varies.
Guarantor's obligations under this Section 10 shall be in addition to
Guarantor's obligations under Section 1 hereof, and shall not be subject to the
limitation on liability set forth in Section 1 hereof.
11. Any notice, request or other communication required or permitted to be
given hereunder shall be given in writing by delivering the same against receipt
therefor or shall be deemed given three (3) days following deposit of same in
the United States Postal Service, postage prepaid, registered or certified mail,
return receipt requested, addressed to the respective parties at the address
shown below or to such other address as the intended recipient may have
specified in a prior written notice received by the sender.
12. This Guaranty shall continue in full force and effect as against
Guarantor for the full amount of the Guaranteed Obligations until payment in
full thereof.
13. This Guaranty shall be binding upon Guarantor, his heirs, devisees,
executors, administrators, personal representatives, successors and assigns and
shall inure to the benefit of, and be enforceable by, Bank and its successors
and assigns and each and every other person who shall from time to time be or
become the owner or holder of any of the Guaranteed Obligations, and each and
every reference herein to "Bank" shall also include each and every successor,
assign, owner or holder. Guarantor shall not assign or delegate his obligations
hereunder without the prior written consent of Bank.
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14. In the event of the death of Guarantor, the obligations of the
deceased Guarantor shall continue in full force and effect as to all Guaranteed
Obligations.
15. The release by Bank of Borrower or one or more other guarantors of
all or part of the Guaranteed Obligations shall not affect Guarantor, who shall
remain fully liable in accordance with the terms of this Guaranty.
16. This Guaranty, whether continuing, specific, and/or limited, shall
be in addition to and cumulative of, and not in substitution, novation or
discharge of, any and all prior or contemporaneous guaranty agreements by other
persons or entities, in favor of Bank.
17. Guarantor represents and warrants that (i) this Guaranty is not
given with actual intent to hinder, delay or defraud any entity to which
Guarantor is or will become, on or after the date hereof, indebted; (ii)
Guarantor has received at least a reasonably equivalent value in exchange for
the giving of this Guaranty; (iii) Guarantor is not insolvent on the date hereof
and will not become insolvent as a result of the giving of this Guaranty; (iv)
Guarantor is not engaged in a business or transaction, nor is about to engage in
a business or transaction, for which any property remaining with Guarantor
constitutes an unreasonably small amount of capital; or (v) Guarantor does not
intend to incur debts that will be beyond Guarantor's ability to pay as such
debts mature.
18. Guarantor shall furnish to Bank all such financial statements and
other information relating to the financial condition, properties and affairs of
Guarantor as Bank may from time to time request.
19. Guarantor will not change his address, name or identity without
notifying Bank of such change in writing at least thirty (30) days prior to the
effective date of such change.
20. No delay on the part of Bank in exercising any right hereunder or
failure to exercise the same shall operate as a waiver of such right, nor shall
any single or partial exercise of any right, power or privilege bar any further
or subsequent exercise of the same or any other right, power or privilege.
21. This Guaranty is entered into solely for the benefit of the parties
hereto their successors and assigns and may not be relied upon or enforced by
any third parties.
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22. This Guaranty shall not be changed orally, but shall be changed only
by agreement in writing signed by the person against whom enforcement of such
change is sought.
23. The masculine and neuter genders used herein shall each include the
masculine, feminine and neuter genders and the singular number used herein shall
include the plural number. The words "person" and "entity" shall include
without limitation individuals, corporations, partnerships, joint ventures,
associations, joint stock companies, trusts, unincorporated organizations, and
governments and any agency or political subdivision thereof.
24. If any provision of this Guaranty is determined to be invalid by any
court of competent jurisdiction or to be in violation of any applicable law,
such invalidity or violation shall have no effect on any other provisions of
this Guaranty (which shall remain valid and binding and in full force and
effect) or in any other jurisdiction, and to that end the provisions of this
Guaranty shall be considered severable.
25. Guarantor will pay all court costs and costs of collecting and
enforcing this Guaranty, including, without limitation, reasonable fees,
expenses and disbursements of counsel employed in connection with any and all
such collection and enforcement efforts; then, and in any such event, the
attorneys' fees arising from such services, including those of any appellate
proceedings, and all expenses, costs, charges and other fees incurred by such
counsel in any way or respect arising in connection with or relating to any of
the events or actions described in this Section together with interest thereon
from the date incurred until paid by Borrower at the lesser of (i) a rate that
is five percentage points above Prime Rate, as it varies, or (ii) the Maximum
Rate, as it varies, which Borrower agrees to pay on demand. Guarantor's
obligation under this Section 25 shall be in addition to Guarantor's obligations
under Section 1 hereof, and shall not be subject to the limitation on
liability set forth in Section 1 hereof.
26. Certain Definitions. As used in this Guaranty, the following terms
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will have the following meanings unless the context requires otherwise:
"Maximum Rate" means the maximum lawful rate of interest permitted
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by applicable laws, now or hereafter enacted, which interest rate shall
change when and as such laws change, to the extent permitted by such laws,
effective on the day such change in such laws becomes
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effective; provided, however, that the term "Maximum Rate" shall mean a
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rate of interest equal to five percentage points above the Prime Rate, as
it varies, if there is no Maximum Rate under applicable usury laws.
"Prime Rate" means the variable per annum rate of interest most
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recently announced by 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 from time to time are
calculated for loans making reference thereto and may not be the lowest of
the Bank's base rates.
27. This Restated and Amended Limited Guaranty Agreement is given in part
in renewal of, and in increase and rearrangement of, but not in novation or
discharge of, the obligations of Guarantor evidenced by that certain Limited
Guaranty Agreement, dated December 16, 1992, executed by Guarantor in favor of
the Bank, said obligations, together with the other obligations evidenced
hereby, henceforth to be evidenced hereby and governed by the terms and
provisions hereof (including, but not limited to, the limitations set forth in
paragraph 1).
28. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY, CONSTRUED AND
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INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, EXCEPT TO THE
EXTENT THAT THE FEDERAL LAWS OF THE UNITED STATES OF AMERICA MAY APPLY.
29. SUBMISSION TO JURISDICTION. WITH RESPECT TO ANY AND ALL DISPUTES
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ARISING HEREUNDER, OR UNDER ANY OF THE OTHER INSTRUMENTS AND DOCUMENTS EXECUTED
IN CONNECTION HEREWITH OR THEREWITH NOT SETTLED, OR SUBJECT TO ARBITRATION,
PURSUANT TO THE ARBITRATION PROGRAM REFERENCED IN PARAGRAPH 31 HEREOF, GUARANTOR
HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(A) SUBMITS FOR HIMSELF AND HIS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS GUARANTY AND ANY DOCUMENT TO WHICH HE IS A PARTY, OR FOR
RECOGNITION AND ENFORCEMENT OF ANY JUDGEMENT IN RESPECT OF ANY THEREOF, TO THE
NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE OF TEXAS, THE
COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF TEXAS, AND
APPELLATE COURTS FROM ANY THEREOF;
(B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH
COURTS, AND WAIVES ANY OBJECTION THAT HE MAY NOW OR HEREAFTER HAVE TO THE VENUE
OF ANY SUCH ACTION OR PROCEEDING IN ANY
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SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT
COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(C) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY
BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY
SUBSTANTIALLY SIMILAR FORM AND MAIL), POSTAGE PREPAID, TO HIM AT HIS ADDRESS
SPECIFIED BESIDE HIS SIGNATURE;
(D) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE
OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO XXX
IN ANY OTHER JURISDICTION.
30. Security. Payment and performance of Guarantor's obligations under
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this Guaranty are secured as provided in that certain First Amendment dated as
of even date herewith to a Second Restated and Amended Loan Agreement (the
"Credit Agreement") dated December 16, 1992 by and among Borrower, the Bank, and
others. This Guaranty is entitled to all of the benefits of the Credit Agreement
and the documents and instruments executed in connection therewith.
31. Arbitration Program. The parties agree to be bound by the terms
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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.
32. NO ORAL AGREEMENTS. THIS WRITTEN AGREEMENT, THE FIRST AMENDMENT
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TO SECOND RESTATED AND AMENDED LOAN AGREEMENT, AND THE SECURITY AGREEMENT-PLEDGE
EXECUTED BY GUARANTOR, AS AMENDED, 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.
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THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
EXECUTED this 26th day of February, 1994.
/s/ Xxxxxxx X. Xxxxxxx 0000 Xxxxxxxxxx Xxxxx
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XXXXXXX X. XXXXXXX, Guarantor
###-##-#### Racine, Racine County,
--------------------------------- Xxxxxxxxx 00000
Tax I.D. No. ---------------------------------
City, County, State, Zip Code
J 525-1592-9413-08 Wisconsin
---------------------------------
Driver's Lic. No/State
THE STATE OF WISCONSIN (S)
(S)
COUNTY OF RACINE (S)
The foregoing was acknowledged before me on the 26th day of
February, 1994, by Xxxxxxx X. Xxxxxxx.
/s/ Xxxxxxx Xxxxxxxxx
---------------------------------
Notary Public in and for
The State of Wisconsin
[SEAL]
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ADDENDUM 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: 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 $1,000,000 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
---------------------------------- February 26, 0000
XXXXXXX X. XXXXXXX, Xxxxxxxxx --
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