EXHIBIT 10.37
-------------
FIRST AMENDMENT TO SECURITY AGREEMENT-PLEDGE
--------------------------------------------
This is the First Amendment to a Security Agreement-Pledge (as it may be
amended from time to time, the "Pledge Agreement") entered into as of the 28th
day of February, 1994, by and between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, a resident of Racine,
Racine County, Wisconsin (the "Pledgor") and FIRST INTERSTATE BANK OF TEXAS,
N.A. (together with its successors and assigns, the "Pledgee"). This Amendment
is issued in connection with and pursuant to that certain First Amendment dated
February 28, 1994 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"), Visual Numerics, Inc. of
Colorado, a California corporation formerly known as "IMSL Acquisition Corp.,
Inc.," and the Pledgee. All capitalized terms not otherwise defined in this
Amendment shall have the meanings provided in the Credit Agreement.
NOW THEREFORE, in consideration of $10, the mutual premises contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the undersigned, intending to be legally bound,
agree as follows:
Section 1. Affirmation of Security Interest and Ratification of Prior
----------------------------------------------------------
Liens. Pledgor hereby ratifies, confirms, renews and extends the liens and
-----
security interests created by the Pledge Agreement and acknowledges, confirms
and agrees that any and all liens and security interests created thereby
continue in full force and effect and that the Collateral described in the
Pledge Agreement is unimpaired by the above-described amendment.
Section 2. Amendments. The Pledge Agreement is amended hereby as follows:
----------
(a) The Pledge Agreement hereby is amended by deleting the last
sentence of Section 1 thereof.
(b) The Pledge Agreement hereby is further amended by deleting Section
2 thereof in its entirety and by substituting the following in lieu thereof:
"2. Obligations. The pledge and security interest granted hereby is
-----------
to secure the payment and performance of Pledgor's obligations under that
certain Restated and Amended Limited Guaranty Agreement executed as of even
date herewith, by Pledgor in favor of Pledgee (herein called the "Guaranty
Agreement"), 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 absolute or contingent, and all
renewals, extensions, increases, and rearrangements 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").
(c) The Pledge Agreement is hereby further amended by adding the
following to Section 3 as new subsections (f) and (g) thereof, and renumbering
existing subsection (f) of Section 3 as subsection (h) thereof, as follows:
"(f) Pledgor agrees to maintain Collateral subject to this Agreement
and pledged to the Pledgee consisting of certificated securities acceptable
to the Pledgee having a market value, combined with the Collateral pledged
by ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ to the Pledgee, of at least $1,000,000 at all times.
It is understood and agreed that $1,000,000 is a "floor" and not a ceiling
and that Pledgor shall be in default hereunder if the market value of the
Collateral is less than $1,000,000 and Pledgor fails to deliver additional
Pledged Securities or other Collateral acceptable to Pledgee within fifteen
(15) calendar days after demand therefor, but under no circumstances shall
Pledgee be required to release its liens on and security interests in any
Collateral prior to payment in full of all Guaranteed Obligations.
(g) Contemporaneously herewith Pledgor agrees to send written
instructions to the stock transfer agent for each of the certificated
securities pledged hereunder to change Pledgor's address to:
P. O. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ 75320-0013
Account No. 2400015281
Attn: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Without the prior written consent of Pledgee having been first obtained,
Pledgor shall not instruct or cause such transfer agents thereafter to
change Pledgor's address."
-2-
(d) The Pledge Agreement hereby is further amended by adding the
following to Section 4 as new subsection (a) thereof, and renumbering existing
subsections (a) and (b) thereof as (b) and (c) thereof, respectively, as
follows:
"(a) At any time, before or after the occurrence of an Event of
Default, Pledgee may cause any or all certificates representing the
Collateral to be registered in the name of Pledgee or Pledgee's nominee."
Section 3. Representations. Pledgor represents and warrants that all of
---------------
the representations and warranties attached contained in the Pledge 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 Pledgee has been notified in writing
prior to the date of this Amendment.
Section 4. Continued Force and Effect. Pledgor ratifies and confirms
--------------------------
that, except as specifically amended herein, all of the terms and conditions of
the Pledge Agreement and all documents executed in connection therewith or
contemplated thereby are and remain in full force and effect in accordance with
their respective terms and the Collateral is unimpaired by this Amendment. All
of the terms used herein have the same meanings as set out in the Pledge
Agreement, unless amended hereby or unless the context clearly requires
otherwise. References in the Pledge Agreement to the "Agreement," the "Pledge
Agreement," "hereof," "herein" and words of similar import shall be deemed to be
references to the Pledge Agreement as amended through the date hereof.
Section 5. Severability. In the event any one or more provisions
------------
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 6. Expenses. Pledgor agrees to pay all out-of-pocket costs and
---------
expenses (including reasonable fees and expenses of legal counsel) of Pledgee in
connection with the operation, administration and enforcement of this Amendment.
-3-
Section 7. No Waiver. Pledgor agrees that no Event of Default and no
---------
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.
Section 8. Governing Law. This Amendment shall be governed by and
-------------
construed in accordance with the laws of the State of Texas and, to the extend
applicable, by federal law.
Section 9. Waiver. As additional consideration to the execution,
------
delivery, and performance of this Amendment by the parties hereto, the Pledgor
warrants and represents to Pledgee that no facts, events, statuses or conditions
exist or have existed which, either now or with the passage of time or giving of
notice, or both, constitute or will constitute a basis for any claim or cause of
action against Pledgee or any defense to (a) the payment of any obligations and
indebtedness under the Term Note, the original Revolving Credit Note and/or the
Credit Agreement or (b) the performance by any Person of its respective
obligations under the Guaranties and/or the Pledge Agreements, and in the event
any such facts, events, statuses or conditions exist or have existed, whether
know or unknown, the Pledgor unconditionally and irrevocably waives any and all
claims and causes of action against Pledgee and any defenses to its payment and
performance obligations in respect to the Term Note, the original Revolving
Credit Note, the Credit Agreement, the Guaranties or the Pledge Agreement.
Notwithstanding any provision of this Amendment or the Pledge Agreement, this
Section shall remain in full force and effect and shall survive the delivery of
the New Revolving Credit Note and this Amendment, and any and all amendments,
modifications, or restatements thereof.
Section 10. Counterparts. This Amendment may be executed in any number of
------------
counterparts and all such counterparts taken together shall be deemed to
constitute one and the same instrument.
Section 11. Arbitration Program. The parties agree to be bound by the
-------------------
terms and provisions of the current Arbitration Program of the Pledgee 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.
-4-
Section 12. ENTIRE AGREEMENT. THIS AMENDMENT AND THE PLEDGE AGREEMENT, AS
----------------
AMENDED HEREBY, EMBODY THE ENTIRE AGREEMENT AND UNDERSTANDING OF THE PARTIES
RELATING TO THE SUBJECT MATTER HEREOF AND SUPERSEDE ALL PRIOR OR CONTEMPORANEOUS
AGREEMENTS AND UNDERSTANDINGS OF SUCH PERSONS, VERBAL OR WRITTEN, RELATING TO
THE SUBJECT MATTER HEREOF.
THIS WRITTEN AGREEMENT, THE SECURITY AGREEMENT-PLEDGE, THE FIRST AMENDMENT
TO SECOND RESTATED AND AMENDED LOAN AGREEMENT, THE RESTATED AND AMENDED LIMITED
GUARANTY AGREEMENT, AND THE DOCUMENTS AND INSTRUMENTS EXECUTED IN CONNECTION
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.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the 28th day of February, 1994.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
- PLEDGOR -
FIRST INTERSTATE BANK OF TEXAS, N.A.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name:
Title:
- PLEDGEE -
-5-
THE STATE OF WISCONSIN (S)
(S)
COUNTY OF RACINE (S)
The foregoing was acknowledged before me on the ____ day of February 1994,
by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
_________________________________
Notary Public in and for
The State of Wisconsin
THE STATE OF TEXAS (S)
(S)
COUNTY OF ▇▇▇▇▇▇ (S)
The foregoing was acknowledged before me on the ____ day of February, 1994,
by _____________________________________________,
________________________________ of FIRST INTERSTATE BANK OF TEXAS, N.A., a
national banking association, on behalf of said association.
_________________________________
Notary Public in and for
The State of T E X A S
-6-
SCHEDULE I
----------
Certificate Number of
Corporation No. Shares
---------------------------------------- ----------- ---------
1. International Business Machines C558922 1500
Corporation
2. International Business Machines H732832 500
Corporation
3. International Business Machines M678948 700
Corporation
4. International Business Machines P339471 800
Corporation
5. International Business Machines P525210 700
Corporation