EXHIBIT 10.45
SECOND AMENDMENT TO SECURITY AGREEMENT-PLEDGE
---------------------------------------------
This is the Second Amendment to a Security Agreement-Pledge (as amended by
a First Amendment to Security Agreement-Pledge dated as of February 28, 1994,
and as it may be amended from time to time, the "Pledge Agreement") entered into
as of the 31st day of July, 1996, by and between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, a resident
of Racine, Racine County, Wisconsin (the "Pledgor") and ▇▇▇▇▇ FARGO BANK
(TEXAS), NATIONAL ASSOCIATION (formerly known as 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 Fifth Amendment dated
July 31st, 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
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 is hereby amended by deleting
subsection (f) of Section 3 thereof in its entirety and by substituting the
following subsection (f) in lieu thereof:
"(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 $1,500,000 at all times. It is understood and agreed that
$1,500,000 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
$1,500,000 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."
Section 3. Representations. Pledgor represents and warrants that all of
---------------
the representations and warranties 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.
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.
-2-
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 extent
applicable, by federal law.
Section 9. 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 10. 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.
Section 11. 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.
-3-
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the 31st day of July, 1996.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
- PLEDGOR -
▇▇▇▇▇ FARGO BANK (TEXAS), NATIONAL
ASSOCIATION (formerly known as First
Interstate Bank of Texas, N.A.)
By_________________________________
Name:
Title:
- PLEDGEE -
THE STATE OF WISCONSIN (S)
(S)
COUNTY OF RACINE (S)
The foregoing was acknowledged before me on the 31st day of July 1996, by
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
_________________________________
Notary Public in and for
The State of Wisconsin
-4-
THE STATE OF TEXAS (S)
(S)
COUNTY OF ▇▇▇▇▇▇ (S)
The foregoing was acknowledged before me on the ____ day of July, 1996, by
_____________________________________________, ________________________________
of ▇▇▇▇▇ 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
-5-