FIRST AMENDMENT TO PATENT AND TRADEMARK SECURITY AGREEMENT
This Amendment, dated as of September 3, 1999, is made by and between
RSI SYSTEMS, INC., a Minnesota corporation (the "Debtor"), and NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION, a national banking association whose address
and principal place of business is Norwest Center, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (the "Secured Party").
Recitals
The Debtor and the Secured Party have entered into an Amended and
Restated Credit and Security Agreement dated April 16, 1998, as amended by a
First Amendment to Amended and Restated Credit and Security Agreement dated as
of June 22, 1998 and by a Second Amendment to Amended and Restated Credit and
Security Agreement dated as of June 14, 1999 (as amended the "Credit
Agreement").
The Debtor and the Secured Party have also entered into a Patent and
Trademark Security Agreement dated as of June 26, 1997 (the "Patent Agreement").
The Secured Party required the Debtor to execute and deliver the Patent
Agreement to the Secured Party as a condition of the financial accommodations
made by the Secured Party in favor of the Debtor under the Credit Agreement.
Capitalized terms used in these recitals have the meanings given to them in the
Credit Agreement and Patent Agreement, as applicable, unless otherwise
specified.
The Secured Party has requested that the Patent Agreement be amended
to properly reflect the inclusion of the peripheral video conferencing system
technology in Mediapro (the " Mediapro Patent") as a "Patent" arising or
acquired after the date of the Patent Agreement and therefore subject to the
Secured Party's security interest in the Debtor's Patents and Trademarks as
provided under the Patent Agreement "Definitions." The Debtor is willing to
execute this First Amendment to so include the " Mediapro Patent."
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, it is agreed as follows:
1. DEFINED TERMS. Capitalized terms used in this First Amendment which
are used in the Credit Agreement and Patent Agreement, as applicable, shall have
the same meanings as defined therein, unless otherwise defined herein.
2. EXHIBIT A-1 TO PATENT AGREEMENT. Exhibit A-1, attached hereto, is
added as Exhibit A-1 to the Patent Agreement and shall operate to amend and
become a part of Exhibit A to the Patent Agreement and to include the Mediapro
Patent in Exhibit A under the heading "UNITED STATES ISSUED PATENTS" therein.
3. NO OTHER CHANGES. Except as explicitly amended by this First
Amendment, all of the terms and conditions of the Patent Agreement shall remain
in full force and effect and shall apply as set forth therein.
4. CONDITIONS PRECEDENT. This First Amendment shall be effective when
the Secured Party shall have received an executed original hereof.
5. REPRESENTATIONS AND WARRANTIES. The Debtor hereby represents and
warrants to the Secured Party as follows:
(a) The Debtor has all requisite power and authority to execute this
First Amendment and the First Amendment has been duly executed and
delivered by the Debtor and constitutes the legal, valid and binding
obligation of the Debtor enforceable in accordance with its terms.
(b) The execution, delivery and performance by the Debtor of this
First Amendment has been duly authorized by all necessary corporate action
and does not (i) require any authorization, consent or approval by any
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, (ii) violate any provision of any
law, rule or regulation or of any order, writ, injunction or decree
presently in effect, having applicability to the Debtor, or the articles of
incorporation or by-laws of the Debtor, or (iii) result in a breach of or
constitute a default under any indenture or loan or credit agreement or any
other agreement, lease or instrument to which the Debtor is a party or by
which it or its properties may be bound or affected.
(c) All of the representations and warranties contained in the Patent
Agreement under Section 3 "Representations, Warranties and Agreements" are
correct on and as of the date hereof as though made on and as of such date,
except to the extent that such representations and warranties relate solely
to an earlier date.
6. REFERENCES. All references in the Patent Agreement to "this
Agreement" shall be deemed to refer to the Patent Agreement as amended hereby;
and any and all references to the Patent Agreement in the Credit Agreement shall
be deemed to refer to the Patent Agreement as amended hereby.
7. MISCELLANEOUS. This First Amendment may be executed in any number
of counterparts, each of which when so executed and delivered shall be deemed an
original and all of which counterparts, taken together, shall constitute one and
the same instrument.
-2-
IN WITNESS WHEREOF, the parties have executed this First Amendment as
of the date written above.
NORWEST BANK MINNESOTA, RSI SYSTEMS, INC.
NATIONAL ASSOCIATION
By By
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Its Vice President ▇▇▇▇▇▇ ▇. Lies
Its President and Chief Executive Officer
STATE OF MINNESOTA )
)
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this 3rd day of
September, 1999, by ▇▇▇▇▇▇ ▇. Lies, the President and Chief Executive Officer of
RSI Systems, Inc., a Minnesota corporation, on behalf of the corporation.
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Notary Public
STATE OF MINNESOTA )
)
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this 3rd day of
September, 1999, by __________, a Vice President of Norwest Bank Minnesota,
National Association, a national banking association, on behalf of the bank.
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Notary Public
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▇▇▇▇▇▇▇ ▇-▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ISSUED PATENTS
Title Patent Number Issue Date
----- ------------- ----------
Peripheral Audio and 5802281 September 1, 1998
Video Communication
System that interfaces with
a host computer and
determines the formatting
of coded audio/video signals
A-1