Second Modification Agreement between Intervoice, Inc. and Beal Bank, S.S.B. (February 27, 2003)

Summary

This agreement modifies the terms of a $14 million loan from Beal Bank to Intervoice, Inc., secured by real property. Intervoice agrees to make a $2 million principal prepayment, reducing the loan balance to $10.5 million, and to certain changes in the loan's net worth covenant. Intervoice also releases Beal Bank from any claims related to the loan up to the date of this agreement. The agreement requires Intervoice to provide additional documentation and pay certain costs, ensuring the lender's security interest remains in effect.

EX-10.26 3 d06316exv10w26.txt SECOND MODIFICATION AGREEMENT EXHIBIT 10.26 SECOND MODIFICATION AGREEMENT THIS SECOND MODIFICATION AGREEMENT (the "Agreement") is made and entered into this 27th day of February, 2003, by and between INTERVOICE, INC., a Texas corporation, formerly known as InterVoice-Brite, Inc. ("Grantor"), and BEAL BANK, S.S.B., a savings bank organized under the laws of the State of Texas ("Lender"). WITNESSETH: A. Lender has heretofore made a loan (the "Loan") to Grantor, which Loan is evidenced by that certain Promissory Note (the "Note"), dated May 29, 2002, in the stated principal amount of $14,000,000.00, executed and delivered by Grantor and payable to the order of Lender. B. The Loan and the Note are secured by, among other things, that certain Deed of Trust, Security Agreement and Assignment of Leases and Rents (as previously modified, the "Deed of Trust"), dated as of May 29, 2002, executed and delivered by Grantor to William T. Saurenmann, Trustee, for the benefit of Lender, which encumbers, among other things, the real property described on Exhibit "A" attached hereto (the "Property"), and which has been recorded in Volume 5180, beginning at Page 2240 of the Real Property Records of Collin County, Texas. C. Grantor has requested that Lender agree to modify certain provisions of the Deed of Trust, and in consideration therefor, grantor has agreed to make a principal prepayment on the Loan in the amount of $2,000,000.00 (the "Prepayment"). Lender has agreed to so modify certain provisions relating to the Loan pursuant to this Agreement. NOW, THEREFORE, for and in consideration of the premises, the mutual covenants and agreements herein contained, the payment and delivery by Grantor to Lender of the Prepayment, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and confessed by each of the parties hereto, Grantor and Lender modify the Loan Documents, as such term is defined in the Deed of Trust, as follows: 1. Paragraph 6.13 of the Deed of Trust is modified to be and read as follows: 6.13 Decline in Net Worth. If as of the end any fiscal quarter of Grantor ending on or after August 31, 2004, Grantor's net worth, determined in the same manner as Grantor's Net Worth as set forth in Grantor's financial statements heretofore furnished to Beneficiary prior to the closing of the Loan, is less than $5,000,000.00. 2. Concurrently with its execution hereof, and in consideration of Lender's agreement to modify the Deed of Trust as provided above, Grantor is paying to Lender the principal Prepayment on the Loan and the Note in the amount of $2,000,000.00. As a result thereof, after application of such principal Prepayment, the unpaid principal balance of the Loan and the Note is $10,500,000.00. 3. As a material inducement to Lender to enter into this Agreement to modify the Loan and the Loan Documents, Grantor, on behalf of itself and it successors, assigns, legal representatives and constituents (whether or not a party hereto)(collectively and individually, "Obligors, et al."), hereby fully, finally and completely RELEASES and FOREVER DISCHARGES Lender and its successors, assigns, affiliates, subsidiaries, parents, officers, shareholders, directors, employees, attorneys and agents, past, present and future, and their respective heirs, successors and assigns (collectively and individually, Lender, et al.") of and 1 from any and all claims, controversies, disputes, liabilities, obligations, demands, damages, debts, liens, actions and causes of action of any and every nature whatsoever relating to the Loan, and WAIVES and RELEASES any defense, right of counterclaim, right of set-off or deduction to the payment of the Loan and the other indebtedness evidenced by the Loan Documents, as modified hereby, which Obligors, et al. now have or may claim to have against Lender, et al. arising out of, connecting with or relating to any and all acts, omissions or events occurring prior to the execution of this Agreement. 4. As an additional material inducement to Lender to enter into this Agreement to modify the Loan and the Loan Documents, Grantor hereby represents and warrants to Lender that: (a) the Loan Documents, as modified hereby, are in full force and effect and are not in default and Grantor has no defense, counterclaim or offset to the payment and performance of any of its obligations in regard to the Loan or any of the Loan Documents, as modified hereby; (b) the representations and warranties of Grantor set forth in the Loan Documents, as modified hereby, are true and correct in all material respects as of the date hereof and are hereby reaffirmed as if such representations and warranties had been made on the date hereof and shall continue in full force and effect; and (c) this Agreement constitutes the legal, valid and binding obligation of Grantor, enforceable against Grantor in accordance with the terms hereof. The representations and warranties of Grantor contained in this Agreement shall survive the consummation of the transactions contemplated by this Agreement. 5. Promptly following the execution and delivery hereof, Grantor shall cause to be issued to Lender a P9b3 endorsement to the Mortgagee Policy of Title Insurance (the "Policy"), issued to Lender in regard to the Loan, in form and substance satisfactory to Lender and its counsel which shall, without limitation, insure that the Deed of Trust, as modified hereby, continues to constitute a valid first priority lien on the Property subject only to the Permitted Encumbrances, as defined in the Deed of Trust. On demand, Grantor shall pay all closing costs and fees and expenses incurred by Lender in connection with this Agreement and the transactions contemplated hereby, including, without limitation, all premiums and other costs and expenses relating to the endorsement of the Policy and Lender's reasonable attorneys' fees and expenses. In addition, concurrently with its execution hereof, Grantor is paying to Lender the sum of $4,000.00 to reimburse Lender for the cost to be incurred by Lender in obtaining a current appraisal of the Property. Grantor agrees to cooperate fully with Lender and the appraiser selected by Lender in effecting such a current appraisal of the Property. 6. In addition to the documents, instruments and acts described in this Agreement and which are to be executed and/or delivered and/or taken pursuant to the Agreement, Grantor agrees to execute and deliver from time to time upon request by Lender such other documents and instruments, and take such other action, as Lender may request or require to more fully and completely evidence and carry out the transactions contemplated by this Agreement and evidence and confirm the authorization of Grantor to enter into this Agreement and make the Prepayment. Without limitation of the foregoing, concurrently with its execution hereof, Grantor is providing to Lender a certified resolution of the Board of Directors of Grantor authorizing the entering into of this Agreement, the making of the Prepayment and the performance of Grantor's obligations under this Agreement. 7. Grantor hereby confirms, ratifies, renews and extends the debts, duties, obligations, liabilities, rights, titles, security interests, liens, powers and privileges created or arising by virtue of the Deed of Trust and the other Loan Documents, as modified hereby, until all of the Indebtedness and Obligations, as 2 each such term is defined in the Deed of Trust, have been paid and performed in full. Grantor confirms Lender has not released, forgiven, discharged, impaired, waived or relinquished, and Lender does not hereby release, forgive, discharge, impair, waive or relinquish any rights, titles, interests, liens, security interests, collateral, parties, remedies or any other matter with respect to the Loan, the Deed of Trust or any of the other Loan Documents, but rather Lender is expressly retaining and reserving the same to their fullest extent. 8. Except as expressly provided herein, all the terms, provisions, debts, duties, obligations, liabilities, representations, warranties, rights, titles, security interests, liens, powers and privileges existing by virtue of the Loan Documents shall be and continue in full force and effect and are hereby acknowledged by Grantor to be legal, valid, binding and enforceable in accordance with their terms. 9. This agreement shall be governed by and construed and enforced in accordance with the laws of the State of Texas and the laws of the United States applicable to transactions within Texas. 10. This Agreement shall be binding upon the parties hereto and their respective heirs, personal representatives, successors and assigns. Nothing contained herein shall act to amend or modify any of the provisions of the Loan Documents which restrict or prohibit assignment or transfer. 11. Neither this Agreement nor any provision of any of the other Loan Documents may be waived, modified or amended, except by an instrument in writing signed by the party against which the enforcement of such waiver, modification or amendment is sought, and then only to the extent set forth in such instrument. EXECUTED as of the day and year first above written. GRANTOR: INTERVOICE, INC., a Texas corporation f/k/a InterVoice-Brite, Inc. By: /s/ Rob-Roy J. Graham ---------------------- Name: Rob-Roy J. Graham Title: Chief Financial Officer LENDER: BEAL BANK, S.S.B. a savings bank organized under the laws of the State of Texas By: /s/ William T. Saurenmann ------------------------- Name: William T. Saurenmann Title: Senior Vice President 3