EXHIBIT 10.2
CONSENT, WAIVER, AND THIRD AMENDMENT TO CREDIT AGREEMENT
THIS CONSENT, WAIVER, AND THIRD AMENDMENT TO CREDIT AGREEMENT (this
"Amendment"), dated effective as of May 29, 2002 (the "Amendment Date"), is
among INTERVOICE-BRITE, INC. (formerly InterVoice, Inc.; "Parent"), BRITE VOICE
SYSTEMS, INC. (successor by merger to InterVoice Acquisition Subsidiary III,
Inc.; "Borrower"), BANK OF AMERICA, NATIONAL ASSOCIATION (successor by merger to
Bank of America National Trust and Savings Association) in its capacity as
administrative agent ("Agent"), and the Lenders party hereto.
RECITALS:
A. Parent, Borrower, Agent, and the Lenders have entered into that
certain Credit Agreement dated as of June 1, 1999 (as amended, the "Credit
Agreement"). Parent and Borrower have requested that certain provisions of the
Credit Agreement be amended in certain respects.
B. Parent and Borrower have informed Agent and the Lenders of Parent's
proposal to obtain unsecured subordinated financing from a lender or lenders to
be determined by Parent (collectively, the "Junior Lender"). Parent and Borrower
have requested that the Lenders consent to Parent incurring such Funded Debt in
one or more transactions (collectively, the "Junior Financing Transaction").
C. Parent, Borrower, Agent, and certain of the Lenders have entered
into that certain Forbearance Agreement dated as of March 7, 2002 (as amended,
the "Forbearance Agreement") with respect to an Event of Default under Section
12.2 of the Credit Agreement. Parent and Borrower have requested that the
Lenders waive the Event of Default described herein and therein.
D. Subject to satisfaction of the conditions set forth herein, the
undersigned Lenders are willing to (i) amend the Credit Agreement, (ii) consent
to the Junior Financing Transaction, and (iii) waive the Existing Default, each
as specifically provided herein.
NOW, THEREFORE, BE IT RESOLVED, THAT, in consideration of the premises
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE 1
Definitions
Section 1.1 Definitions. Capitalized terms used in this Amendment, to
the extent not otherwise defined herein, shall have the same meanings as in the
Credit Agreement, as amended hereby.
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AMENDMENT TO CREDIT AGREEMENT - Page 1
ARTICLE 2
Consents
Section 2.1 Consent to Junior Financing Transaction. Notwithstanding
anything in the Credit Agreement to the contrary, including Section 11.1 and
Section 11.2 of the Credit Agreement, the Lenders hereby confirm their consent
to the Junior Financing Transaction upon the terms and conditions following:
(a) The aggregate amount of Funded Debt incurred by Parent in
connection with the Junior Financing Transaction shall be in an amount
not less than $10,000,000, but not greater than $20,000,000.
(b) The Junior Financing Transaction shall be entered into on
terms substantially similar to those set forth on Annex A to this
Amendment and as otherwise may be acceptable to the Required Lenders
and pursuant to formal documentation in form and substance reasonably
satisfactory to Agent.
(c) The cash proceeds received by Parent in connection with
the Junior Financing Transaction shall be delivered to Agent on the
closing date of the Junior Financing Transaction and, first, shall be
applied to repay all outstanding principal and interest owing on the
Term Loans, second, shall be applied to repay the outstanding principal
and interest owing on the Revolving Loans (without reducing the
Revolving Commitments), and third, shall be deposited to a deposit
account of Parent and used to support the working capital needs of
Parent and its Subsidiaries.
Section 2.2 Conditional Release of Pledge of Foreign Stock.
Notwithstanding anything in the Credit Agreement to the contrary, if any Foreign
Subsidiary enters into a credit facility with a lending institution to support
such Foreign Subsidiary's operations outside of the U.S. (any such credit
facility to be on terms and pursuant to documentation in form and substance
reasonably satisfactory to Agent), each Lender hereby agrees that Agent is
authorized to release its Liens on the Capital Stock of each Foreign Subsidiary
owned by Parent or any other Subsidiary of Parent.
ARTICLE 3
Waiver
Section 3.1 Waiver of Event of Default. Pursuant to Section 12.2 of the
Credit Agreement, Borrower was required to cause Parent and its Subsidiaries to
maintain a Fixed Charge Coverage Ratio calculated as of February 28, 2002 (the
"Measurement Date"), for the preceding four (4) Fiscal Quarters then ending, of
not less than 1.25 to 1.00. As of the Measurement Date, the Fixed Charge
Coverage Ratio for the preceding four (4) Fiscal Quarters was less than the
required ratio. Borrower's failure to cause Parent and its Subsidiaries to
maintain the Fixed Charge Coverage Ratio as required by the Credit Agreement,
constitutes an Event of Default under Section 13.1(c) of the
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AMENDMENT TO CREDIT AGREEMENT - Page 2
Credit Agreement (the "Existing Default"). Effective as of the Amendment Date,
and subject to the conditions precedent contained herein, the Lenders hereby
waive the Event of Default resulting from the Existing Default.
Section 3.2 Limitation of Waiver. Parent and Borrower hereby agree that
the waiver specifically described in Section 3.1 shall not constitute and shall
not be deemed a waiver of any other Default or Event of Default, whether arising
as a result of further violations of Section 12.2 or otherwise, or a waiver of
any rights or remedies arising as a result of such other Defaults or Events of
Default. The failure of Parent and Borrower to comply with Section 12.2 for any
date, or any period ending on any date, other than as described above shall
constitute an Event of Default.
ARTICLE 4
Amendments
Section 4.1 Amendments to Section 1.1. Effective as of the Amendment
Date, Section 1.1 of the Credit Agreement is hereby amended as follows:
(a) Additional Defined Terms. The following terms are hereby
added (in appropriate alphabetical order) to Section 1.1 of the Credit
Agreement, the definition of which terms shall read in their respective
entireties as follows:
"Account Debtor " means each Person obligated in any
way on or in connection with any Receivable.
"Annualized Last Three Months EBITDA" means the
EBITDA for the three (3) calendar months most recently ended,
multiplied by four.
"Annualized Last Three Months Capital Expenditures"
means the Capital Expenditures for the three (3) calendar
months most recently ended, multiplied by four.
"Annualized Last Three Months Cash Interest and
Scheduled Principal Payments" means the cash interest paid by
the Parent and its Subsidiaries along with any cash principal
payments made for three (3) calendar months most recently
ended, multiplied by four.
"Annualized Last Three Months Cash Taxes" means the
cash taxes paid by the Parent and its Subsidiaries for the
three (3) calendar months most recently ended, multiplied by
four.
"Availability " means, at any time, (a) the lesser of
(i) the aggregate Revolving Commitments or (ii) the Borrowing
Base, minus (b) the Outstanding Revolving Credit.
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AMENDMENT TO CREDIT AGREEMENT - Page 3
"Blocked Account Agreement" means an agreement among
Parent, Borrower, Agent, and a Lender (if applicable) in form
and substance satisfactory to Agent, concerning the collection
of payments which represent the proceeds of Receivables or of
any other Collateral.
"Borrowing Base" means, at any time, an amount equal
to the lesser of (a) the aggregate Revolving Commitments or
(b) the sum of, without duplication, (i) seventy-five percent
(75.0%) of the Net Amount of Eligible Receivables, plus (ii)
forty percent (40.0%) of Eligible Inventory, minus (iii)
Reserves.
"Borrowing Base Certificate" means a certificate
executed and delivered by the chief executive officer or chief
financial officer of each of Parent and Borrower, in form
acceptable to Agent, setting forth the calculation of the
Borrowing Base, including a calculation of each component
thereof (including to the extent Parent or Borrower has
received notice of any Reserve from Agent, any of the Reserves
included in such calculation pursuant to clause (b) of the
definition of Borrowing Base), all in such detail as shall be
satisfactory to Agent. All calculations of the Borrowing Base
in connection with the preparation of any Borrowing Base
Certificate shall originally be made by Parent and Borrower
and certified to Agent; provided that Agent shall have the
right to review and adjust, in the exercise of its reasonable
credit judgment, any such calculation (a) to reflect its
reasonable estimate of declines in value of any of the
Collateral described therein, and (b) to the extent that such
calculation is not in accordance with this Agreement.
"Eligible Inventory" means Inventory, valued at the
lower of cost or market value, which Agent, in its reasonable
credit judgment, determines to be Eligible Inventory. Without
limiting the discretion of Agent to establish other criteria
of ineligibility, Eligible Inventory shall not, unless the
Agent in its reasonable credit judgment elects, include any
Inventory: (a) that is not owned by Parent or Borrower,
including Inventory held by Parent or Borrower on consignment;
(b) that is not subject to Liens in favor of Agent (for the
benefit of Agent and the Lenders) which are perfected as to
such Inventory, or that is subject to any other Lien
whatsoever; (c) that is finished goods, work-in-process,
chemicals, samples, prototypes, supplies, or packing and
shipping materials; (d) that is not in good condition, is
unmerchantable, or does not meet all standards imposed by any
Governmental Authority having regulatory authority over such
goods or their use or sale; (e) that is not currently usable
in the normal course of Parent's or Borrower's business, or
that is slow moving or stale; (f) that is obsolete, defective,
returned, repossessed, or used goods taken in trade; (g) that
is located outside the U.S. or that is in transit from vendors
or suppliers; (h) that is located in a public
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warehouse or in possession of a bailee or in a facility leased
by Parent or Borrower, if the applicable warehouseman, bailee,
or lessor has not delivered to Agent, if requested by Agent, a
subordination agreement in form and substance satisfactory to
Agent or if a Reserve for rents or storage charges has not
been established for Inventory at that location; (i) that
contains or bears any Intellectual Property licensed to Parent
or Borrower by any Person, if Agent is not satisfied that it
may sell or otherwise dispose of such Inventory without
infringing the rights of the licensor of such Intellectual
Property or violating any contract with such licensor (and
without payment of any royalties other than any royalties due
with respect to the sale or disposition of such Inventory
pursuant to the existing license agreement), and, if Agent
deems it necessary, as to which Parent and Borrower have not
delivered to Agent a consent or sublicense agreement from such
licensor in form and substance acceptable to Agent; (j) that
is acquired in connection with any acquisition, including a
Permitted Acquisition, to the extent Agent has not completed
an audit of such Inventory with results satisfactory to Agent;
or (k) that is not reflected in the details of a current
perpetual inventory report. If any Inventory at any time
ceases to be Eligible Inventory, such Inventory shall promptly
be excluded from the calculation of the Borrowing Base.
"Eligible Receivables" means Receivables of Parent
and Borrower which Agent in the exercise of its reasonable
credit judgment determines to be Eligible Receivables. Without
limiting the discretion of Agent to establish other criteria
of ineligibility, Eligible Receivables shall not, unless Agent
in its reasonable credit judgment elects, include any
Receivable: (a) with respect to which more than ninety (90)
days have elapsed since the date of the original invoice
therefor or which is more than sixty (60) days past due from
the due date of the original invoice therefor; (b) with
respect to which any of the representations, warranties,
covenants, and agreements contained in the Parent Security
Agreement or the Borrower Security Agreement, as applicable,
are incorrect or have been breached; (c) with respect to which
Receivable (or any other Receivable due from the applicable
Account Debtor), in whole or in part, a check, promissory
note, draft, trade acceptance, or other instrument for the
payment of money has been received, presented for payment, and
returned uncollected for any reason; (d) which represents a
progress billing (for the purposes hereof, "progress billing"
means any invoice for goods sold or leased or services
rendered under a contract or agreement pursuant to which the
Account Debtor's obligation to pay such invoice is conditioned
upon Parent's or Borrower's completion of any further
performance under such contract or agreement); (e) with
respect to which any one or more of the following events has
occurred to the Account Debtor on such Receivable: (i) death
or judicial declaration of incompetency of such Account Debtor
who is a natural person; (ii) the filing by or against such
Account Debtor of a request or petition for liquidation,
reorganization,
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AMENDMENT TO CREDIT AGREEMENT - Page 5
arrangement, adjustment of debts, adjudication as a bankrupt,
winding-up, or other relief under the Bankruptcy Code or any
other bankruptcy, insolvency, or similar laws of the U.S., any
state or territory thereof, or any foreign jurisdiction, now
or hereafter in effect; (iii) the making of any general
assignment by such Account Debtor for the benefit of
creditors; (iv) the appointment of a receiver or trustee for
such Account Debtor or for any of the assets of the Account
Debtor, including, without limitation, the appointment of or
taking possession by a "custodian," as defined in the
Bankruptcy Code; (v) the institution by or against such
Account Debtor of any other type of insolvency proceeding
(under the Bankruptcy Code or otherwise) or of any formal or
informal proceeding for the dissolution or liquidation of,
settlement of claims against, or winding up of affairs of,
such Account Debtor; (vi) the sale, assignment, or transfer of
all or any material part of the assets of such Account Debtor;
(vii) the nonpayment generally by such Account Debtor of its
debts as they become due; or (viii) the cessation of the
business of such Account Debtor as a going concern; (f) if
twenty-five percent (25.0%) or more of the aggregate Dollar
amount of outstanding Receivables owed at such time by the
Account Debtor thereon is classified as ineligible pursuant to
the other provisions of this definition other than clause (d)
preceding; (g) owed by an Account Debtor which (i) does not
maintain its chief executive office in the U.S., (ii) is not
organized under the laws of the U.S. or any political
subdivision or state thereof, or (iii) is the government of
any foreign country or sovereign state, or of any state,
province, municipality, or other political subdivision
thereof, or of any department, agency, public corporation, or
other instrumentality thereof, except to the extent that such
Receivable is secured or payable by a letter of credit
satisfactory to Agent in its discretion; (h) owed by an
Account Debtor which is an Affiliate or employee of Parent or
Borrower; (i) except as provided in clause (k) following, with
respect to which either the perfection, enforceability, or
validity of the Liens in favor of Agent in such Receivable, or
Agent's right or ability to obtain direct payment to Agent of
the proceeds of such Receivable, is governed by any federal,
state, or local statutory requirements other than those of the
UCC; (j) owed by an Account Debtor to which Parent or Borrower
or any of their respective Affiliates, is indebted in any way,
or which is subject to any right of setoff or recoupment by
the Account Debtor, unless the Account Debtor has entered into
an agreement acceptable to Agent to waive setoff rights, or if
the Account Debtor thereon has disputed liability or made any
claim with respect to any other Receivable due from such
Account Debtor, but in each such case only to the extent of
such indebtedness, setoff, recoupment, dispute, or claim; (k)
owed by the government of the U.S., or any department, agency,
public corporation, or other instrumentality thereof, unless
the Federal Assignment of Claims Act of 1940, as amended (31
U.S.C. Section 3727 et seq.), and any other steps necessary to
perfect Agent's Liens therein, have been complied with to
Agent's satisfaction with respect to such Receivable; (l) owed
by any state,
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AMENDMENT TO CREDIT AGREEMENT - Page 6
municipality, or other political subdivision of the U.S., or
any department, agency, public corporation, or other
instrumentality thereof and as to which Agent determines that
its Lien therein is not or cannot be perfected; (m) which
represents a sale on a xxxx-and-hold, guaranteed sale, sale
and return, sale on approval, consignment, or other repurchase
or return basis; (n) which is evidenced by a promissory note
or other instrument or by chattel paper; (o) with respect to
which Agent believes, in the exercise of its reasonable
judgment, that the prospect of collection of such Receivable
is impaired or that such Receivable may not be paid by reason
of the Account Debtor's financial inability to pay; (p) with
respect to which the Account Debtor is located in any state
requiring the filing of a Notice of Business Activities Report
or similar report in order to permit Parent or Borrower to
seek judicial enforcement in such state of payment of such
Receivable, unless Parent or Borrower, as applicable, has
qualified to do business in such state or has filed a Notice
of Business Activities Report or equivalent report for the
then current year; (q) which arises out of a sale not made in
the ordinary course of Parent's or Borrower's business or
which represents a rebate due from a vendor; (r) with respect
to which the goods giving rise to such Receivable have not
been shipped and delivered to and accepted by, or have been
rejected or objected to by, the Account Debtor or the services
giving rise to such Receivable have not been performed by
Parent or Borrower, and, if applicable, accepted by the
Account Debtor, or the Account Debtor revokes its acceptance
of such goods or services; (s) owed by an Account Debtor, or
group of affiliated Account Debtors, which is obligated to
Parent and Borrower respecting Receivables the aggregate
unpaid balance of which exceeds twenty-five percent (25.0%) of
the aggregate unpaid balance of all Receivables owed to Parent
and Borrower at such time by all of Parent and Borrower's
Account Debtors, but only to the extent of such excess; (t)
which is not subject to a first priority and perfected
security interest in favor of Agent, for the benefit of Agent
and the Lenders; (u) with respect to which Parent, Borrower,
or Agent (in the exercise of its reasonable credit judgment)
has deemed such Receivable as uncollectible or has any reason
to believe that such Receivable is uncollectible; (v) which is
acquired in connection with any acquisition, including a
Permitted Acquisition, to the extent Agent has not completed
an audit of the Receivables acquired in connection with such
acquisition with results satisfactory to Agent; and (x) which
Agent determines in its reasonable credit judgment is
ineligible for any other reason. If any Receivable at any time
ceases to be an Eligible Receivable, then such Receivable
shall promptly be excluded from the calculation of the
Borrowing Base.
"Junior Financing Debt" means the outstanding Debt of
Parent funded in connection with the Junior Financing
Transaction.
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AMENDMENT TO CREDIT AGREEMENT - Page 7
"Junior Financing Transaction" means the issuance of
unsecured subordinated notes to one or more lenders or other
form of borrowing by Parent from one or more lenders (such
lenders to be determined by Parent) pursuant to one or more
note purchase agreement, promissory note, or other similar
agreement between Parent and each such lender on terms
acceptable to the Required Lenders (including, without
limitation, provisions that principal thereunder may be paid
in Capital Stock of Parent and limitations on each such
lender's rights of acceleration and exercise of remedies) and
subject to documentation reasonably acceptable to Agent.
"Net Amount of Eligible Receivables" means, at any
time, the gross amount of Eligible Receivables, less sales,
excise, or similar taxes, and less returns, discounts, claims,
credits, allowances, accrued rebates, offsets, deductions,
counterclaims, disputes, and other defenses of any nature at
any time issued, owing, granted, outstanding, available, or
claimed.
"Payment Account" means a bank account subject to a
Blocked Account Agreement to which funds of Parent and
Borrower (including proceeds of Receivables and other
Collateral), as applicable, are deposited or credited, and
which is maintained in the name of Agent, Parent, or Borrower,
or any of them, as Agent may determine, on terms acceptable to
Agent.
"Reserves" means reserves that limit availability of
credit hereunder, consisting of reserves against Eligible
Inventory or Eligible Receivables, established by Agent from
time to time in Agent's reasonable credit judgment.
(b) Amendments to Existing Defined Terms. The following
defined terms are hereby amended and restated to read in their
respective entireties as follows:
"Fixed Charge Coverage Ratio" means, as of any period
end and determined on a consolidated basis for Parent and its
Subsidiaries, the ratio of (a) Annualized Last Three Months
EBITDA, less (b) the Annualized Last Three Months Capital
Expenditures, less (c) Annualized Last Three Months Cash
Taxes, to (d) the Annualized Last Three Months Cash Interest
and Scheduled Principal Payments.
"Leverage Ratio" means, as of any period end and
determined on a consolidated basis for Parent and its
Subsidiaries, the ratio of (a) Funded Debt, excluding Funded
Debt incurred in connection with the Junior Financing
Transaction, determined as of the end of such period, to (b)
Annualized Last Three Months EBITDA.
"Revolving Commitment" means, as to each Lender, the
obligation of such Lender to make advances of funds and
purchase participation interests
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AMENDMENT TO CREDIT AGREEMENT - Page 8
in (or with respect to the Issuing Bank as a Lender, hold
other interests in) Letters of Credit in an aggregate
principal amount at any one time outstanding up to but not
exceeding the amount set forth opposite the name of such
Lender on Schedule 1.1 (or if applicable, the most recent
Assignment and Acceptance executed by such Lender) under the
heading "Revolving Commitment", as the same may be reduced or
terminated pursuant to Section 2.5, Section 5.4, or Section
13.2. The aggregate amount of the Revolving Commitments as of
May 29, 2002 equals twelve million Dollars ($12,000,000).
"Revolving Maturity Date" means June 1, 2003.
"Term Maturity Date" means the earlier to occur of
(a) June 1, 2003, or (b) the closing date of the Junior
Financing Transaction.
Section 4.2 Amendment to Section 2.1. Effective as of the Amendment
Date, Section 2.1 of the Credit Agreement is hereby amended and restated to read
in its entirety as follows:
Section 2.1 Revolving Commitments. Subject to the terms and
conditions of this Agreement, each Lender severally agrees to make
advances to Borrower from time to time from and including the Closing
Date to but excluding the Revolving Maturity Date in an aggregate
principal amount at any time outstanding up to but not exceeding the
amount of such Lender's Revolving Commitment as then in effect;
provided, however, (a) the aggregate Outstanding Revolving Credit shall
not at any time exceed the Borrowing Base, (b) no Revolving Loan shall
be made in excess of the Availability in effect at the time of the
requested Revolving Loan, (c) the Outstanding Revolving Credit
applicable to a Lender shall not at any time exceed such Lender's
Revolving Commitment, and (d) the Outstanding Revolving Credit of all
of the Lenders shall not at any time exceed the aggregate Revolving
Commitments. Subject to the foregoing limitations, and the other terms
and provisions of this Agreement, Borrower may borrow, prepay, and
reborrow hereunder the amount of the Revolving Commitments. All
Revolving Loans made or Continued on or after May 29, 2002 shall be
Base Rate Accounts and shall be established and maintained at such
Lender's Applicable Lending Office for Base Rate Accounts.
Section 4.3 Amendment to Section 4.1. Effective as of the Amendment
Date, Section 4.1 of the Credit Agreement is hereby amended and restated to read
in its entirety as follows:
Section 4.1 Interest Rate. Borrower shall pay to Agent, for
the account of each Lender, interest on the unpaid principal amount of
each Loan made by such Lender for the period commencing on the date of
such Loan to but excluding the date such Loan is due, at a fluctuating
rate per annum equal to the Applicable Rate. The term "Applicable Rate"
means:
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AMENDMENT TO CREDIT AGREEMENT - Page 9
(a) during the period that such Loan or portion
thereof is outstanding as a Base Rate Account, the Base Rate,
plus the Base Rate Margin; and
(b) during the period that such Loan or portion
thereof is outstanding as a Libor Account or as Libor
Accounts, the Adjusted Libor Rate, plus the Libor Rate Margin;
provided, however, that, notwithstanding anything to the contrary
contained elsewhere in this Agreement, effective as of May 29, 2002,
Libor Accounts shall not be available hereunder and all outstanding
Libor Accounts (if any) shall be automatically Converted to Base Rate
Accounts (and Borrower shall be responsible for any amounts arising
under Section 6.5 as a result of such Conversion).
Section 4.4 Amendment to Section 4.2. Effective as of the Amendment
Date, Section 4.2 of the Credit Agreement is hereby amended and restated to read
in its entirety as follows:
Section 4.2 Determinations of Margins and Commitment Fee Rate.
Effective as of May 29, 2002, (a) the Commitment Fee Rate shall be
one-half percent (0.50%) and (b) on any date of determination, the Base
Rate Margin shall be as set forth in the following table:
BASE RATE
DATE OF DETERMINATION MARGIN
--------------------- ---------
May 29, 2002 through and including 1.75%
August 31, 2002
September 1, 2002 through and including 2.25%
November 30, 2002
December 1, 2002 through and including 2.75%
February 28, 2003
March 1, 2003 and thereafter 3.25%
Section 4.5 Amendment to Section 5.4. Effective as of the Amendment
Date, Section 5.4(a)(i) of the Credit Agreement is hereby amended and restated
to read in its entirety as follows:
(i) Revolving Loans. If at any time the Outstanding
Revolving Credit exceeds (A) the aggregate Revolving
Commitments, Borrower shall, within one (1) Business Day after
notice thereof from the Agent, prepay the outstanding
Revolving Loans by the amount of such excess, or (B) the
Borrowing Base, Borrower shall, within one (1) Business Day
after the date
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required for delivery of a Borrowing Base Certificate which
would calculate such excess or within one (1) Business Day
after notice thereof from Agent to Borrower, prepay the
outstanding Revolving Loans by the amount of such excess.
Section 4.6 Amendments to Section 10.1. Effective as of the Amendment
Date, Section 10.1 of the Credit Agreement is hereby amended as follows:
(a) The word "and" is deleted at the end of Section 10.1(k)
and Section 10.1(l) is amended and restated to read in its entirety as
follows:
(l) Borrowing Base Certificate. As soon as available,
and in any event by the second Business Day of each week, a
Borrowing Base Certificate setting forth a computation of the
Borrowing Base as of the last Business Day of the immediately
preceding week, together with other information as may be
reasonably requested by Agent, and setting forth the
calculations supporting the computations therein;
(b) A new Section 10.1(m) is added, which Section 10.1(m)
shall read in its entirety as follows:
(m) Receivables Agings, Etc.
(i) At any time any amount is outstanding
under the Revolving Loans, as soon as available, and
in any event by the second Business Day of each week
as of the last Business Day of the immediately
preceding week, a schedule of Parent's and Borrower's
Receivables, which schedule shall set forth a
detailed aged final balance of all then existing
Receivables of Parent and Borrower specifying the
names, addresses, and balances due for each Account
Debtor obligated on the Receivables so listed;
(ii) If no amount is outstanding under the
Revolving Loans, as soon as available, and in any
event by the fifth Business Day of each calendar
month as of the last Business Day of the immediately
preceding calendar month, a schedule of Parent's and
Borrower's Receivables, which schedule shall meet the
requirements of clause (i) preceding;
(iii) As soon as available, and in any event
by the second Business Day of each week as of the
last Business Day of the immediately preceding week,
a report of cash receipts of and disbursements made
by Parent and Borrower during such week;
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AMENDMENT TO CREDIT AGREEMENT - Page 11
(iv) As soon as available, and in any event
by the fifth Business Day of each calendar month, a
schedule of Inventory itemizing and describing the
kind, type, and quantity of all Inventory owned by
Parent and Borrower, the cost thereof, and the
location thereof; and
(c) A new Section 10.1(n) is added, which Section 10.1(n)
shall read in its entirety as follows:
(n) General Information. Promptly, such other
information concerning Parent and Borrower or any Subsidiary
of Parent or Borrower as Agent or any Lender may from time to
time reasonably request.
Section 4.7 Amendment to Section 10.6. Effective as of the Amendment
Date, Section 10.6 of the Credit Agreement is hereby amended and restated to
read in its entirety as follows:
Section 10.6 Inspection Rights. Parent will, and will cause
each Subsidiary of Parent to, permit representatives and agents of
Agent, accompanied by representatives and agents of any Lender, during
normal business hours and upon reasonable notice to Parent, to examine,
copy, and make extracts from Parent's or such Subsidiary's books and
records, to visit and inspect Parent's or such Subsidiary's Properties
and to discuss Parent's or such Subsidiary's business, operations, and
financial condition with its officers and independent certified public
accountants. Parent will, and will cause each Subsidiary of Parent to,
authorize its accountants in writing (with a copy to Agent) to comply
with this Section. Agent or its representatives may, at any time and
from time to time at Parent's and Borrower's expense, conduct field
exams for such purposes as Agent or the Required Lenders may reasonably
request. Without limiting the generality of the foregoing sentence,
Agent or its representatives may conduct field exams on or around
September 1, 2002, and every ninety (90) days thereafter, all at
Parent's and Borrower's expense (including, without limitation, Agent's
customary charge of $800 per day for each Person performing such
exams).
Section 4.8 Addition of Section 10.15. Effective as of the Amendment
Date, a new Section 10.15 is hereby added to the Credit Agreement, which shall
read in its entirety as follows:
Section 10.15 Collection of Accounts; Payments. Upon the
earlier to occur of August 31, 2002 or the occurrence of any Event of
Default:
(a) Parent and Borrower shall establish a lock-box
service for collections of Receivables with Agent or another
Lender (subject to a Blocked Account Agreement and other
documentation acceptable to Agent). Parent and Borrower shall
promptly and thereafter instruct all of their respective
CONSENT, WAIVER AND THIRD
AMENDMENT TO CREDIT AGREEMENT - Page 12
account debtors to make all payments directly to the address
established for such service. If notwithstanding such
instructions, Parent or Borrower receives any proceeds of
Receivables, it shall receive such proceeds as Agent's
trustee, and shall immediately deliver such payments to Agent
in their original form duly endorsed in blank or deposit them
into a Payment Account, as Agent may direct.
(b) All collections of Parent and Borrower received
in any lock-box or Payment Account or directly by Parent or
Borrower, and all funds in any such Payment Account or other
deposit account to which such collections are deposited shall
be subject to Agent's sole control and withdrawals by Parent
or Borrower shall not be permitted.
(c) All collections of any Person other than Parent
or Borrower received in any lock-box or Payment Account and
all funds in any such Payment Account or other deposit account
to which such collections are deposited shall be subject to
Agent's sole control and withdrawals by Parent or Borrower
shall not be permitted.
(d) Agent or Agent's designee may, at any time after
a Default or an Event of Default has occurred, notify Parent's
and Borrower's account debtors that Parent's and Borrower's
(as applicable) Receivables have been assigned to Agent and of
Agent's security interest therein, and may collect such
Receivables directly and may charge the collection costs and
expenses against the proceeds received or to Borrower as a
Revolving Loan. So long as an Event of Default exists, Parent
and Borrower, at Agent's request, shall execute and deliver to
Agent such documents as Agent shall require to grant Agent
access to any post office box in which collections of Parent's
and Borrower's Receivables are received.
(e) If sales of Inventory are made or services are
rendered by Parent or Borrower for cash, Parent or Borrower
(as applicable) shall immediately deliver, or cause to be
delivered, to Agent or deposit into a Payment Account, the
cash received by Parent or Borrower.
Section 4.9 Addition of Section 10.16. Effective as of the Amendment
Date, a new Section 10.16 is hereby added to the Credit Agreement, which shall
read in its entirety as follows:
Section 10.16 Retention of Business Consultant. On and after
May 29, 2002, Parent and Borrower shall retain Xxxxxxx Xxxxx & Company
or another similar business consultant or investment banking firm to
help arrange financing to replace the Commitments by refinancing with
another lender on or before the Maturity Date.
CONSENT, WAIVER AND THIRD
AMENDMENT TO CREDIT AGREEMENT - Page 13
Section 4.10 Amendment to Section 12.1. Effective as of the Amendment
Date, Section 12.1 of the Credit Agreement is hereby amended and restated to
read in its entirety as follows:
Section 12.1 Leverage Ratio. As of the end of each calendar
month ending specified below, Parent shall not permit the Leverage
Ratio to exceed the ratio set forth below opposite the applicable month
specified below:
Period End Leverage Ratio
---------- --------------
September 30, 2002 3.50 to 1.00
October 31, 2002 3.10 to 1.00
November 30, 2002 2.50 to 1.00
December 31, 2002 and each other month 2.00 to 1.00
ending thereafter
Section 4.11 Amendment to Section 12.2. Effective as of the Amendment
Date, Section 12.2 of the Credit Agreement is hereby amended and restated to
read in its entirety as follows:
Section 12.2 Fixed Charge Coverage Ratio. As of the end of
each calendar month specified below, Parent shall not permit the Fixed
Charge Coverage Ratio calculated as of the last day of each such
calendar month to be less than the ratio set forth below opposite the
applicable month specified below:
Period End Fixed Charge Coverage Ratio
---------- ---------------------------
September 30, 2002 0.60 to 1.00
October 31, 2002 0.80 to 1.00
November 30, 2002 1.10 to 1.00
December 31, 2002 1.25 to 1.00
January 31, 2003 1.50 to 1.00
February 28, 2003 1.80 to 1.00
March 31, 2003 1.90 to 1.00
April 30, 2003 2.00 to 1.00
May 31, 2003 and each other month 2.25 to 1.00
ending thereafter
CONSENT, WAIVER AND THIRD
AMENDMENT TO CREDIT AGREEMENT - Page 14
Section 4.12 Addition of Section 12.5. Effective as of the Amendment
Date, a new Section 12.5 is hereby added to the Credit Agreement, which shall
read in its entirety as follows:
Section 12.5 Minimum EBITDA. As of the end of each calendar
month specified below, Parent shall not permit EBITDA for such month to
be less than the amount set forth opposite the applicable month
specified below:
Period End Minimum EBITDA
---------- --------------
June 30, 2002 $(4,500,000)
July 31, 2002 $ (500,000)
August 31, 2002 $ 3,000,000
September 30, 2002 $(4,500,000)
Section 4.13 Amendments to Section 13.1. Effective as of the Amendment
Date, Section 13.1 of the Credit Agreement is hereby amended as follows:
(a) The word "or" is deleted at the end of Section 13.1(m) and
the period at the end of Section 13.1(n) is replaced with a semicolon
and the word "or".
(b) A new Section 13.1(o) is added, which shall read in its
entirety as follows:
(o) Any payment with respect to the principal amount
of the Junior Financing Debt shall be paid in cash at any time
any Revolving Loan is outstanding (after giving effect to the
making of such payment), any prepayment shall be made in cash
with respect to the principal amount of the Junior Financing
Debt, or any event of default, redemption event, triggering
event, change of control, or other event which permits the
holder of the Junior Financing Debt (i) to accelerate the
Junior Financing Debt or otherwise permits any holder of the
Junior Financing Debt to cause the Junior Financing Debt to be
redeemed for cash prior to its scheduled maturity or required
payment of a premium or other charge in cash or (ii) to
exercise any remedies with respect thereto (other than any
such event of default or other default or acceleration that is
remedied within two (2) Business Days of such occurrence by
the issuance of Capital Stock of Parent in satisfaction of the
Junior Financing Debt); provided that the date set forth in
this Section 13.1(o) may be extended with the written approval
of the Required Lenders.
Section 4.14 Amendments to Schedule 1.1. Effective as of the Amendment
Date, Schedule 1.1 of the Credit Agreement is hereby amended to change the
"REVOLVING COMMITMENTS" to read as follows:
CONSENT, WAIVER AND THIRD
AMENDMENT TO CREDIT AGREEMENT - Page 15
REVOLVING COMMITMENTS:
Lender Commitment Amount Pro Rata Share
------ ----------------- --------------
Bank of America, National $ 2,080,000.00 17.3333333%
Association
Fleet National Bank $ 2,080,000.00 17.0000000%
Bank One, Texas, NA $ 1,920,000.00 16.0000000%
The Bank of Nova Scotia $ 1,200,000.00 10.0000000%
IBM Credit Corporation $ 1,200,000.00 10.0000000%
Comerica Bank $ 880,000.00 7.3333333%
U.S. Bank National Association $ 880,000.00 7.3333333%
Union Bank of California, N.A. $ 880,000.00 7.0000000%
Bank Austria Creditanstalt $ 880,000.00 7.3333333%
Corporate Finance, Inc.
-------------- ----------
Total Revolving Commitments $12,000,000.00 100%
============== ==========
ARTICLE 5
Conditions
Section 5.1 Conditions Precedent. The effectiveness of this Amendment
is subject to the satisfaction of the following conditions precedent:
(a) the representations and warranties contained herein and in
all other Loan Documents, as amended hereby, shall be true and correct
in all material respects as of the date hereof as if made on the date
hereof, except for such representations and warranties limited by their
terms to a specific date;
(b) after giving effect to this Amendment, no Default or Event
of Default shall be in existence;
(c) Parent, Borrower, and the Required Lenders shall have
delivered to Agent an executed original copy of this Amendment;
(d) Borrower shall have paid to Agent all fees, costs, and
expenses owed to and/or incurred by Agent and each such Lender arising
in connection with the Credit Agreement or
CONSENT, WAIVER AND THIRD
AMENDMENT TO CREDIT AGREEMENT - Page 16
this Amendment, including, without limitation, the reasonable fees,
costs, and expenses of Agent's legal counsel, Jenkens & Xxxxxxxxx, a
Professional Corporation;
(e) Borrower shall have paid to Agent, for the ratable benefit
of each Lender providing to Agent its signature page to the commitment
letter provided to the Borrower relating to this Amendment on or before
3:00 p.m. (Dallas,
Texas time) May 29, 2002, an amendment fee of
$120,000 (such fee to be allocated to such Lenders pro rata based on
the amount of each such Lender's Commitment);
(f) The Mortgage Transaction (as defined in that certain
Consent and Amendment to Forbearance Agreement, dated as of March 31,
2002, among Parent, Borrower, Agent, and the Lenders party thereto)
shall have closed and funded and Borrower shall have made the
prepayment required under Section 5.4(b) of the Credit Agreement in
connection therewith;
(g) The Junior Financing Transaction shall have closed (which
Junior Financing Transaction shall be subordinated to the Obligations
pursuant to a subordination and intercreditor agreement in form and
substance satisfactory to Agent) and $10,000,000 of Junior Financing
Debt shall have funded thereunder; and
(h) all proceedings taken in connection with the transactions
contemplated by this Amendment and all documentation and other legal
matters incident thereto shall be satisfactory to Agent and the
Required Lenders (execution and delivery of a counterpart of this
Amendment evidencing completion of each condition to effectiveness
hereof to Agent's and such Lender's satisfaction).
ARTICLE 6
Ratifications, Representations, and Warranties
Section 6.1 Ratifications. The terms and provisions set forth in this
Amendment shall modify and supersede all inconsistent terms and provisions set
forth in the Credit Agreement and, except as expressly modified and superseded
by this Amendment, the terms and provisions of the Credit Agreement and the
other Loan Documents are ratified and confirmed and shall continue in full force
and effect. Parent, Borrower, Agent, and the Lenders agree that the Credit
Agreement as amended hereby and the other Loan Documents shall continue to be
legal, valid, binding, and enforceable in accordance with their respective
terms.
Section 6.2 Representations and Warranties. Each of Parent and Borrower
hereby represents and warrants to Agent and the Lenders that (a) the execution,
delivery, and performance of this Amendment and any and all other Loan Documents
executed and/or delivered in connection herewith have been authorized by all
requisite action on the part of Parent and Borrower and will not violate the
articles of incorporation or bylaws of Parent or Borrower, (b) the
representations and warranties contained in the Credit Agreement, as amended
hereby, and any other Loan Document are true and correct on and as of the date
hereof as though made on and as of the date hereof (except to
CONSENT, WAIVER AND THIRD
AMENDMENT TO CREDIT AGREEMENT - Page 17
the extent that such representations and warranties were expressly, in the
Credit Agreement, made only in reference to a specific date), (c) after giving
effect to this Amendment, no Default or Event of Default has occurred and is
continuing, and (d) each of Parent and Borrower is in full compliance with all
covenants and agreements contained in the Credit Agreement, as amended hereby,
and the other Loan Documents.
ARTICLE 7
Loan Party Agreements
Section 7.1 Release and Waiver. To induce Agent and the Lenders to
agree to the terms of this Amendment, Borrower, Parent and each other Loan Party
(by its execution of this Amendment or the Reaffirmation of Guaranty and Pledge
and Security Agreement attached to this Amendment) represents and warrants that
as of the date of its execution of this Amendment there are no claims or offsets
against or defenses or counterclaims to its obligations under the Loan Documents
and in accordance therewith it:
(a) WAIVER. WAIVES ANY AND ALL SUCH CLAIMS, OFFSETS, DEFENSES
OR COUNTERCLAIMS, WHETHER KNOWN OR UNKNOWN, ARISING PRIOR TO THE DATE
OF THIS AMENDMENT AND
(b) RELEASE. RELEASES AND DISCHARGES AGENT AND THE LENDERS,
AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS,
SHAREHOLDERS, AFFILIATES, AND ATTORNEYS (COLLECTIVELY THE "RELEASED
PARTIES") FROM ANY AND ALL OBLIGATIONS, INDEBTEDNESS, LIABILITIES,
CLAIMS, RIGHTS, CAUSES OF ACTION, OR DEMANDS WHATSOEVER, WHETHER KNOWN
OR UNKNOWN, SUSPECTED OR UNSUSPECTED, IN LAW OR EQUITY, WHICH BORROWER,
PARENT, OR ANY OTHER LOAN PARTY EVER HAD, NOW HAS, CLAIMS TO HAVE, OR
MAY HAVE AGAINST ANY RELEASED PARTY ARISING PRIOR TO THE DATE HEREOF
AND FROM OR IN CONNECTION WITH THE LOAN DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED THEREBY.
Section 7.2 Amendment and Other Fees. In consideration of the consents,
waivers, and amendments contained herein and in addition to any fees payable
under the Credit Agreement, Borrower hereby agrees (a) on or before November 30,
2002 (unless the Credit Agreement shall have been terminated and all Obligations
thereunder shall have been paid in full on or before such date), to pay to
Agent, for the ratable benefit of each Lender providing to Agent its signature
page to this Amendment on or before 12:00 noon (Dallas,
Texas time) May 29,
2002, an availability fee of $50,000 (such fee to be allocated to such Lenders
pro rata based on the amount of each such Lender's Commitment), and (b) on the
Amendment Date and on or before the last Business Day of each month after the
Amendment Date beginning June 30, 2002, to Agent for its own account, a
collateral monitoring fee equal to (i) for the months of May, June, and July,
2002, $5,000 and (ii) for
CONSENT, WAIVER AND THIRD
AMENDMENT TO CREDIT AGREEMENT - Page 18
each month thereafter (until such time that the Credit Agreement shall have been
terminated and all Obligations thereunder shall have been paid in full),
$10,000.
ARTICLE 8
Miscellaneous
Section 8.1 Survival of Representations and Warranties. All
representations and warranties made in this Amendment or any other Loan Document
including any Loan Document furnished in connection with this Amendment shall
survive the execution and delivery of this Amendment and the other Loan
Documents, and no investigation by Agent or any Lender shall affect the
representations and warranties or the right of Agent or any Lender to rely upon
them.
Section 8.2 Reference to Credit Agreement. Each of the Loan Documents,
including the Credit Agreement and any and all other agreements, documents, or
instruments now or hereafter executed and delivered pursuant to the terms hereof
or pursuant to the terms of the Credit Agreement as amended hereby, are hereby
amended so that any reference in such Loan Documents to the Credit Agreement
shall mean a reference to the Credit Agreement as amended hereby.
Section 8.3 Severability. Any provision of this Amendment held by a
court of competent jurisdiction to be invalid or unenforceable shall not impair
or invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
Section 8.4 Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
TEXAS AND THE APPLICABLE
LAWS OF THE U.S.
Section 8.5 Successors and Assigns. This Amendment is binding upon and
shall inure to the benefit of Parent, Borrower, Agent, and the Lenders and their
respective successors and assigns, except neither Parent nor Borrower may assign
or transfer any of its respective rights or obligations hereunder without the
prior written consent of the Lenders.
Section 8.6 Counterparts. This Amendment may be executed in one or more
counterparts, and on telecopy counterparts each of which when so executed shall
be deemed to be an original, but all of which when taken together shall
constitute one and the same agreement.
Section 8.7 Effect of Amendment. No consent or waiver, express or
implied, by Agent or any Lender to or for any breach of or deviation from any
covenant, condition, or duty by Parent, Borrower, or any other Loan Party shall
be deemed a consent or waiver to or of any other breach of the same or any other
covenant, condition, or duty.
Section 8.8 Headings. The headings, captions, and arrangements used in
this Amendment are for convenience only and shall not affect the interpretation
of this Amendment.
CONSENT, WAIVER AND THIRD
AMENDMENT TO CREDIT AGREEMENT - Page 19
Section 8.9 Entire Agreement. THIS AMENDMENT AND ALL OTHER INSTRUMENTS,
DOCUMENTS, AND AGREEMENTS EXECUTED AND DELIVERED IN CONNECTION WITH THIS
AMENDMENT EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO AND
SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS, AND
UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THIS AMENDMENT, AND MAY NOT
BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO ORAL
AGREEMENTS AMONG THE PARTIES HERETO.
[remainder of page intentionally left blank]
CONSENT, WAIVER AND THIRD
AMENDMENT TO CREDIT AGREEMENT - Page 20
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment effective as of the date first written above.
BORROWER:
BRITE VOICE SYSTEMS, INC. (successor
by merger to InterVoice Acquisition
Subsidiary III, Inc.)
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
CONSENT, WAIVER AND THIRD
AMENDMENT TO CREDIT AGREEMENT - Page 21
PARENT:
INTERVOICE-BRITE, INC. (formerly
InterVoice, Inc.)
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
CONSENT, WAIVER AND THIRD
AMENDMENT TO CREDIT AGREEMENT - Page 22
AGENT and ISSUING BANK:
BANK OF AMERICA, NATIONAL ASSOCIATION
(successor by merger to Bank of America
National Trust and Savings Association),
as Agent
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
CONSENT, WAIVER AND THIRD
AMENDMENT TO CREDIT AGREEMENT - Page 23
LENDERS:
BANK OF AMERICA, NATIONAL ASSOCIATION
(successor by merger to Bank of America
National Trust and Savings Association)
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
CONSENT, WAIVER AND THIRD
AMENDMENT TO CREDIT AGREEMENT - Page 24
BANK ONE,
TEXAS, N.A.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
CONSENT, WAIVER AND THIRD
AMENDMENT TO CREDIT AGREEMENT - Page 25
U.S. BANK NATIONAL ASSOCIATION
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
CONSENT, WAIVER AND THIRD
AMENDMENT TO CREDIT AGREEMENT - Page 26
FLEET NATIONAL BANK
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
CONSENT, WAIVER AND THIRD
AMENDMENT TO CREDIT AGREEMENT - Page 27
IBM CREDIT CORPORATION
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
CONSENT, WAIVER AND THIRD
AMENDMENT TO CREDIT AGREEMENT - Page 00
XXXXX XXXX XX XXXXXXXXXX, N.A.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
CONSENT, WAIVER AND THIRD
AMENDMENT TO CREDIT AGREEMENT - Page 00
XXX XXXX XX XXXX XXXXXX
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
CONSENT, WAIVER AND THIRD
AMENDMENT TO CREDIT AGREEMENT - Page 30
BANK AUSTRIA CREDITANSTALT CORPORATE
FINANCE, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
CONSENT, WAIVER AND THIRD
AMENDMENT TO CREDIT AGREEMENT - Page 31
COMERICA BANK
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
CONSENT, WAIVER AND THIRD
AMENDMENT TO CREDIT AGREEMENT - Page 32
REAFFIRMATION OF GUARANTY AND PLEDGE AND SECURITY AGREEMENT
Each of the undersigned hereby (a) consents to the execution and
delivery of the Consent, Waiver, and Third Amendment to Credit Agreement to
which this Reaffirmation of Guaranty and Pledge and Security Agreement is
attached (the "Amendment") by the parties thereto, (b) AGREES TO THE WAIVER AND
RELEASE CONTAINED IN SECTION 7.1 OF THE AMENDMENT, (c) agrees that the Amendment
shall not limit or diminish the obligations of each of the undersigned under
their certain Loan Documents delivered in connection with the Credit Agreement,
executed or joined in by each of the undersigned and delivered to Agent, (d)
reaffirms its obligations under each of such Loan Documents, and (e) agrees that
each of such Loan Documents remains in full force and effect and is hereby
ratified and confirmed.
Dated effective as of May 29, 2002.
INTERVOICE GP, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
INTERVOICE LP, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
INTERVOICE ACQUISITION SUBSIDIARY, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
CONSENT, WAIVER AND THIRD
AMENDMENT TO CREDIT AGREEMENT - Page 33
INTERVOICE ACQUISITION SUBSIDIARY II,
INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
INTERVOICE LIMITED PARTNERSHIP
By: InterVoice GP, Inc.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
BVSI, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
BVS INVESTCO, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
CONSENT, WAIVER AND THIRD
AMENDMENT TO CREDIT AGREEMENT - Page 34
ANNEX A
TO
CONSENT, WAIVER, AND THIRD AMENDMENT TO CREDIT AGREEMENT
Junior Financing Transaction Terms