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
XXXX 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 Xxxxxxx X. Xxxxxxxxxx, 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
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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
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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/ Xxx-Xxx X. Xxxxxx
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Name: Xxx-Xxx X. Xxxxxx
Title: Chief Financial Officer
LENDER:
XXXX BANK, S.S.B.
a savings bank organized under the laws of
the State of Texas
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
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